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V. S. v. Kenametal, Inc. (August 2, 2007)

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V. S. v. Kenametal, Inc. (August 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. S. Opinion No. 19-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
Kennametal, Inc. For: Patricia Moulton Powden,
Commissioner
State File No. W-03690
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 11, 2007.
Record closed on May 14, 2007.
APPEARANCES:
Claimant, pro se
Corina Schaffner-Fegard, Esq. for Defendant
ISSUES:
1. What date of injury should be used to calculate Claimant’s average weekly wage?
2. What is the appropriate average weekly wage and compensation rate for each of Claimant’s periods of temporary disability?
3. Is Claimant entitled to further mileage reimbursement?
4. Are there any unpaid medical bills for which the Carrier is responsible?
EXHIBITS:
Joint Exhibits:
Joint Exhibit 1: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit 1: Reimbursement Form for 100 miles
Claimant’s Exhibit 2: Reimbursement Form for 120 miles
Claimant’s Exhibit 3: Reimbursement Form for 135 miles
Claimant’s Exhibit 4: 12/30/04 Dr. Kraus note
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Claimant’s Exhibit 5: 1/6/05 Dr. Kraus note
Defendant’s Exhibits:
Defendant’s Exhibit 1: 9/21/06 Letter from Adjuster Russo
Defendant’s Exhibit 2: 2004 ShopVue Absence Calendar
Defendant’s Exhibit 3: 2005 ShopVue Absence Calendar
Defendant’s Exhibit 4: 5/29/06 – 12/19/06 Off Duty Report
Defendant’s Exhibit 5: 1/2/06 – 5/25/06 ShopVue Absence Calendar
Defendant’s Exhibit 6: 4/3/07 Pay History from Adjuster Coco
Defendant’s Exhibit 7: 4/10/07 Payment Information from Adjuster Coco
Defendant’s Exhibit A: Form 25 for 7/25/05 – 10/17/04
Defendant’s Exhibit B: Form 25 for 10/8/04 – 12/17/04
Defendant’s Exhibit C: Form 25 for 11/7/04 – 1/23/05
Defendant’s Exhibit D: Form 25 for 4/17/05 – 7/17/05
Defendant’s Exhibit E: Form 25 for 4/23/06 – 7/9/06
Defendant’s Exhibit F: Form 25 for 8/13/06 – 10/29/06
FINDINGS OF FACT:
1. Claimant is an employee within the meaning of the Vermont Workers’ Compensation Act (the “Act”). Claimant has worked for Defendant since 1989.
2. Defendant is an employer within the meaning of the Act.
3. In June of 2004, Claimant experienced right arm pain while participating in a company 5S program, which involved cleaning, upgrading, and performing maintenance on her work area. Claimant contends she hit her shoulder while cleaning her machine. After this event, Claimant did not see any doctors and continued to work. There is no evidence of an accident report from the summer of 2004.
4. Claimant asserts that she experienced swelling, redness, and increased pain in her right arm in October of 2004. Claimant was out of work October 18-20 for her right arm pain. She visited Dr. Ajamie on October 20. He diagnosed her with tennis elbow and probable mild carpal tunnel syndrome and gave her a cortisone injection. Dr. Ajamie noted that Claimant’s condition did not arise out of her employment. He returned Claimant to work with no restrictions on October 21.
5. Claimant was out of work December 23, 2004 for a visit with Dr. Kraus. Dr. Kraus diagnosed Claimant with some shoulder impingement as well as the previously diagnosed tennis elbow. Dr. Kraus did not relate Claimant’s right arm problems to her employment. Dr. Kraus provided Claimant with an out of work note for the December 23 appointment.
6. An accident report for Claimant’s right shoulder and elbow pain was completed on December 27, 2004. The report stated that it had not been determined whether Claimant’s right arm pain was work related.
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7. Claimant went out of work for shoulder pain December 29-30, 2004. She saw Dr. Kraus on December 30. Dr. Kraus again put Claimant back to work but restricted her to light duty.
8. A January 4, 2005 x-ray of Claimant’s right shoulder revealed no abnormalities.
9. Dr. Kraus clarified her December 30, 2004 note on January 6, 2005 to state that the company should check with Claimant’s physical therapist, Ben McCormack, regarding Claimant’s specific work restrictions. The January note also excused Claimant from work for the December 29-30, 2004 absences.
10. Claimant saw Dr. Haas on January 6, 2005 for an independent evaluation requested by the company. Dr. Haas found several aspects of Claimant’s presentation to be inconsistent with a finding that Claimant’s shoulder pain was caused by her job, but he reserved his final report on causation until an analysis of Claimant’s workstation was performed.
11. On January 21, 2005, Defendant filed a Form 25 for Claimant’s December 23, 2004 right shoulder and elbow pain. The Form 25 cited December 23, 2004 as the only date on which Claimant missed work for right shoulder and elbow pain and December 27, 2004 as the first date on which Claimant reported her right arm pain to her supervisor.
12. An ergonomic job site evaluation was performed by physical therapist Ben McCormack on January 25, 2005. Mr. McCormack indicated that while Claimant’s job does not lend itself to elevated risk at the shoulders, he did note elevated risk at both elbows. Specifically, Mr. McCormack found elevated risk at the right elbow due to certain of Claimant’s job duties, including sustained poor grasping of a micrometer as well as forceful gripping of a T-handled wrench. Mr. McCormack concluded that Claimant’s tennis elbow was more likely than not related to her work.
13. Claimant saw Dr. Gagnon on January 25, 2005. Dr. Gagnon ordered an MRI, which was taken on February 3, 2005 and showed a right rotator cuff tear. On February 9, 2005 Dr. Gagnon indicated that Claimant needed surgery to repair the tear. Dr. Gagnon put Claimant out of work until after the surgery scheduled for March 2, 2005. However, on February 15, 2005 Dr. Gagnon indicated that he did not feel Claimant’s rotator cuff tear was related to her job activities.
14. Defendant filed a Form 2 on February 24, 2005. Defendant asserted that neither the right shoulder rotator cuff tear nor the right tennis elbow were causally related to Claimant’s work. Defendant cited Dr. Gagnon’s notes and the January 25, 2005 ergonomic study to support its denial.
15. Claimant testified that Dr. Gagnon would not perform the scheduled rotator cuff surgery because of the Form 2 denial filed by the Carrier and Claimant’s lack of insurance coverage. Thus, Claimant attempted to return to work March 3, 2005, but the company sent her home pending further evaluation.
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16. On March 9, 2005, after having reviewed Ben McCormack’s ergonomic evaluation, Dr. Haas supplemented his January 6, 2005 evaluation and concluded that Claimant’s shoulder problems were not caused by her employment but that her tennis elbow likely was.
17. A March 15, 2005 Sickness and Accident form filled out by Dr. Gagnon for Claimant restated his belief that the rotator cuff tear did not arise out of Claimant’s employment.
18. At Claimant’s request, Dr. Gagnon returned her to work March 28, 2005 with no restrictions.
19. On March 31, 2005 the company sent a letter to Dr. McArthur requesting that he evaluate Claimant’s fitness for duty.
20. On April 6, 2005, Dr. Howard performed an evaluation of Claimant and determined that her shoulder problems were related to both a previous work injury and the repetitive nature of her work. Dr. Howard returned Claimant to work April 7, 2005 with restrictions and a requirement that she be able to rest her right arm.
21. In response to the company’s March 31 letter, Dr. McArthur returned Claimant to work full duty on April 11, 2005.
22. Claimant was out of work from January 26, 2005 through April 11, 2005. Claimant returned to work April 12, 2005.
23. Claimant was out of work again from July 15, 2005 through August 1, 2005 (on which date she worked a half day). There are three doctor’s notes from St. Johnsbury Family Health Center between July 14 and 26, 2005. First, there is an undated note stating that Claimant was off work from July 14 through August 1 for her torn rotator cuff. Next, there is a July 15 note returning Claimant to work July 25. Finally, there is a note dated July 26 returning Claimant to work August 1. There is also an August 2 note from Cathleen Besch, RNCS, which put Claimant out of work until further notice.
24. On September 26, 2005, Dr. Gagnon indicated that, as a result of further examination of Claimant’s records, including review of Dr. Howard’s evaluation and a description of Claimant’s job, his medical opinion was that her shoulder injury more likely than not occurred as a result of her job duties.
25. A note from Dr. Ajamie dated October 20, 2005 returned Claimant to work October 24, and she worked from October 24 to October 28. Claimant was back out of work beginning October 31. Claimant saw Dr. Ajamie for her right shoulder on November 2. Dr. Ajamie returned Claimant to work December 1 if light duty work was available.
26. A November 4, 2005 letter to the parties from Workers’ Compensation Specialist Julie Heath indicates that Defendant’s attorney advised Defendant to voluntarily accept liability for the shoulder injury, including the recommended shoulder surgery and related indemnity. Specialist Heath also indicated that she found the elbow condition to be work-related so that the Defendant should pay all medicals related to the elbow.
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27. On November 16, 2005, Defendant filed a Form 25 for Claimant’s period of disability beginning January 26, 2005 related to her right rotator cuff tear.
28. Dr. Gagnon performed a rotator cuff tear repair surgery on November 21, 2005.
29. Dr. Gagnon returned Claimant to work with restrictions March 21, 2006, with full duty work appropriate by May 21, 2006. However, on May 8, 2006 Dr. Gagnon placed Claimant at medical end result and released her to full duty work with no restrictions.
30. On May 25, 2006, Defendant submitted two Form 25s for Claimant’s October 2004 period of disability related to her tennis elbow and her July 2005 period of disability related to her right rotator cuff tear. On May 26, 2006, Defendant submitted another Form 25 for Claimant’s period of disability beginning January 26, 2005 related to her right rotator cuff tear. On June 19, 2006, Defendant submitted a revised Form 25 for Claimant’s period of disability beginning January 26, 2005.
31. Claimant was out of work again July 10 to July 17, 2006 for her right elbow. A July 11 doctor’s note excused Claimant from work July 10 through July 18 and stated that she could return to work if she could avoid repetitive motion with her right arm for one month. Claimant returned to work July 18, 2006.
32. Claimant took a vacation day August 1, 2006 and returned to the doctor, requesting that she be released to full duty work without restrictions. An August 1 doctor’s note allowed Claimant to return to work with no restrictions.
33. On August 12, 2006, Defendant filed another Form 25 for Claimant’s July 2006 period of disability related to her right elbow condition.
34. On October 11, 2006, Defendant again filed Form 25s for Claimant’s October 2004 and July 2005 periods of disability.
35. Claimant saw Dr. Ajamie November 2, 2006. Dr. Ajamie placed Claimant out of work from November 2 to November 30. Dr. Ajamie’s note did not explain whether he was placing Claimant out of work for her right shoulder or her right elbow.
36. Claimant had excused absences from November 20 to November 22, 2006. A November 22 note from Dr. Howard allowed Claimant to return to work November 22 but stated that she must be able to rest her right arm.
37. Defendant filed a second Form 2 on November 28, 2006. Defendant denied Claimant’s shoulder injury because it had not received clarification or medical reports from Dr. Ajamie as to the nature and extent of Claimant’s shoulder injury. Defendant noted that Dr. Ajamie’s November 2 out of work note did not discuss the cause of Claimant’s injury or whether it was work related.
