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Kology v. United Builders Supply12/31/2004
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the petitioner/employee's appeal from the denial of his Petition to Determine a Controversy in which he sought approval of a settlement pursuant to R.I.G.L. § 28-33-25.1. After careful review of the record and consideration of the arguments of the parties, we deny the employee's appeal.
Mr. Kology has had several petitions before this court involving the same alleged injury. W.C.C. No. 02-07839 was an original petition in which the employee alleged that he sustained a right inguinal hernia on June 29, 2001 or July 10, 2001. That matter was dismissed without prejudice by an order entered on April 11, 2003. On April 22, 2003, the employee filed another original petition, W.C.C. No. 03-02795, in which he alleged that he sustained a right inguinal hernia and an injury to his right hip on August 14, 2000. The parties submitted a proposed settlement of this claim under R.I.G.L. § 28-33-25.1 to the court. A hearing was held during which the employee testified. However, his testimony was halted when the trial judge raised a question regarding reporting the employee's resignation to the Unemployment Division of the Department of Labor and Training and the effect on the employee's unemployment benefits. On September 9, 2003, the petition was dismissed without prejudice when the employee's attorney failed to appear for a scheduled hearing.
On October 15, 2003, the employee filed another original petition in which he alleged that he sustained a right inguinal hernia and an injury to his right hip on August 14, 2000 which he then aggravated on April 28, 2003. This petition, W.C.C. No. 03-06882, was dismissed without prejudice on January 26, 2004. A fourth original petition, W.C.C. No. 04-01394, was filed on February 25, 2004 containing the same allegations as W.C.C. No. 03-06882. This matter was dismissed with prejudice on April 12, 2004. The employee claimed a trial, but on June 15, 2004, a stipulation was entered withdrawing the claim for trial.
The employee then filed this Petition to Determine a Controversy, requesting that the court approve the settlement which had been previously proposed by the parties, but never approved. The attorney for the employee informed the court that the employee would not come to court to testify, but he submitted the transcript of the employee's testimony from the previous hearing in W.C.C. No. 03-02795. The trial judge rendered a bench decision in which he stated that he was not satisfied that the employee fully understood the effect of the proposed settlement and he had no indication whether it was in the employee's best interest to settle his case. Therefore, he denied the petition.
The employee has filed twelve (12) reasons of appeal, although most of them are repetitious. We will not be addressing any of them directly. After reviewing the statute in question, R.I.G.L. § 28-33-25.1, we find that the petition was not properly before the court and should be denied and dismissed on that basis rather than the findings made by the trial judge.
Section 28-33-25.1 of the Rhode Island General Laws states in pertinent part as follows:
"Notwithstanding the provisions of §§ 28-33-25 and 28-33-26, in cases where liability of the employer for payment of workers' compensation benefits has not been finally established, the parties may submit a settlement proposal to the workers' compensation court for approval."
First, liability of the employer regarding a right inguinal hernia and right hip injury sustained on August 14, 2000 has been finally established. W.C.C. No. 04-01394 was dismissed with prejudice. The claim f
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