STATE OF VERMONT
DEPARTMENT OF LABOR
Lesley Bienvenue v. Sandra Kuc d/b/a Vermonsters Daycare Center
Opinion No. 23-15WC
- By: Phyllis Phillips, Esq.
Administrative Law Judge
For: Anne M. Noonan
State File No. CC-2661
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Lesley Bienvenue, pro se
Jennifer Moore, Esq., for Defendant
Is Claimant’s workers’ compensation claim time-barred under 21 V.S.A. §660(a)?
Defendant’s Exhibit A: Employer First Report of Injury (Form 1)
Defendant’s Exhibit B: Denial of Workers’ Compensation Benefits (Form 2)
Defendant’s Exhibit C: Letter from Anne Coutermarsh, November 18, 2011
Defendant’s Exhibit D: Letter from Tracy Downing, February 9, 2012
Defendant’s Exhibit E: Letter from Claimant, February 15, 2012
Defendant’s Exhibit F: Letter from Anne Coutermarsh, March 11, 2015
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving
party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
- 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’
- Judicial notice is taken of all relevant forms contained in the Department’s file
relative to this claim.
- On or about May 5, 2011 Claimant filed an Employer First Report of Injury
(Form 1) with the Department, in which she alleged that on March 21, 2011 she
had injured her lower back and left knee when a co-worker fell into her and
knocked her to the ground.1 Defendant’s Exhibit A.
- On or about June 10, 2011 Defendant filed a Denial of Workers’ Compensation
Benefits (Form 2), Defendant’s Exhibit B, in which it asserted that there was no
causal relationship between Claimant’s injuries and her employment. In support
of its position, Defendant submitted email correspondence from Sandra Kuc, its
executive director, and Stacy Sturtevant, its assistant director, both of whom
challenged Claimant’s version of events. Specifically, Ms. Kuc and Ms.
Sturtevant denied that Claimant had ever informed them either of the incident or
of the injuries she alleged, nor had she ever appeared disabled to the extent she
- Claimant appealed Defendant’s denial on or about June 20, 2011. On September
14, 2011 the parties participated in an informal conference with the Department’s
specialist. By this time, Defendant had produced additional statements from two
of Claimant’s co-employees, both of whom denied having witnessed the incident
she had alleged despite having worked with her on the day in question. Based on
this evidence, as well as her review of the contemporaneous medical records, on
November 18, 2011 the Department’s workers’ compensation specialist
determined that Defendant’s denial was reasonably supported and therefore
upheld it. Defendant’s Exhibit C.
- By Notice and Application for Hearing (Form 6) dated December 7, 2011,
Claimant challenged the specialist’s determination and requested a formal
- By letter dated February 9, 2012 the formal hearing docket administrator notified
the parties that Claimant’s claim had been referred to the formal hearing docket,
and that a telephone pretrial conference had been scheduled for March 12, 2012.
Defendant’s Exhibit D.
- On February 15, 2012 Claimant addressed the following letter to the Department,
Defendant’s Exhibit E:
I have chosen to withdraw my request for a hearing. I am not able
to handle the stress associated with this case. I unfortunately, I
chose to wait and see if I would heal on my own before reporting
the incident to my Doctor and can’t undo that fact.
- Upon receipt of Claimant’s letter, the specialist notified the parties that the
previously scheduled pretrial conference had been cancelled.
1 Claimant appears to have completed the First Report of Injury herself; it is in her handwriting, and neither
Defendant nor its representative signed it.
- Defendant filed additional denials with the Department on February 21, 2013 and
May 1, 2013, pertaining to medical bills it had received from various providers
for treatment rendered to Claimant between January and March 2013. Claimant
did not immediately appeal either denial.
- By correspondence dated February 27, 2015 (received by the Department on
March 4, 2015), Claimant sought to renew her appeal of Defendant’s claim
denial. By letter dated March 11, 2015 the Department’s specialist determined
that the evidence did not support her claim, and therefore declined to issue an
interim order for benefits. Defendant’s Exhibit F.
- At Claimant’s request thereafter, the specialist referred the matter back to the
formal hearing docket. Defendant’s motion for summary judgment followed.
Claimant has not filed any response.
- Summary judgment is proper when “there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law, after giving the
benefit of all reasonable doubts and inferences to the opposing party.” State v.
