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Karen Hathaway v. C & S Wholesale Grocers Inc (March 13, 2012)

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Karen Hathaway v. C & S Wholesale Grocers Inc (March 13, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Karen Hathaway Opinion No. 39A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
C & S Wholesale Grocers, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-58166
RULING ON CLAIMANT’S MOTION FOR AWARD OF INTEREST, PENALTIES AND ATTORNEY FEES
The Commissioner previously decided this claim in Claimant’s favor on November 17, 2011. As Claimant had prevailed, the Order included an award of attorney fees. Claimant had requested $13,168.00; from this amount the Commissioner deducted $500.00. Defendant was granted two weeks within which to decide whether to challenge the reasonableness of the remaining fees, totaling $12,668.00.
Defendant did not move to challenge the remaining fees within the two-week period. Therefore, I consider the award of $12,668.00 in attorney fees to have become final on December 1, 2011. To date, Defendant has failed to remit payment of that amount to Claimant.
Claimant now seeks an award of interest, penalties and attorney fees as a consequence of Defendant’s failure to pay.
Citing to 21 V.S.A. §650(e), Claimant requests that Defendant be assessed a ten percent penalty for failing to pay attorney fees as ordered. By its plain language, that section applies only to “weekly compensation benefits or weekly accrued benefits” that are not paid in a timely manner. It does not apply to unpaid attorney fees. There is no basis in the statute, therefore, for the penalty Claimant seeks.
As for Claimant’s claim for interest and for the attorney fees incurred in pursuing the current motion, the Commissioner lacks jurisdiction to make such an award given the circumstances presented here. Rather, under 21 V.S.A. §675(a) Claimant’s remedy lies “in any court of law having jurisdiction of the amount involved.”
For the foregoing reasons, Claimant’s Motion for award of interest, penalties and attorney fees is hereby DENIED.
DATED at Montpelier, Vermont this 13th day of March, 2012.
__________________
Anne M. Noonan
Commissioner

M. D. v. F. R. Lafayette (May 21, 2008)

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M. D. v. F. R. Lafayette (May 21, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. D. Opinion No. 21-08WC
By: Phyllis Phillips, Esq.
v. Contract Hearing Officer
For: Patricia Moulton Powden
F. R. Lafayette, Inc. Commissioner
State File No. Y-04643
OPINION AND ORDER
Hearing held in Montpelier on February 28th and March 13th, 2008.
APPEARANCES:
Frank Talbott, Esq. for Claimant
James O’Sullivan, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant’s June 29, 2007 injury arose out of and in the course of his employment, and if so, to what workers’ compensation benefits is he entitled.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Joint Exhibit II: Nextel Phone Log
Joint Exhibit III: Daily Time Sheet
Joint Exhibit IV: Mike Wagner Statement
Joint Exhibit V: Doug Ford Memo
Claimant’s Exhibits:
Claimant’s Exhibit 2: Mapquest Map
Defendant’s Exhibits:
Defendant’s Exhibit A: Dr. Glassman Report, February 25, 2008
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CLAIM:
Temporary total disability benefits under 21 V.S.A. §642
Medical benefits under 21 V.S.A. §640(a)
Additional workers’ compensation benefits as proven
Attorney’s fees, costs and interest under 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings Claimant was an employee of Defendant and Defendant was an employer as those terms are defined by Vermont’s Workers’ Compensation Act.
2. Claimant has worked as a laborer for Defendant off and on for six years, his most recent stint beginning in 2006. Defendant is in the business of installing roadside guardrails, fencing, curbing and highway signage.
3. In June 2007 Claimant became the working foreman of a small work crew. In accordance with Defendant’s company policy, as foreman Claimant was assigned a company pickup truck to be used to carry tools, equipment and other crew members to and from the various job sites. Defendant performs roadwork throughout the state, and it often has its work crews assemble directly at a work site rather than report in to its Essex Junction home office, or “yard” first. Thus, it is not uncommon for a foreman to come to the yard at the end of one day, load up the pickup truck with materials for the following day’s job, then travel directly to the job site on the next day, picking up his crew members along the way.
4. The truck Claimant was assigned was a Ford F-150 crew cab pickup. As was the case with all of the foremen’s trucks, Claimant understood that it was a company vehicle and was not to be used for personal business. The truck was owned, serviced and maintained by Defendant.
