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

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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
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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.
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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).
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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)

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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.
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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.
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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.

Jesus Otero v. Woodstock Inn & Resort (September 29, 2011)

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Jesus Otero v. Woodstock Inn & Resort (September 29, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jesus Otero Opinion No. 29-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Woodstock Inn & Resort
For: Anne M. Noonan
Commissioner
State File No. AA-51834
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 5, 2011
Record closed on May 21, 2011
APPEARANCES:
Joseph Galanes, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE:
Did Claimant suffer an injury arising out of and in the course of his employment on May 15, 2005?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Daniel Jackson, March 8, 2011
Claimant’s Exhibit 2: May 2005 time card records
Claimant’s Exhibit 3: Dr. Peraza out-of-work notes, 4/1/08 and 5/13/08
Defendant’s Exhibit A: Notice and Application for Hearing, August 13, 2009
Defendant’s Exhibit B: Certificate of Dependency
Defendant’s Exhibit C: Notice of Intent to Change Health Care Provider,
August 19, 2008
Defendant’s Exhibit D: Letter from Agnes Hughes, August 28, 2009
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CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his alleged work injuries
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 his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Departments’ file relating to this claim.
3. Claimant is a 55 year old immigrant from Lima, Peru. He came to the United States in August 2001 to be closer to his mother and two sisters, who had immigrated here sometime earlier.
4. Within a month after his arrival in Vermont Claimant began working as a dishwasher at Defendant’s resort hotel. This employment is the only position Claimant has held since immigrating to the U.S.
5. Claimant received a university education plus postgraduate work in economics while in Peru. He worked as an accountant.
6. Claimant studied English both in high school and at the university, but never to the point of becoming conversant. His language limitations were evident at the formal hearing. He required an interpreter and without her assistance could comprehend and respond only to simple questions posed to him in English. Beyond that, perhaps the most credible evidence of Claimant’s limited English proficiency was his assertion that if he could speak English, he would be studying at a university here in the United States, not working as a dishwasher. I find this testimony extremely persuasive.
7. On Sunday, May 15, 2005 Claimant reported to work for Defendant at approximately 4:00 PM. Claimant specifically recalled the day, as the night before he had worked at a wedding on the premises until 2:00 AM. Defendant’s time card records substantiate Claimant’s recollection, and I find it credible.
8. At some point during his shift Claimant was washing sheet pans. Unbeknownst to him, a co-employee had washed the kitchen floor and it was slippery. As Claimant carried one of the sheet pans across the room, he slipped on the wet, soapy floor and fell hard to the ground.
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9. Claimant recalled hitting the left side of his body on some large pots as he fell, and hitting the floor with such force that he lost consciousness for a few moments. He testified that he broke both a tooth and his eyeglasses in the fall. I find this testimony to be credible.
10. Claimant credibly testified that after he fell, two of his co-workers, Jarrod and Matt, assisted him first to his feet and then to a chair. As documented by Defendant’s time card records, Claimant left work thereafter without completing his shift. Claimant testified that this was on account of the pain he was suffering after his fall. I find this testimony to be credible.
11. On the following day, Claimant’s sister, Rosie O’Connell, visited Claimant at his home, having heard from their mother that he was not well. Ms. O’Connell is conversant in both English and Spanish. She testified that while visiting with Claimant she observed that he was walking slowly, that his tooth was missing and that he was not wearing his glasses. Ms. O’Connell further testified that Claimant told her that he had injured himself after falling in the kitchen at work the evening before. I find this testimony to be credible in all respects.
12. At the time of Claimant’s injury Ms. O’Connell also worked for Defendant. She testified that after visiting with Claimant, she proceeded to the Inn. Initially she sought out Ann Tucker, Defendant’s personnel director, to speak to her about Claimant’s fall, but as Ms. Tucker was not in her office, she went to see Claimant’s supervisor, Executive Chef Jackson, instead. Ms. O’Connell testified that Chef Jackson told her that he was aware of the accident and that he would take care of filing the appropriate forms with Ms. Tucker immediately. I find this testimony to be credible.
13. For his part, Chef Jackson clearly recalled in his deposition testimony that Ms. O’Connell had come to see him shortly after Claimant’s fall and had asked him to complete an accident report. He testified that he was aware of the protocol for reporting work-related injuries, and that it was his responsibility as head of the culinary department to complete and forward an injury report to Ms. Tucker whenever one of his employees suffered a work-related injury. This was true even if he was not on duty at the time, and the injury was first reported to a sous chef or other supervisor. Chef Jackson testified that presumably this was the protocol he followed in Claimant’s case, but that with the passage of time he could no longer be one hundred percent certain that he actually did file a written report with Ms. Tucker. I find this testimony to be credible.
14. As to the timing of Claimant’s fall and Ms. O’Connell’s visit, Chef Jackson was fairly certain that it occurred in 2005, as he terminated his employment with Defendant in early 2006. I find this testimony to be credible.
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15. On the morning after his fall, Claimant called his primary care provider, Dr. Smith, and was given an appointment for Thursday, May 19, 2005. Claimant testified that at that appointment he told Dr. Smith that he had injured his back, neck and shoulder in a fall at work four days earlier. Dr. Smith’s office note does not reflect this history at all, however. To the contrary, it refers to a two-week history of intermittent back pain, flared by lifting and bending at work.
16. I find that Claimant likely did attempt to communicate the circumstances of his injury to Dr. Smith, but that Dr. Smith misunderstood. Claimant credibly testified that he and Dr. Smith often had difficulty communicating, a fact that Dr. Smith substantiated in subsequent office notes, which specifically reference a significant language barrier between them. I thus find that the discrepancy between Claimant’s version of the events leading up to his May 19th appointment and Dr. Smith’s reported history does not fatally undermine his credibility.
17. Claimant next followed up with Dr. Smith in June 2005. Dr. Smith prescribed physical therapy for Claimant’s continuing complaints, but Claimant lacked the funds to pursue this treatment. In the meantime, aside from a brief period of time out of work immediately after his fall, Claimant continued to work.
18. In July 2008 Dr. Smith referred Claimant to Dartmouth-Hitchcock Medical Center (DHMC) for further evaluation of what had become chronic left shoulder pain. Unlike his visits with Dr. Smith, Claimant’s DHMC providers were assisted by professional interpreters. Consequently, for the first time the medical record clearly reflected Claimant’s report that his fall at work was the incident that initially gave rise to his symptoms.
19. Through the DHMC staff and their interpreters, Claimant learned that Defendant had never filed a workers’ compensation claim on his behalf after his fall at work. As he now had been referred for an MRI, DHMC staff sought authorization from Defendant to proceed. Ms. Tucker credibly testified that the phone call she received to that effect, in late July 2008, was when she first learned of Claimant’s fall.
20. Upon learning that Claimant was seeking treatment for an alleged work-related injury, Ms. Tucker next undertook to investigate the circumstances surrounding the incident. She credibly testified that Claimant told her that he thought the fall had occurred in February 2006. Indeed, Claimant cited February 2006 as the date of injury in the workers’ compensation forms that he himself completed once his claim was finally filed. In light of what I consider to be highly credible corroborative evidence from Ms. O’Connell and Chef Jackson, however, I find that Claimant’s memory for dates at this point likely had faded, and that the fall giving rise to his injuries most likely occurred in May 2005, not February 2006.
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21. Ms. Tucker was emphatic in her assertion that had Claimant’s supervisor been notified of Claimant’s fall in May 2005, he would have reported it to her promptly in accordance with Defendant’s protocol. However, when presented with evidence that on two occasions in 2008 Claimant had provided his supervisor with medical notes documenting work-related eczema in his hands, Ms. Tucker acknowledged that the supervisor had not passed that information along to her. I find from this that despite Ms. Tucker’s best efforts and intentions, Defendants’ supervisors did not always report their employees’ work-related injury claims to her as they had been instructed to.
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. This case is in essence a dispute about credibility. Defendant asserts that Claimant’s alleged injury was both unwitnessed and late reported. It argues that Claimant has not produced sufficient credible evidence to sustain his burden of proving that it in fact occurred as and when he says it did.
3. It is true that a claimant may have difficulty sustaining his burden of proof when he delays filing a workers’ compensation claim for a significant period of time after an alleged injury, particularly where the injury is unwitnessed. In such instances, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies, investigate possible intervening causes and evaluate “hidden or not-so-hidden motivations.” Darrah v. Censor Security, Inc., Opinion No. 16-09WC (June 3, 2009); Jurden v. Northern Power Systems, Inc., Opinion No. 39-08WC (October 6, 2008); Russell v. Omega Electric, Opinion No. 42-03WC (November 10, 2003), citing Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995).
4. I acknowledge here that Claimant’s injury may have been unwitnessed at the exact moment that it happened. Claimant credibly testified, however, as to the two co-workers who assisted him immediately thereafter, and Ms. O’Connell credibly testified that she observed his injuries, which were obvious, the next day. Defendant offered no evidence to rebut either of these accounts. Without such rebuttal testimony, I am satisfied that Claimant in fact fell as he said he did in Defendant’s kitchen.
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5. Defendant’s argument notwithstanding, furthermore, I disagree that Claimant’s injury was late reported. Again, I am satisfied by the testimony provided by both Ms. O’Connell and Chef Jackson that in fact it was reported, barely 24 hours after it occurred. The fact that the report did not subsequently find its way to Ms. Tucker in a timely manner may be cause for concern among Defendant’s supervisory staff, but it provides no basis at all for penalizing Claimant.
6. Defendant points as well to the lack of contemporaneous medical records documenting the nature and timing of Claimant’s fall as support for its attack on his credibility. To my mind, however, the language barrier between Claimant and his primary care provider adequately accounts for this omission, and therefore I read nothing suspicious into it. Similarly, I am convinced that the discrepancy between the date of injury Claimant first reported and the one he recalled three years later likely represents his faulty memory rather than any devious motive or hidden agenda.
7. I conclude that Claimant has sustained his burden of proving that he suffered a compensable work-related injury when he slipped and fell in Defendant’s kitchen on May 15, 2005. Claimant is entitled to whatever workers’ compensation benefits he establishes to be causally related to that incident.
8. As Claimant has prevailed on his claim for benefits, he 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 his itemized claim.
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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 his entitlement as causally related to his May 15, 2005 fall at work; and
2. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 29th day of September 2011.
_______________________
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.

Clifford Hill v. Lamell Lumber Corp. (November 14, 2012)

