Tony Vohnoutka v. Ronnie’s Cycle Sales of Bennington Opinion No. 01-16WC

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STATE OF VERMONT

DEPARTMENT OF LABOR

Tony Vohnoutka v. Ronnie’s Cycle Sales of Bennington, Inc

Opinion No. 01-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. FF-00938

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

APPEARANCES:

Claimant, pro se

William Blake, Esq., for Defendant

ISSUES PRESENTED:

  1. Is Claimant’s claim for workers’ compensation benefits barred as a matter of law

for failure to give timely notice of his alleged work-related injury as required by

21 V.S.A. §656(a)?

  1. Is Defendant entitled to judgment in its favor as a matter of law on the question

whether Claimant suffered a compensable work-related injury on or about

February 22, 2013?

  1. Is Defendant entitled to judgment in its favor as a matter of law on the question

whether Claimant is entitled to workers’ compensation benefits causally related to

his alleged February 22, 2013 work injury?

EXHIBITS:1

Claimant’s Exhibit 1: Affidavit of Tony Vohnoutka, January 9, 2015

Claimant’s Exhibit 2: Office note and referrals (Melanie Clark, NP), 2/10/2014

Claimant’s Exhibit 3: Office note and referrals (Melanie Clark, NP), 6/20/2014

1 Claimant failed to file a separate and concise statement of contested facts in response to Defendant’s

Motion for Summary Judgment, as is required by V.R.C.P. 56(c)(1)(A), and his memorandum in opposition

was non-responsive to the issues presented. Given both Claimant’s pro se status and the relatively informal

nature of the formal hearing process, Workers’ Compensation Rule 17.1100, in ruling on Defendant’s

motion I have considered various documents, identified herein as Claimant’s exhibits, that were previously

filed with the Department, as is permitted by V.R.C.P. 56(c)(3).

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Claimant’s Exhibit 4: Doctor’s progress report (Dr. Maggio), 6/25/2014

Claimant’s Exhibit 5: Doctor’s initial report (Dr. Maggio), 6/26/2014

Claimant’s Exhibit 6: Office note (Melanie Clark, NP), 12/9/2014

Defendant’s Exhibit A: Letter from Denise Bourassa, March 27, 2014

Defendant’s Exhibit B: Timecards, March 4 – July 18, 2013; various tardy/absence

reports; documented warnings; employee’s statement

verifying receipt of company handbook

Defendant’s Exhibit C: Affidavit of Dave Munson, March 18, 2015

Defendant’s Exhibit D: Office note (Dr. Robbins), 7/14/2014

Defendant’s Exhibit E: Independent medical evaluation report (Dr. Boucher),

9/25/2015

FINDINGS OF FACT:

Considering the evidence in the light most favorable to Claimant as the non-moving

party, State v. Delaney, 157 Vt. 247, 252 (1991), and taking judicial notice of all relevant

forms contained in the Department’s claim file, I find the following facts:

  1. Claimant worked for Defendant, a retailer of recreational vehicles, as a service

technician. First Report of Injury (Form 1), March 27, 2014.

Claimant’s Alleged February 2013 Work Injury, Subsequent Medical Course and

Employment Status

  1. On or about November 12, 2013 Claimant informed Defendant’s service manager,

Dave Munson, that he wished to seek medical treatment for an injury he alleged

he had suffered while at work in January or February 2013. Letter from Denise

Bourassa, Defendant’s Exhibit A.

  1. More specifically, Claimant asserts by affidavit that he injured his neck on

February 22, 2013, while helping Mr. Munson unload a snowmobile from the

back of a truck. Affidavit of Tony Vohnoutka, Claimant’s Exhibit 1. He further

asserts that Mr. Munson later acknowledged that the incident had occurred,

although he recalled it as having taken place at a later date. Id.

