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Arnold Griggs v. New Generation Communication (December 29, 2010)

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Arnold Griggs v. New Generation Communication (December 29, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arnold Griggs Opinion No. 30A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
New Generation Communication
For: Valerie Rickert
Acting Commissioner
State File No. P-15250
RULING ON CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on October 1, 2010. Among the issues presented were Claimant’s entitlement to temporary total disability benefits for a three-month period following his February 2006 fusion surgery, the extent of the workers’ compensation “holiday” Defendant enjoyed following Claimant’s settlement of two third-party actions, and Claimant’s entitlement to penalties and interest.
The Commissioner ruled in Claimant’s favor on the issues relating to the extent of Defendant’s workers’ compensation “holiday.” She awarded him temporary disability benefits for one-half of the period he had sought, and declined to award either penalties or interest.
In accordance with 21 V.S.A. §678(e), Claimant now has submitted his petition for costs totaling $3,112.01 and attorney fees totaling $20,481.50.1
According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs “shall be assessed” against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well.
The Supreme Court has held that a claimant does not automatically forfeit entitlement to costs and fees under §678(a) merely because he or she did not prevail as to every issue litigated at formal hearing. Hodgeman v. Jard, 157 Vt. 461, 465 (1991). With that in mind, where the claimant only partially prevails, the Commissioner typically endeavors to award only those costs that relate directly to the successful claims. See, e.g., Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
It is not always possible to separate out the costs that are attributable to a successful claim as opposed to an unsuccessful one, however. Here, for example, the costs incurred in pursuing Claimant’s claim for three months’ worth of temporary disability benefits were no more or less than they would have been had he only sought the six weeks’ worth that he was awarded. The same is true of Claimant’s unsuccessful claim for penalties and interest. Under these
1 Since filing his original petition, Claimant has acknowledged that certain costs and fees relate to matters other than those litigated at the formal hearing, and therefore should not have been included. The amounts stated above incorporate those deductions.
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circumstances, it is appropriate to award Claimant all of the costs he has requested, totaling $3,112.01.
As for attorney fees, the Commissioner typically exercises the discretion granted by the statute to award only those attorney fees that are commensurate with the extent of the claimant’s success. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003). In addition, the Commissioner also considers such factors as whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Id., and cases cited therein.
Here, the issue upon which both parties concentrated most of their efforts, and the one on which Claimant prevailed, was the extent of Defendant’s workers’ compensation “holiday.” The issues upon which Claimant failed to prevail represented a far less significant investment of skill, time and effort. Under these circumstances, I find it appropriate to award Claimant ninety percent of the fees he has requested, or $18,433.35.
I acknowledge Claimant’s argument that because all of the issues he litigated involved a “common core of facts,” there should be no reduction of his fees at all. Claimant cites to the Supreme Court’s ruling in The Electric Man v. Charos, 2006 VT 16, as support. In that case, the Supreme Court admonished the trial court against viewing a lawsuit between a contractor and a homeowner as “a series of discrete claims” in fashioning an award of attorney fees to the “substantially prevailing party” under 9 V.S.A. §4007(c), the so-called “prompt payment act.” Id. at ¶10, citing L’Esperance v. Benware, 2003 VT 43. Given that in such lawsuits “virtually all of the evidence is relevant to all of the claims,” the court reasoned that it was too difficult to allocate or apportion the attorney hours expended on a claim-by-claim basis. Id.
Litigation in the workers’ compensation arena, however, typically does involve exactly the type of separate and distinct claims, for separate and distinct statutory benefits, that the Court could not discern in The Electric Man. Thus, for example, although the determination of an injured worker’s entitlement to one benefit may share the same “common core of facts” relevant to the initial work-related accident as his or her claim for another benefit, each is likely nevertheless to stand or fall based on its own distinct factual and/or legal analysis.
I find that to be the case here. Here, Claimant’s claim for temporary total disability benefits was determined based on factual evidence as to when he first returned to work following his February 2003 fusion surgery. His claim as to how Defendant’s workers’ compensation “holiday” should have been calculated was determined based on an entirely separate and distinguishable set of facts relating to the manner in which his various third-party actions were settled. Yet a third set of facts, relating in large part to events that occurred after the current litigation commenced, determined his entitlement to penalties and interest.
With that in mind, and given the particular circumstances of this case, I conclude that it is a proper exercise of the discretion granted by §678(a) to apportion Claimant’s entitlement to attorney fees with reference to the extent of his success on the various claims he litigated.
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ORDER:
Defendant is hereby ORDERED to pay:
1. Costs totaling $3,112.01; and
2. Attorney fees totaling $18,433.35.
DATED at Montpelier, Vermont this 29th day of December 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.

George Plante v. Vermont Agency of Transportation (January 18, 2012)

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George Plante v. Vermont Agency of Transportation (January 18, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
George Plante Opinion No. 26A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Vermont Agency of Transportation
For: Anne M. Noonan
Commissioner
State File Nos. X-04039 and BB-00900
AMENDED ORDER
Claimant successfully appealed the Commissioner’s August 5, 2010 Opinion and Order to the Franklin Superior Court Civil Division. Under 21 V.S.A. §671, the commissioner is obligated to enter a new order consistent with the Court’s certified findings. Because he now has prevailed on his claim, Claimant also requests an award of costs and attorney fees referable to the prior proceedings before the commissioner. 21 V.S.A. §678(a); Sargent v. Town of Randolph, 2007 VT 56.
Claimant seeks reimbursement of $1,715.11 in costs referable to the formal hearing before the commissioner. Included in these charges is Dr. Barnham’s deposition fee of $750.00, which exceeds the amount allowable under Workers’ Compensation Rule 40.111 by $450.00. Deducting this amount, the remaining $1,265.11 in costs are recoverable under §678(a) and therefore are awarded.
Claimant also seeks reimbursement of an additional $2,500.00 in costs referable to his superior court appeal. Fees and costs incurred in this context are governed by §678(b). That section allows the court to award reasonable attorney fees related to the proceedings before it, but unlike §678(a), it does not make specific provision for an award of costs.
Claimant asserts that the commissioner retains the power to award such costs under §678(a). The Supreme Court addressed this issue in Perez v. Travelers Insurance, 2006 VT 123, and determined otherwise:
There is no basis in the statutory language for awarding costs in superior courts or in the Supreme Court beyond those normally allowed under V.R.C.P. 54(d). While §678(a), which applies to the administrative level of workers’ compensation proceedings, provides that “necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails,” there is no similar statement in §678(b), the provision applicable to proceedings before the superior court.
Id. at ¶18.
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Applying the Supreme Court’s analysis to the current claim, I conclude that Claimant is not entitled to an award of the costs incurred in the context of his superior court appeal.
As for attorney fees, Claimant seeks an award of $7,146.00. Defendant argues that because Claimant’s success on appeal was based on evidence that differed from what had been offered at formal hearing, it would be unfair to award him his fees. Specifically, Defendant asserts that the reason Claimant prevailed in the Superior Court proceeding was because he underwent further diagnostic testing after the formal hearing, the results of which strengthened his expert medical witnesses’ opinions.
This may be true, but the substance of the witnesses’ opinions did not change significantly from one forum to the next. Even if it did, I question whether that fact alone would justify denying a request for attorney fees. The Supreme Court has determined that a claimant’s success on appeal translates to success at formal hearing. Sargent, supra at ¶13. Given the de novo nature of a superior court appeal, Pitts v. Howe Scale Co., 110 Vt. 27, 35 (1938), it is to be expected that the evidence produced in that forum might diverge somewhat from what was presented to the commissioner. I can find no basis in §678(a) for penalizing a claimant on those grounds.
I conclude that it is appropriate to award Claimant the attorney fees he incurred in the prior proceedings before me, totaling $7,146.00.
AMENDED ORDER:
Claimant having sustained his burden of proving that his cervical condition was caused and/or aggravated by his employment for Defendant, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant establishes his entitlement as a consequence of his compensable cervical condition; and
2. Costs totaling $1,265.11 and attorney fees totaling $7,146.00.
DATED at Montpelier, Vermont this 18th day of January 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.

