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T. A. v. Ann Johnston and Charlotte Rancourt dba Karma Farm (April 4, 2007)

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T. A. v. Ann Johnston and Charlotte Rancourt dba Karma Farm (April 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
T. A. Opinion No. 05R-07WC
v. Phyllis Severance Phillips, Esq.
Hearing Officer
Ann Johnston and Charlotte
Rancourt, dba Karma Farm Patricia Moulton Powden
Commissioner
State File No. W-01682
RULING ON DEFENDANTS’ MOTION FOR RECONSIDERATION
Defendants move for reconsideration of the Commissioner’s Order denying their Motion for Summary Judgment. Defendants argue that the Commissioner failed to consider certain aspects of the decision rendered by the Washington Superior Court in prior litigation between the parties. Defendants contend that once considered, these aspects compel the conclusion that Claimant is collaterally estopped from pursuing her workers’ compensation claim.
The gist of Defendants’ request for reconsideration is that the Washington Superior Court rejected any possible scenario whereby Claimant could be considered Defendants’ employee on any of the dates of injury she alleged when it dismissed her counterclaims for damages and lost wages. This is not necessarily true. The Court made no specific findings as to Claimant’s employment status with Defendants after October 2004. It could have dismissed Claimant’s counterclaims for any number of reasons, either legal or factual. Without more information as to the exact grounds upon which the Superior Court based its dismissal, there simply is no way to know whether genuine issues of material fact still exist and if so, whether Claimant is collaterally estopped from pursuing them in this forum. Under these circumstances, summary judgment against Claimant is not appropriate.
Defendant also argues that the Commissioner was wrong to consider any hypothetical employment scenarios that conflict with the arguments Claimant has propounded in support of her claim in her various filings with the Department. This argument also lacks merit. In reaching a decision, the Commissioner’s job is to interpret the law and apply it to the facts. She certainly is not bound by either party’s view as to how best to do so. Kruse v. Town of Westford, 145 Vt. 368, 374 (1985).
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Defendant has not presented any new facts to justify the entry of summary judgment against Claimant. Its Motion for Reconsideration, therefore, is DENIED.
Dated at Montpelier, Vermont this 4th day of April 2007.
____________________________
Patricia Moulton Powden
Commissioner

T A v. Ann Johnston and Charlotte Rancourt dba Karma Farm (February 23, 2007)

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T A v. Ann Johnston and Charlotte Rancourt dba Karma Farm (February 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
T. A. Opinion No. 05-07WC
By: Phyllis Severance Phillips, Esq.,
v. Hearing Officer
For: Patricia Moulton Powden,
Ann Johnston and Charlotte Commissioner
Rancourt, dba Karma Farm
State File No. W-01682
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Rebecca A. Rice, Esq., for the Claimant
David R. Bookchin, Esq., for the Defendant
ISSUES PRESENTED:
(1) Whether the doctrine of collateral estoppel bars Claimant from asserting that she was Defendants’ employee at the time of her alleged work-related injuries, such that Defendants are entitled to judgment in their favor as a matter of law; and
(2) Whether an Internal Revenue Service determination that Claimant was Defendants’ employee for some period of time in 2004 is conclusive on the issue of employment status, such that Claimant is entitled to summary judgment in her favor on this issue.
The relevant undisputed facts are as follows:
In June 2004 Claimant entered into a written agreement with Defendants Ann Johnston and Charlotte Rancourt, the co-owners of Karma Farm. Claimant was an experienced horse trainer and stable manager. Defendants hoped that her skills in stable management would help them attain their goal of creating a small working horse farm on their property. They anticipated that Claimant would perform the necessary preparation and maintenance work so that two horses could be safely stabled and trained on the farm.
The term of the agreement was for one year, from June 9, 2004 until July 1, 2005. The agreement provided for bartered room and board in Defendant’s residence on the farm, initially for Claimant and her dog (valued at $500 per month), and beginning in August 2004, for Claimant’s horse as well (valued at an additional $200 per month). In return for the bartered rent, Claimant was to provide both professional equine management services (valued at $35 per hour) and unskilled labor (valued at $10 per hour).
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The agreement provided that Claimant’s work for Defendants would entail at a minimum enough hours of work to cover the agreed-upon value of her bartered rent and horse board. Beyond that, it did not specify either the tasks Claimant was expected to perform or the hours she was expected to work. Instead, it provided as follows:
The work for room, board and horse board shall be on work agreed
to and planned at the beginning of each month by all three parties, for
equal barter on farm expenses, so that no party is tax liable for any of
this “board barter” exchange. Any work performed after the minimal
hours agreed for board equivalency will be compensated by dollar payment (taxable income to Animal Answers1) at the aforesaid rates.