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38. On December 19, 2006, Dr. Ajamie clarified his November 2 note to explain that he had excused Claimant from work November 2 through November 28 for her right elbow. Dr. Ajamie returned Claimant to light duty work November 29.
39. Claimant was out December 4 because the company had no light duty work available.
40. Claimant was only out for two days in January of 2007. A January 10 note from Dr. Howard indicated that Claimant could return to work January 11 but must be able to rest her right arm.
41. A Functional Capacity Evaluation was performed on January 31, 2007. The therapist concluded that the Claimant’s physical capabilities were compatible with her job.
42. On February 9, 2007, Dr. Howard released Claimant back to work February 12 with no restrictions. He also indicated that Claimant had reached maximum medical improvement.
43. Claimant returned to full duty work after the FCE and has been working ever since.
44. On April 10, 2007, Defendant submitted a Form 25 for Claimant’s November 2006 period of disability related to her right elbow. On April 18, 2007, Defendant submitted revised Form 25s for Claimant’s July 2006 and November 2006 periods of disability.
45. From October 2003 through September 2004, Claimant’s hourly wage was $14.41; from October 2004 through September 2005, Claimant’s hourly wage was $14.81; from October 2005 through September 2006, Claimant’s hourly wage was $15.33; and beginning October 2006, Claimant’s hourly wage was $15.79.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to supporting the claim. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant must establish with sufficient credible evidence the character and extent of the injury, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). The Claimant must create in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of injury, and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
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Date of Injury
2. 21 V.S.A. § 656 (b) states that “[t]he date of injury [or] . . . injurious exposure shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.” Similarly, Workers’ Compensation Rule 3.0540 establishes that “[t]he date of injury, recurrence or aggravation shall be the point in time when the injury, recurrence or aggravation and its relationship to the employment is reasonably discoverable and apparent.” Further, in Hartman v. Ouellette, 146 Vt. 443, 447 (1985), the Vermont Supreme Court set forth that “the ‘date of injury’ for purposes of giving notice and filing a claim pursuant to 21 V.S.A. § 656 . . . is the point in time when an injury becomes reasonably discoverable and apparent.” Finally, in Longe v. Boise Cascade Corp., 171 Vt. 214, 219 (2000) (citing Hartman, 146 Vt. at 447), the Court reiterated that “for purposes of the notice and claim provisions of § 656, and for purposes of the . . . statute of limitations, the date of injury ‘is the point in time when an injury becomes reasonably discoverable and apparent.’”
3. However, the above rules are not controlling here, as the issue in this case has to do with determining the date of injury for purposes of calculating average weekly wage and temporary total disability and not for purposes of tolling the statute of limitations.
4. While there is no codified rule regarding determining the date of injury for purposes of calculating average weekly wage and temporary total disability, the Department has addressed the issue in its case law. In Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC, the Department stated that, in cases concerning computation of temporary total disability benefits, it “interprets the date of injury as the date on which the injury becomes disabling.” In Plante, the Department determined such date to be the date on which the Claimant had surgery. In Hepburn v. Concrete Professionals, Inc., Opinion No. 16-03WC, the Department reiterated its holding in Plante that “the twelve-week period [used to calculate average weekly wage] should [be] from the date of the injury or ‘the date upon which the injury became disabling.’”
5. Claimant argues that her date of injury was October 20, 2004. However, when Claimant visited Dr. Ajamie on October 20 he found no associated injury and explicitly noted that Claimant’s right arm pain did not arise out of her employment. Moreover, Claimant returned to work on October 21 and there is no evidence of a related accident report. Therefore, although Claimant was out of work from October 18 to October 20, 2004, her return to work October 21 and her failure to complete an accident report indicate that her right arm pain was not disabling at that time. Therefore, October 20, 2004 was not the date on which Claimant’s injury became disabling.
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6. The next possible date of injury is in December of 2004, which Defendant argues as an alternative to a January 26, 2005 date of injury. Claimant was out of work December 23, 2004 for a visit with Dr. Kraus, who did not relate Claimant’s right arm problems to her employment and returned her to work with no restrictions that same day. However, the following Monday, December 27, 2004, an accident report was completed. Claimant saw Dr. Kraus again December 30 and Dr. Kraus still did not link Claimant’s condition with her employment; however, Dr. Kraus did restrict Claimant to light duty work. The December 27, 2004 accident report and the fact that Claimant was restricted to light duty work after December 30, 2004 support a finding that her injury was disabling as of December 30, 2004. Even though Dr. Kraus did not relate Claimant’s right arm pain to her work as of December 30, 2004, and even though Claimant was able to return to work thereafter, the fact that Claimant was unable to perform certain of her work duties means that as of December 30, 2004 Claimant’s injury was disabling. Hence, December 30, 2004 shall be used as Claimant’s date of injury for purposes of calculating average weekly wage and temporary total disability.
7. However, because Claimant was not absent for more than three consecutive days, she was not eligible for temporary total disability compensation as of December 30, 2004. See 21 V.S.A. § 642 (“Where the injury causes total disability for work, during such disability, but not including the first three days, the day of the accident to be counted as the first day, unless the employee received full wages for that day, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the employee’s average weekly wages, but not more than the maximum nor less than the minimum weekly compensation”) (emphasis supplied).
8. Since Claimant’s date of injury for purposes of calculating her average weekly wage was December 30, 2004, the Department will not address Defendant’s argument that Claimant’s date of injury was January 26, 2005, except to note that the fact that Claimant was out of work after January 26, 2005 until April 11, 2005 would mandate a finding that by January 26, 2005 Claimant’s injury was disabling.
Average Weekly Wage
9. 21 V.S.A. § 650 (a) states that “[a]verage weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 12 weeks preceding an injury.” However, § 650 (b) says that “[i]f during the period of 12 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee’s average weekly wage.” Also, § 650 (c) states that “[w]hen temporary disability . . . 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.” Finally, § 650 (d) states that “[c]ompensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of the injury.”
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10. Workers’ Compensation Rule 15.2000 states that the compensation rate for temporary total disability is “2/3rds of [the claimant’s] average weekly wage.” Rule 15.4000 explains that in order “[t]o determine the claimant’s average weekly wage . . . the total gross wages, as reported by the employer on the Wage Statement (Form 25), is divided by the number of weeks used to determine the total gross wages.” Rule 15.4110 mandates the inclusion of overtime earnings in the Form 25. However, Rule 15.4200 excludes from consideration “any week(s) during which the claimant worked and/or was paid for fewer than one-half of his or her normally scheduled hours” and “any week(s) during which the claimant did not work at all, regardless of whether or not he or she was paid for this time off.” Finally, Rule 16.2000 states that “annually on or before July 1 the [C]ommissioner shall announce the annual change in compensation rate and new minimum and maximum rates for the coming fiscal year” and that “[a]ny claimant receiving temporary . . . disability compensation on July 1 shall be entitled to an increase in his or her compensation rate in accordance therewith, PROVIDED THAT in no event may a claimant’s compensation rate for temporary total disability exceed his or her average weekly wage or his or her weekly net income.”
11. Claimant has not presented evidence or made an argument regarding what average weekly wage and compensation rate she is entitled to for each of her periods of disability. Moreover, she has capitulated to Defendant’s Form 25s.
12. Defendant has not made an argument regarding what average weekly wage and compensation rate Claimant is entitled to for her period of disability beginning January 26, 2005 if December 30, 2004 is used as the date of injury. Defendant argues that Claimant’s average weekly wage and compensation rate for the period of disability beginning July 15, 2005 should be $608.92 and $405.95 respectively. Defendant calculates Claimant’s average weekly wage and compensation rate for the period of disability beginning July 10, 2006 to be $755.24 and $503.49 respectively. Finally, Defendant argues that for the period of disability beginning November 2, 2006 Claimant’s average weekly wage and compensation rate would be $692.26 and $461.51 respectively; however, since the $461.51 compensation rate is lower than the previous $503.49 compensation rate, Defendant admits that Claimant’s compensation rate for the November 2006 period of disability should be the same as for the July 2006 period of disability.
13. According to § 650 (c), “a compensation rate adjustment is to be made with separate periods of disability only when there is an increase in wages. . . . [N]o adjustment for a diminution in wages can be made.” Bollhardt v. Mace Security International, Opinion No. 51-04WC. Therefore, Defendant was correct when it adjusted Claimant’s average weekly wage and compensation rate based on her yearly October 1 raises. Similarly, Defendant was correct when it maintained Claimant’s July 2006 compensation rate for her November 2006 period of disability because the November 2006 compensation rate would have been lower than the July 2006 compensation rate.
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14. Moreover, according to § 650 (d) and Rule 16.2000, “July 1 adjustments apply to those ‘receiving temporary [disability] compensation’” on July 1 of the year in question. Bollhardt v. Mace Security International, Opinion No. 51-04WC (emphasis in original). Since none of Claimant’s periods of disability covered July 1 of 2005 or 2006, Claimant’s compensation is not subject to COLA adjustments.
15. Having reviewed the Form 25s submitted by the Defendant, the Department finds the following to be Claimant’s average weekly wages and compensation rates (as well as explanations therefor) for the periods of disability in question:
Period of Disability: 1/26/05 – 4/11/05
Hourly Rate: $14.81
Overtime Rate: $22.22
Week Ending
Hours Worked
Gross Wages
12/26/04
24
$355.44
12/19/04
40
$592.40
12/12/04
32
$473.92
12/5/04
40
$592.40
11/28/04
24
$355.44
11/21/04
30.5
$451.71
Week Ending
Hours Worked
Gross Wages
11/14/04
33.45
$495.39
11/7/04
40
$592.40
10/31/04
To Be Determined
To Be Determined
10/24/04
To Be Determined
To Be Determined
10/17/04
40
$592.40
10/10/04
40
$592.40
Average Weekly Wage: To Be Determined
Compensation Rate: To Be Determined
Defendant has not submitted a proper Form 25 or calculations of Claimant’s average weekly wage and compensation rate using a December 30, 2004 date of injury. Defendant’s Exhibit C is based on a January 26, 2005 date of injury and only goes back to November 7, 2004. Defendant’s Exhibit A is based on an October 20, 2004 date of injury and provides the hours worked and gross wages for the weeks ending October 17, 2004 and October 10, 2004. Defendant’s Exhibit B appears to be based on a December 23, 2004 date of injury but uses biweekly figures for Claimant’s hours worked and gross wages, so that the Department cannot glean Claimant’s hours worked and gross wages for the weeks ending October 31, 2004 and October 24, 2004. The parties need to agree on Claimant’s hours worked and gross wages for these weeks in order to properly calculate Claimant’s average weekly wage and compensation rate for her period of disability beginning January 26, 2005.
