 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Donahue v. Ross Simons12/31/2004
red and twelve (312) week period.
(2) The provisions of this subsection apply to all injuries from Sept. 1, 1990, to July 1, 2001." (emphasis added).
Employees who satisfy the requirements of R.I.G.L. §§ 28-33-18(d) and 28-33-18.3, continue to receive partial disability benefits beyond the three hundred and twelve (312) week cutoff. Lombardo v. Atkinson-Kiewit, 746 A.2d 679, 689 (R.I. 2000). Employees receiving benefits pursuant to these statutes are considered partially disabled and do not receive dependency benefits. Employees do, however, receive an annual cost of living increase pursuant to R.I.G.L. § 28-33-18.3(b). In addition, employees receiving benefits pursuant to these statutes may not commute their claims. R.I.G.L. § 28-33-18.3(c).
The second way that employees may continue receiving workers' compensation benefits past the three hundred and twelve (312) week gate is by proving that "manifest injustice" will result if benefits are discontinued. R.I.G.L. § 28-33-17(b)(2). Under R.I.G.L. § 28-33-17(b)(2), an employee may establish a finding of "total disability" if certain requirements are satisfied:
"In all other cases, total disability shall be determined only if, as a result of the injury, the employee is physically unable to earn any wages in any employment; provided, that in cases where manifest injustice would otherwise result, total disability shall be determined when an employee proves, taking into account the employee's age, education, background, abilities, and training, that he or she is unable on account of his or her compensable injury to perform his or her regular job and is unable to perform any alternative employment. The court may deny total disability under this subsection without requiring the employer to identify particular alternative employment." (emphasis added)
This manifest injustice standard is a retooling of the so-called "odd lot doctrine," which had been developed by case law. When employees can prove manifest injustice pursuant to the statute, they are afforded all of the benefits afforded to other employees who are considered "totally disabled." Therefore, employees are entitled to receive dependency benefits as well as annual cost of living increases. R.I.G.L. § 28-33-17(c)(1) et seq. Employees receiving benefits for total incapacity by satisfying the manifest injustice standard may commute their cases pursuant to §28-33-25.
The trial judge in the instant petition utilized the manifest injustice standard set forth in R.I.G.L. § 28-33-17(b)(2) and as discussed by the Rhode Island Supreme Court in Lombardo v. Atkinson Kiewit, 746 A.2d 679 (R.I. 2000). Specifically, the trial judge stated in his bench decision as follows:
". . . I intend later on in the decision to quote from an opinion written by Mr. Justice Flanders in 2000 which sets out the standards that I believe I have to use in order to resolve the issue presented to me by way of this petition." (Tr. p. 79)
The trial judge went on to state as follows:
"Let's first set out what I think is the legal standard that Mrs. Donahue must meet, and then I want to get into a comparison of the evidence that's been presented in this case as compared to the standard. Mr. Justice Flanders wrote an opinion in calendar year 2000 in the case of Alfred Lombardo v. Atkinson-Kiewit, 746 A.2d, (sic) 679 which goes into a rather lengthy and a very complete discussion of odd lot and manifest injustice which is the particular term that we're dealing with in the case that's before the court because as I indicated earlier 28-33-18.3 indicates that in any proceeding before the court where the employee demonstrates his or her partia
Page 1 2 3 4 Rhode Island Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|