5. Claimant testified that at some point after being assigned the pickup truck he began to smell exhaust fumes. He testified that Defendant’s mechanic had diagnosed a cracked manifold and had ordered a new one. In the meantime, Claimant continued to drive the vehicle.
6. On the morning of Friday, June 27, 2007 Claimant drove the pickup truck from his home in Highgate to the yard, where he loaded it with material for a job. Tony Daniels, a member of Claimant’s crew, then drove the truck to a job site to deliver the materials. Both men were back at the yard by 2:30 PM. Mr. Daniels left for the weekend at that point.
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7. At 2:30 PM Claimant began loading his pickup with materials for a small job he had been assigned in Richford by Doug Ford, Defendant’s president and co-owner. Claimant testified that he intended to go by himself to Richford that afternoon, work until dusk, and then return to finish the job on Saturday, when another employee, Mike Wagner, would be available to assist him. Mr. Ford contradicted this testimony, however. According to him, there would be no reason for Claimant to go to the Richford work site by himself on Friday evening, as it was a two-person job that would only take two hours to complete. Mr. Ford testified that it would have been “foolish” for him to pay for Claimant to drive to and from the Richford site on Friday evening, and then pay him again to return there on Saturday morning with Mr. Wagner. Rather, Mr. Ford intended for Claimant to load his truck with the Richford materials on Friday evening, drive home with them to Highgate and then travel directly to the job site on Saturday so that he and Mr. Wagner could take care of the job together.
8. In either event, on Friday afternoon Claimant and Mr. Wagner set about loading his pickup with the necessary materials for the Richford job. Claimant testified that after they had done so, he heard that Defendant’s mechanic needed the truck as he was planning to replace its cracked manifold on Saturday. Claimant and Mr. Wagner unloaded the Richford materials and reloaded them onto another, smaller company truck, a Silverado. Having done so, however, Defendant’s mechanic approached Claimant and advised that he would not be working on Claimant’s truck on Saturday after all. Claimant needed his truck for a job he was starting in Morrisville on Monday, one to which he would be driving directly from home and picking up crew along the way and therefore one for which the smaller Silverado would not do. Claimant had no choice, therefore, but to unload the Silverado and reload the Richford materials back onto his pickup.
9. Claimant testified that he turned in his time card for the week at around 3:30 PM, after he and Mr. Wagner had unloaded the Richford materials from his pickup truck and loaded them into the Silverado, but before he decided to reload them back onto his pickup. According to Claimant, it was sometime after 3:30 PM, therefore, when he finally finished working for the day.
10. Mr. Wagner testified that while he and Claimant were loading, unloading and then reloading Claimant’s pickup, Claimant received numerous cell phone calls. Claimant’s cell phone records document that he received a number of brief telephone calls, many from the same number, between 2:59 PM and 5:05 PM. Mr. Wagner testified that during some of these calls Claimant was yelling at whomever he was talking to and kept hanging up on the caller. To Mr. Wagner’s eye Claimant appeared to be arguing. Claimant had a more benign explanation, however. The caller was his civil union partner, Danny Wilson. Mr. Wilson was trying to keep Claimant abreast of arrangements he was making to pick up his aunt’s car in Burlington, but the cell phone signal was poor and the calls kept getting cut off.
11. Mr. Wagner testified that he and Claimant had finished loading, unloading and reloading Claimant’s pickup truck by about 3:30 PM. After that, Mr. Wagner recalled that Claimant left the yard and returned two or three times, the last time at about 4:45 PM.
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12. Claimant testified that he left the yard and returned once after he and Mr. Wagner finished reloading his pickup. After leaving initially, his partner Danny called to say he had run out of gas. Claimant returned to the yard to get a gas can. When Danny called back to advise he had found a jug for gas himself, Claimant left the yard again.
13. Claimant testified that after leaving the yard he proceeded to Route 7, where he traveled north towards Chimney Corners in Milton, a distance of about ten miles. By the time he reached Chimney Corners, he was feeling dizzy and nauseous. He pulled into a parking lot and vomited. Feeling somewhat better, he got back into his truck and proceeded onto Interstate 89, heading north towards Exit 20. This would have been the appropriate exit either to Richford, where Claimant testified he intended to work for a couple of hours in preparation for Saturday’s job, or to Highgate, where he lived.