  1. For his part, Mr. Munson denies any knowledge or recollection of the incident

Claimant alleged, or of any other work-related accident or injury occurring in

January or February 2013. According to his affidavit, prior to November 12,

2013 Claimant had never indicated either that he had suffered an injury or that he

was unable to perform his routine job duties. Affidavit of Dave Munson,

Defendant’s Exhibit C. Nor had Mr. Munson observed anything in Claimant’s

performance that was suggestive of an injury. Id.

  1. Upon learning of Claimant’s claim that he had suffered a work-related injury,

Defendant’s human resources representative, Denise Bourassa, advised him “to

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seek medical attention on his own accord because the claim was not made

available at [the] time of the incident.” As support for Defendant’s position, Ms.

Bourassa cited language from Defendant’s Company Policy Handbook requiring

that “any accident on the job, no matter how small, must be reported immediately

to your supervisor.” Defendant’s Exhibit A.

  1. The medical records do not document any treatment for neck pain or injury until

February 10, 2014. On that date, Claimant 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

lifting incident was the “competent medical cause” of his injury. As treatment,

Ms. Clark 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. Melanie Clark office note, Claimant’s Exhibit 2.

  1. 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. Melanie Clark office note, Claimant’s Exhibit 3; see

also Doctor’s Progress Report, Claimant’s Exhibit 4, and Doctor’s Initial Report,

Claimant’s Exhibit 5.

  1. Claimant underwent an orthopedic consultation with Dr. Robbins on July 14,
  2. According to the medical record, he reported the sudden onset of neck pain

some two years previously “as a result of lifting.” Dr. Robbins’ clinical

impression was of a soft tissue and posterior element cervical spine injury, with

resulting spasm and mechanical decompensation. I cannot discern from the

medical record whether he attributed these conditions to an acute event or to

“incremental repeat irritations,” whether work-related or not. Dr. Robbins office

note, Defendant’s Exhibit D.

  1. As treatment for Claimant’s symptoms, Dr. Robbins recommended home

exercises, ice and a short course of physical therapy. As for work capacity,

consistent with Ms. Clark’s prior determination, he too indicated that Claimant

was capable of working full duty, without restrictions. Id.

  1. In August 2014 Defendant terminated Claimant’s employment “due to

increasingly substandard performance.” Affidavit of Dave Munson, Defendant’s

Exhibit C.

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  1. Between February 22, 2013 and August 2014, Claimant worked full time and

performed his regular duties. Affidavit of Dave Munson, Defendant’s Exhibit C;

timecards and absence reports, Defendant’s Exhibit B.

  1. On December 9, 2014 Claimant returned to Ms. Clark, again complaining of

ongoing neck pain. Ms. Clark reported that Claimant felt that his injury “has

caused him a degree of disability and he is [now] unable to perform the type of

work he did previously as a mechanic technician.” As treatment, she referred him

for chiropractic evaluation. She also expressed that vocational rehabilitation

would be beneficial, “as he feels due to the ongoing neck pain he is unable to

perform heavy lifting anymore.” With that in mind, Ms. Clark determined that as

of December 9th Claimant was able to work, but with limitations against bending,

twisting, lifting and operating heavy equipment. Melanie Clark office note,

Claimant’s Exhibit 6.

  1. 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. Dr. Boucher further determined that Claimant

had reached an end medical result, with no permanent impairment and no need for

additional medical treatment. As for work capacity, he found “no objective

reason for any work restrictions.”

  1. Following Defendant’s termination of his employment, Claimant applied for and

received unemployment compensation, but the record does not indicate for how

long. As of this date, he remains unemployed.

Procedural History

  1. Defendant filed a First Report of Injury (Form 1) with the Department on or about

April 10, 2014. It denied the claim on the same date, on the grounds that the

injury Claimant alleged had not arisen in the course and scope of his employment

and was not causally related thereto. Denial of Workers’ Compensation Benefits

by Employer or Carrier (Form 2), April 9, 2014.

  1. 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 hearing docket.

DISCUSSION:

  1. In order to prevail on a motion for summary judgment, the moving party must

show that there exist no genuine issues of material fact, such that it is entitled to a

judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First

Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non5

moving party is entitled to the benefit of all reasonable doubts and inferences.

