GUILIANA PEREZ
v.
UTGR, INC.
W.C.C. 2014-02425
Rhode Island Worker Compensation
State of Rhode Island and Providence Plantations, Providence
December 18, 2019
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 September 9, 2015 be, and they hereby
are, affirmed.
Entered
as the final decree of this Court this
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 decision and decree of the trial
judge denying her original petition in which she alleged that
she injured her right shoulder on February 26,2014 due to
repetitively dealing cards resulting in disability from
February 29, 2014 and continuing. The trial judge's
holding was based upon a determination that the
employer's witnesses and documentary evidence were more
credible than the employee's testimony. After a
comprehensive review of the record and consideration of the
arguments of both parties, we deny the employee's appeal
and affirm the decision and decree of the trial judge.
Guiliana
Perez1 (the employee) began working at Twin River
Casino (Twin River or the employer) in May or June of 2013 as
a blackjack card dealer.2 Her job required that she manually
shuffle, place, and collect cards while standing and facing
up to seven (7) customers, who sat on the opposite side of
the table. She used her left hand to hold the cards and her
right hand to grab them and reach across the table to place
them in front of the customers. She repeated these motions
for forty-five (45) minutes before she would take a fifteen
(15) minute break. The breaks totaled two (2) hours of her
eight (8) hour shift. The employee testified that she worked
for Twin River for about ten (10) months.
Prior
to her employment at Twin River, the employee worked in
Connecticut at Foxwoods Casino as a blackjack dealer from
2003 to 2006, at Mohegan Sun performing data entry functions
from 2006 to 2008, and then as a real estate agent. The
employee had pursued a workers' compensation claim
against Foxwoods Casino for a right shoulder injury. The
alleged mechanism of that injury was essentially identical to
the claim she has made against Twin River. The employee
initially stated that the claim against Foxwoods was settled
for an amount to pay her medical bills and a fee for her
attorney; however, she subsequently acknowledged that the
Forty Thousand and 00/100 ($40,000.00) Dollars settlement in
2009 was for more than just those amounts.
The
employee asserted that when she began working at Twin River
she was in good health until February 26,2014, when she felt
and heard a pop in her right shoulder while dealing blackjack
during the first forty-five (45) minutes of starting work
that day. She worked the rest of her shift because, aside
from a little burning sensation in her shoulder, she
"didn't feel any pain at all." Tr. at 16:13.
After completing her eight (8) hour shift, the employee
stated she lifted her right arm to put on her jacket and
"felt like my clavicle was completely out of
place." Tr. at 16:16-17. She went home, iced her
shoulder, and applied Biofreeze.
The
employee testified that when she awoke the next morning she
could not move her shoulder because of the pain. However, she
went to work on February 27, 2014, and worked about four (4)
hours. She stated that her table was dead and after telling
her manager she was in excruciating pain, she was sent home.
On February 28, 2014, she went to Twin River and advised
management that she was in pain and needed to see a doctor.
The employee completed an incident report detailing when,
where, and how she was injured. She was advised to obtain
treatment at Concentra Medical Center (Concentra), which she
did later that day.
In
early March of 2014, the employee returned to work at Twin
River at a lighter duty job, working only two (2) days a
week. She was assigned to the money wheel, a job requiring
her to manually spin the wheel with her left hand. She
estimated that she did this for three (3) to four (4) weeks
before her chiropractor, Dr. David LaCharite, took her out of
work; however, she accepted that records revealed she worked
until May 18,2014. The employee asserted that she had not
worked anywhere since she stopped working at Twin River;
however, she subsequently acknowledged that she continued to
work at her second part-time job as a hostess in the Liquid
Blue suite at Gillette Stadium.
The
employee applied for and received Rhode Island Temporary
Disability Insurance (TDI) benefits. Once her TDI was
exhausted, she filed for and received unemployment. She
acknowledged that to quality for the unemployment benefits,
it was necessary to represent that she was ready and able to
return to work each week.
As of
the date of her testimony on April 22,2015, the employee
continued to feel pain and burning in her right shoulder,
numbness around her right arm, and tingling in her fingers.
She had difficulty steeping, showering, and dressing herself.
She maintained that her symptoms had not improved since her
injury of February 26, 2014.
The
employee acknowledged she treated in Connecticut with a
chiropractor, Dr. Warren Geruso, and an orthopedic physician,
Dr. Jeffrey Miller, for the claimed injury at Foxwoods. She
asserted that the extended treatment with the chiropractor
was for her back as he could not do anything for her
shoulder. She also insisted that she saw Dr. Miller on only
two (2) occasions for evaluations requested by Foxwoods. The
employee insisted that she had no medical treatment for her
right shoulder for twelve (12) years prior to the alleged
injury at Twin River.
Suzanne
Newbauer, a licensed claim adjuster at Beacon Mutual
Insurance Company, testified that she spoke to the employee
on the telephone on March 14,2014, and inquired how her
shoulder problem began. The employee related that on or about
February 26, 2014, she felt a pop between her right shoulder
and right clavicle while dealing cards at work but
experienced only a burning sensation with no pain. The
employee worked on February 27, 2014 with more significant
pain and had difficulty putting on her jacket. She was then
out of work from February 28, 2014 until March 4, 2014, when
she returned to modified duty working the money wheel two (2)
days a week.
Ms.
Newbauer stated that she asked the employee if she had any
prior problems with her right shoulder and the employee
responded she did not. Ms. Newbauer asserted that the
question she asked was not limited to previous problems
during her employment at Twin River. She explained that she
used a standardized form listing the questions to be asked of
a claimant during an interview. During the telephone
interview, the employee also denied that she had any prior
workers' compensation claims. Ms. Newbauer was aware that
the employee had prior right shoulder issues because her
prior workers' compensation claim against Foxwoods was
noted in an insurance index system.
The
employee acknowledged speaking with Ms. Newbauer but asserted
that Ms. Newbauer only asked whether she had any prior
shoulder problems while working at Twin River to which she
answered "no, which is the truth." Tr. at 37:14.
She denied that she was...
