STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

BRIAN McGLYNN :

V. : A.A. 00-53

DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW :

D E C I S I O N

CENERINI, J. This matter is before the Court on the complaint of Brian McGlynn filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Employment and Training, (hereinafter cited as "the Board") which upheld the finding of the Referee that the complainant was subject to the offset provisions of Rhode Island General Laws § 28-44-19 and not entitled to receive employment security benefits.
The travel of the case is as follows. The claimant on or before December 5, 1995 sustained a work-related injury while in the employ of Electric Boat, Quonset Point. The claimant received Worker's Compensation under the applicable Federal Statute until entering into a lump sum settlement agreement totaling $120,000, of which $102,000 was paid to the claimant, with the balance of $18,000 paid to claimant's counsel for all services rendered and litigation costs incurred. The settlement agreement of October 15, 1999 allowed the employer to terminate the claimant who had been on a light duty work assignment until his last day of work on or about September 22, 1999. The claimant on January 12, 2000 was authorized to return to work by his attending physician. On January 13, 2000, the claimant filed a claim for Employment Security benefits. In a Director's decision dated February 7, 2000, it was determined that the claimant was disqualified for a designated period from being eligible for unemployment benefits due to the worker's compensation settlement, Rhode Island General Laws 28-44-19. The claimant filed a timely appeal of this decision. A hearing on the appeal before a Referee was held on March 2, 2000 at which time the claimant and an employer representative testified. The Referee held that the claimant was subject to the setoff provisions of Rhode Island General Laws 28-44-19 and was not entitled to receive employment benefits, based on the fact that his Worker's Compensation benefits exceeded the unemployment benefits which he would have been entitled if otherwise eligible.
Thereafter, a timely appeal was filed and the matter was heard by the Board of Review. The Board determined that the Decision of the Referee was a proper adjudication of the facts and the law applicable thereto and upheld the Referee's decision. Thereafter, Brian McGlynn filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws § 28-44-52.
The issue in this case is whether the claimant is disqualified from receiving unemployment benefits during the period which was the basis for a lump sum settlement of a worker's compensation claim.
The Referee made the following findings of fact that were upheld by a majority of the members of the Board of Review:
The claimant was employed for sixteen years as a pipe fitter. His last day of work was September 22, 1999. Due to a work-related injury, the claimant had been receiving Workers' Compensation benefits in connection with that injury. As a result of a lump sum commutation settlement relative to that injury, the claimant received a lump sum settlement totaling $120,000.00 effective October 15, 1999. This amount paid at the claimant's Workers' Compensation weekly rate of $654.89 would represent 184 weeks of future payments and exceeds his Employment Security benefit rate.

The majority of the members of the Board of Review adopted the conclusions of the Referee:
The issue is whether or not the decision of the Director is a correct determination within the meaning of Section 28-44-19 of the Rhode Island Employment Security Act.

Section 28-44-19 states as follows:

"Receipt of compensation. - An individual shall be disqualified from receiving benefits for any week of his unemployment occurring within any period with respect to which that individual is currently receiving, or has received, remuneration in the form of:

(1) Compensation for temporary partial disability under a workers' compensation law of any state or under a similar law of the United States; or

(2) Benefits under an unemployment compensation law of any state or of the United States; Provided, That if the remuneration designated in subdivision (1) is less than the benefits which would otherwise be due under chapters 42 - 44, inclusive, of this title, he shall be entitled to receive for that week, if otherwise eligible, benefits reduced by the amount of that remuneration."

Based on the credible testimony and competent evidence presented at the hearing, I find the claimant agreed to and received a lump sum settlement of Workers' Compensation benefits in the total amount of $120,000.00 effective October 15, 1999. This amount paid at the rate of $654.89 per week, which was the claimant's Workers' Compensation weekly rate, represents one hundred eighty-four weeks of future payments and does exceed his Employment Security benefit rate of $383.00. Accordingly, it is determined the claimant does not meet the requirements of the law under Section 28-44-19 of the Rhode Island Employment Security Act and, therefore, benefits are denied in accordance with the decision of the Director.

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A minority dissenting opinion set forth:

I respectfully disagree with the decision reached by my colleagues in this matter.

I have constantly maintained the position that a commutation in the Worker's Compensation Court is for an injury plus future pain and suffering and future medical bills. Therefore, those monies should not be eroded through lack of unemployment insurance.

I would reverse the decision of the Referee and allow the claimant benefits.

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The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the state Administrative Procedures Act, which provides as follows:
42-35-15. Judicial review of contested cases.
(g) The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of
fact. The court may affirm the decision of the agency or
remand the case for further proceedings, or it may reverse
or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or
(6) Arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of
discretion.