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Clifford Hill v. Lamell Lumber Corp. (November 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Clifford Hill Opinion No. 27-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Lamell Lumber Corp.
For: Anne M. Noonan
Commissioner
State File No. CC-00915
OPINION AND ORDER
Hearing held in Montpelier on August 29, 2012
Record closed on October 3, 2012
APPEARANCES:
Frank Talbott, Esq., for Claimant
Justin Sluka, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer an injury arising out of and in the course of his employment, either on or about December 21, 2009 and/or on December 31, 2009?
2. If yes, to what temporary total and/or permanent partial disability benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 1: Copy of time card for week ending 1/5/10
Claimant’s Exhibit 2: Copies of time cards for weeks ending 1/5/10 and 12/29/09
Claimant’s Exhibit 3: Employment termination notice, February 23, 2010
Claimant’s Exhibit 4: Payroll register, January 1, 2009 to December 31, 2009
Claimant’s Exhibit 5: Memo to employees, December 14, 2009
Claimant’s Exhibit 7: Original time card, week ending 1/5/10
Claimant’s Exhibit 8: Original time card, week ending 12/29/09
Claimant’s Exhibit 9: Original time card, week ending 12/22/09
Defendant’s Exhibit A: December 2009 – January 2010 calendar
Defendant’s Exhibit B: Unemployment compensation determinations, 3-25-10 and 3-26-10
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Defendant’s Exhibit E: Cell phone record
CLAIM:
Temporary total disability benefits from January 4, 2010 to December 10, 2010, pursuant to 21 V.S.A. §642
Permanent partial disability benefits in accordance with a 39 percent whole person impairment referable to the spine, pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. As of December 2009 Claimant had been employed at Defendant’s sawmill as a yard worker for approximately five years. His primary assignment was running the de-barker, the machine that removes the bark from logs before they are sawed for lumber. His other duties included stacking lumber, running the front-end loader and sweeping up various areas of the mill.
Claimant’s Alleged Work-Related Injuries and Subsequent Medical Course
4. Claimant alleges two incidents at work in December 2009, both of which he asserts caused injury, neither of which were reported. The first incident occurred at some point during the week before Christmas.1 Claimant was working in a basement room that houses the apparatus for processing wood chips. Slabs of wood or bark make their way through a chipper to a series of vibrating screens, which sort them according to size. Appropriately sized chips are directed first into a blower, and from there into a steel chute that runs uphill, through the concrete outer wall and into a trailer parked outside.
5. On the day in question, Claimant was shoveling wood chips back into the blower from where they had fallen on the floor. Thinking he was further away from the chute than he was, as he turned to walk around it instead he walked into it. Claimant hit the left side of his head on the chute and fell down. The impact left a red mark on his forehead, but did not cause any bleeding or bruising. He recalled that he had a slight headache thereafter, for which he took some aspirin from the first-aid station. Other than that, he did not seek medical attention.2
1 Claimant did not specify the date on which this incident allegedly occurred – December 21, 2009 – until almost a year later, in the context of the December 2010 independent medical exam that his attorney arranged with Dr. White. See infra at Finding of Fact No. 14. In fact, Defendant’s time cards document that he did not work on that day. Claimant now asserts that the incident occurred at some point during the week prior to Christmas 2009, though he cannot recall exactly when.
2 Claimant testified that as soon as he left the chipper area he told his supervisor, Keith Lamell, that he had hit his head on the chute. Mr. Lamell was not called by either party to testify, and therefore there is no corroborating
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6. The second incident occurred approximately two weeks later, on Thursday, December 31, 2009. Although the sawmill was shut down for the Christmas holiday, Keith Lamell telephoned him that morning and asked him if he would help change a bearing in the de-barker machine. Claimant agreed to do so.
7. Claimant alleges as follows: At some point during the day he made use of a plastic bucket to retrieve some used oil from the maintenance shop, so that he could lubricate the chains on the log deck. After completing the job, he began walking back to the garage, plastic bucket in hand. As he traversed an icy metal cross-over in the lumber yard, he slipped and fell. As he went down, he struck his right ribs and chest on the bucket.3
8. Because the mill was still shut down for the holiday week, Claimant did not work in the days immediately following this alleged incident. Nor did he seek medical treatment. The following Monday, January 4, 2010, he arrived at the mill for his scheduled shift. While working that afternoon, he slipped again on some snow and ice in the yard, bruising his ribs for a second time. Concerned that he had aggravated his injury from the week before, he left work early and presented to the local walk-in clinic for evaluation and treatment.
9. The medical record of Claimant’s January 4, 2010 clinic visit is telling, both for what it contains and for what it omits. It reports the history of Claimant’s presenting injury as having occurred two days previously, when he slipped on the ice and fell, striking his right chest on what is described first as “an ash bucket” and later as “a plastic bucket.” Significantly, the record does not report the fall as having occurred at work. Nor does it reference the earlier incident, in which Claimant allegedly hit his head on the chipper chute, in any way.
10. As for symptoms, the January 4, 2010 record reports “persistent chest pain” as Claimant’s only complaint. Of note, a review of neurological systems was described as negative for both dizziness and weakness. Claimant was diagnosed with a chest wall contusion, for which he was prescribed anti-inflammatories and pain medications.
11. Three days later, on January 7, 2010 Claimant returned to the walk-in clinic, this time complaining that he had caught himself from falling “due to dizziness and legs seizing up on him.” He reported a three-week history of progressively worsening numbness and weakness in his extremities, gait difficulty and loss of balance, with the “current episode” beginning more than one week ago. This history is quite obviously different from the one reported in the context of Claimant’s January 4, 2010 clinic visit. Significantly, even in reporting this revised account Claimant still made no mention of having hit his head on
evidence for this testimony. Having reason to doubt Claimant’s ability to recall the specifics of this and other events, I cannot find as a fact that his recollection in this regard is accurate.
3 Claimant testified that he thought he reported this incident to Keith Lamell as well, though he admitted he was uncertain on this point. No First Report of Injury was filed, and Claimant did not seek workers’ compensation benefits on account of either this or the chipper chute incident until the following November, see Finding of Fact No. 36, infra.
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the chipper chute at work, though this would have occurred approximately three weeks previously. Nor did he recall any other recent head or neck trauma.
12. Claimant’s neurological signs and symptoms were serious enough to warrant immediate hospitalization. An MRI study revealed a large cervical disc herniation at C5-6, with cord compression. With a diagnosis of cervical myelopathy,4 on January 11, 2010 he underwent a C5-6 discectomy and fusion.
13. Claimant was followed post-operatively by his treating neurosurgeon, Dr. Jewell. Initially he reported some improvement in his symptoms, but this was relatively short-lived. By October 2010 he was complaining of “terrible” neck pain, ongoing numbness in his arms and legs and balance issues. A second MRI study demonstrated that his cervical spinal cord was well decompressed, leading Dr. Jewell to conclude that further surgery was not warranted. As a result, Claimant’s treatment since that time has consisted primarily of narcotic pain medications.
Expert Medical Opinions
(a) Dr. White
14. At the request of his attorney, in December 2010 Claimant underwent an independent medical examination with Dr. White, an occupational medicine specialist. In the course of this examination, for the first time Claimant reported having “banged my head” on the chipper chute at work on December 21, 2009 as the inciting event for his subsequent symptoms. Following that incident, he recalled, he had no feeling in his legs or hands, and his balance was impaired.
15. Dr. White concurred with Dr. Jewell’s diagnosis – C5-6 disc herniation with cervical myelopathy. He determined that Claimant had reached an end medical result and rated him with a 39 percent whole person impairment. A critical component of this rating was Dr. White’s conclusion that Dr. Jewell’s fusion surgery was not entirely curative, and that Claimant has continued to exhibit signs indicative of cervical myelopathy.
16. As for whether there was a causal link between Claimant’s condition and the alleged chipper chute incident at work, Dr. White had this to say:
In discussing the onset of his symptoms today, Mr. Hill describes a fall in which he struck his head,5 with immediate onset of symptoms at that time. If that is the correct description of the mechanism and chronology, there would indeed be a causal relationship, an aggravation of his underlying (previously asymptomatic) cervical problem.
4 Cervical myelopathy differs from radiculopathy in that it indicates damage to the spinal cord itself rather than to the peripheral nerve roots.
5 Dr. White later clarified that his description of the chipper chute incident as involving a “fall in which he struck his head” was erroneous, and that in fact Claimant had told him that he simply struck his head. Regardless, his opinion that the occurrence was the inciting event for Claimant’s subsequent symptoms remains unchanged.
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17. Dr. White specifically acknowledged that the mechanism of injury Claimant described was not corroborated in the medical records. As to this, he stated:
Obviously, I was not there at the time and I did not observe Mr. Hill falling and hitting his head. Furthermore, it is really not a medical question as to whether or not this incident occurred. However, as noted above, if indeed this was the injury mechanism, there is a causal relationship.
18. As Dr. White correctly noted, the contemporaneous medical records do not corroborate the mechanism of injury Claimant described. The credible evidence also fails to corroborate Dr. White’s assumptions as to the chronology of Claimant’s symptoms, specifically, that they began immediately after he struck his head on the chipper chute. Notwithstanding what he reported to Dr. White, at the formal hearing Claimant himself testified that aside from a minor headache, he did not experience any deleterious effects from that incident. Nor do the contemporaneous medical records indicate a connection between the onset of his symptoms and either that event or any other recent head or neck trauma. See Findings of Fact Nos. 9-11, supra. Considering this evidence, I cannot accept as credible Dr. White’s assumption that Claimant’s neurological symptoms began with the chipper chute incident.
19. Dr. White also addressed the causal link between the chipper chute incident and Claimant’s alleged slip and fall onto a plastic bucket at work, as follows:
In my opinion, the initial incident with the wood chipper represents the aggravating factor instigating Mr. Hill’s symptoms. Falling onto a bucket with enough force to trigger medical attention for chest pain could certainly involve a “whiplash” mechanism that could further aggravate the situation.
20. Again, the credible evidence provides no support for Dr. White’s theory that Claimant’s fall onto the plastic bucket might have involved a whiplash component. Claimant did not describe the fall in that way, either in his testimony or, more significantly, in reporting the event to his medical providers at the time.
(b) Dr. Boucher
21. At Defendant’s request, in May 2012 Dr. Boucher reviewed Claimant’s medical records. Like Dr. White, Dr. Boucher is a specialist in occupational medicine. Unlike Dr. White, he did not personally examine Claimant. Dr. Boucher rendered opinions both as to the cause of Claimant’s cervical condition and as to permanency.
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22. As to causation, Dr. Boucher acknowledged that although Claimant likely suffered from preexisting degenerative disc disease in his cervical spine, his C5-6 disc herniation was likely the result of an acute event, not merely further degeneration. In this respect, he concurred with Dr. White. However, he strongly disputed Dr. White’s conclusion that the chipper chute incident was the likely culprit. According to Dr. Boucher, for a cervical disc herniation to result from a blow to the head requires a very strong impact, one that would at least cause a visible abrasion and swelling, and more likely concussion and/or loss of consciousness as well. Even though the impact Claimant described caused him to fall and resulted in a red mark on his forehead, it was not serious enough to warrant medical treatment, and he did not mention it when, three weeks later, he first complained to his treating providers of neurological symptoms. Claimant himself treated the incident as relatively minor, and in Dr. Boucher’s opinion, rightly so. I find this reasoning persuasive.
23. As Dr. White had, Dr. Boucher theorized that Claimant’s alleged slip and fall onto a plastic bucket might have included a whiplash component, which could possibly have been a factor in causing his C5-6 disc herniation. As noted previously, the credible evidence does not provide any support for this hypothesis.
24. As for permanency, Dr. Boucher rated Claimant with a 26 percent whole person impairment rating on account of his cervical fusion surgery. Unlike Dr. White, Dr. Boucher did not add any additional impairment for ongoing cervical myelopathy. In his opinion, the numbness in his extremities and loss of balance that Claimant reported, both before and after his alleged work-related injuries, most likely resulted from peripheral neuropathy, not cervical myelopathy. According to Dr. Boucher, Claimant had a long history of alcohol dependence and abuse, and neuropathies of this type are common in such cases.
25. I find reason to doubt Dr. Boucher’s conclusion in this regard. I am skeptical, first of all, of a diagnosis reached solely on the basis of a records review, particularly one that contradicts the treating neurosurgeon’s diagnosis, both pre- and post-operatively. Second, while Claimant’s history of alcoholism is well documented in the record, none of the diagnostic testing completed at the time of his January 2010 hospitalization, including liver function studies, brain scan, CT and MRI, revealed any evidence of alcohol-related disease or associated motor disturbance. Dr. Boucher did not consider these test results to be relevant. However, Dr. White credibly explained why they made it less likely that the physical signs Claimant displayed were a consequence of alcoholism-related peripheral neuropathy, and more likely that they were indicative of cervical myelopathy. I find his reasoning on this point more persuasive than Dr. Boucher’s.
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Defense Witnesses as to Claimant’s Credibility
26. The importance that Dr. White in particular ascribed to the history Claimant reported warrants close examination of the latter’s credibility. Three witnesses testified on Defendant’s behalf on this issue – Ron Lamell, Sr., Ron Lamell, Jr. and Dennis Farley.
(a) Ron Lamell, Sr.
27. Ron Lamell, Sr. is Defendant’s president and owner. His father started the sawmill, and he began working there as a teenager. Over the years he has worked at every aspect of the business’ operation, though currently he spends most of his time in the office.
28. Mr. Lamell presented in all respects as a competent, responsible employer. His 35 employees, many of whom have been with the company for years, enjoy such benefits as health insurance, a generous profit sharing plan and Christmas bonuses. For the past four or five years, Mr. Lamell also has offered a workers’ compensation bonus program. According to this program, so long as no work-related lost-time injuries are reported during the preceding year, in addition to their Christmas bonuses employees also are paid for the holiday shut-down week. In Mr. Lamell’s experience, this program has not deterred employees from reporting work-related injuries as they occur. I find this testimony credible.
29. Mr. Lamell has known both Claimant and his father for many years. In addition to working at the mill, at times in the past Claimant had helped him work on antique cars and cut firewood. Claimant also was Mr. Lamell’s tenant, and was helping him renovate the rental property in which he lived. Mr. Lamell testified credibly that he and Claimant had long enjoyed a cordial, friendly relationship.
30. Mr. Lamell found reason to doubt Claimant’s account of having hit his head on the chipper chute, primarily because he could not believe that Claimant would have been in that area while the mill was running. The chipper machinery is particularly dangerous, and for that reason the room in which it is located is always chained off. The only time employees are instructed to clean up in that area is when the mill is shut down, on Saturday afternoons, for example. According to Mr. Lamell, for Claimant to have been shoveling chips there at the time he alleged, while the machinery was running, was prohibited.
31. At the same time, however, Mr. Lamell acknowledged that he knew Claimant to be an employee who did things his own way, including even wandering off occasionally to do whatever he thought needed to be done. I accept this characterization of Claimant’s work habits as credible.
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32. Mr. Lamell also doubted Claimant’s account of having fallen onto a plastic bucket at work on December 31, 2009. His reasons for doing so can be summarized as follows:
• According to Mr. Lamell, given the ever-present risk of a calamitous fire, open buckets of the type Claimant described were not available at the mill. Instead, only closed buckets with spouts were used to retrieve flammables such as grease or used oil from the maintenance shop;
• Claimant never reported the injury as work-related. To the contrary, when he left work early on January 4, 2010 and failed to show the next day, Mr. Lamell visited him at his home. According to Mr. Lamell, Claimant told him at that time that he had tripped over an ash bucket at home the previous Friday and hurt his ribs.
(b) Ron Lamell, Jr.
33. Ron Lamell, Jr. is the mill foreman. Like his father, he has worked there for his entire adult life. Unlike the senior Mr. Lamell, he spends most of his work day outdoors rather than in the office.
34. Mr. Lamell gave no testimony as to Claimant’s first alleged injury, involving the chipper chute. As to the second injury, Mr. Lamell testified that Claimant told him on Monday, January 4, 2010 that he had slipped and fallen on an ash bucket at home and jammed his ribs. Later that day, he left work early and never returned.
35. In late February 2010 Mr. Lamell visited Claimant at his home, to inquire as to his medical status and particularly, whether and when he might be planning to return to work. Claimant’s response was vague and indefinite, whereupon Mr. Lamell presented him with a letter terminating his employment. During the course of their conversation, Mr. Lamell never asked whether Claimant’s condition was in any way work-related, nor did Claimant ever volunteer that it was.
36. Claimant testified that the reason he did not report either having hit his head on the chipper chute or having fallen in the mill yard as work-related accidents was because he did not want to disqualify his co-employees from receiving their year-end workers’ compensation bonus. This reasoning might explain why he was reluctant to make a workers’ compensation claim initially. I cannot accept it as a credible explanation for his failure to do so after February 2010, when his employment for Defendant terminated. Indeed, at that juncture, rather than pursuing a claim for workers’ compensation benefits Claimant filed instead for unemployment compensation. Because he was as yet medically unable to work, his claim was denied. It was still some eight months after that before he first alleged having been injured at work. This he did by way of a Notice of Injury and Claim for Compensation (Form 5) filed by his attorney in November 2010.
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(c) Dennis Farley
37. Dennis Farley has been employed at the sawmill for 30 years. He recalled drinking coffee and chatting with Claimant in the break room on Monday, January 4, 2010, their first morning back at work after the holiday shut-down. According to Mr. Farley, Claimant told him that he had been working with sheetrock at home over the weekend and had hurt his neck. To Mr. Farley’s eye, however, Claimant did not look like he had hurt either his neck or his ribs.
Claimant’s Intellectual Functioning and Possible Memory Deficits
38. In the years since his alleged work injuries, Claimant has struggled at times with major depression.6 In the context of one such episode, in April 2011 he was hospitalized for more than two weeks for acute in-patient psychiatric treatment. In the course of that hospitalization, he underwent neuropsychological testing. Although the final report from that evaluation was not made part of the joint medical exhibit, preliminary results suggested that he suffered from longstanding memory deficits and other intellectual impairments. Notably, Claimant was described as being confident in his ability to recall information even though he did so incorrectly.
39. That Claimant was a vague historian is apparent from the medical records. The discrepancy between the history he reported to the walk-in clinic providers on January 4, 2010 and the one he reported only three days later has already been noted, see Finding of Fact No. 11, supra. Having closely evaluated his credibility as a witness, I can find no reason to believe that he concocted out of whole cloth either the chipper chute incident or the incident in which he fell on a bucket and injured his chest. That said, I have no confidence, and therefore cannot find, that those events occurred when and where he says they did, or that they led directly to the symptoms from which he subsequently complained.
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).
6 The disputed claims in the pending litigation were limited solely to the compensability of Claimant’s cervical injury. Whether his bouts with depression are causally related has not yet been put in issue.
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2. This claim turns entirely on Claimant’s credibility in describing two alleged work-related incidents, both unwitnessed, followed by a ten-month delay prior to asserting a claim for workers’ compensation benefits. In such instances, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies. Whether these are due to “hidden or not-so-hidden motivations,” Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995), or merely to faulty recollections, if a claimant cannot sustain his burden of proving that the relevant events occurred as and when he alleges they did, his claim must fail.
3. The commissioner has in the past enumerated four questions to assist in the process of evaluating a claimant’s credibility in such claims. First, are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? Second, does the claimant lack knowledge of the workers’ compensation reporting process? Third, is the work performed consistent with the claimant’s complaints? And fourth, is there persuasive medical evidence supporting causation? Jurden v. Northern Power Systems, Inc., Opinion No. 39-08WC (October 6, 2008); Larrabee v. Heavensent Farm, Opinion No. 13-05WC (February 4, 2005), citing Seguin v. Ethan Allen, Opinion No. 28S-02WC (July 25, 2002).
4. The contemporaneous medical records here do not help Claimant’s cause as to either of the work-related incidents he has alleged. They make no mention whatsoever of the chipper chute incident, and report vague and inconsistent histories as to both the timing and mechanism of his fall onto a bucket some three weeks later. The chronology of the symptoms Claimant reported at the time is likewise confused and variable. And while Claimant exhibited a credible history of continuing complaints after his cervical injury was discovered, this is of no use in determining what came before that injury.
5. No evidence was produced in answer to the second question listed above, whether Claimant lacked knowledge of the workers’ compensation reporting process. Claimant was aware of Defendant’s workers’ compensation bonus program, and testified that he was deterred from reporting his injuries as work-related for fear of disqualifying his co-employees from receiving their bonuses. As noted above, Finding of Fact No. 36, supra, I cannot accept this as a credible explanation for his decision to delay for as long as he did.
6. Was the work Claimant was performing at the time of the alleged incidents consistent with his subsequent complaints? Notwithstanding Mr. Lamell, Sr.’s credible testimony that Claimant should not have been working in or around the chipper chute while the mill was running, I can accept that on some day during the week before Christmas he likely did so nevertheless. I can also accept that he hit his head on the chute, in exactly the manner he alleged. What I cannot accept is that that event led immediately to the neurological symptoms he later described. I simply cannot believe that Claimant would have failed to mention the chipper chute incident to his medical providers had the temporal link to those symptoms been as obvious as he later asserted. I thus conclude that the work he was performing at the time does not credibly account for his subsequent complaints.
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7. As for the second alleged incident, I conclude that Claimant has failed to sustain his burden of proving that the event occurred at work rather than at home. Considered against Mr. Lamell, Sr.’s credible testimony regarding the ever-present risk of fire at a sawmill, Claimant did not adequately explain how he came to be carrying a flammable substance in an open container there. Nor did he once report the fall as having occurred at work, either to his medical providers, to Mr. Lamell, Sr. or to Mr. Lamell, Jr. It may be that despite these inconsistencies Claimant’s version of events is accurate nonetheless, but in the end I am unconvinced.
8. Conflicting testimony was offered as to the final factor, whether the medical evidence supports work-related causation. Dr. White acknowledged that his causation opinion was based entirely on factual assumptions as to both the mechanism of Claimant’s alleged chipper chute injury and the chronology of his subsequent symptoms. Dr. Boucher credibly assailed the first assumption, explaining why, given Claimant’s own description of the incident, it was doubtful that he hit his head with enough force to cause a cervical disc herniation. Lacking persuasive evidence to support a clear temporal link between that event and the neurological symptoms Claimant later reported I must reject Dr. White’s second assumption as well.
9. Even assuming that the second alleged incident, involving the fall onto a bucket, occurred at work rather than at home, the medical evidence establishing a causal link is similarly unconvincing. Both Dr. White and Dr. Boucher theorized that a fall of this type might have included a whiplash component, but their testimony was purely speculative, and unsupported either by Claimant’s own description of the event or by the contemporaneous medical records.
10. Considering the totality of the evidence, and with due regard for the questions raised in cases such as this, I conclude that Claimant has failed to sustain his burden of proving that either of the work-related incidents he alleged were the likely triggers for his cervical injury. Therefore, his claim for workers’ compensation benefits must fail.
11. Having concluded that Claimant’s cervical condition is not compensable, I need not decide which of the two permanency opinions offered is the most credible. I note nevertheless that Dr. White benefitted from having personally examined Claimant, and therefore was better able to evaluate his current symptoms. To the extent this informed his decision to add an additional impairment for ongoing cervical myelopathy, whereas Dr. Boucher failed to do so, I already have found Dr. White’s rating to be the more credible one. See Finding of Fact No. 25, supra.
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12. Claimant having failed to prevail on his claim for benefits, he is not entitled to an award of costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his cervical condition is hereby DENIED.
DATED at Montpelier, Vermont this 14th day of November 2012.
_______________________
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.