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Periods of Disability: 7/15/05 – 8/1/05; 8/2/05 – 10/24/05; 10/31/05 – 5/8/06
Hourly Rate: $14.81
Overtime Rate: $22.22
Week Ending
Hours Worked
Gross Wages
7/10/05
0 (8 holiday; 32 vacation)
N/A
7/3/05
37.7
$558.34
6/26/05
40
$592.40
6/19/05
41.2
$619.06
6/12/05
36
$533.16
6/5/05
16 (8 holiday; 16 vacation)
N/A
5/29/05
52
$859.04
5/22/05
40
$592.40
5/15/05
40
$592.40
5/8/05
40
$592.40
5/1/05
48
$770.16
4/24/05
40.1
$594.62
Average Weekly Wage: $630.40
Compensation Rate: $420.27
The Department has declined to adjust Claimant’s average weekly wage and compensation rate for her October 31, 2005 through May 9, 2006 period of disability based on her October 1, 2005 $.52 wage increase, as the time between the August 2, 2005 to October 24, 2005 and the October 31, 2005 through May 9, 2006 periods of disability was ephemeral.
Period of Disability: 7/10/06 – 7/17/06
Hourly Rate: $15.33
Overtime Rate: 23.00
Week Ending
Hours Worked
Gross Wages
7/9/06
40.3 + 8 holiday
$742.74
7/2/06
40
$613.20
6/25/06
16.73 (16 vacation)
N/A
6/18/06
24 + 16 vacation
$613.20
6/11/06
24.1 + 8 personal
$492.09
6/4/06
43.45 + 8 holiday
$815.19
5/28/06
26 + 8 personal + 8 vacation
$643.86
5/21/06
45.9 + 8 vacation
$871.54
5/14/06
40.4
$622.40
5/7/06
0 (40 workers’ comp)
N/A
4/30/06
0 (40 workers’ comp)
N/A
4/23/06
0 (40 workers’ comp)
N/A
Average Weekly Wage: $676.78
Compensation Rate: $451.18
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Period of Disability: 11/2/06 forward
Hourly Rate: $15.33 through 10/1/06; $15.79 after 10/1/06
Overtime Rate: $23.00 through 10/1/06; $23.69 after 10/1/06
Week Ending
Hours Worked
Gross Wages
10/29/06
37.98
$599.70
10/22/06
28 + 4 personal
$505.28
10/15/06
0 (40 sick)
N/A
10/8/06
1.27 (32 sick)
N/A
10/1/06
43.73
$698.99
9/24/06
35.77 + 8 vacation
$670.99
9/17/06
8 (32 vacation)
N/A
9/10/06
20 + 12 vacation + 8 holiday
$613.20
9/3/06
32 + 8 vacation
$613.20
8/27/06
20 + 20 vacation
$613.20
8/20/06
40
$613.20
8/13/06
24 + 16 vacation
$613.20
Average Weekly Wage: $615.66
Compensation Rate: $410.44
But since lower than last period of disability, compensation rate = $451.18
Mileage
16. Workers’ Compensation Rule 12.2100 indicates that an injured worker required to travel for treatment shall be paid “[m]ileage beyond the distance normally traveled to the workplace, at the current rate in effect for classified employees of the State of Vermont.”
17. As noted above, Claimant has the burden of establishing all facts essential to supporting her claim. Goodwin, 123 Vt. at 166.
18. In Dain v. AIHRS, Opinion No. 85-95WC, the claimant was denied mileage reimbursement for failure to provide a reasonable explanation for the amount of mileage claimed. Similarly, in Frederick v. Metromail Corporation, Opinion No. 25-97WC, the claimant was denied mileage reimbursement because she had not demonstrated that her travel was reasonable and necessary.
19. Claimant has introduced three mileage reimbursement forms and has indicated the dates on which the doctors in question were visited; however, her calculations are imprecise and abstruse. Therefore, Claimant has not met her burden with regard to further mileage reimbursement.
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Medical Bills
20. Claimant has also failed to prove that there are any unpaid medical bills. As Defendant noted, the Carrier testified that there are no pending medical bills. Moreover, Defendant explained that the 2004 MRI for which Claimant was seeking payment was paid on May 14, 2007.
ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s date of injury was December 30, 2005.
2. Claimant’s average weekly wage and compensation rate for the January 26, 2005 to April 11, 2005 period of disability is to be determined by the parties based on the above date of injury. Claimant’s average weekly wage and compensation rate for the July 15, 2005 through May 8, 2006 periods of disability are $630.40 and $420.27 respectively; Claimant’s average weekly wage and compensation rate for the July 10, 2006 to July 17, 2006 period of disability are $676.78 and $451.18 respectively; and Claimant’s compensation rate for her periods of disability from November 2, 2006 forward is $451.18.
3. The Carrier is ordered to adjust the claim in accordance with the above.
DATED at Montpelier, Vermont this 2nd day of August 2007.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Kathleen Fosher v. Fletcher Allen Health Care (May 5, 2011)

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

Kathleen Fosher v. Fletcher Allen Health Care (May 5, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Kathleen Fosher Opinion No. 11-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Fletcher Allen Health Care
For: Anne M. Noonan
Commissioner
State File No. W-02854
OPINION AND ORDER
Hearing held in Montpelier, Vermont on February 9, 2011
Record closed on February 28, 2011
APPEARANCES:
Michael Green, Esq., for Claimant
Stephen Ellis, Esq., for Defendant
ISSUE PRESENTED:
To what amounts, if any, is Claimant entitled as mileage reimbursement for her travel to and from medical appointments necessitated by her work injury?
EXHIBITS:
Claimant’s Exhibit 1: Kim Barcomb deposition, January 12, 2011
Claimant’s Exhibit 2: Claire Lynn Fosher deposition, January 12, 2011
Claimant’s Exhibit 3: Mileage calculation
Claimant’s Exhibit 4: Letter to Peggy Tucker, November 16, 2007
Defendant’s Exhibit A: Letter from Rebecca Smith, February 17, 2010
Defendant’s Exhibit B: First Report of Injury, September 29, 2004
Defendant’s Exhibit C: Email communication from Rebecca Smith, March 1, 2010
Defendant’s Exhibit D: Letter from Agnes Hughes, April 21, 2010
Defendant’s Exhibit E: Letter to Agnes Hughes with attached mileage log,
April 27, 2010
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Defendant’s Exhibit F: Medical record, January 19, 2004
Defendant’s Exhibit G: Mileage calculation from Champlain to Plattsburgh, NY
Defendant’s Exhibit H: Mileage calculation, claimed vs. allowed
Defendant’s Exhibit I: Temporary Total Disability Agreement (Form 21)
Defendant’s Exhibit J: Medical records, September 2004 and August 2005
Defendant’s Exhibit K: Letter from Michael Green, Esq., December 8, 2010
Defendant’s Exhibit L: Letter from Michael Green, Esq., October 7, 2010
Defendant’s Exhibit M: Mileage calculation, claimed vs. allowed
Defendant’s Exhibit N: Workers’ Compensation Rule 12.2000
Defendant’s Exhibit O: Kim Barcomb deposition, January 12, 2011
Defendant’s Exhibit P: Claire Lynn Fosher deposition, January 12, 2011
CLAIM:
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2000
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s files relating to this claim.
3. Claimant began working for Defendant in 1979. Her most recent job involved data entry for insurance billing purposes. In September 2004 she suffered a repetitive stress injury to her right wrist causally related to her computer work. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. When Claimant first began working for Defendant, she was still living at her family home on Leorey Court in Colchester, Vermont. Claimant lived there until 1996, when her father retired and her parents relocated to Champlain, New York. Claimant moved with them. Thereafter, she continued to work for Defendant in Burlington, even though the commute back and forth was difficult. Claimant worked odd hours and the drive was stressful at times.
5. Within a year after moving to Champlain, Claimant devised a strategy for easing her commute. During the week she would stay at the home of her sister, Kim Barcomb, in Milton, Vermont. On weekends she would return to her home in Champlain. This arrangement persisted until approximately 2002. It ended because Ms. Barcomb’s home was undergoing renovations and it became inconvenient for Claimant to stay there.
6. For the next year or so, Claimant stayed during the week with a co-employee, Dorothy Michelson, at her home on Prim Road in Colchester. She continued to commute back to her Champlain residence on the weekends.
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7. In 2003 Claimant learned from an acquaintance at her church, Sister Carmen Proulx, of two elderly women who took in boarders at their home, located on Don Mar Terrace in Colchester. With Sister Carmen’s introduction, Claimant began renting a room there. Claimant paid $350 per month as rent, typically in cash, pursuant to a verbal agreement. There was no written lease.
8. As had become her practice over the previous six years or so, with the Colchester room rental Claimant was able to reside locally during the work week and commute back and forth to Burlington from that location. On the weekends, she continued to reside with her parents in Champlain.
9. In October 2005 Claimant’s treating physician determined that she was disabled from working at her data entry job. At that point, because she no longer had need of a local room from which to commute to a job in Burlington, Claimant relinquished her Colchester rental and moved back full-time to her Champlain home. Claimant has lived in Champlain since.
10. Since her 2004 work injury, Claimant has treated with medical providers in both Burlington and Plattsburgh, New York. The distance between her Champlain residence and her Burlington medical appointments is 122 miles round trip. To her Plattsburgh appointments the distance is 40.2 miles round trip. At the time of her injury, Claimant’s work week commute from Colchester to Burlington was 16 miles round trip.
11. Claimant has at all times maintained her Champlain address as her permanent residence, even after she began staying in Vermont during her work week. She listed the Champlain address as her legal address on paychecks, bank and credit card statements, health insurance documents and tax returns. Claimant never received mail at any of her Vermont addresses.
12. Claimant’s sisters, Kim Barcomb and Claire Lynn Fosher, testified by deposition. Both corroborated Claimant’s testimony with respect to her local commute between Colchester and Burlington during the work week and her longer commute back to Champlain on the weekends. I find their testimony to be credible in all respects.
13. Defendant offered medical notes from two separate providers referencing Claimant’s commute. The first one, dated January 19, 2004 – some months before her work injury – states, “She lives with [her parents] part-time, she also lives in Vermont with an elderly pair of women.” The second one, dated September 29, 2004 – shortly after her work injury – states, “She tries to do more activities with her left arm including her long drive to work. It is noted that she does have an hour and a half commute from Champlain, New York by way of the ferry.” From this evidence, Defendant asserts that by the time her injury occurred Claimant was no longer staying in Colchester during her work week and instead was commuting full-time from her Champlain home. I find Claimant’s explanation more credible – that the second provider simply misunderstood Claimant’s description of her weekend commute to include her weekday commute as well.
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14. On April 27, 2010 Claimant produced a mileage log in which she detailed the mileage to and from her various medical appointments and calculated the amount she claimed was due, $2,410.36. On May 10, 2010 Defendant tendered a mileage reimbursement check to Claimant in the amount of $382.61. Claimant considered the amount tendered to be inadequate, and therefore returned the check without cashing it.
15. At the appropriate annual mileage reimbursement rates, and assuming that Claimant’s normal commute to and from work at the time of her injury was between Colchester and Burlington, the total amount due her is $2,346.64.
CONCLUSIONS OF LAW:
1. According to Workers’ Compensation Rule 12.2100, an injured worker who is required to travel for treatment of a compensable injury is entitled to reimbursement for mileage “beyond the distance normally traveled to the workplace.” The purpose of the rule is to make the worker whole, by providing compensation for expenses that he or she would not have incurred but for the work injury. At the same time, the rule is phrased so as to deny reimbursement for regular commuting expenses that presumably the worker would have had to bear even had there been no injury.
