Victoria Hilliker v. Synergy Solar, Inc Opinion No. 12-16WC

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STATE OF VERMONT

DEPARTMENT OF LABOR

Victoria Hilliker v. Synergy Solar, Inc. Opinion No. 12-16WC

  1. By: Jane Woodruff, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. GG-01096

OPINION AND ORDER

Hearing held in Montpelier, Vermont on December 1, 2015

Record closed on January 13, 2016

APPEARANCES:

Vincent Illuzzi, Esq., for Claimant

William Blake, Esq., for Defendant

ISSUE PRESENTED:

  1. Does jurisdiction over Claimant’s March 27, 2015 work-related injury lie in

Vermont?

  1. If yes, do principles of full faith and credit, comity, waiver and/or estoppel

preclude her from seeking workers’ compensation benefits here?

EXHIBITS:

Claimant’s Exhibit 1: Massachusetts Division of Industrial Accidents Notice of

Conciliation, November 19, 2015

Claimant’s Exhibit 2: EFT form, Noncompetition and Nondisclosure Agreement, IRS

Form W4, USCIS Form I-9

Claimant’s Exhibit 3: Email from Emily Beaulieu to Claimant with attached “new hire

paperwork,” August 10, 2015

Claimant’s Exhibit 4: Check payable to Claimant, December 23, 2014

Claimant’s Exhibit 5: Signed receipt for employee safety handbook, January 14, 2015

Claimant’s Exhibit 6: Employee handbook receipt/acknowledgment, January 14, 2015

Claimant’s Exhibit 7: Text messages to/from Claimant, December 19, 2014

Defendant’s Exhibit A: Text messages to/from Claimant, December 18, 2014 through

August 25, 2015

Defendant’s Exhibit B: Correspondence from Massachusetts Department of Industrial

Accidents, June 1, 2015

2

CLAIM:

All workers’ compensation benefits to which Claimant proves her entitlement under Vermont

law

Costs and attorney fees pursuant to 21 V.S.A. §678

FINDINGS OF FACT:

  1. At all times relevant to these proceedings, Claimant was an employee and Defendant was

her employer as those terms are defined in Vermont’s Workers’ Compensation Act.

  1. Judicial notice is taken of all relevant forms contained in the Department’s file relating to

this claim.

  1. Defendant is a solar energy contractor with principle business offices in Plymouth,

Massachusetts. It erects solar arrays around the country. In November 2014, Dan

Clinton was Defendant’s partner and co-owner.

  1. Claimant is a resident of Newport, Vermont. She has prior experience erecting solar

panels in Barton, Vermont. In November 2014, she learned through her friend, Kristi

Powers, that Defendant might be hiring additional employees. Ms. Powers told Claimant

that she would try to get her a job there, so that the two of them could drive to worksites

together. To that end, she provided Claimant with Mr. Clinton’s telephone number.

Claimant’s Initial Contact with Mr. Clinton

  1. Claimant first spoke with Mr. Clinton, who was in Massachusetts at the time, by

telephone on November 26, 2014, a call that she initiated from her home in Vermont.

According to her credible testimony, during this call Mr. Clinton offered her employment

on the following terms: wages at the rate of $15.00 per hour, $25.00 per diem for food,

paid wages for travel time between her home in Vermont and her assigned jobsites and

paid hotel accommodations when necessary. Mr. Clinton further explained that he would

contact her when the next job became available.

  1. There being no evidence of any subsequent negotiation between the parties, I find that

Claimant accepted the terms of employment exactly as Mr. Clinton proposed them during

their November 26, 2014 telephone conversation.

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  1. On December 9, 2014, Ms. Powers telephoned Claimant to advise that the two of them

had been assigned to work on Defendant’s next job in Sheffield, Massachusetts. The

following day, December 10, 2014, Claimant received an email from Emily Beaulieu,

Defendant’s administrative assistant. The email was entitled, “New Employee

Paperwork,” and read as follows:

Hi Victoria!

Welcome aboard! Attached is all of your new hire paperwork. Please

complete them and scan and email them back to me. If you don’t have

access to a scanner, you can throw them in the mail to me.

Any questions, don’t hesitate to call/email. Thanks!!