State v. Delaney, 157 Vt. 247, 252 (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. Heritage 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, ¶15.

  1. Defendant here seeks summary judgment on three grounds. First, it asserts that

Claimant’s claim for workers’ compensation benefits is barred as a matter of law

because he failed to give timely notice of his alleged work-related injury, as

required by 21 V.S.A. §656(a). Second, it asserts that Claimant has failed to

produce sufficient evidence to establish a prima facie case that he suffered a

compensable work injury on or about February 22, 2013. Last, and in the same

vein, it asserts that Claimant has failed to produce sufficient evidence to establish

a prima facie case entitling him to the benefits available under Vermont’s

workers’ compensation law.2

Timely Notice

  1. Vermont’s workers’ compensation statute requires that a worker give notice of an

alleged work-related injury to his or her employer “as soon as practicable” after

the injury occurs, and that a claim for compensation be made within six months

thereafter. 21 V.S.A. §656(a). These requirements are not absolute, however.

Section 660(a) excuses the worker from them “if it is shown that the employer,

the employer’s agent, or representative had knowledge of the accident . . ..”

  1. Defendant here claims that Claimant failed to give timely notice of his alleged

injury and resulting claim for benefits. True, this is what Claimant’s supervisor

has averred, Finding of Fact No. 4 supra, but Claimant has sworn otherwise,

Finding of Fact No. 3 supra. Their conflicting statements thus present genuine

issues of material fact, which cannot be resolved on summary judgment.

Compensability

  1. To establish a compensable claim under Vermont’s workers’ compensation

statute, a claimant must show both that the accident giving rise to his or her injury

occurred “in the course of the employment,” and that it “arose out of the

2 I acknowledge that the only benefit Claimant specifically claimed in his September 22, 2014 Notice and

Application for Hearing was for permanent total disability benefits. However, given both his pro se status

and the relatively informal nature of these proceedings, Workers’ Compensation Rule 17.1100, I consider

his claim to encompass any other benefits to which he might be entitled should his injury be deemed

compensable. Having participated in numerous status conferences at which indemnity, medical and

vocational rehabilitation benefits were discussed, I presume that Defendant’s counsel is well aware of the

actual scope of Claimant’s demands.

6

employment.” 21 V.S.A. §618(a)(1); Miller v. IBM Corp., 161 Vt. 213, 214

(1993).

  1. An injury occurs “in the course of” employment “when it occurs within the period

of time when the employee was on duty at a place where the employee was

reasonably expected to be while fulfilling the duties of [the] employment

contract.” Miller, supra at 215, quoting Marsigli’s Estate v. Granite City Auto

Sales, Inc., 124 Vt. 95, 98 (1964).

  1. An injury “arises out of” the employment “if it would not have occurred but for

the fact that the conditions and obligations of the employment placed the claimant

in the position where claimant was injured.” Shaw v. Dutton Berry Farm, 160 Vt.

594, 599 (1993) (emphasis in original).

  1. Putting the two prongs of the compensability test together, the “in the course of”

requirement generally “tests work-connection as to time, place and activity,” Cyr

  1. McDermott’s, Inc., 2010 VT 19, ¶13 (internal quotations omitted), while the

“arising out of” component establishes the required causal connection, id. at ¶10.

In order to establish entitlement to benefits, it is the claimant’s burden to prove

both components of the compensability test. Id. at ¶9 (internal citations omitted).

  1. Defendant here asserts that it is entitled to summary judgment on the grounds that

Claimant has failed to produce evidence sufficient to raise genuine issues of

material fact as to either element of compensability. I disagree. As to the first

element, the “time, place and activity” component, Claimant has sworn in his

affidavit that his injury occurred while moving a snowmobile at work, Finding of

Fact No. 3 supra. That Mr. Munson has sworn otherwise, Finding of Fact No. 4

supra, establishes only that genuine issues of material fact exist. Summary

judgment on this issue is therefore inappropriate.