Defendants’ Statement of Material Facts, Exhibit C.
Unfortunately, the parties’ relationship did not develop as envisioned. A variety of disputes arose between them concerning such issues as the nature and extent of the work Claimant was doing around the farm, the status of her work-for-rent obligation, the parties’ respective responsibilities for obtaining equine insurance and their respective rights to bales of hay in the barn. To resolve these disputes, the parties agreed to mediation.
The mediation culminated in a written agreement, which the parties executed on October 30, 2004. Under the terms of that agreement, Defendants paid Claimant the sum of $2,550. Claimant agreed to vacate the residential premises no later than December 31, 2004. Claimant also agreed to sign a lease to be presented to her by Defendants for continued use of the barn until June 30, 2005.
The mediation agreement did not specify the basis for the $2,550 payment from Defendants to Claimant. Nor did it provide for any further compensation to pass between the parties. Specifically, the agreement did not call for any further rental payments from Claimant, either for the remaining term of her residency (through December 31, 2004), or for the anticipated barn lease (through June 30, 2005). It also made no mention of any ongoing work relationship or employment agreement between the parties, either for Claimant’s professional equine management services or for her unskilled labor.
In December 2004 Defendants filed an ejectment action against Claimant in Washington Superior Court. The cause was tried on January 18, 2005 and the court issued its decision on January 21, 2005.
1 “Animal Answers” was the trade name that Claimant registered with the Vermont Secretary of State in anticipation of establishing her own equine management business.
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In its decision, the Superior Court concluded that the $2,550 paid by Defendants to Claimant under the terms of the October 30, 2004 mediation agreement amounted to an accord and satisfaction. The legal effect of the payment, therefore, was to discharge all of the parties’ obligations under the June 2004 contract and substitute the terms of the mediation agreement instead. Specifically, the court stated:
The mediated agreement worked out and later signed by [the parties]
provides for a termination of residential rights, and then stable access
rights. Those were the ties between Artemis and Plaintiffs. It also
provided for a substantial payment from Plaintiffs to Artemis, in
circumstances in which she owed them – she was living in their
property, not paying rent, and would continue to do so. The only
reasonable interpretation of the mediated agreement, therefore, is
that the payment to Artemis constituted satisfaction of any claims
she may have harbored against Plaintiffs.
Defendants’ Statement of Material Facts, Exhibit B, Conclusion of Law C.
The Superior Court found that at the time of the October 30, 2004 mediation agreement, Claimant “had gone at least two months without any payment in money or labor toward her rent.” Defendants’ Statement of Material Facts, Exhibit B, Finding of Fact #12. It also noted, “We are not persuaded that Artemis engaged in any labor for the August and September period for which she was not reimbursed and for which she is entitled to further compensation. The wage issue clearly was on the table during the mediation.” Id., Finding of Fact #13.
The Superior Court made no findings as to Claimant’s employment status with Defendants, if any there was, after October 2004.
Claimant appealed the Superior Court’s decision to the Vermont Supreme Court. The Supreme Court affirmed the Superior Court’s decision on May 25, 2006. It denied Claimant’s Motion for Reargument on June 20, 2006.
On January 5, 2005 Claimant filed a Notice of Injury and Claim for Compensation alleging that she injured her back and hip while employed by Defendants on November 30 and December 25, 2004 and on January 2 and January 4, 2005. All four injuries resulted from slips and falls on the driveways and walkways on Defendants’ premises. Claimant alleged that the November 30, 2004 injury occurred when she was en route “from house to barn as daily job requires,” that the December 25th injury occurred when she fell “on the driveway,” and that the January 2nd and 4th injuries occurred while walking “from house to my truck.” Defendants’ Statement of Material Facts, Exhibit A.
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On December 30, 2005 the Internal Revenue Service responded to Claimant’s written request for determination of her employment status by concluding that Claimant was an employee of Defendants in 2004. The IRS determination notes that “remuneration to the worker was a negotiated bartering agreement for living quarters and barn space that was assigned a value of $700 a month,” that Claimant’s labor “was valued at $35 an hour for horse training and $10 per hour for all other manual labor,” and that “the bartering relationship ceased in December 2004.” Claimant’s Objection to Motion for Summary Judgment and Cross-Motion for Summary Judgment, Exhibit A.
DISCUSSION:
Under V.R.C.P. 56(c), summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. Toy, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990). The moving party has the burden of proof, and the opposing party must be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue of material fact exists. Archie Corrow v. Ethan Allen, Inc. and Washington Central Supervisory Union, Opinion No. 31-02WC (July 25, 2002), citing Price v. Leland, 149 Vt. 518, 521 (1988). The burden does not shift to the non-moving party until the moving party has met its burden that there are no material facts in dispute between the parties. Id., citing Pierce v. Riggs, 149 Vt. 136 (1987).
1. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants’ motion for summary judgment is based entirely on the doctrine of collateral estoppel. Defendants claim that in their ejectment action against Claimant, the Washington Superior Court conclusively determined that the October 30, 2004 mediation agreement superseded the parties’ June 2004 employment contract, and thereby extinguished any employment relationship between the parties. Defendants contend that Claimant was not their employee, therefore, in November or December 2004 or in January 2005, and that her workers’ compensation claim for injuries suffered during those months necessarily must fail.
The doctrine of collateral estoppel, or issue preclusion, bars the subsequent relitigation of an issue that was actually litigated and decided in a prior case where that issue was necessary to the resolution of the dispute. Scott v. City of Newport, 177 Vt. 491 (2004), citing Alpine Haven Property Owners Assn. v. Deptula, 175 Vt. 559 (2003); American Trucking Assn. v. Conway, 152 Vt. 363 (1989). The doctrine serves to “protect the courts and parties against the burden of relitigation, encourages reliance on judicial decisions, prevents vexatious litigation and decreases the chances of inconsistent adjudication.” Berlin Convalescent Center, Inc. v. Stoneman, 159 Vt. 53, 57 (1992), citing Fitzgerald v. Fitzgerald, 144 Vt. 549, 552 (1984); see also Gillock v. Package It Systems, Inc., Opinion No. 46-04WC (Oct. 12, 2004), citing Sheehan v. Dept. of Employment and Training, 169 Vt. 304, 308 (1999) (doctrine of collateral estoppel applies to administrative agencies when acting in judicial capacity).
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In order for the doctrine of collateral estoppel to apply in a case, the following criteria must be satisfied: (1) preclusion is asserted against one who was a party or in privity with a party in the earlier action; (2) the issue was resolved by a final judgment on the merits; (3) the issue is the same as that raised in the later action; (4) there was a full and fair opportunity to litigate the issue in the earlier action; and (5) applying preclusion in the later action is fair. Owen v. Bombardier Corp., Opinion No. 01SJ-99WC (Jan. 4, 1999), citing Trepanier v. Getting Organized, Inc., 155 Vt. 259 (1990); see also Gillock v. Package It Systems, Inc., supra (citing 5 factors).
Applying the above test to the current claim, there appears to be no dispute that the first two criteria are met. The critical determination is whether the third, fourth and fifth criteria have been satisfied. If any of these criteria are unmet, then collateral estoppel cannot be applied, and the Defendants’ summary judgment motion must fail.
The issue litigated and decided in the earlier action, being one of ejectment and breach of lease, was primarily to determine what rights, if any, Claimant had to continued occupation and use of Defendants’ premises, either under the parties’ original June 2004 agreement or under the October 30, 2004 mediation agreement. In finding that there had been an accord and satisfaction of the June 2004 contract, the court determined that all rights and obligations arising under the earlier contract had been discharged. Any ongoing rights and responsibilities between the parties were governed either by the October 30, 2004 mediation agreement or by the parties’ subsequent course of conduct.
The issue raised in the current action is quite different. At issue here is whether Claimant was acting as Defendants’ employee on any of the specific injury dates she alleged – November 30 and December 25, 2004, January 2 and 4, 2005. Establishing an employment relationship is a prerequisite to a claim for benefits under Vermont’s workers’ compensation statute. 21 V.S.A. §§601(14), 618. If Claimant was not engaged in the course and scope of some employment for Defendants on at least one of the days when she injured herself, then her claim for workers’ compensation benefits fails as a matter of law. On the other hand, if on any of those days she was working for Defendants under a contract for hire, either express or implied, 21 V.S.A. §601(14), then she might meet the statutory definition of employee for workers’ compensation purposes and her claim survives Defendants’ summary judgment challenge.2
Had the mediation agreement specifically addressed the issue whether Claimant’s employment relationship with Defendants was to continue or not, its terms would have controlled the outcome in this forum as well. Unfortunately for Defendants, it did not.
2 Even where a putative employment relationship exists, there are various statutory exceptions to workers’ compensation coverage which, if established, could defeat Claimant’s claim. See, e.g., 21 V.S.A. §§601(14)(A)(casual employment),601(14)(C)(farm employment), 601(14)(E)(private dwelling). Defendants have not addressed any such exceptions in their summary judgment motion, and therefore they are not at issue here.
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Similarly, had the court in the earlier action made any findings as to either the termination of the parties’ employment relationship with the signing of the October 30, 2004 mediation agreement or as to any work performed by Claimant for Defendants in the ensuing months that too might have precluded Claimant from relitigating the issue here. Again, unfortunately for Defendants, it did not.