Jack Lehneman v. Town of Colchester (March 13, 2012)

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

Jack Lehneman v. Town of Colchester (March 13, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jack Lehneman Opinion No. 10-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Town of Colchester
For: Anne M. Noonan
Commissioner
State File No. CC-2409
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
David Mickenberg, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s dental injury arise out of and in the course of his employment for Defendant?
EXHIBITS:
Claimant’s Exhibit 1: Affidavit of Jack Lehneman, December 6, 2011
FINDINGS OF FACT:
The following facts are undisputed:1
1. Claimant is a 40-year-old veteran police officer who has served the communities of both Milton and Colchester.
2. On March 24, 2011 Claimant was working a 12-hour shift as a police officer for Defendant.
1 Defendant correctly observes that Claimant has failed to provide the “separate, short and concise” statement of material facts about which he contends there is no dispute, as required by V.R.C.P. 56(c)(2). He has, however, submitted his own sworn affidavit, which essentially serves the same purpose. For its part, Defendant has failed to submit its own separate statement of the material facts that it alleges are genuinely disputed, as V.R.C.P. 56(c)(2) also requires. While neither of these procedural defects precludes me from considering the parties’ substantive arguments, closer adherence to the requirements of Rule 56 would have been preferable. See, Webb v. LeClair, 2007 VT 65; Estate of Carr v. Verizon New England, Opinion No. 08-11WC (April 29, 2011).
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3. In keeping with longstanding practice, Defendant does not schedule assigned lunch or dinner breaks for police officers on 12-hour shifts. Rather, it expects officers to remain on duty during their entire shift, and encourages them to eat as they conduct their work over that period.
4. Defendant neither controls nor instructs police officers as to when, where or what to eat while on duty. Officers are free to obtain their meals from any source of their own selection, and to eat them when- and wherever they choose. Should they decide to eat at the police station, the premises are equipped with multiple refrigerators, utensils, microwave ovens and other necessary items to facilitate meals while working.
5. On the evening of March 24, 2011 Claimant purchased a hamburger for dinner from a local restaurant. He returned to his office and began doing paperwork while eating. As he bit into the sandwich, his front tooth hit a piece of bacon and broke.
6. Claimant immediately notified his supervisor and co-workers of his injury, and completed an incident report. Subsequently, on March 28, 2011 a First Report of Injury (Form 1) was filed with the Department of Labor.
7. Claimant sought dental treatment from Dr. Kentworthy, who determined that his tooth needed complete removal and replacement. The cost of this treatment is estimated to be approximately $4,700.00.
8. Defendant has denied Claimant’s claim for workers’ compensation benefits on the grounds that his dental injury was not incurred as a result of his employment.
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 non-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. Realty of Vermont, 137 Vt. 425 (1979).
2. Both parties here seek summary judgment in their favor on the question whether Claimant’s dental injury arose out of and in the course of his employment for Defendant. As the material facts are not genuinely disputed, disposition of this question on summary judgment is appropriate.
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3. The starting point for any workers’ compensation claim is whether the injury arose out of and in the course of employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injuries. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993).
4. For the purposes of the pending motions, Defendant does not dispute that Claimant’s injury occurred in the course of his employment. This prong of the compensability test is met when an injury is shown to have occurred “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). Generally speaking, injuries that occur on the employer’s premises during a regular lunch hour are deemed to have arisen in the course of employment. Miller, supra; Vivian v. Eden Park Nursing Home, Opinion No. 01-00WC (February 14, 2000), 2 Lex K. Larson, Larson’s Workers’ Compensation §21.02[1][a] (Matthew Bender, Rev. Ed.) and cases cited therein.
5. The crux of the parties’ dispute is as to the “arising out of” prong of the compensability test. What is required to satisfy this factor is a causal connection between an employee’s injury and his or her work – not necessarily in the sense of proximate or direct cause, but rather as an expression of origin, source or contribution. Snyder v. General Paper Corp., 152 N.W.2d 743, 745 (Minn. 1967); see, Shaw v. Dutton Berry Farm, 160 Vt. 594, 597-98 (1993) (overruling Rothfarb v. Camp Awanee, Inc., 116 Vt. 172 (1950), and characterizing tort-type proximate causation in the workers’ compensation context as narrow, unduly restrictive and contrary to the remedial purpose of the statute).
6. Vermont has long adhered to the “positional risk” doctrine in interpreting and applying the “arising out of” component of compensability. Miller, supra at 214, citing Shaw, supra at 599. Under Vermont law, 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 claimant in the position where [claimant] was injured.” Id., quoting 1 A. Larson, Workmen’s Compensation Law §6.50 (1990) (emphasis in original). Phrased alternatively, the positional risk doctrine asks simply whether an injury would or would not have occurred but for the claimant’s employment and his or her position at work. Shaw, supra.2
2 The positional risk analysis adopted in Vermont differs from the “neutral risk” rule applied in many other states. In order to satisfy the “arising out of” component under a neutral risk analysis, the conditions of employment must expose the employee to a risk of injury “greater than that to which the general public is exposed.” Illinois Consolidated Telephone Co. v. Industrial Commission, 732 N.E.2d 49, 56-57 (2000) (Rakowski, J., concurring). No such “greater-than-the-general-public” type exposure is required in a positional risk state. Id., citing 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law §7.04(1) at 7-15 (1999).
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7. In most cases, an injury that occurs during the “course of employment” also “arises out of it,” unless the circumstances “are so attenuated from the condition of employment that the cause of injury cannot reasonably be related to the employment.” Miller, supra at 215, quoting Shaw, supra at 598. The question in this case, then, is whether the obligations of Claimant’s employment – specifically, that he take his meals while working his shift – constitute a sufficient connection to his injury as to render it compensable.
8. In answering this question, I must distinguish the circumstances here from cases in which the conditions of employment either encourage or require the employee to take his or her meal from a certain source or under certain circumstances. See, e.g., Maguire’s Case, 451 N.E.2d 446 (Mass.App.Ct. 1983) (acknowledging compensability of dental injury sustained while biting into employer-supplied sandwich, but denying claim on other grounds); Goodyear Aircraft Corp. v. Industrial Commission, 158 P.2d 511 (Ariz. 1945) (injury from exploding soda bottle brought from home deemed compensable where conditions of employment required claimant to care for, prepare and consume lunch on premises); Krause v. Swartwood, 218 N.W. 555 (Minn. 1928) (injury sustained as result of drinking tainted coffee at restaurant deemed compensable where employer had directed claimant to eat there so that she could field incoming calls while at lunch). The circumstances giving rise to the injury in these cases are sufficiently connected to the employment to establish the required “arising out of” link.
9. In the current case, the conditions of Claimant’s employment admittedly were such as to encourage him to eat while working. However, they did not extend so far as to direct, or even suggest, that he eat any particular food from any particular source at any particular time. Claimant could have chosen another menu item, or another restaurant, or even brought his own meal from home. That he opted not to do so was a consequence of his own preferences, not any work-related obligation. See, Rehm-Brandt v. Rehm-Brandt’s Design, Opinion No. 44-01WC (November 29, 2001) (compensation for injury sustained while traveling to pick up lunch denied where obligations of employment did not so constrain claimant’s lunch time choices as to change the trip from a personal one to an employment-related one).
10. To impose liability upon employers for injuries suffered under the circumstances presented by the current claim would be both unrealistic and unwieldy. In effect it would require them to ensure that all of the food their employees consume while at work, no matter what the source, is safe. But how would an employer do so? Should it be granted the right to inspect an employee’s lunch box? To ban hard candy or caramels? To declare certain restaurants off-limits? I suspect that neither employers nor employees would stomach such intrusive devices well.
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11. While Vermont’s Workers’ Compensation Act “is to be construed liberally to accomplish the humane purpose for which it was passed, a liberal construction does not mean an unreasonable or unwarranted construction.” Herbert v. Layman, 125 Vt. 481, 486 (1966); Workers’ Compensation Rule 1.1100. The Act does not make the employer an insurer against every accidental injury that may happen to an employee during his or her employment. It applies only to those that reasonably can be said to have the employment as their origin. Snyder, supra at 752 (Otis, J., dissenting). The circumstances of Claimant’s injury were too attenuated from his work for me to make that connection here.
12. I conclude that although Claimant’s dental injury occurred in the course of his employment for Defendant, it did not arise out of it. As a matter of law, therefore, his claim for workers’ compensation benefits must fail.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s Motion for Summary Judgment is DENIED, and his claim for workers’ compensation benefits causally related to his March 24, 2011 dental injury is DISMISSED.
DATED at Montpelier, Vermont this 13th day of March 2012.
____________________
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.