14. Approximately three or four miles after entering the interstate from the Milton on-ramp, as he approached the bridge over the Lamoille River, Claimant drove his truck off the road, down a 100-foot embankment and into the river. Passing drivers immediately stopped and called for emergency assistance. By the time bystanders made their way down the embankment Claimant had extricated himself from the truck and was in the water.
15. Claimant testified that he has no recollection whatsoever of driving off the bridge. The last thing he recalls is driving on the interstate and approaching the knoll preceding the bridge, and then waking up in the water.
16. Claimant was transported by ambulance to Fletcher Allen Health Care, where he remained hospitalized for five days, until July 4, 2007. He sustained multiple left-sided rib fractures and a ligamentous cervical spine injury. As a result of these injuries Claimant was totally disabled from working at least until December 26, 2007. Claimant underwent a functional capacities evaluation on that date and was found to be capable of full-time work in the light to medium classification. This determination would not have allowed Claimant to return to work in his pre-injury job for Defendant, as that job is classified as involving heavy work.
17. As for current medical treatment, Claimant testified that he continues to attend physical therapy. He has been advised by his treating physician that he can return to work so long as he complies with the light- to medium-work restrictions recommended in the December 26, 2007 functional capacities evaluation. Claimant testified that he has been conducting a good faith search for suitable work since December 2007. He has submitted more than twenty job applications but has yet to be hired.
18. In August 2007 Danny Wilson began working at the McAllister goat farm in Highgate. Claimant admitted that he often accompanies Mr. Wilson to the farm, and either sits or walks around for exercise. More recently, Claimant has been assisting Mr. Wilson with feeding the baby goats. Claimant denied receiving any payment for helping Mr. Wilson with this chore and Defendant did not submit any evidence to establish that he did.
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19. The circumstances surrounding Claimant’s plunge off the interstate and into the Lamoille River remain unclear, and the parties each have posited a different explanation. Claimant’s theory is that he suffered carbon monoxide poisoning as a result of the truck’s cracked manifold and passed out from breathing exhaust fumes. This theory is undermined somewhat by the following facts:
• Both Claimant and Tony Daniels had driven Claimant’s pickup truck for as much as an hour and a half earlier in the day with no ill effects;
• Carbon monoxide poisoning was never diagnosed during Claimant’s hospitalization, nor did Claimant receive any treatment for it during his hospital course; and
• According to Defendant’s medical expert, Dr. Glassman, blood tests taken little more than an hour after Claimant’s accident showed his carboxyhemoglobin level to be within normal limits and well below the level required in order for carbon monoxide poisoning to be diagnosed.
20. Of note, Dr. Glassman’s report does not address how quickly a person might be overcome by carbon monoxide poisoning after being exposed to exhaust fumes and how long it might take for the level of carboxyhemoglobin in the blood to return to acceptable limits thereafter.
21. Defendant’s theory as to the cause of Claimant’s accident looks to emotional rather than physical factors. Defendant believes that Claimant was attempting suicide when he drove off the interstate bridge.
22. Defendant’s theory finds its primary support in two entries from Claimant’s hospitalization records. First is a note from a hospital resident, E. Blackburn, dated July 4, 2007, Claimant’s discharge date:
“Spoke with patient. He feels that he is safe to go home this pm. Ride is arranged. He denies any suicidal thought or intent to hurt himself or others. I have discussed this with social worker on call and charge nurse on floor. We will proceed with [discharge] home.”
23. Immediately following this note is an entry from another clinician, labeled “psychiatric consult contact note,” dated July 5, 2007:
“Called earlier (last eve) to eval patient for statements of a passive death wish nature. ‘I wish they didn’t rescue me from the water,’ and patient admitted to driving car off bridge with unclear circumstances. Told on-call resident Blackburn that psychiatric eval would not be done quickly given extremely busy psychiatric service and to delay discharge. Patient did not receive psychiatric eval and psychiatric resident not informed of patient’s discharge.”