Both the mediation agreement and the court’s decision being silent on the issue, there are a number of factual scenarios that, if proven, would sustain Claimant’s status as Defendants’ employee from November 2004 through January 2005. Perhaps the parties contemplated that the $2,550 that Defendants paid Claimant under the terms of the October 30, 2004 mediation agreement included consideration for both past and future work to be performed by Claimant while she remained on the premises. Perhaps they entered into a new, oral employment agreement at some point after the October 30th agreement was signed. Perhaps Defendants acquiesced by their conduct to Claimant’s continuing to do chores around the premises, and perhaps by their acquiescence Claimant reasonably believed that an implied employment contract existed. Admittedly, these possibilities may be unlikely, even highly so. There is no evidence, however, to establish that the facts necessary either to prove or disprove them were litigated, considered or at issue in the earlier action.3
Before precluding relitigation of an issue, a court must “examine the first action and the treatment the issue received in it.” State v. Pollander, 167 Vt. 301, 304 (1997), citing J. Cound, et al., Civil Procedure 1228 (6th ed. 1993). Claimant’s status as employee from November 2004 until January 2005 certainly could have existed separate and apart from her status as either residential tenant or barn lessee after October 30, 2004. The parties could have intended to maintain their employment relationship as part of the mediation agreement, or they could have resumed it on some date thereafter. At this point in the current proceedings, and with only the mediation agreement and the court’s findings in the earlier action as evidence, there simply is no way to know whether the key issue to be decided here – Claimant’s employment status at the time of her injuries – was raised or litigated earlier. For that reason, there can be no collateral estoppel.
The sole purpose of summary judgment review is to determine if a genuine issue of material fact exists. If such an issue does exist, it cannot be adjudicated in the summary judgment context, no matter how unlikely it seems that the party opposing the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973). However tenuous or unlikely the evidence in support of Claimant’s employment status on the dates of injury may be, Claimant is entitled nonetheless to present the evidence and litigate the question. Summary judgment against her is not appropriate.4
3 It is worth noting that on appeal of the Superior Court’s decision, the Supreme Court declined to consider any of Claimant’s arguments relating to the current workers’ compensation claim on the grounds that they were “based on facts outside the record.” Johnston and Rancourt v. Artemis, Supreme Court Docket No. 2005-211, Entry Order (May 25, 2006) at p. 4, Defendants’ Statement of Material Facts Exhibit G. It is reasonable to conclude from this remark that the facts germane to Claimant’s workers’ compensation claim, including her employment status on the dates of injury she alleged, either were not at issue or were not litigated below.
4 In their Reply to Claimant’s Objection to Motion for Summary Judgment, Defendants argue that Claimant’s reply is fatally defective because it was not supported by affidavits and did not include the requisite statements of material undisputed and/or disputed facts. V.R.C.P. 56 does not absolutely require the opposing party to produce
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2. CLAIMANT’S MOTION FOR SUMMARY JUDGMENT
Claimant’s motion for summary judgment asserts that an Internal Revenue Service determination that she was Defendants’ employee for some period of time in 2004 is conclusive on the issue of employment status and that therefore she is entitled to a finding in her favor on that issue as a matter of law.
Claimant’s motion fails for two reasons, one factual and the other legal. First, as noted above, the critical factual determination is quite specific – was Claimant an employee of Defendant on any of the particular injury dates she alleged, November 30 and December 25, 2004 and January 2 and 4, 2005? The IRS determination states only that the bartered employment relationship between the parties “ceased in December 2004.” Clearly the November 30, 2004 injury date falls within this time frame, and clearly the January 2 and 4, 2005 injury dates fall outside of it, but it is unclear where the December 25, 2004 date falls. As a factual matter, therefore, the IRS determination is deficient in resolving conclusively the issue of Claimant’s employment status on three of the four key dates that are relevant to her workers’ compensation claim.
As a legal matter, furthermore, this Department previously has held that an IRS determination of employment status is not controlling in the context of a workers’ compensation claim. See R.B. v. Skyline Corp., Opinion No. 31-05WC (May 3, 2005); Mario Forcier v. LaBranch Lumber Co. and Simon’s Chipping, Inc., Opinion No. 04-02WC (Feb. 12, 2002). As Defendants correctly noted, the IRS determination in Claimant’s case was limited to a review of written submissions only, and therefore afforded the parties only the most limited opportunity to present evidence in their favor and no occasion to challenge contrary evidence. Under these circumstances, it would be unfair to give the ruling conclusive effect here.
ORDER:
Defendants’ motion for summary judgment is DENIED. Claimant’s cross-motion for summary judgment is DENIED.
Dated at Montpelier, Vermont this 23rd day of February 2007.