  1. Attached to Ms. Beaulieu’s email were the following documents: Defendant’s

Noncompetition and Nondisclosure Agreement; USCIS Form I-9 Employment Eligibility

Verification; IRS Form W-4; and an Electronic Funds Transfer (EFT) Form.

  1. The instructions for completing the Form I-9, which were also appended to Ms.

Beaulieu’s email, specifically state:

Employers must complete Form I-9 to document verification of the

identity and employment authorization of each new employee (both citizen

and noncitizen) hired . . . to work in the United States (emphasis supplied).

Newly hired employees must complete and sign Section 1 of Form I-9 no

later than the first day of employment. Section 1 should never be

completed before the employee has accepted a job offer (italicized

emphasis supplied; bolded emphasis in original).

Employers may not ask an individual to complete Section 1 before he or

she has accepted a job offer (emphasis supplied).

  1. I find that Ms. Beaulieu’s December 10, 2014 email evidences Defendant’s

understanding that Claimant had accepted its job offer at least as of that date.

Claimant’s First Job Assignment and In-Person Meeting with Mr. Clinton

  1. On December 15, 2014 Claimant and Ms. Powers traveled together from Orleans County,

Vermont to Sheffield, Massachusetts so that they could start work the next day on

Defendant’s solar project. Upon arrival, they checked into the motel at which Defendant

had arranged for them to stay. They began work at the Sheffield project the next day,

December 16, 2014.

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  1. Claimant credibly testified that she first met Mr. Clinton on either her first or second day

at the Sheffield jobsite. According to both hers’ and Mr. Clinton’s accounts, the meeting

was brief. Mr. Clinton credibly recalled telling Claimant to submit her new employee

paperwork as soon as possible, so that Defendant could add her to its payroll. Neither he

nor Claimant testified to any further negotiation regarding the terms of Claimant’s

employment during this meeting.

  1. Ms. Powers credibly testified that she saw Claimant complete her new employee

paperwork while in their hotel room. Claimant transmitted the documents to Mr. Clinton

via her cell phone on December 18, 2014. According to Claimant, this was the second

time she had filled out and submitted the documents; she recalled that initially she had

completed and emailed them to Ms. Beaulieu while still in Vermont. Ms. Beaulieu left

Defendant’s employ at around this time, so possibly the first set of documents were lost

when her email account was closed.

  1. Claimant received her first wages from Defendant by way of a business check in the

amount of $862.50, dated December 23, 2014. Because she had not yet been entered into

Defendant’s payroll system, the check stub did not indicate how that amount was

calculated. However, Claimant credibly testified that the amount paid was consistent

with what she calculated was due for (a) her travel time to and from Vermont; (b) a

$25.00 per diem; and (c) her hourly wages while on the jobsite.

  1. After completing the Sheffield job, Claimant worked for Defendant on a project in

Maryland. Her third assignment was at a jobsite in Boxborough, Massachusetts. On

each job, Defendant paid for her travel time to and from Vermont, at her agreed-upon

hourly wage.

Claimant’s Work-Related Injury and Massachusetts Workers’ Compensation Claim

  1. On March 27, 2015 Claimant injured her ankle while working at Defendant’s

Boxborough project. Defendant filed an Employer’s First Report of Injury or Fatality

(Form 101) with the Massachusetts Department of Industrial Accidents, accepted the

injury as compensable and began paying both indemnity and medical benefits in

accordance with Massachusetts’ workers’ compensation statute.

  1. Immediately after her injury, Claimant received emergency treatment at a hospital in

Massachusetts. Later, Defendant’s workers’ compensation insurance adjuster arranged

for her care to be transferred to Dartmouth-Hitchcock Medical Center in New Hampshire,

as that facility was closer to her home in Newport, Vermont. Claimant underwent

surgery at DHMC and later, physical therapy in Newport.

  1. Claimant was disabled from working as a consequence of her injury for approximately

nine months, during which time Defendant paid both temporary disability and medical

benefits in accordance with Massachusetts law. She has since returned to work for

another employer.

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  1. Claimant’s Massachusetts workers’ compensation claim was assigned to the Department

of Industrial Accidents’ Springfield, Massachusetts office. This is a four or five-hour

drive from her Newport, Vermont home. Claimant credibly testified that she would not

be able to participate in any hearings connected to her claim there, because traveling that

distance was too onerous for her. While her claim remains open, there is no evidence of

any pending dispute regarding her entitlement to benefits in Massachusetts.