Trevor Foley v. Smugglers’ Notch Management (June 3, 2013)

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

Trevor Foley v. Smugglers’ Notch Management (June 3, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Trevor Foley Opinion No. 16-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Smugglers’ Notch Management For: Anne M. Noonan
Commissioner
State File No. EE-51048
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 22, 2013
Record closed on April 15, 2013
APPEARANCES:
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
Did Claimant’s leg injuries arise out of and in the course of his employment for
Defendant?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Claimant’s statement, July 24, 2012
Defendant’s Exhibit B: Claimant’s statement, August 2, 2012
Defendant’s Exhibit C: Brewer statement, August 9, 2012
Defendant’s Exhibit D: Watson affidavit, October 12, 2012
Defendant’s Exhibit E: Byrne statement, July 23, 2012
Defendant’s Exhibit F: Moreau statement, July 25, 2012
Defendant’s Exhibit G: District Court file, State v. Bates
Defendant’s Exhibit H: Claimant’s timesheet
Defendant’s Exhibit I: Golf cart safety form
Defendant’s Exhibit J: Golf cart handbook
Defendant’s Exhibit K: Claimant’s punch card
Defendant’s Exhibit L: Moore report, July 26, 2012
Defendant’s Exhibit M: Smith report, July 23, 2012
Defendant’s Exhibit N: Map of Jeffersonville, Vermont roads
Defendant’s Exhibit O: Map of Smugglers’ Notch Resort and roads
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Defendant’s Exhibit P: Map of Smugglers’ Notch
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, 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
his 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. Claimant began working for Defendant in December 2011 as a ski lift operator. After the
winter season concluded, in June 2012 he was rehired as a common areas worker in the
housekeeping department. He worked the 3 p.m. to 11 p.m. shift.
Claimant’s General Work Duties and Daily Routine
4. Claimant had a regular routine to his daily duties. Upon arriving at work, he swiped his
time card and retrieved his time sheet, which included a list of his assigned tasks. Then
he signed out a set of keys to the supply closets and obtained a two-way radio. Next he
picked up his golf cart key and checked the cart’s oil and gas. Thereafter, he started his
listed jobs. When he was finished his shift, he returned to the operations center, parked
his golf cart so it would be available for the next shift, returned his keys and radio and
signed off duty.
5. Claimant was allowed to use a golf cart during his shift because he had undergone the
training Defendant required in order to qualify for the privilege. As part of his training,
Claimant acknowledged Defendant’s policy that those with golf cart privileges were
responsible for the safe operation of the vehicle to prevent injuries to employees, guests
or equipment. All of the golf carts are equipped with governors, which prevent them
from being driven at speeds in excess of 14 or 15 miles per hour.
The Events of July 22, 2012
6. On July 22, 2012 Claimant arrived at work to see a special assignment added in
handwriting at the top of his time sheet. After completing the special assignment he went
about his day, with little variation from his regular routine.
7. Upon finishing his last task of the day, which was to clean the Mountainside pool,
Claimant returned to the operations center. As he was filling out his paperwork and
preparing to sign off from his shift, a fellow employee, Brandon Bates, approached him
and grabbed his golf cart keys. Claimant testified that he thought Mr. Bates was just
fooling around, so he continued to fill out his paperwork. I find this testimony credible.
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8. When Mr. Bates did not return immediately, Claimant became concerned and went
outside to find him. He saw Mr. Bates driving the golf cart across the parking lot, and
reacted by jumping aboard. Claimant credibly testified that he was motivated to do so
because (1) he did not think Mr. Bates had golf cart privileges; (2) it was his
responsibility to secure the golf cart at the end of his shift; and (3) he did not want Mr.
Bates either to damage the golf cart or to injure himself.
9. In fact, Mr. Bates was intoxicated. Claimant made different statements as to exactly
when he realized that this was the case – either at the time Mr. Bates first took the golf
cart keys from him or not until later, when he jumped on the cart as Mr. Bates drove past.
I find from the more credible statements, which were made both to Defendant’s insurance
adjuster and to a law enforcement officer shortly after the incident occurred, that
Claimant first suspected Mr. Bates was intoxicated at the time he grabbed the keys. To
the extent that Claimant’s formal hearing testimony was inconsistent with these earlier
statements, I find that the differences were immaterial and did not affect his credibility.
10. After jumping onto the cart, Claimant pleaded with Mr. Bates to return immediately to
the operations center. Mr. Bates replied that he was going to drive himself home on the
cart, because he did not want to wait for a ride. Claimant responded that his mother
would come and pick them both up, but Mr. Bates still refused to stop. Instead, with
Claimant still in the cart he continued across Defendant’s grounds to Edwards Road, and
then turned onto Route 101. As the pair traveled up Route 101, Mr. Bates suddenly
jerked the steering wheel to the left. The golf cart overturned, and Claimant suffered
severe injuries to his right leg. He has undergone extensive medical treatment as a result.
Defendant’s Investigation of the July 22, 2012 Incident
11. Defendant interviewed several people in the days immediately following the July 22,
2012 incident. As a result of its investigation, it terminated both Claimant’s and Mr.
Bates’ employment for taking the golf cart off the premises.
12. Two of the people whom Defendant interviewed also provided testimony at the formal
hearing. Jan Moreau is Defendant’s transportation supervisor. She was working on the
evening of July 22, 2012 and finished her shift at 10 p.m. Ms. Moreau testified that at
approximately 10:30 p.m. she observed two males get into a golf cart, but she admitted
she did not see them well. It appeared to her that the men were trying to put gas in the
golf cart. Although credible, I find that Ms. Moreau’s testimony is of limited value, as
she could not state with certainty that the men she observed were in fact Claimant and
Mr. Bates.
13. Billy Burns is currently Defendant’s housekeeping manager. At the time of the golf cart
incident he managed the support crew, and as such he was Mr. Bates’ direct supervisor.
Mr. Burns did not witness the July 22, 2012 incident, but did interview Mr. Bates
subsequently. Mr. Burns credibly testified that Mr. Bates took sole responsibility for
taking the golf cart while he was intoxicated, and expressed remorse for his actions.
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CONCLUSIONS OF LAW:
1. 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.
2. 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).
3. 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 claimant in the position where
[claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1
Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called
“positional risk” analysis lays responsibility on an employer when an employee’s injury
would not have occurred “but for” the employment and the worker’s position at work.
Id.
4. Putting these two prongs of the compensability test together, the “in the course of”
requirement establishes a time and place connection between the injury and the
employment, while the “arising out of” requirement establishes a causal connection
between the injury and the employment. See Walbridge v. Hunger Mountain Co-op,
Opinion No. 12-10WC (March 24, 2010), citing Spinks v. Ecowater Systems, WC 04-217
(Minn. Work.Comp.Ct.App., January 21, 2005). Both connections are necessary for a
claim to be compensable. Carlson v. Experian Information Solutions, Opinion No. 23-
08WC (June 5, 2008).
The “In the Course Of” Prong
5. Defendant argues that because Claimant was under no work-related duty to accompany
Mr. Bates on the latter’s ill-fated joyride, his resulting injuries cannot be said to have
arisen in the course of his employment. Defendant further argues that Claimant was
engaged in horseplay at the time of his injury, and therefore substantially deviated from
his employment duties. For both of these reasons, Defendant asserts that Claimant has
failed to satisfy the first half of the compensability test.
6. A key component of what constitutes an employee’s work-related “duty” is whether the
activity benefits the employer. If it does, then it fits within the parameters of the term,
even if the employer did not specifically direct the employee to undertake the activity.
Kenney v. Rockingham School District, 123 Vt. 344 (1963).
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7. In this case, Defendant’s policy as regards employees’ use of golf carts included
responsibility for safeguarding against injuries to other employees, guests and equipment.
I have already found that Claimant’s motivation for jumping onto the golf cart Mr. Bates
had appropriated was in furtherance of those exact responsibilities. I conclude that his
actions clearly benefited Defendant.
8. As for Defendant’s contention that Claimant’s actions amounted to horseplay, again, the
facts dictate otherwise. Whatever horseplay occurred on July 22, 2012 was instigated
and continued by Mr. Bates, not by Claimant. According to the evidence I have found
most credible, Claimant neither condoned, encouraged nor participated in it. His actions
were directed at preventing mischief, not making it. To disqualify him from workers’
compensation coverage simply by virtue of another employee’s horseplay, not his own,
would be unfair. Clodgo v. Rentavision, 166 Vt. 548, 550 (1997) (citations omitted).
9. I conclude that the injuries Claimant suffered on July 22, 2012 occurred within the period
of time when he was on duty at a place where he was reasonably expected to be while
fulfilling the duties of his employment contract. Miller, supra. Therefore, they occurred
in the course of his employment.
The “Arising Out Of” Prong
10. As the Supreme Court noted in Shaw, supra at 598, ordinarily if an injury occurs in the
course of employment, it also arises out of it, “unless the circumstances are so attenuated
from the conditions of employment that the cause of the injury cannot reasonably be
related to the employment.” That is not the case here.
11. What is required to satisfy the “arising out of” test is a causal connection between an
employee’s injury and his or her work – not necessarily in the sense of proximate or
direct cause, but rather as an expression of origin, source or contribution. Snyder v.
General Paper Corp., 152 N.W.2d 743, 745 (Minn. 1967); see, Shaw v. Dutton Berry
Farm, 160 Vt. 594, 597-98 (1993) (overruling Rothfarb v. Camp Awanee, Inc., 116 Vt.
172 (1950), and characterizing tort-type proximate causation in the workers’
compensation context as narrow, unduly restrictive and contrary to the remedial purpose
of the statute).
12. Vermont has long adhered to the “positional risk” doctrine in interpreting and applying
the “arising out of” component of compensability. Miller, supra at 214, citing Shaw,
supra at 599. Under Vermont law, 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 claimant in the position where [claimant] was injured.” Id., quoting 1 A. Larson,
Workmen’s Compensation Law §6.50 (1990) (emphasis in original). Phrased
alternatively, the positional risk doctrine asks simply whether an injury would or would
not have occurred but for the claimant’s employment and his or her position at work.
Shaw, supra.
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13. In this case, the conditions and obligations of Claimant’s employment included direct
responsibility for the golf cart with which he had been entrusted. But for that
responsibility, he would have had no reason to jump onto the cart after Mr. Bates
commandeered it. Given the potential risk of immediate harm – to his co-employee, to
passersby and to the golf cart itself – it cannot be said that the circumstances under which
he did so were so attenuated from his employment as to fail the “arising out of” test.
Thus I conclude that his resulting injuries would not have occurred but for his position at
work.
Summary
14. I conclude that Claimant has established both that his injury occurred “in the course of”
his employment and that it “arose out of” his employment. Thus, his July 22, 2012
injuries are compensable.
15. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs
and attorney fees. He has submitted a request for costs totaling $203.08, and attorney and
paralegal fees totaling $4,589.00.1 Defendant did not object to these requests. I conclude
that both the costs and fees are reasonable and they are thereby awarded.
1 Claimant’s request for attorney fees has been modified to reflect the prevailing rate under Workers’ Compensation
Rule 10.1210, $145.00 per hour.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Temporary total disability benefits from July 22, 2012 until Claimant either
returned to work or reached an end medical result, whichever was earlier,
pursuant to 21 V.S.A. §642, with interest as calculated pursuant to 21 V.S.A.
§664;
2. Medical benefits covering all reasonable medical services and supplies causally
related to treatment of Claimant’s injuries in accordance with 21 V.S.A. §640;
and
3. Costs in the amount of $203.08 and attorney and paralegal fees in the amount of
$4,589.00 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 3rd day of June 2013.
_______________________
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.

Calvin McKiernan v. Standard Register (December 2, 2009)

