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Brown University v. Santos3/31/2005
University during the periods relevant to this matter. Mr. Cloutier conducted surveillance of the employee at different times between March and September of 1999. He observed the employee using his right hand for various tasks including driving, using his right hand to open and close the doors of his vehicle and of stores, handling small items with his right hand, and using both hands to take his jacket off and place it over the back of his vehicle's seat. Mr. Cloutier noted that it was obvious that the employee's thumb was stiff, but there was no other restriction or hesitancy in the use of the thumb.
The employee testified through an interpreter that he saw Dr. Graff on November 16, 2000 and the doctor told him there was nothing more he could do for him. The doctor's office had called Mr. Santos and told him to come in and see Dr. Graff. The doctor gave him a note stating that he could return to the suitable alternative employment position. After meeting with his attorney, the employee went to Brown University on November 30, 2000 and presented the doctor's note to Ms. Moore. He never heard from anyone from Brown University and he never returned to work there. Mr. Santos stated that he felt the same on August 11, 2000 as he did on November 16, 2000.
Dr. Steven N. Graff, an orthopedic surgeon specializing in hand and upper extremity surgery, treated the employee since May 12, 1995 for the injury to his right thumb. He performed surgery on the employee's right thumb on October 11, 1995. In April 1996, the employee underwent a functional capacity evaluation which led the doctor to determine certain permanent restrictions on the employee's activities. These restrictions included limiting frequent lifting and carrying to about twenty (20) pounds.
On March 26, 2000, Dr. Graff signed a Job Analysis form from Brown University agreeing that the employee was capable of performing the job of a bookstore/campus shop assistant as described in the form with his handwritten restrictions. He testified that performance of that job would not be injurious to the employee's health. The doctor next saw the employee on August 11, 2000. At that time, Mr. Santos complained that opening boxes and unloading books at his job at the Brown University bookstore were causing too much pain in his thumb. With regard to the physical examination at that time, Dr. Graff testified:
"The examination was identical to the examination of April 28, 2000 which was effectively identical to the examination of virtually every time I've seen him for the past several years prior to that." (Pet. Exh. 11, p. 17).
Despite the lack of any change in the physical examination, Dr. Graff ordered a functional capacity evaluation because the employee had not had one (1) in a long time and he wanted to determine whether his functional level had changed. He acknowledged that he ordered the evaluation simply based upon the employee's subjective complaints. The doctor also recommended that the employee remain out of work pending the results of the evaluation. After receiving the results of that evaluation, the doctor had a discussion with the employee on November 16, 2000 with the aid of a friend of the employee acting as interpreter. The doctor explained that there was nothing physically preventing the employee from working and that it was an issue of mind over matter. Dr. Graff then discharged the employee from his care. The doctor completed a form dated November 16, 2000 stating that the employee was capable of performing the duties of the suitable alternative employment position.
Dr. Graff testified that during his examinations, the employee held the right thumb upright very stiffly, like a hitch
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