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Brown University v. Santos3/31/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division upon the appeal of the petitioner/employee from the decision and decree of the trial judge in which it was found that the employee had abandoned and, effectively, terminated his suitable alternative employment position. As a result, his weekly benefits were reduced as a result of including the wages he would have earned in that position in the computation of his weekly compensation rate. After thoroughly reviewing the record and considering the arguments of the parties, we deny the employee's appeal and affirm the findings and orders of the trial judge.
The employee sustained a laceration to his right thumb on May 1, 1995 and was paid weekly benefits for total incapacity pursuant to a Memorandum of Agreement. On October 11, 1995, the employee underwent surgery on the right thumb. During the surgery, it was found that he had an almost complete rupture of the flexor polices longus tendon which necessitated an interphalangeal joint fusion. In August 1997, the employee's condition had reached maximum medical improvement and he was awarded specific compensation for both loss of use and disfigurement. On June 15, 1999, his weekly benefits were modified to those for partial incapacity.
Melissa Moore, an insurance specialist employed by Brown University, testified that she put together an offer of suitable alternative employment after consulting with Dr. Steven Graff. The position was a bookstore/campus shop assistant. The offer, dated April 10, 2000, was sent in English and Portuguese by certified mail return receipt requested. Ms. Moore stated that she received the return receipts indicating that the employee had received the letters. In a letter dated April 17, 2000, the employee's attorney stated that the employee accepted the job offer and would report to work on April 24, 2000. Mr. Santos worked from April 24, 2000 to August 10, 2000.
On August 11, 2000, Ms. Moore received notification that the employee was out of work. She later learned that Mr. Santos had seen Dr. Graff that day and the doctor had ordered a functional capacity evaluation to determine if there was any change in the employee's condition. In the meantime, the employee did not return to work. The functional capacity evaluation was performed on October 18th and October 23rd. Sometime in November 2000, Ms. Moore was informed that a report from Dr. Graff dated November 16, 2000 had been received by the third party administrator for Brown University in which he stated that Mr. Santos could continue to work in the suitable alternative employment position. When the employee did not contact the employer and did not return to work, the decision was made to file the present petition, which was filed on November 24, 2000.
On November 29, 2000, the employee's attorney sent a letter to counsel for Brown University with copies to Ms. Moore and the third party administrator, stating that his client was ready and willing to resume the suitable alternative employment. In the letter, the attorney acknowledged that he was aware of the petition filed by the employer seeking suspension of the employee's weekly benefits.
On November 30, 2000, Mr. Santos went to see Ms. Moore. He showed her a note from Dr. Graff dated November 16, 2000 and asked her what he should do. Due to the pending litigation, she simply told him that someone would get in touch with him. Ms. Moore never had any further contact with the employee and he did not return to work at Brown University.
Michael Cloutier worked as an adjustor and investigator for Cambridge Integrated Services, which was the third party administrator for Brown
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