DANIEL MARKS
v.
GREYLAWN FOODS, INC.
W.C.C. 2011-02905
Rhode Island Worker Compensation
State of Rhode Island and Providence Plantations, Providence
December 20, 2019
FINAL
DECREE OF THE APPELLATE DIVISION
This
matter came on to be heard by the Appellate Division pursuant
to the petitioner/employee's claim of appeal and after
hearing thereon and consideration thereof, the employee's
appeal is denied and dismissed, and it is
ORDERED,
ADJUDGED, AND DECREED:
That
the findings and orders contained in a decree entered by this
Court on March 18, 2015 be, and thereby are, affirmed.
PER
ORDER:
Nicholas
DiFilippo, Administrator
FINAL
DECREE OF THE APPELLATE DIVISION
This
matter came on to be heard by the Appellate Division pursuant
to the petitioner/employee's claim of appeal and after
hearing thereon and consideration thereof, the employee's
appeal is denied and dismissed, and it is
ORDERED,
ADJUDGED, AND DECREED:
That
the findings and orders contained in a decree entered by this
Court on March 18, 2015 be, and thereby are, affirmed.
FINAL
DECREE OF THE APPELLATE DIVISION
This
matter came on to be heard by the Appellate Division pursuant
to the petitioner/employee's claim of appeal and after
hearing thereon and consideration thereof, the employee's
appeal is denied and dismissed, and it is
ORDERED,
ADJUDGED, AND DECREED:
That
the findings and orders contained in a decree entered by this
Court on March 18, 2015 be, and thereby are, affirmed.
PER
ORDER:
Nicholas
DiFilippo, Administrator
DECISION
OF THE APPELLATE DIVISION
OLSSON, J.
These
three (3) matters were consolidated at trial and remain
consolidated for the employee's appeal before the
Appellate Division. W.C.C. No. 2011-02905 is an
employee's original petition seeking compensation
benefits for injuries sustained on April 18, 2011, allegedly
caused when the employee slipped while exiting a truck. At
the pretrial conference,-the trial judge granted the petition
and the employer claimed a trial. W.C.C. No. 2012-02952 is an
employee's petition to review alleging that the weekly
compensation benefits awarded for his injury were based upon
an erroneous average weekly wage. Lastly, W.C.C. No.
2013-01554 is an employee's petition to review requesting
permission for major surgery, specifically an anterior
cervical discectomy at C4-5 and C5-6 with fusion. Both
petitions to review were denied at the pretrial conference
and the employee claimed a trial in each. Following a full
evidentiary hearing, the trial judge denied all three (3)
petitions, basing his decision upon a determination that the
employee's injuries did not arise out of and in the
course of his employment. After a careful review of the
evidence and the parties' respective arguments, we affirm
the decision of the trial judge in all three (3) matters and
deny the employee's appeals.
The
appellant/employee failed to obtain and provide the trial
transcript containing his testimony and that of the other
witnesses who appeared before the court. Due to the lack of a
transcript of this testimony, the employee has limited our
ability to review this matter. Any analysis of that crucial
evidence can only be based upon the facts and testimony as
recited by the trial judge in his decision.
On
April 18, 2011, Daniel Marks (the employee) was in his first
week of training as a truck driver at Greyiawn Foods, Inc.
(the employer). On the return leg of a round trip to New
Jersey, he was accompanied by his supervisor, Luis Astacio.
The employee had driven the southbound portion of the route
starting in Cranston, Rhode Island earlier that morning. He
was required to be Mr. Astacio's passenger on the return
to Rhode Island as he had already completed his allotted
training hours. The employee testified that, as they entered
Connecticut, he repeatedly requested that the supervisor pull
over so that he could have a cigarette. Mr. Astacio would not
permit the employee to smoke in the cab of the truck, and he
refused to stop the truck to allow the employee to smoke
outside. The employee then called the dispatcher requesting
to be switched to another truck that permitted smoking. The
dispatcher informed him that no other truck was available.
The
employee claimed that his argument with Mr. Astacio continued
to escalate. The supervisor allegedly threatened to punch the
employee and beat him upon return to the employer's
premises if he lit a cigarette in the truck. While traveling
in the center lane on Route 95 North in Connecticut, the
employee grabbed his duffle bag, opened the door of the
truck, and proceeded onto one of the steps of the truck's
cab. He asserted that at the time he exited the truck it was
stopped in traffic.
The
employee's next memory was receiving treatment at Norwalk
Hospital on the date of his injury. Following release from
that facility, he stated that he was seen by Dr. Anne
Cushing-Brescia, his primary care physician, who had him
transported by ambulance to Rhode Island Hospital. He
explained that he had been treated by Dr. Murthy, a
neurologist, for complaints of pain in facial areas and in
his neck. The employee stated that he suffered from a loss of
memory as well as a loss of his senses of smell and taste.
On
cross-examination, the employee admitted that, earlier on the
morning of April 18, 2011, he...