2. The evidence here establishes that Claimant’s normal work week commute at the time of her injury was between Colchester and Burlington, a distance of 16 miles. Claimant’s testimony in this regard was entirely credible. It was amply supported by that of her sisters as well.
3. Defendant argues that even if the evidence establishes that Claimant lived in Colchester at the time of her injury and only later moved back to Champlain, she still is not entitled to mileage reimbursement for medical appointments between Champlain and Burlington, as the distance traveled was greater than what it would have been had she continued to reside in Colchester. I disagree. In both language and spirit, Rule 12.2100 requires reimbursement for actual expenses necessitated by the work injury, not hypothetical ones.
4. I conclude that Claimant has sustained her burden of proving her entitlement to mileage reimbursement totaling $2,346.64. This represents the distance she actually traveled for medical appointments (between Champlain and either Burlington or Plattsburgh) over and above her normal commute distance at the time of her work injury (between Colchester and Burlington).
5. Pursuant to 21 V.S.A. §664, Claimant is entitled to an award of interest from the date on which Defendant’s obligation to pay compensation began. Taking into account the fact that Defendant previously tendered a check for $382.61, which Claimant refused to accept, interest should be calculated on the remainder, $1,964.03, commencing on the date on which Claimant produced her mileage log for Defendant’s review, April 27, 2010.
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6. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $351.40 and attorney fees totaling $3,717.50.1 An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
7. As for attorney fees, these lie within the Commissioner’s discretion. Among the factors to be considered are 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).
8. This case is somewhat unusual in that the fees charged exceed the amount that was at stake. Nevertheless, I am convinced that Claimant would not have been successful were it not for her attorney’s efforts, and for this the attorney deserves to be compensated. I conclude that it is appropriate to award all of the fees requested.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Mileage reimbursement totaling $2,346.64;
2. Interest calculated in accordance with Conclusion of Law No. 5 above; and
3. Costs totaling $351.40 and attorney fees totaling $3,717.50.
DATED at Montpelier, Vermont this 5th 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.
1 Of the hourly charges submitted, 8.6 were incurred prior to June 15, 2010, the effective date of amended Workers’ Compensation Rule 10.1210. Those charges are limited to the maximum rate in effect at the time they were incurred, or $90.00 per hour. Charges incurred after Jun3 15, 2010 are subject to the amended rate, $145.00 per hour. Erickson v. Kennedy Brothers, Opinion No. 36A-10WC (March 25, 2011).

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)

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

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Josef Knoff Opinion No. 25-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Josef Knoff Illuminating
For: Anne M. Noonan
Commissioner
State File No. P-16619
OPINION AND ORDER
Hearing held in Montpelier on August 17, 2012
Record closed on September 19, 2012
APPEARANCES:
Josef Knoff, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Are Claimant’s current complaints causally related to his February 2000 compensable work injury?
2. If yes, is Claimant entitled to reinstatement of temporary total disability benefits retroactive to December 17, 2010?
3. If yes, what is the appropriate average weekly wage and compensation rate at which such benefits should be paid?
4. Is Claimant’s claim for mileage reimbursement for treatment-related travel barred in whole or in part by the applicable statute of limitations?
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EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Medical statement in support of Social Security Disability, June 15, 2005
Claimant’s Exhibit 2: Physical therapy progress notes, 5/4/11-6/6/11
Defendant’s Exhibit A: Exhibit 2 to Claimant’s deposition, April 20, 2005
Defendant’s Exhibit C: Curriculum vitae, Fran Plaisted, M.A.
Defendant’s Exhibit D: Vocational Assessment of Earning Capacity, June 4, 2012
Defendant’s Exhibit E: Wage records, 5/21/10-12/17/10
Defendant’s Exhibit F: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
Temporary total disability benefits retroactive to December 17, 2010 pursuant to 21 V.S.A. §642
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2100
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the commissioner’s previous decisions in J.K. v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005), J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006), and Josef Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), and of the Vermont Supreme Court’s entry order in Josef Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term 2011).
3. Claimant was the self-employed owner and manager of Defendant’s business for fifteen years prior to February 2000. Operating under the trade name Illuminating Consulting Service and Supply, the business marketed, designed and installed energy efficient lighting systems in commercial, industrial and institutional settings. It was a successful enterprise that generated significant annual revenues.
4. Claimant was in all respects a hands-on owner. He worked both in the office and in the field. The latter duties were physically challenging, often requiring sustained overhead work on ladders or high staging with his neck in a hyper-extended position.
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Claimant’s 2000 Injury and Subsequent Medical Treatment
5. On February 1, 2000 Claimant was finishing up an installation at a large health care facility in New Hampshire when he suffered the onset of severe neck pain. Diagnostic imaging studies revealed degenerative disc disease at C4-5 and C5-6, a right-sided disc herniation at C5-6 and a small left-sided herniation at C6-7. These findings correlated with Claimant’s symptoms, which included pain, stiffness and reduced range of motion in his neck, as well as pain and paresthesias in his arms bilaterally.
6. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
7. Claimant treated his symptoms conservatively, with passive physical therapy modalities and anti-inflammatories. As early as June 2000 his consulting neurosurgeon, Dr. Penar, determined that he was an appropriate candidate for surgical disc excision and fusion at the C5-6 level. Some months later, in December 2000 Dr. Wepsic, another consulting neurosurgeon, also recommended surgery, to include decompressing the nerve roots at both C5-6 and C6-7.
8. Claimant chose not to pursue either of these surgical treatment options. Instead, from November 2000 through January 2001 he underwent a multidisciplinary functional restoration program overseen by Dr. Johansson, an osteopath. Dr. Johansson diagnosed Claimant with cervical disc syndrome and myofascial pain. The program he recommended to address these conditions encompassed both physical and psychological components, and included treatments specifically directed at behavioral medicine and pain management.
9. Claimant successfully completed Dr. Johansson’s program. Although his pain was not completely eliminated, his range of motion improved and he reported that he was better able to control and manage his symptoms than he had been previously.
10. In February 2001 Dr. Johansson determined that Claimant had reached an end medical result. Noting both clinical findings and diagnostic imaging studies indicative of a C5-6 disc herniation with radiculopathy, he rated Claimant with a 15 percent whole person permanent impairment referable to his compensable cervical injury. The Department approved the parties’ subsequent agreement to pay permanency benefits in accordance with this rating.
11. As for functional restrictions, Dr. Johansson determined that Claimant had a light to medium work capacity and was capable of full-time sedentary work. He endorsed Claimant’s plan to return to work in a computer-oriented office setting, so long as his work station was ergonomically designed and he was able to take frequent stretch breaks.
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Medical Treatment from 2003 through 2006
12. As expected with a cervical disc injury such as Claimant’s, even after reaching an end medical result he continued to experience periods of waxing and waning symptoms. He did not seek additional focused treatment, however, until May 2003. By that time, his symptoms had worsened to such an extent that they interfered significantly with his functional abilities.
13. In March and April 2005 Claimant participated again in a functional restoration program supervised by Dr. Johansson. When his symptoms failed to improve, Dr. Johansson recommended another surgical consult.
14. In July 2005 Claimant underwent an evaluation with Dr. Phillips, a neurosurgeon. When compared with the MRI taken shortly after his 2000 injury, a new MRI study revealed that the disc herniation previously noted at C5-6 had resolved, but that bone spurs both at that level and at C6-7 had worsened. Given the correlation between these findings and Claimant’s worsening symptoms, Dr. Phillips recommended surgery at the C7 level.
15. Defendant disputed its responsibility for Dr. Phillips’ proposed surgery on the grounds that it was not causally related to Claimant’s compensable injury. As medical support for its position, Defendant offered the opinion of Dr. Levy, a neurologist. According to Dr. Levy’s analysis, Claimant’s ongoing symptoms were due solely to the natural progression of degenerative disc disease, and were not work related at all.
16. Dr. Phillips disagreed with this analysis. According to his theory of causation, Claimant’s work activities in February 2000 had precipitated the left-sided disc herniation at C6-7. The bone spurs that subsequently developed at that level represented the body’s natural attempt to prohibit movement and achieve some stability in the area. In that sense, the extent of disc degeneration at C6-7 came about as a direct consequence of the work injury.
17. Following a formal hearing, in a decision dated July 7, 2006 the commissioner rejected Dr. Levy’s causation analysis and accepted Dr. Phillips’ opinion instead.1 As a consequence, Defendant was ordered to pay the medical and rehabilitation costs associated with the C7 surgery that Dr. Phillips had recommended.
18. Ironically, after having prevailed on his claim that Dr. Phillips’ proposed surgery was causally related to his work injury, Claimant again decided against that treatment option. His symptoms had improved somewhat, and while they still limited his activity he no longer viewed surgery as inevitable. Instead he opted to take a “wait and see” approach, in the hopes that over time his symptoms might abate even more.
1 J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006).
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19. Between October 2006 and December 2010 Claimant continued to experience ongoing neck pain and radicular symptoms that significantly limited his activity level. Aside from routine exercises and anti-inflammatories, however, he did not actively treat for his cervical condition.
Medical Treatment since 2010
20. On December 17, 2010 Claimant reported to Dr. Manchester, his primary care physician, that his neck pain and radicular symptoms had worsened. There followed a series of therapies, specialist consults and diagnostic evaluations aimed at addressing this latest downturn. These included:
• Evaluations in early 2011 with Dr. Barnum, an orthopedic surgeon, who concluded that a C5-6 and C6-7 discectomy and fusion likely would alleviate Claimant’s symptoms and improve his function;
• MRI studies in March and October 2011, which showed herniated discs at both C5-6 and C6-7, with further calcification at those levels and progression of degenerative disease at the adjacent levels as well;
• Electrodiagnostic studies in April 2011, which documented chronic left C7 radiculopathy but no new radicular deficits;
• An unsuccessful course of physical therapy from April through May 2011;
• An October 2011 evaluation with Dr. Bono, another orthopedic surgeon, who concluded that notwithstanding his MRI findings Claimant likely would not benefit from surgery, and would best be helped by a more structured, physiatrist-directed trial of non-operative care; and
• A December 2011 evaluation with Dr. Flimlin, a physiatrist, followed by a referral to Dr. Naylor, a psychiatrist and specialist in chronic pain management.
21. From mid-April through mid-June 2012 Claimant participated in an 11-week pain management program offered by Dr. Naylor’s Mind-Body Clinic. The focus of this program is to teach copings skills for managing chronic pain through cognitive restructuring, relaxation training, visual imagery, education and group discussion. I find it likely that Claimant previously learned at least some of these skills in the context of Dr. Johansson’s November 2000 multidisciplinary rehabilitation program.
22. In conjunction with the Mind-Body Clinic program, Dr. Naylor also suggested that Claimant participate in a “physician-managed graded exercise program” to help him improve his overall physical conditioning. She recommended that he re-enroll in Dr. Johansson’s functional restoration program for this purpose.
