SEAN McDONNELL
v.
ANDREA HOTEL, INC.
W.C.C. No. 2014-02043
Rhode Island Worker Compensation
State of Rhode Island and Providence Plantations Providence
May 18, 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 hereby
ORDERED,
ADJUDGED, AND DECREED:
That
the findings of fact and orders contained in a decree of this
Court entered on August 6, 2015 be, and they hereby are,
affirmed.
PER
ORDER:
Nicholas
DiFilippo, Administrator
Sean
McDonnell
v.
Andrea
Hotel, Inc.
Sean
McDonnell
v.
Andrea
Hotel, Inc.
Sean
McDonnell
v.
Andrea
Hotel, Inc.
Sean
McDonnell
v.
Andrea
Hotel, Inc.
Sean
McDonnell
v.
Andrea
Hotel, Inc.
Sean
McDonnell
v.
Andrea
Hotel, Inc.
Sean
McDonnell
v.
Andrea
Hotel, Inc.
W.C.C.
W.C.C.
2014-02043, 2014-02637, 2014-03036, 2014-03037, 2014-04446,
2014-04447, 2015-02650
DECISION
OF THE APPELLATE DIVISION
OLSSON, J.
These
seven (7) petitions were consolidated for hearing before one
trial judge and remain consolidated on appeal. The
determinative issue in all these cases is which insurer shall
be held liable for the payment of weekly compensation
benefits beginning September 15, 2013 as well as various
medical expenses, including subsequent surgery on November
26, 2014. After a thorough review of the record and after
considering the respective arguments of all parties, we
affirm the decision of the trial judge, finding a recurrence
of a prior work-related injury rather than an aggravation or
new injury, and assessing liability to AmGuard Insurance
Company (AmGuard). We therefore deny the employer's
(AmGuard's) appeals and dismiss the employee's
conditional appeals.
The
issue which is determinative of all the petitions is whether
the employee's incapacity beginning September 15, 2013
and need for subsequent surgery are due to the effects of the
work-related injury on August 6, 2010 (when Beacon Mutual
Insurance Company (Beacon) insured the employer), or the
work-related injury on March 30, 2012 (when AmGuard insured
the employer), or the alleged injury at work on September 14,
2013 (when Beacon again insured the employer).
The
employee testified live before the court and a deposition of
the employee taken prior to his live testimony was also
admitted into evidence. The employee explained that in 2008,
he began working for the employer, first as a sous chef and
then was promoted to the position of head chef. The physical
job duties were similar, however, the head chef position
required the employee to complete paperwork and perform
certain administrative tasks which afforded him some time off
his feet. As a sous chef he generally worked five (5) days a
week, but when he was promoted to head chef about a year
later, he usually ended up working six (6) days a week. The
employee asserted that he often worked a twelve (12) hour day
and spent ninety-nine percent (99%) of the day on his feet
constantly moving around the hot line, picking up items,
cooking, prepping, and working around the stove.
The
employee related that while working as a sous chef on August
6, 2010, he felt a pop in the inside of his right knee as he
stood up after squatting to get a loaf of bread from under
the counter where he was working. As a result of this
incident, Beacon, the employer's insurer at the time,
issued a Memorandum of Agreement dated August 26, 2010 which
described the injury on August 6, 2010 as a right knee
strain. See Ee's Ex. 9, Memorandum of Agreement
dated 8/26/10. Beacon paid the employee weekly benefits for
partial incapacity from August 9, 2010 through September 9,
2010, at which time the employee signed a Suspension
Agreement and Receipt agreeing to stop his benefits.
See Ee's Ex. 9, Suspension Agreement and Receipt
dated 10/12/10.
The
employee continued to experience symptoms in his knee and
eventually underwent arthroscopic surgery by Dr. Randall
Risinger of South County Orthopedics on March 8, 2011. Beacon
again issued a Memorandum of Agreement dated March 14, 2011
and paid the employee weekly benefits for partial incapacity
from March 8, 2011 through March 14, 2011 due to a recurrence
of the August 6, 2010 work-related injury. See
Ee's Ex. 9, Memorandum of Agreement dated 3/14/11. The
employee signed a Suspension Agreement and Receipt agreeing
to discontinue his weekly benefits and he returned to work
for the employer. See Ee's Ex. 9, Suspension
Agreement and Receipt dated 4/21/11.
On
March 30, 2012, the employee felt a pop in his right knee at
work while carrying something upstairs from the basement. He
testified that prior to this date he had been performing his
job duties for the employer as head chef without any knee
complaints. He treated with Dr. Michael Bradley of South
County Orthopedics but continued to work until the season was
over. On November 7, 2012, Dr. Bradley performed an
arthroscopy on the right knee with a three (3) compartment
synovectomy and high tibial osteotomy (HTO). The employee
received weekly compensation benefits for partial incapacity
beginning November 10, 2012 pursuant to a Memorandum of
Agreement issued by AmGuard on January 31, 2013 documenting
this new injury of March 30, 2012. See Ee's Ex.
9, Memorandum of Agreement dated 1/31/13. The employee
continued to treat with Dr. Bradley after the surgery and
then returned to his regular job with the employer on May 28,
2013.
The
employee explained that after returning to work as a head
chef, his right knee felt significantly worse and he
experienced a lot of pain under his right knee. His condition
worsened to the point that he had difficulty...