David Flood v. Feed Commodities Inc. Opinion No. 09C-16WC

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STATE OF VERMONT

DEPARTMENT OF LABOR

David Flood v. Feed Commodities, Inc. Opinion No. 09C-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. GG-00758

RULING ON DEFENDANT’S MOTION TO STRIKE AND FOR CLARIFICATION

By Motion dated July 14, 2016 Defendant moves to strike from the Commissioner’s June

28, 2016 Opinion and Order “any implication that Defendant is making or made any allegations

of fraud involving Claimant’s family members.” The Commissioner made two such references –

first in her procedural ruling on reconsideration of Defendant’s Motion Regarding Claimed

Attorney-Client Privilege, Opinion and Order at p. 3, and again in explaining the basis for her

conclusion that Defendant’s version of events was implausible, Opinion and Order at

Conclusion of Law No. 12.

I acknowledge that Defendant has not pursued specific legal action against Claimant’s

family members for fraud or misrepresentation, either under 21 V.S.A. §708(a) or otherwise.

Nevertheless, it remains a fair interpretation of its defense in this claim that both Claimant and

his family members acted in concert to concoct a false account of the circumstances surrounding

his January 19, 2015 injury. For that reason, I see no basis for striking either of the statements

referenced above.

Defendant’s Motion to Strike is hereby DENIED.

Defendant also moves for clarification of the Commissioner’s Order, specifically the

award of interest under 21 V.S.A. §664. That section requires that an award include “the date on

which the employer’s obligation to pay compensation under this chapter began.” Admittedly,

the Order in this case did not do so.

Pursuant to 21 V.S.A. §650(e), “Interest shall accrue and be paid on benefits that are

found to be compensable during the period of nonpayment.” In this case, interest shall accrue

beginning on the first day of Claimant’s temporary total disability.1

1 Assuming that Claimant received full wages for his work on January 19, 2015, I anticipate that this likely will be

January 20, 2015, the day following his injury. See 21 V.S.A. §642.

2

The Commissioner’s Order is hereby AMENDED as follows:

ORDER:

Based on the foregoing findings of facts and conclusions of law, Defendant is hereby

ORDERED to pay:

  1. All workers’ compensation benefits to which Claimant proves his entitlement as

causally related to his January 19, 2015 work injury, with interest as provided in 21

V.S.A. §664 beginning on the first day of his temporary total disability; and

  1. Costs totaling $1,650.00, paralegal fees totaling $125.00 and attorney fees totaling

$28,789.00, in accordance with 21 V.S.A. §678.

DATED at Montpelier, Vermont this _____ day of August 2016.

_____________________

Phyllis G. Phillips, Esq.

Administrative Law Judge

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