STATE OF VERMONT
DEPARTMENT OF LABOR
Tony Vohnoutka v.Ronnie’s Cycle Sales of Bennington, Inc. Opinion No. 20-16WC
- By: Phyllis Phillips, Esq.
Administrative Law Judge
For: Anne M. Noonan
State File No. FF-00938
OPINION AND ORDER
Hearing held in Bennington on April 15, 2016
Record closed on May 16, 2016
Claimant, pro se
Jennifer Meagher, Esq., for Defendant
- Did Claimant suffer a compensable neck injury while working in the course and
scope of his employment on or about February 22, 2013?
- If yes, to what workers’ compensation benefits is he entitled?
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Curriculum vitae, William Boucher, M.D.
Defendant’s Exhibit B: Claimant’s personnel records
Defendant’s Exhibit C: Vermont First Report of Injury (Form 1), 3/27/14
Defendant’s Exhibit D: Letter to NYS Workers’ Compensation Board (with attachments),
March 27, 2014
Defendant’s Exhibit E: Denial of Workers’ Compensation Benefits (Form 2), 4/9/2014
All workers’ compensation benefits to which Claimant proves his entitlement as causally related
to his alleged February 22, 2013 work-related injury.1
FINDINGS OF FACT:
- At all times relevant to these proceedings, Claimant was an employee and Defendant was
his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
- Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
- Claimant worked for Defendant, a retailer of recreational vehicles, as a service technician
beginning in March 2009.
- For the first year of his employment, Claimant occasionally proposed ideas to save
money and/or improve safety in the shop, which he felt his supervisor, Dave Munson,
appreciated hearing. Over time, however, he came to believe that his suggestions were
being ignored. He was particularly troubled by the fact that after voicing his concerns
about indoor air quality, Mr. Munson allegedly told him he would be fired if he filed a
VOSHA complaint and reprimanded him for going outside to get fresh air. As to these
allegations, Mr. Munson credibly testified that there was a working ventilation system in
Claimant’s Alleged February 2013 Work Injury
- According to Claimant’s credible testimony, on or about February 22, 2013 Mr. Munson
asked him to help unload a snowmobile from his pickup truck. At some point while they
were both pulling the machine off the back of the truck, Mr. Munson let go, and Claimant
was left to bear the entire weight of the vehicle on his shoulders, arms and neck.
Claimant felt the immediate onset of numbness and tingling in his neck. He went inside,
sat down and told Mr. Munson his neck hurt and he needed a moment “to figure out how
- Claimant recalled that while he was sitting inside, Mr. Munson asked whether he needed
to go home and advised that if not, he should get back to work. He did not suggest that
Claimant seek medical attention, nor did Claimant request it.
1 Claimant did not appeal the Commissioner’s denial of his claim for temporary disability benefits for any period
prior to December 9, 2014 in the context of her ruling on Defendant’s Motion for Summary Judgment, Vohnoutka v.
Ronnie’s Cycle Sales of Bennington, Inc., Opinion No. 01-16WC (January 25, 2016). His entitlement to those
benefits is no longer at issue, therefore.
- Claimant worked through the day, then went home to his mother’s house, where he
resided at the time. At formal hearing, his mother, Kimberly VonHaggin, credibly
recalled an evening in or around February 2013 when he came home from work
complaining of neck pain. She gave him some aspirin and he took a nap. Similarly,
Claimant’s close friend, Paul Jones-Fote, who also testified at formal hearing, credibly
recalled a time in or around February 2013 when he observed Claimant standing crooked,
grimacing and complaining of neck pain.
- For his part, Mr. Munson denied any recollection of either the snowmobile lifting
incident or Claimant’s complaint of neck pain immediately thereafter. While I do not
doubt his failure to recall the event, I find from Claimant’s credible testimony that the
lifting incident likely occurred, following which Claimant likely experienced some
degree of neck pain.
- Claimant did not seek medical attention for his claimed neck injury until February 2014,
almost an entire year after the snowmobile incident. In the intervening months, he visited
a medical provider on only one occasion. This was in May 2013, when he complained to
Katie Driscoll, a physician’s assistant, of nausea and headaches reportedly due to inhaling
fumes at work. As to any cervical pain, Ms. Driscoll’s review of symptoms on that date
specifically states, “Neck – normal range of motion, no tenderness, supple.”