CONCLUSIONS OF LAW:

  1. The disputed issue in this claim is whether, having already accepted workers’

compensation benefits for her work-related injury in accordance with Massachusetts’

law, Claimant can now pursue a claim for supplemental benefits under Vermont’s

workers’ compensation law. To resolve this question, I must consider first, whether the

facts support a statutory basis for asserting jurisdiction in Vermont, and second, whether

legal principles of full faith and credit, comity, waiver and/or estoppel should operate to

bar Claimant from receiving a supplemental award here.

Statutory Basis for Jurisdiction under Vermont Law

  1. Vermont’s workers’ compensation statute provides four separate avenues for asserting

jurisdiction over an injured worker’s claim for benefits – one based on whether the

claimant’s employment is covered here, 21 V.S.A. §616, two based on whether he or she

was hired here or in another state, 21 V.S.A. §§619, 620, and one based on the parties’

agreement to be bound by Vermont law, 21 V.S.A. §623.

  1. The parties’ primary focus in this claim is on whether Claimant was or was not hired in

Vermont. If she was, then jurisdiction attaches here under 21 V.S.A. §619:

If a worker who has been hired in this state receives personal injury by

accident arising out of and in the course of such employment, he or she

shall be entitled to compensation according to the law of this state even

though such injury was received outside of this state.

See, e.g., Letourneau v. A.N. Deringer, 2008 VT 106 (noting that Vermont’s workers’

compensation statute confers jurisdiction under §616(a) for workers who are employed

here, and under §619 for workers who are hired here); Flores-Diaz v. Letourneau

Drywall, LLC et al., Opinion No. 10-14WC (July 25, 2014).

  1. As is the case generally, the place of a hiring contract is “where the last act essential to its

completion was done.” Chase Commercial Corp. v. Barton, 153 Vt. 457, 461 (1990),

quoting West-Nesbitt, Inc. v. Randall, 126 Vt. 481, 483 (1967). And while a completed

contract “need not contain each and every contractual term, it must contain all of the

material and essential terms” in order to be binding. Evarts v. Forte, 135 Vt. 306, 309

(1977). In the context of employment agreements, “typical essential terms include,

among others, ‘compensation, duties or responsibilities.’” City of Houston v. Williams,

353 S.W.3d 128, 139 (Tex. 2011), quoting Martin v. Credit Protection Association, Inc.,

793 S.W.2d 667, 669 (Tex. 1990).

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  1. I conclude here that Claimant’s hiring contract with Defendant was completed when she

assented to the employment terms that Mr. Clinton proposed during their November 26,

2014 telephone conversation. Further confirmation of the employment relationship came

on December 10, 2014, when she received Ms. Beaulieu’s “Welcome aboard!” email and

attached “new employee paperwork.” As both of these acts occurred while Claimant was

in Vermont, I conclude that the hiring contract was made here.

  1. In reaching this conclusion, I must reject Defendant’s assertion that the last act essential

to the completion of the hiring contract did not occur until December 18, 2014, when

Claimant transmitted the completed “new employee paperwork” to Mr. Clinton via cell

phone from her Sheffield, Massachusetts hotel room. To accept that date as the operative

one, I would have to ignore the specific admonition contained on the USCIS Form I-9

against asking “an individual to complete Section 1 before he or she has accepted a job

offer (emphasis supplied).” I also would have to ignore the credible evidence

establishing that, in accordance with the parties’ hiring agreement, Defendant paid

Claimant wages beginning with her business-related travel from Vermont on December

15, 2014. Defendant has offered no factual or legal basis for me to do so, however.

  1. Defendant confuses the last act essential to the making of the hiring contract – Claimant’s

assent to its terms – with actions that were triggered once she did so, such as completing

federal tax and homeland security forms. Had Claimant been injured on her first day at

the Sheffield worksite, there is no doubt but that her injury would have been compensable

notwithstanding that she had not yet submitted the forms that Ms. Beaulieu and Mr.

Clinton had requested. These documents may have evidenced her hiring, but they did not

in any way create it.

