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Brown University v. Santos3/31/2005
was capable of performing the bookstore/campus shop assistant position on August 11, 2000 when he stopped working. Apparently, Dr. Graff gave the employee a note to stay out of work pending the results of the functional capacity evaluation. However, the doctor never stated in his reports or his testimony that the employee was physically incapable of performing the duties of the suitable alternative employment position. Dr. Graff did testify that the employee's physical examination was the same on August 11, 2000 as it had been for several years. After he received the results of the functional capacity evaluation, the doctor again stated that there was no change in the employee's physical restrictions.
Based upon the testimony of Dr. Graff, the employee did not have any valid grounds for leaving the suitable alternative employment position on August 11, 2000. Absent some evidence that the employee's medical condition had changed such that he was no longer physically capable of performing the job, the employee's status is no longer protected. The fact that the employer resumed the payment of weekly benefits is of no consequence. The employer was not entitled to simply stop paying the employee absent a court order or agreement of the parties. The resumption of payments does not constitute an acknowledgement or agreement that the employee was no longer able to perform the job.
In this situation, the employee walks out on the suitable alternative employment position at his own peril. He takes the chance that the court may conclude that he was still capable of performing the job, resulting in the reduction of his benefits. Just as an employer has no obligation to keep a position available to an employee while the court decides whether it is suitable alternative employment, an employer has no obligation to re-offer a position after an employee unjustifiably walks away from it. See Oladapo v. Charlesgate Nursing Corp., 590 A.2d 405 (R.I. 1991). Consequently, we deny the aforementioned five (5) reasons of appeal.
In the seventh reason of appeal, Mr. Santos asserts that the trial judge committed error in allowing the private investigator to testify and then allowing four (4) videotapes of his observations into evidence, because none of that information was relevant, material or pertinent to the issue before the court. First, it should be noted that the employee's attorney did not object to the private investigator taking the stand, even after it became obvious that he was testifying to observations he made in 1999, quite some time before the periods involved in this case. The attorney only raised the objection of relevancy and materiality to the introduction of the videotapes, after the investigator had testified as to their content in detail.
An objection to the admission of testimony or evidence cannot be raised for the first time on appeal. The employee clearly waived any objection to the investigator's testimony by not raising it during the course of the trial. Once the testimony was in, the videotapes were basically cumulative and simply a live action version of the events the investigator had already described. This information was presented to impeach the credibility of the employee. For a number of years, the employee has told his doctor that he basically has no use of his entire right hand and arm. The observations of the investigator tended to contradict the employee's assertions regarding his physical capabilities, thereby raising the question of the employee's credibility. Under the circumstances, we find no error on the part of the trial judge in allowing the videotapes to be introduced into evidence.
The employee, in his eighth and ninth reason of appe
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