Robert Bruno v. Directech Holding Co. (August 5, 2010)

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Robert Bruno v. Directech Holding Co. (August 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Bruno Opinion No. 18A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Directech Holding Co.
For: Valerie Rickert
Acting Commissioner
State File No. Y-50514
RULING ON CLAIMANT’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on May 19, 2010. Two issues were presented: first, whether Claimant had reached an end medical result for his work-related injury, and if so, when that occurred; and second, what the appropriate permanent impairment rating referable to Claimant’s injury was.
The Commissioner ruled in Claimant’s favor on the first issue, finding that he was entitled to an additional 66 weeks of temporary disability benefits. As to the second issue, however, the Commissioner ruled that Defendant’s expert opinion was more credible. Had the Commissioner accepted Claimant’s expert opinion, he would have been awarded an additional 44.55 weeks of permanency benefits over and above what he received in accordance with Defendant’s proffered rating.
According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs “shall be assessed” against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well.
Here, Claimant prevailed only on his claim for temporary disability benefits, but not on his claim for additional permanency benefits. In such cases, the commissioner routinely awards only those costs that relate directly to the successful claim. As for attorney fees, the award typically is reduced to be commensurate with the extent of the claimant’s success. See, e.g., Hill v. CV Oil Co., Opinion No. 15-09WC (May 26, 2009); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
Citing to Electric Man v. Charos, 179 Vt. 351 (2006), Claimant asserts that because both of the issues he litigated involved the same core of primary facts, there should be no apportionment of his costs and attorney fees between the claim he won and the claim he lost. I disagree. In contrast to the situation that the Supreme Court considered in Electric Man, the claims that Claimant litigated here were for separate and distinct statutory benefits that required separate and distinct proof. Under these circumstances, it is appropriate to fashion an award of costs and fees that compensates Claimant only to the extent that he prevailed.
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With that standard in mind, I find that Claimant’s allowable costs should be reduced by those relating to Dr. Zweber’s testimony, which was directed primarily towards the permanency issue. This reduction totals $3,000.00. Subtracting that amount from the total requested, $5,860.61, leaves a balance of allowable costs totaling $2,860.61.
As for attorney fees, Claimant has requested an award of $11,844.00. I acknowledge how difficult it is to separate out the extent to which Claimant’s attorney’s efforts were devoted to the successful claim versus the unsuccessful one. I find it appropriate to award 75 percent of that amount, or $8,883.00.
In accordance with the above, Defendant is hereby ORDERED to pay costs totaling $2,860.61 and attorney fees totaling $8,883.00.
DATED at Montpelier, Vermont this 5th day of August 2010.
______________________
Valerie Rickert
Acting Commissioner

G. H. v. Ethan Allen (July 7, 2006)

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G. H. v. Ethan Allen (July 7, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
G. H. Opinion No. 30-06WC
By: Margaret A. Mangan
v. Hearing Officer
Ethan Allen For: Thomas W. Douse
Acting Commissioner
State File No. M-22405
RULING ON MOTION FOR AN ORDER OF COSTS
On May 25, 2006, Claimant, by and through its attorney, Robert Halpert, Esq., filed a motion to award full costs pursuant to 21 V.S.A. § 678(a). On May 31, 2005, Defendant’s attorney, Andrew Boxer, opposed this motion. This motion follows Claimant’s partial success at hearing. See G.H. v Ethan Allen, Op. No. 01-06WC (January 19, 2006).
The issues at hearing were: 1) whether Claimant’s shoulder condition was work-related, if so what degree of permanent total disability was due; 2) whether Claimant suffered from a work-related physical-mental condition, if so what degree of permanent total disability was due? The Department found that the shoulder and physical-mental conditions were compensable, yet permanent total disability was not owed to Claimant. The Department also denied Claimant’s request for fees and costs since he did not prevail on permanency, a major part of the case.
In a post judgment ruling, the Department awarded Claimant attorney’s fees and necessary costs. See Op. No. 01R-06WC (April 21, 2006). Thereafter, Claimant specified his request. Defendant now disputes the necessity of those costs.
As evidenced by the language contained within 21 V.S.A. § 678(a), an award for necessary costs is mandatory, as a matter of law, if Claimant prevails in a Workers’ Compensation proceeding. Jean Ratta-Roberts v Benchmark Assisted Living, Opinion No. 46-05WC (2005). Pederzani v. The Putney School, Opinion No. 57-98WC (Oct. 6, 1998); Fredriksen v. Georgia-Pacific Corp., Opinion No. 28-97WC (Oct. 17, 1997).
Claimant prevailed on the compensability of his shoulder and mental conditions. Accordingly, he is entitled to receive necessary costs as a matter of law. 21 V.S.A. §678(a).
Claimant requests specific costs associated with expert opinions and testimony, including Dr. Bucksbaum’s fee. Because he had to hire Dr. Bucksbaum to establish compensability of his shoulder injury, this cost was necessary. Therefore, he is awarded the cost of $1,047.40.
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Claimant also argues that he incurred necessary costs associated with the need to prove a casual link between the work-related injury and the mental condition. Thus, he was forced to hire an expert witness, Dr. Phillip Kinsler, to testify and support his claim. Arguing that this cost was necessary to Claimant’s success of the physical-mental claim, he asks that costs, which total $7,838.33, be awarded. Claimant asserts that although he did not prevail on the third issue of permanent total disability, he had to depose the defense’s expert, Dr. Genarro. Claimant requests a deposition fee of $1,208.30. He also requests interest on the costs beginning from the August 21, 2006 decision until payment by Defendant.
Defendant challenges Claimant’s request for costs. First, Defendant relies on the Department’s acceptance of Dr. Mann’s, not Dr. Kinsler’s, permanency rating for the physical-mental claim. Therefore, Defendant asks that no award be made for costs of Dr. Kinsler’s work. Also, Defendant contends that Dr. Gennaro’s deposition cost is not necessary since Claimant did not prevail on his permanency claim.
I conclude that Dr. Kinsler’s opinion on behalf of Claimant was a necessary cost, though one entry does lack specificity. The claims for compensability and permanency share the same set of facts and required the same review. Dr. Kinsler’s opinion was relevant to the whole claim, both the rating and compensability of the mental condition, and he relied on the common facts to formulate his opinion. That his permanency rating was not accepted does not negate the importance of his opinion on the issue of compensability. Dr. Kinsler’s opinion was dedicated to the entire physical-mental claim. His time spent on both issues cannot be separated. Thus, Claimant’s request for Dr. Kinsler’s costs is granted. However, Claimant failed to specify one of the costs. The entry of “disbursement to Philip J. Kinsler” for $2,145.00 is not sufficient. The Department has no basis on which to determine if this cost is necessary. Claimant’s award, therefore, is reduced from $7,838.33 to $5,693.33.
In contrast, Dr. Genarro’s deposition fee is not a necessary cost. Dr. Gennaro opined that Claimant should not be entitled to permanent total disability. Instead, Dr. Gennaro found that Claimant was capable of sedentary to light-duty work. The Department accepted Dr. Gennaro’s opinion. Claimant is not awarded the cost of deposing Dr. Genarro since Claimant did not prevail on the issue of permanent total disability.
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Finally, Claimant is awarded interest on the costs, retroactive from the April 21, 2006 decision. 21 V.S.A. § 664.
Accordingly, based on the foregoing reasons,
1. Defendant is hereby ORDERED to pay to Claimant $1,047.40 associated with Dr. Bucksbaum’s costs
2. Defendant is hereby ORDERED to pay Claimant $5,693.33 associated with Dr. Kinsler’s costs
3. Claimant’s request for costs associated with Dr. Gennaro’s depositions is hereby DENIED
4. Defendant is hereby ORDERED to pay Claimant interest, retroactive from April 21, 2006 until awarded costs are paid.
Dated at Montpelier, Vermont this 7th day of July 2006.
________________________________
Thomas W. Douse
Acting Commissioner
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G. H. v. Ethan Allen (August 4, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 30A-05WC
G. H.
By: Margaret A. Mangan
v. Hearing Officer
Ethan Allen For: Thomas W. Douse
Acting Commissioner
State File No. M-22405
RULING ON UNOPPOSED MOTION TO AMEND JUDGMENT FOR COSTS
On July 14, 2006, Claimant, by and through his attorney, Robert Halpert, Esq., requested the Department to amend its judgment of his July 7, 2006 Order, which granted in part Claimant’s reimbursement for necessary costs. See G.H. v Ethan Allen, Op. No. 30-06WC (July 7, 2006). Defendant’s attorney, Andrew Boxer, Esq., has not opposed this motion.
In the July Order, the Department denied a portion of Claimant’s necessary costs. Claimant had labeled the costs as “disbursement to Philip J. Kinsler” for $2,145.00. This entry was insufficient given its lack of specificity. Now Claimant calls upon the Department to amend its judgment and award these additional costs.
In seeking to amend, Claimant has submitted documentation that supports the amount of $2,145.00. Given that Claimant has provided ample support for this request, the Department awards Dr. Kinsler’s necessary costs of $2,145.00. 21 V.S.A. § 678(a).
ORDER:
Accordingly, based on the foregoing reasons,
Claimant’s request for Dr. Kinsler’s costs of $2,145.00 is hereby GRANTED.
Dated at Montpelier, Vermont this 4th day of August 2006.
________________________________
Thomas W. Douse
Acting Commissioner
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G. H. v. Ethan Allen (September 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 30S-06WC
G. H.
By: Margaret A. Mangan
v. Hearing Officer
Ethan Allen For: Patricia Moulton Powden
Commissioner
State File No. M-22405
RULINGS ON CLAIMANT’S MOTION TO AWARD FEES
AND
DEFENDANT’S MOTION TO STAY AWARD OF COSTS
Claimant requests attorney’s fees associated with post-judgment work. This request follows Claimant’s partial success at hearing, where the Department first denied attorney’s fees and costs. See G.H. v Ethan Allen, Op. No. 01-06WC (January 19, 2006). Claimant then submitted a motion for reconsideration of the Department’s denial of fees and costs. Thereafter, the Department awarded Claimant attorney’s fees and necessary costs in part. See G.H. v. Ethan Allen, Op. No. 01R-06WC (April 21, 2006); G.H. v Ethan Allen, Op. No. 30-06WC (July 7, 2006); G.H. v. Ethan Allen, Op. No. 30A-05WC (August 4, 2006). Now, Claimant asks the Department to award additional attorney’s fees for filing the motion for reconsideration and subsequent work. The defense has opposed this motion for fees. Defendant has also filed a motion to stay the award of costs.
Claimant’s Motion for Attorney’s Fees
Claimant requests fees for his successful motion for reconsideration and the additional work to recover costs and fees.
A prevailing claimant is entitled to reasonable attorney’s fees as a matter of discretion when the claim is supported by a fee agreement and details of work performed. 21. V.S.A. §678(a); WC Rule 10.000. It is not necessary to prevail on all claims in order to be a prevailing claimant entitled to award of attorney’s fees; the question is whether the claimant has substantially prevailed. Hodgeman v. Jard Co., 157 Vt. 461, 465 (1991); Lyons v American Flatbread, Op. No 36-03WC (2003).
Defendant argues that Claimant is not entitled to attorney’s fees. The defense relies on Rule 10.1300, which provides: “In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing…” Thus, according to the defense, an award does not extend to post judgment filings. In the alternative, the defense contends that a fee award should be proportional to Claimant’s success.
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Claimant correctly argues that he is entitled to attorney’s fees for his post-judgment work. I am unconvinced by Defendant’s arguments. Claimant’s motion for reconsideration was directly related to the formal hearing process. The filings were integral to the main issues decided at hearing. As such, Claimant’s post-judgment work was related to the hearing process.
Finally, Claimant is granted his entire fee request, even though Claimant did not prevail on one issue in the post-judgment rulings (Dr. Gennaro’s deposition cost). All issues addressed by Clamant arose out of a common core of facts that cannot be reduced proportional to time spent on the successful aspects. See, The Electric Man, Inc. v. Charos, 2006 VT 16, ¶ 9.
Moreover, Claimant substantially prevailed on his post-judgment requests. The success was due to the efforts of his attorney who needed to spend 43.73 hours because of the issues presented. Since Claimant substantially prevailed and has submitted sufficient proof of time expended, he is entitled to reasonable attorney’s fees as a matter of discretion under 21 V.S.A. §678(a).
Defendant’s Motion to Stay
Pending its appeal to the Superior Court pursuant to 21 V.S.A. § 670, Defendant has moved for a stay of the Order dated July 7, 2006, awarding necessary costs in part to Claimant.
Defendant has requested a motion for stay pursuant to V.R.C.P 74(c). To prevail on a motion for stay, Defendant must demonstrate: (1) a strong likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3) the stay will not substantially harm other parties; and (4) the stay will serve the best interests of the public. In re Insurance Servs. Office, Inc., 148 Vt. 634, 635, (1987). The Department has the discretionary power to grant a full or partial stay of judgment. 21 V.S.A. §675(b); Austin v Vermont Dowel and Square Co., Op. No. 05S-97WC (1997).
Defendant fails to meet any of the four prongs required to justify a stay for benefits and attorney fees. Defendant does not demonstrate the likelihood of success on the merits on its appeal. The awarded costs were necessary to Claimant’s success on the conpensability of his shoulder and mental conditions. As this department implied in Dubuque v. Grand Union Company, Op. No. 34S-02WC (2002), the most important of the four criteria in the workers’ compensation context is the second, whether Claimant would suffer irreparable harm if the stay were granted. Kraby v Vermont Telephone Company, Op. No. 06S-04WC (2004). In this case, there will be irreparable injury to Claimant if the stay for attorney fees is granted. The stay of attorney fees and costs would cause substantial harm to Claimant given the number of these issues and the money spent to litigate them. Finally, it would be outside the best interests of the public if the Department further delayed costs that Claimant is legally entitled to receive.
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Defendant’s request for a stay is denied.
ORDER:
Accordingly, based on the foregoing reasons,
1. Claimant’s request for attorney’s fees associated with post-judgment motions are hereby GRANTED.
2. Defendant’s request for a motion to stay is hereby DENIED.
Dated at Montpelier, Vermont this _____ day of September 2006.
________________________________
Patricia Moulton Powden
Commissioner