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23. At the time of the formal hearing, Claimant had completed Dr. Naylor’s Mind-Body Clinic program, and was two-thirds of the way through Dr. Johansson’s program. I find from Claimant’s own testimony that the benefits he has reaped from these programs are essentially the same as those he reported the first time he underwent multidisciplinary rehabilitation, namely, an improved ability to manage and control his chronic pain symptoms and somewhat increased cervical range of motion. His radicular symptoms remain unchanged.
Claimant’s Vocational Rehabilitation Efforts and Subsequent Employment Efforts
24. Claimant’s functional restrictions following his February 2000 injury precluded him from returning to his pre-injury job. He subsequently was found entitled to vocational rehabilitation services, and a counselor was assigned to assist him in formulating an appropriate return to work plan. As Claimant had been a very high wage earner, the particular vocational rehabilitation challenge he faced was to identify a path to re-employment that would approximate his pre-injury wages, which averaged almost $3,800.00 per week.
25. After some research, Claimant and his counselor determined that the two avenues most likely to lead to suitable re-employment were either to enroll in a master’s level college program or to undertake another self-employed business venture. Claimant was concerned that pursuing a master’s degree would take several years, and in the meantime it would be difficult for him to support his family financially. For that reason, and also considering his successful track record as the owner and manager of Defendant’s business, he favored the second option.
26. Claimant’s vocational rehabilitation counselor estimated the cost of a master’s level degree program to be in the $15,000-$20,000 range at the University of Vermont, and in the $30,000-$50,000 range elsewhere.
27. After much research, Claimant developed a self-employment business plan that he estimated would generate personal income at or near his pre-injury wages within three years. The plan involved designing and developing a website to market natural foods, personal care products and other “environmentally friendly” goods directly to consumers. Claimant estimated the start-up costs to adequately finance this e-commerce venture at approximately $200,000. According to his business plan, most of these monies ($170,000) would be used to outsource custom website development and on-line marketing to a company with experience in hosting natural products websites.
28. Claimant’s vocational rehabilitation counselor supported his self-employment plan, despite the potential risks associated with any such venture. However, Defendant refused to sign off on the proposal, for reasons that are not clear from the record. Thereafter, Defendant agreed to pay $100,000 in return for a full and final settlement of its obligation to provide further vocational rehabilitation services. Claimant accepted this offer, and in May 2001 the Department approved the settlement.
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29. Notwithstanding that the vocational rehabilitation settlement left his business plan 50 percent underfunded, Claimant opted to proceed anyway. Subsequent decisions placed the start-up in an even more precarious financial position. First, Claimant diverted a sizeable portion of the settlement monies to personal expenses, including his child’s college tuition, his mortgage and car payments. Later, he lost some funds to what he described as a “well-orchestrated scam.” Claimant was able to raise some capital on his own, including a $25,000-$30,000 investment from his primary care physician, Dr. Manchester. He also modified his business plan on the expense side, by identifying less costly ways to market and deliver the products he intended to distribute.
30. Despite his best efforts, Claimant’s e-commerce business never approached the level of success he had envisioned for it. After years in development, the website was operational for a brief period of time in 2005-2006, but made only minimal sales. By 2007 it was defunct.
31. Claimant attributed at least part of the business’ demise to his inability, as a result of his neck pain and radicular symptoms, to spend as much of his own time working on the project as he originally had anticipated. His business plan called for him to devote ten to twelve hours daily on the venture, but as time went on he was able to spend only one or two hours per day on it. Claimant asserted that had he been able to work more closely on designing and fine tuning the website, his outsourcing expenses would have been lower, with the result that it would have been easier for the business to become profitable.
32. Claimant’s assertion is belied by his own business plan, however. As noted above, Finding of Fact No. 27 supra, from the beginning the outsourcing expenses anticipated in that plan were substantial. They accounted for 85 percent of Claimant’s original funding request, and perhaps more importantly, they exceeded the start-up monies he actually received by 70 percent, see Finding of Fact No. 28 supra. With those facts in mind, I find it likely that Claimant’s e-commerce venture failed not because he was physically unable to devote sufficient time to it, but rather because for the duration of its existence it was significantly undercapitalized.
33. Between 2006 and 2009 Claimant neither sought nor engaged in remunerative employment. In 2005 he applied for and was granted social security disability benefits, retroactive to April 2003. In 2009 he passed the licensing exam to become an automobile damage appraiser, but soon realized that the work was too challenging physically for him to sustain.
34. In early 2010 Claimant began working as a substitute teacher for the Enosburgh Town School District, where he resides. His wife had worked as a substitute teacher in the same school district, and within a year had been offered full-time employment. Claimant hoped his employment would progress similarly. He expected that teaching would accommodate his physical restrictions well in terms of maintaining his neck in a neutral posture and being able to move around as necessary.
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35. Claimant was paid on a per diem basis for his substitute teaching assignments, at the initial rate of $70.00 per day. Notwithstanding Defendant’s assertion to the contrary, it is clear from the paystubs admitted into evidence that payroll taxes, including both FICA and Medicare, were deducted. In addition, Claimant testified that the school district issued him a W-2 earnings statement covering these wages at the end of the year, an assertion I have no reason to doubt. Considering this evidence, I find that Claimant was at all relevant times a school district employee, not an independent contractor.2
36. Claimant’s paystubs document substitute teacher earnings from April 19, 2010 through May 27, 2010, a total of $280.00 in gross wages for four full-time equivalent days. During the ensuing school summer vacation, from July 9, 2010 through September 16, 2010 Claimant worked as a security guard at a summer camping area. For the most part, his duties involved canvassing the property in a golf cart, for which he was paid at the rate of $8.25 hourly. Claimant’s gross wages in this employment totaled $1,023.00. Thereafter, Claimant returned to substitute teaching assignments for the Enosburgh Town School District, this time at a per diem rate of $80.00 per day. From September 8, 2010 through December 9, 2010 he earned a total of $1,080.00 in gross wages for 13.5 full-time equivalent days.
37. Claimant has not worked since December 9, 2010. As noted above, Finding of Fact No. 20 supra, on December 17, 2010 he resumed treatment for his neck pain and radicular symptoms with Dr. Manchester, who determined that he was totally disabled from working.
38. Claimant has been minimally active in the years since Dr. Manchester took him out of work. He testified that on a typical day, he drives his wife to work, returns home, feeds the dog, eats breakfast, spends 30 to 45 minutes on the computer, and then naps for one to two hours. He estimated that he might spend another 30 to 45 minutes on the computer in the afternoon before driving to pick up his wife. Occasionally he attends his daughter’s sporting events. He sleeps approximately six hours nightly, but wakes up frequently in pain.
39. While I do not doubt that Claimant is minimally active physically, I find that he likely has underestimated the amount of time he spends at his computer. Considering just the manner in which he has represented himself through the various legal proceedings associated with his workers’ compensation claim, which have encompassed three formal hearing decisions and one Supreme Court appeal in addition to the pending dispute, it is apparent that he is able to focus on complex issues, compose legal memoranda and respond promptly and at length to emails and other correspondence. These activities are at odds with a person who is unable to work at a computer for more than one and a half hours daily.
2 Given what I presume to be the nature of the school district’s business, which is the true test of employee status, see In re Chatham Woods Holdings, LLC, 2008 VT 70 ¶10 (May 16, 2008), it is unlikely that I would have classified Claimant as an independent contractor even had the school district not withheld his payroll taxes appropriately.
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Expert Opinions
40. The parties each presented expert evidence as to (a) the causal relationship between Claimant’s current cervical complaints and his compensable February 2000 work injury; (b) whether his treatment since December 2010 has been curative or palliative; and (c) to what extent, if any, he has been capable of working since that time. In addition, Defendant presented expert testimony as to the impact that Claimant’s past vocational choices has had on his current earning capacity.
(a) Causal Relationship
41. As to the causal relationship between Claimant’s current cervical condition and his February 2000 injury, the expert opinions that each party offered were essentially the same as those presented in the context of Claimant’s 2006 formal hearing, see Finding of Fact Nos. 15-17 supra. Briefly, Claimant’s primary care provider, Dr. Manchester, concurred with Dr. Phillips’ causation analysis – that the February 2000 work injury precipitated a left-sided disc herniation at C6-7, which in turn accelerated the growth of bone spurs and degenerative disease at adjacent levels as well. Thus, according to Dr. Manchester the same work-related injury process that accounted for Claimant’s worsening symptoms and need for treatment in 2003 likewise accounts for his current symptoms and need for treatment.
42. In contrast, Defendant’s expert, Dr. Backus, acknowledged that his causation opinion was in many respects the same as that offered by Dr. Levy in 2003 – that Claimant’s worsening symptoms, both in 2003 and in 2010, were not causally related to his work injury in any respect, but rather represented the natural progression of degenerative disc disease in his cervical spine. That disease process probably had already begun as of the time of Claimant’s February 2000 work injury. According to Dr. Backus’ analysis, while the injury likely resulted in a soft tissue strain and inflammatory response in the area, it did not cause or accelerate any changes to the underlying structures themselves. Thus, in his opinion, at least by 2003 and certainly by 2010 any worsening symptoms were likely due solely to the ongoing progression of the disc disease itself.
(b) Curative versus Palliative Treatment
43. Claimant offered expert opinion evidence from Drs. Manchester, Bono, Naylor and Johansson to the effect that the treatments he has undergone since December 2010 have been curative rather than palliative in nature. In particular, according to these providers, both Dr. Naylor’s Mind-Body Clinic program and Dr. Johansson’s functional restoration program offer treatments that are reasonably likely to result in significant further improvement in his ability to manage his symptoms and return to the level of function he enjoyed previously.
44. Upon careful review, I find that none of Claimant’s providers have adequately explained why the specific treatments Drs. Naylor and Johansson have offered recently are likely to result in lasting improvement when what appear to be very similar programs failed to do so in the past. For that reason, I find the objective support for their opinions lacking.
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45. Dr. Backus acknowledged that Dr. Naylor’s program represented a reasonable treatment, one that likely would increase Claimant’s ability to manage his chronic pain independently. He also supported as reasonable Claimant’s participation in a limited graded exercise program supervised by Dr. Johansson, as a means of guiding him back to an effective home exercise regimen. According to Dr. Backus, however, because Claimant suffers from a chronic, progressively deteriorating condition, neither of these programs is curative; the most either can offer is palliative symptom relief. I accept this reasoning as persuasive.
(c) Claimant’s Work Capacity Since December 2010
46. As noted above, Finding of Fact No. 11 supra, upon completing Dr. Johansson’s functional restoration program in 2001 Claimant had a light to medium work capacity and was capable of full-time sedentary work in a computer-oriented office setting.
47. The medical statement that Dr. Manchester filed in conjunction with Claimant’s 2005 application for social security disability benefits described a far more limited work capacity. As of June 2005 Dr. Manchester estimated that Claimant could neither sit nor stand for more than two hours daily, and was incapable of full-time employment.
48. Notwithstanding this assessment, Claimant was able to resume at least part-time employment in 2010. Although his work as a substitute teacher was sporadic, when he was called in he was able to complete a full day. Similarly, Claimant demonstrated the ability to work regular part-time hours at his summer security guard job. Claimant did not present any credible evidence establishing that prior to December 17, 2010 his inability to work more hours at either job was due to any injury-related disability. It is equally possible that his hours were limited simply because his employers had no more to offer.
