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Donahue v. Ross Simons12/31/2004
DECISION OF THE APPELLATE DIVISION
This matter came on for hearing before the Appellate Division on the petitioner/employee's appeal from an adverse decision and decree rendered by the trial court on November 17, 2003. The employee filed a petition to review contesting the discontinuation of her weekly benefits pursuant to R.I.G.L. § 28-33-18(d) on the ground that her injuries are a material hindrance to obtaining employment suitable to her limitations. The trial judge denied the petition, finding that the employee failed to prove that her injuries constituted a material hindrance to obtaining suitable employment.
On appeal, the employee argues that the trial judge used an erroneous legal standard of "manifest injustice," rather the appropriate "material hindrance" standard. We agree.
Employees who are partially disabled are entitled to receive a maximum of three hundred and twelve (312) weeks of indemnity benefits while they remain partially incapacitated. There are two (2) ways that employees can continue to receive indemnity benefits after the three hundred and twelve (312) week cutoff. First, pursuant to R.I.G.L. §§ 28-33-18(d) and 28-33-18.3, an employee can prove "that his or her partial incapacity poses a material hindrance to obtaining employment suitable to his or her limitation.." R.I.G.L. § 28-33-18.3(a)(1). Rhode Island General Laws § 28-33-18(d) provides as follows:
"In the event partial compensation is paid, in no case shall the period covered by the compensation be greater than three hundred and twelve (312) weeks. In the event that compensation for partial disability is paid under this section for a period of three hundred and twelve (312) weeks, the employee's right to continuing weekly compensation benefits shall be determined pursuant to the terms of § 28-33-18.3. At least twenty-six (26) weeks prior to the expiration of the period, the employer or insurer shall notify the employee and the director of its intention to terminate benefits at the expiration of three hundred and twelve (312) weeks and advise the employee of the right to apply for a continuation of benefits under the terms of § 28-33-18.3. In the event that the employer or insurer fails to notify the employee and the director as prescribed, the employer or insurer shall continue to pay benefits to the employee for a period equal to twenty-six (26) weeks after the date the notice is served on the employee and the director."
An employee's right to continuing weekly benefits is determined pursuant to R.I.G.L. § 28-33-18.3. That section provides in pertinent part as follows:
"(a)(1) For all injuries occurring on or after September 1, 1990, in those cases where the employee has received a notice of intention to terminate partial incapacity benefits pursuant to § 28-33-18, the employee or his or her duly authorized representative may file with the workers' compensation court a petition for continuation of benefits on forms prescribed by the workers' compensation court. In any proceeding before the workers' compensation court on a petition for continuation of partial incapacity benefits, where the employee demonstrates by a fair preponderance of the evidence that his or her partial incapacity poses a material hindrance to obtaining employment suitable to his or her limitation, partial incapacity benefits shall continue. For injuries on and after July 1, 2001, "material hindrance" is defined to include only compensable injuries causing a greater than sixty-five percent (65%) degree of functional impairment and/or disability. Any period of time for which the employee has received benefits for total incapacity shall not be included in the calculation of the three hund
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