Dan Wirasnik v. WED Precast, Chester McLellan Trucking and New America Marketing

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Dan Wirasnik v. WED Precast, Chester McLellan Trucking and New America Marketing
(June 21, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dan Wirasnik Opinion No. 17-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
WED Precast, Chester McLellan For: Anne M. Noonan
Trucking and New America Commissioner
Marketing
State File No. Z-52882
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
James Dingley, Esq., for Claimant
Corina Shaffner-Fegard, Esq., for Defendant ARCH Insurance Co.
Jeffrey Spencer, Esq., for Defendant Cincinnati Insurance Co.
Keith Kasper, Esq., for Defendant New America Marketing, LLC.
ISSUES PRESENTED:
1. Did Defendant Chester McLellan Trucking waive its right to argue that Claimant
suffered a recurrence of his original work injury in May 2007?
2. Does the statute of limitations bar a claim against Defendant New America
Marketing?
EXHIBITS:
Defendant WED Precast’s Exhibit 1: Provencher Affidavit, March 4, 2013
Defendant WED Precast’s Exhibit 2: Dr. Upton Independent Medical Evaluation, January
23, 2008
Defendant WED Precast’s Exhibit 3: Form 2, August 27, 2007
Defendant WED Precast’s Exhibit 4: Interim Order, October 16, 2007
Defendant Wed Precast’s Exhibit 5: Letter from Workers’ Compensation Specialist to
Attorneys Dingley and Shaffner-Fegard, January 7,
2008
Defendant WED Precast’s Exhibit 6: Defendant McLellan Trucking’s Form 27,
December 28, 2007
Defendant WED Precast’s Exhibit 7: Defendant McLellan Trucking’s Form 27, October
2008
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Defendant WED Precast’s Exhibit 8: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
November 20, 2008
Defendant WED Precast’s Exhibit 9: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
August 9, 2011
Defendant WED Precast’s Exhibit 10: Email from Attorney Shaffner-Fegard to Workers’
Compensation Specialist, August 9, 2011
Defendant WED Precast’s Exhibit 11: Letter from Attorney Dingley to Workers’
Compensation Specialist, July 18, 2012
Defendant WED Precast’s Supplemental
Exhibit 1: Letter from Attorney Spencer to Workers’
Compensation Specialist, April 26, 2011
Defendant WED Precast’s Supplemental
Exhibit 2: Order to Arbitrate, October 10, 2008
Defendant McLellan Trucking’s
Exhibit A: Dr. Wieneke’s report, October 24, 2006
Defendant McLellan Trucking’s
Exhibit B: Defendant WED Precast’s Form 1, May 6, 2005
Defendant McLellan Trucking’s
Exhibit C: Form 22, February 7, 2007
Defendant McLellan Trucking’s
Exhibit D: Taconic Orthopedics’ office note, September 27,
2005
Defendant McLellan Trucking’s
Exhibit E: Defendant WED Precast’s Form 1, October 18,
2006
Defendant McLellan Trucking’s
Exhibit F: Letter from Claims Specialist to Dr. Block, May 26,
2006
Defendant McLellan Trucking’s
Exhibit G: Dr. Wieneke letter to adjuster, April 17, 2007
Defendant McLellan Trucking’s
Exhibit H: Taconic Orthopedics’ office note, July 3, 2007
Defendant McLellan Trucking’s
Exhibit I: Letter from Attorney Dingley to Workers’
Compensation Specialist, September 7, 2007
Defendant McLellan Trucking’s
Exhibit J: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
February 14, 2008
Defendant McLellan Trucking’s
Exhibit K: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
November 20, 2008
Defendant McLellan Trucking’s
Exhibit L: Claimant’s deposition, March 27, 2013
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FINDINGS OF FACT:
For the purposes of these motions, the following facts are not disputed:
1. Claimant suffered a compensable low back injury on May 6, 2005 while working for
Defendant WED Precast. WED Precast accepted liability and paid workers’
compensation benefits accordingly.
2. Claimant’s employment was seasonal, as he was laid off during the winter months. He
did not return to WED Precast in the spring of 2007. In April 2007, Dr. Wieneke stated
that he had reached an end medical result for his May 2005 work injury. Dr. Wieneke
also stated that he could perform light duty work with no heavy truck driving. It is
unclear from the record what, if any, symptoms Claimant was still experiencing at this
point in time.