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24. Defendant cites to a third record, a physical therapy database note stating that Claimant “lived with partner – now recently separated,” as providing the presumed basis for Claimant’s despondency – a breakup with Danny Wilson, his civil union partner. In that same context, Defendant points to Mr. Wagner’s observations of Claimant in the hour before he left the yard on the day of his accident, during which he witnessed Claimant yelling into the phone and repeatedly hanging up on Mr. Wilson. Defendant contends that the most reasonable inference from all of these facts is that Claimant became depressed and suicidal after fighting with Mr. Wilson and intentionally drove himself off the interstate bridge.
25. Claimant denied both that he was depressed or suicidal at the time of the accident and that he and Mr. Wilson had fought or were in the process of separating. He testified that his “I wish they didn’t rescue me from the water” comment was prompted by financial concerns. Claimant testified that a nurse had told him he would be laid up for six to twelve months. Pam Lafayette, one of Defendant’s principals, already had advised him that his accident would not be covered by workers’ compensation, and he did not understand that his group health insurance coverage would continue. Mr. Wilson was unemployed at the time, and Claimant was the sole source of income for the household. Claimant testified that he despaired at the prospect of a lengthy hospitalization with no insurance to cover his medical expenses and no income with which to pay the bills and support his family. He believed he was facing “financial ruin.”
26. As for the physical therapy database reference to Claimant having recently separated from his partner, both Claimant and Mr. Wilson testified credibly that this was not the case, that they had not fought on the day of the accident and that neither was contemplating separation. Other hospital records corroborate this testimony, stating that Claimant lives “with his partner, Danny.” Notably, as of the date of the formal hearing, nearly a year later Claimant and Mr. Wilson remain together.
CONCLUSIONS OF LAW:
1. Defendant alleges two barriers to compensability in this claim. First, Defendant argues that Claimant’s injury did not occur in the course of his employment, either because it occurred during his regular commute home or because it included a personal deviation. Alternatively, Defendant argues that Claimant’s accident resulted from his deliberate attempt to injure himself and therefore his claim is barred by 21 V.S.A. §649. Both of these arguments fail, the first one because it is not supported legally, the second because it is not supported factually.
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2. As a general rule, an employee is not entitled to workers’ compensation benefits if he or she is injured off the employer’s premises while “coming and going” to work. Brown v. S.D. Ireland Concrete Construction Corp., Opinion No. 02-04WC (January 21, 2004), citing 1 Larson’s Workers’ Compensation Law §13.01. There is an exception to this rule, however, if the employee performs some service for the employer while en route to or from work, thus providing a “dual purpose” for the journey. 1 Larson’s Workers’ Compensation Law §16.09. One instance in which such a dual purpose can arise is where the employee transports materials for the employer, thus saving the employer from having to make a special trip to do so. If the service thus provided by the employee is significant enough to benefit the employer, by facilitating the progress of the employer’s work, then an injury suffered during the commute is compensable. Id. at §16.09[4][b]. If the practice is a repeated and regular one, such that the employer comes to rely on it routinely, the rationale for applying the exception is even further bolstered. Id. at §16.09[4][d].
3. There is no dispute here that Claimant was transporting materials for the Richford job at the time of his accident, that he was doing so at Defendant’s direction and in accordance with its routine expectations and that Defendant directly benefited as a result. This is true whether Claimant was on his way directly to Richford to begin the job Friday evening, as he testified, or whether he was to go to Richford directly from his home in Highgate on Saturday morning, as Mr. Ford testified. In either event, Claimant furthered Defendant’s business purpose by carrying the Richford materials with him on Friday evening. Had he not done so, Defendant would have had to make less efficient arrangements to get the materials to the job site, either by having another employee deliver them or by having Claimant make a special trip to Essex Junction to get them on Saturday morning. Defendant would be hard pressed to deny the benefit that inured to it by having Claimant transport the Richford materials directly from home to the job site. The dual purpose nature of Claimant’s trip is thus clearly established. See Brailsford v. Time Capsules, Opinion No. 12-00WC (May 17, 2000) (citing the exception with approval but finding insufficient facts upon which to apply it).