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

Calvin McKiernan v. Standard Register (December 2, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Calvin McKiernan Opinion No. 47-09WC
v. By: J. Stephen Monahan, Esq.
Division Director
Standard Register Co.
For: Patricia Moulton Powden
Commissioner
State File Numbers Z-01455 and T-14760
OPINION AND ORDER
Hearing held in Montpelier, Vermont on August 27, 2008
Record closed on September 15, 2008
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
David Berman, Esq., for Defendant Liberty Mutual Insurance Company
Justin Sluka, Esq., for Defendant Travelers Insurance Company
ISSUES PRESENTED:
1. Did Claimant’s current low back condition arise out of and in the course of his employment at Standard Register?
2. Did Claimant’s right shoulder injury arise out of and in the course of his employment at Standard Register?
3. Is Claimant entitled to temporary disability benefits for any time after Standard Register closed for business and he was laid off?
4. Has Claimant reached an end medical result with regard to his current back and shoulder condition?
5. Is Claimant entitled to permanent partial disability compensation for an earlier workers’ compensation claim that occurred in February 2003 while Travelers Insurance Company was on the risk?
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PRE-HEARING MOTIONS:
Summary judgment shall be awarded to the moving party if it can demonstrate that there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. Summary judgment is mandated when, after an adequate time for discovery, a party “fails to make a showing sufficient to establish the existence of an element” essential to the case and on which it has the burden of proof at trial. Poplaski v. Lamphere, 152 Vt. 251 (1989), citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In evaluating the propriety of a summary judgment motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22 (1996); Murray v. White, 155 Vt. 621 (1991).
In this case, genuine issues of material fact exist that preclude summary judgment for any party. First, the parties dispute the relationship of Claimant’s current low back and shoulder complaints to his employment at Standard Register. Claimant’s evidence suggests that his stressful, repetitive work with the Hunkler2 machine aggravated his low back and shoulder condition. In contrast, one of Defendants’ experts is of the opinion that Claimant’s problems are the result of degenerative changes associated with the aging process. The evidence diverges on the critical question of causation, therefore, making summary judgment on the issue inappropriate.
Assuming that Claimant’s condition is found to be work-related, furthermore, the parties dispute whether he is either totally or partially disabled from working. Although the parties agree that the reason Claimant ceased working for Standard Register was because the company closed, not because of his injury, they dispute whether his injuries currently prevent him from finding employment. This too presents a genuine issue of material fact.
Last, Claimant and Defendant Travelers dispute whether he is entitled to any permanent partial disability benefits for the February 21, 2003 back injury. This issue as well poses genuine issues of material fact.
Because each of these issues raise disputed questions of material fact, summary judgment is not appropriate, and all such motions are denied.
FINDINGS OF FACTS:
1. At all times relevant to this proceeding, Claimant was an employee and Defendant Standard Register was his employer as these terms are defined in Vermont’s Workers’ Compensation Act.
2. Travelers Insurance Company (“Travelers”) was Defendant’s workers’ compensation insurer at the time of Claimant’s February 2003 compensable work-related injury (State File No. T-14760).
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3. Liberty Mutual Insurance Company (“Liberty”) was Defendant’s workers’ compensation insurer from July 1, 2003 until Standard Register ceased doing business in Vermont. Thus, Liberty was on the risk at the time of Claimant’s March 2007 injury claim (State File No. Z-1425).
4. The parties have stipulated that Travelers does not bear any liability for Claimant’s current back and shoulder claim. It may be liable for permanency benefits related to the 2003 injury.
5. Standard Register closed and ceased business on or about March 27, 2007.
6. Claimant worked full-time for Standard Register until the day the company closed.
7. Claimant did not seek treatment for his current alleged low back injury between July 2003 and March 14, 2007 (six days prior to his last day of work). Claimant worked full-time during that period, and no medical provider restricted his work activities during that period.
8. Claimant also first reported shoulder complaints on March 14, 2007. He saw a physician but no work restrictions were placed on him at that time.
9. According to Claimant, he had both back and shoulder complaints between July 2003 and March 14, 2007, but he feared losing his job if he reported another injury and so decided not to do so until just a week prior to being laid off. I do not find Claimant’s fear-of-termination story credible. He had filed complaints in the past, and had not been penalized by the company. In fact, he filed a mental stress claim during this period, and even quit his job for a week, but was rehired with no loss of seniority or benefits. I think it more likely that if Claimant was reluctant to file a claim, it was because he feared that if he were taken out of work he would be deemed ineligible for the severance package that the company was offering.
10. By his own admission, Claimant was willing to tailor his story to achieve a possible end. For example, after learning that the plant would be closing, Claimant thought he might want to become a truck driver. To that end, he went to a Dr. Iqbal, told the doctor that he had no complaints at all and sought a medical opinion that he was physically able to drive a truck. Claimant now alleges that these statements were not accurate, and that he only made them in order to obtain a medical release to drive a truck.1
1 As an aside, Claimant’s entire truck-driver scheme was rather unorthodox and demonstrates questionable judgment. He did not seek any formal training or evaluation, and evidently did not fully comprehend the demands of truck driving in any respect. After arranging to drive a friend’s truck, Claimant discovered that the job was harder than he initially had imagined and thereafter abandoned the plan.
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11. Claimant’s testimony surrounding the termination of physical therapy treatment for his 2003 back injury is also telling. The physical therapy notes indicate that his condition was improving over time. On March 28, 2003 Claimant cancelled his appointment with the physical therapist, reporting that he had no symptoms. He sought no further treatment. At his deposition in 2008 Claimant acknowledged that his back had improved with physical therapy. At the formal hearing, however, Claimant’s testimony was somewhat different. There he stated that he cancelled his physical therapy appointment because he was unhappy and angry with his employer, who was asking when treatment would finish. Claimant also suggested that he did not like the “light duty” jobs offered by Standard Register, so he decided to stop going to physical therapy and return himself to full duty work status. This pattern of changing his story to achieve what he perceived to be a more beneficial result makes Claimant a less than credible witness.
Temporary Disability Benefits
12. Notwithstanding Claimant’s limited credibility, I find Dr. Bucksbaum’s opinion, supported in part by Dr. Ensalada’s opinion as well, compelling. Claimant was employed for several years in a difficult job. The stresses and strains of that job caused him injury and accelerated the onset of his arthritic degenerative condition.
13. Drs. Bucksbaum and Ensalada believe that Claimant’s current back injury is not a recurrence of his February 2003 injury. Rather, they believe that Claimant’s work at Standard Register after the arrival of the Hunkler2 machine in July 2003 resulted in an aggravation of his pre-existing condition.
14. In contrast, Dr. Johansson is of the opinion that Claimant’s current back and shoulder problems are the result of age-related degenerative changes, and have not been caused by his work for Standard Register. Dr. Johansson does not adequately address whether Claimant’s work in any way accelerated the pre-existing condition. In this respect, I find Dr. Johansson’s opinion to be both less complete and less credible than the opinions of Drs. Bucksbaum and Ensalada.
15. Based on the medical records submitted, Claimant did not seek medical treatment for his low back or right shoulder between November 2003 and August 2006.
16. On or about June 11, 2007 Dr. Bucksbaum placed work restrictions on Claimant but did not bar him from all work. According to Dr. Bucksbaum, Claimant had a limited work capacity dating back to March 20, 2007. Under the circumstances, I find that opinion too speculative to accept. Claimant had managed to work a full schedule right up until that date, and presumably would have continued to work thereafter had he not been laid off due to the company’s closure. I find that the evidence establishes that June 11, 2007 is the earliest date that Claimant established an entitlement to temporary partial disability.
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17. Claimant began looking for work, and kept a job search log as soon as he learned that he was required to do so. Claimant is entitled to temporary partial disability benefits from June 11, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Notwithstanding the fact that he has some work capacity, Claimant has not worked at all during this period. Therefore, his temporary partial disability rate is equivalent to the temporary total disability benefit – two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
Permanent Partial Disability Benefits
18. Claimant essentially declared himself at end medical result on March 28, 2003 when he cancelled his physical therapy appointment and announced that he was ready for full duty work. He made no request for permanent partial disability benefits at that time, and the insurer on the risk at the time (Travelers) made no effort to evaluate whether any permanency benefits were due.
19. In 2003 the applicable statute of limitations within which to make a workers’ compensation claim was six years. Claimant’s claim for permanency benefits attributable to this earlier injury is timely. Because of the lapse of time between claimant’s “medical end” relating to the 2003 injury and the date of his permanency evaluations, an accurate determination is difficult, but not impossible.
20. Workers’ Compensation Rule 18.1100 provides that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.” Taken in its proper context, the rule contemplates that the trigger for the insurer’s action will be either a medical opinion establishing end medical result or a claim for permanent disability benefits. The rule does not anticipate a circumstance where a claimant would deem him- or herself at end medical result. As that is essentially what happened in this instance, I will not interpret Rule 18.1100 to require the insurer to have sought a permanency opinion before a claim was made or a medical determination rendered. I do note, however, that an insurer certainly could protect itself by seeking a determination of both end medical result and permanency at the time a claimant returns to work.
21. I find that Claimant had no impairment after the 2003 injury. Although Dr. Bucksbaum offered an opinion that Claimant had a 5% whole person impairment, he could not credibly testify that Claimant exhibited muscle spasm or guarding, asymmetric loss of range of motion, or non-verifiable radicular complaints at the time he returned to full duty work. I am therefore left with the opinion of Dr. Ensalada, which, although it appears to be an effort to offer a legal opinion rather than a medical opinion, is at least consistent with the 5th edition of the AMA Guides. Since the burden of establishing an entitlement to any permanency benefits is on the claimant, and Claimant has not met that burden, no benefits are awarded.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, sufficient competent evidence must be submitted verifying the causal connection between an injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984). Where the causal connection between an accident and an injury is obscure, and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
2. There must be created in the mind of the trier of fact something more than possibility, suspicion or surmise that the incidents complained of were the cause of the injury and resulting disability. Claimant must demonstrate that the most probable hypothesis is that the work incidents caused or aggravated the injury. See, Burton v. Holden Lumber, 112 Vt 17 (1941).
3. If a claimant has a pre-existing condition, he or she may still be entitled to workers’ compensation benefits if he or she is able to demonstrate that the work incident has aggravated or accelerated that pre-existing condition. See Jackson v. True Temper, 151 Vt. 592, 595 (1989).
4. The general rule is that a claimant who voluntarily quits his or her job for reasons unrelated to a compensable work injury is not entitled to temporary total disability. The workers’ compensation statute is remedial in nature, and so, to avoid harsh, unfair results, there is an exception to the general rule for a claimant who can demonstrate: (a) a work injury; (b) a reasonably diligent attempt to return to the work force; and (c) that the inability to return to the work force (or a return at reduced wages) is related to the work injury and not to other unrelated factors. See, e.g., J. D. v. Putney Paper Co., Opinion No. 13-08WC (April 8, 2008); J.P. v. Pollution Solutions of Vermont, Opinion No. 23A-01WC (October 5, 2001), citing Andrew v. Johnson Controls, Opinion No 3-93WC (June 13, 1993).
5. When a claimant had no wages prior to the date of disability, workers’ compensation benefits are calculated based on the pre-injury wages plus any additional cost of living increases that may have accrued in the interim. See J. D. v. Putney Paper Co., supra; J.P. v. Pollution Solutions of Vermont, supra.
6. I conclude that Claimant’s receipt of severance benefits does not prohibit his receiving workers’ compensation benefits for the same period. Severance benefits are paid in exchange for the release and waiver by the employee of any right to sue the employer. They are sufficiently different from wages so as not to be considered when evaluating a right to temporary disability benefits.
7. I also conclude that Claimant’s application for and receipt of unemployment benefits does not defeat his claim for temporary disability benefits. Claimant’s physician had placed work restrictions on him, but had not prohibited all forms of work. Furthermore, to the extent that Claimant receives temporary disability benefits during a period when he also received unemployment benefits, he will have to repay the latter.
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8. The Workers’ Compensation Act provides:
Where the disability for work resulting from an injury is partial, during the disability and beginning on the eighth day thereof, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average wage before the injury and the average weekly wage which he or she is able to earn thereafter.
21 V.S.A. §646.
9. Claimant has established that he was temporarily partially disabled as of June 11, 2007. He is entitled to temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Since Claimant was unable to find employment consistent with his limited ability to work payment shall be based on two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
10. For the purposes of workers’ compensation, “permanent disability” is established when the injured employee either reaches an end medical result or when maximum earning power is restored through resumption of employment. Wroten v. Lamphere, 147 Vt. 606, 610, (1987); Orvis v. Hutchins, 123 Vt. 18, (1962). The claimant has the burden of proving that a work injury has resulted in a permanent impairment. The degree of impairment must be determined using the 5th edition of the AMA guides. 21 V.S.A. §648. Claimant failed to meet his burden of establishing that he had a permanent partial disability impairment when he returned to full duty work in March of 2003.
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ORDER:
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that:
1. Claimant’s request for an award of permanent partial disability benefits based on the 2003 injury is DENIED.
2. Liberty Mutual is ORDERED to pay:
a. All medical benefits that are determined to be reasonable and necessary treatment for Claimant’s compensable March 2007 work injury;
b. Temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which Claimant establishes that he performed a good faith work search;
c. Liberty Mutual is further ordered to promptly evaluate Claimant’s entitlement to vocational rehabilitation services.
4. Claimant shall have 30 days from the date of this Order to submit his request for costs and attorney fees.
DATED at Montpelier, Vermont this 2nd day of December 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.

Joanna McNally v. State of Vermont, Department of PATH (November 15, 2011)