______________________________
Patricia Moulton Powden
Commissioner
affidavits in support of its position; “mere allegations” are insufficient, but “other evidence” that raises a factual dispute is enough to comply with the rule. Alpstetten Assn., Inc. v. Kelly, 137 Vt. 508, 514 (1979). Besides, where the evidentiary matter in support of a motion for summary judgment does not establish the absence of a genuine issue of material fact, summary judgment must be denied even if no opposing evidentiary material is presented. Id. at 515 (emphasis in original).

Marjorie Alden v. Fletcher Allen Health Care (August 21, 2009)

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Marjorie Alden v. Fletcher Allen Health Care (August 21, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Marjorie Alden Opinion No. 32-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Fletcher Allen Health Care For: Patricia Moulton Powden
Commissioner
State File No. E-14159
RULING ON DEFENDANT FLETCHER ALLEN HEALTH CARE’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
ATTORNEYS:
Richard Cassidy, Esq., for Claimant
Stephen Ellis, Esq., for Defendant Fletcher Allen Health Care
James O’Sullivan, Esq., for Defendant CNA Insurance Company
ISSUES:
1. Is Claimant’s current claim against Fletcher Allen Health Care (FAHC) time-barred under either 21 V.S.A. §656 or 21 V.S.A. §660(a)?
2. Is Defendant CNA Insurance Company (CNA) barred from asserting FAHC’s liability for Claimant’s current claim under either 21 V.S.A. §656, 21 V.S.A. §660(a) and/or the equitable doctrines of waiver, estoppel or laches?
3. Do genuine issues of material fact exist as to whether Claimant’s job responsibilities in 2000 and thereafter caused her to suffer an aggravation and/or new injury?
FINDINGS OF FACT:
Taking the evidence in the light most favorable to the non-moving parties, as is required when considering a motion for summary judgment, Carr v. Peerless Insurance Co., 168 Vt. 465, 476 (1998), I find the following facts:
1. On January 30, 1992 Claimant sustained a work-related low back injury while employed by FAHC.
2. CNA was on the risk at that time and accepted the claim.
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3. Claimant underwent L3-4 disc surgery in November 1992. After she reached an end medical result, Claimant and CNA entered into a Form 22 Agreement for Permanent Partial Disability Compensation, which the Department approved on November 3, 2003.
4. Claimant’s prior medical history includes L5-S1 disc surgery in 1970.
5. In July 1996 FAHC became self-insured for workers’ compensation purposes.
6. In or around September 2000 Claimant transferred from bedside nursing to the Dermatology Clinic. Claimant’s job responsibilities in this position required both sitting – while working on the computer, writing and/or talking on the telephone – and standing – while retrieving supplies, delivering paperwork and, once or twice a week, assisting in surgery.
7. At some point after her transfer Claimant began to experience increased low back and right leg pain. Claimant did not complete any injury or incident report relating to these increased symptoms, but she did inform her supervisor, Deb LeBlanc, that she planned to seek medical treatment. This she did, in February 2001, with Dr. Monsey, an orthopedic surgeon.
8. In March 2001 Erin Fournier, an occupational therapist at FAHC’s Work Enhancement and Rehabilitation Center, evaluated Claimant’s work station in the Dermatology Clinic. The stated reason for the assessment was “low back and right leg pain exacerbated 09/00, about the same time worker started this job.” Ms. Fournier’s report identified risk factors for musculoskeletal strain and recommended various changes to Claimant’s work station, all of which FAHC subsequently implemented. Claimant’s supervisor, Deb LeBlanc, was listed on the report as the contact person. The report indicated that a copy was sent to Jan Lyons, whom Claimant has identified as the “Office Manager for Unit 5.”
9. In November 2003 Dr. Monsey performed L4-5 disc surgery to address Claimant’s ongoing complaints.
10. On December 26, 2003 Attorney Chris McVeigh wrote to Claimant, advising that “Fletcher Allen Health Care/CNA Insurance Company has retained me to investigate your claim for workers’ compensation benefits.” Presumably this letter was prompted by the submission of the bills for Dr. Monsey’s November 2003 surgery for payment in conjunction with Claimant’s 1992 work injury.
11. On March 25, 2004 Attorney McVeigh filed a Form 2 Denial of Workers’ Compensation Benefits with the Department. The form identified CNA as the carrier and FAHC as the employer. The stated reason for the denial was that “the medical evidence does not support the legal causal relationship of [Claimant’s] current claim to her 1992 injury or surgery.”
12. Appended to the Form 2 was a copy of Dr. Monsey’s March 17, 2004 deposition. In it, Attorney McVeigh identified himself as “represent[ing] Fletcher Allen Health Care in [Claimant’s] workers’ compensation claim.”
