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T. J. v. Fyles Brothers, Inc. (December 13, 2006)

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T. J. v. Fyles Brothers, Inc. (December 13, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
T. J. Opinion No. 50-06WC
By: Margaret A. Mangan
v. Hearing Officer
Fyles Brothers, Inc. For: Patricia Moulton Powden
Commissioner
State File No. T-09491
RULING ON DEFENDANT MASSAMONT INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT GUARANTY FUND’S CROSS MOTION FOR SUMMARY JUDGMENT
Defendant Massamont Insurance Company (Massamont) moves for summary judgment, asserting that no genuine issue of material fact exists that would demonstrate a causal connection between the Claimant’s August 17, 2003 injury, and the Claimant’s December 20, 2005 surgery.
Defendant Guaranty Fund (Guaranty Fund) enters a Cross Motion for summary judgment. Guaranty Fund first argues that there is no genuine issue of material fact to show a causal connection between the Claimant’s May 30, 2002 injury and the Claimant’s December 20, 2005 surgery. This Defendant also asserts that the December 2005 surgery was not a reasonable method of treatment for the Claimant’s condition.
BACKGROUND:
1. On May 30, 2002, the Claimant suffered a work related injury while working for his employer, Fyles Brothers, Inc. The insurer on the risk for this injury is the Guaranty Fund.
2. On August 22, 2002, an MRI showed a left paracentral disc herniation of the L5-S1 level, left lateral recess narrowing and a likely impingement upon the left S1 nerve root.
3. As a result of this injury, the Claimant experienced pain, dysesthesias and weakness in his back and lower limbs.
4. On September 20, 2002, Dr. Martin Krag performed a disc herniation excision on the Claimant. This procedure resulted in approximately 50% symptom improvement compared to the pre-operative symptoms.
5. The Claimant was able to gradually return to work full time after the September 20, 2002 surgery.
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6. A March 21, 2003 EMG showed an L-5/ S-1 radiculopathy with reinervation.
7. On April 17, 2003, the Claimant and Dr. Krag discussed having a recurrent L-5/ S1 partial discectomy or discectomy plus fusion. That same day, the Claimant decided to have the surgery.
8. On or about August 17, 2003, the pain in the Claimant’s back worsened after loading a truckload of pallets. Massamont Insurance was at risk at the time of this incident.
9. On August 25, 2003, Dr. Krag determined that the August 17, 2003 incident caused a “flare-up” of the Claimant’s baseline symptoms. Dr. Krag’s notes indicate that the Claimant was to proceed with a gradual return to activities.
10. After one week, the Claimant’s back improved to the point where he could return to work.
11. From June 2004 through September 2004, the Claimant was out of work due to an unrelated medical condition.
12. On July 11, 2005, Dr. Krag noted that the Claimant had few brief “flare-ups” of symptoms at his job during the winter of 2004. These episodes were all fairly minor and resolved after a brief duration. Dr. Krag also noted that the Claimant had a gradual increase in soreness due to increased physical activity and a severe “flare-up” on June 20, 2005.
13. Dr. Krag’s July 11, 2005 note characterizes Claimant’s symptoms as low back pain, lower limb pain and dysethesias. He then notes, “these [symptoms] are a result of the 5/30/02 injury which resulted in disc herniation, which has resulted in the changes leading to the current situation.”
14. The Claimant is taken out of work retroactively from June 20, 2005 through August 22, 2005.
15. Because the Claimant’s symptoms continued without relief, Dr. Krag performed the surgery discussed in April 2003.
16. After examining the Claimant’s medical records, Defendant Guardian Fund’s medical expert Dr. Kenosh wrote that he was not convinced that the changes seen on MRIs after the 2002 discectomy are related to anything other than postoperative changes or changes due to the normal aging process. Dr. Kenosh also found that the December 20, 2005 surgery was not medically necessary.
17. In a February 2, 2006 letter to the Department, Dr. Krag wrote that the May 30, 2002 injury caused a left L5-S1 disk herniation and related symptoms, and the resulting degeneration lead to the fusion surgery on December 20, 2002.
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DISSCUSSION:
Summary judgment will be granted if the moving party can show that there is no genuine issue as to any material fact, and that any party is entitled to judgment as a matter of law. V.R.C.P. 56. (c)(3); Robertson v. Mylan Laboratories, Inc. 176 Vt. 356, 362 (2004) (citing White v. Quechee Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999)). The facts are viewed in the light most favorable to the opposing party. State v. G.S. Blodgett Co., 163 Vt. 175, 180 (1995)(citing Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 158-59 (1992)). However, to survive the summary judgment motion, the nonmoving party must respond with specific facts that raise a genuine issue of material fact. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
“[W]here both parties have moved for summary judgment, each is entitled to the benefits of all reasonable doubts and inferences in determining whether a genuine issue of material fact exists when the opposing party’s motion is being judged.” Payne v. Mount Mansfield Co., Opinion No. 47SJ-02WC (2002) (citing Toy, Inc. v. F.M. Burlington Co., 155 Vt. 44, 48 (1990)).
Causation
In workers’ compensation cases involving successive injuries during different employments, the first employer remains liable for the full extent of benefits if the second injury is solely a “recurrence” of the first injury– i.e., if the second accident did not causally contribute to the claimant’s disability. Pacher v. Fairdale Farms, 166 Vt. 626, 627(1997). (citing Mendoza v. Omaha Meat Processors, 225 Neb. 771(1987); In re Dundon, 86 Or.App.(1987)). If, however, the second incident aggravated, accelerated, or combined with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, the second incident is an “aggravation,” and the second employer becomes solely responsible for the entire disability at that point. Id. at 627-28. (citing Port of Portland v. Director, Office of Workers Compensation Programs, 932 F.2d 836 (9th Cir.1991); In re Dundon, 739 P.2d at 1070; see Jackson v. True Temper Corp., 151 Vt. 592, 595-96 (1989)Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35-36 (1980)).
In workers’ compensation cases, where the causal connection between an accident and an injury is obscure and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
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Even after giving Defendant Guaranty Fund the benefit of all reasonable doubts and inferences, there remains no genuine issue of material fact to support a causal connection between the August 2003 back injury suffered by the Claimant and the December 20, 2005 back surgery for the following reasons. First, Dr. Krag, the surgeon who performed the 2005 fusion surgery, has repeatedly stated that the May 30, 2002 injury created the need for that surgery. In fact, he recommended that the Claimant have the procedure before the August 2003 injury occurred. As such, it is difficult to understand how further discovery could produce specific facts indicating how the August 2003 injury created the need for a surgery recommended four months earlier. See A.E. v. Harvey Industries, Inc., Opinion No. 25-06WC (2006). Second, even if the Department were to accept Dr. Kenosh’s opinion that the 2005 surgery was not medically necessary, this still does not create a genuine issue of material fact that could show a causal connection between the August 2003 injury and the 2005 surgery.
However, a genuine issue of material fact exists with respect to the existence of a causal link between the May 2002 injury and the December 2005 surgery. First, the Claimant’s medical records consistently list the 2002 injury as the source of the Claimant’s resultant back problems, including any “flare ups” including the August 2003 injury at issue. Second, Dr. Krag states that the degenerative changes suffered by the Claimant were a result of the 2002 injury, rather than the normal aging process or the prior back surgery as suggested by Dr. Kenosh. The level of complexity involved in this dispute creates a genuine issue requiring additional discovery and an opportunity to present medical evidence to the fact finder for a determination.
Reasonableness
In determining what is reasonable pursuant to 21 V.S.A. § 640(a), the decisive factor is not what the claimant desires or what he believes to be most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s symptoms and maintain his functional abilities. W.P. Madonna Corp., Opinion No. 18-06WC (2006). (citing Quinn v. Emery World Wide, Opinion No. 29-00WC (2000)).
A genuine issue of material fact exists regarding the reasonableness of the 2005 surgery. Guaranty Fund’s medical expert has stated that the surgery was not medically necessary. By contrast, the Claimant’s surgeon maintains that that the procedure was reasonable and appropriate treatment for the Claimant’s condition. Consequently, this complex medical dispute also raises a genuine issue of material fact to be determined by the fact finder.
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CONCLUSION:
The Defendant Massamont has successfully shown that no genuine issue of material fact exists to show a causal connection between the August 2003 injury and the December 2005 fusion surgery; therefore, the Defendant’s motion for summary judgment is GRANTED.
The Defendant Guaranty Fund failed to meet its burden of proof under V.R.C.P. 56(c); therefore, its motion for summary judgment is DENIED.
Dated at Montpelier, Vermont this 13th day of December 2006.
______________________________
Patricia Moulton Powden
Commissioner

R. S. v. Burlington Electric Dept. (September 21, 2006)

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R. S. v. Burlington Electric Dept. (September 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 39-06WC
R. S. By: Margaret A. Mangan
Hearing Officer
v.
For: Patricia Moulton Powden
Burlington Electric Department Commissioner
State File No. W-05113
RULING ON DEFENSE MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Frank E. Talbottt, Esq. for the Claimant
William J. Blake, Esq. for Guaranty Fund Management
Robert G. Cain, Esq. for CNA Insurance Company
Richard R. Hennessey, Esq. for National Union Fire Insurance
Eric A. Johnson, Esq. for The Hartford
John T, Leddy, Esq. for Vermont League of Cities and Towns
Corina Schaffner-Fegard, Esq. for Insurance Company of North America
ISSUE:
Should Defendant/Employer, Burlington Electric Department, be granted summary judgment on liability for an injury to Claimant on the basis of a statute of limitations defense?
UNCONTESTED FACTS:
1. Claimant began working for the Burlington Electrical Department (BED) on January 19, 1969 at first as a welder and later as mechanic 1st class and certified welder Class 15A. In 1982 he was promoted to Chief Mechanic.
2. Claimant installed and removed asbestos from pipes and packed loose asbestos directly onto pipes without adequate respiratory protection. Exposure was a regular occurrence at the Moran Generating Plant.
3. Claimant was transferred from the Moran Plant to the McNeil plant in 1984 or 1985, around the time the Moran Plant was closed.
4. Claimant retired from Burlington Electric in 1995. Prior to his retirement he was not disabled from working because of any asbestos-related condition.
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5. Claimant was diagnosed in June of 2004 with pleurisy, emphysema and bronchiectasis caused by direct exposure to asbestos.
6. Claimant seeks medical costs for the treatment of his lung conditions.
7. As listed above, several insurers provided workers’ compensation coverage to Burlington Electric during the time Claimant worked there.
STANDARD:
Defendant insurers argue that the Occupational Disease Act bars this claim. See 21 V.S.A. §1006(a)(1987) (repealed by 1999, No.41, §8(a)(1)). In response, Claimant argues that he filed a timely claim under the Workers’ Compensation Act. § 660(b).
Summary judgment is appropriate where there is no dispute of material fact and a party is entitled to judgment as a matter of law. V.C.R.P 56(c)(3); Robertson v. Mylan Laboratories, Inc., 176 Vt. 356, 362 (2004) (citing White v. Quechee Lakes Landowners’ Ass’n., 170 Vt. 25, 28 (1999)). In this case, when evaluating the merits of the motions for summary judgment, the defense has the burden of proof, and the Claimant must be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue of material fact exists. Miller v. Town of West Windsor, 167 Vt. 588, 589 (1987). Any allegations to the contrary must be supported by specific facts sufficient to create a genuine issue of material fact. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). A judgment on the pleadings is appropriate if the pleadings contain no allegations that, if proven, would permit recovery. See Hinsdale v. Sherman, 171 Vt. 605, 606 (2000).
Giving the Claimant the benefit of all reasonable doubts and inferences leads to the conclusion that his pulmonary condition resulted from his work-related exposure to asbestos and is an “occupational disease” under Vermont’s Occupational Disease Act (“ODA”). The Vermont Supreme Court citing the ODA defines an occupational disease as:
a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment, and to which an employee is not ordinarily subjected or exposed outside of or away from his employment, and which arises out of an in the course of such employment.
Campbell v. Savelberg, 139 Vt. 31 (1980).
Claimant’s condition is occupational because he was exposed to asbestos in his particular trade, he would not have been exposed otherwise, and his diseases are caused by exposure to asbestos. Thus, Claimant’s claim falls under the ODA rather than worker’s compensation.
Effective July 1, 1999, the Legislature repealed the ODA, replacing it with a new statutory scheme under 21 V.S.A. § 660(b). The ODA contained a statute of repose which read: “Compensation shall not be payable for disablement by reason of occupational disease unless such disablement results within five years after the last injurious exposure to such disease in the employment….” §1006(a) (repealed). The applicable statute of limitations under 21 V.S.A.
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§660(b) states: “A claim for occupation disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent.”
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The statute of limitations that applies to a particular cause of action is generally the one in effect when the cause of action accrued. Cavanaugh v. Abbott Labs., 145 Vt. 516, 521 (1985). Claimant’s cause of action began to accrue for asbestos-related pulmonary disease, an occupational disease as defined by 21 V.S.A. § 1002, on the last day of injurious exposure. Claimant admits his last day of injurious exposure was in 1984 or 1985, thus, his five-year limitation period elapsed in 1990—well before the legislature repealed the ODA in 1999 and before Claimant’s diagnosis in August 2004.
Although the legislature limited availability of the remedy to workers’ compensation claimants when it issued the non-retroactive statute repealing the ODA. 21 V.S.A. §660(b); the legislature did not interfere with a vested right of claimant, and thus, there was no constitutional deprivation or right to redress when occupational disease claim was found to be barred by ODA’s limitations period. Carter v. Fred’s Plumbing and Heating, Inc., 174 Vt. 572, 575 (2002).
DISCUSSION:
Claimant argues that this is a workers’ compensation claim, not an occupational disease claim, because he was never “disabled” during the time the ODA was in effect. Consequently, he argues that his injury did not occur until the 2004 diagnosis. Since his claim was filed that year, he contends it is timely.
The Defense, by and through its attorneys, moves for summary judgment as a matter of law on the issue whether this claim is timely. It argues that this claim falls outside the five-year statute of limitations provided in 21 V.S.A § 1006(a), which was in effect at the time of Claimant’s last injurious exposure. In support of its argument Defendants cite to the uncontested fact that Claimant’s last alleged injurious exposure to asbestos occurred in 1984 or 1985—well before July 1, 1999 when the ODA was repealed. I agree.
Here, Claimant is in the same position as claimants in Carter v. Fred’s Plumbing and Heating, Inc., 174 Vt. 572 (2002) and in Sheltra v. Vt. Asbestos Group, 175 Vt. 499 (2003), where claims were time-barred under 21 V.S.A. § 1006(a) because, in both cases, claimants’ causes of action had expired under the ODA’s statute of repose before the effective date of the new statute, 21 V.S.A. §660(b). Like Carter, whose last injurious exposure was in 1981, and Sheltra, whose last injurious exposure was in February 1994, the present Claimant’s last injurious exposure was in 1984 or 1985, thus, in Carter, Sheltra, and here as well, five years has elapsed before July 1, 1999, when §1006(b) was repealed and § 660(b) became effective. The Court in Carter determined that the Legislature did not intend that the new state of limitations in §660(b) apply retroactively to save causes of action that had already expired. Id. at 575.
Under this clearly binding precedent, Claimant’s argument that no injury occurred until the diagnosis cannot be accepted. Carter, 174 Vt. 572. “Unfortunately for plaintiff, the line was drawn in a manner that does not afford him relief. Id. at 575.
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ORDER:
Therefore, Defendant’s motions for summary judgment are GRANTED.
Dated at Montpelier, Vermont this 21st day of September 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.

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

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

M. B. v. Safety-Kleen (October 22, 2007)

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M. B. v. Safety-Kleen (October 22, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. B. Opinion No. 28-07WC
By: George K. Belcher
v. Hearing Officer
Safety-Kleen For: Patricia Moulton Powden
Commissioner
State File No. T-19416
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
RULING ON DEFENDANT’S MOTION FOR PERMISSION TO TAKE INTERLOCUTORY APPEAL
Defendant seeks to take an interlocutory appeal from the Department’s denial of Defendant’s Motion for Summary Judgment. By order dated August 27, 2007 the Department denied Defendant’s Motion for Summary Judgment, ruling that the legal issues of claim preclusion and prohibitions against advisory opinions were not dispositive of this claim. The Department determined that a hearing was required.
Under V.R.A.P. 5(b)(1), “[u]pon motion of any party … the Presiding Judge … shall permit an appeal to be taken from an interlocutory order or ruling if the judge finds that the order or ruling involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation.” An interlocutory appeal is the exception to normal appellate jurisdiction. The policy against piecemeal review of any matter is strong and consistent. In re Hill, 149 Vt. 86 (1987). Appeals, which occur after establishment of the facts by an evidentiary hearing and a final judgment, allow the appellate court to review a complete record. In contrast, an interlocutory appeal creates piecemeal litigation, delay and expense. In Re Pyramid Co., 141 294, 300 (1982). Permission for such appeal is reserved for a narrow class of cases such as Dodge v. Precission Construction Products, Opinion No. 38A-01 (October 30, 2001) (where controlling issue was whether a claim survived the death of the employee) or Austin v. Central Vermont Home Health and Hospice, Opinion No. 32-02 WC (July 25, 2002) (concerning the burden of proof and the legal standard in workers’ compensation claims of employee suicide).
Three criteria must be satisfied before permission to proceed with an interlocutory appeal will be granted: (1) the issue must involve a controlling question of law; (2) there must be substantial grounds for difference of opinions as to the correctness of the order; and (3) and an interlocutory appeal should materially advance the termination of litigation. In re Pyramid Co., supra., at 301; K.T. v. Specialty Paperboard, Opinion No. 33A-05 (August 18, 2005).
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The Defendant has most clearly failed to satisfy the second and third criteria. The Defendant cited no cases as authority from Vermont or from any other jurisdiction in the workers’ compensation context to support its arguments of claim preclusion or advisory opinions. Existing authority on this issue was heavily weighted in favor of the Claimant’s legal position that the common law doctrine of res judicata did not bar a workers’ compensation claimant from pursuing claims as they ripened. Likewise, there was no authority cited by the Defendant which would equate Workers Compensation Rule 40 (prohibiting ordered pre-payment of medical bills before the treatment is rendered) to a prohibition against legal determinations of compensability.
The third criteria concerns finality. In this case there are many facts which require clarity before the trier of fact can apply the law. For example, it is unclear whether the Claimant can establish causation and whether he needs treatment. Even if he does not need medical treatment, he might still be disabled, totally or partially. Without the facts being established, a legal determination will be difficult. More importantly, a legal determination on speculative facts will not be final, since other facts might generate other claims. It is unlikely in this case at this time that an interlocutory appeal will materially advance the termination of litigation.
ORDER:
Based on the foregoing, the Defendant’s Motion for Permission to File Interlocutory Appeal is DENIED.
Dated at Montpelier, Vermont this 22nd day of October 2007.
________________________
Patricia Moulton Powden
Commissioner

Benjamin Bacon v. Gerald E Morrissey Inc (October 12, 2011)

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Benjamin Bacon v. Gerald E Morrissey Inc (October 12, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Benjamin Bacon Opinion No. 32-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Gerald E. Morrissey, Inc.
For: Anne M. Noonan
Commissioner
State File No. 83-20669
RULING ON DEFENDANT’S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
This claim has a long and convoluted history. Claimant originally was injured in 1981 when a wooden plank fell from some scaffolding and hit him on the head. In 1983 he began exhibiting symptoms indicative of a possible seizure disorder, which he contended were causally related to his 1981 injury. Following a formal hearing in 1985, the Commissioner determined that Claimant likely was suffering from post-concussive syndrome. Defendant was ordered to pay both medical and indemnity benefits causally related to that condition. Bacon v. Gerald E. Morrissey, Opinion No. 6-85WC (July 26, 1985).
Claimant has continued to treat for seizure-like episodes since 1983, and at various times has sought additional workers’ compensation benefits referable to them. In December 2002 he claimed entitlement to temporary total disability benefits on the grounds that his condition was precluding him from continuing to work as a self-employed carpenter. He also claimed entitlement to medical benefits for treatment of liver damage that he alleged had resulted from his use of Tegretol, a seizure control medication, from the mid-1980’s until 1990. Last, he claimed that Defendant had failed to pay various medical bills.
Despite prodding from both the Department and Defendant, Claimant repeatedly failed to produce the evidence necessary to support his claims for additional benefits. Time and again, he was advised to produce income tax records documenting his wages for the twelve weeks preceding his alleged disability, but did not do so. He ignored repeated requests from Defendant to schedule his deposition. He failed to sign and return a medical authorization so that Defendant could obtain and review his pertinent records. As a consequence of these repeated failures, in August 2006 the Department cancelled the formal hearing that had been scheduled on the merits of his claim.
Claimant resurrected his claim in early 2010. He now seeks essentially the same benefits to which he claimed entitlement in 2002: (1) temporary total disability benefits for an eighteen-month period from April 2002 through October 2003 during which he claims his seizure disorder precluded him from working; and (2) medical benefits for evaluation and treatment of liver damage allegedly caused by his use of Tegretol.
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To his credit, Claimant has been more responsive to Defendant’s discovery requests this time through the process than he was previously. He appeared for his deposition, signed a medical authorization and produced his income tax records for 2001 and 2002. Unfortunately, the evidence he has produced is insufficient to support his claims. Specifically:
• Claimant has failed to show that he earned any wages during the twelve weeks prior to April 2002, the date on which he claims his work-related disability began. To the contrary, records obtained from the Internal Revenue Service document that he did not file tax returns in either 2001 or 2002, presumably because he had no income to report for those years.
• Claimant has failed to produce any medical evidence establishing a causal link between his use of Tegretol some twenty years ago and his current liver dysfunction. Indeed, the Department’s file contains no medical records at all relating to this condition.
As to the first issue, it is a necessary prerequisite to any claim for wage replacement benefits that there be previously earned wages to replace. D.G. v. Verizon, Opinion No. 72-05WC (December 30, 2005); Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC (May 24, 1995). With no earned wages for at least fifteen months prior to Claimant’s claimed period of disability, his claim for temporary total disability benefits must fail as a matter of law. See V.R.C.P. 56(c); Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996) (summary judgment appropriate where no genuine issues of material fact exist); State v. Heritage Realty of Vermont, 137 Vt. 425, 428-29 (1979) (summary judgment appropriate where facts involved in a determinative issue of law are clear, undisputed or unrefuted).
As to the second issue, it is Claimant’s burden to prove the causal connection between his work injury and any medical consequences that flow from it subsequently. Competent medical evidence is required to establish the link to the required degree of medical certainty. Lapan v. Berno’s Inc., 137 Vt. 393, 395 (1979); Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 103 (1964). No such evidence has yet been presented here.
Claimant has had many years within which to develop the evidence necessary to prove his claim for benefits referable to his liver condition, but has failed to do so. More than twenty years have now passed since he last took Tegretol and was first diagnosed with liver dysfunction. Given the passage of time, even were Claimant to produce evidence in support of his position at this point, Defendant’s ability to investigate and develop its own evidence would be severely compromised.
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The Department has in the past exercised its discretion to dismiss a claim with prejudice when a claimant fails to pursue it in a timely manner. See, e.g.,Holmes v. Northeast Tool, Opinion No. 26-05WC (April 27, 2005); Dawson v. Price Chopper, Opinion No. 20-96WC (April 29, 1996); Cox v. Staffing Network, Opinion No. 9-95WC (April 20, 1995). I find that to be the case here. On those grounds, it is appropriate to dismiss with prejudice Claimant’s claim for medical benefits referable to the liver damage allegedly caused by his use of Tegretol.1
ORDER:
As to Claimant’s claim for temporary total disability benefits for the period from April 2002 through October 2003, Defendant’s Motion for Summary Judgment is hereby GRANTED.
Claimant’s claim for workers’ compensation benefits referable to his liver dysfunction is hereby DISMISSED WITH PREJUDICE.
DATED at Montpelier, Vermont this 12th day of October 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 It is unclear whether any medical bills related to Claimant’s 1981 injury remain unpaid other than those relating to his liver condition. Certainly Claimant has not produced any, and the time has now long since passed for him to do so. It is appropriate to dismiss this claim with prejudice as well, therefore.

Timothy Birchmore v. The McKernon Group (November 28, 2011)

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Timothy Birchmore v. The McKernon Group (November 28, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Timothy Birchmore Opinion No. 40-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The McKernon Group
For: Anne M. Noonan
Commissioner
State File No. Y-62516
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Timothy Birchmore, pro se
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to a July 1, 2010 cost of living adjustment for temporary total disability benefits that were reinstated effective January 6, 2011?
FINDINGS OF FACT:
The following facts are undisputed:
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. As a result of a compensable work-related accident that occurred on or about March 15, 2007 Claimant suffered a collapsed lung, fractured ribs and fractured vertebra.
3. As a consequence of Claimant’s injuries, Defendant paid medical, temporary total and/or temporary partial disability benefits from March 15, 2007 through January 30, 2010.
4. On February 23, 2010 Defendant paid Claimant permanent partial disability benefits referable to his compensable injuries in a lump sum.
5. Claimant had returned to work and was not receiving workers’ compensation disability benefits as of July 1, 2010.
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6. On January 6, 2011 Claimant again began receiving temporary total disability benefits causally related to his compensable 2007 injury.
7. Defendant did not apply the July 1, 2010 cost of living adjustment to the temporary total disability benefits it began paying on January 6, 2011 on the grounds that Claimant had not been out of work on July 1, 2010.
8. Following an informal conference on August 11, 2011 the Department’s Workers’ Compensation Specialist advised that Defendant must apply the July 1, 2010 cost of living adjustment to Claimant’s reinstated temporary total disability benefits.
9. Claimant since has advised the Department that he does not wish to participate actively in the formal hearing process, and instead will await the Commissioner’s final determination on the issue.
DISCUSSION:
1. Defendant presents a purely legal issue for determination – whether a worker who is not receiving disability benefits on July 1st is entitled to a cost of living adjustment for that year when such benefits subsequently are reinstated. As the material facts are not disputed, summary judgment is an appropriate vehicle for resolving this issue. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996).
2. Vermont’s Workers’ Compensation statute, 21 V.S.A. §650(d), specifically mandates that the compensation rate at which disability benefits are paid be adjusted annually, as follows:
Compensation computed pursuant to [§650] 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 injury.
3. Workers’ Compensation Rule 16.2000 provides further guidance:
Pursuant to 21 V.S.A. §650(d), annually on or before July 1 the commissioner shall announce the annual change in compensation rate and new minimum and maximum rates for the coming fiscal year. Any claimant receiving temporary total, temporary partial, permanent total or permanent partial disability compensation on July 1 shall be entitled to an increase in his or her compensation rate in accordance therewith . . . . (Emphasis added).
4. The plain language of Rule 16.2000 thus mandates that only those claimants who are receiving disability benefits on July 1st are entitled to a cost of living adjustment for that year. Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004), cited with approval in V.S. v. Kennametal, Opinion No. 19-07WC (August 2, 2007).
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5. As Claimant was not receiving any disability benefits on July 1, 2010 he was not entitled to a cost of living adjustment when benefits subsequently were reinstated on January 6, 2011.
ORDER:
Defendant’s Motion for Summary Judgment is GRANTED.
DATED at Montpelier, Vermont this 28th day of November 2011.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Johanna Donovan v. AMN Healthcare (May 26, 2011)

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Johanna Donovan v. AMN Healthcare (May 26, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Johanna Donovan Opinion No. 12-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
AMN Healthcare
For: Anne M. Noonan
Commissioner
State File No. Z-57862
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
David Mickenberg, Esq. for Claimant
William Blake, Esq. for Defendant
ISSUE:
Is it appropriate to include Claimant’s monthly housing allowance in calculating her average weekly wage and compensation rate for permanent partial disability benefits?
FINDINGS OF FACT:
The following facts are not disputed:
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. On November 23, 2007 Claimant injured her neck and back in the course and scope of her employment for Defendant. Defendant accepted her injury as compensable and paid medical benefits accordingly.
3. Claimant did not lose any time from work as a consequence of her injury and therefore no temporary disability benefits were paid.
4. The parties agree that as a consequence of her injury Claimant suffered a 6 percent whole person permanent impairment referable to her spine. This represents a compromise between Dr. Johansson’s 5 percent impairment rating and Dr. Bucksbaum’s 7 percent rating.
5. Claimant’s average weekly wage for the twelve weeks preceding her injury was $1,102.72. In addition, she received a housing allowance of $1,800.00 per month.
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DISCUSSION:
1. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). The nonmoving party is entitled to all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 242 (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. The disputed issue here is whether Claimant’s monthly housing allowance should be included in calculating her average weekly wage for the purposes of determining her compensation rate for permanent partial disability benefits. Claimant argues that it should. Defendant asserts that because Claimant never was deprived of her housing allowance, to include it in her compensation rate would result in an inappropriate windfall.
3. Vermont’s workers’ compensation statute differentiates between two general types of compensable wage loss – temporary and permanent. Bishop v. Town of Barre, 140 Vt. 564 (1982); Orvis v. Hutchins, 123 Vt. 18, 22 (1962). Temporary disability benefits compensate an injured worker for his or her “temporary incapacity during the healing period.” Orvis, supra at 22. Their purpose is to replace the worker’s present loss of earning power, if any, during the period between the injury and final recovery. Bishop, supra at 571.
4. Permanent disability benefits compensate for a different time frame – the future, not the present. Permanency benefits are calculated solely on the basis of physical impairment, and are paid regardless of whether the injured worker’s present earning power has diminished in any way as a result of the injury. Bishop, supra. Rather, the injury’s effect on the worker’s future earning capacity is conclusively presumed. Id. at 573; Orvis, supra at 22.
5. The statute provides the same mechanism for calculating the compensation rate for both temporary total and permanent partial disability benefits – sixty-six and two-thirds percent of the injured worker’s average weekly wage for the twelve weeks preceding his or her injury. 21 V.S.A. §650(a).1
6. The statute also defines what constitutes “wages” for the purposes of calculating a claimant’s compensation rate. The term specifically includes “the market value of board [and] lodging . . . which the employee receives from the employer as a part of his remuneration . . . .” 21 V.S.A. §601(13).
1 Section 650(a) has since been amended, and now requires that the average weekly wage calculation be based on the claimant’s earnings for the 26 weeks preceding his or her injury. The amendment did not become effective until after the current claim arose.
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7. Although the statute does not distinguish between calculating the compensation rate for temporary as opposed to permanent disability benefits, the workers’ compensation rules do. Rule 15.4130 provides generally that the fair market value of any room or board provided to the claimant by the employer is includable in the average weekly wage and compensation rate calculation. However, it then notes the following exception:
If the claimant continues to receive any of these benefits [including room or board] during the period of temporary total disability, the value of that benefit shall not be included in calculating the compensation rate.
8. This exception is in keeping with the statutory distinction between temporary and permanent disability benefits. A claimant who continues to receive room and board from the employer even during a period of temporary total disability has not suffered any present loss of that element of his or her wages. At least in that regard, therefore, there is nothing yet to replace.
9. When it comes to permanency, however, it is no longer relevant whether the claimant did or did not continue to receive room and board during the healing period. Rather, his or her future wage loss is conclusively presumed. Bishop, supra. The value of room and board being an appropriate component of the worker’s pre-injury wages, it must now be factored into the compensation rate calculation.
10. Defendant cites to Laumann v. Department of Public Safety, 2004 VT 60, in support of its argument that factoring the housing allowance into the calculation of Claimant’s compensation rate for permanency benefits will result in an impermissible windfall to her. The circumstances of that case are distinguishable from those presented here.
11. In Laumann, the Supreme Court considered whether it was appropriate to apply cost of living adjustments to the claimants’ permanency awards for periods during which they already had returned to work. The Court noted the legislature’s intent to connect permanency compensation “to wages and annual adjustments that would have been due while the claimant was injured.” Id. at ¶14. Once the claimants returned to work, however, they received both their salaries and whatever annual adjustments their employers paid thereafter. They were not deprived of any cost of living increases, and therefore to add an additional cost of living adjustment, covering those same periods, to their permanency awards would have resulted in a double benefit. Id. at ¶15.
12. A cost of living adjustment is the statute’s way of ensuring that an injured worker’s compensation rate keeps pace with the wage increases that the employer presumably would have paid following the injury. 21 V.S.A. §650(d). In contrast, a housing allowance is an element of wages actually paid as a part of the employee’s remuneration. 21 V.S.A. §601(13). The two are qualitatively different, and therefore merit different treatment.
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13. I conclude that it is appropriate to include Claimant’s housing allowance in calculating her average weekly wage for the purposes of determining her compensation rate for permanent partial disability benefits. Excluding the allowance would artificially deflate the total amount of Claimant’s presumed loss of future earning power, and thus impermissibly diminish the value of her permanency award.
ORDER:
Defendant’s Motion for Summary Judgment is hereby DENIED. Claimant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s average weekly wage for the purposes of determining her compensation rate for permanent partial disability benefits shall include the monthly housing allowances she received during the 12 weeks preceding her injury.
DATED at Montpelier, Vermont this 26th 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.

Leslie Richardson v. Regular Veteran’s Association Post #514 (February 16, 2011)

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Leslie Richardson v. Regular Veteran’s Association Post #514 (February 16, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Leslie Richardson Opinion No. 04-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Regular Veteran’s Association
Post #514 For: Anne M. Noonan
Commissioner
State File No. G-14847
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ATTORNEYS:
Thomas Nuovo, Esq., for Claimant
Jennifer Moore, Esq., for Defendant
ISSUE PRESENTED:
Do Claimant’s claims for permanent partial disability benefits referable to her left leg, lumbar spine and/or left hip survive her death with no dependents and for reasons unrelated to her work injury?
FINDINGS OF FACT:
The following facts are undisputed:
1. On October 8, 1993 Claimant injured her left ankle when she slipped and fell while at work for Defendant. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly.
2. Although initially the injury was thought to be relatively minor, Claimant suffered severe complications, including deep vein thrombosis in her left calf and recurrent bone infections in her tibia. Over the course of several years she underwent numerous surgeries in an attempt to address these issues. Claimant ambulated with crutches during much of this time.
3. As a consequence of her leg injury and its resulting complications, Claimant developed lower back pain. In January 2004 she underwent L4-5 fusion surgery. Defendant accepted both the lower back condition and the surgery as causally related to the original injury and therefore compensable.
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4. In 2005 Claimant was diagnosed with avascular necrosis in her left hip. As treatment, she underwent a left total hip replacement in 2006. Defendant disputed its responsibility for this condition, but the Commissioner ruled that it was causally related to the original 1993 injury and therefore compensable. Richardson v. Regular Veteran’s Association Post No. 514, Opinion No. 31-06WC (July 24, 2006). On appeal, both the Chittenden Superior Court and the Vermont Supreme Court affirmed. Richardson v. Regular Veteran’s Ass’n Post No. 514, 987 A.2d 336 (Vt. 2009).
5. On June 25, 2007 Defendant’s independent medical evaluator, Dr. Johansson, determined that Claimant had reached an end medical result for her left leg, lower back and left hip injuries. Dr. Johansson rated Claimant with a 14% whole person permanent impairment referable to her leg. Subsequently, on March 20, 2008 Dr. Johansson assessed Claimant with an additional 25% whole person permanent impairment referable to her lumbar spine. Dr. Johansson did not rate the permanent impairment referable to Claimant’s left hip injury.
6. On August 7, 2008 Defendant’s second independent medical evaluator, Dr. Gennaro, rated Claimant with a 10% permanent impairment referable to her left hip.
7. In January 2009 Claimant underwent a second lumbar fusion surgery to address significant disc degeneration at L3-4, the level adjacent to her prior fusion in 2004. Defendant accepted the compensability of this condition as causally related to the original 1993 injury.
8. Claimant died on December 23, 2009 from causes unrelated to her work injury. At the time of her death she had not yet reached an end medical result following her January 2009 fusion surgery. Claimant left no surviving dependents.
9. Defendant paid Claimant weekly temporary total disability benefits from October 24, 1993 through October 19, 2007. On that date, the Department approved its discontinuance on the grounds that Claimant had reached an end medical result as determined by Dr. Johansson. Subsequently, from October 21, 2007 until January 11, 2009 (a total of 64 weeks), Defendant paid permanent partial disability benefits. Following Claimant’s second fusion surgery, beginning on January 11, 2009 Defendant reinstated weekly temporary total disability payments. These continued until the time of Claimant’s death.
10. Almost a year after Defendant began paying permanency benefits, in July 2008 Claimant filed a Notice and Application for Hearing in which she disputed Defendant’s end medical result determination as to her lower back condition. Claimant requested that all permanency benefits paid from October 21, 2007 forward be re-characterized as temporary total disability benefits instead. This issue remained unresolved at the time of Claimant’s death.
11. Claimant never requested, and the Department never approved, payment of any portion of her permanency compensation in a lump sum, as permitted by 21 V.S.A. §652(b).
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DISCUSSION:
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. At issue here is the proper application of Vermont’s workers’ compensation survival statute, 21 V.S.A. §639. Claimant’s estate claims entitlement to permanent partial disability benefits, in amounts to be determined,1 for all of the injuries Claimant sustained as a result of her 1993 work-related accident. Defendant argues that at the time of her death Claimant had been paid all of the benefits that had accrued during her lifetime. Having already paid the funeral expenses mandated by §639, Defendant asserts that it owes nothing more to her estate.
3. Section 639 reads as follows:
In cases of the death of a person from any cause other than the accident during the period of payments for disability or for the permanent injury, the remaining payments for disability then due or for the permanent injury shall be made to the person’s dependents according to the provisions of sections 635 and 636 of this title, or if there are none, the remaining amount due, but not exceeding $5,500.00 for burial and funeral expenses . . . , shall be paid in a lump sum to the proper person.
4. The Vermont Supreme Court has specifically interpreted this statute. In Dodge v. Precision Construction Products, Inc., 2003 VT 11, the Court considered a claim for workers’ compensation benefits made by the estate of a claimant who, as is the case here, died without dependents and for reasons unrelated to his work injury. Unlike the situation here, however, the claimant in Dodge had never received any benefits – his claim had been disputed and the Department had not yet adjudicated its compensability at the time of his death. The employer argued that absent such a determination, there were neither any “payments” nor any “remaining amount due” on the day the claimant died, and thus §639 did not apply.
1 Claimant has reserved her right to challenge both Dr. Johansson’s and Dr. Gennaro’s permanent impairment ratings, as well as the compensation rate for any permanency benefits paid to date, if the pending cross motions for summary judgment are decided in her favor.
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5. The Court held otherwise. With reference to Vermont’s general survival statute, 14 V.S.A. §1451, it determined that even in death the claimant had a right to have his claim adjudicated. If his claim was found compensable, the Court ruled, his administrators would be entitled to whatever benefit payments he would have received “from the date of eligibility until the date of his death, as well as payments under 21 V.S.A. §639.” Id. at ¶26. In reaching this result, the Court thus distinguished between benefits that already had accrued while the claimant was living and those that he would have received in the future had he not died. The former constitute “an asset of the estate, like any other debt,” Id. at ¶21, quoting 4 Larson’s Workers’ Compensation Law §89.02, and thus exist outside of §639. If the claimant dies without dependents, the latter are capped by the statute’s reference to funeral and burial expenses. Id. at ¶15.
6. Applying the Court’s determination in Dodge to the present case, the challenge is to determine which, if any, of the permanency benefits referable to Claimant’s various injuries already had accrued while she was still living. The answer lies in recognizing the point at which an injured worker’s entitlement to such benefits arises.
7. While it is true that an injured worker’s right to compensation is acquired at the time he or she suffers a work-related injury, Sanz v. Douglas Collins Construction, 2006 VT 102, the right to specific benefits may not accrue until some time thereafter. Id.; Kraby v. Vermont Telephone Co., 2004 VT 120. This distinction is particularly germane to permanency benefits. Not every compensable injury causes permanent impairment. Until the medical recovery process concludes there is no way to know whether the injury might fully resolve, and therefore no basis for determining whether the injured worker will even be entitled to permanency compensation. With that in mind, a cause of action for permanency benefits does not accrue until the injured worker reaches an end medical result. Kraby, id. at ¶6; Longe v. Boise Cascade Corp., 171 Vt. 214, 222 (2000); Hoisington v. Ingersoll Electric, Opinion No. 52-09WC (December 28, 2009).
8. Here, the undisputed evidence establishes that Claimant reached an end medical result, at least as to her compensable leg and hip injuries, on June 25, 2007. Her entitlement to permanency benefits for those conditions accrued and became payable as of that date. They therefore survive as an asset of her estate and are not limited in any way by §639.
9. The permanency benefits referable to Claimant’s lower back injury stand on a different footing, however. Although she had been determined, at least according to Defendant’s medical expert, to be at end medical result with a ratable permanency following her first lumbar fusion surgery in 2004, even Defendant acknowledged that her status changed when she underwent her second fusion surgery in January 2009. At that point, Defendant appropriately reinstated weekly temporary disability benefits, and these continued until Claimant’s death eleven months later. Claimant never again reached an end medical result, and the additional permanency, if any, attributable to her second fusion was never rated.
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10. These circumstances give rise to two separate determinations as whether the permanency benefits referable to Claimant’s lumbar spine injury survive her death. The first relates to whether any permanency benefits accrued after Claimant’s first fusion surgery. The second relates to whether any additional benefits accrued after her second surgery.
11. The facts relating to the second question are undisputed, and therefore that issue is appropriate for resolution by way of summary judgment. Because Claimant never reached an end medical result following her second fusion surgery, her entitlement to whatever permanency benefits might have been attributable to her lumbar spine injury as it existed after January 2009 never accrued. Assuming that the evidence now available can establish that Claimant would have received those benefits had she lived, they will survive her death only to the extent provided by §639.
12. The facts relevant to determining the first question, however, are not as clear and therefore I cannot assume that they are undisputed. Resolving the issue of whether the permanency attributable to Claimant’s lumbar spine following her first fusion surgery survives her death requires a determination whether she did or did not reach an end medical result at any point prior to her second surgery.
13. “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.
14. In most cases an injured worker only attains the point of end medical result once – he or she reaches a plateau following treatment and does not treat or become disabled again. Occasionally, however, after initially reaching a plateau a claimant’s condition may worsen to the point where further treatment becomes necessary and additional permanent impairment results. Rather than negating the original determination of end medical result, the renewed treatment in such cases culminates in a second, separate end medical result determination. See 21 V.S.A. §650(c) (providing for temporary disability compensation to be paid for separate intervals of disability) and 21 V.S.A. §668 (providing for compensation to be increased “upon the ground of a change in the conditions” since the time of a previous award).
15. Applying these concepts to the circumstances here, one possible factual scenario is that Claimant reached an end medical result following her first fusion surgery in June 2007 and incurred a ratable permanent impairment referable to her lumbar spine at that time. Then, at some later point she suffered a worsening of her condition, following which she required further surgery and incurred additional disability. If the evidence establishes this to be the case, then Claimant’s entitlement to the permanency caused by her first surgery already would have accrued and become payable prior to her second surgery, and therefore will have survived her death.
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16. Alternatively, if the evidence establishes that Claimant never truly reached a plateau in her recovery process following her first fusion surgery, such that it was inappropriate for Defendant’s expert either to have declared her to be at end medical result for her lower back injury or to have rated the permanency referable to her lumbar spine, then her entitlement to these benefits never accrued and does not now survive.
17. Considering these competing scenarios, I conclude that the question whether Claimant reached an end medical result for her lower back condition at any time between her first and second fusion surgeries involves material facts that are not yet so clear as to be undisputed. Without further evidence, it is impossible to discern whether Claimant’s entitlement to permanency benefits attributable to her first surgery ever accrued, and therefore whether they now survive her death. Summary judgment on that issue is not appropriate.
18. Defendant correctly notes that Claimant never requested, and the Department never approved, payment of any portion of her permanency compensation in a lump sum. With that in mind, it asserts that because Claimant received weekly disability benefits, whether temporary or permanent, continuously from the time of her injury until the time of her death, no further benefits could possibly have become payable. Thus, Defendant argues, the timing of any end medical result determination for Claimant’s various injuries is irrelevant to the question whether it owes additional permanency now.
19. Claimant’s right to accrued permanency compensation cannot be undone by a payment schedule, however. The Supreme Court specifically has admonished against construing §639 so narrowly. Dodge, supra at ¶8. Particularly where, as here, the fact that a subsequent period of temporary disability may have caused ongoing payments for permanency compensation to be suspended should not mean that those benefits are no longer owed.
20. In sum, as the undisputed facts establish that the permanency benefits referable to Claimant’s leg and hip injuries had accrued prior to her death I conclude that they survive without limitation. I conclude that the permanency benefits, if any, attributable to Claimant’s second fusion surgery in January 2009 had not yet accrued at the time of her death, and therefore survive, if at all, only to the extent provided by 21 V.S.A. §639. Last, I conclude that questions of material fact prevent me from determining whether the permanency benefits referable to Claimant’s lumbar spine injury following her first fusion surgery had accrued by the time of her death.
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ORDER:
Claimant’s Motion for Summary Judgment is GRANTED as to the survival of permanency benefits referable to her left leg and left hip injuries, and DENIED as to the survival of permanency benefits referable to her lumbar spine injury. Defendant’s Motion for Summary Judgment is GRANTED as to the failure of any permanency benefits referable to Claimant’s January 2009 fusion surgery to survive, and DENIED in all other respects.
DATED at Montpelier, Vermont this ____ day of February 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.

Jack Lehneman v. Town of Colchester (March 13, 2012)

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Jack Lehneman v. Town of Colchester (March 13, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jack Lehneman Opinion No. 10-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Town of Colchester
For: Anne M. Noonan
Commissioner
State File No. CC-2409
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
David Mickenberg, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s dental injury arise out of and in the course of his employment for Defendant?
EXHIBITS:
Claimant’s Exhibit 1: Affidavit of Jack Lehneman, December 6, 2011
FINDINGS OF FACT:
The following facts are undisputed:1
1. Claimant is a 40-year-old veteran police officer who has served the communities of both Milton and Colchester.
2. On March 24, 2011 Claimant was working a 12-hour shift as a police officer for Defendant.
1 Defendant correctly observes that Claimant has failed to provide the “separate, short and concise” statement of material facts about which he contends there is no dispute, as required by V.R.C.P. 56(c)(2). He has, however, submitted his own sworn affidavit, which essentially serves the same purpose. For its part, Defendant has failed to submit its own separate statement of the material facts that it alleges are genuinely disputed, as V.R.C.P. 56(c)(2) also requires. While neither of these procedural defects precludes me from considering the parties’ substantive arguments, closer adherence to the requirements of Rule 56 would have been preferable. See, Webb v. LeClair, 2007 VT 65; Estate of Carr v. Verizon New England, Opinion No. 08-11WC (April 29, 2011).
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3. In keeping with longstanding practice, Defendant does not schedule assigned lunch or dinner breaks for police officers on 12-hour shifts. Rather, it expects officers to remain on duty during their entire shift, and encourages them to eat as they conduct their work over that period.
4. Defendant neither controls nor instructs police officers as to when, where or what to eat while on duty. Officers are free to obtain their meals from any source of their own selection, and to eat them when- and wherever they choose. Should they decide to eat at the police station, the premises are equipped with multiple refrigerators, utensils, microwave ovens and other necessary items to facilitate meals while working.
5. On the evening of March 24, 2011 Claimant purchased a hamburger for dinner from a local restaurant. He returned to his office and began doing paperwork while eating. As he bit into the sandwich, his front tooth hit a piece of bacon and broke.
6. Claimant immediately notified his supervisor and co-workers of his injury, and completed an incident report. Subsequently, on March 28, 2011 a First Report of Injury (Form 1) was filed with the Department of Labor.
7. Claimant sought dental treatment from Dr. Kentworthy, who determined that his tooth needed complete removal and replacement. The cost of this treatment is estimated to be approximately $4,700.00.
8. Defendant has denied Claimant’s claim for workers’ compensation benefits on the grounds that his dental injury was not incurred as a result of his employment.
DISCUSSION:
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. Both parties here seek summary judgment in their favor on the question whether Claimant’s dental injury arose out of and in the course of his employment for Defendant. As the material facts are not genuinely disputed, disposition of this question on summary judgment is appropriate.
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3. The starting point for any workers’ compensation claim is whether the injury arose out of and in the course of employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injuries. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993).
4. For the purposes of the pending motions, Defendant does not dispute that Claimant’s injury occurred in the course of his employment. This prong of the compensability test is met when an injury is shown to have occurred “within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964). Generally speaking, injuries that occur on the employer’s premises during a regular lunch hour are deemed to have arisen in the course of employment. Miller, supra; Vivian v. Eden Park Nursing Home, Opinion No. 01-00WC (February 14, 2000), 2 Lex K. Larson, Larson’s Workers’ Compensation §21.02[1][a] (Matthew Bender, Rev. Ed.) and cases cited therein.
5. The crux of the parties’ dispute is as to the “arising out of” prong of the compensability test. What is required to satisfy this factor is a causal connection between an employee’s injury and his or her work – not necessarily in the sense of proximate or direct cause, but rather as an expression of origin, source or contribution. Snyder v. General Paper Corp., 152 N.W.2d 743, 745 (Minn. 1967); see, Shaw v. Dutton Berry Farm, 160 Vt. 594, 597-98 (1993) (overruling Rothfarb v. Camp Awanee, Inc., 116 Vt. 172 (1950), and characterizing tort-type proximate causation in the workers’ compensation context as narrow, unduly restrictive and contrary to the remedial purpose of the statute).
6. Vermont has long adhered to the “positional risk” doctrine in interpreting and applying the “arising out of” component of compensability. Miller, supra at 214, citing Shaw, supra at 599. Under Vermont law, an injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Id., quoting 1 A. Larson, Workmen’s Compensation Law §6.50 (1990) (emphasis in original). Phrased alternatively, the positional risk doctrine asks simply whether an injury would or would not have occurred but for the claimant’s employment and his or her position at work. Shaw, supra.2
2 The positional risk analysis adopted in Vermont differs from the “neutral risk” rule applied in many other states. In order to satisfy the “arising out of” component under a neutral risk analysis, the conditions of employment must expose the employee to a risk of injury “greater than that to which the general public is exposed.” Illinois Consolidated Telephone Co. v. Industrial Commission, 732 N.E.2d 49, 56-57 (2000) (Rakowski, J., concurring). No such “greater-than-the-general-public” type exposure is required in a positional risk state. Id., citing 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law §7.04(1) at 7-15 (1999).
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7. In most cases, an injury that occurs during the “course of employment” also “arises out of it,” unless the circumstances “are so attenuated from the condition of employment that the cause of injury cannot reasonably be related to the employment.” Miller, supra at 215, quoting Shaw, supra at 598. The question in this case, then, is whether the obligations of Claimant’s employment – specifically, that he take his meals while working his shift – constitute a sufficient connection to his injury as to render it compensable.
8. In answering this question, I must distinguish the circumstances here from cases in which the conditions of employment either encourage or require the employee to take his or her meal from a certain source or under certain circumstances. See, e.g., Maguire’s Case, 451 N.E.2d 446 (Mass.App.Ct. 1983) (acknowledging compensability of dental injury sustained while biting into employer-supplied sandwich, but denying claim on other grounds); Goodyear Aircraft Corp. v. Industrial Commission, 158 P.2d 511 (Ariz. 1945) (injury from exploding soda bottle brought from home deemed compensable where conditions of employment required claimant to care for, prepare and consume lunch on premises); Krause v. Swartwood, 218 N.W. 555 (Minn. 1928) (injury sustained as result of drinking tainted coffee at restaurant deemed compensable where employer had directed claimant to eat there so that she could field incoming calls while at lunch). The circumstances giving rise to the injury in these cases are sufficiently connected to the employment to establish the required “arising out of” link.
9. In the current case, the conditions of Claimant’s employment admittedly were such as to encourage him to eat while working. However, they did not extend so far as to direct, or even suggest, that he eat any particular food from any particular source at any particular time. Claimant could have chosen another menu item, or another restaurant, or even brought his own meal from home. That he opted not to do so was a consequence of his own preferences, not any work-related obligation. See, Rehm-Brandt v. Rehm-Brandt’s Design, Opinion No. 44-01WC (November 29, 2001) (compensation for injury sustained while traveling to pick up lunch denied where obligations of employment did not so constrain claimant’s lunch time choices as to change the trip from a personal one to an employment-related one).
10. To impose liability upon employers for injuries suffered under the circumstances presented by the current claim would be both unrealistic and unwieldy. In effect it would require them to ensure that all of the food their employees consume while at work, no matter what the source, is safe. But how would an employer do so? Should it be granted the right to inspect an employee’s lunch box? To ban hard candy or caramels? To declare certain restaurants off-limits? I suspect that neither employers nor employees would stomach such intrusive devices well.
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11. While Vermont’s Workers’ Compensation Act “is to be construed liberally to accomplish the humane purpose for which it was passed, a liberal construction does not mean an unreasonable or unwarranted construction.” Herbert v. Layman, 125 Vt. 481, 486 (1966); Workers’ Compensation Rule 1.1100. The Act does not make the employer an insurer against every accidental injury that may happen to an employee during his or her employment. It applies only to those that reasonably can be said to have the employment as their origin. Snyder, supra at 752 (Otis, J., dissenting). The circumstances of Claimant’s injury were too attenuated from his work for me to make that connection here.
12. I conclude that although Claimant’s dental injury occurred in the course of his employment for Defendant, it did not arise out of it. As a matter of law, therefore, his claim for workers’ compensation benefits must fail.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s Motion for Summary Judgment is DENIED, and his claim for workers’ compensation benefits causally related to his March 24, 2011 dental injury is DISMISSED.
DATED at Montpelier, Vermont this 13th day of March 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.

Debra Morrisseau v. Hannaford Brothers (January 10, 2013)

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

Debra Morrisseau v. Hannaford Brothers (January 10, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Debra Morrisseau Opinion No. 21SJ-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. BB-00676
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Robert Mabey, Esq., for Defendant
ISSUE:
Is Defendant entitled to summary judgment in its favor on the question whether it is obligated to pay for voice recognition technology (including computer assessment, software and/or equipment) as a consequence of Claimant’s compensable injury?
FINDINGS OF FACT:
Judicial notice is taken of all relevant forms, reports and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the Commissioner’s prior decision in this claim, Morrisseau v. Hannaford Brothers, Opinion No. 21-12WC (August 8, 2012).
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 the time of her compensable injury in August 2009, Claimant was working as a bakery associate at Defendant’s supermarket. She also held concurrent employment with the Visiting Nurse Association as a personal care attendant, and previously had been employed as a hospital dietary worker at Fletcher Allen Health Care.
2. Claimant’s average weekly wage at the time of her work injury was $421.05.
3. As a result of her work injury, Claimant suffered a permanent impairment to her right wrist. Despite both surgery and conservative treatment, she continues to experience chronic pain and weakness in her hand, wrist and upper extremity.
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4. Claimant was determined to be entitled to vocational rehabilitation services on January 20, 2011. In February 2011 she underwent a functional capacity evaluation, which concluded that she was capable of full-time sedentary work. Of note, with the appropriate ergonomic equipment, such as a split keyboard, Claimant demonstrated a tolerance for frequent computer work, including up to thirty minutes of sustained typing per hour. Increased right wrist pain was primarily associated with material handling tasks, with somewhat less pain reported during activities requiring forward reaching, dexterity or hand use.
5. In June 2011 the Department approved the parties’ proposed Return to Work Plan. The primary goal stated was for Claimant to pursue work as a medical or dental office receptionist/clerk, or as a customer service representative in other settings. Secondary goals included human services work with agencies providing assistance to persons with disabilities, for example, as a community support worker or supervised apartment staff. To accomplish these goals, the plan proposed that the following vocational rehabilitation services be provided, at Defendant’s expense:
• Vocational exploration, work readiness training and placement assistance;
• Concurrent short-term computer skills training, Microsoft Office software to support home practice and proficiency and an ergonomic keyboard and mouse; and
• Upon securing work, an ergonomic evaluation to assure optimal work station set-up, so as to reduce the cumulative impact of repetitive activities or computer use.
6. The approved Return to Work Plan contemplated the possibility that additional assistive devices might be identified that would enhance Claimant’s ability to locate suitable employment notwithstanding both her physical restrictions and her limited experience in sedentary jobs. For example, voice recognition software allows for computer control with minimal use of one’s hands. However, speaking aloud may not be viable in all work settings. Whether with that in mind or for other reasons, the plan as submitted and approved did not specifically require Defendant to pay for voice activated computer assessment, software or equipment.
7. In mid-August 2011 Claimant began working as a home support aide for developmentally disabled adults. She also worked briefly as a substitute teacher, but stopped doing so when her home support aide hours increased. Claimant’s home support aide job is located within a reasonable commuting distance from her home. The work is non-physical and therefore is largely unaffected by the ongoing symptoms in her wrist. According to her vocational rehabilitation counselor’s written progress report, as of January 2012 Claimant expressed that she was generally satisfied with her new employment, particularly because of the opportunity it allows for her to manage her upper extremity symptoms by changing her activities.
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8. Claimant’s earnings in her current job fluctuate depending on the number of clients requiring home support services. For the first few months of her employment, her gross weekly wages were less than what her pre-injury average weekly wage had been. More recently, beginning in mid-February and extending at least through mid-May 2012 (the last month for which wage evidence was submitted), for the most part her current wages have either equaled or exceeded her pre-injury wages.
9. Claimant’s work hours in her current job have fluctuated similarly. However, as she credibly testified in the context of the prior formal hearing in this claim, at least since February 2012 this has been due primarily to client scheduling issues rather than any injury-related disability.
10. In April 2012 Claimant filed a Notice and Application for Hearing in which she sought coverage for voice recognition software as a “reasonable vocational benefit.” Defendant denied the request on the grounds that Claimant already had returned to suitable employment, such that further vocational rehabilitation services were neither reasonable nor necessary.
11. As of mid-May 2012 Claimant had been successfully employed in her current job for at least 60 days.
12. On July 19, 2012 the Department’s Vocational Rehabilitation Specialist approved Defendant’s discontinuance of vocational rehabilitation services on the grounds that Claimant had successfully returned to suitable employment. In addition, the Specialist denied Claimant’s request for voice recognition software, on the grounds that she had failed to present any evidence indicating that she required the technology in order to perform the essential functions of her job.
13. Claimant’s current treating physician, Dr. Fenton, has strongly recommended that she use voice activated software for all of her computer tasks. In his opinion, use of such software “will improve [her] productivity, help prevent pain flares and loss of function that can result in missed work, and improve her function overall.”
14. Claimant’s vocational rehabilitation counselor, Jay Spiegel, supports the use of voice recognition technology as a means of “help[ing] Ms. Morrisseau with symptom control, expand[ing] her workplace skills and also facilitat[ing] her return to fulltime suitable employment.” According to Mr. Spiegel, “improved tolerance and ability to use the computer will invariably lead to increased employability and utility to her employer.” Among the job opportunities Mr. Spiegel posited might exist were job trainer/coach and/or administrative assistant.
15. No evidence was submitted as to the extent, if any, to which Claimant’s current job involves computer tasks. Nor was there any evidence tending to show that her work-related injury has resulted in decreased productivity or missed work at her current job, or that her functional restrictions have rendered her unable to perform her current job responsibilities in a manner acceptable to her employer.
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DISCUSSION:
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. A defendant who moves for summary judgment satisfies its legal burden when it presents at least one legally sufficient defense that would bar the opposing party’s claim. Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 266 (1981). Once a properly supported summary judgment motion has been made, the non-moving party may not rest on mere allegations in its pleadings. Pierce v. Rigas, 149 Vt. 136, 139-140 (1987). Rather, it must respond with sufficient evidence to support a prima facie case. If an essential element of the non-movant’s case cannot be established, summary judgment is appropriate. State of Vermont v. G.S.Blodgett Company, 163 Vt. 175, 180 (1995).
3. The disputed issue here is whether Defendant should be obligated to pay for the voice recognition technology Claimant has requested, either as a vocational rehabilitation service or as a medical benefit. Defendant asserts first, that as a matter of law its vocational rehabilitation responsibilities must be deemed to have ended by virtue of Claimant’s successful return to suitable employment without such assistive technology. Second, Defendant asserts that the benefit Claimant seeks does not fit the legal definition of a medical service or supply as those terms are used in Vermont’s workers’ compensation statute. Either way, Defendant argues, as a matter of law there is no basis for compelling it to provide the voice recognition technology Claimant claims to need.
Voice Recognition Technology as an Adjunct to Defendant’s Vocational Rehabilitation Responsibilities
4. Vermont’s workers’ compensation law makes the following provision for injured workers whose functional restrictions preclude them from resuming their prior jobs after a work-related injury:
When as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment.
21 V.S.A. §641(a) (emphasis supplied).
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5. Workers’ Compensation Rule 51.2600 defines “suitable employment” as follows:
“Suitable employment” means employment for which the employee has the necessary mental and physical capacities, knowledge, skills and abilities;
51.2601 Located where the employee customarily worked, or within reasonable commuting distance of the employee’s residence;
51.2602 Which pays or would average on a year-round basis a suitable wage;1 AND
51.2603 Which is regular full-time work.2 Temporary work is suitable if the employee’s job at injury was temporary and it can be shown that the temporary job will duplicate his/her annual income from the job at injury.
6. Of note, neither the statute nor the rules require that an injured worker be returned to specific employment in order for an employer’s vocational rehabilitation responsibilities to be fulfilled. The goal of vocational rehabilitation is to restore earning skills, not necessarily to procure a particular job. Bishop v. Town of Barre, 140 Vt. 564, 578 (1982); Wentworth v. Crawford & Co., 174 Vt. 118 (2002); Workers’ Compensation Rule 50.0000. Nevertheless, the workers’ compensation rules acknowledge that a claimant’s successful return to suitable employment for at least 60 days is itself sufficient proof of employability as to justify terminating vocational rehabilitation services. Workers’ Compensation Rule 56.1110.
7. Considering the evidence in the light most favorable to Claimant, State v. Delaney, supra, I conclude that her current job fulfills the necessary requirements of suitable employment as delineated in Rule 51.2600. It is within her mental and physical capabilities, knowledge, skills and abilities. It is located in the same general vicinity as her prior employment. It pays a suitable wage as that term is defined in Rule 51.2700, and constitutes regular full-time employment as defined in Rule 51.2100.
1 “Suitable wage” is defined as one that is as close as is reasonably attainable to 100 percent of the employee’s pre-injury average weekly wage. Workers’ Compensation Rule 51.2700.
2 “Regular full-time” employment is defined as a job that “at the time of hire was, or is currently expected to continue indefinitely.” Workers’ Compensation Rule 51.2100.
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8. Claimant argues that despite having been successfully re-employed for at least 60 days, long enough to trigger termination of vocational rehabilitation services under Rule 56.1110, she still should not yet be considered fully rehabilitated. She asserts that voice recognition technology is a necessary adjunct to her vocational rehabilitation, in that it will provide her with “flexibility in employment choice,” rather than “condemnation to a specific employment.” In essence, Claimant argues for a far broader standard by which to measure whether an injured worker’s vocational rehabilitation goals have been met than simply focusing on his or her first suitable post-injury job. Under this standard, an employer would be responsible not just for restoring current earning skills but for creating alternative career paths as well.
9. Claimant’s standard goes far beyond the express language of Rule 51.2600, which specifically defines the statutory concept of “suitable employment,” and also of Rule 56.1110, which identifies a 60-day timeframe as the appropriate measure of vocational rehabilitation success in re-employment situations. Both rules were lawfully promulgated in accordance with the statutory authority granted in 21 V.S.A. §602. Neither rule conflicts with the language or intent of §641(a). Both rules reasonably reflect the compromise that underlies the general purpose of Vermont’s workers’ compensation law – to provide employees with a speedy and certain remedy for their work-related injuries, St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585 (1991), while at the same time guaranteeing to employers a liability that is “limited and determinate,” Morrisseau v. Legac, 123 Vt. 70, 76 (1962). Both rules were legally enacted and are fully enforceable, therefore. Compare In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636 (1984) with In re Vermont Verde Antique International, Inc., 174 Vt. 208 (2002).
10. Had Claimant presented any evidence at all from which I might conclude that additional vocational rehabilitation services are necessary in order for her to continue to be successfully and suitably employed as those terms are currently defined, then this might justify a different result. As it is, even considering the evidence in the light most favorable to Claimant, I conclude that by virtue of her return to suitable employment for more than 60 days, Defendant was justified in terminating her vocational rehabilitation benefits. Therefore, I conclude as a matter of law that it is not currently obligated to pay for voice recognition technology as a vocational rehabilitation expense.3
3 It is possible that at some future point Claimant might again become entitled to vocational rehabilitation services, for example, if her injury-related functional restrictions change so as to render her current employment unsuitable. Whether Defendant might be obligated to pay for voice recognition technology under those circumstances would depend on as yet unpredictable variables.
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Voice Recognition Technology as a Medical Benefit
11. Vermont’s workers’ compensation law requires an employer to furnish an injured employee with “reasonable surgical, medical and nursing services and supplies, including . . . durable medical equipment,” that are necessitated by a compensable injury. 21 V.S.A. §640(a). An employer also might be required to provide assistive devices, but only in situations where the injured worker is determined to have a disability “that substantially and permanently prevents or limits the worker’s ability to continue to live at home or perform basic life functions.” Id.; Barrett-Simmons v. Landmark College, Opinion No. 35-10WC (November 15, 2010); Danforth v. H.P. Hood, Opinion No. 11-10WC (March 16, 2010).
12. The statute does not specifically define what constitutes either a “medical service [or] supply” or “durable medical equipment.” What guidance there is comes from the Vermont Supreme Court’s decision in Close v. Superior Excavating Co., 166 Vt. 318 (1997). The specific question in that case was whether the services provided by an injured worker’s spouse, which included not only skilled nursing care but also unskilled care, passive attendance and ordinary household duties, were covered as “nursing services” under §640(a). Considering particularly the injured workers’ serious medical problems and need for 24-hour supervision, the Court approved the commissioner’s flexible, case-by-case approach, and allowed full reimbursement to the spouse. Id. at 321.
13. With Close as precedent, in a subsequent claim the commissioner denied coverage for home care services that included housekeeping only, with no aspect of nursing care. Hanson v. Goldsmith, Opinion No. 11-03WC (February 28, 2003), affirmed, 834 A.2d 50 (Vt. 2003). “[I]n fashioning a workers’ compensation system in which a claimant need not prove fault and the employer has limited liability, the legislature necessarily chose to cover some, but not all, potential services for an injured worker,” the commissioner noted. Id. at Conclusion of Law No. 1. Thus, notwithstanding medical opinions justifying the need for such services, absent a clear statutory directive they could not be deemed compensable. Id.
14. The same is true in the current claim. The fact that Claimant’s treating physician has recommended that she use voice recognition technology for her computer tasks does not magically transform the apparatus from a non-medical device to a medical one. To be sure, it may be helpful to her, in much the same way that having assistance with household chores was helpful to the claimant in Hanson. But its purpose is not medical, in that it neither cures nor relieves injury-related symptoms. See, e.g., ABC Disposal Services v. Fortier, 809 P.2d 1071 (Co. Ct. App. 1990) (snow blower not a medical apparatus). Even construed broadly, the plain language of the statute does not cover it, as either a “medical service [or] supply” or as “durable medical equipment.”
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15. Indeed, the language of §640(a) that comes closest to approximating the purpose of the voice recognition technology Claimant seeks is that allowing coverage for “assistive devices.”4 To qualify, however, Claimant must show that her injury “substantially and permanently prevents or limits [her] ability to . . . perform basic life functions.” Id. With reference to the commissioner’s analysis of this language in Danforth v. H.P. Hood, supra, I conclude as a matter of law that performing computer tasks is not such a “basic life function” as to trigger this coverage.
Summary
16. Even considering the evidence in the light most favorable to Claimant, I conclude that because she already has successfully returned to suitable employment, as a matter of law she is not currently entitled to voice recognition technology as a vocational rehabilitation benefit. I further conclude as a matter of law that the plain language of §640(a) does not cover voice recognition technology as either a “medical service or supply” or as “durable medical equipment.” Last, I conclude as a matter of law that Claimant’s injury-related disability is not so severe as to limit her ability to perform a basic life function, and that therefore she is not entitled to voice recognition technology as an “assistive device.”
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for voice recognition technology as a compensable benefit causally related to her August 2009 work injury is hereby DENIED.
DATED at Montpelier, Vermont this 10th day of January 2013.
________________________
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.
4 This term as well is not specifically defined in the workers’ compensation context. Vermont’s consumer protection statute defines it as “an item, piece of equipment, or product system, whether acquired commercially off-the-shelf, modified, or customized, that is used or designed to be used to increase, maintain, or improve any functional capability of an individual with disabilities.” 9 V.S.A. §2467.

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