Thus, on questions of fact, the District Court ". . . may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are clearly erroneous." Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) citing Rhode Island General Laws § 42-35-15(g)(5). The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact. Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968). Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result. Cahoone v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968). See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).
The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:
. . . eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family." G.L.1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances. Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act. Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597 (1964).

A review of the record indicates that the claimant had received benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq., Agency Exhibit 4. This Act provides for the payment of compensation to employees for work-related disability occurring in adjoining areas to the navigable waters of the United States customarily used by an employer in the repairing or building of a vessel, 33 U.S.C.S. §903(a). The basic purpose of the Act is to provide benefits of workmen's compensation to persons engaged in covered employment who for that reason are outside of the scope of state compensation statutes, 32B Am.Jur.2d 105. A maritime employee may file a dual claim for the same injury under both State law and the Federal Act, but the state award is offset against any recovery, attained under the Longshore and Harbor Workers' Compensation Act, 32B Am.Jur.2d 106. A state may likewise apply its worker's compensation law to bar the danger of double recovery under both the State and Federal systems, 32B Am.Jur.2d 109.
The claimant herein was represented by an attorney regarding the original workers compensation claim and settlement proceedings, as was he right in accord with 20 C.F.R. § 702.131. Attorney fees are part of the expenses that are to be recovered prior to the satisfaction of a lien upon the claim, 32B Am.Jur.2d 137. As set forth in 33 U.S.C.S. § 928(a),
(a) person seeking benefits shall thereafter have utilized the services of any attorney at law in the successful prosecution of his claim, there shall be awarded, in addition to the award of the compensation, in a compensation order, a reasonable attorney's fee against the employer or carrier

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The amounts awarded against an employer or carrier as attorney's fees, costs, fees and mileage for witnesses shall not in any respect affect or diminish the compensation payable under this chapter.

The claimant's Workers Compensation settlement agreement as approved by the United States Department of Labor, Office of Workers' Compensation Programs sets forth:
FINDINGS OF FACT

1. On or before 12/5/95, the claimant herein, while employed by the employer herein, sustained an injury to his elbows, bilaterally.

2. The liability of the employer for compensation under the Longshore and Harbor Workers' Compensation Act was Self-insured.

3. As a result of said injuries, the claimant sustained a further disability/loss of function to his elbows.

4. The parties have agreed on the pertinent issues and desire to settle the claim on the following basis:

Claimant is to be paid by the Employer/Carrier the total sum of $102,000.00.

Claimant's counsel is to be paid the sum of $18,000.00, plus reasonable and necessary expenses, as payment for all services rendered to date and litigation costs incurred.

The payment of said amount by this Employer/Carrier, will discharge Employer/Carrier from further liability under this Act for medical care.

5. Upon careful consideration of the facts and issues involved in this case, as well as the criteria set forth in 20 C.F.R. 702.243(f) the District Director finds that the settlement was arrived at without duress, is considered adequate and APPROVES the agreed settlement.

ORDER

Pursuant to Section 8(i) of the Act as amended, it is ORDERED that the Employer/Carrier shall pay forthwith all amounts due in accordance with the settlement agreement.

The Claimant upon submitting his application for Rhode Island Unemployment benefits subjected himself to the disqualification provisions of Rhode Island General Laws 28-44-19(1), supra. Section 19 bars the receipt of benefits during the period for which a Rhode Island or Federal Worker's Compensation claim has been the subject of a lump sum commutation. An employee thus can be properly denied weekly unemployment compensation benefits during a period for which the employee had already received a lump sum compensation settlement, Almstead v. Department of Employment Security, 478 A.2d 980, 984 (1984).
In this matter, though, the applicable settlement agreement states that the claimant is to be paid ". . . the total sum of $102,000 . . ." (emphasis added). The Board, like this Court, is not free to ". . . enlarge the exclusionary effect of expressed restrictions on the eligibility under the guise of construing such provisions of the act." Harraka, supra. Therefore, the Board in also including the attorney fee of $18,000 to extend the claimant's proper disqualification period violated the statutory provision and was clearly erroneous in view of the reliable and substantial evidence in the whole record. See DiFilippo v. Department of Employment and Training, A.A. No. 93-79 (Dist.Ct. 3/14/94)(DeRobbio, C.J.) which remanded case to the Board for further proceedings where the Board had not deducted attorney's fees, future medical expenses, and other specific items from its calculation of disqualified weeks due to a worker's compensation lump sum agreement.
In light of the above, the Board's Decision is modified to disqualify the claimant, in consideration of his total settlement of $102,000 and his $654.89 weekly Workers' Compensation rate, to represent 156 weeks of future payments exceeding his determined Employment Security benefit rate of $383.