4. Nor does it matter that Claimant may have not have started his commute home immediately after finishing work on Friday afternoon, but rather might have been delayed by personal phone calls or deviated to retrieve the gas can for his partner first. By the time the accident occurred, any personal deviation had ended and he had returned to the dual purpose nature of his commute. Id. at §14.07[4] and cases cited therein. The injuries he suffered as a result of that dual purpose trip occurred in the course of his employment.
5. As for Defendant’s argument that Claimant’s claim is barred under 21 V.S.A. §649 because he deliberately acted to injure himself, I find this defense factually unconvincing. It would be sheer conjecture to infer that Claimant was despondent and suicidal over a break-up with his partner on the basis of the meager evidence presented. Defendant had the burden of proof on this issue, and it failed to sustain it.
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6. Having established the compensability of Claimant’s injuries, it remains to determine the benefits to which he is entitled. The medical evidence as to Claimant’s disability from working until at least December 26, 2007 was uncontradicted. Defendant has produced no evidence of end medical result and no evidence to contradict Claimant’s assertion that he has been conducting a good faith search for suitable work since being released to do so by his doctor. Under 21 V.S.A. §642 Claimant is entitled to temporary total disability benefits from June 30, 2007 forward.
7. Claimant has submitted evidence of costs totaling $153.60 and attorney’s fees totaling $7,901.50. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find that they are appropriate here and therefore these are awarded as well.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary total disability benefits from June 30, 2007 forward, such benefits to continue until Defendant produces sufficient evidence to justify their discontinuance or until Claimant returns to work;
2. Interest on the above in accordance with 21 V.S.A. §664;
3. Medical benefits in accordance with 21 V.S.A. §640(a) covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s June 29, 2007 injury;
4. Permanent partial disability benefits as proven in accordance with 21 V.S.A. §648;
5. Vocational rehabilitation benefits as proven in accordance with 21 V.S.A. §641; and
6. Costs of $153.60 and attorney’s fees of $7,901.50.
DATED at Montpelier, Vermont this 21st day of May 2008.
_____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670,672.

M. M. v. Comet confectionery (December 4, 2007)

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M. M. v. Comet confectionery (December 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. M. Opinion No. 32-07WC
v. By: Phyllis Phillips, Esq.,
Contract Hearing Officer
Comet Confectionery
For: Patricia Moulton Powden
Commissioner
State File No. K-09632
OPINION AND ORDER
Claim submitted on briefs without evidentiary hearing.
APPEARANCES:
William Skiff, Esq. for Claimant
J. Justin Sluka, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant is entitled to indemnity benefits beginning on March 18, 2007 as a consequence of her compensable knee injury and if so, at what compensation rate.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
CLAIM:
Temporary total disability benefits under 21 V.S.A. §642
Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. Judicial notice is taken of all forms in the Department’s file in this matter.
2. Claimant was at all relevant times an employee as defined under Vermont’s Workers’ Compensation Act.
3. Defendant was at all relevant times an employer as defined under Vermont’s Workers’ Compensation Act.
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4. On November 8, 1996 Claimant suffered a work-related injury to her right knee when she tripped and fell down some stairs. Claimant also dislocated her left shoulder in the fall.
5. At the time of this injury Defendant’s workers’ compensation insurance carrier was USF&G. USF&G accepted Claimant’s injury as compensable and paid benefits accordingly.
6. At the time of this injury Claimant’s average weekly wage was $673.30, resulting in a compensation rate of $448.87. Claimant’s weekly net income at the time of this injury was $519.80.
7. As a result of this injury Claimant was temporarily totally disabled from November 9, 1996 through April 11, 1997. She returned to work part-time on April 14, 1997 and full-time on June 7, 1997. USF&G paid the appropriate temporary total and temporary partial disability benefits during these periods. In addition, upon Claimant’s return to work full-time USF&G paid permanent partial disability benefits to reflect a 4% whole person impairment referable to Claimant’s right knee and left upper extremity injuries.
8. Claimant treated with Bruce Foerster, M.D., an orthopedic surgeon, for her right knee injury. In July 1998 she underwent arthroscopic surgery. Following this surgery she was unable to work until November 1998. USF&G accepted the surgery as related to Claimant’s November 8, 1996 injury and paid temporary total disability benefits accordingly. At the conclusion of Claimant’s disability period she returned to work for Defendant.