  1. Similarly, determining the second element of compensability will require me to

evaluate whether Ms. Clark’s opinion on medical causation, as reflected in her

office notes, Finding of Fact Nos. 6, 7 and 12 supra, is more compelling than that

of Defendant’s expert, Dr. Boucher, Finding of Fact No. 13 supra. Again,

genuine issues of material fact have been presented, sufficient to defeat summary

judgment in Defendant’s favor.

Entitlement to Benefits

  1. Last, I consider whether summary judgment in Defendant’s favor is appropriate as

to any of the benefits Claimant seeks. Establishing both components of the

compensability test is a necessary prerequisite to every workers’ compensation

benefit, 21 V.S.A. §618(a)(1). With that in mind, and for the reasons stated

above, genuine issues of material fact exist as to Defendant’s responsibility for

Claimant’s medical treatment under 21 V.S.A. §640(a), and also as to Claimant’s

entitlement to vocational rehabilitation benefits under 21 V.S.A. §641. Only after

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I resolve the discrepancies between Claimant’s and Mr. Munson’s testimony

regarding the “in the course of” component, and those between Ms. Clark and Dr.

Boucher on the “arising out of” component, will I be able to determine to what

extent, if any, Defendant is responsible for providing these benefits.

  1. Given the record before me, I must evaluate Claimant’s claim for temporary

disability benefits in two parts – before and after December 9, 2014. Prior to that

date, Ms. Clark, Dr. Robbins and Dr. Boucher each determined that he was

capable of working full time and full duty, with no activity restrictions

whatsoever. Claimant has not proffered any evidence to the contrary, despite

having had ample opportunity to do so. He thus has failed to raise a genuine issue

of material fact, and for that reason, I conclude as a matter of law that he is not

entitled to temporary disability benefits for any period prior to December 9, 2014.

See, e.g., Doe v. Doe, 172 Vt. 533 (2001); Poplaski v. Lamphere, 152 Vt. 251,

254-255 (1989) (summary judgment mandated where, after adequate time for

discovery, a party fails to make a sufficient showing to establish the existence of

an element essential to its case).

  1. After December 9, 2014 Ms. Clark imposed activity restrictions, Finding of Fact

No. 12 supra, which if found credible might entitle Claimant to temporary

disability benefits from that date forward. Summary judgment on this issue is

therefore inappropriate.

Summary

  1. The sole purpose of summary judgment review is to determine if a genuine issue

of material fact exists. If such an issue does exist, it cannot be adjudicated in the

summary judgment context, no matter how unlikely it seems that the party

opposing the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973);

Southworth v. State of Vermont Agency of Transportation, Opinion No. 45-08WC

(November 12, 2008). However tenuous or unlikely the evidence in support of

Claimant’s claims for medical and vocational rehabilitation benefits are, he is

entitled nonetheless to present his case and litigate the fact questions that surround

them. The same is true with respect to his claim for temporary disability benefits

after December 9, 2014. Summary judgment against him on these issues is not

appropriate. Bohannon v. Town of Stowe, Opinion No. 03-14WC (February 26,

2014).

  1. Because no genuine issues of material fact exist as to Claimant’s claim for

temporary disability benefits for any period prior to December 9, 2014, summary

judgment on this issue is appropriate.

ORDER:

Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and

DENIED IN PART, as follows:

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  1. Summary judgment in Defendant’s favor is GRANTED as to Claimant’s

claim for temporary disability benefits for any period prior to December 9,

2014, and Claimant’s claim for such benefits is hereby DENIED;

  1. Summary judgment in Defendant’s favor is DENIED on the question

whether Claimant’s claim for workers’ compensation benefits is barred for

failure to give timely notice as required by 21 V.S.A. §656(a);

  1. Summary judgment in Defendant’s favor is DENIED on the question

whether Claimant suffered a compensable work-related injury on or about

February 22, 2013;

  1. Summary judgment in Defendant’s favor is DENIED as to Claimant’s

claim for medical, vocational rehabilitation and/or temporary disability

benefits for any period(s) after December 9, 2014.

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

_________________________

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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