F. B. v. VNA (August 4, 2006)

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F. B. v. VNA (August 4, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. B. Opinion No. 29S-06WC
By: Margaret A. Mangan
v. Hearing Officer
Visiting Nurses Association/ For: Thomas W. Douse
Liberty Mutual Insurance Group Acting Commissioner
State File No. W-57205
RULING ON COSTS
Claimant, by and through her attorney, Christopher McVeigh, Esq., requests necessary costs for her success at hearing. See Frances Bean v Visiting Nurses Association/Liberty Mutual, Op. No. 29-06WC (July 7, 2006). Defendant’s attorney, Eric Johnson, Esq., opposes the request.
At hearing, Claimant requested costs pursuant to 21 V.S.A §678(a). However, due to the lack of specificity, the Department was unable to determine if the costs were necessary to Claimant’s success. The issue was deferred until the Department received a more detailed report or until agreement by the parties. Since the hearing, Claimant submitted an additional cost report as requested. In this filing she explained the entries for “postage” and “copies.” She also listed expert witness costs. The defense argues that the postage and copy costs are excessive.
Claimant’s costs were not exorbitant. Instead, I accept Claimant’s postage and copy costs as necessary to her success. The Department makes this determination after review of her detailed report. As such, Claimant is awarded total costs of $1,199.60.
ORDER:
Accordingly, based on the foregoing reasons,
Claimant’s request for costs of $1,199.60 is hereby GRANTED.
Dated at Montpelier, Vermont this 4th day of August 2006.
________________________________
Thomas W. Douse
Acting Commissioner
F. B. v. Visiting Nurses Association (September 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. B. Opinion No. 29MS-06WC
By: Margaret A. Mangan
v. Hearing Officer
Visiting Nurses Association For: Patricia Moulton Powden
Liberty Mutual Insurance Group Commissioner
State File No. W-57205
RULING ON DEFENSE MOTION FOR STAY
Defendant, by and through its attorney, Eric A. Johnson, Esq., moves for stay of the order in favor of Claimant, Op. No. 29-06WC. Claimant, by and through her attorney, Christopher McVeigh, Esq., opposes the motion.
Defendant argues that it should have prevailed in its position that recommended fusion surgery for the Claimant was not related to her work related injury because Claimant had radicular problems that preexisted the work related injury. Accordingly, it argues that the order should be stayed.
Claimant argues that the judgment must stand because Claimant’s preexisting problems did not limit her ability to work and did not lead to the need for surgery. Only after the work related injury did the symptoms escalate and surgery become necessary.
Although an appeal has been filed, the order of the Commissioner shall be of full effect from issuance unless stayed by the Commissioner. 21 V.S.A. § 675. To prevail on its request in the instant matter, Defendant must demonstrate: “(1) a strong likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3) a stay will not substantially harm the other party; and (4) the stay will serve the best interests of the public.” Gilbert v. Gilbert, 163 Vt. 549, 560 (1995) citing In re Insurance Services Offices, Inc., 148 Vt. 634, 635 (1987) (mem); In re Allied Power & Light Co., 132 Vt. 554 (1974). The Commissioner has the discretionary power to grant, deny or modify a request for a stay. 21 V.S.A.§ 675(b); Austin v. Vermont Dowell & Square Co., Opinion No. 05S-97WC (1997) (citing Newell v. Moffatt, Opinion No. 2A-88 (1988)). The granting of a stay should be the exception, not the rule. Bodwell v.Webster Corporation, Opinion No. 62S-96WC ( 1996).
Defendant has not demonstrated that it is likely to succeed on the merits. Although its expert Dr. Backus presented a strong opinion, the Claimant’s support was more persuasive at this Department. It is likely to be the same in court. Next, payment of surgery does not constitute irreparable harm to the defense. See Frederick v. Georgia-Pacific Corp., Op. No. 28S-97WC (1997). On the contrary, were the decision stayed, Claimant would incur the hardship of additional costs. Finally the best interests of the public are best served by adhering to the speedy resolution of workers’ compensation claims and ordering prompt payment.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the motion for stay is hereby DENIED.
Dated at Montpelier, Vermont this 21st day of September 2006
________________________________
Patricia Moulton Powden
Commissioner
F. B. v. Visiting Nurses Association (July 7, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. B. Opinion No. 29-06WC
By: Margaret A. Mangan
v. Hearing Officer
Visiting Nurses Association/ For: Thomas W. Douse
Liberty Mutual Insurance Group Acting Commissioner
State File No. W-57205
Hearing held in Montpelier on February 28, 2006
Record closed on May 15, 2006
APPEARANCES:
Christopher J. McVeigh, Esq., for Claimant
Eric A. Johnson, Esq., for Defendant
ISSUES:
1. The nature of the review for a Form 27 Employer’s Notice of Intention to Discontinue Benefits when an employer/carrier has accepted a claim.
2. Whether Claimant has a compensable work-related injury.
3. If so, whether the fusion surgery Dr. Monsey performed on October 21, 2005 is a reasonable medical treatment.
4. Whether Claimant is entitled to attorney’s fees and costs in connection with this claim.
EXHIBITS:
Joint: Medical Records
Claimant 1: Deposition of Dr. Monsey
Claimant 2: Deposition of Dr. Mahoney
FINDINGS OF FACT:
1. Claimant worked for the Visiting Nurses Association at the Vermont Respite House in Williston, Vermont from May of 2001 until January of 2005.
2. At all relevant times, Claimant was an employee and Visiting Nurses Association her employer, within the meaning of the Vermont Workers’ Compensation Act.
3. Claimant’s work duties as a caregiver while at the Vermont Respite House included lifting, moving, and feeding patients.
4. Before January of 2005, Claimant lost no time from work for any back or leg condition, although she had treated with a chiropractor on a monthly basis for some time.
5. Claimant’s chiropractor, Dr. Sean Mahoney, primarily treated Claimant’s cervical and thoracic spine, although he provided some treatment to her lumbar spine before January 30, 2005. Dr. Mahoney has had a treating relationship with Claimant for approximately eight years.
6. On January 30, 2005 while working at the Vermont Respite House on the night shift, Claimant was helping to turn a heavy patient when she felt pain in her low back. The pain also radiated down her left leg. This was unlike any pain she ever had before.
7. Claimant finished her shift. Before she left for home in the morning, she reported the incident to her supervisor.
8. A Physician’s Assistant, Ms. Anderson, treated Claimant later that day at Occupational Health and Rehabilitation, Inc. The diagnosis was acute lumbar strain. Ms. Anderson noted Claimant’s prior chiropractic care and that Claimant “was repositioning a resident with another house manager when she started developing gradual onset of left-sided lower back pain with left thigh pain as well. She states this as more gradual onset.”[See Medical Records at 204].
9. Claimant has not worked since January 30, 2005. The claim was filed on February 7, 2005 and received by the Department on March 24, 2005.
10. At a visit with Ms. Anderson on February 3, 2005, it was noted that Claimant walked with an antalgic gait. Ms. Anderson then referred Claimant to see her chiropractor, Dr. Mahoney, for treatment.
11. Dr. Mahoney continued to treat Claimant. His treatment began to focus more on her legs and the lumbar region of her back instead of her cervical and thoracic spine. The frequency of the visits to Dr. Mahoney increased from bimonthly visits to seventy-seven times between February and September of 2005. Claimant’s relief from the back and leg pain was temporary.
12. Dr. Karen Burke, Claimant’s primary care physician, was aware that Claimant had back pain prior to the 2005 injury. She noted that Claimant had “back pain, probably due to arthritis.” [See Medical records at 226]. After the 2005 injury, Dr. Burke was concerned for Claimant’s back and bilateral leg pain and her difficulty with walking. She referred Claimant to Dr. Tramner.
13. The parties entered into a Form 21 Agreement for Temporary Total Disability Compensation for an injury to the back, an agreement approved by this Department on April 24, 2005.
14. Dr. Bruce Tramner, a neurosurgeon at Fletcher Allen Health Care, treated Claimant on May 3, 2005. According to a July 5, 2005 letter, Dr. Tranmer wrote that Claimant continued to complain of back pain with additional pain that traveled down the backs of her legs bilaterally, into her feet, and then into the medial toes. After reviewing the MRI scan, Dr. Tramner noted the presence of multilevel degenerative disc disease and osteoarthritis. He was unable to state the cause of Claimant’s pain. He then referred her to Dr. Monsey. Dr. Tramner also referred Claimant to Dr. Tandan to determine if Claimant had a muscular disease.
