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M. B. v. Safety-Kleen (October 22, 2007)

Categories: Workers' Compensation Hearing DecisionTags: , , , , Author:

M. B. v. Safety-Kleen (October 22, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. B. Opinion No. 28-07WC
By: George K. Belcher
v. Hearing Officer
Safety-Kleen For: Patricia Moulton Powden
Commissioner
State File No. T-19416
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
RULING ON DEFENDANT’S MOTION FOR PERMISSION TO TAKE INTERLOCUTORY APPEAL
Defendant seeks to take an interlocutory appeal from the Department’s denial of Defendant’s Motion for Summary Judgment. By order dated August 27, 2007 the Department denied Defendant’s Motion for Summary Judgment, ruling that the legal issues of claim preclusion and prohibitions against advisory opinions were not dispositive of this claim. The Department determined that a hearing was required.
Under V.R.A.P. 5(b)(1), “[u]pon motion of any party … the Presiding Judge … shall permit an appeal to be taken from an interlocutory order or ruling if the judge finds that the order or ruling involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation.” An interlocutory appeal is the exception to normal appellate jurisdiction. The policy against piecemeal review of any matter is strong and consistent. In re Hill, 149 Vt. 86 (1987). Appeals, which occur after establishment of the facts by an evidentiary hearing and a final judgment, allow the appellate court to review a complete record. In contrast, an interlocutory appeal creates piecemeal litigation, delay and expense. In Re Pyramid Co., 141 294, 300 (1982). Permission for such appeal is reserved for a narrow class of cases such as Dodge v. Precission Construction Products, Opinion No. 38A-01 (October 30, 2001) (where controlling issue was whether a claim survived the death of the employee) or Austin v. Central Vermont Home Health and Hospice, Opinion No. 32-02 WC (July 25, 2002) (concerning the burden of proof and the legal standard in workers’ compensation claims of employee suicide).
Three criteria must be satisfied before permission to proceed with an interlocutory appeal will be granted: (1) the issue must involve a controlling question of law; (2) there must be substantial grounds for difference of opinions as to the correctness of the order; and (3) and an interlocutory appeal should materially advance the termination of litigation. In re Pyramid Co., supra., at 301; K.T. v. Specialty Paperboard, Opinion No. 33A-05 (August 18, 2005).
2
The Defendant has most clearly failed to satisfy the second and third criteria. The Defendant cited no cases as authority from Vermont or from any other jurisdiction in the workers’ compensation context to support its arguments of claim preclusion or advisory opinions. Existing authority on this issue was heavily weighted in favor of the Claimant’s legal position that the common law doctrine of res judicata did not bar a workers’ compensation claimant from pursuing claims as they ripened. Likewise, there was no authority cited by the Defendant which would equate Workers Compensation Rule 40 (prohibiting ordered pre-payment of medical bills before the treatment is rendered) to a prohibition against legal determinations of compensability.
The third criteria concerns finality. In this case there are many facts which require clarity before the trier of fact can apply the law. For example, it is unclear whether the Claimant can establish causation and whether he needs treatment. Even if he does not need medical treatment, he might still be disabled, totally or partially. Without the facts being established, a legal determination will be difficult. More importantly, a legal determination on speculative facts will not be final, since other facts might generate other claims. It is unlikely in this case at this time that an interlocutory appeal will materially advance the termination of litigation.
ORDER:
Based on the foregoing, the Defendant’s Motion for Permission to File Interlocutory Appeal is DENIED.
Dated at Montpelier, Vermont this 22nd day of October 2007.
________________________
Patricia Moulton Powden
Commissioner

N. K. v. State of Vermont, Department of Health (October 8, 2008)

Categories: Workers' Compensation Hearing DecisionTags: , , Author:

N. K. v. State of Vermont, Department of Health (October 8, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. K. Opinion No. 36S-08WC
v. By: Jane Gomez Dimotsis, Esq.
Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Department of Health Commissioner
State File No. W-05732
APPEARANCES:
Chris McVeigh, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUE:
Should the Commissioner’s Order awarding 20% permanent partial disability to Claimant be adjusted to only 5% pending the appeal of this matter to the Vermont Supreme Court?
RULING ON DEFENDANT’S MOTION FOR PARTIAL STAY
Defendant has moved for a partial stay of the Commissioner’s September 4, 2008 Order awarding Claimant 20% permanent partial disability benefits. Defendant requests that the Commissioner issue an order limiting Claimant’s award to 5% permanency benefits pending the outcome of its appeal to the Vermont Supreme Court.
Any award or order of the Commissioner shall be of full effect from issuance unless stayed by the Commissioner, any appeal notwithstanding. 21 V.S.A. §675(b). In order to prevail on a request for a stay, Defendant must demonstrate (1) that it is likely to succeed on the merits; (2) that it would suffer irreparable harm if the stay were not granted; (3) that a stay would not substantially harm the other party; and (4) that the best interests of the public would be served by the stay. See In re Insurance Services Offices, Inc., 148 Vt. 634, 635 (1987). Implicit in the case cited is the fact that the Commissioner has the discretionary power to grant, deny, or modify a request for a stay.
Although granting a stay is the exception, the criteria cannot be interpreted in such a way as to make it a legal impossibility. As this Department implied in Dubuque v. Grand Union Company, Opinion No. 34S-02WC (2002), the most important of the four criteria in the workers’ compensation context is the third, whether the claimant would suffer irreparable harm if the stay were granted. In this case, Defendant has argued persuasively that with the underlying award of attorney’s fees and the partial award of permanent partial disability benefits, a further delay to Claimant will not substantially harm her. Claimant continues to work and thus receives wages regularly. And, should she prevail, she will be entitled to interest pursuant to 21 V.S.A. §664.
2
Defendant also has met the remaining three criteria. Whether it is likely to prevail on appeal is dependent on the Supreme Court’s interpretation of the extent to which 21 V.S.A. §648(d) allows the Commissioner to exercise her discretion as to apportionment. Arguably, Defendant will suffer more harm if the decision is not stayed than Claimant, given that the amount of the award Defendant would not be able to recoup is much greater than the amount it argues should be awarded. And finally, in this particular case there is a legitimate dispute over the statutory interpretation of the Workers’ Compensation Act that will be of public benefit to resolve speedily. See Paul Graby v. Vermont Telephone Company, Opinion No. 06S-04WC (January 31, 2004).
Therefore, due primarily to the fact that Claimant will not suffer irreparable harm if the decision is stayed and that all of the other criteria are met, Defendant’s request for a partial stay of the award is granted.
ORDER:
Defendant’s Request for Partial Stay of Award limiting the permanency award to 5% pending appeal is GRANTED.
DATED at Montpelier, Vermont this 8th day of October 2008.
Patricia Moulton Powden
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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