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13. Dr. Monsey posited in his deposition that Claimant’s most recent symptoms might have been due to epidural scarring caused by the disc surgery she had undergone in 1970 and not by her 1992 injury or surgery. At another point in the deposition, Attorney McVeigh inquired of Dr. Monsey as follows:
Q: Okay. In your note of February 12, 2001, in the subjective portion of that note, it states quote: “Over the past year her work has changed such that she is spending the majority of her time now sitting, which has been associated with worsening symptoms.” Period. “The pain is clearly worse with prolonged sitting or driving.” Period. Close quote. Did I read that accurately?
A: Yes.
Q: Is prolonged sitting a cause of increasing pain for an area that has epidural scarring?
A: For individuals who have back and leg pain related to neuro compression, sitting is a significant risk factor for both the development of those symptoms and the exacerbation of those type of symptoms.
Q: Okay. Why?
A: The theory is that sitting increases the intradiscal pressure more than a variety of other maneuvers such as standing and walking.
Q: If someone is sitting over a prolonged period of time, can the increase in the intradiscal pressure on the nerve cause permanent increased symptoms?
A: The sitting, in and of itself, doesn’t cause permanent symptoms. Individuals who have prolonged neural compression are more likely to have ongoing residual symptoms even with decompression of that root. So the length of time of symptoms is a prognostic factor for resolution after decompression.
14. In addition to appending Dr. Monsey’s deposition to the Form 2, Attorney McVeigh also filed a letter from Dr. Monsey, dated January 19, 2004 and addressed “To Whom It May Concern,” that stated:
[Claimant] has right leg pain. These symptoms have been present since her injury in 1992 secondary to an injury while at work. The symptoms became progressively more severe necessitating her most recent surgical intervention. These current symptoms are an aggravation of an ongoing problem secondary to her injury at Fletcher Allen Health Care in 1992.
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15. Claimant appealed CNA’s denial of benefits in a letter to the Department dated April 20, 2004. In it, Claimant acknowledged that she had continued to have right leg pain, numbness and tingling after her 1992 work injury and surgery. She stated, “I went for further x-rays and cat scans and stopped making claims in 1994, although I am not sure why I did this.”
16. Claimant further stated that she did not believe Dr. Monsey was correct in attributing her epidural scarring to her 1970 surgery. She continued:
I have worked at FAHC for 30 years as a nurse, 27 of those as a bedside nurse. I have moved to the Dermatology Clinic because I felt that I could not do the heavy lifting and bending required to do bedside nursing . . .
Before I went to see Dr. Monsey it had gotten more difficult to sit for any length of time or walk any distance, and I would trip “over a blade of grass.”
I guess, not claiming all those years of treatments on the workers comp was my own stupidity or oversight but I guess I have no excuse. I do wish that you would review my case.
17. In a letter dated April 28, 2004 the Department advised both Claimant and Attorney McVeigh, whom it identified as “legal counsel for Fletcher Allen Health Care/CNA Insurance,” that it was considering Claimant’s April 20, 2004 letter as a request for hearing pursuant to Rule 4.1100.
18. On May 4, 2004 Attorney McVeigh filed a second Form 2, this time denying CNA’s responsibility for the medical charges relating to Dr. Monsey’s November 2003 surgery on the grounds that “the statute of limitations for [Claimant’s] claim has expired.”
19. On August 24, 2004 Claimant notified the Department that she was appealing CNA’s determination that her claim was time-barred. Once again, the Department treated this correspondence as a request for hearing. On October 21, 2004 it held an informal conference with both Claimant and Attorney McVeigh.
20. On June 20, 2005 Claimant’s attorney entered his appearance on Claimant’s behalf.
21. On September 8, 2006 Claimant’s attorney corresponded with Attorney McVeigh. In the letter, Claimant’s attorney asserted that Claimant had “a viable workers’ compensation claim against her employer, Fletcher Allen Health Care,” for benefits causally related to Dr. Monsey’s November 2003 surgery. As to that surgery, Claimant’s attorney further stated:
[Dr. Monsey’s] surgery addressed a site that had not previously been operated on. The precise date of the injury is unclear. However, a record from Fletcher Allen’s Work Enhancement and Rehabilitation Center relates that, in September 2000, [Claimant] experienced exacerbated low back and right leg pain coinciding with her having begun a new job, suggesting that something may have happened then.
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In any event, it is clear that this is a new injury and that a claim was asserted in a timely fashion.
22. On December 8, 2006 Attorney McVeigh deposed Claimant. In introducing himself he indicated, “I’m representing Fletcher Allen Health Care and CNA in your workers’ compensation claim.”
23. On March 2, 2007 Attorney McVeigh corresponded with the Department’s Specialist as follows:
I am writing to inform you that it appears that Liberty Mutual, who was Fletcher Allen Health Care’s insurer in all of 2000, should be put on notice regarding this claim.1 This action involves [Claimant’s] claim that she experienced an aggravation of her low back condition in 2000 while working at Fletcher Allen Health Care.