Principles of Full Faith and Credit, Comity, Waiver and Estoppel

  1. Having concluded that Claimant’s hiring occurred in Vermont, such that workers’

compensation jurisdiction attaches under 21 V.S.A. §619, I must next consider whether

principles of full faith and credit, comity, waiver and/or estoppel preclude her from

recouping benefits in Vermont over and above what she already has received in

Massachusetts. I conclude that they do not.

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(a) Constitutional Full Faith and Credit

  1. The United States Supreme Court has specifically considered whether the Constitution’s

Full Faith and Credit Clause1 precludes one state from awarding workers’ compensation

benefits according to its own statutory framework notwithstanding that the injured

worker already has received benefits in accordance with another state’s workers’

compensation statute. The claimant in Thomas v. Washington Gas Light Co., 448 U.S.

261 (1980), was injured while working in Virginia, but was hired and lived in the District

of Columbia. Initially he received temporary disability benefits in Virginia. When later

he sought to recover permanent total disability benefits in the District of Columbia, his

employer objected on the grounds that the Virginia award was entitled to full faith and

credit, such that any additional benefits were only payable in accordance with Virginia

law.

  1. In a plurality opinion, the Court disagreed. Noting that jurisdiction could have attached

in the District of Columbia in the first instance, it concluded that Virginia had no

legitimate interest in preventing the claimant from recovering a supplemental award

there. “For all practical purposes,” it observed, “[the employer] and its insurer would

have had to measure their potential liability exposure by the more generous of the two

workmen’s compensation schemes in any event.” Id. at 280. Thus, there was no reason

“to give extra weight to the first State’s interest in placing a ceiling on the employer’s

liability than it otherwise would have had.” Id. at 284.

  1. As is the case in most states, the Court found that the workers’ compensation statutes in

both Virginia and the District of Columbia reflected an interest in providing an expedient

and relatively informal process by which injured workers can receive compensation for

their work-related injuries. The unintended consequence of denying a claimant’s right to

a supplemental award would be to thwart that goal:

Compensation proceedings are often initiated informally, without the

advice of counsel, and without special attention to the choice of the most

appropriate forum. Often the worker is still hospitalized when benefits are

sought . . . And indeed, it is not always the injured worker who institutes

the claim . . . A rule forbidding supplemental recoveries under more

favorable workmen’s compensation schemes would require a far more

formal and careful choice on the part of the injured worker than may be

possible or desirable when immediate commencement of benefits may be

essential. Id. at 284-285 (internal citations omitted).

1 United States Constitution, Art. IV, §1: “Full Faith and Credit shall be given in each State to the public Acts,

Records and judicial Proceedings of every other State.”

8

  1. With these considerations in mind, the Court concluded that the concept of a

supplemental award did not violate the Full Faith and Credit Clause in any respect. Id. at

  1. Notably, in reaching this conclusion the Court distinguished an earlier case,

Chicago, R.I. & P. R. Co. v. Schendel, 270 U.S. 611 (1926), in which, because of a

contested factual finding, the two statutes at issue offered two mutually exclusive

remedies. In Thomas, the same set of facts would have justified an award under either

state’s statute. Under those circumstances, “[a] supplemental award gives full effect to

the facts determined by the first award, and also allows full credit for payments pursuant

to the earlier award. There is neither inconsistency nor double recovery.” Id. at 281.

  1. Consistent both with the Supreme Court’s determination in Thomas and with cases

decided since then in other states,2 I conclude here that to allow Claimant to recover a

supplemental award in Vermont would not violate the principles underlying the Full Faith

and Credit Clause. Claimant having been hired in this state, Vermont has a legitimate

interest in applying its workers’ compensation statute to her injury. Letourneau, supra;

see also 9 Lex K. Larson, Larson’s Workers’ Compensation §142.01 (Matthew Bender

Rev. Ed.). So long as (a) the facts underlying Claimant’s recovery in Massachusetts are

given full effect here; and (b) Defendant is given full credit for all payments made under

her Massachusetts claim, a supplemental award is constitutionally permissible.

(b) Comity

  1. In appropriate circumstances, principles of comity can provide a basis “for

nonintervention by a Vermont court in a dispute that has already come before some other

forum.” Cavallari v. Martin, 169 Vt. 210, 215 (1999). The doctrine is designed to foster

cooperation among the states, preclude forum shopping and promote uniformity of

decision. Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 39 (Ind. Ct. App. 2010). Comity

has “the power to persuade but not command;” it is not an imperative rule of law, but

rather a rule of convenience and courtesy. Boston Law Book Co. v. Hathorn, 119 Vt.

