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Gallo v. J-D Leasing & Hauling5/31/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the petitioner/employee's appeal from the decision and decree of the trial judge in which it was found that the employee was disabled from August 25, 2003 to March 9, 2004 as a result of a left knee injury sustained on August 16, 2003. The employee contends that he remained disabled beyond March 9, 2004. After careful review of the record and consideration of the arguments of the parties, we deny the employee's appeal, and affirm the findings and orders of the trial judge.
The employee testified that he had been employed by the employer since April or May of 2003 as a truck driver transporting dumpsters. Occasionally, as part of his job duties, he would have to empty the dumpsters. He explained that on Saturday, August 16, 2003, he stepped out of an excavator onto uneven ground on the employer's property and twisted his left leg. He felt a sharp pain immediately. No one witnessed the incident. Mr. Gallo did not report the injury to anyone and he finished his work day. He reported to work on Monday and worked a portion of the day before returning to the employer's premises where he had an argument with the owner. He has not returned to work in any capacity since that day.
On August 25, 2003, the employee went to the Westerly Hospital Emergency Room and was referred to Dr. Stephen Gross, an orthopedic surgeon. The doctor performed surgery to repair torn cartilage in the left knee and prescribed exercises.
The employee acknowledged that the owner yelled at him several times in the few months he worked there regarding perceived problems with his work performance. He denied that on August 18 or August 19 he told the owner he was quitting. Mr. Gallo asserted that he was sent home by the owner and told to call later in the week after a truck had been repaired.
The employee denied any prior injury to his left knee. On April 13, 2004, Mr. Gallo testified that he felt capable of returning to his former job as a truck driver with the employer.
Ronald Harkness, the president of J-D Leasing & Hauling and Rocky's Tree Service, testified that he had several problems with the employee's work performance, including absenteeism, and damage to the employer's equipment as well as to personal property of customers. He indicated that he was informed by his mechanics about an incident on August 16, 2003 when the employee damaged a truck part in the yard while doing some maintenance on the truck. On or about August 19, 2003, Mr. Harkness became engaged in a heated argument with the employee regarding Mr. Gallo's alleged failure to report some damage to his truck. After the employee stated "I've had enough; I'm out of here," Mr. Harkness told him to get his belongings and get off of the property. (Tr. p. 40) Over the next two (2) to three (3) days, the employee called several times requesting his job back, but Mr. Harkness refused to re-hire him.
Mr. Harkness testified that he found out about the employee's alleged knee injury when the hospital called him and asked if he was going to pay the bill for the employee's treatment.
Dr. Stephen B. Gross, an orthopedic surgeon, testified that he first evaluated Mr. Gallo's left knee on September 11, 2003. The employee reported to the doctor that he injured the knee when he was getting out of an excavator at work and twisted his left leg. The doctor noted several positive findings on examination and diagnosed a left medial meniscus tear. He indicated that he did not recall discussing work restrictions because the employee had informed him that he had lost his job. An MRI done on October 14, 2003 confirmed t
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