SANDRA TIERNAN
v.
UNIVERSITY OF RHODE ISLAND
W.C.C. No. 2016-06718
Rhode Island Worker Compensation
State of Rhode Island Providence, SC
February 25, 2021
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 claim of 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 October 4,2019 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 her Petition to Adjudge in Contempt alleging
that the employer failed to comply with the pretrial order
entered in W.C,C, No. 2009-01099 on February 25, 2009 and
seeking a twenty percent (20%) penalty on the amount of past
due benefits. The trial judge entered a pretrial order on
February 1,2017 granting the employee's petition on the
basis that the employee was entitled to cost-of-living
adjustments (COLA) from 2009 to 2016 and assessing a twenty
percent (20%) penalty on those retroactive benefits but
denying all other allegations. The employee and the employer
filed claims for trial de novo in a timely fashion.
The
only evidence in this matter is an amended stipulation of
facts submitted by the parties which we will summarize for
purposes of this decision. Sandra Tiernan (employee) was
injured during and in the course of her employment with the
University of Rhode Island (employer) on April 25,2QO2. A
pretrial order was entered in W.C.C. No. 2002-05245 on August
21, 2002 granting the employee weekly compensation benefits
for partial incapacity beginning April 26,2002 for a cervical
strain, low back strain, and left shoulder strain.
Subsequently,
the employee applied for an Accidental Disability Retirement
pension through the Employees' Retirement System of the
State of Rhode Island (ERSRI). The employee's application
was approved on March 9,2005. At that time, the
employee's weekly workers' compensation rate exceeded
her monthly pension benefit, and as a result, she was not
paid her disability retirement benefit.
On
November 28,2007, the employer notified the employee of its
intent to discontinue her weekly workers' compensation
benefits in accordance with Rhode Island General Laws §
28-33-18. Section 28-33-18(d) provides for termination of an
employee's workers' compensation benefits after
payment of three hundred and twelve (312) weeks of partial
incapacity benefits. Under Rhode Island General Laws §
28-33-18.3(a)(1), commonly referred to as the
"gate" provision, the employee may have a right to
continuing weekly compensation benefits if she proves that
her disability "poses a material hindrance to obtaining
employment." On February 27, 2009, the employee and the
employer executed a Suspension Agreement and Receipt pursuant
to which the parties agreed that the employee's weekly
workers' compensation indemnity payments would end as of
March 1, 2009 in favor of her accidental disability pension.
Prior
to the execution of the Suspension Agreement and Receipt, the
employee filed a petition to review, W.C.C. No. 2009-01099,
in which she sought a ruling by the court on the coordination
of her workers' compensation benefits and disability
pension pursuant to § 28-33-45(a).[1] On February 25, 2009,
the Workers' Compensation Court entered a pretrial order
in W.C.C. No. 2009-01099 ordering the employer to pay the
employee a weekly workers' compensation indemnity benefit
in the amount of $21.27 above and beyond the amount of the
employee's disability pension benefit from March 1, 2009
and continuing. This order was based upon a determination
that the employee was entitled to a continuation of her
weekly benefits for partial incapacity pursuant to §
28-33-18.3(a)(1).
Effective
March 2, 2009, ERSRI began paying the employee her full
disability pension benefit. However, sometime after entry of
the pretrial order in W.C.C. No. 2009-01099, ERSRI began
deducting the weekly amount of $21,27 from the payment of the
employee's disability pension benefit. In June 2009, the
parties executed a Mutual Agreement correcting the amount of
the employee's weekly workers' compensation benefit
to $76.80 effective March 1, 2009.
In
January 2010, ERSRI notified the employee of its intention to
deduct the weekly sum of $76.80, the amount of her weekly
compensation benefit, from the employee's accidental
disability pension payment, retroactive to March 1, 2009, in
the weekly amount, citing Rhode Island General Laws §
36-10-31.[2] As a result of this action, the
employee initiated proceedings in the Superior Court, which
were stayed while the employee exhausted her administrative
remedies before the Retirement Board. In a letter dated May
28, 2015, ERSRI notified the employee's counsel of its
intention to immediately offset her pension benefit in the
amount of $76.80 weekly, or $332.80 monthly. In addition,
ERSRI stated that it would begin recouping the alleged
overpayment of disability pension benefits, which totaled
$24,396.24, retroactive to March 1, 2009, in the amount of
$325.28 per month, such that the employee's monthly
pension benefit would be...