416, 422 (1956) (internal quotations omitted); Brightpoint, supra.

  1. Comity is often applied in cases in which a final judgment in another court has already

been rendered. See, e.g., Office of Child Support v. Sholan, 172 Vt. 619, 621 (2001). In

cases where an already-filed suit is still pending in another forum, factors to consider

include whether the first suit has been proceeding normally and without delay, and

whether there is a danger that the parties may be subjected to multiple or inconsistent

judgments if the second suit is allowed to continue. Brightpoint, supra.

2 See, e.g., Williams v. Johnson Custom Homes, 288 S.W.3d 607, 610 (Ark. 2008) (describing the issue as “wellsettled”);

Sea-Land Service, Inc. v. Workers’ Compensation Appeals Board, 925 P.2d 1309 (Ca. 1996); Gulf

Interstate Geophysical v. Industrial Commission, 555 N.E.2d 989 (Ill. 1990); McGowan v. General Dynamics Corp.,

546 A.2d 893 (Ct. 1988); see generally, 9 Lex K. Larson, Larson’s Workers’ Compensation, supra at §142.05

(remarking upon the “uniform right of all states having a legitimate interest in the injury to apply their own diverse

rules and standards – separately, simultaneously or successively”).

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  1. In the case before me now, while Claimant’s Massachusetts claim may still be open, there

is no evidence of any ongoing dispute in that forum concerning either the compensability

of her injury or her entitlement to benefits. Consistent with the full faith and credit

principles discussed above, Conclusion of Law No. 13 supra, a supplemental award in

this state will neither supplant nor undermine the factual determinations already made in

Massachusetts. There is no risk that Defendant will be subjected to multiple or

inconsistent judgments, therefore. As was the case in Thomas, ultimately what it will

owe Claimant in workers’ compensation benefits will be no more (or less) than what it

would have owed had she selected Vermont as her forum to begin with.

  1. I conclude that principles of comity do not in any way preclude Claimant from pursuing a

supplemental award of workers’ compensation benefits in Vermont.

(c) Waiver and Estoppel

  1. 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.

  1. The doctrine of equitable estoppel promotes fair dealing and good faith “by preventing

‘one party from asserting rights which may have existed against another party who in

good faith has changed his or her position in reliance upon earlier representations.’”

Beecher v. Stratton Corp., 170 Vt. 137, 139 (1990), quoting Fisher v. Poole, 142 Vt. 162,

168 (1982). At the doctrine’s core is the concept that through its conduct, the party

against whom estoppel is asserted must have intended that the other party would be

misled to his or her detriment. Id.; Longe v. Boise Cascade Corp., 171 Vt. 214, 224

(2000).

  1. There is no evidence here from which I can conclude that by receiving workers’

compensation benefits in Massachusetts, Claimant has either waived her right to seek a

supplemental award in Vermont or is estopped from doing so now. By first accepting

benefits in Massachusetts – pursuant to a process that Defendant initiated by filing her

claim there – she did not voluntarily relinquish her right to a supplemental award. Nor

did she intend thereby to mislead Defendant to its detriment. Again, what Defendant is

now obligated to pay her is no more than what it would have owed had she filed her

claim in Vermont ab initio.

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Summary

  1. In sum, I conclude first, that because Claimant was hired in Vermont, jurisdiction lies

here under 21 V.S.A. §619, and second, that neither the Full Faith and Credit Clause nor

principles of comity, waiver and/or estoppel bar her claim for a supplemental award here.

So long as any such award is consistent with the facts underlying her Massachusetts

claim, and provided that Defendant is allowed full monetary credit for the benefits it

already has paid, she is free to proceed in this forum.

  1. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs

and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days

from the date of this opinion within which to submit her itemized claim.

ORDER:

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

to pay:

  1. All workers’ compensation benefits to which Claimant proves her entitlement in

accordance with Vermont law, provided that (a) her entitlement is consistent with the

facts determined in conjunction with her prior award of benefits under Massachusetts

law; and (b) full monetary credit is given for all payments made in the context of her

Massachusetts claim; and

  1. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.

DATED at Montpelier, Vermont this _____ day of August 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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