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Joanna McNally v. State of Vermont, Department of PATH (November 15, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Joanna McNally Opinion No. 37-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
Department of PATH For: Anne M. Noonan
Commissioner
State File No. Z-04152
OPINION AND ORDER ON REMAND1
Hearing held in Montpelier on May 20, 2009
Record closed on October 7, 2011
APPEARANCES:
Stephen Cusick, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant’s hand pain arise out of and in the course of her employment for Defendant?
2. Was Claimant’s hand pain causally related to her snow shoveling activities on February 18, 2008?
3. If Claimant’s hand pain was causally related to her snow shoveling activities, did these constitute a normal activity of daily living?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Marilyn Lindquist notes, May 16, 2007
Claimant’s Exhibit 2: E-mail exchanges, April 26th and 27th, 2007
Claimant’s Exhibit 3: Computer Workstation Assessment, 5/25/07
Claimant’s Exhibit 4: Dr. Kiely progress note, 2/20/08
Claimant’s Exhibit 5: Dr. Kiely progress note, 3/18/08
Claimant’s Exhibit 6: Dr. Kiely progress note, 4/3/08
1 The Commissioner’s original decision, denying Claimant’s claim for workers’ compensation benefits, was issued on November 3, 2009. Claimant appealed to the Vermont Supreme Court, which reversed and remanded for clarification of both the findings of fact and conclusions of law. McNally v. Department of PATH, 2010 VT 99.
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Claimant’s Exhibit 7: Dr. Kiely progress note, 4/23/08
Claimant’s Exhibit 8: Computer Workstation Assessment, 4/7/08
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Medical benefits pursuant to 21 V.S.A. §640
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 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.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant in various administrative positions for sixteen years. For the three years preceding the formal hearing she worked as a Benefits Program Specialist in the Division of Health Access. Her role was to process applications and determine eligibility for state-funded health care programs.
4. Claimant’s job required constant typing and data entry. Ninety-five percent of her day was spent on the computer. Claimant had held similar jobs in the past, but none involved as much constant and intense keyboarding as this position did.
5. Shortly after beginning this job, Claimant’s hands began to feel tired towards the end of her work week. She did not seek medical treatment, but did discuss her symptoms with a co-worker, Nicole McAllister. Ms. McAllister advised that at one point her hands had ached at work, but the problem resolved after she asked for an ergonomic assessment of her workstation and began using an ergonomic keyboard. Ms. McAllister suggested that Claimant try the same approach.
6. In April 2007 Claimant sent an e-mail to her supervisor in which she stated that her hands were “pretty tired” by the end of the day and asked that her office be assessed for possible ergonomic improvements. Upon receipt of this request, Claimant’s supervisor took the necessary steps to schedule an assessment.
7. During this same time period Claimant also mentioned at a routine visit with Defendant’s wellness nurse that her hands were becoming fatigued by the end of her work week. The nurse suggested hand stretch exercises and Advil as needed. She recommended as well that Claimant have her office checked for possible ergonomic changes.
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8. In May 2007 Claimant’s office was ergonomically assessed. Her chair was adjusted to the proper height, and a new keyboard was recommended so that her shoulders and wrists would be in a neutral position. Despite these changes, Claimant’s hands continued to be tired and achy by the end of her work week. Still she did not seek medical treatment, however. Instead, she medicated with Advil and took occasional Fridays off to rest her hands.
9. Between August 2007 and February 2008 Claimant visited Dr. Kiely, her primary care provider, five times – four times for acute problems and the fifth time, in January 2008, for a routine annual exam. She did not mention at any of these visits that her hands were tired or achy, and therefore she did not receive any medical evaluation or treatment for these symptoms.
10. On February 18, 2008 Claimant assisted her husband and son shoveling snow from the roof of their home. Claimant credibly testified that this was an activity they typically did at least once each winter. On this day, Claimant estimated that she spent about an hour and a half at the task.
11. When Claimant awoke the next day, her hands were swollen and painful. This had never happened to her before, and she was very concerned by it, enough so that she sought immediate treatment with Dr. Kiely.
12. Dr. Kiely treated Claimant for bilateral upper extremity pain from February 20, 2008 until August 2008. His diagnosis was bilateral enthesopathy, or damage to the tendons, in Claimant’s wrist, carpus and elbow region. For treatment, he prescribed occupational therapy, Advil as needed and reduced work hours.
13. Claimant gradually improved with therapy, but only slowly. By mid-August 2008, she reported that her pain had decreased significantly and was back to the baseline level she had experienced for some time prior to the February snow shoveling incident.
14. From the beginning Dr. Kiely attributed Claimant’s condition primarily to overuse caused by her work. He conceded that clearly the snow shoveling incident was the event that caused her to seek medical treatment, and acknowledged that there was no way to know when, or even if, she would have done so otherwise. In Dr. Kiely’s opinion, however, in order for that event to have been as significant as it was, Claimant already must have been suffering from a more chronic underlying dysfunction. Otherwise, the snow shoveling incident would not have caused such sustained symptoms, and Claimant likely would have recovered within a relatively brief period of time. The fact that she did not do so, combined with what Dr. Kiely understood to be the ergonomically deficient workstation at which she worked, convinced him that her problem was more one of repetitive stress, not acute insult.
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15. Dr. Mullins, the orthopedic surgeon with whom Claimant consulted at Dr. Kiely’s referral, refined Dr. Kiely’s diagnosis from enthesopathy to tendinitis, but concurred nonetheless with his causation analysis. In Dr. Mullins’ opinion, Claimant’s symptoms were predominantly musculoskeletal, not neurologic, and most likely were due to work-related overuse. Of note, however, Dr. Mullins did not examine Claimant until mid-August 2008, by which time she already was reporting that her symptoms were back to their pre-February baseline.
16. I accept as credible both Dr. Kiely’s and Dr. Mullins’ opinions as to the likelihood that Claimant suffered from some underlying dysfunction in her hands even before February 2008, which caused them to be achy and tired at times. The record establishes, however, that not even Claimant considered those symptoms sufficiently serious to warrant medical treatment until her snow shoveling activities caused them to worsen.
17. Dr. Backus, the independent medical evaluator retained by Defendant, concurred with Dr. Kiely’s enthesopathy diagnosis, but not with his opinion as to causation. According to Dr. Backus, Claimant’s primary work activity – typing – involved repetitive movement of her fingers, not her hands or forearms. Thus, it would be a very unusual cause of tendon damage in the wrist or elbow, because it did not require the type of repetitive forceful movement that typically is associated with an overuse injury to those joints. I find this analysis to be persuasive.
18. In contrast, the movements associated with snow shoveling require significant force to the tendons of the hand and wrist. Once these tendons become inflamed, it can take months, even years, for the symptoms to resolve. With that in mind, Dr. Backus concluded that the snow shoveling event caused the tendon damage for which Claimant ultimately sought treatment, not any work-related overuse. Again, I find this analysis to be persuasive.
19. As for whether Claimant suffered concurrently from some underlying dysfunction as well, Dr. Backus cautioned against using her complaint of achy, tired hands while engaged in work activities as the basis for diagnosing a work-related overuse injury. Such complaints are indicative of a temporal relationship between job-related tasks and symptoms, but it would be speculative to conclude that a causal relationship exists as well.
20. At Dr. Mullins’ referral, Claimant returned to physical therapy and was prescribed a TENS unit, which afforded her significant pain relief. In the fall of 2008 she was able to increase her hours back to full-time work. Defendant made additional ergonomic changes to her workstation, and also altered her job responsibilities to decrease the amount of computer data entry she was required to do. Despite these changes, at the time of the formal hearing Claimant was continuing to experience the same baseline pain in her hands that she suffered prior to the snow shoveling incident. She feared that her ongoing symptoms might affect her future employability. There was no indication from either party, however, that her position was in jeopardy.
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21. At the time of the formal hearing Claimant had not formally been placed at end medical result. Even so, it was unlikely she would be left with any ratable permanent impairment. The AMA Guides to the Evaluation of Permanent Impairment consider tendinitis to be a temporary condition only and therefore not subject to permanency rating.
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. The dispute in this claim concerns the causal relationship between Claimant’s work activities and the hand symptoms for which she treated from February through mid-August 2008. Claimant asserts that but for the hand pain associated with her job activities her snow shoveling injury, if it occurred at all, would have resolved far more quickly. Defendant argues that the snow shoveling injury alone was what compelled Claimant to seek treatment, and that to surmise that her recovery was prolonged by some underlying work-related condition is sheer speculation.
3. The starting point for any workers’ compensation claim in which the causal relationship between a claimant’s injury and his or her work is disputed is whether the injury arose out of and in the course of employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injuries. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993); see Spinks v. Ecowater Systems, WC 04-217 (Minn. Work.Comp.Ct.App., January 21, 2005).
The “Arising Out Of” Component
4. The issues raised by the “arising out of” component in this claim relate to medical causation. Competent expert medical testimony is required to remove a determination on this issue from the realm of speculation and establish a sufficient causal link between injury and employment. Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 103 (1964). Here, each party presented its own expert testimony. Dr. Kiely concluded that Claimant’s bilateral enthesopathy, though exacerbated by snow shoveling, was in fact caused by work-related overuse. Dr. Backus concluded that the shoveling alone caused Claimant’s enthesopathy, and further that it would be speculative to assume that any underlying injury was work-related at all.
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5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. With particular reference to the third factor, I conclude here that Dr. Backus’ opinion was the most credible. Considering the particular movements necessitated by Claimant’s primary work activities, I am convinced by Dr. Backus’ testimony that these would be an unlikely cause of the tendon damage in her hands, wrists and elbows. I find persuasive his conclusion that the upper extremity movements required by snow shoveling are a far more likely cause.
7. In contrast, Dr. Kiely’s causation opinion is based on a series of assumptions – first, that Claimant’s enthesopathy was caused primarily by her work activities, second, that it predated the snow shoveling incident, and third, that it prolonged her recovery. Yet none of these assumptions is sufficiently supported to move beyond mere speculation.
8. At best, the facts establish a temporal relationship between Claimant’s work and her complaints of tired, achy hands, but this alone does not establish causation. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983); Daignault v. State of Vermont, Economic Services Division, Opinion No. 35-09WC (September 2, 2009). Indeed, Claimant’s own testimony established a stronger temporal relationship between the snow shoveling incident and the alarming symptoms that almost immediately followed. It was these symptoms that prompted her to seek medical treatment, not her prior complaints.
9. Because the more credible medical evidence does not establish a causal connection, to the required degree of medical certainty, between Claimant’s work activities and her bilateral enthesopathy, I conclude that she has failed to satisfy the “arising out of” prong of the compensability test.
The “In the Course Of” Component
10. Having been directed on remand to address both prongs of the compensability test, I next consider whether Claimant’s enthesopathy occurred “in the course of” her employment. 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, supra at 98-99.
11. There is no dispute here but that Claimant’s snow shoveling activities occurred at home, and were not related in any way to her job duties for Defendant. The requisite time, place and activity link is lacking, therefore. Her injury did not occur “in the course of” her employment.
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Is Snow Shoveling a “Normal Activity of Daily Living”?
12. The final question to be addressed on remand is whether Claimant’s snow shoveling activities constituted a “normal activity of daily living.” This question would only have relevance were I to accept Dr. Kiely’s opinion as to the cause of Claimant’s hand pain – that it arose out of her employment for Defendant, but was exacerbated by her snow shoveling activities. I have concluded that the more credible medical evidence does not support this theory. It is instructive nevertheless to consider the circumstances under which a non-work-related activity will break the chain of causation back to what began as a work-related injury.
13. In addressing this issue, rather than questioning whether a particular non-work-related activity is “routine” or “normal,” the better inquiry is to ask whether it is reasonable under the circumstances. See 1 Lex K. Larson, Larson’s Workers’ Compensation §10.05 at p. 10-11 (Matthew Bender, Rev. Ed.). An exacerbation triggered by an activity that is itself rash given what the injured worker knows or should know about his or her condition will break the work-related connection required for a finding of compensability. Id., §10.06[3] and cases cited therein. An activity that is neither careless nor imprudent will not. Correll v. Burlington Office Equipment, Opinion No. 64-94WC (May 1, 1995).
14. I conclude from the evidence here that Claimant’s snow shoveling activities were reasonable under the circumstances. Given what she knew about her condition at that point, which was simply that her hands became tired and achy at the end of her work week, I cannot say that her decision to help clear snow from her roof was rash or injudicious. Had she been suffering from a work-related injury at the time, this activity would not have broken the causal link back to her employment.
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Summary
15. To summarize, I conclude from the more credible medical evidence that Claimant’s bilateral upper extremity symptoms from February through mid-August 2008 most likely resulted from enthesopathy causally related to her snow shoveling activities. I further conclude that the evidence is insufficient to establish, to a reasonable degree of medical certainty, that Claimant suffered from any underlying condition causally related to her work for Defendant that likely prolonged her recovery from this snow shoveling-related injury. Notwithstanding that her snow shoveling activities were reasonable under the circumstances, because her injury did not arise out of her employment it is not compensable.
16. As Claimant has not prevailed, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits is hereby DENIED.
DATED at Montpelier, Vermont this 15th day of November 2011.
_________________________
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.

Jeri Walbridge v. Hunger Mountain Co-op (March 24, 2010)

