 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Smith v. Town Dock3/31/2005
e (1) year after the injury, at the latest, the limitation period for filing would have ended on March 3, 2002. The petition was filed on March 21, 2003.
The scope of review at the appellate level is narrow. Pursuant to R.I.G.L. ยง 28-35-28(b), 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 (R.I. 1996). The appellate panel may conduct a de novo review of the evidence only after a finding is made that the trial judge was clearly wrong. Id. (citing Grimes Box Co., Inc. v. Miguel, 509 A.2d 1002 (R.I. 1986)).
The employee has filed four (4) reasons of appeal. He first contends that the trial judge's statements that the only evidence as to the date of maximum medical improvement is the date of injury were clearly erroneous. We agree that the trial judge misspoke in citing the date of injury as the only evidence of a potential date when the employee may have reached maximum medical improvement. We also agree that the speculative discussion in which it was assumed that the employee may have reached maximum medical improvement a year after the injury was inappropriate. However, we believe that these comments were superfluous and do not affect the validity of the findings contained in his decree. In his decree, the trial judge simply finds that the employee failed to prove that the petition was filed within the two (2) year limitation period, without any reference to when that period may have expired.
The employee argues that the testimony of Dr. Sisskind establishes that the employee should have known that his condition had reached maximum medical improvement as of the date of the doctor's examination on October 25, 2002 and therefore; the petition for loss of use was filed within the two (2) year limitation period. The testimony on this issue consisted of one (1) response to a single question.
"Q: Is it your opinion that Mr. Smith had reached maximum optimal improvement?
"A: From my assessment, yes."
(Pet. Exh. 3, p. 15.)
At best, this testimony establishes that on October 25, 2002, the employee's condition was at maximum medical improvement. However, there was no evidence as to when that point was actually reached. The condition may have been at that point for one (1) year, two (2) years or three (3) years. The employee points out the statements of Dr. Tsiongas that the painful condition of the scar developed after he received benefits for disfigurement, which would obviously be after the date of injury. Unfortunately, there is nothing in the record as to when the employee received the benefits for disfigurement or how long after that the painful hypertrophic scar reached maximum medical improvement.
In a petition for specific compensation for loss of use, the employee bears the burden of proving by competent and credible evidence that the petition was filed within two (2) years of when the employee knew, or by exercise of reasonable diligence, should have known, that his condition was permanent. Auclair v. American Silk Spinning Co., 109 R.I. 395, 399, 286 A.2d 253, 255 (1972). In the present case, there is no evidence from which we can even infer when the employee's condition had reached maximum medical improvement and when he was aware of that fact.
Mr. Smith urges this panel to remand the matter to enable him to present further evidence as to when he knew or should have known his condition had reached an end result pursuant to the decision of the Rhode Island Supreme Court in Rainville v. King's Trucking Co., Inc., 448 A.2d 733 (R.I. 1982). In that matter, the trial judge had relied solely u
Page 1 2 3 Rhode Island Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|