15. On July 15, 2005, Dr. Verne Backus, Occupational Health Specialist, performed an independent medical examination (IME) on Claimant at the request of Liberty Mutual, the carrier at risk for Visiting Nurses Association. Dr. Backus concluded that Claimant’s diagnosis of spinal degeneration is not causally related to the injury she sustained at work.
16. Defendant relied on the results of the IME by Dr. Backus that Claimant had reached medical end result and that work did not cause her current condition. Defendant then filed a Form 27 Employers Notice of Intention to Discontinue on August 25, 2005. The Form 27 became effective on September 1, 2005.
17. Also, on August 25, 2005, the carrier denied the claim for back/leg sprain as unrelated to an occupational injury.
18. Even though benefits were no longer available, Claimant sought treatment from Dr. Robert Monsey, an Orthopedic Spinal Surgeon, on August 29, 2005.
19. Dr. Monsey reviewed Claimant’s history, medical records, and MRI’s. Claimant did not disclose that she had back pain before the 2005 injury. Instead, Dr. Monsey received this information from Claimant’s intake form and her permanent problem list.
20. Dr. Monsey noted that the MRI’s revealed spinal degeneration, but he found that Claimant had suffered from injury to her disc. This injury, not the spinal degeneration,
was the cause of her current back and leg pain. He concluded that Claimant should undergo fusion surgery in order to alleviate the pain.
21. On August 30, 2005, Dr Rup Tandan, a neurologist, concluded that Claimant did not have a muscular disease. He noted that she did have muscle weakness in her legs that caused difficulty with walking.
22. In October of 2005, Dr. Monsey performed fusion surgery of her spine at the L3-4, L4-5 disc levels.
23. Subjectively, Claimant’s lower back pain has improved after fusion surgery, thus allowing her to engage in activities of daily living such as driving and grocery shopping.
Medical Opinions
24. Dr. Sean Mahoney, Chiropractic Physician and Claimant’s treating chiropractor of eight years, testified that Claimant had received bimonthly treatment for her lower back before the 2005 injury. Prior to this point, she was fully capable of performing her work duties as a caregiver and was able to engage in her ordinary routines. However, the frequency of Claimant’s visits rapidly increased after the 2005 work-related incident. Her symptoms were much more severe than before and her ability to physically function was impaired. She was unable to return to work. Claimant also experienced difficulty with performing many ordinary activities. Because of this dramatic change in her condition, he suspected lumbar disc involvement as the cause of her pain.
25. Dr. Verne Backus, Occupational Health Specialist, conducted the independent medical examination of Claimant on July 15, 2005. Dr. Backus noted that the diagnosis was “multi-level lumbar spondylosis and degenerative disc disease with left leg radiculopathy.” [See Medical Records 19]. He concluded, to a reasonable degree of medical certainty, that this diagnosis was not causally related to Claimant’s work injury for several reasons. First, he noted that the description of Claimant’s injury varied. Dr. Anderson wrote that the pain was a gradual onset, whereas Dr. Mahoney and other providers noted a sudden onset of pain. An injury of sudden onset, rather than one of gradual onset, would be more likely to support a finding of causation. Dr. Backus also found that Claimant was hesitant to disclose that she had back pain prior to the 2005 injury. Furthermore, Dr. Backus read that the MRI’s revealed a chronic condition, such as degenerative disc disease. If Claimant did have any symptoms from work it was temporary and did not change the course of her progressive disease. Thus, taking all of these factors into consideration, Dr. Backus concluded that it was within a reasonable degree of medical certainty that her injury was not work-related and that she did not aggravate a preexisting condition. He also found that she only had a part-time work capacity that did not involve the moving or transferring of patients.
26. Dr. Robert Monsey, Orthopedic Spine Surgeon at Fletcher Allen, opined that the fusion surgery he performed was causally related to Claimant’s work injury of January 30, 2005. He stated that it is not unusual for Claimant to have had back pain prior to her 2005 injury. He testified that eighty percent of the population experiences back pain at some point in their life. Furthermore, the type of pain she experienced after the work injury was a deep low lumbosacral discomfort/pain associated with radiation into her extremity and a radicular distribution. These particular areas can be distinguished from the back spasms and minimal aching in her lower back that she had experienced prior to her work injury. The left knee pain that Claimant had before 2005 was most likely caused by arthritis. Also, the muscle weakness in Claimant’s legs was probably related to the medical treatment of her exposure to an infectious disease. Finally, Dr. Monsey disagreed with Dr. Tranmer’s reading of Claimant’s MRI’s. Dr. Monsey opined that the MRI’s revealed radiographic findings of spinal degeneration as well as radiographic findings of an injury that correlated with Claimant’s symptoms. Accordingly, Dr. Monsey concluded that Claimant had a work-related injury and the fusion surgery would alleviate, or at least lessen, Claimant’s back and leg pain.
CONCLUSIONS OF LAW:
Standard of Review of Form 27
1. Before this issue can be addressed, it is helpful to review the Department’s administrative procedures. There are two levels of process, informal and formal, that may be necessary for a claimant to pursue a workers’ compensation claim.
2. At the outset, the claimant has the burden of establishing all facts essential to the rights asserted in this workers’ compensation case. Goodwin v. Fairbanks, 123 Vt. 161 (1962).
3. Once a claim is filed, by the employer on a Form 1 or employee on a Form 5, the carrier/employer shall have twenty-one days to accept or deny the claimant’s workers’ compensation claim. See WC Rule 3.0900. In this case, a First report of Injury was filed on February 2, 2005. No denial was filed.
4. In fact, the carrier accepted the claim. The Form 21 Agreement for Temporary Total Disability Compensation was signed by Claimant and the insurance adjuster and approved by a specialist in this Department. With that agreement, Claimant met her burden to prove the compensability of a back injury under Goodwin.
5. Generally, if a carrier has accepted a claim or is under an interim order to pay benefits, it must file a Form 27 before terminating those benefits, a form that is reviewed by a specialist at the informal level.
6. The Vermont legislature enacted 21 V.S.A. §643a to address the defendant’s burden of proof at the informal level with regard to the Form 27. This statute provides that the commissioner, upon the initial review of the Form 27, may order a continuance of benefits to Claimant until a hearing is held if the evidence does not “reasonably support” the termination. Id. (emphasis added). ‘“Evidence that reasonably supports an action’ means, for the purposes of section 643a …relevant evidence that a reasonable mind might accept as adequate to support a conclusion that must be based on the record as a whole, and take into account whatever in the record fairly detracts from its weight.” § 601(24).
7. Pursuant to its rule-making authority, the Department promulgated WC Rule 18.1100 to expand on the standard of review for a Form 27 at the informal level: “Unless the claimant has successfully returned to work, temporary disability compensation shall not be terminated until a Notice of Intention to Discontinue Payments (Form 27), adequately supported by evidence, is received by both the commissioner and the claimant.” (emphasis added). The same standard applies to the termination of medical benefits. See WC Rule 18.1200.
8. Acceptance of the Form 27 means that reasonable mind concluded that Dr. Backus’s opinion was the persuasive one, taking into account the other evidence.
9. At formal hearing, Defendant now has the burden of supporting its claim for termination by a preponderance of the evidence, Merrill v University of Vermont, 133 Vt. 101, 105 (1974) (emphasis added), even though the Form 27 was accepted.
10. In sum, when the Department’s specialists initially review the Form 27, Defendant’s evidence must reasonably support its termination of benefits. V.S.A.§ 643a; WC Rule 18.1200. Yet the Department has repeatedly recognized that during a formal hearing, a Defendant’s termination of benefits must be justified by a preponderance of the evidence. See, e.g., Linda Weeks v. N.S.A. Industries, Opinion No. 27-05WC (2005); Joy Alexander v Middlebury College, Opinion No. 16-05WC (2005); Anne Britton v Laidlaw Transit, Opinion No. 47-03WC (2004).
11. Therefore, Defendant must prove that its justification for the termination of benefits was more likely than not true.
Causation