Delaney, 157 Vt. 247, 252 (1991). To prevail on a motion for summary
judgment, the facts must be “clear, undisputed or unrefuted.” State v. Heritage
Realty of Vermont, 137 Vt. 425 (1979); A.M. v. Laraway Youth and Family
Services, Opinion No. 43-08WC (October 30, 2008).
- Defendant here asserts that because Claimant previously withdrew her request for
a hearing on its denial of her claim for workers’ compensation benefits, the
applicable statute of limitations now precludes her from reviving it. As the
material facts are undisputed, summary judgment is an appropriate vehicle for
resolving this issue. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22,
- The statute of limitations for initiating a claim for workers’ compensation benefits
is three years from the date of injury. 21 V.S.A. §660(a). Having alleged an
injury date of March 21, 2011, Claimant here first initiated her claim on or about
May 5, 2011, which was well within the limitations period. Thereafter, however,
in February 2012 she withdrew her appeal of Defendant’s claim denial, and did
not seek to revive it until February 2015. The legal question posed by these
actions is whether the statute of limitations was tolled in the meantime, such that
her current appeal remains timely, or whether it has since expired, such that her
appeal is now time-barred.
- So long as they do not defeat the informal nature of the dispute resolution process,
the Vermont Rules of Civil Procedure apply generally to workers’ compensation
proceedings. Workers’ Compensation Rule 7.1000.2 Vermont Rule of Civil
Procedure 41(a) governs voluntary dismissals. It allows for a plaintiff to dismiss
an action without a court order at any time before the adverse party files an
answer, V.R.C.P. 41(a)(1), and thereafter with the court’s approval, V.R.C.P.
- I consider the actions taken in February 2012, when in response to Claimant’s
notice that she had chosen to “withdraw” her request for a hearing the
Department’s specialist cancelled the previously scheduled pretrial conference, to
be the equivalent of a voluntary dismissal of her appeal under V.R.C.P. 41(a)(2).
See Agency of Natural Resources v. Lyndonville Savings Bank & Trust Co., 174
Vt. 498 (2002) (equating “withdrawal” of action with voluntary dismissal in
context of V.R.C.P. 11 “safe harbor” provisions).
- For statute of limitations purposes, the legal effect of Claimant having voluntarily
dismissed her appeal without pursuing a determination on the merits of
Defendant’s claim denial is the same as if she had never filed a claim for benefits
at all. Grant v. Cobbs Corner, Inc., Opinion No. 22A-02WC (July 25, 2002),
citing Demars v. Robinson King Floors, Inc., 256 N.W.2d 501, 505 (Minn. 1977).
Were the rule otherwise, a claimant might voluntarily dismiss and then renew his
or her claim “in perpetuity.” Grant, supra.
- The time limits imposed by a statute of limitations “represent a balance, affording
the opportunity to plaintiffs to develop and present a claim while protecting the
legitimate interests of defendants in timely assertion of that claim.” U.S. v.
Kubrick, 444 U.S. 111, 117 (1979), cited with approval in Investment Properties,
Inc. v. Lyttle, 169 Vt. 487, 492 (1999). For both the parties and the fact-finder,
“the search for truth may be seriously impaired by the loss of evidence, whether
by death or disappearance of witnesses, fading memories, disappearance of
documents, or otherwise.” Id. These concerns are especially relevant in cases
where, as here, the most basic facts underlying a claimant’s claim for workers’
compensation benefits, including where and when the alleged injury occurred,
who witnessed it and what if any disability resulted, have been hotly contested
from the beginning.
- I conclude as a matter of law that the statute of limitations was not tolled when
Claimant voluntarily withdrew her appeal of Defendant’s claim denial in February
- That being the case, she had three years from the date of her alleged March
21, 2011 injury, or until March 21, 2014, within which to reassert her claim for
worker’s compensation benefits. As she failed to do so, her claim is now timebarred.
2 Effective August 1, 2015 Workers’ Compensation Rule 7.1000 has been re-codified as Rule 17.1100.
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for
workers’ compensation benefits arising out of her alleged March 11, 2011 work-related
injury is hereby DISMISSED WITH PREJUDICE.
DATED at Montpelier, Vermont this _____ day of ____________, 2015.
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.