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D. V. v. America’s Gardening Resource (April 12, 2006)

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D. V. v. America’s Gardening Resource (April 12, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. V. Opinion No. 15-06WC
By: Margaret A. Mangan
v. Hearing Officer
Royal & Sun Alliance as For: Patricia A. McDonald
Insurer for America’s Gardening Commissioner
Resource
State File Nos. S-22194; T-19042
RULING ON CLAIMANT’S PARTIAL MOTION FOR SUMMARY JUDGMENT
Claimant, through his attorney, Joseph C. Galanes, moves for judgment as a matter of law on the fact of two job injuries, and entitlement to permanent partial disability, PPD benefits.
Pending before this Department is an April 21, 2006 hearing on the issue “whether Claimant’s spondylolisthesis and surgical repair are compensable under the Workers’ Compensation Act as causally related to Claimant’s employment with America’s Gardening Resource.” Defendant’s Final Disclosures dated February 23, 2006.
Claimant was an employee and Royal & SunAlliance his employer within the meaning of the Workers’ Compensation Act at all times relevant to this action.
In this Department’s file are Forms 1, 21 and 24 for a work related injury of June 7, 2002 at America’s Gardening Resource, a hardware store, and its Insurer Royal and SunAlliance. (S-22194). The injury was described in the Form 1, as “Employee states he has pinched nerve down right leg/pain/cause is unknown.” On the Form 21 the injury is described as a back injury. No denial of the claim was filed.
Also in the Department’s file is a Form 1 for a low back injury on May 20, 2003. (T-19042) The only denial on that claim was filed in January 2005, denying payment for proposed back surgery as unrelated to the injury of May 20, 2003.
Defendant accepted the claim and paid all reasonable hospital charges related to the accident. Since Claimant did not miss any time from work, no agreements for TTD were signed.
Dr. Smith-Horn determined that Claimant was at medical end result of his injuries, with a 3% impairment from the June 2002 injury and 10% impairment from the May 2003 injury. Her report includes a description of loss of range of motion due to spondylolisthesis.
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CONCLUSIONS OF LAW:
Under WC Rule 3.0900 the employer/carrier has “21 days from receiving notice or knowledge of an injury within which to determine whether any compensation is due.”
Since the defendant in this case did not file denials as required, it must accept the claims for the injuries in 2002 and 2003. This is not, however, an acceptance of spondylolisthesis and the proposed surgery or for PPD benefits, subject for the upcoming hearing on which Claimant has the burden of proof.
Therefore, part of Claimant’s motion for partial summary judgment is granted. Claimant suffered work related injuries to his back in 2002 and 2003.
Dated at Montpelier, Vermont this 12th day of April 2006.
_________________________________
Patricia A. McDonald
Commissioner
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D. V. v. America’s Gardening Resource (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. V. Opinion No. 43-06WC
By: Margaret A. Mangan
v. Hearing Officer
America’s Gardening Resource For: Patricia Moulton Powden
Commissioner
State File No. S-22194; T-19042
Hearing held in Montpelier on April 21, 2006
Record closed on May 22, 2006
APPEARANCES:
Joseph C. Galanes, Esq., for the Claimant
Wesley M. Lawrence, Esq., for the Defendant
ISSUES:
Whether Claimant’s spondylolisthesis and surgical repair are causally related to his work related injuries at America’s Gardening Resource, and therefore compensable under the Vermont Workers’ Compensation Act.
EXHIBITS:
Joint I: Medical records
Claimant 1: Medical Bills
Defendant A: C.V of Jerome Siegel, M.D.
Defendant B: Handwritten notes of Dr. Gennaro
FINDINGS OF FACT:
1. Claimant was an employee and America’s Gardening Resource his employer within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act) at all times relevant to this claim.
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2. Claimant worked in production for Defendant building, packing and shipping gardening products, including prefabricated greenhouses, garden sheds and garden carts. His work included frequent bending, lifting, squatting and carrying. Frequent lifting was up to thirty pounds; occasionally he lifted a hundred pounds or more.
3. On Thursday June 6, 2002, while engaged in his regular heavy work, Claimant noticed back pain. He continued to work. The next day he also worked, but noticed pain with bending. Over the weekend, Claimant developed shooting leg pain unrelated to activity.
4. Ten days after the onset of back pain, Claimant sought medical care. He was diagnosed with radicular symptoms from the L5 nerve root in his lower back.
5. Claimant underwent a course of physical therapy and gradual return to work. By August 2002 he was back to work full time. He learned to be careful with what he did because some residual pain persisted.
6. In late May 2003, Claimant’s back symptoms returned, with radiation to his left leg. On May 21, he consulted with his physician, reporting that symptoms had started two weeks earlier. He reported that it was common to lift at least 50 pounds frequently during a workday.
7. Claimant’s pain persisted, although he continued to work and to consult with Dr. Warren Rinehart. Epidural steroid injections provided only limited relief.
8. It is undisputed that Claimant had Grade I spondylolisthesis at L5-S1that predated any work related injury.
9. Dr. Rinehart referred Claimant to Dr. Elizabeth Ames, a spine surgeon. Physical therapy followed with gains in strength and trunk stability.
10. However, Claimant was given permanent work restrictions with no lifting over thirty pounds; no carrying over 40 pounds, no pushing over 150 pounds and no pulling over 200 pounds.