12. In workers’ compensation cases, where the causal connection between an accident and an injury is obscure and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
13. Therefore, Defendant, the party bearing the burden of proof must support its position with medical evidence and prove that its position is the more probable hypothesis.
14. While a reasonable degree of medical certainty might connote some marginally higher standard of proof than a mere preponderance, the modifier “reasonable” returns the standard to the level of preponderance [more likely than not]. Wheeler v. Central Vermont Medical Center, 155 Vt. 85, 94 (1990).
15. To address divergent opposing medical opinions, the Department considers the following criteria: 1) The nature of treatment and length of time there has been a patient-provider relationship; 2) whether all accident, medical, and treatment records were made available to and considered by the examining physician; 3) whether the report or evaluation at issue is clear and thorough and includes objective support for the opinions expressed; 4) the comprehensiveness of the examination; and 5) the qualifications of the experts, including professional training and experience. Wallace v. Velan Valve Corp., Opinion No. 51-02WC (2002); Yee v. IBM, Opinion No. 38-00WC (2000); Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Martin v. Bennington Potters, Opinion No. 42-97WC (1997); see also, Morrow v. VT Financial Services, Opinion No. 50-98WC (1998).
16. Claimant relies on the testimony of a chiropractic physician, Dr. Mahoney, and an orthopedic spine surgeon, Dr. Monsey, to establish a causal connection. Defendant relies on the IME performed by Dr. Backus, an occupational medicine specialist, to support that there is no causal connection.
17. In this case, a thorough analysis reveals that the factors weigh in Claimant’s favor. This would be the case even if Claimant bore the burden of proof.
18. Dr. Mahoney has had a treating relationship as Claimant’s chiropractor for eight years. Dr. Monsey has had a treating relationship as Claimant’s surgeon for almost a year, whereas Dr. Backus has only examined her once. All three experts reviewed the relevant records, took complete histories, and then provided objective opinions. All physicians are well qualified to render opinions in this case, Dr. Mahoney with his expertise as a chiropractor, Dr. Monsey in the area spinal surgery, and Dr. Backus in occupational health. However, Dr. Monsey has an advantage in the area of education as a surgeon. Therefore, the advantage is in favor of the Claimant’s experts by the first criterion and fifth criterion.
19. Not only does the balance tip in favor of Claimant’s experts, but Dr. Backus’s opinion is not convincing. First, he opined that there was no causal connection because Dr. Anderson had noted that Claimant’s injury was a gradual onset, instead of a sudden onset. However, Claimant reported these symptoms the same morning the injury occurred. It appears not that Claimant’s injury was a gradual onset, but that her symptoms had gradually worsened throughout the morning. Also, Dr. Backus concluded that Claimant had failed to disclose her prior back pain to others, including Dr. Monsey. However, Dr. Monsey had this information before surgery from Claimant’s intake form and her permanent problem list. Finally, Dr. Backus read the MRI’s differently than Dr. Monsey. Dr. Backus opined that the MRI’s revealed spinal degeneration as the sole cause. Dr. Monsey read that the MRI’s indicated both spinal degeneration and an injury as a cause. Such differences in opinion are not controlling in this case, especially given the success of Claimant’s surgery by Dr. Monsey.
20. When all the evidence is considered as a whole, the more probable hypothesis is that Claimant’s injury is work-related and compensable. The basis for the Form 27 is therefore rejected.
Reasonableness of Fusion Surgery
21. The Vermont Workers’ Compensation Act requires that the employer/carrier pay for all reasonable medical care and treatment causally related to a work injury. 21 V.S.A. § 640(a).
22. Whether the proposed treatment is reasonable depends, not on the subjective desire of the claimant, but on the likelihood it will improve a work-related condition or symptoms. Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000). It is what is shown by competent expert evidence to be reasonable to relieve a claimant’s symptoms and maintain functional abilities. Britton v. Laidlaw Transit, Opinion No. 47-03WC (2003).
23. Claimant’s surgical procedure was reasonable and causally connected to her work injury at the Respite House.
24. Defendant argues that the surgical procedure should not be compensable because her injury is not causally related to her employment with Visiting Nurses Association.
25. However, as discussed above, Claimant’s injury is work-related, consequently it is compensable. I defer to Dr. Monsey’s opinion, as Claimant’s spinal surgeon, that it was necessary for Claimant to undergo the fusion surgery. It is evident that the surgery was reasonable given the result. In 2005, Claimant experienced a severe decrease in her ability to maintain her active life, both at work and at home. Dr. Monsey recommended and performed surgery. Thereafter, she became more able to engage in ordinary activities, such as driving and grocery shopping. It was a reasonable surgery because it improved the symptoms that flowed from Claimant’s work injury.
26. In conclusion, the proposed surgery is compensable because it is causally connected to Claimant’s work-related injury and is reasonable under 21 V.S.A. § 640(a).
Attorney’s Fees
27. A prevailing claimant, Frances Bean is entitled to reasonable attorney’s fees as a matter of discretion and necessary costs as a matter of law when the claim is supported by a fee agreement and details of costs incurred and work performed. 21. V.S.A. §678(a); WC Rule 10.000.
28. Factors considered in fashioning an award include the necessity of representation, difficulty of issues presented, time and effort expended, clarity of time reports, agreement with the claimant, skill of counsel and whether fees are proportional to the efforts of counsel. See Hojohn v. Howard Johnson’s, Inc., Op. No. 43A-04WC (2004); Estate of Lyons v. American Flatbread, Op. No. 36A-03 (2003).
29. Claimant’s success in this case was due to the efforts of her attorney who needed to spend 102 hours because of the carrier’s denial, difficulty and number of the issues presented, and discovery involved. Claimant has submitted sufficient proof of time expended. Since Claimant has prevailed on all issues, I do not need to address concerns about the appropriate fee with a partial success. Also, the award does extend to time spent in preparation of litigation, such as a phone consultation with an expert. See Antonio Sanz v. Douglas Collins, Op. No. 15R-05WC (2005). Here the attorney’s time in the case preparation and presentation in the amount of 102 hours is reasonable.
30. Claimant is entitled to necessary costs in this case, however she has failed to specify her claimed costs. The entries of “postage” and “copies” are insufficient. The Department has no basis on which to determine if the costs are in fact necessary to this case. Instead, Claimant must explain to what each of the entries relates, i.e., “postage to the Department re proposed findings of fact/conclusions.” Thus, the issue of costs will be deferred for 30 days until Claimant submits a detailed cost report, or until agreement by the parties.
31. I do not accept Defendant’s argument that paper copies are not a legitimate cost. Defendant contends that the copies made by the defense should cancel out the copies made by Claimant’s attorney. If this were true, the costs of deposing expert witnesses would be cancelled out as well.
32. Thus, Claimant is awarded fees of $9,180.00 (102 hours at $ 90.00 per hour). Claimant is also awarded interest on payments from September 1, 2005 until benefits are paid. 21 V.S.A § 664. The issue of costs for $1,190.12 is deferred for 30 days until Claimant submits a more detailed report, or until agreement by the parties.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law,
1. Defendant is hereby ORDERED to pay Claimant’s reasonable and necessary medical expenses related to her compensable injuries, including all costs associated with the surgical procedure.
2. Defendant is hereby ORDERED to pay from September 1, 2005 and to continue paying Claimant temporary total benefits pursuant to 21 V.S.A. § 642, until such compensation may be terminated in accordance with Workers’ Compensation Rule 18.
3. The claim for attorney’s fees of $9,180.00 is hereby GRANTED.
4. The claim for costs of $1,190.12 is hereby DEFERRED for 30 days until Claimant submits a more detailed explanation, or until agreement by the parties.
5. Defendant is hereby ORDERED to pay interest at the statutory rate computed from the date when the payments were terminated, September 1, 2005, and until the date of payment. 21 V.S.A § 664.
Dated at Montpelier, Vermont this 7th day of July 2006
________________________________
Thomas W. Douse
Acting Commissioner