- Mr. Munson credibly testified that between February and November 2013 Claimant gave
no indication that he was suffering from neck pain or that he was restricted in any way
from performing his normal work duties. His productivity and general attitude had
declined as compared to when he was first hired, but Mr. Munson had no reason to
attribute this to any injury-related cause.
- Claimant first made the decision to seek treatment for his neck pain in November 2013,
some eight months after his claimed injury. At hearing, he testified that the reason he did
not do so sooner was because he believed strongly that it was his employer’s
responsibility to cover his medical expenses. “I couldn’t bring myself to pay for it,” he
stated. I am persuaded that Claimant honestly believed he was justified in delaying
treatment on those grounds.
- On November 12, 2013 Claimant approached Mr. Munson and asked whether he recalled
an incident in February 2013 when Claimant hurt his neck while they were unloading a
snowmobile. Mr. Munson replied that he did not. Claimant then advised that he wished
to file a workers’ compensation claim, because he needed medical attention for his
ongoing neck pain.
- Mr. Munson conveyed Claimant’s request via email to Denise Bourassa, Defendant’s
human resources manager, and asked how best to proceed. After conferring with her
manager, Ms. Bourassa advised that because Claimant had not filed an accident report at
the time of his injury, as Defendant’s company policy required, he would have to pay for
medical treatment on his own.
- At formal hearing, Ms. Bourassa testified to her understanding of Defendant’s policy for
reporting work-related injuries. According to her interpretation, employees are required
to do so “immediately,” that is, within 48 hours at most after the injury occurs. If they do
not, company policy requires that they seek medical treatment at their own expense.
Thereafter, if the medical information confirms that the injury was in fact work-related,
then at that point the company will file a First Report of Injury with state authorities.
- I find that Ms. Bourassa’s understanding of Defendant’s policy directly contravenes
Vermont law, which requires an employer to file a First Report of Injury (Form 1) with
the Department within 72 hours of receiving notice or knowledge of a claimed workrelated
injury requiring medical attention. This is true regardless of whether the
employer disputes the facts surrounding the injury and/or its relationship to the claimant’s
employment. 21 V.S.A. §701; Workers’ Compensation Rule 3.0500.2
Medical Treatment and Evaluations
- After learning in November 2013 that Defendant would not agree to cover his medical
expenses, Claimant again delayed seeking treatment for his ongoing neck pain. Finally,
in mid-February 2014 he presented to Melanie Clark, a nurse practitioner, with a
complaint of neck pain that reportedly had begun “about a year ago at work moving a
snowmobile.” Ms. Clark diagnosed cervicalgia. Based on the history Claimant
described, she determined that the February 2013 snowmobile incident was the
“competent medical cause” of his injury. As treatment, she prescribed pain medications
and made referrals for both physical therapy and an orthopedic consult. In the meantime,
noting that Claimant had been able to work without restrictions since his injury, she did
not change his work duties. I find Ms. Clark’s analysis credible.
- Ms. Clark next examined Claimant on June 20, 2014. She reiterated that his complaints
were consistent with the history he had reported, and again recommended both physical
therapy (which Claimant had not yet initiated) and an orthopedic consultation.
Notwithstanding his subjective report of worsening pain, Ms. Clark also reiterated that
Claimant was capable of working without restrictions or limitations.
- Claimant underwent an orthopedic consultation with Dr. Robbins on July 14, 2014.
According to the medical record, he reported the sudden onset of neck pain some two
years previously “as a result of lifting.” X-rays revealed degenerative changes at two
levels of the cervical spine. Dr. Robbins’ clinical impression was of a soft tissue and
posterior element cervical spine injury, with resulting spasm and mechanical
decompensation. Regarding causation, Dr. Robbins stated:
The patient demonstrates muscle reaction to injury that can come from a
range of motion in spine that exceeded [its] intrinsic flexibility. Whether
from an acute event or incremental repeat irritations, it has left the patient
in a state of protective response to the painful stimulus.
