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Donahue v. Ross Simons12/31/2004
l incapacity poses a material hindrance to obtaining employment, benefits shall continue." (Tr. p. 93) (emphasis added)
Lombardo involved an employee's petition to review seeking total disability benefits based on R.I.G.L. § 28-33-17(b)(2), the manifest injustice/odd lot standard. The instant petition seeks benefits for continuing partial disability pursuant to R.I.G.L. § 28-33-18(d), the material hindrance standard. Although the trial judge concluded that the employee failed to prove that she suffers from a material hindrance to obtaining suitable employment, it appears that he reached this result using the manifest injustice standard.
The Lombardo decision distinguished the difference between seeking continuing partial disability benefits and total disability benefits. Lombardo states as follows:
"We also note that the provisions of § 28-33-18.3 (allowing for the continuation of partial-disability benefits beyond the 312 week cutoff of benefits per § 28-33-18(d) are available to a partially disabled employee like this petitioner if he or she can show "that his or her partial incapacity poses a material hindrance to obtaining employment suitable to his or her limitation." The existence of this provision, however, serves to underscore a key distinction drawn by the WCA between qualifying for continued-partial-disability benefits and qualifying for total-disability benefits via proof of odd-lot status: namely, to qualify under the latter WCA provisions, it is not enough that partially disabled employees are able to establish that their disability poses a material hindrance to obtaining employment suitable to their limitations. Rather, to qualify for total, as opposed to continued-partial-disability benefits, partially disabled employees must clear an even higher statutory hurdle: they must show not just that their partial incapacity materially hinders them in their efforts to obtain suitable-alternative employment, but also that they are actually unable to perform their regular job and any alternative employment, such that it would be manifestly unjust to deny them total-disability benefits." Lombardo at 689.
Lombardo emphasizes that employees seeking to establish total disability under the manifest injustice standard "must clear an even higher statutory hurdle," as compared with those employees seeking to establish partial disability pursuant to the material hindrance standard.
Since it appears that the trial justice in the instant petition applied the manifest injustice standard rather than the lesser material hindrance standard, we remand the case to the trial judge to reconsider the evidence in accordance with the appropriate legal standard.
In accordance with Rule 2.20 of the Rules of Practice of the Workers' Compensation Court, a final decree, a copy of which is enclosed, shall be entered on
Olsson and Sowa, JJ. concur.
Olsson, J.
Bertness, J.
Sowa, J.
ORDER OF REMAND OF THE APPELLATE DIVISION
This cause came on to be heard by the Appellate Division upon the appeal of the petitioner/employee from a decree entered on November 17, 2003, and upon consideration thereof, the appeal is granted and it is:
ORDERED, ADJUDGED, AND DECREED:
1. That the decree of the trial judge entered on November 17, 2003 is hereby vacated.
2. That the matter is remanded to the trial judge for reconsideration of the evidence in accordance with the decision of the Appellate Division.
3. That the respondent/employer shall reimburse the employee's counsel the sum of Two Hundred Fifty and 00/100 ($250.00) Dollars for the
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