T. P. v. S. D. Ireland Brothers (October 9, 2006)

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T. P. v. S. D. Ireland Brothers (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 41-06WC
T. P.
By: Margaret A. Mangan
v. Hearing Officer
S.D. Ireland Brothers For: Patricia Moulton Powden
Commissioner
State File No. X- 53328
RULING ON DEFENSE MOTION TO DISMISS
Defendant S.D. Ireland Brothers moves to dismiss with prejudice claimant Terry Parmer workers’ compensation claim pursuant to V.R.C.P. 37, 41, and 79.1 for failure to prosecute. In addition, defendant requests that claimant pay court reporter costs and attorney fees resulting from claimant’s failure to appear at his scheduled deposition. Defendant has not presented sufficient evidence to support these requests.
Defendant filed a First Report of Injury on October 13, 2005. This report stated that claimant fell or slipped from a ladder or scaffolding on September 30, 2005, resulting in skin surface bruising and injury to the bone portion of the spine. The Department’s file indicates that defendant’s Workers’ Compensation Insurance Carrier, Liberty Mutual Insurance Company (Liberty Mutual), paid Temporary Total Disability benefits and medical benefits to the claimant. Then, on November 15, 2005, Liberty Mutual filed a Form 2 denying “any ongoing indemnity benefits.” Liberty Mutual also filed a Form 27 to discontinue TTD and medical benefits. On December 20, the Department wrote a letter to Liberty Mutual and claimant’s attorney notifying them that the Form 27 was approved. This letter also informed the claimant of his right to contest this discontinuance. On February 10, 2006, the defendant moved to dismiss the claimant’s claim with prejudice for failure to prosecute. On February 27, 2006 the Staff Attorney ruled that “a delay of years rather than months would be necessary to support dismissal of a claim due to claimant’s failure to prosecute.”
The following day, February 28, 2006, the claimant’s attorney motioned to withdraw because he was unable to contact the claimant by telephone or in writing after repeated attempts. On March 6, 2006 the Department sent a certified letter to the claimant to notify him of the request to withdraw. On March 30, 2006 the postal service returned the certified letter to the Department because it remained unclaimed despite two separate notices to the claimant. The Department then sent another certified letter to the claimant, addressed to a slightly different address, to notify him of the request to withdraw. Again, the letter was returned to the Department because it had been unclaimed after two notices to the claimant. As a result, the Department granted the request to withdraw, and sent a letter to the claimant to notify him that he would be required to represent himself pro se.
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Subsequently, on June 20, 2006, defendant noticed claimant’s deposition. Claimant did not attend the deposition, resulting in this motion by defendant.
Vermont Rule of Civil Procedure 41(b)(2) states that an action may be dismissed where a plaintiff fails to prosecute or comply with the rules of civil procedure. However, the V.C.R.P. apply to workers’ compensation hearings, only “insofar as they do not interfere with the informal nature of the proceedings.” WC Rule 7.1000. To grant the defendant’s motion to dismiss with prejudice would be the equivalent of adjudication on the merits. Grant v. Cobbs Corner, Op No. 22-02WC (2002) at 1.
The defendant’s right to seek finality of a claim must be balanced with the claimant’s right to seek the benefits to which he may be entitled. “[O]ur Supreme Court once stated, ‘allowing a case to slumber on the docket for a period of five years indicates a lack of diligence warranting its dismissal…’” Holmes v. Northeast Tool, Op No. 26-05WC, at 1 (2005) (quoting Capitol Savings Bank & Trust Co. v. E.W. Hammett, 95 Vt. 47, 50 (1921). Furthermore, 21 V.S.A. §§ 656, 660 prevent a claimant from commencing with any claim more than three years after the date of injury. This law shows that the Court and legislature have considered the rights of both parties and have indicated a timeframe to protect each party’s interest. In other words, a claimant must fail to act for a number of years before his or her rights may be justly foreclosed. As such, less than a year of inaction does not yet warrant a dismissal for failure to prosecute.
This case is clearly distinguishable from C.H. v. Schwan’s Food, Op. No. 40-06 (2006), a case dismissed more than two years after the First Report of Injury had been filed. In that case, the Claimant had actively participated in her case, and then failed to appear for a scheduled appointment, status conference and hearing. Prior to the dismissal, she had several telephone conversations with personnel in this Department.
Defendant’s request to recoup expenses incurred in preparation for deposition in this case is also denied. Efforts to depose the claimant were undertaken by the defendant’s own initiative at a time when it was not paying any benefits, rather than in response to any action taken by the claimant. Furthermore, because it was fully aware of the repeated unsuccessful attempts to contact the claimant, the defendant knew or should have known that the claimant could not be reached. As such, the defendant understood that there was a potential financial risk involved in attempting to notice the claimant’s deposition.
Also, while it is clear that claimant has not initiated further action on this claim or acknowledged the correspondence sent from the defendant or the Department itself, the reason for this inaction is uncertain. It is possible that claimant’s unresponsiveness and inactivity is intentional. However, it is also entirely possible that claimant is somehow incapacitated or otherwise legitimately unable to take further action at this time. To dismiss for failure to prosecute under these uncertain circumstances would be patently unfair to the claimant.
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Therefore, for the foregoing reasons, the defendant’s Motion to Dismiss this claim with prejudice is DENIED.
Dated at Montpelier, Vermont this 9th day of October 2006.
_____________________________
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

Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)

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Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR

Opinion No.: 38-11WC

Dzevad Zahirovic v. Super Thin Saws, Inc.