2 Effective August 1, 2015 Rule 3.0500 has been amended and is now codified, in substantially similar form, as Rule
- As treatment for Claimant’s symptoms, Dr. Robbins recommended home exercises, ice
and a short course of physical therapy. He described his treatment rationale in this way:
Desensitizing the patient through creating a more normal range of motion
and understanding of good vs. bad pain as long as there is no pathologic
problem (so far not detected), will be the thrust of the initial treatment.
- As for work capacity, consistent with Ms. Clark’s prior determination, Dr. Robbins as
well indicated that Claimant was capable of working full duty, without restrictions.
- I find Dr. Robbins’ analysis credible in all respects, particularly regarding his treatment
rationale. At hearing, Claimant voiced an extreme fear of further injury, stating, “I
choose not to work to not hurt myself further.” Clearly, he would benefit from treatment
that is focused in the manner Dr. Robbins described.
- On December 9, 2014 Claimant returned to Ms. Clark, again complaining of ongoing
neck pain. Defendant having terminated his employment for performance-related issues
in July 2014, by this time Claimant had been unemployed for approximately four months.
- Ms. Clark’s office note was brief, and aside from a cursory notation of tenderness
between Claimant’s shoulder blades, did not reflect any positive findings on objective
examination. Nevertheless, she imposed work restrictions against bending, twisting,
lifting and operating heavy equipment. She also concluded that Claimant would likely
benefit from vocational rehabilitation services. Both of these determinations appear to
have been based almost entirely on Claimant’s subjective report. Thus, Ms. Clark noted,
“[Claimant] feels that this injury has caused him a degree of disability and he is no [sic]
unable to perform the type of work he did previously as a mechanic technician,” and later
in her report, “he feels due to the ongoing neck pain he is unable to perform heavy lifting
- Given that Claimant had not undergone any curative treatment whatsoever at the time of
Ms. Clark’s evaluation, I find premature her recommendation that he pursue vocational
rehabilitation. Similarly, I find that her decision to impose work restrictions that were
neither clearly delineated nor objectively supported significantly weakens her
determination as to work capacity.
- At Defendant’s request, on September 25, 2015 Claimant underwent an independent
medical examination with Dr. Boucher. Dr. Boucher diagnosed myofascial pain, which
in his opinion was not causally related to the alleged February 22, 2013 work injury.
Central to his analysis was the fact that Claimant neither reported nor exhibited any
symptoms of neck pain or injury when his primary care provider examined him in May
2013, Finding of Fact No. 9 supra, and did not complain of neck pain to any medical
provider until almost a year after his injury. From this Dr. Boucher concluded that
Claimant’s neck pain must have developed at some point during the intervening months,
likely as a consequence of age-related degenerative changes in his cervical spine.
- Given the negative findings noted on his primary care provider’s May 2013 examination,
Dr. Boucher determined that even if Claimant had suffered a work-related neck injury in
February 2013, it must have resolved by May. On those grounds, he concluded that
Claimant had reached an end medical result, with no permanent impairment and no need
for additional medical treatment. As for work capacity, Dr. Boucher found “no objective
reason for any work restrictions.”
- At hearing, Claimant disputed Dr. Boucher’s analysis. He theorized that the reason the
May 2013 medical record did not reflect any signs or symptoms of neck pain may have
been because he was focused on another medical issue that was of greater concern to him
at the time. He denied ever having suffered from, or treated for, neck pain in the past, an
assertion that the medical records and the witnesses who testified on his behalf (his
mother, Ms. VonHaggin, his friend, Mr. Jones-Fote, and another acquaintance, Nicole
Stagnitti) all corroborated. Notwithstanding the delay in seeking treatment, he credibly
testified that he has been experiencing worsening neck pain ever since the February 2013
snowmobile incident. Again, Ms. VonHaggin, Mr. Jones-Fote and Ms. Stagnitti all
credibly corroborated this testimony.
