89-7589 (1993). JOHN VALERIO VS. ELIZABETH WEBBING MILLS.

• Court: Rhode Island

Rhode Island Worker Compensation January 1989 - December 1993. 89-7589 (1993). JOHN VALERIO VS. ELIZABETH WEBBING MILLS Term: January 1989 - December 1993W.C.C. 89-7589JOHN VALERIO VS. ELIZABETH WEBBING MILLSSTATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. WORKERS' COMPENSATION COURT APPELLATE DIVISION DECISION OF THE APPELLATE DIVISION GILROY, J.This is the employee's appeal from a trial court decision and decree. This matter was heard before the trial judge on the employee's claim of appeal from a Department of Workers' Compensation decision on a procedural point. The travel and history of this case with respect to what transpired at the Department are germane to this appeal. On November 7, 1988 a hearing was generated by the employer having filed a notice of controversy, and was scheduled at the Department.1 (1The Department of Workers' Compensation hearing procedure found in sect. 28-33-1.1 was repealed in its entirety in 1990 by the enactment of P.L. 1990, Ch. 332, Art. 1, sect. 10, effective July 11, 1990.) The employee, who was not represented by counsel, was unable to attend, was defaulted, and an order was entered in which benefits were denied under a Department default rule, which we shall refer to hereinafter as P.D.1. On December 21, 1988, the employee had by then retained an attorney and filed a request at the Department for a hearing to vacate the preliminary determination rendered on November 7, 1988. By a preliminary determination order dated December 27, 1988, hereinafter P.D.2, that request was denied by the Department apparently because it was "...Not filed in a timely manner per Department of Workers' Compensation Rule 17(a)." From that P.D.2 the employee duly appealed to the Workers' Compensation Court and was before the trial court as the instant case. The case was docketed at this court on January 27, 1989 and, as evidenced by the docket sheet, was assigned for "trial de novo" to May 4, 1989. In the interim, i.e., prior to the May 4, 1989 trial date at this court, the employee filed at the department a request for hearing with respect to his October 17, 1988 injury. This employee's request for hearing was dated March 1, 1989, and in turn generated a hearing which was held on April 12, 1989. The preliminary determination order rendered at the conclusion of the April 12, 1989 hearing, hereinafter P.D.3, indicated that the employee Valerio was in attendance at the hearing, other attendees, being a Mr. Bucci and a Mr. Boland. The hearing officer's preliminary determination order denied benefits, apparently in reliance on the prior November 7, 1988 order of default, as the April 12, 1989 preliminary determination order, P.D.3 recites: "1. The employee did/(did not) receive an injury on 10/17/88 arising out of and in the course of employment. 2. The employer had knowledge of the injury on N/A. 3. The injury occurred to N/A when N/A. 4. The first date of incapacity is N/A. 5. The employee's average weekly wage is N/A. 6. Liens pending: Yes/No N/A Dependents: Yes/No N/A. 7. Employer/Insurer/(Employee), with proper notice failed to attend. (17A) Client not present. No medicals submitted to show causal connection between employment/injury. PRELIMINARY DETERMINATION Benefits Granted 44 Day Rule Applies Total Incapacity from Partial Incapacity from X Benefits Denied *** HEARING OFFICER Robin Johnson " The April 12, 1989 preliminary determination order was duly appealed to this court, was docketed here as W.C.C. 89-8047 and the docket sheet of that case indicates that it was heard together with this case, and has been continued "nisi", which is an unassigned status, awaiting the outcome of the appeal before us in the instant matter. In this case the trial court considered that the only issue before him was the matter of removal of the default of the employee at the first, or employer-instituted notice of controversy hearing on November 7, 1988, P.D.1. He denied the employee's prayer to vacate that department order of default, stating: " The issue before me is whether or not the employee's failure to appear on 11/7/1988 and his conduct thereafter represents what may be deemed as excusable neglect. Based upon the evidence almost six weeks ensued between the date of the hearing and the time that the employee sought legal counsel. There has been no evidence brought forth to suggest that the employee is not able to read or that he was, he did not understand or was unable to understand the notice sent him by the Department of Workers' Compensation which he conceded that he received. Because of the length of time that elapsed between the date of the hearing and the time he received notice from the Department and his attempt to seek legal advise, I believe his actions during that time did not demonstrate excusable neglect. As a result, I find that the petition to vacate the Preliminary Determination of 11/7/1988 is denied." We need not address the question of whether the employee's claim of appeal from the second preliminary determination order, i.e. the December 28, 1988 department order for trial de novo, brought before the trial court the entire merits of the employee's entitlement to benefits, or only the limited issue of whatever led the hearing officer to refuse on December 27, 1988 to vacate the prior order of default of November 7, 1988, as, for reasons hereinafter set forth, we rule that the entire record of the proceedings that were generated by the initial employer's notice of controversy, up to and...