dissenting.
I respectfully disagree with the Appellate Division panel’s majority decision in this case and, therefore, with the majority of this Court that upholds that decision. The panel’s majority concluded that the trial judge clearly erred by taking into account her subjective assessment of the employee’s appearance, age, physique, and tanned skin in establishing his diminished earnings capacity at a level equal to the percentage of his functional whole-body impairment. But I believe this assessment was consistent with the traditional function of the trial judge: to observe the appearance and demeanor of witnesses and parties that appear before him or her and to take that information into account (when relevant) in reaching conclusions about the matters at issue in the case. A1 that the trial judge did here was to conclude that the employee’s appearance, age, physique, performance of chores outside the home, and tanned skin were consistent with a conclusion that his work-related injury had resulted in only a slightly diminished capacity of his ability to earn and that he indeed appeared to be as capable of securing gainful employment as the employer’s rehabilitation expert had suggested. In short, I believe that the trial judge was entitled to conclude that this employee’s 7 percent degree of functional impairment realistically correlated with the employee’s true diminishment of his ability to earn and that the trial justice was justified in reaching this conclusion based upon the evidence in the record. Thus, I cannot agree with the panel majority’s conclusion that she was clearly wrong in reaching this result. In this case, some evidence indicated that the employee’s slight functional impairment equated with only a slightly diminished earning capacity.
Athough a trial justice has the discretion to “decline to set an earnings capacity based on functional impairment when the *463evidence presented does not suggest some reasonable relationship between the employee’s actual physical impairment and his ability to earn,” Star Enterprises v. DelBarone, 746 A.2d 692, 696 (R.I.2000) the opposite conclusion is also true. Indeed, G.L.1956 § 28 — 29—2(3)(i) expressly provides that “[e]arnings capacity can also be established by the court based on * * * a determination of the degree of [the employee’s] functional impairment and/or disability.” If earnings capacity is determined by this method, then G.L.1956 § 28-33-18(c) authorizes the trial judge to calculate the employee’s earnings capacity based solely upon the percentage of the employee’s functional impairment. As the dissenting judge to the Appellate Division’s panel decision pointed out, no expert testimony is required before the trial judge can use this statutory formula to calculate the employee’s earnings capacity. Nevertheless, in this case the evidence presented did suggest a reasonable relationship between this employee’s relatively slight physical impairment and his negligible diminished capacity to earn. The employer’s expert testified that the employee was capable of securing gainful employment. If an employee, such as Ponte, suffers a work-related injury that results in only a de minimis functional impairment — one that suggests his ability to earn will be affected only marginally, if at all— then, according to §§ 28 — 29—2(3)(i) and 28-33 — 18(c) it is not inequitable for such an employee to suffer a drastic reduction in weekly compensation. This is especially so when, as here, the employee has failed even to seek, much less to obtain, available work — notwithstanding his or her evident employability. The applicable workers’ compensation statutes (§§ 28 — 29—2(3)(i) and 28 — 33—18(c)) endorse this result by allowing the trial judge to use a statutory formula to calculate diminished earnings capacity based upon the degree of an employee’s functional impairment. If independent evidence were needed to establish or corroborate the employee’s diminished earnings capacity, then this statutory formula would be superfluous.
In this case, the record is absolutely clear that we have an employee who would be able to find gainful employment if only he had looked for it. For unexplained reasons, he failed to do so. Thus, given the undisputed evidence of his relatively slight physical impairment and of his failure to seek available employment, I agree with the trial judge that the evidence called for a drastic cut in his benefits. Our state workers’ compensation law supports such a reduction when, as here, the marginal degree of this employee’s functional impairment seems to correlate with his time, but only slight, earnings impairment.
Accordingly, I would reverse the decision of the Appellate Division panel and uphold the trial judge. Alternatively, I would remand this for further fact-finding concerning whether there is any additional correlation between this employee’s functional impairment and his ability to earn, though I do not believe the applicable statutes require such a connection before calculating the employee’s diminished earnings capacity.