- I find that the mere fact that the May 2013 medical record does not note any positive
cervical findings does not justify Dr. Boucher’s conclusion that Claimant’s neck injury
must have resolved by then. To the contrary, based on both Claimant’s and his
corroborating witnesses’ credible testimony, I find that he likely was continuing to
experience symptoms causally related to the February 2013 snowmobile incident at that
time. For that reason, and given that he had not undertaken any treatment at all by that
date, I find unpersuasive Dr. Boucher’s determinations as to both end medical result and
the need for additional treatment.
- As for Dr. Boucher’s determination that Claimant was able to work without restrictions,
consistent with my ruling on Defendant’s previously filed Motion for Summary
Judgment, n.1 supra, I concur that this was the case at least up until December 9, 2014.
The only evidence of work capacity after that comes from Ms. Clark’s note of that date,
which imposed generalized restrictions with little if any objective support, Finding of
Fact No. 23 supra. I have already found her determination unpersuasive on those
grounds, Finding of Fact No. 24 supra.
- Presumably due to lack of funds, Claimant has not sought any treatment for his neck pain
since Ms. Clark’s December 2014 evaluation. Aside from a few odd jobs, he has not
worked since Defendant terminated his employment in July 2014. For a time thereafter,
he applied for and received unemployment compensation, and in conjunction with those
benefits he conducted a job search, which proved unsuccessful. Given the extent of his
self-perceived functional restrictions and extreme fear of reinjury, I find that these efforts
were likely quite limited.
- On a typical day, Claimant awakens, has breakfast, and then drives to a friend’s house to
“hang out,” play with remote control cars and talk. He spends considerable time on his
computer, researching legal issues related to his workers’ compensation claim. He is able
to drive, sit and walk, albeit with constant nagging neck pain. He can lift a gallon of
milk, but described a sharp shooting pain when attempting to lift heavier objects, such as
the “suitcase” containing his workers’ compensation documents. During the formal
hearing, which lasted for almost three hours, he appeared to sit comfortably and did not
exhibit any plainly visible pain behaviors.
- Although the record is not entirely clear, it appears that on or about March 14, 2014
Claimant filed a claim for workers’ compensation benefits with the State of New York
Workers’ Compensation Board. In response, on March 17, 2014 the Board mailed a
“Notice of Case Assembly” to both parties, in which it requested further information
from each of them. It does not appear from the record that Claimant responded to this
- Defendant’s human resources manager, Ms. Bourassa, responded to the Board’s request
by letter dated March 27, 2014. In it, she stated that Defendant was reporting Claimant’s
claim as a “Negative Report of Injury.” Ms. Bourassa referenced Claimant’s November
2013 conversation with Mr. Munson as the date when Defendant first became aware of
Claimant’s claimed work injury, Finding of Fact No. 12 supra. Citing Defendant’s injury
reporting policy, Finding of Fact No. 14 supra, she stated, “We (Ronnie’s [Cycle Sales of
Bennington, Inc.] management and Human Resources) advised [Claimant] to seek
medical attention on his own accord because the claim was not made available at time of
- Concurrent with its response to the State of New York Workers’ Compensation Board,
Defendant completed a Vermont First Report of Injury (Form 1), and filed it with the
Department on or about March 31, 2014. Attached to the filing was a copy of Ms.
Bourassa’s March 27th correspondence to the State of New York Workers’ Compensation
- Defendant filed its Denial of Workers’ Compensation Benefits by Employer or Carrier
(Form 2) on or about April 10, 2014. It cited various grounds for denying Claimant’s
claim, including that he had failed to give timely notice of his injury under 21 V.S.A.
- 656 and also that he had not produced sufficient medical evidence to substantiate that
his injury was work-related.3
- Claimant appealed Defendant’s claim denial by way of a Notice and Application for
Hearing (Form 6), filed on September 22, 2014 and supplemented on January 23, 2015.
After informal dispute resolution efforts failed, the claim was forwarded to the formal
3 Defendant also questioned whether Vermont had jurisdiction over Claimant’s claim, given that he already had filed
a claim for benefits in New York. It appears to have abandoned this defense, presumably because Claimant did not
pursue his New York claim.
