JOSE IGNACIO ZUNIGA
v.
SENESCO MARINE, LLC
W.C.C. No. 2016-01802
Rhode Island Worker Compensation
State of Rhode Island and Providence Plantations Providence
December 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 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 May 19, 2017 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 due to the
employee's claim of appeal from a decision and decree of
the trial judge that denied his original petition alleging
work-related back and leg injuries sustained on October 27,
2015. The Appellate Division issued an order directing the
parties to appear and show cause why the issues raised in
this appeal should not be summarily decided. After hearing
the parties' arguments and conducting a thorough review
of the record, we are of the opinion that cause has not been
shown and that the appeal may be decided at this time.
Accordingly, we deny the employee's appeal and affirm the
decision and decree of the trial judge.
With
the aid of a Spanish interpreter, Jose Ignacio Zuniga (the
employee) testified that he was employed as a shipfitter by
Senesco Marine, LLC (the employer) since 2009. On Tuesday,
October 27, 2015, the employee was operating a forty (40) to
forty-five (45) pound come-along
1 in order to align the upper
part of a ship's deck when he "just felt pain"
in his lower back. Tr. at 10:2. The employee stated that he
did not report the incident to anyone at work that day, but
left the job site before noon to visit his primary care
physician (PCP), Dr. Maria C. Chan, at Providence Community
Health Center (PCHC). Despite continued pain, he returned to
work, full duty, the next day, October 28, 2015. Although he
testified that he was aware of the employer's policy
requiring employees to immediately report injuries at work,
the employee failed to inform anyone of his injury.
Subsequently, the employee did not report to work on either
October 29
th or 30
th. Rather, on
October 29,2015, the employee attended physical therapy at
Rhode Island Hospital, as prescribed by Dr. Chan, and then on
October 30, 2015, he went to the Newport Hospital emergency
room where he reported worsening complaints.
The
employee testified that on Monday, November 2, 2015, he met
with Karen Valencourt in Human Resources to discuss his
injury. The employee provided Ms. Valencourt with Dr.
Chan's medical report and informed Ms. Valencourt that
his back pain was related to an incident at work on October
27, 2015. After informing Ms. Valencourt of his injury, the
employee did not return to work until November 16, 2015.
However, on November 18, 2015, the employee informed Human
Resources that his "leg was falling asleep" and
that he needed to see a doctor. Tr. at 12:6-7. The employee
testified that his last day of work was November 18, 2015. He
testified initially that he no longer had pain in his back
and then stated that the pain had not disappeared. He stated
that he did continue to suffer from numbness in his left leg
that felt as if his leg was falling asleep.
On
cross-examination, the employee was questioned about certain
statements contained within his medical records. A medical
history form, completed on March 12,2007, when he first
became a patient at the PCHC, states that the employee
experienced left leg numbness below his knee since suffering
a stroke in 2005. Er's Ex. A, Ee's Med. History Form
dated 03/12/07.
When
asked about this statement, the employee replied that the
notation in this record was incorrect and that he did not
experience the numbness prior to October 27, 2015. He then
explained that his left leg went numb on the night of
November 17,2015, after working in pain on that day.
The
employee agreed that he was always truthful in his
conversations with Dr. Chan. He confirmed that on the date of
the alleged injury, October 27, 2015, he went to her office
complaining of low back pain. He was then confronted with Dr.
Chan's medical report of that date which indicates that
the employee began experiencing low back pain and stiffness
two (2) weeks earlier when he picked up something from the
floor. Er's Ex, C. Med. Rep. dated 10/27/2015, at 1. The
employee denied giving this history to Dr. Chan.
The
employee was also questioned regarding the initial physical
therapy report of October 29, 2015 from Rhode Island Hospital
which states that the employee developed right-sided back
pain beginning on October 27,2015, after welding with his
hands above shoulder height for more than twenty (20)
minutes. Er's Ex. D, Ee's Initial Physical Therapy
Evaluation dated 10/29/2015, The employee agreed that he did
give this...