49. As noted above, Finding of Fact No. 37 supra, when Claimant’s symptoms worsened in December 2010 Dr. Manchester determined that he was totally disabled from working, an opinion he reiterated shortly before the formal hearing.
50. The evidence does not reveal the specific basis for Dr. Manchester’s opinion as to Claimant’s work capacity, either in 2005, 2010 or currently. It is largely at odds with the capacity he himself demonstrated in the months prior to December 2010. Claimant has not undergone any formal functional capacity testing since completing Dr. Johansson’s program in 2001, more than ten years ago. Lacking objective data as support, I must question Dr. Manchester’s conclusions.
51. Based both on his January 2012 independent medical examination and on Claimant’s description of his daily living activities, Dr. Backus determined that he is capable of sustaining full-time sedentary to light work. As with Dr. Manchester’s opinion, I would have more confidence in Dr. Backus’ conclusions were they supported by formal functional capacity testing. Nevertheless, based both on Dr. Backus’ analysis and on my own observations of Claimant as a pro se litigant, I find it likely that he currently has at least a part-time sedentary work capacity.
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(d) Claimant’s Earning Capacity
52. Fran Plaisted, a certified vocational rehabilitation counselor, offered her expert opinion as to Claimant’s earning capacity in the years since his February 2000 work injury. Ms. Plaisted is a fellow of the American Board of Vocational Experts. In formulating her opinion, she interviewed Claimant and reviewed his medical and vocational history.
53. Ms. Plaisted’s analysis focused primarily on what Claimant’s vocational rehabilitation options might have been had he not chosen to pursue self-employment. Generally, she explored two alternative paths – one using his existing skills, training and experience, the other assuming some level of academic retraining. In both instances, she assumed a full-time sedentary to light work capacity, in accordance with Dr. Backus’ opinion.
54. In Ms. Plaisted’s opinion, as a successful business owner for more than 15 years prior to his injury, Claimant has extensive experience in sales and management. These transferable skills qualify him for employment as a sales representative or manager, with an average annual salary in northern Vermont in the $55,000 to $75,000 range.
55. Alternatively, Claimant could have combined his undergraduate focus on engineering with his extensive experience in electrical installation to seek either a bachelor’s or master’s degree in electrical engineering. The costs associated with this plan would have been largely covered by the $100,000 vocational rehabilitation settlement he received, and would have yielded a current earning capacity ranging from $71,000 to $95,000 annually.
56. With these vocational alternatives in mind, Ms. Plaisted concluded that neither of the jobs Claimant held in 2010 accurately reflected his actual earning capacity. Notwithstanding his injury-related physical limitations, in her opinion Claimant was underemployed as both a substitute teacher and as a summer security guard. Even assuming that Claimant might be capable of only part-time as opposed to full-time sedentary work, I find this analysis credible.
Mileage Reimbursement
57. By letter dated January 12, 2012 Claimant provided a detailed accounting of his claim for mileage reimbursement to both the Department and to Defendant. For travel to and from doctor’s appointments and in accordance with Workers’ Compensation Rule 12.2100, Claimant claimed a total of $464.92 in mileage charges incurred between March and September 2005, a total of $159.76 in charges incurred between August 29, 2006 and October 17, 2006, and a total of $402.14 in charges incurred from December 17, 2010 through December 14, 2011.
58. Defendant has objected to the 2005 and 2006 charges on the grounds that they are barred by the applicable statute of limitations.
CONCLUSIONS OF LAW:
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1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
Causal Relationship
2. The first disputed issue in this claim is whether Claimant’s cervical symptoms and need for treatment since December 2010 are causally related to his compensable February 2000 work injury. This is a medical question, upon which the parties presented conflicting expert opinions. In such situations, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. I conclude here that Dr. Manchester’s opinion as to the causal relationship between Claimant’s original injury and the ongoing disc degeneration in his cervical spine is more credible than Dr. Backus’. As his primary care provider for many years, Dr. Manchester has been well positioned to observe the progression of Claimant’s cervical condition over time. His causation theory – that the work injury caused a C6-7 disc herniation, which in turn accelerated the growth of bone spurs and degeneration at adjacent levels – is essentially the same one that Dr. Phillips previously espoused as the explanation for Claimant’s worsening symptoms in 2003. For the same reasons that led the commissioner to accept Dr. Phillips’ analysis as objectively supported and credible in 2006, I accept Dr. Manchester’s opinion as persuasive here.
4. Had Dr. Backus propounded a causation theory that effectively distinguished Claimant’s current condition without denying either the injury Defendant accepted in 2001 or the one the commissioner found compensable in 2006, I might view his opinion more favorably. Instead, his analysis relies at its core on the assumption that Claimant’s February 2000 work injury was a soft tissue strain that neither caused nor accelerated any disc herniation or disease. This assumption is at odds with Defendant’s own conduct dating back at least to 2001, when it paid permanency benefits for what Dr. Johansson diagnosed as a work-related cervical disc herniation. It also is at odds with the commissioner’s determination in 2006 that the work injury had accelerated Claimant’s degenerative disc disease. The time has long since passed for Defendant to proffer an entirely new explanation for what is now a twelve-year-old injury. See, e.g., Coronis v. Granger Northern, Inc., Opinion No. 16-10WC (April 27, 2010). For that reason, I reject Dr. Backus’ opinion as unpersuasive.
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5. I conclude that Claimant has sustained his burden of proving that, as was the case in 2003, his worsened cervical condition in 2010 was caused or accelerated at least in part by his February 2000 work injury and is therefore compensable.
Temporary Total Disability
6. Having concluded that Claimant’s worsened cervical symptoms since December 17, 2010 are causally related to his original injury, I next consider his claim for temporary total disability benefits.
7. Temporary disability benefits are only payable for so long as the medical recovery process is ongoing. Bishop v. Town of Barre, 140 Vt. 564, 571 (1982). Once an injured worker reaches an end medical result, his or her entitlement to temporary disability benefits ends, and the focus shifts instead to consideration of permanent disability. Id.
8. End medical result is defined as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. The fact that some treatments, such as pain medications, physical therapy or chiropractic manipulations, may continue to provide palliative symptom relief does not negate a finding of end medical result so long as the underlying condition itself remains unlikely to improve. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). This is particularly true in cases involving chronic pain, where the injury itself has become stable even though the pain it precipitates may continue to wax and wane over time. See 4 Lex K. Larson, Larson’s Workers’ Compensation §80.03[3] (Matthew Bender, Rev. Ed.), cited with approval in Coburn, supra; see also Workers’ Compensation Rule 2.1310 (defining palliative care). Were the rule otherwise, an end medical result might never be possible in such cases.
9. Considering these concepts in the context of the current claim, the question is whether the treatment Claimant has received since December 2010 is properly characterized as palliative or curative. If the latter, then he cannot be deemed to be at end medical result until he completes his current course of treatment, and in the meantime temporary disability benefits must be reinstated. If the former, then he remains at end medical result and is therefore not entitled to additional temporary disability benefits. Coburn, supra at 532.
10. Aside from a brief course of physical therapy, the goal of the treatments at issue here were first, to re-evaluate Claimant’s surgical options, and second, to restore some degree of lost function through multidisciplinary rehabilitation. As to the first, I conclude that for two new surgeons to essentially reiterate the same risk-benefit analysis that numerous equally qualified surgeons had stated before does not rise to the level of curative treatment necessary to negate end medical result.
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11. As for multidisciplinary rehabilitation, I am aware of other cases in which treatments directed at improving a claimant’s function have been held to negate a finding of end medical result, even though the underlying medical condition itself may have become stable. See, e.g., Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009). Were this Claimant’s first course of such treatment, I might view his situation in the same light. But the fact is Claimant has traveled this road before, and realized only temporarily increased function as a result. Under these particular circumstances, I conclude that for him to undergo another course of functional restoration-type treatment represents palliative, not curative, care.
12. I conclude that notwithstanding the treatments he has undergone since December 17, 2010 Claimant has remained at end medical result. Therefore, he is not entitled to temporary disability benefits for any period of time since that date.
Average Weekly Wage for Subsequent Periods of Disability
13. It is possible that Claimant might become entitled to temporary total disability benefits at some future date, for example, if ultimately he elects to undergo surgery necessitated by his original injury. For that reason, I next consider how his average weekly wage for a subsequent period of disability should be calculated.
14. According to 21 V.S.A. §650(c), when an injured worker’s temporary disability occurs in separate intervals rather than as one continuous period, the applicable compensation rate must be adjusted “to reflect any increases in wages or benefits prevailing at that time.” Historically the Department has interpreted this language to mandate that a claimant’s compensation rate can only be adjusted upward, that is, when his or her wages have increased since a prior period of disability, but never downward, that is, to reflect a decrease in wages during the intervening period. See, e.g., Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
15. More recently, the commissioner has differentiated between situations where a claimant’s decreased wages are shown to have resulted from his or her work injury and those where they are due instead to personal choices or economic factors. See, e.g., Plante v. State of Vermont Agency of Transportation, Opinion No. 24-12WC (September 14, 2012); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). Where the work injury itself accounts for a subsequent reduction in earnings, the average weekly wage for a subsequent period of disability should reflect the earlier, higher wages. Id. This is in keeping with the spirit of workers’ compensation – to provide wage replacement benefits that compensate fully for an injured worker’s diminished earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962). But where the reduced earnings are due to other, unrelated circumstances, using the earlier wages would amount to wage enhancement, not wage replacement, and a windfall not envisioned by the statute.
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16. I acknowledge here that as a result of his original injury Claimant was unable to resume his prior work activities, for which he had been highly compensated. He asserts that it is because of his injury-related functional limitations that he has been unable to find and maintain similarly lucrative employment since then. I disagree. Claimant himself chose the career path upon which he embarked following his injury, one that his treating physician declared him physically capable of performing. That the e-commerce venture he pursued ultimately failed was a consequence of business and financial limitations, not physical or functional ones. Thus, I conclude that the diminution in Claimant’s wages during the time that he was pursuing his e-commerce business was due to non-injury-related factors.
17. It is mostly pointless to engage in a game of “what might have been” had Claimant either availed himself of different vocational rehabilitation resources or applied his settlement monies differently. Suffice it to say, by taking the path that he did, from an average weekly wage perspective I conclude that Claimant has severed the causal link between his current earning capacity and his work injury, such that his pre-injury wages are no longer relevant to his average weekly wage calculation.
Mileage Reimbursement
18. Last, I consider Claimant’s claim for mileage reimbursement. At the time of Claimant’s injury, the applicable statute of limitations was six years. 21 V.S.A. §660(a).3 As Claimant first specified his mileage reimbursement claim on January 12, 2012, any mileage expenses that were incurred more than six years prior to that date are now time barred.
19. I conclude that the mileage expenses Claimant incurred in 2005 are now time barred. Those incurred in 2006 and 2010, totaling $561.90, should be applied against the credit Defendant previously was awarded in Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), affirmed, Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term, 2011).
