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Thomas v. Verizon New England9/9/2005
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In its appeal, the employer basically argues that the trial judge should have accepted Dr. Austin's opinions over those of Dr. Akelman. In looking at Dr. Austin's testimony as a whole, we are not as certain as the employer seems to be that the doctor is stating definitively that the work activities were not the cause of the employee's condition. However, it is well-settled that in the face of conflicting medical opinions, the trial judge has the authority to select the opinion he finds more persuasive and probative on the issue of causation. Parenteau v. Zimmerman Eng., Inc., 111 R.I. 69, 299 A.2d 168 (1973). Dr. Akelman's opinion was certainly competent and provided sufficient basis to conclude that the employee's condition was caused by her repetitive work activities.
In the seventh and eighth reasons of appeal, the employer argues that it was prejudiced when the employee failed to inform Dr. Austin that she had missed some time from work for other health issues prior to leaving work in July 2003 due to the condition of her hands and arms. The employer fails to explain how any prejudice resulted from this lapse. Dr. Austin was sent the additional information and asked if it altered his opinions in any way. He responded that it did not. The employer thereafter relied upon the opinions of Dr. Austin in defending against the employee's petition and in prosecuting this appeal. We fail to discern how the employer was prejudiced in any way by this sequence of events.
Based upon the foregoing, the employer's appeal is denied and dismissed and the decision and decrees of the trial judge are affirmed. In accordance with Rule 2.20 of the Rules of Practice of the Workers' Compensation Court, a final decree, a copy of which is enclosed, shall be entered on Bertness and Sowa, JJ. concur.
FINAL DECREE OF THE APPELLATE DIVISION
This cause came on to be heard by the Appellate Division upon the appeal of the respondent/employer and upon consideration thereof, the appeal is denied and dismissed, and it is:
ORDERED, ADJUDGED, AND DECREED: 1. That the findings of fact and the orders contained in a decree of this Court entered on November 30, 2004 be, and they hereby are, affirmed.
2. That the respondent/employer shall pay a counsel fee in the sum of One Thousand Seven Hundred Fifty and 00/100 ($1,750.00) Dollars to Domenic J. Carcieri, Esq., for the successful defense of the employer's appeal.
This cause came on to be heard by the Appellate Division upon the appeal of the respondent/employer and upon consideration thereof, the appeal is denied and dismissed, and it is:
ORDERED, ADJUDGED, AND DECREED: 1. That the findings of fact and the orders contained in a decree of this Court entered on November 30, 2004 be, and they hereby are, affirmed.
2. That a counsel fee was awarded to Domenic J. Carcieri, Esq., in the decree entered in the consolidated case, W.C.C. No. 04-02879, for the successful defense of both of the appeals filed by the respondent/employer.
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