Desantis v. West Warwick Public Schools, 061620 RIWC, 2014-05619

• Case Date: June 16, 2020
• Court: Rhode Island

MICHAEL DESANTIS v. WEST WARWICK PUBLIC SCHOOLS W.C.C. No. 2014-05619 Rhode Island Worker Compensation State of Rhode Island and Providence Plantations Providence June 16, 2020          FINAL DECREE OF THE APPELLATE DIVISION          This matter came on to be heard by the Appellate Division upon the claim of appeal of the petitioner/employee and upon consideration thereof, the employee's appeal is denied and dismissed, and it is

ORDERED, ADJUDGED, AND DECREED:

         That the findings of fact and the orders contained in a decree of this Court entered on March 28, 2019 be, and they hereby are, affirmed.          PER ORDER:          Nicholas DiFilippo, Administrator          DECISION OF THE APPELLATE DIVISION           OLSSON, J.          This matter is before the Appellate Division on the employee's claim of appeal from the trial judge's decision and decree denying the employee's petition to review in which he sought to add "lower back" to the description of the work-related injury he sustained on April 25, 2014. On August 12, 2014, the insurer issued a memorandum of agreement (MOA) which documented that the employee sustained a work-related injury on April 25, 2014, resulting in partial incapacity beginning on April 28, 2014, and continuing. The injury was described in the MOA as "epididymitis." Ee's Ex. 5.          On August 29, 2014, the employer filed a petition to review, W.C.C. No. 2014-05317, alleging that the employee's incapacity for work had ended. On September 23, 2014, the employee filed the petition to review currently before us, W.C.C. No. 2014-05619, seeking to amend the MOA to include a "lower back" injury. The trial judge appointed Dr. Harry Iannotti, a urologist, to conduct an impartial medical examination and address the issues raised in both petitions.          On February 25, 2015, the trial judge entered pretrial orders for both petitions. In W.C.C. No. 2014-05317, the trial judge denied the employer's petition to discontinue the employee's benefits. In W.C.C. No. 2014-05619, the trial judge granted the employee's petition to amend the description of his work-related injury to include "lower back." The employer filed a claim for trial in both matters, which were then consolidated for trial.          On June 20, 2018, while the trial was pending, the trial judge entered an interlocutory order in W.C.C. No. 2014-05317, discontinuing the employee's benefits. At the conclusion of the trial, the trial judge issued a written decision in which he affirmed the interlocutory order, finding that the employee's incapacity had ended. In W.C.C. No. 2014-05619, the trial judge determined that the employee did not sustain a lower back injury on the initial date of injury, April 25, 2014. The employee filed an appeal in only W.C.C. No. 2014-05619. After a thorough review of the record and consideration of the arguments of the respective parties, we find that the trial judge's decision and decree are in accord with the law and evidence, and we therefore deny the employee's appeal.          Michael DeSantis (the employee) testified that he worked as a plumber for the West Warwick School Department (the employer) in April 2014. His job duties included maintaining the plumbing and heating in the school buildings. The employee stated that on Friday, April 25, 2014, after working for the employer for only two (2) weeks, he suffered a work injury while moving a piano into a dumpster. The employee testified that after lifting the piano into the dumpster, he told a co-worker who was assisting him that he "may have pinched something in [his] back." Tr. 7:1-3.          The employee explained that he did not report his injury until the following Monday, April 28, 2014, when he reported to work and told his supervisor, Kenneth Townsend, that his testicle was swollen to twice its normal size, he had a pinch in his back, and he wanted to see a doctor. The employee stated that he specifically remembered telling Mr. Townsend that he had a back problem. Tr. 7:22-24. Although the employee attempted to work on Monday morning, he left to seek medical treatment with the physician assistant at his primary care provider's office.          The employee left work that day and saw Jessica Russell, a physician assistant at University Family Medicine. He testified that he informed Ms. Russell that he felt like he pulled muscles in his stomach, he had a small pinch in his lower left back, and that his left testicle was swollen. In Ms. Russell's deposition, she stated that the employee never reported to her that he had any back injury during his initial examination. However, when confronted with Ms. Russell's testimony, the employee stated that Ms. Russell's reports were "false" and that he felt she was "mistaken." Tr. 8:24-9:17-20. The employee testified that he "wasn't sure if it was a back injury at the time because [he] was more concerned with [his] testicular injury." Tr. 10:1-2. Nevertheless, he assured the court that he had "absolutely told her" he injured his back. Tr. 9:22.          The employee testified that Ms. Russell did not treat him for his back but referred him to physical therapy at Elite Physical Therapy and to University Urology, where he saw a physician assistant named Arya Biswas. The employee testified that he told Mr. Biswas that he had a pinch in his back. However, Mr. Biswas only treated Mr. DeSantis for a testicular injury. The employee explained that Mr. Biswas provided the employee with a note on July 23, 2014, releasing him to his regular job duties as a plumber. He testified that he had not yet received any treatment for his back at that time.          According to the employee, on July 23, 3014, after receiving the note from Mr. Biswas, he went straight to work without calling the employer to inform them that he was returning. He went to Mr. Townsend's office at around 9:00 that morning and informed Mr. Townsend that the doctor had released him, but his testicle was still sore. The employee insisted that Mr. Townsend informed him that he had to obtain another note from his primary care provider. According to the employee, he then went to get a note from his primary care doctor and returned back to work again that same day at 1:00 in the afternoon with that note. The employee testified that Mr. Townsend then informed the employee that he "could not use [the employee] at [that] time, to, give [Mr. Townsend] a call on Friday, and [they] will have a conversation with the school department on when [the employee] can come back." Tr. 17:4-7. The employee testified that he went home after that conversation.          According to the employee, at some point on July 23, 2014^[1], he lifted a toolbox2 out of his truck because he thought he would be working that day. Upon lifting the toolbox, he felt the same pain he had during the April 25, 2014 incident, which he described as "a pinch in my back and the pain in my testicle." Tr. 24:13-14. The employee admitted that no one told him he would be working that day or asked him to get his toolbox, but he explained that the employer had always required him to bring his own tools to work so that is what he did when he attempted to return to work on July 23, 2014. The employee testified that he had no communication with the employer between April 25, 2014 and October 2014. However, according to the employee, he received a termination letter from the employer in October 2014. He insisted that Mr. Townsend never contacted him to set up a meeting and that he tried calling Mr, Townsend but it went straight to voicemail. Tr. 39:13-15.          The employee testified that he first sought treatment for his back when he went to see Dr. Pasquarello two (2) years after the initial incident.3 He informed Dr. Pasquarello that he had a pinch in his back and a problem with his testicle. However, he admitted that he did not report the toolbox incident to the doctor until the third...