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Jeri Walbridge v. Hunger Mountain Co-op (March 24, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeri Walbridge Opinion No. 12-10WC
v. By: Phyllis Phillips, Esq.
Sal Spinosa, Esq.
Hunger Mountain Co-op Hearing Officers
For: Patricia Moulton Powden
Commissioner
State File No. Z-01496
OPINION AND ORDER
Hearing held in Montpelier on December 16, 2009
Record closed on January 19, 2010
APPEARANCES:
Patrick Biggam, Esq, for Claimant
James O’Sullivan, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s April 13, 2008 injury arise out of and in the course of her employment for Defendant?
EXHIBITS:
Joint Exhibit I: Payroll adjustment form, April 13, 2008
CLAIM:
Workers’ compensation benefits causally related to Claimant’s April 13, 2008 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.
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3. Claimant began working at Defendant’s grocery store in August 2004, first as a head cashier and later as a grocery stocker. At the time of her injury her work hours were Monday through Friday, 6:00 AM to 2:00 PM.
4. On Friday April 11, 2008 Claimant was sick and unable to work. She called and informed Defendant that she would not be coming in.
5. Defendant uses a payroll adjustment, or “PTO form” to document an employee’s paid time off for sick, personal or vacation leave. Before it can be processed, typically the form must be signed by the employee and initialed by his or her manager. On occasion, an employee can authorize a manager to complete the form on his or her behalf. In these instances the manager must call the employee and obtain the necessary verbal authorization to submit the form without the employee’s signature.
6. Because Friday, April 11th was close to the end of a payroll cycle, both Claimant and her supervisor, Leo Ormiston, recognized that a PTO form would need to be submitted by early the next week in order for Claimant to be paid for the day in her next paycheck. Claimant testified that she understood the deadline for submitting a completed PTO form to be the following Monday, April 14th. In fact, Defendant’s payroll assistant, Ms. Edson, testified that the deadline for submitting PTO forms was not until noon on Tuesday, April 15th. Mr. Ormiston testified to the same effect, and noted that it was common knowledge among employees that the deadline for submitting PTO forms was on the Tuesday of a pay week, not the Monday.
7. Mr. Ormiston testified that whenever an employee is out sick towards the end of a pay period, he typically calls to inquire whether they would like him to complete a PTO form on their behalf. To that end, at around noon on Friday, April 11th Mr. Ormiston left a voice mail message on Claimant’s phone, asking her to give him a call so that he could complete a PTO form for her. Both Claimant and Mr. Ormiston acknowledged that he had made similar calls to her in the past.
8. Claimant did not hear Mr. Ormiston’s voice mail message until mid-afternoon on Saturday, April 12th. By that time, she presumed Mr. Ormiston would have left for the day.
9. On Sunday, April 13th Claimant traveled from her home in Graniteville to Montpelier to visit her niece. On her way home, she decided to stop at Defendant’s store, both to pick up a few grocery items and to “fix that PTO form for [Mr. Ormiston].” Claimant acknowledged that neither Mr. Ormiston nor anyone else had asked her to come in on Sunday to complete the form, but given that she already was in Montpelier she thought that it was an opportune time for her to do so.
10. Upon her arrival at the store, Claimant chatted briefly with a co-worker, then spied Mr. Ormiston and told him she was going to take care of the PTO form. She proceeded to his office, completed the PTO form and left it on his desk. After doing so, Claimant again spoke briefly to Mr. Ormiston, and then focused her attention on purchasing the four grocery items she needed. As she exited the store and walked through the parking lot to her car, she stepped on a rock, rolled her right ankle and fell to the ground. Other
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customers assisted her to her feet and helped her to her car. By the time Claimant got home, her right ankle was swollen and painful.
11. Claimant worked her scheduled shift on Monday, April 14th. Mid-morning she inquired of Ms. Edson whether her PTO form had been submitted, as she was concerned that her paycheck for the week be appropriately calculated. Ms. Edson replied that she did not yet have the form, but reassured Claimant that she would get it in time. In fact, as Mr. Ormiston typically did not work on Mondays, he did not approve and submit the form until Tuesday morning, April 15th. As noted above, however, this was still timely enough to allow Ms. Edson to process it for the pending pay period.
12. Claimant worked her scheduled hours for the remainder of the week, but her ankle became increasingly painful. By Friday, April 18th she could no longer stand on it and had to leave work early in order to seek treatment.
13. Claimant was disabled from working for approximately nine weeks as a result of her ankle injury. She also incurred unspecified medical expenses. Defendant issued a timely denial of her claim for workers’ compensation benefits on the grounds that her injury did not arise out of or in the course of her employment.
CONCLUSIONS OF LAW:
1. 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.
2. 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).
3. 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 claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called “positional risk” analysis lays responsibility on an employer when an employee’s injury would not have occurred “but for” the employment and the worker’s position at work. Id.
4. Putting these two prongs of the compensability test together, the “in the course of” requirement establishes a time and place connection between the injury and the employment, while the “arising out of” requirement establishes a causal connection between the injury and the employment. See Spinks v. Ecowater Systems, WC 04-217 (Minn. Work.Comp.Ct.App., January 21, 2005). Both connections are necessary for a claim to be compensable. Carlson v. Experian Information Solutions, Opinion No. 23-08WC (June 5, 2008).
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Claimant’s Employment “Duties”
5. Defendant asserts first that Claimant’s injury did not occur “in the course of” her employment because she was under no work-related duty to sign and submit the PTO form on Sunday, April 13th. Claimant could have authorized Mr. Ormiston to complete the form on her behalf. Alternatively, she could have waited until Monday, or even Tuesday, to complete the form and still it would have been submitted in time to be included in that week’s payroll. With those alternatives in mind, Defendant argues that by presenting herself at the store on Sunday in order to sign the PTO form Claimant was not in any way “fulfilling the duties of her employment contract.” Marsigli Estate, supra.
6. The concept of “duty” cannot be so strictly construed, however. Miller, supra at 215. A broader view of what is encompassed by an injured worker’s employment best furthers the remedial purpose of the workers’ compensation act. Id. at 216, citing Shaw, supra.
7. A key component of what constitutes an employee’s work-related “duty” is whether the activity benefits the employer. If it does, then it fits within the parameters of the term, even if the employer did not specifically direct the employee to undertake the activity. Kenney v. Rockingham School District, 123 Vt. 344 (1963).
8. In Kenney, the claimant, a home economics teacher, enrolled as a student in an evening sewing class taught at her school. Her motivation for doing so was both to improve her teaching ability and to become better acquainted with the mothers of some of her students, who also had enrolled in the class. While exiting the building after class one night, she fell on some icy steps and injured herself. The court held that the claimant had been engaged in an activity that, though voluntary, had been undertaken in good faith in order to advance her employer’s interest. As such, it fit within the scope of her work-related “duties.” Kenney, supra at 347, citing Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 178 (1950) (overruled on other grounds, Shaw, supra).
9. Another aspect of an employee’s work-related “duty” focuses on the essential elements of the employment contract. The ability to tender and receive the agreed upon compensation is an essential component of the relationship between employer and employee. When an employee is injured while engaged in the process of collecting his or her paycheck, therefore, such injuries are deemed compensable. See, e.g., Dunlap v. Clinton Valley Center, 425 N.W.2d 553 (Mich.App. 1988); Oliver v. Faulkner Wood Co., 531 So.2d 675, 677 (Ala.Civ.App. 1988) (citing 1A A. Larson, The Law of Workmen’s Compensation §26.30). This is true even if the paycheck at issue is the final one, tendered and received some days after the injured worker’s employment terminated. 2 Larson’s Workers’ Compensation Law §26.03[1].
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10. Here, Claimant’s work-related duties included assisting Defendant in ensuring that the compensation due her was appropriately documented, accurately calculated and paid on time. Claimant was fulfilling that aspect of her employment contract when she appeared at the store on Sunday, April 13th to sign the PTO form. True, Claimant might have chosen another time to complete the form, for example when she came in for her scheduled shift on Monday, or even another method, such as by authorizing Mr. Ormiston to sign it for her. However, neither of these considerations negates the fact that by doing what she did when and where she did it she was fulfilling a work-related duty, one that she undertook in good faith to benefit both her and her employer mutually. Kenney, supra at 348; (1963); Livering v. Richardson’s Restaurant, 374 Md. 566 (2003) (finding compensable an on-premises injury that occurred while employee was checking her work schedule on her day off).
11. The facts in Livering are instructive. The claimant in that case, a restaurant employee, visited the restaurant while in the course of running personal errands on her day off so that she could check her work schedule. After doing so, she socialized briefly with her co-employees, then slipped and fell as she left the premises to continue her other errands. The court found her injury to be compensable. Arriving to work on time, the court stated, was a necessary component of the claimant’s work duties, and therefore checking the work schedule, which the employer often changed unexpectedly, benefitted both parties mutually.
12. In reaching its conclusion the Livering court remarked that the fact situation it was considering created an even stronger work connection than the one found in cases involving terminated employees injured while collecting their final paychecks. See supra, Conclusion of Law No. 9. Those cases involved an employer-employee relationship that was about to end, whereas the Livering case involved one that was ongoing.
13. Here too, Claimant’s activities arose in the context of an ongoing employment relationship, and therefore present a convincing case for consideration as a component of her work-related “duties.” Given the expanded nature of the concept of how an employee “fulfills the duties of the employment contract,” Miller, supra, I conclude that Claimant was so engaged at the time of her injury.
The “Dual Purpose” Doctrine
14. Defendant also argues that Claimant’s injury did not occur “in the course of” her employment because the primary reason for her trip to the store on Sunday, April 13th was to pick up some groceries, and only incidentally to complete the PTO form. Analyzing this argument requires consideration of the “dual purpose” doctrine.
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15. The dual purpose doctrine recognizes that at times an employee may be injured while engaged in activities that serve both personal and business interests. For such an injury to be compensable, the business-related purpose need not be the sole motivation, but it must at least be a concurrent one. Brailsford v. Time Capsules, Opinion No. 12-00WC (May 17, 2000), citing Marks Dependents v. Gray, 251 N.Y. 90 (1920). Thus, to establish liability, there must be sufficient evidence from which to infer that even if Claimant had abandoned her intention to grocery shop she still would have made the trip to Defendant’s store so that she could complete the PTO form. See 1 Larson’s Workers’ Compensation Law §16.02 and cases cited therein.
16. Here, I accept as credible Claimant’s testimony that she decided to stop at Defendant’s store primarily to complete the PTO form, and only tangentially to grocery shop. This testimony is buttressed by the fact that Claimant made a point of checking with Defendant’s payroll assistant early Monday morning to see if Mr. Ormiston had submitted the form. It shows that she ascribed special importance to ensuring that the form was appropriately completed and submitted on time. I infer from this evidence that Claimant most likely would have traveled to the store on Sunday even if she had had no need for the grocery items she purchased while she was there.
17. I conclude, therefore, that Claimant was acting “in the course of” her employment for Defendant at the time of her injury. Traveling to the store on Sunday to complete the PTO form was an activity that she undertook primarily to advance her employer’s interests. Thus it fell within the context of her employment duties, even though the trip may have served her personal interests as well.
“On Premises” Injury
18. As a final argument, Defendant asserts that Claimant’s injury is not compensable because it occurred after she had left Defendant’s store and was walking to her car in the parking lot. The Vermont Supreme Court specifically addressed this issue in Miller, holding that an injury that occurs on the employer’s premises while the employee is going to or coming from work is compensable. Id. at 216. Having determined that completing the PTO form constituted a work activity, Defendant’s liability for any injuries related thereto continued for so long as Claimant was on its premises. Defendant’s argument to the contrary is completely unavailing.
The “Arising Out of” Component
19. Having met the “in the course of” component of compensability, I conclude that Claimant has met the “arising out of” component as well. As the Supreme Court noted in Shaw, supra at 598, ordinarily if an injury occurs in the course of employment, it also arises out of it, “unless the circumstances are so attenuated from the conditions of employment that the cause of the injury cannot reasonably be related to the employment.”
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20. The circumstances are not so attenuated here. As discussed above, see Conclusion of Law No. 9, a key component of any employee’s employment revolves around the process by which he or she is paid. That process necessarily qualifies as one of the “nature, conditions, obligations or incidents of the employment.” Kenney, supra at 349. But for Claimant’s employment for Defendant, she would not have been in a position to complete the PTO form, and thus to be injured. Shaw, supra.
21. I conclude, therefore, that Claimant has established both that her injury occurred “in the course of” her employment and that it “arose out of” her employment as well. Her April 11, 2008 injury is compensable.
22. As Claimant has prevailed, she is entitled to an award of costs and attorney fees pursuant to 21 V.S.A. §678. In accordance with §678(e), Claimant shall have 30 days from the date of this decision within which to submit her 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 as causally related to her compensable right ankle injury, with interest as provided in 21 V.S.A. §664; and
2. Costs and attorney fees in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 24th day of March 2010.
___________________________
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.