By: Phyllis Phillips, Esq., Hearing Officer

For: Anne M. Noonan, Commissioner

State File Nos. S-6844 and CC-56257
RULING ON DEFENDANTS’ MOTIONS TO DISMISS CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
Background
Claimant has worked for Defendant Super Thin Saws, Inc. (“Super Thin Saws”) for many years. His job requires him to work with machine coolants, oils and motor fluids on a daily basis. As a result of this exposure, in October 2001 Claimant was diagnosed with contact dermatitis, for which he filed a claim for workers’ compensation benefits. The workers’ compensation insurance carrier on the risk at that time was the predecessor in interest to Defendant One Beacon Insurance Co. (“One Beacon”). It accepted Claimant’s claim as compensable and paid workers’ compensation medical benefits accordingly.
Claimant again sought workers’ compensation medical benefits for contact dermatitis nearly ten years later, in April 2010. One Beacon seasonably denied the claim on various grounds. Most notably, it alleged that Claimant’s current condition represented an aggravation for which Super Thin Saws’ current workers’ compensation insurance carrier, Defendant The Hartford Insurance Co. (“The Hartford”), was liable. Aside from asserting that Claimant had not treated for his condition in the intervening ten years since his 2001 claim, One Beacon offered no evidence in support of this contention.
Through his attorney, on July 27, 2010 Claimant filed a Notice and Application for Hearing in which he disputed One Beacon’s aggravation claim. Because the medical records available at the time recounted a ten-year history of the condition and referenced a 2001 date of injury, upon review the Department determined that One Beacon was liable. By interim order dated November 18, 2010 it directed One Beacon to pay workers’ compensation benefits accordingly.
Medical records produced subsequent to the Department’s interim order clarified that in fact Claimant had neither sought treatment nor lost time from work on account of his condition for a period of years prior to April 2010. Accordingly, on December 7, 2010 the Department notified The Hartford of its potential liability for Claimant’s current claim. The Department’s Workers’ Compensation Specialist granted The Hartford a brief extension to investigate the claim, and also scheduled an informal conference for January 3, 2011. Although it had filed a denial on that same day, during the informal conference The Hartford accepted responsibility for the claim and agreed voluntarily to pay benefits. One Beacon was thereby relieved of any responsibility for Claimant’s April 2010 injury.
On May 6, 2011 Claimant’s attorney filed the pending Petition for Attorney Fees and Costs. Defendants One Beacon and The Hartford both have moved to dismiss the petition on various grounds, discussed below.
Discussion
In support of his petition for attorney fees and costs, which he asserts should be awarded against either One Beacon or The Hartford, Claimant cites to those provisions of the workers’ compensation statute and rules dealing with awards in claims that are resolved short of formal hearing. Specifically, 21 V.S.A. §678(d) provides:
In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the commissioner may award reasonable attorney fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney’s efforts.
Workers’ Compensation Rule 10.1300 provides further guidance:
Awards to prevailing claimants are discretionary. In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing where the claimant is able to demonstrate that:
10.1310 the employer or insurance carrier is responsible for undue delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been responsible for any unreasonable delay in resolving the issues.
As to the timeliness of a request for an award of attorney fees, the statute specifically provides that an attorney representing a claimant “shall submit a claim for attorney fees and costs within 30 days following a decision in which the claimant prevails.” 21 V.S.A. §678(e).
Claimant clearly has failed to meet the timeliness requirement, as against either Defendant. His petition for attorney fees was not submitted until May 2011, almost six months after the Department ordered One Beacon to pay benefits and some four months after The Hartford voluntarily agreed to do so. Claimant has offered no extenuating circumstances to justify the delay, nor can I discern any reason to overlook it. That being the case, Claimant’s petition for attorney fees deserves to be rejected on those grounds alone.
Even were I to overlook the fact that Claimant’s petition for fees was not timely filed, Rule 10 provides no basis for an award against either Defendant. As against One Beacon, Claimant asserts that his claim was denied without reasonable basis (Rule 10.1320), and that his attorney’s representation was necessary to resolve the issue (Rule 10.1350). I do not accept either of these assertions. The fact that The Hartford voluntarily accepted responsibility for the benefits owed Claimant is justification enough for One Beacon’s denial. That The Hartford was even in the case, furthermore, occurred as a result of One Beacon’s advocacy, not Claimant’s. Given the ultimate disposition of the claim in One Beacon’s favor, there is no basis for an award of fees against it.
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Claimant all but concedes that Rule 10.1300 provides no basis for an award against The Hartford. Instead he argues that by accepting Claimant’s claim for benefits The Hartford somehow stepped into One Beacon’s shoes and thereby inherited One Beacon’s responsibility for attorney fees. Claimant cites no legal authority for this proposition and I cannot accept it. Even if I could, having just determined that One Beacon is not liable for Claimant’s attorney fees, there is nothing for The Hartford to inherit.
The discretion granted by §678(d) to award fees in cases that are resolved prior to formal hearing is broad. Rule 13 directs that this discretion is to be exercised only in limited circumstances, and only when specific requirements are met. This is not one of those circumstances.
Last, as for The Hartford’s request that the attorney fees it has incurred in defending Claimant’s petition be assessed against Claimant, neither the statute nor the rule authorizes me to do so.
Defendants’ Motions to Dismiss Claimant’s Petition for Attorney Fees and Costs are GRANTED. Claimant’s Petition for Attorney Fees and Costs is DISMISSED.
DATED at Montpelier, Vermont this 17th 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.

Gloria Crowe v. The Fonda Group, Inc. (May 2, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Gloria Crowe v. The Fonda Group, Inc. (May 2, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gloria Crowe Opinion No. 02A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Fonda Group, Inc.
For: Anne M. Noonan
Commissioner
State File No. S-13358
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on January 25, 2011. Two issues were presented: first, whether Claimant was entitled to permanency benefits in accordance with Dr. Backus’ 18% whole person rating or Dr. Johansson’s 5% rating; and second, whether Defendant was obligated to sign a treatment authorization form that it felt was overly broad and therefore objectionable.
As to the first issue, the Commissioner ruled that Dr. Backus had applied a more appropriate analysis to determining Claimant’s impairment than Dr. Johansson had, but that his rating still was deficient because it relied on outdated electrodiagnostic test results. As an alternative to awarding benefits, the Commissioner ordered Defendant to pay for repeat electrodiagnostic testing so that her permanent impairment could be rated more accurately.
As to the second issue, the Commissioner ruled in Defendant’s favor.
The Commissioner also ruled that Claimant had at least partially prevailed on her claims and therefore was entitled to an award of costs and attorney fees commensurate with the extent of her success. In accordance with that ruling, Claimant now seeks an award of costs totaling $536.83 and attorney fees totaling $8,885.50.1
Defendant objects to any award of costs or fees. It argues that because the Commissioner did not grant the relief Claimant sought – permanency benefits based on Dr. Backus’ 18% impairment rating – Claimant cannot be said to have prevailed at all.
Defendant ignores an important component of the Commissioner’s Opinion. The Commissioner did find that Dr. Backus’ analysis was more credible than Dr. Johansson’s, and in that sense Claimant did prevail. The Commissioner also found that Defendant’s failure to pay for repeat diagnostic testing when Dr. Backus first requested it was improper. Had Defendant chosen otherwise, possibly a formal hearing on the permanency issue could have been avoided. From this perspective as well, it is appropriate to consider an award of costs and fees.
1 This is in accordance with Claimant’s Amended Petition for Fees and Costs, filed on April 14, 2011.
2
Defendant is correct that Claimant has not yet proven her entitlement to an award of permanency benefits based on Dr. Backus’ 18% impairment rating. It was on those grounds that Claimant was deemed to have only partially prevailed. Commensurate with the extent of her success, she is entitled to only a partial award of costs and/or fees. See, e.g., Hill v. CV Oil Co., Opinion No. 15-09WC (May 26, 2009); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
I conclude that Claimant is entitled to an award of her costs as submitted, totaling $536.83.
As for attorney fees, in exercising the discretion granted by 21 V.S.A. §678 the Commissioner typically considers such factors as whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003), and cases cited therein. Where, as here, the case has not yet reached final resolution, it is appropriate as well to consider whether the fees sought bear a reasonable relationship to the position of the case overall. Wilson v. Black, Opinion No. 54-03WC (January 28, 2004). With that factor particularly in mind, I conclude that it is appropriate to award Claimant 40% of the fees requested, or $3,554.20.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $536.83; and
2. Attorney fees totaling $3,554.20.
DATED at Montpelier, Vermont this 2nd day of May 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.

Arthur Taft v. Central Vermont Public Service Corp. (January 25, 2011)