9. In October 2001 Claimant underwent a second right knee surgery. Following this surgery she was unable to work until February 2002. Again, USF&G accepted the surgery as related to Claimant’s original injury and paid workers’ compensation benefits accordingly. Again, at the conclusion of Claimant’s disability period she returned to work for Defendant.
10. The record does not reflect the average weekly wage calculations USF&G used to determine Claimant’s compensation rate for the temporary total disability benefits it paid after either the July 1998 or October 2001 knee surgeries.
11. On August 25, 2004 Claimant suffered a new injury to her left shoulder causally related to her work for Defendant.1 This injury was not related in any way to the injury Claimant had suffered in November 1996. USF&G was no longer on the risk at the time of this new injury. Instead, Gallagher Bassett Services, Inc. was the third-party administrator responsible for adjusting Claimant’s claim for workers’ compensation benefits associated with it.
1 Claimant’s employer at this time was Barry Callebaut, U.S.A., the new owner of Comet Confectionery.
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12. Claimant treated with Robert Beattie, M.D., an orthopedic surgeon, for her left shoulder injury. She underwent three surgeries as treatment for this injury – the first on April 8, 2005, the second on November 8, 2005 and the last on September 18, 2006. Gallagher Bassett accepted all of these surgeries as causally related and paid benefits accordingly.
13. Defendant’s time sheets reflect that after Claimant’s first shoulder surgery she did not work at all from April 8, 2005 until June 14, 2005. Thereafter she worked part-time from June 15, 2005 until mid-August 2005, when she returned to work full-time. Claimant stopped working again on November 8, 2005 when she underwent her second shoulder surgery. She has not returned to work since that time.
14. Following Claimant’s first shoulder surgery in April 2005, Gallagher Bassett paid temporary total disability benefits based upon an average weekly wage of $717.78 and weekly compensation rate of $478.52. Although the record does not specifically reflect it, presumably Gallagher Bassett began paying temporary total disability benefits again following Claimant’s second shoulder surgery in November 2005. These benefits were terminated on the basis of end medical result on March 15, 2007. With cost of living adjustments, Claimant’s compensation rate at that time was $509.12.
15. On March 10, 2006 Defendant terminated Claimant’s employment on the grounds that she had exhausted all available leave time and still was unable to return to work.
16. On April 13, 2006 Dr. Beattie performed a follow-up examination of Claimant’s left shoulder. As to Claimant’s employment status, Dr. Beattie reported as follows:
[Claimant] notes that her job was terminated at Barry Callebaut. She does have a nurse case manager, Nancy Cousino, with her. She has been encouraged to pursue a job search.
Dr. Beattie noted that Claimant continued to report symptoms in her elbow, arm, shoulder and neck, which appeared to worsen with increased physical therapy. In light of these persistent symptoms, he referred Claimant for an MRI of her cervical spine. Notably, he did not release Claimant to return to work, either full- or modified-duty.
17. Dr. Beattie next examined Claimant’s left shoulder in May 2006. Claimant reported that she had discontinued physical therapy and felt much better. With that improvement in mind, Dr. Beattie advised that Claimant could return to work with restrictions pertaining to her shoulder and upper extremities.
18. Apparently Claimant’s left shoulder pain did not continue to improve, but rather worsened to the point where she required yet another surgery, in September 2006, performed by John Macy, M.D.
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19. The record does not reflect the extent to which Claimant sought work within Dr. Beattie’s May 2006 restrictions between the time when he released her to do so and her September 2006 surgery. It appears that her temporary disability benefits continued unabated during this period, however. Presumably Gallagher Bassett determined that the combination of her work search efforts, if any and her medical condition merited that these benefits not be stopped.
20. Claimant’s right knee symptoms never fully abated following her 2001 surgery, but instead gradually worsened. In April 2006 she resumed treatment with Dr. Foerster, complaining of progressively increasing pain, swelling and episodes of catching and locking. Dr. Foerster recommended a partial knee replacement, but noted, “We will obviously have to time this appropriately based on the fact that she still has significant problems with the left shoulder.” For that reason, knee surgery was not immediately scheduled but rather was postponed.
21. Claimant was determined to be at end medical result for her left shoulder injury on March 7, 2007 and she was released to return to work without restrictions as of that date. Her temporary total disability benefits were terminated on March 17, 2007.
