Archive

Tag Archive for: arising in the course and scope of employment

Nancy Berg v. Rutland Crossing LLC (August 19, 2010)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Nancy Berg v. Rutland Crossing LLC (August 19, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Nancy Berg Opinion No. 28-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Rutland Crossing, LLC
For: Valerie Rickert
Acting Commissioner
State File No. BB-00003
OPINION AND ORDER
Hearing held in Rutland, Vermont on May 28, 2010
Record closed on June 21, 2010
APPEARANCES:
Karl Anderson, Esq., for Claimant
Thomas Simon, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s right ankle injury arise in the course and scope of her employment for Defendant?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1-4: Photos depicting varied views of accident scene
Defendant’s Exhibit A: Undated handwritten statement signed by Claimant
Defendant’s Exhibit B: Two photos of accident scene facing east
Defendant’s Exhibit C: Two photos of accident scene facing west
Defendant’s Exhibit D: Two photos of accident scene from a distance facing west
Defendant’s Exhibit E: Photo of railing at accident scene from a distance facing west
2
CLAIM:
Workers’ compensation benefits causally related to Claimant’s right ankle injury
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.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Defendant operates a nursing home in Rutland, Vermont. Claimant was employed there as a kitchen worker.
4. On April 23, 2009 Claimant was leaving work after attending an in-service training. She walked across Defendant’s premises to a set of stairs leading up to a landing adjacent to a municipal sidewalk. The stairs and landing are on Defendant’s property; the sidewalk is not.
5. Both the stairs and the landing are bordered by fence-like handrails. The landing has a flat concrete surface that runs from the top of the stairs to the sidewalk. It is as wide as the stairs but slightly longer in length from the top stair to the sidewalk. Where it meets the sidewalk, the landing is approximately three inches below the grade of the sidewalk.
6. Claimant testified that as she neared the top of the stairs, for no apparent reason her ankle gave out. She stumbled first to the next step, then onto the landing and ultimately into the bushes near where one corner of the landing meets the sidewalk. Claimant injured her right ankle in the fall.
7. Claimant’s testimony is somewhat at odds with what she had reported to Defendant earlier in a handwritten statement. There she stated that “[a]t the top of the stairs (still company property) I tripped on the area where the stairs meet the sidewalk. There is about a two inch gap there.”
8. Four other witnesses testified about Claimant’s fall. Each worked for Defendant, reported having a positive work relationship with Claimant and provided credible testimony.
9. Claimant acknowledged in her testimony that the first witness, Joe Clairmont, was on the sidewalk when she fell and saw the entire event. Mr. Clairmont had attended the same in-service training that Claimant had. He was standing at a bus stop on the sidewalk next to the landing when he saw Claimant come up the stairs. Mr. Clairmont testified that Claimant did not trip while climbing the stairs. Rather, according to his recollection she reached the sidewalk without incident. Mr. Clairmont recalled that a minute or so later, as Claimant was walking towards him on the sidewalk, she caught her right foot on the edge of the sidewalk adjacent to the landing and fell.
3
10. The second witness, Lorie Van Lew, testified that she saw Claimant standing near the bus stop for about two minutes before she observed her fall. She recalled Mr. Clairmont standing in the same vicinity. Ms. Van Lew admitted that from her vantage point, approximately 50 feet away, she could not see where Claimant’s feet were when she fell. However, it appeared to her that Claimant was on the sidewalk when she fell.
11. The third witness, Deirdre Fillmore, was stopped in her vehicle waiting for traffic to clear when she noticed Claimant and Mr. Clairmont. Although Ms. Fillmore’s view was somewhat obstructed, it appeared to her that both were standing on the sidewalk at the bus stop. She testified that a minute and a half later she saw Claimant fall but was unable to see what caused her to do so. Ms. Fillmore went to Claimant’s aid. She asked Claimant what happened, and Claimant replied, “I don’t know. I think I stepped off the sidewalk and twisted my ankle.”
12. The fourth witness, Colleen Lizotte, also went to Claimant’s aid, but testified that she did not actually see the fall. Notably, Ms. Lizotte testified that on more than one occasion prior to April 23, 2009, while she and Claimant were standing at the bus stop, Claimant had asked her who would be responsible if someone fell at this site, Defendant or the city. Ms. Lizotte recalled that the last inquiry had occurred a couple of weeks prior to Claimant’s fall.
CONCLUSIONS OF LAW:
1. 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).
2. To establish a compensable claim under Vermont’s workers’ compensation law, 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 employment.” Miller v. IBM, 161 Vt. 213, 214 (1993); 21 V.S.A. §618.
3. 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 Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
4
4. In Miller, the Court clearly delineated the employer’s liability for injuries to employees who are going to or coming from work as co-extensive with the employer’s premises. Id. at 216. An injury incurred while the employee is still on the employer’s premises generally is compensable; one incurred after the employee has left the premises generally is not. Id., see 1 Larson’s Workers’ Compensation Law §13.01[1] and cases cited therein. Applying this principle to the facts here, the critical question is whether Claimant was still on Defendant’s premises, either the stairs or the landing, at the time of her fall, or whether she already had reached the public sidewalk.
5. Claimant testified that she was on the stairs, not the sidewalk, when she fell. Other witnesses placed her on the public sidewalk when the fall occurred. None of these witnesses testified to any ill will against Claimant. Each observed Claimant from a different perspective, and their accounts, while not identical, were consistent. The mutually reinforcing effect of that consistency made their collective account particularly credible.
6. Mr. Clairmont in particular was uniquely positioned to observe Claimant’s fall. Indeed, Claimant herself acknowledged as much when she remarked that he saw the whole event. Mr. Clairmont’s recollection that both he and Claimant were near one another on the public sidewalk when Claimant fell directly contradicts her account to the contrary.
7. Claimant’s own words further undermine her testimony. Her inquiries concerning liability in the event of a fall at this very site are certainly suspicious. Considered in conjunction with the varying accounts she gave as to the mechanism of her fall, her version of events becomes even less credible.
8. I find that Claimant has failed to sustain her burden of proving that she was on Defendant’s premises when she fell. Her injury did not occur in the course of her employment and therefore is not compensable.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to her April 23, 2009 fall is hereby DENIED.
DATED at Montpelier, Vermont this 19th day of August 2010.
_____________________
Valerie Rickert
Acting 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.

