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Brown University v. Santos3/31/2005
hiker, and demonstrated almost no function of the thumb. Based on the type of injury and the subsequent surgery, the doctor expected that the employee would have regained a greater degree of function of the thumb than he ever demonstrated.
The trial judge found that the employee had "abandoned and effectively terminated" the suitable alternative employment. He questioned the employee's credibility, pointing out the inconsistency in the employee's presentation to Dr. Graff and the observation of the employee's activities by Mr. Cloutier, the private investigator. He then ordered that the employee's weekly compensation benefits shall be reduced in accordance with R.I.G.L. ยง 28-33-18.2(d). The employee has appealed from that decision.
Our review of a trial judge's decision is very narrow. Section 28-35-28(b) of the Rhode Island General Laws states that the findings of fact made by a trial judge are final unless the appellate panel finds them to be clearly erroneous. Diocese of Providence v. Vaz, 679 A.2d 879, 881 (R.I. 1996). In particular, findings based upon a trial judge's determination that the employee is not credible is entitled to even greater deference and will not be disturbed on appeal so long as there is legally competent evidence to support it. Poisson v. Comtec Information Systems, 713 A.2d 230, 232 (R.I. 1998); Rocha v. State, 705 A.2d 965, 968 (R.I. 1998).
The employee has submitted eighteen (18) reasons of appeal which we have consolidated into five (5) issues. In the first five (5) reasons of appeal, the employee argues that the employer failed to prove that there was an offer and acceptance of suitable alternative employment. He seems to cite the fact that there was no court order or decree, nor any Department of Labor and Training form presented that documented the offer and acceptance of suitable alternative employment. However, there is no such requirement under our statute.
The evidence in the record establishes that the employer has satisfied all of the statutory criteria required to prove an offer and acceptance of suitable alternative employment. Those elements are mutual assent, suitability, alternateness, and notice to the director of the Department of Labor and Training. Riffenburg v. Kent County Mem. Hosp., 715 A.2d 1281, 1282 (R.I. 1998); Pion v. Bess Eaton Donuts Flour Co., 637 A.2d 367, 372 (R.I. 1994). The employer sent a letter dated April 10, 2000 to the employee containing the job offer and specifying that they were offering suitable alternative employment. A copy of the offer was sent to the Department of Labor and Training. The job duties had been designed in accordance with the restrictions set forth by Dr. Graff and was certainly suitable. The position was alternate employment as it was obviously different that the employee's regular job. In a letter dated April 17, 2000, the employee's attorney specifically stated that the employee was accepting the job offer. A copy of this letter was forwarded to the Department of Labor and Training as well. The employee did in fact report for work and worked for over three (3) months. Based on this evidence, we find that the employer established that there had been an offer and acceptance of suitable alternative employment. Therefore, the first five (5) reasons of appeal are denied.
In the sixth, tenth, eleventh, twelfth and thirteenth reasons of appeal, the employee contends that the employer had an obligation to offer the suitable alternative employment position to him again in November 2000 after he saw Dr. Graff. We find no authority for the imposition of such an obligation on the employer in this situation. As the trial judge noted, the issue in this case is whether the employee
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