22. On March 29, 2007 Claimant met with Dr. Beattie to discuss the right knee replacement surgery that had been on hold since April 2006. Dr. Beattie completed an “Employee/Employer Medical Status Form” on that date in which he took Claimant “off work” pending the surgery.
23. Claimant underwent right knee replacement surgery on May 14, 2007. USF&G accepted responsibility for the medical expenses associated with this surgery but denied Claimant’s claim for temporary disability benefits during her recovery period on the grounds that Claimant had “no wages in the twelve weeks preceding the disability.”
CONCLUSIONS OF LAW:
1. The sole issue to be decided in this claim is whether Claimant is disqualified from receiving temporary disability benefits related to her May 2007 knee surgery because she did not earn any wages in the twelve preceding weeks. Defendant argues that temporary disability benefits are intended to replace wages a claimant otherwise would have earned but for his or her injury-related disability, and if there are no wages being earned then there is nothing to be replaced. Claimant argues that the temporary disability benefits she was receiving on account of her shoulder injury in the twelve weeks prior to her knee surgery were themselves “wage replacement” benefits and therefore should be counted as “wages.”
2. An injured worker is entitled to temporary total disability benefits “where the injury causes total disability for work.” 21 V.S.A. §642. These benefits are payable “during such disability,” id., and cease “after such disability ends.” 21 V.S.A. §643.
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3. With this statutory language in mind, it is important to determine what exactly is being disputed in this claim and what is not. Defendant does not dispute that Claimant suffered a compensable injury to her right knee in 1996, that the May 2007 surgery was causally related to and necessitated by that injury, and that as a result of the surgery Claimant was totally disabled from working for a period of time thereafter. Defendant must be deemed to have conceded, therefore, that Claimant has met the threshold requirements of §642 and is entitled – theoretically, at least – to temporary total disability benefits.
4. What Defendant does dispute is the means by which such temporary total disability benefits are to be calculated and whether, once calculated, they amount to anything greater than zero.
5. Defendant correctly asserts that temporary total disability benefits are designed to be “wage replacement” benefits. Their purpose is to compensate for an injured worker’s current inability to work; they are calculated, therefore, with reference to his or her present earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962).
6. Under Vermont’s statutory scheme, for the purposes of calculating temporary disability benefits an injured worker’s present earning capacity is determined by reviewing his or her “average weekly earnings during the twelve weeks preceding” the injury. 21 V.S.A. §650(a). Thus, our workers’ compensation law assumes that the most accurate way to estimate a worker’s present earning capacity is to look back at his or her most recent past earnings.
7. In most cases, the period of an injured worker’s temporary total disability immediately follows his or her injury. Sometimes, however, the worker does not become disabled from working until some time after the initial injury. In addition, sometimes the worker’s inability to work does not move forward in one uninterrupted period, but rather occurs at separate intervals. As to these situations, the statute states as follows:
When temporary disability, either total or partial, does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, compensation shall be adjusted for each recurrence of disability to reflect any increases in wages or benefits prevailing at that time. For the purpose of computation, the adjustments shall be based upon the compensation received by a person in the same grade employed in the same class of employment and in the same district.
21 V.S.A. §650(c).
8. Thus, §650(c) mandates that a claimant’s compensation rate for a successive period of disability can never fall below the rate paid for his or her initial period of disability. It can be higher, but it can never be lower. V.S. v. Kenametal, Opinion No. 19-07WC (August 2, 2007), citing Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
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9. Section 650(c) clearly applies in this case. Claimant has suffered four distinct periods of disability causally related to her original 1996 injury – one immediately following the accident itself and one after each of the three surgeries she has undergone – July 1998, October 2001 and May 2007. According to §650(c), her compensation rate for each of these periods of disability “must be adjusted to reflect any increases in wages or benefits prevailing at that time.”
10. Defendant argues that the Department has carved out an exception to §650(c) and has declined to award temporary disability benefits in situations where the claimant has not worked at all prior to the most recent period of disability and therefore has no wages to replace. J.K. v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005); J.P. v. Pollution Solutions of Vermont, Opinion No. 23A-01WC (October 5, 2001); Plante v. Slalom Skiwear, Opinion No. 19-95WC (May 24, 1995). The cases Defendant cites in support of this position, however, are either inapposite or distinguishable from the current claim.