It is my understanding that CNA Insurance Company’s coverage for Fletcher Allen Health Care ended in 1996.
24. In response to Attorney McVeigh’s letter, the Specialist indicated that the file contained no evidence upon which to base an aggravation claim and that therefore she could not take the action he requested. In response to that, Attorney McVeigh forwarded copies of documents that he asserted indicated that Claimant’s condition worsened as a result of her job change, specifically (a) Dr. Monsey’s February 12, 2001 office note (referenced and quoted in paragraph 13 above); and (b) excerpts from Claimant’s December 2006 deposition transcript. With that information in hand, in June 2007 the Specialist put FAHC on notice of its potential responsibility for Claimant’s current claim.
25. Claimant’s attorney filed a Form 6 Notice and Application for Hearing on February 14, 2008. In it, Claimant’s attorney alleged, “Claimant sustained injury to L4-5 disc after having previously sustained injury to L5-6 (a/k/a L5-S1) in 1972 and to L3-4 in 1992. Employer has persisted in denying claim.”
DISCUSSION:
1. Claimant’s current claim for workers’ compensation benefits posits that the low back and right leg pain that necessitated her 2003 surgery resulted either from the compensable work injury she sustained in 1992 or from the change in her work environment and job responsibilities that occurred when she transferred to the Dermatology Clinic in 2000. If the former, then her condition represents a recurrence, for which CNA is liable. If the latter, then her condition is indicative of an aggravation or new injury, for which FAHC, in its capacity as a self-insured employer, ordinarily would be responsible.
1 Attorney McVeigh was mistaken as to FAHC’s workers’ compensation insurance coverage. As of July 1996 FAHC was self-insured.
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2. FAHC moves to dismiss and/or for summary judgment on three alternative grounds. First, it asserts that any aggravation or new injury claim made by Claimant is time-barred under either 21 V.S.A. §656 and/or 21 V.S.A. §660(a). Alternatively, it asserts that any attempt by CNA to pass responsibility onto it under an aggravation or new injury theory is barred, either under those same statutory provisions and/or under the equitable doctrines of waiver, estoppel and laches. Last, it asserts that the undisputed medical evidence conclusively establishes that Claimant’s job transfer in 2000 caused neither an aggravation nor a new injury and that therefore it is entitled to judgment in its favor as a matter of law.
3. 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).
FAHC’s Argument for Summary Judgment against Claimant
4. As against Claimant, FAHC asserts that her claim is barred because she failed to comply with either the notice provisions of 21 V.S.A. §656 or the statute of limitations provided in 21 V.S.A. §660(a). According to FAHC’s characterization of the evidence, Claimant has admitted that she knew shortly after transferring to the Dermatology Clinic in September 2000 that her new job responsibilities were causing new and/or aggravated symptoms in her low back. Therefore, FAHC argues, under §656 Claimant was obligated to put it on notice of any claim for compensation within six months of that date, or by March 2001, and under §660(a) she should have initiated her claim for benefits within six years, or by September 2006.
5. Section 656 provides in relevant part as follows:
(a) A proceeding under the provisions of this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as practicable after the injury occurred, and unless a claim for compensation with respect to an injury has been made within six months after the date of the injury;
(b) The date of injury . . . shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.
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6. Prior to its amendment in 2004, section 660(a) provided in relevant part as follows:
(a) . . . Want of or delay in giving notice, or in making a claim, shall not be a bar to proceedings under the provisions of this chapter, if it is shown that the employer, the employer’s agent or representative, had knowledge of the accident . . . Proceedings to initiate a claim for benefits pursuant to this chapter may not be commenced after six years from the date of injury.2
7. Notably, these statutory provisions require only that an injured worker notify his or her employer, not that he or she also discern the employer’s workers’ compensation insurance status and notify the appropriate adjuster or third party administrator as well. This is, obviously, as it should be. That information is readily available to the employer, but rarely so to its employees.
8. Here, Claimant has testified by affidavit that at least by the time she began treating with Dr. Monsey in February 2001 her supervisor knew that she was experiencing increased low back pain possibly related to having transferred from bedside nursing to the Dermatology Clinic at some point in September 2000. There also is evidence that FAHC arranged for a work site assessment in March 2001 and thereafter implemented the recommendations suggested as a result. At a minimum, this evidence is sufficient to raise genuine questions of material fact as to whether FAHC had timely “notice of the injury” under §656(a), and/or whether it had “knowledge of the accident” under §660(a). Until those factual issues are resolved, summary judgment against Claimant is inappropriate.