P. K. v. Addison-Rutland Supervisory Union (August 2, 2007)

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

P. K. v. Addison-Rutland Supervisory Union (August 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. K. Opinion No. 20-07WC
v. Phyllis Severance Phillips, Esq.
Hearing Officer
Addison-Rutland Supervisory
Union Patricia Moulton Powden
Commissioner
State File No. W-57184
OPINION AND ORDER
Hearing held in Montpelier on March 26, 2007
APPEARANCES:
Christopher McVeigh, Esq. for Claimant
David Berman, Esq. for Defendant
ISSUES PRESENTED:
1. Whether Claimant suffered a compensable injury in the course and scope of her employment for Defendant on January 3, 2005; and
2. If yes, to what benefits is she entitled, and at what compensation rate.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit A: Teacher Contract
Defendant’s Exhibits:
Defendant’s Exhibit 1: Curriculum Vitae of Todd P. Lefkoe, M.D.
Defendant’s Exhibit 2: Addison-Rutland Supervisory Union Calendar for 2004-05
Defendant’s Exhibit 3: Pauline Kearney Sick Time
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CLAIM:
1. Temporary total disability benefits under 21 V.S.A. §642 from January 3, 2005 through January 28, 2005;
2. Temporary partial disability benefits under 21 V.S.A. §646 from February 1, 2005 through February 28, 2005;
3. Permanent partial disability benefits under 21 V.S.A. §648 in an amount to be determined based on the extent of Claimant’s permanent impairment;
4. Interest on the above under 21 V.S.A. §664; and
5. Attorney’s fees and costs under 21 V.S.A. §678.
FINDINGS OF FACT:
1. At all times relevant to these proceedings Claimant was an employee of Defendant, and Defendant was Claimant’s employer, within the meaning of Vermont’s Worker’s Compensation Act.
2. Claimant has worked as a librarian at the Fair Haven Graded School since 1988. Her duties include teaching and reading with students, purchasing, stacking and shelving books and generally maintaining the library.
3. The bookcases in the school library are about four feet tall, with shelves ranging from the floor up to the four-foot height. Re-shelving books requires frequent carrying, bending, twisting, reaching and stooping, particularly to replace books on the lower shelves. Students who borrow books are discouraged from re-shelving them; thus Claimant is solely responsible for this task.
4. Claimant has a history of low back pain, diagnosed as lumbar spinal stenosis, dating back to 1996. Her symptoms at that time were right-sided low back and buttock pain radiating to her right groin and knee. She treated with Joseph Corbett, M.D., a neurosurgeon, who performed an L4-5 laminectomy in December 2006.
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5. Claimant recovered well from her 1996 surgery. From 1996 until January 2005 she experienced only minor episodes of low back, hip and/or lower extremity pain. Specifically:
(a) In July 1997 Claimant reported to Dr. Corbett that she had been experiencing some discomfort in her left buttock and knee, which resolved with conservative treatment and home exercise;
(b) In October 2002 Claimant treated with Robert Larson, D.C., a chiropractor, for left leg pain radiating from her sciatic notch to her knee. Dr. Larson diagnosed lumbar radicular syndrome at the L4 nerve root and degenerative spondylolisthesis at L4. He prescribed a lumbar stretching and stabilization program. Dr. Larson re-examined Claimant on December 2, 2002 and reported that her symptoms had improved significantly. On December 20, 2002 he reported that Claimant’s symptoms had resolved completely and she was released from treatment;
(c) On November 10, 2004 Claimant again sought treatment with Dr. Larson, this time for right hip pain. She missed one day of work. Dr. Larson performed manual therapy and her symptoms resolved.
6. The Fair Haven Graded School closed for the Christmas holiday from December 22, 2004 until January 3, 2005. During this time Claimant wrapped gifts, prepared Christmas dinner, performed ordinary household tasks and visited with her family. She did not engage in any strenuous outdoor activities or travel long distances. She did not suffer any injuries, did not experience any low back, hip or lower extremity pain and did not seek any medical treatment.
7. The Christmas break ended on January 3, 2005 and Claimant returned to work. Claimant arrived at the school at 8:00 AM and began re-shelving books. Because many students had returned books borrowed over the holiday break, Claimant had more books to re-shelve than usual. She spent the morning doing so.
8. Over the course of the morning, Claimant began to experience discomfort in her left lower back. At noon, she went to the school nurse’s office. The school nurse on duty that day, Mary Waite, R.N., gave Claimant four ibuprofen. Claimant took two pills immediately and two more one-half hour later.
9. By 1:00 PM Claimant was experiencing what she described as excruciating, unbearable pain radiating from the left side of her back down her left leg and into her left big toe. Claimant felt nauseous from the pain and decided to leave work immediately. She asked a co-employee to go to the office for her and report that she was leaving.
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10. Claimant secured an emergency appointment with Dr. Larson for 3:30 PM on January 3, 2005. Dr. Larson’s note reflects that Claimant reported that “her symptoms all began earlier today, while at work,” and that they “began during the course of her usual duties around mid morning.” Dr. Larson noted that Claimant’s pain seemed to follow the L4 distribution, but was left-sided this time, in contrast to the right-sided pain Claimant had experienced in 1996. Dr. Larson performed a chiropractic manipulation, but when that failed to relieve Claimant’s pain he determined that Claimant needed medications for immediate pain control. Because Dr. Corbett was not available, Dr. Larson recommended instead that Claimant go to the hospital emergency room. In addition, Dr. Larson scheduled an MRI for the next day, January 4, 2005 and an appointment with Dr. Corbett for January 14, 2005.
11. Claimant went to the Rutland Regional Medical Center Emergency Department at 6:00 PM on January 3, 2005 and was examined by Steven Stein, M.D. Dr. Stein’s note states that Claimant “woke up with her back feeling stiff” and that it “progressively got worse with pain radiating into her left buttock and down into the left calf.” Dr. Stein administered pain medications and steroids and discharged Claimant to follow up with Dr. Corbett.
12. In her formal hearing testimony Claimant disputed Dr. Stein’s report that her symptoms began before work on January 3, 2005. She stated that she told Dr. Stein that the discomfort in her low back began “in the morning,” and he implied from that statement that it was present when she awoke, which was not the case.
13. Claimant’s pain subsided with the medications Dr. Stein administered, but the following day she began to experience numbness in her left leg, foot and toe. On that day, January 4, 2005, she turned her left ankle while walking and sprained her foot. Claimant testified that she did not slip, trip or stumble, but that her ankle turned because it was numb and difficult to control.
14. Claimant underwent an MRI on January 4, 2005 which revealed degenerative disc changes at L4-5, slightly greater than on previous exam in 1996.
15. Claimant next treated with Dr. Larson on January 5, 2005. Dr. Larson reviewed the MRI scan and noted that the results correlated well with Claimant’s clinical picture of combined L4-5 symptoms and neurological deficits. Dr. Larson reported that Claimant’s low back and leg symptoms had improved significantly and that there was no evidence of acute nerve root tension. However, Dr. Larson noted profound weakness in Claimant’s left ankle muscles. He prescribed an ankle brace as treatment and later added a self-guided ankle rehabilitation program as well.
16. Dr. Larson determined that Claimant was totally disabled from working from January 4, 2005 until February 1, 2005 as a result of both her low back and left leg pain and her left ankle sprain.
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17. On the evening of January 4 or 5, 2005 Claimant called the school nurse, Mary Waite, R.N., at home to report that she had injured herself at work and that Dr. Larson had taken her out of work for the month. Ms. Waite acknowledged receiving this call but could not recall any of its details.
18. Ms. Waite testified that it was unusual for a school employee to call her at home to report a work-related injury. She testified that under normal circumstances when an employee reports a work-related injury to her, she gives him or her a First Report of Injury form to fill out, with instructions to return the form to her within three days. If the employee fails to do so, it is Ms. Waite’s responsibility to follow up.
19. Ms. Waite testified that she did not record every request by an employee for ibuprofen. Nor did she keep a record of an employee’s complaint of pain or discomfort if she did not understand it to be work-related.
20. Ms. Waite did not provide Claimant with a First Report of Injury form, either on January 3, 2005 when she gave Claimant ibuprofen for her low back pain, or following Claimant’s telephone call on the evening of January 4 or 5, 2005.
21. Claimant did not file a First Report of Injury form until February 2, 2005 upon her return to work part-time.
22. Dr. Larson treated Claimant for her ankle sprain and foot drop throughout the months of January and February 2005. He prescribed a home therapy program and continued use of an ankle brace.
23. Dr. Corbett examined Claimant on January 14, 2005 and again on February 14, 2005. He noted Claimant’s left foot drop, with left-sided dorsiflexion weakness and some numbness as well. Ultimately, Dr. Corbett determined that Claimant had improved with lumbar flexion exercises and therefore did not require either epidural steroid injections or surgery. Aside from a final re-check on May 3, 2005 Claimant has not sought further treatment from Dr. Corbett.
24. Dr. Larson released Claimant to return to work half-days from February 1, 2005 through February 27, 2005. He released her to return to work full-time, full-duty on February 28, 2005.
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25. Both Dr. Corbett and Dr. Larson theorize the progression of Claimant’s symptoms as follows:
(a) Claimant had a degenerative condition in her lumbar spine at the L4-5 region for which she underwent surgery in December 1996;
(b) This degenerative condition caused Claimant to be more vulnerable to pinching a nerve in her lumbar spine;
(c) The bending, squatting, stooping and twisting Claimant performed while re-shelving books on January 3, 2005 are the types of activities that can cause an L-5 nerve root to become pinched, and based on the temporal relationship between these activities and the onset of Claimant’s severe low back and leg pain it is likely that this is in fact what caused Claimant’s L5 nerve root to become pinched;
(d) The nerve damage caused by the pinched L5 nerve root caused Claimant to suffer dorsiflexion weakness in her left foot, resulting in numbness and an inability to pick up the front of her left foot;
(e) This “foot drop” caused Claimant’s left ankle to be easily inverted, as happened on January 4, 2005 when she sprained her ankle.
26. At Defendant’s request, on March 1, 2005 Claimant underwent an independent medical evaluation with Todd Lefkoe, M.D., a physiatrist. Dr. Lefkoe reviewed all pertinent medical records and conducted a thorough physical examination. Dr. Lefkoe reported that Claimant described “going about her normal work activities, squatting and shelving books,” that “within a few hours of starting work, she became aware of some discomfort in the low back,” and that “over the course of the next 1 to 1-1/2 hours, pain became ‘excruciating’ in the left low back.” Dr. Lefkoe also remarked that Claimant “reported her symptoms to the school nurse, but [was] unsure whether an official report of injury was made.”
27. Dr. Lefkoe’s diagnosis was left L5 radiculopathy, L4-5 spondylolisthesis and L4-5 central stenosis secondary to spondylolisthesis and facet arthropathy.
28. As to causal relationship, Dr. Lefkoe opined that these conditions were not related to Claimant’s work activities on January 3, 2005 but rather were solely degenerative in nature. Dr. Lefkoe based this opinion primarily on the lack of a temporal relationship between Claimant’s work and the onset of her symptoms. Significantly, in reaching this conclusion Dr. Lefkoe relied on the January 3, 2005 Emergency Department record noting that Claimant had awoken with back pain on that day. In doing so, he chose to disregard Claimant’s own version of events as well as Drs. Larson and Corbett’s records, which reported that Claimant’s symptoms began at mid-morning on January 3rd, after she already had been at work for some time.
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29. Since 2005 Claimant has continued to experience left ankle weakness, fatigue and instability. She continues to use an ankle brace. According to Dr. Larson, her symptoms are stable and are not expected to improve with further treatment.
30. Claimant’s employment contract with Defendant for the 2004-2005 school year provides as follows:
1. This agreement . . . is hereby made for the school year beginning July 1, 2004 and ending June 30, 2005.
2. The period of service shall begin August 23, 2004 and continue for not more than 180 teaching days. In addition, the teacher agrees to attend educational meetings and inservice programs for a period of time not to exceed five (5) additional days during or immediately following the school year, as directed by the Superintendent of Schools.
3. [T]he teacher’s total compensation under this contract [is determined] to be $43,815.
31. During the school year, Claimant received her pay on a bi-weekly basis. During the summer months, Claimant had the option of receiving the remainder of her annual salary in a lump sum rather than continuing with biweekly payments. Claimant chose the lump sum option.
CONCLUSIONS OF LAW:
Compensability
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). Sufficient competent evidence must be submitted verifying the character and extent of the injury and disability, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. It is black-letter law that an employer takes its employee as it finds him or her, and that therefore the work-related aggravation of a pre-existing condition is compensable. See Pacher v. Fairdale Farms, 166 Vt. 626 (1997); J.M. v. Vencor/Starr Farm Nursing Center, Opinion No. 09-04WC (Feb. 12, 2004); Moran v. City of Barre, Opinion No. 33-02WC (July 31, 2002).
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3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003). With these factors in mind, the key question is which expert medical opinion is the most credible? Bonenfant v. Price Chopper, Opinion No. 13-07WC (May 8, 2007).
4. The disputed issue in the current claim centers on whether the left foot drop from which Claimant now suffers, which followed the episode of severe low back and left leg pain she experienced on January 3, 2005 is causally related to her book re-shelving activities on that day. Drs. Larson and Corbett say yes; Dr. Lefkoe says no.
5. At the heart of the doctors’ dispute as to causation is the existence, or lack thereof, of a temporal relationship between the onset of Claimant’s symptoms and her work activities on January 3, 2005. Drs. Larson and Corbett’s opinion as to causation stems in large part from their belief that Claimant’s symptoms arose at work. Both doctors concluded that the type of activities in which she was engaged at the time – bending, squatting, twisting and stooping – involved movements that reasonably could be expected to cause her to suffer a pinched nerve in her lumbar spine, particularly given her pre-existing degenerative condition. The symptoms she experienced, including both the severe pain she suffered on January 3rd and the left foot drop that developed subsequently, were consistent with their causation theory. Their opinions were clear, thorough and objectively supported by medical fact and anatomical reality.
6. In contrast, Dr. Lefkoe’s causation opinion takes as its starting point that Claimant’s symptoms began when she awoke on January 3, 2005 and therefore already were present when she arrived at work on that day. Were that fact true, Dr. Lefkoe’s conclusion that Claimant’s symptoms were not causally related to her work would be more convincing, and her claim might fail.
7. I find no reason to disbelieve Claimant’s version of events, however. Her testimony at formal hearing was both credible and consistent with what she had reported to both Drs. Larson and Corbett and, in fact, to Dr. Lefkoe as well. The only discrepancy in the medical record comes from Dr. Stein’s Emergency Department report. I find it reasonable to surmise that Dr. Stein simply misunderstood.
8. It is true that a temporal relationship alone may be insufficient to support a finding of medical causation. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983). However, if evidence of a temporal relationship is combined with (1) a pre-existing condition that makes the resulting injury more likely to occur; and (2) work activity of a type that is likely to cause the symptoms that in fact result, the necessary causal connection may be established. See McMillan v. Westaff, Opinion No. 52-03 (Dec. 17, 2003).
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9. I find that Drs. Larson and Corbett’s opinions as to causation are credible and convincing. I conclude, therefore, that Claimant injured her lower back and developed a left foot drop while engaged in the course and scope of her employment for Defendant on January 3, 2005. Her claim, therefore, is compensable.
Average Weekly Wage and Compensation Rate
10. Having concluded that Claimant suffered a compensable injury, the remaining issue concerns the appropriate average weekly wage and compensation rate. Claimant argues that her average weekly wage should be calculated on the basis of a 43-week annualized salary, as this was the period of service specified in her teacher contract. Defendant argues that Claimant’s average weekly wage should be calculated on the basis of a 52-week annualized salary. Defendant’s calculation yields the average weekly wage that Claimant actually received during the 12 weeks preceding her injury. Claimant’s calculation yields a higher average weekly wage than what she actually received during that 12-week period.
11. A claimant who is temporarily disabled as a result of a work-related injury is entitled to receive weekly compensation benefits equal to two-thirds of his or her average weekly wages. 21 V.S.A. §642. Average weekly wages “shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding an injury.” 21 V.S.A. §650(a).
12. Although many states have adopted an annualized basis for determining a claimant’s average weekly wage and compensation rate, Vermont is not one of them. By determining that the twelve weeks preceding the injury must be used to compute the average weekly wage, the legislature provided a “bright line direction,” one that “favors ease of administration over proration.” Smith v. Rock of Ages, Opinion No. 19-98WC (Apr. 15, 1998).
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13. To use a 43-week annualized salary as the basis for determining Claimant’s average weekly wage would contradict the clear language of §650(a). Using such a method could lead to other unanticipated consequences as well. Imagine, for example, that Claimant was disabled for an entire year and therefore receiving temporary disability benefits for 52 weeks. Using the calculation mandated by §650(a), her workers’ compensation benefits would total $29,224:
Annual salary = $43,815
AWW for 12 weeks pre-injury
(based on 52-week year) = $ 843
Compensation rate (2/3 AWW) = $ 562
52 weeks TTD ($562 x 52) = $29,224 = 2/3 annual salary
Using the calculation suggested by Claimant, however, her workers’ compensation benefits would total $35,360:
Annual salary = $43,815
AWW based on 43-week year = $ 1019
Compensation rate (2/3 AWW) = $ 680
52 weeks TTD ($680 x 52) = $35,360 = 80% annual salary
Under this scenario, the compensation awarded Claimant on the basis of her proposed method of calculation – 80% of her annual salary – would violate the statutory mandate that a claimant’s compensation benefit equal two-thirds of her average wage. 21 V.S.A. §642. There is no basis for allowing a claimant to reap such a windfall, particularly in light of clear legislative intent and statutory language to the contrary.
14. In support of her argument, Claimant cites to a training manual published by this Department in 2001 that states: “To determine the average weekly wage for a teacher, the amount of the contract is divided by the number of weeks in the employment contract.” 2001 Vermont Workers’ Compensation Training Manual, Indemnity Benefits, Paragraph H. Given that this instruction has never been codified into an administrative rule, and more importantly, given that it directly conflicts with the plain language of the statute, I cannot consider it to be valid legal authority.
15. Claimant also cites to a number of cases from other jurisdictions in support of her position. The statutes at issue in those cases differ in important respects from Vermont’s statute, however. Most significantly, in none of them is the time period to be used in determining a claimant’s average weekly wage specified in the same manner as in §650(a). For example, in Powell v. Industrial Commission, 451 P.2d 37 (Ariz. 1969), the statute provided for a claimant’s compensation rate to be based on his or her average monthly wage, and did not specify the number of months to be used in the calculation. Importantly, the statute required that the average wage be based on a reasonable representation of the claimant’s earning capacity, not the claimant’s earnings, as is the case under §650(a). See also Magnet Cove School District v. Barnett, 97 S.W.3d 909 (Ark. App. 2003)(time period for computing average weekly wage not specified); Lynch v. U.S.D. No. 480, 850 P.2d 271 (Kan. App. 1993)(statute provided specific guidance in cases where wage rate was not fixed by year, month, week or hour).
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16. I conclude, therefore, that Claimant’s compensation rate must be based on her average weekly wages for the twelve weeks preceding her injury, as required by §650(a), so that it does not conflict with the two-thirds limitation contained in §642.
Attorney’s Fees and Costs
17. Claimant has submitted a request under 21 V.S.A. §678 and Workers’ Compensation Rule 10.0000 for costs totaling $679.99 and attorney’s fees representing 78.5 hours of legal services performed.
18. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678; awarding attorney’s fees, however, lies within the Commissioner’s discretion. When a claimant has partially prevailed, a fee will be based on the degree of success. J.R. v. Benchmark Assisted Living, Opinion No. 46A-05WC (Nov. 23, 2005).
19. The key dispute in this claim centered on compensability, and in fact this is reflected in the attorney’s itemized billing statement. Although Claimant did not succeed on the average weekly wage issue, I find that she has substantially prevailed on her claim as a whole. Therefore, I award attorney’s fees in the full amount, 78.5 hours at the rate mandated by Rule 10.1210, $90 per hour, for a total of $7,065.
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ORDER:
1. Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
2. Temporary total disability benefits for the period from January 3, 2005 through January 28, 2005;
3. Temporary partial disability benefits for the period from February 1, 2005 through February 28, 2005;
4. Permanent partial disability benefits in an amount to be determined based on the extent of Claimant’s permanent impairment;
5. Interest on the above amounts in accordance with 21 V.S.A. §664;
6. Costs in the amount of $679.99; and
7. Attorney’s fees in the amount of $7,065.
All disability benefits are to be paid at a compensation rate calculated based on Claimant’s average weekly wage for the twelve weeks prior to her injury. Claimant’s claim for compensation benefits to be paid at a higher rate is DENIED.
Dated at Montpelier, Vermont this 2nd day of August 2007.
____________________________
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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