3 The statute was amended in 2004 to reduce the limitations period to three years. As a substantive amendment, the new limitations period cannot be applied to already pending injury claims. Myott v. Myott, 149 Vt. 573, 575-76 (1988). Beyond that, by its own terms the amended statute mandated that the shorter limitations period “not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim.” For these reasons, I conclude that the limitations period applicable to Claimant’s mileage claim is six years, as dictated by the pre-amendment statute.
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ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s claim for temporary total disability benefits retroactive to December 17, 2010 is hereby DENIED;
2. Defendant is hereby ORDERED to offset its previously awarded credit by a total of $561.90 in mileage expenses incurred through December 14, 2011.
DATED at Montpelier, Vermont this 15th day of October 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.

Scott Myrick v. Ormond Bushey & Sons (April 24, 2014)

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

Scott Myrick v. Ormond Bushey & Sons (April 24, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Scott Myrick Opinion No. 07-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Ormond Bushey & Sons
For: Anne M. Noonan
Commissioner
State File No. Z-01465
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES PRESENTED:1
1. Is Defendant obligated to reimburse Claimant for various medical charges he paid
directly to Dr. Bucksbaum?
2. Is Defendant obligated to pay interest and/or penalties referable to its late
payment of Dr. Bucksbaum’s medical charges?
3. Is Defendant obligated to reimburse Claimant for monies he paid to an unlicensed
provider who failed to properly bill for or substantiate the treatment rendered?
4. Does Defendant owe additional mileage reimbursement referable to Claimant’s
travel for medical treatment causally related to his compensable work injury?
1 Defendant initially sought summary judgment as to Claimant’s claim for wage replacement benefits under 21
V.S.A. §650(c) for time spent attending medical appointments necessitated by his injury. Claimant has now
acknowledged that as he was not employed at the time of these appointments, he has “no viable lost wage claim.”
Therefore, I consider this claim withdrawn.
2
EXHIBITS:
Claimant’s Exhibit 1: Letter from Attorney McVeigh to Attorney Wright, October 13,
2010
Claimant’s Exhibit 2: Letters from Attorney McVeigh with attached cancelled checks,
statement and Affidavit of Scott Myrick
Defendant’s Exhibit 1: Opinion and Order, Myrick v. Ormond Bushey & Sons, Opinion
No. 31-10WC (October 5, 2010)
Defendant’s Exhibit 2: Dr. Bucksbaum medical bills, 06/08/2010 – 07/12/2011
Defendant’s Exhibit 3: Payment spreadsheet
Defendant’s Exhibit 4: Formal hearing referral memorandum, 7/10/13
Defendant’s Exhibit 5: State of Vermont Board of Chiropractic, Default Order, In re
Elmer Sweetland, Docket No. CH 04-0105, with attached
Specification of Charges
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving party, see,
e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Claimant suffered a compensable work-related injury on November 8, 2006. Following a
formal hearing, on October 5, 2010 Defendant was ordered to pay workers’ compensation
benefits accordingly. Myrick v. Ormond Bushey & Sons, Opinion No. 31-10WC
(October 5, 2010).
3. Claimant paid a total of $814.00 for medical treatment provided by Dr. Bucksbaum on
two occasions – June 8, 2010 and July 8, 2010 – in accordance with Dr. Bucksbaum’s
billing for those dates. Shortly after the decision referenced above issued, by letter dated
October 13, 2010 he requested that Defendant reimburse him for those payments, but
Defendant did not do so.
4. In all, Dr. Bucksbaum billed a total of $3,210.00 for medical treatments rendered
between June 8, 2010 and July 12, 2011. Consistent with the Commissioner’s October 5,
2010 Opinion and Order, to the extent these treatments were both causally related to the
work injury and medically necessary, Defendant was obligated to pay for them.
5. On or about May 10, 2012 Defendant issued payment in the amount of $2,869.06 to Dr.
Bucksbaum for the above dates of service, including the two dates of service (June 8th
and July 8, 2010) that Claimant previously had paid directly. The difference between the
amount paid and the amounts billed likely represented reductions taken upon application
of the medical fee schedule, Workers’ Compensation Rule 40.
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6. The record does not reflect when Defendant first received the billings upon which its
May 10, 2012 payment to Dr. Bucksbaum was based. Neither Defendant’s identity nor
the identity of its workers’ compensation insurance carrier is reflected on the bills. In
addition, on each of the bills the “No” box is checked in response to the question, “Is
patient’s condition related to employment?”
7. Defendant has paid Claimant a total of $1,654.32 as reimbursement for various mileage,
meals and lodging expenses he claimed were due, in accordance with an interim order
issued by the Department’s specialist on July 10, 2013. The amount paid included
interest and penalties as specified in the interim order.
8. Consistent with the specialist’s interim order, the mileage expenses that Defendant paid
were calculated after deducting Claimant’s normal commute distance to and from his
workplace, see Workers’ Compensation Rule 12.2000, which at the time of his injury was
70.2 miles. At the time these mileage expenses were incurred, Claimant was neither
employed nor receiving temporary total disability benefits.
9. When Claimant began treating with Dr. Bucksbaum, his mileage to and from Dr.
Bucksbaum’s Rutland, Vermont office totaled 80.4 miles. At some point, Dr.
Bucksbaum relocated his practice from Rutland to Maine. The record does not clearly
reflect the mileage to and from Dr. Bucksbaum’s Maine office, though based on the
specialist’s interim order it appears to have been in excess of 600 miles round-trip.
10. Claimant underwent chiropractic adjustments with Monk Sweetland, an unlicensed
chiropractor, on November 8th, November 22nd and December 15th, 2008 and on February
16th, 2009. Dr. Sweetland’s chiropractic license previously had expired on September 30,
2004. Subsequently, the State of Vermont Board of Chiropractic revoked the license,
effective September 8, 2005, on the grounds that Dr. Sweetland had engaged in
unprofessional conduct. Among the allegations accepted as true in the revocation order
were that he had failed to maintain patient medical records, continued to treat patients
after his license lapsed and adjusted animals in his practice without first obtaining a
veterinary referral.
11. Claimant paid Dr. Sweetland a total of $180.00 for the treatments rendered on the above
dates, in accordance with a billing statement entitled “Monk’s Place.” Beneath the title
the word “Consultant” appears. Beneath that is the phrase, “Common sense solutions to
everyday problems” and beneath that, “Help when you need it.” Aside from the dates of
service, amounts charged and a two-word illegible notation, the billing statement does not
reflect either the diagnosis or the specific treatments provided.
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CONCLUSIONS OF LAW:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when
the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137
Vt. 425 (1979).
2. Defendant here seeks summary judgment in its favor as to whether it is obligated to
reimburse Claimant for the following expenses:
· $814.00 for treatment with Dr. Bucksbaum on June 8th and July 8th, 2010;
· $180.00 for treatment with Dr. Sweetland from November 8th, 2008 through
February 16th, 2009; and
· Additional mileage for treatment-related travel to and from Dr. Bucksbaum’s
Maine office, representing the amounts deducted from previous reimbursements
in consideration of Claimant’s normal commute distance to and from work.
Procedural Issues
(a) Constitutionality of Summary Judgment in Workers’ Compensation Proceedings
3. As his first argument in opposition to Defendant’s motion, Claimant asserts that summary
judgment in the context of Vermont’s workers’ compensation statute should be limited
solely to consideration of issues that are based “entirely upon a question of law,” and not
those that require determination of a “factual legal issue.” He argues that because the
statute, 21 V.S.A. §670, allows for a de novo appeal of the commissioner’s decision to
the superior court, for the commissioner to rule as a matter of law that no genuine issue of
material fact exists in effect deprives the opposing party of its constitutional right to a
jury trial.
4. The commissioner’s authority to determine the amount of compensation due under the
Workers’ Compensation Act by way of a formal hearing derives directly from the statute,
21 V.S.A. §§606, 663 and 664. The Vermont Rules of Civil Procedure are applicable to
formal hearings “insofar as they do not defeat the informal nature of the hearing.”
Workers’ Compensation Rule 7.1000. In accordance with this rule, the commissioner has
at times applied the summary judgment procedure, V.R.C.P. 56, as a means of
adjudicating contested claims. This includes both claims in which purely legal issues are
decided, see, e.g., Yustin v. State of Vermont Department of Public Safety, Opinion No.
27-09WC (July 17, 2009), aff’d 2011 VT 20, and those in which no genuine issue of
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material fact are found to exist, see, e.g., Hathaway v. S.T. Griswold & Co., Opinion No.
04-14WC (March 17, 2014).
5. The Vermont Supreme Court has upheld the constitutionality of summary judgment as a
mechanism for disposing of issues, claims and defenses that do not merit a full trial. In
re Deer View LLC Subdivision Permit, 2009 VT 20, ¶3; Gore v. Green Mountain Lakes,
Inc., 140 Vt. 262, 264 (1981). The function of summary judgment is to avoid a useless
trial, that is, one where there is no genuine issue as to any material fact. Sykas v. Kearns,
135 Vt. 610, 612 (1978). Summary judgment does not entail a trial of the underlying
merits of a case. “Rather, it resolves the question whether the party opposed to the
motion can demonstrate that [it] has evidence sufficient to create an issue.” Tierney v.
Tierney, 131 Vt. 48, 51-52 (1973).
6. As these well-settled principles establish, the line Claimant seeks to draw – between
summary judgment as to a purely legal issue and summary judgment as to a “factual legal
issue” – is a distinction without a difference. In both cases, the losing party lacks the
facts necessary to establish a prima facie case, such that judgment “as a matter of law” is
appropriate. Ross v. Times Mirror, Inc., 164 Vt. 13 (1995).
7. Claimant here argues that because the workers’ compensation statute allows for a de novo
appeal to the superior court on issues of fact, somehow that excuses him from having to
present sufficient evidence to overcome summary judgment at the formal hearing stage.
The commissioner’s vital role in the dispute resolution process is not so easily dismissed,
however. The Supreme Court has repeatedly acknowledged the deference due the
commissioner’s initial interpretation and application of the workers’ compensation
statute, having been entrusted by the Legislature with its administration. See, e.g., Cyr v.
McDermott’s, 2008 VT 106, ¶7; Travelers Indemnity Co. v. Wallis, 2003 VT 103, ¶14;
Wood v. Fletcher Allen Health Care, 169 Vt. 419, 422 (1999). As the Court specifically
has noted, “This is true notwithstanding the fact that the workers’ compensation statutes
authorize a trial de novo in superior court.” Letourneau v. A.N. Deringer/WAUSAU
Insurance Co., 2008 VT 106, ¶8.
8. Indeed, recognizing the commissioner’s primary jurisdiction over the adjudication of
disputes, whether factual or legal, arising under the Workers’ Compensation Act,
Travelers Indemnity Co., supra, the statute, 21 V.S.A. §671, requires that even a de novo
appeal to superior court must be based solely on questions certified to it by the
commissioner. Issues not first considered at the formal hearing stage will not be
certified, and therefore are not ripe for consideration on appeal. See, Morrisseau v.
Legac, 123 Vt. 70, 73 (1962) (applying same statutory language in context of supreme
court appeal).