11. In J.P. v. Pollution Solutions of Vermont the claimant was denied temporary disability benefits not because he had no wages in the twelve weeks preceding his claimed periods of disability, but rather because there was insufficient medical evidence to support any disability from working during those times. In J.K. v. Joe Knoff Illuminating admittedly the claimant had no wages in the twelve weeks preceding his disability, but that was because he had sold his business and was receiving profits, not wages, instead. Last, in Plante v. Slalom Skiwear, the Commissioner specifically found that the claimant’s unemployment in the twelve weeks preceding her disability was “due to reasons other than her work-related injury.”
12. In each of the cases cited by Defendant, therefore, the claimants’ injuries could not be said to have caused their “total disability for work,” 21 V.S.A. §642, because they already had opted out of paid employment situations voluntarily, for their own personal reasons rather than because of any medically established disabling condition. Under these circumstances, to award them wage replacement benefits would have amounted to an undeserved windfall, one inconsistent with the statute’s intent. See generally, 5 Larson’s Workers’ Compensation Law §93.02 and cases cited therein.
13. In contrast, it is significant that in the current claim Claimant’s decision not to work in the twelve weeks preceding her May 2007 disability cannot be said to have been voluntary at all. Rather, it was medically necessary as a consequence of her work-related shoulder injury. It is reasonable to presume that were it not for that injury Claimant would have been working – to the same extent that she had in the past – up until March 29, 2007 when her treating physician disabled her on account of her right knee injury. SeeWood v. Fletcher Allen Health Care, Opinion No. 15R-98WC (May 5, 1998)(temporary disability benefits awarded where surgery for work-related injury was delayed on account of claimant’s pregnancy because it was reasonable to assume that claimant would have continued to work throughout her pregnancy if not for the work injury). Such a presumption is consistent both with the remedial character of Vermont’s Workers’ Compensation Act and with the liberal construction it is to be given in order to “‘achieve its manifest purpose.’” Wood, citing Morrisseau v. Legac, 123 Vt. 70, 77 (1962).
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14. I find, therefore, that it would be unfair to penalize Claimant for having earned no wages in the twelve weeks prior to her most recent period of disability where her failure to do so resulted from a disabling work-related medical condition rather than a voluntary decision on her part.2 I find that it is appropriate to determine Claimant’s average weekly wage with reference to §650(c).
15. The record establishes that Claimant’s average weekly wage for the twelve weeks prior to her initial injury and period of disability was $673.30. No evidence was introduced, however, as to Claimant’s average weekly wage for the twelve weeks preceding either the July 1998 or October 2001 disability periods. Nor is there any evidence as to “the compensation received by a person in the same grade employed in the same class of employment and in the same district” – the wages of a comparable employee, in other words – during the twelve weeks prior to the most recent period of disability, which I find began on March 29, 2007. See Cote v. Vermont Transit and St. Johnsbury Academy, Opinion No. 33-96 (June 19, 1996). In accordance with §650(c), the appropriate compensation rate should be based on whichever of the above periods yields the highest average weekly wage, subject to the applicable weekly net income cap imposed by the statute in effect at the time of Claimant’s original injury. Bollhardt v. Mace Security International, Inc., supra.
16. Claimant has submitted a request under 21 V.S.A. §678 and Workers’ Compensation Rule 10.0000 for costs totaling $52.66 and attorney’s fees totaling $2,871.00. I find that Claimant has substantially prevailed on her claim and that the costs and fees requested are reasonable.
2 Under the circumstances of this claim, I need not decide whether the same conclusion should apply to situations where the disabling medical condition is not work-related. Although a claimant’s lack of wages may be equally involuntary in such situations, other monetary safety nets may be available to protect against economic hardship in those cases. See Case of Louis, 676 N.E.2d 791 (Ma. 1997).
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary disability benefits causally related to Claimant’s right knee injury commencing on March 29, 2007 at a rate to be determined in accordance with Conclusion of Law #15 above; and
2. Costs in the amount of $52.66 and attorney’s fees totaling $2,871.00.
DATED at Montpelier, Vermont this 4th day of December 2007.
__________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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