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Maroney v. Flemington Corp.5/31/2005
DECISION OF THE APPELLATE DIVISION
This matter comes before the Appellate Division upon the appeal of the petitioner/employee from the decision and decree of the trial judge entered on November 26, 2004.
This is an employee's petition to adjudge the employer in contempt for failure to pay workers' compensation benefits in accordance with a pretrial order entered in W.C.C. No. 04-02378 on June 9, 2004. This pretrial order awarded the employee workers' compensation benefits from January 6, 2004 through April 9, 2004 for a January 5, 2004 injury. At the pretrial conference, the trial judge denied the employee's petition to adjudge the employer in contempt for failure to make timely payments and the employee claimed a trial. At the conclusion of the proceedings, the trial judge entered a decision and decree which found that the employee failed to produce credible evidence to show that the employer was in contempt for non-payment of weekly compensation benefits and the employee's petition was denied and dismissed. The employee then claimed this appeal.
The parties entered into an agreed statement of facts that was marked as a joint exhibit. The agreed statement of facts essentially recites the findings of the pretrial order entered on June 9, 2004, awarding the employee partial disability benefits for the period January 6, 2004 through April 9, 2004. The agreed statement of facts goes on to state that on or about June 25, 2004, a petition to adjudge the employer in contempt for failure to pay benefits pursuant to the June 9, 2004 pretrial order was filed. The employee and employer agreed that two (2) checks were issued to the employee on June 23, 2004 representing the full amount due to the employee pursuant to the aforementioned pretrial order. The parties agreed that the checks were issued on June 23, 2004 and were also dated June 23, 2004. The employee alleges that there has been a late payment of workers' compensation benefits to the employee pursuant to R.I.G.L. § 28-35-43 and seeks a late penalty. The employer's position is that the checks were timely issued in accordance with R.I.G.L. § 28-35-43 and the employee's petition should be denied and dismissed with prejudice.
The trial judge issued a bench decision in this matter and after going through a review of R.I.G.L. § 28-35-43, § 28-35-12 and § 28-35-20, she determined that the checks were issued by the employer to the employee within fourteen (14) days of the entry of the pretrial order on June 9, 2004. She, therefore, found that the employer's payment to the employee was timely and she denied and dismissed the employee's petition to adjudge the employer in contempt.
Pursuant to R.I.G.L. § 28-35-28(b), a trial judge's findings on factual matters are final unless found to be clearly erroneous. Diocese of Providence v. Vaz, 679 A.2d 879, 881 (R.I. 1996). The Appellate Division is entitled to conduct a de novo review only when a finding is made that the trial judge was clearly wrong. Id. (citing R.I.G.L. § 28-35-28(b); Grimes Box Co. v. Miguel, 509 A.2d 1002 (R.I. 1986)). Such review, however, is limited to the record made before the trial judge. Vaz, supra (citing Whittaker v. Health-Tex, Inc., 440 A.2d 122 (R.I. 1982)).
Cognizant of this legal duty imposed upon us, we have carefully reviewed the entire record of this proceeding and we find no merit in the employee's reasons of appeal. We, therefore, affirm the decision and decree of the trial judge.
The employee has offered four (4) reasons of appeal, all of which fault the trial judge's finding that the payment to the employee was timely when it was mailed out on the fourteenth (14th) day after the entry of the order of
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