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Arthur Taft v. Central Vermont Public Service Corp. (January 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arthur Taft Opinion No. 03-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Central Vermont Public
Service Corp. For: Anne M. Noonan
Commissioner
State File No. L-23771
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES
Claimant seeks attorney fees associated with establishing his entitlement to mileage reimbursement. Defendant asserts that under the circumstances of this claim, particularly the fact that the disputed issues were resolved prior to the scheduled formal hearing, there is no basis for awarding attorney fees.
The facts are not substantially disputed. Claimant suffered severe burns in a work-related accident that occurred in June 1998. At the time, Claimant lived in Springfield, Vermont but had been commuting to Rutland in order to train for a new position to which he had been assigned in Springfield. The injury occurred in Rutland.
As treatment for his injury, Claimant underwent regular physical and occupational therapy sessions at Dartmouth Hitchcock Medical Center (DHMC). These treatments are ongoing, and continue to this day.
For many years after the injury, Defendant reimbursed Claimant’s mileage for trips to and from his DHMC therapy appointments, as required by Workers’ Compensation Rule 12. In November 2006, however, it sought to discontinue mileage reimbursement on the grounds that the treatment Claimant was receiving was equally available at a facility closer to his home. In support of its discontinuance, Defendant offered a medical opinion to that effect from Dr. Wing. The Department rejected the discontinuance, whereupon mileage reimbursement continued as before.
In October 2008 Defendant sought again to discontinue Claimant’s mileage reimbursement, on the same grounds and supported by essentially the same opinion from Dr. Wing. Again the Department rejected the discontinuance. Later, in December 2008 it also rejected Defendant’s request for reconsideration.
2
Shortly after the Department rejected the second proposed discontinuance, in November 2008 Defendant’s attorney proffered another, separate basis for recalculating Claimant’s mileage reimbursement, this one having to do with Claimant’s “regular commute distance” to and from work. According to Rule 12, a claimant’s reimbursement for travel to and from medical appointments is only for mileage “beyond the distance normally traveled to the workplace.” While for the many years previous Defendant had calculated this commute distance from Claimant’s Springfield home to his Springfield permanent assignment, now Defendant’s attorney notified Claimant’s attorney that Defendant would begin calculating it from Claimant’s home to his Rutland training assignment instead. The result was a far greater “regular commute distance,” and therefore a much smaller mileage reimbursement.
Claimant objected to the revised calculation. In October 2009 his attorney filed a Notice and Application for Hearing on the issue. There followed a flurry of correspondence among the parties’ attorneys and the workers’ compensation specialist assigned to consider the matter at the informal dispute resolution level. In January 2010 the specialist ruled in Claimant’s favor.
Defendant appealed the specialist’s determination and requested that the matter be forwarded to the formal hearing docket. As contested issues it cited both the “treatment closer to home” question it had raised in the context of its 2006 and 2008 discontinuances and the more recent “regular commute distance” question.
Having been forwarded to the formal hearing docket, the claim was assigned to a hearing officer, who conducted a telephone pretrial conference on May 4, 2010 and scheduled a formal hearing for September 27, 2010.
In July 2010 Claimant’s attorney began drafting a Motion for Summary Judgment in which he argued that as a matter of law neither of the grounds Defendant asserted as a basis for recalculating his mileage reimbursement was valid, and that in any event Defendant had waived its right to contest the issue. It does not appear that this motion was ever filed.
On July 7, 2010 Defendant’s attorney notified the hearing officer that Defendant was withdrawing the issue of whether Claimant’s DHMC treatment could be provided just as adequately at a facility closer to his home. With that action, the only issue remaining for formal hearing was the “regular commute distance” question. On July 28, 2010 Defendant’s attorney withdrew its request for formal hearing on that question as well. Defendant having thereby acquiesced to Claimant’s position on both of the disputed issues, the formal hearing was cancelled.
By the time Defendant withdrew its request for formal hearing, Claimant’s attorney already had invested a total of 14.3 hours at the informal dispute resolution level and 20.5 hours once the matter was referred to the formal hearing docket. Since then, Claimant’s attorney has expended an additional 9.25 hours on the current Motion for Attorney Fees. At the prevailing rates ($90.00 per hour for work performed prior to June 15, 2010, $145.00 per hour for work performed thereafter), the attorney fees total $5,408.25.
3
Discussion
Vermont’s workers’ compensation statute provides for an award of costs and/or attorney fees as follows:
Necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails. The commissioner may allow the claimant to recover reasonable attorney fees when the claimant prevails. Costs shall not be taxed or allowed either party except as provided in this section.
21 V.S.A. §678(a).
Notably, the statute does not differentiate between the informal dispute resolution process and the formal hearing process. Both constitute “proceedings under this chapter.” In appropriate circumstances, therefore, the commissioner’s discretion can extend to attorney fee awards at either level.
Workers’ Compensation Rule 10.1300 provides additional guidance as to attorney fee awards. It states:
Awards to prevailing claimants are discretionary. In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing where the claimant is able to demonstrate:
10.1310 that the employer or insurance carrier is responsible for undue delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 that the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been responsible for any unreasonable delay in resolving the issues.
As a preliminary matter, Defendant asserts that the current version of Rule 10 is inapplicable to this claim, and that the version in effect as of the date of injury – June 1998 – must control instead. That version referenced only “awards of attorney fees to a prevailing claimant.” It did not differentiate in any way between awards involving the formal hearing process and those made in the context of informal dispute resolution proceedings. Nor did it specify the evidence required in order to justify an award in the latter circumstance.
4
I agree that as with all benefits defined by the Workers’ Compensation Act, a claimant’s right to recover attorney fees is acquired at the time of the injury, not at the time the right is asserted. Sanz v. Douglas Collins Construction, 2006 VT 102, ¶10. I also agree that the obligation to pay such benefits is governed by the law in force at the time of the injury. Id. at ¶9; Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983). I disagree, however, that the current version of Rule 10 has created a new, substantive right to recover attorney fees short of a formal hearing where one did not exist before. That right derives from §678(a) and has not changed substantively since 1998. The amendments since then have merely clarified the factors to be considered in awarding attorney fees at different stages in the dispute resolution process. As such, they are procedural in nature and therefore applicable to pending claims. Workers’ Compensation Rule 46.1000; Estabrook v. New England Precision, Opinion No. 10-00WC (May 16, 2000).
I turn then to the circumstances of the current claim in the context of Rule 10.1300 as currently written. Here, Defendant withdrew its appeal after the matter had been referred to the formal hearing docket and a pretrial conference held. A formal hearing already had been scheduled, and presumably in anticipation of that Claimant’s attorney had begun preparing his case. Taken together, these circumstances constitute “proceedings involving formal hearing resolution procedures.” Thus, the determination whether to award fees rests not on the “limited instances” covered by Rules 10.1310-10.1360 but rather on the more common instance in which fees are awarded to a prevailing claimant in the context of the formal hearing process.
As noted above, the statute grants the commissioner discretion to award reasonable attorney fees to a prevailing claimant. Among the factors to be considered in exercising that discretion are the extent to which the attorney’s efforts were integral to the rights secured, the time, effort and skill required to prepare and present the case, and whether the fees requested are proportional to the effort expended. Wilson v. Black, Opinion No. 54-03WC (January 28, 2004); Estate of Lyons v. American Flatbread, Opinion No. 36A-03WC (November 3, 2003).
Considering these factors, I find that Claimant’s attorney fee request is both reasonable and justified. His attorney’s efforts were integral to preserving his right to mileage reimbursement, and the time, effort and skill required justified the hours expended. I also find that the hours were properly itemized and billed at the appropriate rates.
I conclude that Claimant is entitled to an award of the fees requested. In doing so, however, I am mindful of the particular circumstances of this claim. Here, Defendant’s decision to withdraw its appeal was not prompted by any further discovery or ongoing settlement negotiations that took place after the formal hearing process began. Nor did it come about as a result of mandatory mediation. If present in a future claim, such alternative facts very well might justify a different result.
5
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay Claimant’s attorney fees totaling $5,408.25.
DATED at Montpelier, Vermont this 25th day of January 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.

Sarah Mariani v. Kindred Nursing Home (January 18, 2012)

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

Sarah Mariani v. Kindred Nursing Home (January 18, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Sarah Mariani Opinion No. 34A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kindred Nursing Home
For: Anne M. Noonan
Commissioner
State File No. X-51262
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES AND COSTS
This claim initially came before the Commissioner by way of Defendant’s Motion to Determine Future Credit. In that motion, Defendant sought an order determining the amount of the workers’ compensation “holiday” to which it was entitled on account of Claimant’s third-party settlement, in accordance with 21 V.S.A. §§624(e) and (f). Essentially, Defendant advocated that the Commissioner establish its future credit as a fixed sum, with no further diminution for any increased share of Claimant’s third-party recovery expenses if and when the credit was spent down.
To the extent that the fixed-sum order Defendant sought made no provision for paying its future share of her third-party recovery expenses, Claimant argued against it. Instead, Claimant asserted that every time Defendant tapped into the credit – by not having to pay a workers’ compensation benefit that it otherwise would have owed – it would have to pay an additional share of the recovery expenses. This view generally comported with legal precedent both in Vermont and in other jurisdictions as well. Barney v. Paper Corporation of America, 1988 WL221243 (D.Vt.); Griggs v. New Generation Communication, Opinion No. 29-02WC (July 10, 2002); Franges v. General Motors Corp., 274 N.W.2d 392 (Mich. 1979).
The Commissioner’s ruling (a) acknowledged the amount of the credit as it currently stands, but (b) established the rate at which Defendant will have to reimburse Claimant for its additional share of her third-party recovery expenses as the credit is spent down. By doing so, in essence the Commissioner rejected Defendant’s approach to the problem and accepted Claimant’s analysis instead.
Having substantially prevailed in the proceedings before the Commissioner, Claimant now seeks an award of costs and attorney fees pursuant to 21 V.S.A. §678(a). Defendant objects on two grounds, discussed below.
2
Defendant first argues that because the issue raised by its motion was decided on the basis of the parties’ legal briefs rather than following an evidentiary hearing, Claimant’s fee request is governed by Workers’ Compensation Rule 13.1300. That rule, which establishes the requirements for awarding fees “in a proceeding not requiring a formal hearing,” typically is applied to review fee requests in disputes that are concluded at the informal dispute resolution level. See, e.g., Zahirovic v. Super Thin Saws, Inc., Opinion No. 38-11WC (November 17, 2011). The rule’s requirements, which are fairly stringent, reflect the Department’s long-standing policy against awarding fees at that level except under extraordinary circumstances.
Admittedly here there was no “formal hearing” – no witnesses were sworn, no testimony was taken, no live evidence was introduced. Instead, the parties stipulated to the relevant facts and submitted the dispute for formal resolution by the commissioner on the basis of their legal arguments alone. It was, therefore, a “formal hearing resolution procedure” governed not by the specific requirements of Rule 10.1300 but by the more general mandate of §678(a). Defense counsel’s argument to the contrary is wholly without merit.
Defendant next asserts that Claimant’s request for an award of costs and fees should be denied because she did not in fact prevail. I disagree. The dispute that Defendant itself brought forward was grounded in its insistence that it had no future obligation to pay any additional third-party recovery expenses, and Claimant’s insistence that it did. By her ruling, the Commissioner adopted Claimant’s reasoning and rejected Defendant’s. Claimant thus prevailed and is entitled to an award of costs and fees.
Claimant has requested an award of costs totaling $155.53 and attorney fees totaling $4,547.00. These amounts include not only the costs and fees incurred in opposing Defendant’s original motion, but also those related to responding to Defendant’s opposition to the instant motion for costs and fees. I find that the costs and fees that Claimant incurred up to and including her initial response to Defendant’s opposition are reasonable and appropriate, and therefore these are allowed.
Claimant’s sur-reply to Defendant’s opposition stands on a different footing, however. This filing amounted to a reiteration of the same arguments she already had presented in her two previous memoranda. I find that the costs (totaling $58.90) and attorney fees (totaling $539.00) related to this filing were unnecessarily incurred and therefore are disallowed.
3
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay Claimant’s litigation costs, totaling $96.63, and attorney fees, totaling $4,008.00.
DATED at Montpelier, Vermont this 18th day of January 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.

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