3. In May 2007 Claimant took a job with Defendant Chester McLellan Trucking (McLellan)
as a heavy truck driver. In August 2007, while driving his truck Claimant suffered
renewed symptoms in his low back.1 He did not file a claim for benefits against
McLellan and it is unclear from the record how WED Precast became aware of his
symptoms. Subsequently, however, WED Precast filed a Form 2 denial of benefits on the
grounds that Claimant had suffered an aggravation of his May 2005 work injury, such
that if any benefits were due McLellan was the employer responsible for paying them.
4. In response to WED Precast’s Form 2, McLellan filed its own denial of benefits in
September 2007, on the grounds that Claimant’s May 2007 episode of back pain was a
recurrence of his 2005 injury for which WED Precast remained responsible. Following
an informal conference, the Department issued an interim order requiring McLellan to
pay benefits, on the grounds that Claimant had suffered an aggravation, not a recurrence.
5. McLellan next filed a motion to reconsider the Department’s interim order, which was
denied. Subsequently, in December 2007 it filed a Form 27 discontinuance on end
medical result grounds. In January 2008 the Department rejected this action as well.
6. At McLellan’s request, in January 2008 Claimant underwent an independent medical
examination with Dr. Upton. Dr. Upton concluded that Claimant had reached an end
medical result for his most recent injury, which he characterized as an aggravation of a
pre-existing condition. Dr. Upton determined that Claimant had not suffered any
additional permanent impairment, and also that he was capable of light duty work. With
this opinion as support, the Department accepted McLellan’s Form 27 discontinuance.
1 Within days of this injury, Claimant voluntarily terminated his employment with McLellan because he could not
physically continue the work.
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7. At McLellan’s request, in October 2008 the Department issued an order directing
McLellan and WED Precast to arbitration in order to resolve their aggravation/recurrence
dispute. While an arbitrator was chosen, no arbitration ever took place. In an April 2010
letter to both McLellan and WED Precast, the arbitrator closed his file “due to prolonged
inactivity.”
8. In October 2008 Claimant began working for New America Marketing (New America).
His tenure there lasted for only a few months. He left the job because the constant
standing caused significant low back pain.
9. In November 2008 McLellan filed a Form 2 denial of benefits relating to an October 21,
2008 injury. Claimant had not made a claim for benefits; however, he had sought
medical treatment. McLellan argued that any injury he suffered while working for New
America was either a new aggravation or a flare up, for which it was not responsible.
The Department agreed. In a November 2008 letter it directed Claimant to file a Form 5
Notice of Injury and Claim for Compensation with New America if he wished to pursue
benefits. He did not do so.
10. In March 2011 Claimant sought an interim order from the Department to require that one
of his three former employers pay medical benefits on account of his ongoing low back
pain. Following an informal conference, the Department ruled that it could not do so.
Specifically, it found that McLellan’s November 2008 denial remained reasonably
supported, and that the then-current record was insufficient to impose liability on either
WED Precast or New America.
11. In April 2011 McLellan’s attorney wrote a letter to the Department in which he advised
as follows: “As for the issue of arbitration, that should not be read as any waiver or [sic]
our position or somehow that it reverses the Commissioner’s findings in this matter.
[McLellan’s workers’ compensation insurance carrier] could have arbitrated to
potentially receive reimbursement of the benefits paid prior to the Commissioner’s
determination on November 20, 2008, however given the cost benefit it chose not to.”
(Emphasis supplied.)
12. On July 18, 2012 Claimant filed hearing requests against both WED Precast and
McLellan, as well as a Form 5 Notice of Injury and Claim for Compensation against New
America, in which he sought payment of ongoing medical benefits from his former
employers. This marked the first time he had made any formal claim for benefits against
New America.
13. In the course of pre-hearing discovery, Defendants deposed Claimant. Throughout his
deposition, he admitted that his memory for dates was not very accurate. When asked
about his time working for New America, he responded that he thought he had worked
there for three or four months, but used phases such as, “I’m not sure when I started for
them,” and “maybe” it was the spring of 2009 when he finished there.
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14. At one point during his deposition, New America’s attorney asked Claimant to describe
what work injury occurred on August 6, 2009. Claimant responded that that was when he
told his supervisor at New America that he could no longer work there. He finished the
project he was involved with and then left that employment.
15. According to correspondence from the Worker’s’ Compensation Specialist to the
attorneys for Claimant, WED Precast and McLellan, Claimant worked for New America
in October 2008. Assuming that his testimony as to the duration of his employment –
three or four months – was accurate, this would call into question whether the
conversation he recalled having with his supervisor in August 2009 actually occurred on
that date.