9. The evidence also establishes that Claimant “initiated a claim for benefits” as early as December 2003, when the medical bills relating to her November 2003 surgery were submitted for payment as work-related. Even assuming that Claimant’s injury occurred immediately after her job transfer in September 2000, this still was well within the six-year limitations period mandated by §660(a).
10. FAHC makes much of the fact that Claimant’s claim for benefits arising out of her November 2003 surgery initially was directed to CNA, its insurer at the time of Claimant’s 1992 injury, and that neither Claimant nor CNA made any claim specifically against it, in its status as self-insured employer, until June 2007, after the statute of limitations for a September 2000 date of injury would have passed. It is not necessary at this juncture to reach the legal merits of FAHC’s argument. For now, it is enough to note the factual questions germane to it that remain unresolved – to what extent Claimant’s supervisor was aware of Claimant’s increased symptoms and their possible connection to her new job, why no new incident or injury report was filed in conjunction with the medical treatment Claimant sought in February 2001, how the medical bills for Claimant’s November 2003 surgery found their way to CNA. These are genuine issues of material fact that cannot be resolved in the context of a motion for summary judgment.
2 In 2004 the limitations period for initiating a new injury claim was reduced from six to three years. The current claim arises under the old statute of limitations.
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11. Because genuine issues of material fact exist as to FAHC’s claimed defenses under either §656 or §660(a), its motion to dismiss and/or for summary judgment against Claimant must fail.
FAHC’s Argument for Summary Judgment against CNA
12. As against CNA, FAHC argues that it is entitled to summary judgment because CNA’s attempt to shift responsibility for Claimant’s workers’ compensation benefits is time barred, either under the statutory provisions cited above or under the equitable doctrines of waiver, estoppel and/or laches.
13. I cannot discern from the language of §656 any legislative intention to apply the six-month notice requirement to actions between insurance carriers (or in this case, between a carrier and a self-insured employer) in the same manner as it applies as between an injured worker and his or her employer. In fact, the statutory references to “claimant” and “employee” strongly suggest otherwise.
14. As applied to the facts of this claim, furthermore, the six-year statute of limitations provided for in §660 could not have begun to run against CNA at least until late 2003, when it first received notice of Claimant’s claim for workers’ compensation benefits related to her November 2003 surgery. That defense is unavailing to FAHC as well, therefore.
15. What remains are FAHC’s equitable arguments against CNA – waiver, estoppel and laches. FAHC asserts that these defenses are available to it as a result of Attorney McVeigh’s acts and omissions, most notably his failure to notify FAHC of its own potential exposure for Claimant’s claim, separate and apart from CNA’s exposure, in a more timely fashion than he did.
16. These defenses might well prove successful in a third-party action against CNA. Under the circumstances, however, I cannot grant them in this forum. Should the evidence ultimately establish that Claimant did in fact suffer an aggravation or new injury causally related to her job transfer in 2000, under our workers’ compensation law her right to recover will be against FAHC, not CNA. To dismiss FAHC from the claim for reasons that have nothing at all to do with Claimant’s actions would leave her with an entitlement to workers’ compensation benefits, but no responsible employer or carrier from which to collect them. This would be manifestly unfair and I cannot allow it.
17. I conclude, therefore, that there is no statutory basis upon which to grant FAHC summary judgment against CNA. Nor do the circumstances of this claim permit me to do so on equitable grounds.
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FAHC’s Argument for Summary Judgment against Both Claimant and CNA
18. Last, FAHC asserts that it is entitled to summary judgment as against both Claimant and CNA on the grounds that the undisputed facts establish, as a matter of law, that Claimant’s job responsibilities after her job transfer in 2000 did not cause any aggravation or new injury. As support for this argument, FAHC cites to Dr. Monsey’s deposition testimony, quoted in Finding of Fact No. 13 above, in which he states that the sitting Claimant may have done in the context of her Dermatology Clinic job would not, “in and of itself cause permanent symptoms.”
19. Questions of recurrence, aggravation, flare-up or new injury are inherently fact-specific. Expert testimony on the issue is often complex, contradictory and confusing. Such is the case here. While Dr. Monsey did indicate in the context of his deposition that prolonged sitting alone did not cause an aggravation, in his January 19, 2004 “To Whom It May Concern” letter (referred to in Finding of Fact No. 14 above), he stated that the symptoms that necessitated his November 2003 surgery were “an aggravation of an ongoing problem” secondary to her 1992 work injury. Taken together, Dr. Monsey’s statements do not make a conclusive case either for or against aggravation. Summary judgment is, therefore, improper.
ORDER:
For the foregoing reasons, Defendant FAHC’s Motion to Dismiss and/or for Summary Judgment is DENIED, both as to Claimant and as to Defendant CNA.
DATED at Montpelier, Vermont this 21st day of August 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.

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