Jeri Walbridge v. Hunger Mountain Co-op, Inc. (June 30, 2009)

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

Jeri Walbridge v. Hunger Mountain Co-op, Inc. (June 30, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeri Walbridge Opinion No. 23-09WC
By: Jane Dimotsis
v. Hearing Officer
J.P. Isabelle, Law Clerk
Hunger Mountain Co-Op, Inc. For: Patricia Moulton Powden
Commissioner
State File No. Z-01496
RULING ON CLAIMANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
ATTORNEYS:
Patrick L. Biggam, Esq., for Claimant
James O’Sullivan, Esq., for Defendant
ISSUE:
Claimant moves for summary judgment on the grounds that as a matter of law, her ankle injury must be deemed to have arisen out of and in the course of her employment for Defendant. Defendant opposes the motion, raising both factual and legal issues.
FINDINGS OF FACT:
Considering the evidence in the light most favorable to the non-moving party, Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990), I find the following facts:
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.
2. Claimant began working for Defendant as a head cashier in 2004. She is currently a grocery stocker. On Friday, April 11, 2008 she called in sick. Because that day was the end of a pay period, in order to be paid for her sick day a payroll adjustment, or PTO form, had to be submitted to payroll and approved by a manager. Claimant previously had submitted PTO forms for other missed days of work, and therefore knew that the form was a prerequisite to being paid for the missed time. In this case, the form had to be submitted by Monday, April 14th, the payroll deadline for that week.
2
3. As to what signatures are required on the PTO form, the evidence is disputed. According to Claimant, generally both the employee and the supervisor must sign the form, though there are some occasions when the supervisor completes the form on the employee’s behalf. According to both Defendant’s grocery manager, Mr. Ormiston, and its human resources manager, Mr. Gribbin, Claimant’s signature was not required in this instance, as a manager could have filled out the form for her. According to Defendant’s payroll assistant, Ms. Edson, both signatures would have to be on the form in order for her to pass it through for payment.
4. The day after she called in sick, Saturday, April 12th, Claimant received a voice mail message from Mr. Ormiston. The content of the message is disputed. Claimant testified that Mr. Ormiston left a message stating that he would be at the store until 2:00 PM on Saturday and from noon until 8:00 PM on Sunday and that “he needed the PTO form fixed.” In contrast, Mr. Ormiston testified that he called Claimant on Friday and left a message stating, “Give me a call so I can fill out some PTO for you.” Mr. Ormiston further testified that he did not work from noon until 8:00 PM on Sunday, as Claimant recalled, but rather from 6:00 AM until 2:00 PM.
5. On Sunday, April 13th Claimant travelled to Defendant’s store. She was not scheduled to work and acknowledged that she had not been asked specifically to come into the store on that day. She knew, however, that the payroll deadline was the next day and that PTO forms generally had to be submitted by that time in order for time off to be paid.
6. Claimant testified that when she arrived at the store she saw Mr. Ormiston in the bulk department and informed him that she was there to fix the PTO form, and that he thanked her for doing so. She then filled out the form and left it on Mr. Ormiston’s desk.
7. After leaving the form on Mr. Ormiston’s desk, Claimant then made a grocery purchase from the store. Upon exiting, she slipped on a rock in the parking lot and twisted her ankle. As a consequence of this injury Claimant was disabled from working for nine weeks.
CONCLUSIONS OF LAW:
1. Claimant moves for partial summary judgment on the grounds that because her trip to the store on Sunday was primarily to perform a work-related business function – signing the PTO form so that it could be submitted by the next day’s payroll deadline – the injury she suffered while there must be deemed to have arisen in the course and scope of her employment and is therefore compensable. Defendant counters that because it was not necessary for Claimant to sign the PTO form, there was no business reason for her to be at the store and that therefore her injury did not occur in the course and scope of her employment. Defendant also questions whether the primary motive for Claimant’s trip to the store on Sunday may have been personal – to shop for groceries – in which case, it argues, the incidental business purpose – signing the PTO form – is an insufficient basis for concluding that her injury was work-related.
3
2. 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).
3. Viewing the evidence in the light most favorable to Defendant, as the non-moving party, questions of material fact exist that preclude a finding of summary judgment in Claimant’s favor. Did she have to sign the PTO form before Monday or could a manager have signed it for her? Did she travel to the store on Sunday primarily to sign the form or primarily to do some personal grocery shopping? These are questions of fact, and the evidence is conflicting. Whether legally this claim falls under the “positional risk” analysis advocated by Claimant or the “dual purpose” doctrine suggested by Defendant, in either case summary judgment is inappropriate.
ORDER:
Claimant’s Motion for Partial Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 30th day of June 2009.
_________________________
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.

© Copyright - -