16. In August 2010 Claimant began driving a school bus for approximately 26 hours per
week. He continues to hold that position.
DISCUSSION:
1. Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Samplid Enterprises, Inc. v. First
Vermont Bank, 165 Vt. 22, 25 (1996). The nonmoving party is entitled to all reasonable
doubts and inferences. State v. Delaney, 157 Vt. 247, 242 (1991); Toys, Inc. v. F.M.
Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the
facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt.
425 (1979). It is unwarranted where the evidence is subject to conflicting interpretations,
regardless of the comparative plausibility of facts offered by either party or the likelihood
that one party or another might prevail at trial. Provost v. Fletcher Allen Health Care,
Inc., 2005 VT 115 at ¶15.
2. In this claim, both Defendant WED Precast and Defendant New America have moved for
summary judgment. WED Precast argues that summary judgment should be granted in
its favor against Defendant McLellan on the grounds that McLellan has waived its right
to argue that Claimant suffered a recurrence of his original work injury in May 2007.
Defendant New America argues that it is entitled to summary judgment because Claimant
failed to file a claim for benefits against it within the applicable statute of limitations.
Claimant did not file responses to either of these motions.
WED Precast’s Motion for Summary Judgment
3. McLellan argues that it did not waive its right to argue that Claimant suffered a
recurrence of his original work injury in the summer of 2007. It points to the fact that it
continued to copy WED Precast on correspondence over the years, as well as verbal
statements it made during informal conferences (in which WED Precast took part), as
affirmative evidence of its intent that WED Precast continue to be a party to any formal
hearing involving the question of liability for benefits due Claimant.
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4. A waiver is the voluntary relinquishment of a known right. To establish it, “there must
be shown an act or an omission on the part of the one charged with the waiver fairly
evidencing an intention permanently to surrender the right in question.” Holden &
Martin Lumber Co. v. Stuart, 118 Vt. 286, 289 (1954). A waiver can be express or
implied, but if it is the latter, “caution must be exercised both in proof and application.
The facts and circumstances relied upon must be unequivocal in character.” Id.
5. The facts here are unequivocal. As its own correspondence shows, McLellan chose not
to pursue arbitration against WED Precast in 2007 because in its analysis the costs
associated with doing so outweighed the potential benefits. It thus acted in such a way as
to voluntarily relinquish its right to establish that Claimant had suffered a recurrence in
August 2007 rather than an aggravation. Arbitration being the avenue that the
Department, in its discretion, had mandated for resolving that dispute, see 21 V.S.A.
§662(e), once McLellan abandoned that path it waived its right to contest responsibility
as against WED Precast. For that reason, WED Precast is entitled to summary judgment
against McLellan.
New America’s Motion for Summary Judgment
6. McLellan argues that a genuine issue of material fact exists as to the date when
Claimant’s episode of low back pain while employed by New America occurred, and for
that reason New America’s request for summary judgment on statute of limitations
grounds must be denied. Specifically, McLellan points to Claimant’s deposition
testimony, in which he asserted that he told his supervisor about his back pain on August
6, 2009. If true, this would place that event well within the three-year statute of
limitations applicable to a work-related injury claim against New America.
7. Clearly the evidence is somewhat conflicting as to when Claimant actually worked for
New America. Whether Claimant’s assertion that he was still working there on August 6,
2009 will stand up to the rigors of cross-examination at formal hearing is not yet at issue.
Rather, for the purposes of ruling on a motion for summary judgment, “all allegations
made in opposition to summary judgment are regarded as true if supported by affidavits
or other evidence.” Town of Victory v. State of Vermont, 174 Vt. 539, 540 (2002).
8. Thus, I conclude that Claimant’s testimony, for purposes of this motion, places the date
of his claimed injury at New America on August 6, 2009. Thus, when he filed his Form
5 Notice of Injury and Claim for Compensation against New America on July 18, 2012,
that filing was within the three year statute of limitations. Therefore, I conclude that New
America’s motion for summary judgment on statute of limitations grounds must be
denied.
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ORDER:
Defendant WED Precast’s Motion for Summary Judgment against Defendant Chester McLellan
Trucking is hereby GRANTED. Defendant New America Marketing’s Motion for Summary
Judgment is hereby DENIED.
Dated at Montpelier, Vermont, this 21st day of June 2013.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§ 670, 672.

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