11. In March 2004, at the request of the insurance carrier, Claimant was evaluated by Dr. Melissa Smith-Horn who determined that he had reached medical end result. She assessed Claimant with a 3% impairment as a result of the June 2002 injury and 10% as a result of the May 2003 injury. Dr. Smith-Horn wrote clearly that the impairments were the result of the work related injuries.
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12. Given persistent worsening symptoms, surgery was recommended in late 2004.
13. The carrier denied Claimant’s request that it cover payment for the surgery although it had paid all benefits up to that recommendation.
14. On February 24, 2005, Claimant had the surgery for spinal stenosis and isthmic spondylolisthesis. Specific procedures Dr. Ames performed were: 1) Laminectomy, bilateral foraminotomy L5; 2) Posterior spinal on L5-S1; 3) Instrumentation to lumbar vertebra posterior segmented; 4) Iliac crest bone graft; 5) Local bone graft, lumbar spine. During surgery, Dr. Ames noted significant left sided nerve root compression and foraminal narrowing.
15. As a result of the surgery Claimant went out of work on January 11, 2005 in preparation for the procedure and returned full time on June 29, 2005.
Medical Opinions on Causation
16. Dr. Ames, Claimant’s treating surgeon, opined that Claimant’s back “condition was aggravated by the lifting done in his work place, particularly since his pain is radicular in nature and not mechanical back pain.”
17. Dr. Backus, who is s Board Certified in Occupational Medicine and Independent Medical Examinations, explained that with spondylolisthesis that is stable, the disc segment retains the stability of that vertebral area. However, once the disc degenerates, that source of stability is lost, leading to a slipped disc, back and leg pain. Dr. Backus explained further that Claimant developed lumbar degenerative disc disease which combined with his preexisting spondylolisthesis to create instability and pain. However, he concluded that degenerative disc disease is not correlated with lifting and in this case was not traumatic. Therefore, he concluded that Claimant’s work did not create the need for the surgery.
18. Dr. Victor Gennaro, Board Certified Orthopedic Surgeon, performs twenty-five to thirty back surgeries a year. He performed an independent medical examination for the Claimant. Dr. Gennaro agreed with Dr. Backus’s description of the combined effects of spondylolisthesis and degenerative disc disease. However, he disagreed with Dr. Backus on the issue of causation. In Dr. Gennaro’s opinion, heavy lifting and frequent bending accelerate the progression of degenerative disc disease. Claimant’s symptoms, according to Dr. Gennaro, were caused by an aggravation of spondylolisthesis. Of the risk factors for degenerative disc disease: smoking, obesity, excessive consumption of alcohol, heredity and heavy lifting, Claimant has only the last. The most likely cause, therefore, was Claimant’s work activities.
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19. Dr. Gennaro assessed Claimant with a 20% permanent partial disability rating.
20. Dr. Jerome Siegel, Board Certified in Occupational and Internal Medicine, reviewed Claimant’s medical records and examined him. Dr. Siegel found no anatomical worsening of Claimant’s spondylolisthesis. He opined that the most likely cause of Claimant’s leg symptoms was an underlying soft tissue problem, e.g. long standing tight hamstring muscles. Dr. Siegel opined that bending at the waist would not aggravate spondylolisthesis, although he conceded that heavy lifting could. He assumed erroneously that Claimant did no heavy lifting at work.
21. Claimant submitted evidence of his contingency fee with his attorney and an accounting of $3,498.87 in necessary costs.
CONCLUSIONS OF LAW:
1. In her ruling on the Claimant’s motion for summary judgment, the Commissioner held that the carrier had accepted claims for two work related injuries in the course of Claimant’s employment, one in 2002 and the other in 2003. However, the question whether the spondylolisthesis and surgery were causally related to Claimant’s work remained a disputed issue for hearing. See Opinion No. 15-06WC.
2. Therefore, in this action Claimant must prove the essential causal connection. See Egbert v. Book Press, 144 Vt. 367 (1984). Did heavy lifting at Claimant’s work accelerate his degenerative joint disease that combined with his spondylolisthesis to stabilize the spine and require surgery?
3. Dr. Backus opined that Claimant’s disc degenerated independent of any heavy lifting, bending and squatting. Dr. Siegel did not think that Claimant’s work required heavy lifting, but conceded that heavy lifting is a causative mechanism.
4. The most persuasive medical opinion is from Dr. Gennaro: frequent heavy lifting and bending is a cause of degenerative disc disease. The opinion is based on years of experience working with injured workers; experience operating on vertebrae and common sense. It is a conclusion supported by the defendant’s first consultant, Dr. Smith-Horn, and the surgeon who performed the operation at issue, Dr. Ames. It is an opinion consistent with other cases, see e.g. J. H. v. City of Burlington, Opinion No. 40-05WC (2005) and is accepted here as the most logical.
5. Therefore, Claimant is entitled to payment for the surgery pursuant to 21 V.S.A. § 640(a), and for temporary total disability payments pursuant to § 642 from January 11, 2005 to June 27, 2005. He is also entitled to permanent partial disability benefits based on Dr. Gennaro’s 20% rating.
6. Claimant is also entitled to statutory interest on all payments from the date they were incurred until paid. 21 V.S.A. § 644.
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7. