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

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

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

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

T. P. v. S. D. Ireland Brothers (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 41-06WC
T. P.
By: Margaret A. Mangan
v. Hearing Officer
S.D. Ireland Brothers For: Patricia Moulton Powden
Commissioner
State File No. X- 53328
RULING ON DEFENSE MOTION TO DISMISS
Defendant S.D. Ireland Brothers moves to dismiss with prejudice claimant Terry Parmer workers’ compensation claim pursuant to V.R.C.P. 37, 41, and 79.1 for failure to prosecute. In addition, defendant requests that claimant pay court reporter costs and attorney fees resulting from claimant’s failure to appear at his scheduled deposition. Defendant has not presented sufficient evidence to support these requests.
Defendant filed a First Report of Injury on October 13, 2005. This report stated that claimant fell or slipped from a ladder or scaffolding on September 30, 2005, resulting in skin surface bruising and injury to the bone portion of the spine. The Department’s file indicates that defendant’s Workers’ Compensation Insurance Carrier, Liberty Mutual Insurance Company (Liberty Mutual), paid Temporary Total Disability benefits and medical benefits to the claimant. Then, on November 15, 2005, Liberty Mutual filed a Form 2 denying “any ongoing indemnity benefits.” Liberty Mutual also filed a Form 27 to discontinue TTD and medical benefits. On December 20, the Department wrote a letter to Liberty Mutual and claimant’s attorney notifying them that the Form 27 was approved. This letter also informed the claimant of his right to contest this discontinuance. On February 10, 2006, the defendant moved to dismiss the claimant’s claim with prejudice for failure to prosecute. On February 27, 2006 the Staff Attorney ruled that “a delay of years rather than months would be necessary to support dismissal of a claim due to claimant’s failure to prosecute.”
The following day, February 28, 2006, the claimant’s attorney motioned to withdraw because he was unable to contact the claimant by telephone or in writing after repeated attempts. On March 6, 2006 the Department sent a certified letter to the claimant to notify him of the request to withdraw. On March 30, 2006 the postal service returned the certified letter to the Department because it remained unclaimed despite two separate notices to the claimant. The Department then sent another certified letter to the claimant, addressed to a slightly different address, to notify him of the request to withdraw. Again, the letter was returned to the Department because it had been unclaimed after two notices to the claimant. As a result, the Department granted the request to withdraw, and sent a letter to the claimant to notify him that he would be required to represent himself pro se.
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Subsequently, on June 20, 2006, defendant noticed claimant’s deposition. Claimant did not attend the deposition, resulting in this motion by defendant.
Vermont Rule of Civil Procedure 41(b)(2) states that an action may be dismissed where a plaintiff fails to prosecute or comply with the rules of civil procedure. However, the V.C.R.P. apply to workers’ compensation hearings, only “insofar as they do not interfere with the informal nature of the proceedings.” WC Rule 7.1000. To grant the defendant’s motion to dismiss with prejudice would be the equivalent of adjudication on the merits. Grant v. Cobbs Corner, Op No. 22-02WC (2002) at 1.
The defendant’s right to seek finality of a claim must be balanced with the claimant’s right to seek the benefits to which he may be entitled. “[O]ur Supreme Court once stated, ‘allowing a case to slumber on the docket for a period of five years indicates a lack of diligence warranting its dismissal…’” Holmes v. Northeast Tool, Op No. 26-05WC, at 1 (2005) (quoting Capitol Savings Bank & Trust Co. v. E.W. Hammett, 95 Vt. 47, 50 (1921). Furthermore, 21 V.S.A. §§ 656, 660 prevent a claimant from commencing with any claim more than three years after the date of injury. This law shows that the Court and legislature have considered the rights of both parties and have indicated a timeframe to protect each party’s interest. In other words, a claimant must fail to act for a number of years before his or her rights may be justly foreclosed. As such, less than a year of inaction does not yet warrant a dismissal for failure to prosecute.
This case is clearly distinguishable from C.H. v. Schwan’s Food, Op. No. 40-06 (2006), a case dismissed more than two years after the First Report of Injury had been filed. In that case, the Claimant had actively participated in her case, and then failed to appear for a scheduled appointment, status conference and hearing. Prior to the dismissal, she had several telephone conversations with personnel in this Department.
Defendant’s request to recoup expenses incurred in preparation for deposition in this case is also denied. Efforts to depose the claimant were undertaken by the defendant’s own initiative at a time when it was not paying any benefits, rather than in response to any action taken by the claimant. Furthermore, because it was fully aware of the repeated unsuccessful attempts to contact the claimant, the defendant knew or should have known that the claimant could not be reached. As such, the defendant understood that there was a potential financial risk involved in attempting to notice the claimant’s deposition.
Also, while it is clear that claimant has not initiated further action on this claim or acknowledged the correspondence sent from the defendant or the Department itself, the reason for this inaction is uncertain. It is possible that claimant’s unresponsiveness and inactivity is intentional. However, it is also entirely possible that claimant is somehow incapacitated or otherwise legitimately unable to take further action at this time. To dismiss for failure to prosecute under these uncertain circumstances would be patently unfair to the claimant.
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Therefore, for the foregoing reasons, the defendant’s Motion to Dismiss this claim with prejudice is DENIED.
Dated at Montpelier, Vermont this 9th day of October 2006.
_____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672

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