Mark D. Powers
Warwick Public Schools.
of Appeal Appellate Division of the Workers' Compensation
Court (13-558) Associate Judge Debra L. Olsson, Associate
Judge George T. Salem, Jr. Associate Judge Robert E. Hardman
Petitioner: Christine M. Curley, Esq., Stephen J. Dennis,
Esq., Carolyn A. Mannis, Esq.
Respondent: Nicholas R. Mancini, Esq., Francis T. Connor,
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
William P. Robinson III, Associate Justice
January 12, 2016, Mark Powers petitioned this Court for
issuance of a writ of certiorari to review a Final Decree of
the Appellate Division of the Workers' Compensation Court
(WCC), which had been issued on December 23, 2015. That
decree denied and dismissed Mr. Powers's appeal, in
accordance with a written decision of the Appellate Division
dated December 16, 2015. This Court granted Mr. Powers's
petition for a writ of certiorari on September 13, 2016.
this Court, Mr. Powers contends: (1) that he "should not
be estopped from arguing that he was a full-time employee
working part-time hours simply because a stipulation was
entered in the Workers' Compensation Court stating that
he was a part-time employee;" and (2) that "the
average weekly wage, as calculated pursuant to [G.L. 1956]
§ 28-33-20 for the purpose of determining workers'
compensation benefits, must include monies received by an
employee from the state for hours not worked, pursuant to an
approved work-sharing program under [G.L. 1956] §
case first came before the Court on September 27, 2017,
pursuant to an order directing the parties to appear and show
cause why the issues raised in this matter should not be
summarily decided. After hearing the arguments of counsel and
examining the memoranda filed by the parties, we concluded
that cause had been shown, and we assigned this case to the
regular calendar for further briefing and argument. We heard
oral arguments on September 27, 2018.
reasons set forth in this opinion, we affirm the decree of
the Appellate Division of the Workers' Compensation
facts of this matter are not in dispute. On December 31,
2012, Mr. Powers injured his left knee while shoveling snow
during the course of his employment with the Warwick Public
Schools. Due to his injury, he was unable to work from
January 1, 2013 until April 3, 2013. At the time of the
injury, in addition to receiving remuneration from the
Warwick Public Schools, Mr. Powers was also receiving
work-sharing benefits from the state under an approved
work-sharing program pursuant to §
28-44-69. As a result of his inability to work due
to injury, he applied for workers' compensation benefits.
His "average weekly wage" for workers'
compensation benefits pursuant to § 28-33-20 was
calculated thereafter, but that calculation did not take into
account the work-sharing benefits which Mr. Powers had been
receiving. On March 8, 2013, Mr. Powers filed a "claim
for a trial," pursuant to G.L. 1956 § 28-35-20(d),
order to challenge the calculation of his average weekly wage
before the WCC.
parties then filed trial memoranda and agreed to a
stipulation of facts before the WCC, which stated as follows:
"1. As of 12/31/12 the Petitioner was a part-time
employee of the Respondent.
"2. The Employee [(Mark Powers)] was injured at work on
"3. During the 26 weeks prior to the week of the injury,
the employee earned wages from the employer for work
performed. Also during the 26 weeks prior to the week of the
injury, the Employee received unemployment compensation
benefits from the State of Rhode Island, pursuant to a Work
Sharing Plan in accordance with RIGL 28-44-69.
"4. The issue in this case is whether or not said
unemployment compensation benefits received in the 26 weeks
prior to the week of the injury should be added to said
part-time wages earned in the 26 weeks prior to the week of
the injury in order to calculate the average weekly wage for
"5. The amount of wages earned by the employee during
the weeks 10/20/12 through 12/29/12 equals $ 2,
880.62. * * *
"6. The amount of unemployment compensation benefits
received in the 26 weeks prior to the week of the injury
equals $ 8, 405 which equals a supplemental wage of
$323.27." (Emphasis in original.)
more of pertinence was submitted, and the parties rested on
the day of trial. On September 25, 2013, the trial judge of
the WCC issued a bench decision, in which he found that
work-sharing benefits were "tantamount to unemployment
compensation benefits" and were properly not included in
Mr. Powers's average weekly wage. Upon Mr. Powers's
appeal, the Appellate Division of the WCC issued a written
decision on December 16, 2015, affirming the trial
judge's bench decision; a final decree then entered. Mr.
Powers subsequently petitioned this Court for a writ of
certiorari, which this Court granted.
begin by noting that "[o]ur review of a case on
certiorari is limited to an examination of the record to
determine if an error of law has been committed."
DeCurtis v. Visconti, Boren & Campbell, Ltd.,
152 A.3d 413, 420-21 (R.I. 2017) (internal quotation marks
omitted). "In addition to examining the record for
judicial error, we inspect the record to discern if there is
any legally competent ...