9. I conclude that the commissioner’s use of summary judgment as a mechanism for ruling
as a matter of law that a party lacks the evidence necessary to present a genuine issue of
material fact is an appropriate use of the authority granted by the workers’ compensation
statute, one which does not deprive the losing party of its constitutional right to a jury
trial in any respect.
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(b) Admissibility of Hearsay-Based Spreadsheet
10. As a second procedural issue, Claimant asserts that because the spreadsheet (Defendant’s
Exhibit 3) that Defendant submitted to establish its payment of Dr. Bucksbaum’s
outstanding bills is based on unauthenticated hearsay, it should not be considered in
support of its motion for summary judgment. In making this argument, Claimant does
not suggest that the document contains any factual errors or misrepresentations,
intentional or otherwise. Rather, he objects to the spreadsheet as a matter of “form and
substance.”
11. As is the case with the rules of civil procedure, the Vermont Rules of Evidence are
applicable to formal hearings, but only “insofar as they do not defeat the informal nature
of the hearing.” Workers’ Compensation Rule 7.1000. Hearsay is admissible “provided
that it is of a type commonly relied upon by prudent people in the conduct of their affairs,
conforms to the requirements of [Rule 7.1000], and the opposing party has had sufficient
notice of it to verify its accuracy.” Workers’ Compensation Rule 7.1010.
12. Aside from his general characterization of Defendant’s spreadsheet as “inadmissible
hearsay,” Claimant has not asserted any grounds for disqualifying the evidence in
accordance with the factors listed in Rule 7.1010. In keeping with the informal nature of
workers’ compensation proceedings before the commissioner, and without any allegation
that the exhibit contains false, misleading or erroneous information, I conclude that it is
admissible.
Defendant’s Obligation to Reimburse Claimant for Monies Paid to Dr. Bucksbaum
13. Defendant seeks summary judgment in its favor as to its obligation to reimburse Claimant
for two bills, totaling $814.00, which he paid directly to Dr. Bucksbaum for medical
treatment causally related to his work injury. Some two years later, Defendant issued
payment to Dr. Bucksbaum to cover all of his billings, including the two bills Claimant
previously had paid. In doing so, Defendant ignored at least one prior notification from
Claimant, in which he identified both the service provided and the amount paid, and
requested prompt reimbursement.
14. Defendant has made no attempt to explain why it failed to respond to Claimant’s request.
Instead, it seeks to shift the blame to Dr. Bucksbaum, for having accepted what amounted
to double payment for the two bills without subsequently issuing a refund to Claimant.
Defendant cites no legal theory in support of its position. Nor can I discern support from
the statute.
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15. Section 640a(a) of the workers’ compensation statute requires that within 30 days after
receiving a bill from a health care provider, an employer must either “pay or reimburse
the bill,” 21 V.S.A. §640a(a)(1) (emphasis added), or give written notice that it is
contesting or denying it. 21 V.S.A. §640a(a)(2). It is reasonable to infer from the
italicized language that the Legislature contemplated the exact situation presented here –
that the injured worker, or perhaps a group health insurer, will already have paid the bill,
such that reimbursement to someone other than the provider itself will have to be made.
If, as may have been the case here, the bill is submitted without sufficient information to
determine its compensability, the employer has an affirmative obligation to promptly
request whatever additional records or reports are necessary. 21 V.S.A. §640a(a)(2).
16. The undisputed evidence here establishes that Defendant was aware of Claimant’s claim
for reimbursement at least as of October 13, 2010. However, the record does not reflect
what steps, if any, it took subsequently to request additional information, whether from
Claimant or directly from Dr. Bucksbaum. If it took appropriate action and received no
response, its obligation to pay or reimburse may have expired, see 21 V.S.A. §640a(f). If
it took no action, it likely remains responsible even today. In either event, for so long as
the question remains unresolved summary judgment in Defendant’s favor is not
appropriate.
17. I conclude that genuine issues of material fact exist as to Defendant’s obligation to
reimburse Claimant a total of $814.00, representing payment for treatment he received
from Dr. Bucksbaum on June 8th and July 8th, 2010. Therefore, it is not entitled to
summary judgment on this issue.
Defendant’s Obligation to Pay Interest and Penalties to Dr. Bucksbaum
18. In his Opposition to Defendant’s Motion, Claimant requests that Defendant be ordered to
pay interest and penalties to Dr. Bucksbaum on account of its delayed payment of his
treatment-related charges between June 8, 2010 and July 12, 2011. Procedurally, as
Defendant has not sought summary judgment on this issue Claimant has chosen the
wrong context in which to raise it. Even if it was appropriately raised, the evidence is
insufficient at this point to support such an order.
19. The undisputed evidence clearly documents a significant delay between the treatment
dates, which ranged from June 8, 2010 through July 12, 2011, and the date when payment
was issued, May 10, 2012. However, the record does not establish when Defendant first
received both the bills and the supporting medical records, which would have been the
trigger for determining when payment was due under §640a. Without this information, I
cannot calculate whether the payment was late, and therefore I cannot assess either
interest or penalties.
8
Defendant’s Obligation to Reimburse Claimant for Monies Paid to Dr. Sweetland
20. Defendant seeks summary judgment in its favor as to its obligation to reimburse Claimant
a total of $180.00, representing payment for four treatments he received from Dr.
Sweetland between November 8, 2008 and February 16, 2009. It asserts that because Dr.
Sweetland was not a licensed health care provider at the time he rendered treatment, and
also because he failed to document his charges appropriately, as a matter of law he is not
entitled to payment under the statute.
21. The statute requires an employer to pay for “reasonable . . . medical . . . services”
necessitated by a compensable injury. 21 V.S.A. §640(a). It is logical to infer that only
lawfully delivered medical services are covered by this mandate. Otherwise, it would be
difficult to ensure that the treatment provided meets the appropriate standards of care and
quality. For this reason, where the statute elsewhere references health care providers, for
example in §§640(b) (allowing employer or employee to designate a “treating health care
provider”) and 640a (establishing procedure for reviewing and paying “health care
provider” bills), it defines the term to mean a practitioner who is “licensed or certified or
authorized by law to provide professional health care service to an individual . . ..” 21
V.S.A. §601(22).
22. A practitioner who is not required to be licensed or certified under Vermont law can
lawfully provide treatment, and therefore an employer may still be responsible under
§640(a) for paying the charges related thereto.2 V.O. v. Windsor Hospital, Opinion No.
12-08WC (March 27, 2008). But where Vermont law requires that only a licensed or
certified practitioner can provide a particular type of medical service, such that treatment
rendered by an unlicensed provider is unlawful, I must consider it to be unreasonable as
well, and therefore not covered under §640(a).
23. The undisputed evidence here establishes that Dr. Sweetland was not licensed to practice
chiropractic medicine at the time that he provided treatment to Claimant, as is required
under Vermont law, 26 V.S.A. §522(a). That in itself disqualifies him from receiving
payment under §640(a). That he also failed either to maintain treatment records or to
submit appropriately documented and coded medical bills, as is required under §§640a(f)
and (g), further disqualifies him.
24. Claimant argues that Defendant should be obligated to reimburse him nonetheless,
because he was unaware that Dr. Sweetland was not licensed and consequently paid for
the services he received “in good faith.” The statute does not allow for any such
exception, and strong policy considerations weigh against it. The fact is, by providing
treatment without a license, Dr. Sweetland put Claimant’s safety and health at risk. That
Claimant paid his bill without recognizing the danger is unfortunate, but it is not a
consequence I properly can lay at Defendant’s feet.
2 For example, massage therapists are not required to be licensed under Vermont law; their charges are routinely
covered under §640(a).
9
25. I conclude that because Dr. Sweetland was not licensed to practice chiropractic medicine
at the time he treated Claimant, as a matter of law the services he provided are not
covered under the workers’ compensation statute. For this reason, and also because Dr.
Sweetland failed either to maintain treatment records or to submit appropriately
documented medical bills, I conclude as a matter of law that Defendant is not obligated to
pay his charges, either directly or by way of reimbursement to Claimant.
Defendant’s Obligation to Reimburse Claimant for his “Normal Commute Distance” Mileage
Expenses
26. Defendant seeks summary judgment in its favor as to whether it is obligated to include
Claimant’s normal commute mileage to and from work as part of the mileage
reimbursement due him, under Workers’ Compensation Rule 12.2100, for his treatmentrelated
travel to and from Dr. Bucksbaum’s Maine office. As Claimant was neither
employed nor receiving temporary total disability benefits at the time of these excursions,
he contends that the “normal commute distance” deduction should not have applied.
27. Under Rule 12.2100, an injured worker who is required to travel for treatment of a
compensable injury is entitled to reimbursement for mileage “beyond the distance
normally traveled to the workplace.” The purpose of the rule is to make the worker
whole, by providing compensation for expenses that he or she would not have incurred
but for the work injury. At the same time, the rule is phrased so as to deny
reimbursement for regular commuting expenses that presumably the worker would have
had to bear even had there been no injury. Fosher v. Fletcher Allen Health Care,
Opinion No. 11-11WC (May 5, 2011).
28. Although often not specifically authorized by statute, most jurisdictions consider
treatment-related transportation expenses, whether local or distant, to be included as part
of an employer’s obligation to provide medical benefits to an injured worker. See
generally, 5 Lex K. Larson, Larson’s Workers’ Compensation §94.03[2] (Matthew
Bender, Rev. Ed.) and cases cited therein. As Vermont’s statute is silent on the issue,
Rule 12.2100 was promulgated with that interpretation in mind. Both the language and
the purpose of the rule are clear, and do not allow for the exception Claimant favors.
29. I conclude as a matter of law that Defendant appropriately deducted the mileage referable
to Claimant’s normal commute distance to and from work from the reimbursement due
him on account of his treatment-related travel to and from Dr. Bucksbaum’s Maine
office.3 Summary judgment in its favor is appropriate, therefore.
3 As further support for its summary judgment claim, Defendant argues that it should be excused from paying
additional mileage related to Claimant’s travel to and from Dr. Bucksbaum’s Maine office because he likely could
have obtained the same treatment from another, more locally situated provider. Having concluded as a matter of law
that Rule 12.2100 does not permit the interpretation for which Claimant advocates, I need not reach this argument.
In any event, the proper context for Defendant to have raised this defense would have been with respect to its
obligation to pay Dr. Bucksbaum’s charges themselves, not the mileage charges to and from his office.
10
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN
PART, as follows:
1. Summary judgment in Defendant’s favor is hereby DENIED as to its obligation to
reimburse Claimant in the amount of $814.00, representing payment for treatment he
received from Dr. Bucksbaum on June 8th and July 8th, 2010;
2. Summary judgment in Defendant’s favor is hereby GRANTED as to its obligation to
reimburse Claimant in the amount of $180.00, representing payment for treatments he
received from Dr. Sweetland between November 8, 2008 and February 16, 2009;
3. Summary judgment in Defendant’s favor is hereby GRANTED as to its obligation to
include Claimant’s normal commute mileage to and from work as part of the
reimbursement due him for his treatment-related travel to and from Dr. Bucksbaum’s
Maine office.
DATED at Montpelier, Vermont this 24th day of April 2014.
_______________________
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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