CONCLUSIONS OF LAW:
- In workers’ compensation cases, the claimant has the burden of establishing all facts
essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the injury and the employment. Egbert v. The Book Press,
144 Vt. 367 (1984). There must be created in the mind of the trier of fact something
more than a possibility, suspicion or surmise that the incidents complained of were the
cause of the injury and the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
- Claimant here seeks a determination that he suffered a compensable work-related neck
injury while moving a snowmobile on or about February 22, 2013. As a consequence of
that injury, he seeks indemnity, medical and vocational rehabilitation benefits.
- I have already found credible Claimant’s testimony as to the timing of his neck injury and
the manner in which it occurred. I also have found credible Ms. Clark’s determination
that the symptoms he experienced subsequently were causally related to the February
2013 snowmobile incident as he described it. I thus conclude that his neck injury arose
out of and in the course of his employment, and is therefore compensable.
- Defendant asserts that even if the injury occurred as Claimant says it did, his claim for
benefits should be barred for failure to give timely notice to his employer, as required
under 21 V.S.A. §656(a). That statute states:
- 656. – Notice of injury and claim for compensation
(a) A proceeding under the provisions of this chapter for compensation
shall not be maintained unless a notice of the injury has been given to the
employer as soon as practicable after the injury occurred, and unless a
claim for compensation with respect to an injury has been made within six
months after the date of the injury.
- Section 656(a) must be read in conjunction with §660(a), however, which states:
- 660. Sufficiency of notice of injury.
(a) A notice given under the provisions of this chapter shall not be held
invalid or insufficient by reason of any inaccuracy in stating the time,
place, nature or cause of the injury, or otherwise, unless it is shown that
the employer was in fact misled to the injury as a result of the inaccuracy.
Want of or delay in giving notice, or in making a claim, shall not be a bar
to proceedings under the provisions of this chapter, if it is shown that the
employer, the employer’s agent, or representative had knowledge of the
accident or that the employer has not been prejudiced by the delay or
want of notice (emphasis added).
- Notably, the “knowledge” that §660(a) requires in order to excuse what would otherwise
be an untimely notice under §656(a) is not of the injury itself, but rather of the
“accident.” In the workers’ compensation context, an “accident” is defined as an
“unlooked-for mishap or . . . untoward event which is not expected or designed.”
Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35 (1980) (internal citations omitted).
- Reading both sections together, while §656(a) thus imposes a six-month deadline by
which an employee must notify his or her employer of a claimed work-related injury,
- 660(a) allows for the deadline to be waived if the employer was already aware of the
circumstances giving rise to it.
- The “accident” here consisted of Claimant’s and Mr. Munson’s attempt to unload a
snowmobile from Defendant’s truck on or about February 22, 2013. Although Mr.
Munson no longer recalls the incident, as he was an active participant in the event I
conclude that he knew of its occurrence at the time. Mr. Munson was both Claimant’s
direct supervisor and his liaison to Defendant’s human resources manager for injury
reporting purposes, and therefore it is reasonable to impute his knowledge to Defendant.
I thus conclude that the “knowledge of the accident” requirement has been satisfied.
Claimant’s failure to give notice of his injury within six months is excused under
- Claimant also meets the second ground for excusing his failure to give timely notice
under §660 – that Defendant has not been prejudiced by the delay. In the workers’
compensation context, for an injured worker to establish the absence of prejudicial delay
typically requires a showing first, “that the employer was not hampered in making its
factual investigation and preparing its case, and second, by showing that the claimant’s
injury was not aggravated by reason of the employer’s inability to provide early medical
diagnosis and treatment. M.P. v. NSK Steering Systems America, Inc., Opinion No. 14-
07WC (May 1, 2007) (internal citations omitted).
- The concept of prejudicial delay thus implies that an employer who has not been given
timely notice of its employee’s claimed work injury would have responded differently
had it only known sooner. Presumably, it would have fulfilled its statutory obligation to
report, investigate and, if appropriate, provide medical evaluation and treatment much
earlier in the process and to much greater effect, such that different results would have
- Under the particular circumstances of this case, there is no basis for presuming that more
timely notice would have led Defendant to a different result, however. According to Ms.
Bourassa’s undisputed testimony, Finding of Fact No. 14 supra, unless Claimant had
notified Mr. Munson within 48 hours of the February 2013 snowmobile incident, she
would have reacted exactly as she did, by refusing to report his injury and instead leaving
him to his own devices. No matter when he subsequently gave notice – whether months,
weeks or even just days later – his claim still would not have been investigated or
adjusted properly, and he likely still would not have been offered appropriate medical
evaluation and treatment.
- That Defendant imposed on its employees an injury reporting policy that contravenes
both the letter and spirit of Vermont’s workers’ compensation law should work against it,
not in its favor. Under the circumstances, it is entirely appropriate that Claimant’s failure
to give timely notice of his injury be excused, as §660(a) allows. I conclude that his
claim is not barred.
- Claimant having met his burden of proving that he suffered a compensable neck injury as
a consequence of the February 2013 snowmobile incident, it remains to determine the
extent to which he has proven his entitlement to medical, indemnity and/or vocational
- Consistent with Dr. Robbins’ and Ms. Clark’s evaluations, I conclude that Claimant
likely suffered a soft tissue and posterior element cervical spine injury, which has
resulted in ongoing neck pain. As he has undergone almost no focused treatment to date,
I further conclude that he has not yet reached an end medical result for his injury. Given
the significant gap in time since he was last examined, I anticipate that he will need to
undergo additional primary care and/or orthopedic evaluations prior to developing an
updated treatment plan. Nurse case management services may assist in allaying his fear
of re-injury so that he can be appropriately compliant with treatment recommendations.
So long as the treatments proposed are reasonable under 21 V.S.A. §640(a), Defendant
will be obligated to pay for them.
- It is premature to speculate whether Claimant will be entitled to permanent partial
disability compensation referable to his work injury, as he has not even resumed
treatment, much less reached an end medical result. In accordance with Workers’
Compensation Rule 10.1200, when he does so Defendant will be obligated to investigate
the extent, if any, of his permanent impairment and pay benefits accordingly.
- I have previously determined that Claimant is not entitled to temporary wage replacement
benefits for any period of time prior to December 9, 2014. Vohnoutka v. Ronnie’s Cycle
Sales of Bennington, Inc., Opinion No. 01-16WC (January 25, 2016). As for the period
of time from that date forward, I have found unpersuasive Ms. Clark’s determination of
disability, either total or partial. I therefore conclude that Claimant has failed to establish
his entitlement to temporary disability benefits at this time.
- Whether Claimant can produce sufficient credible evidence of temporary disability from
this date forward remains to be seen. As he resumes treatment, it may be reasonable for
him to undergo a functional capacity evaluation so that the extent, if any, of his current
disability can be objectively determined. Even so, the fact remains that he was able to
work full time and full duty for more than a year after his injury occurred, and only
stopped working when his employment terminated for unrelated reasons. Under those
circumstances, it may be difficult for him to establish a causal connection between his
compensable injury and any current disability, whether total or partial. In any event, this
issue is not before me now. Should Claimant wish to make a claim for such benefits in
the future, he should notify Defendant and if necessary, pursue informal dispute
- Similarly, I conclude from the credible evidence that Claimant has failed to establish his
entitlement to vocational rehabilitation services. With resumed treatment and formal
functional capacity testing, his need for these services will likely be clarified. But again,
under the circumstances it may be difficult for him to establish the required causal link
between his work injury and any current vocational limitations.
Based on the foregoing, Defendant is hereby ORDERED to pay:
- All reasonable medical services and supplies referable to treatment of Claimant’s
compensable soft tissue and posterior element cervical spine injury with resulting
cervicalgia, in accordance with 21 V.S.A. §640(a); and
- To the extent that upon reaching an end medical result Claimant is determined to have
suffered a ratable permanent impairment referable to his compensable soft tissue and
posterior element cervical spine injury with resulting cervicalgia, permanent partial
disability benefits in accordance with 21 V.S.A. §648.
DATED at Montpelier, Vermont this 7th day of November 2016.
Anne M. Noonan
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.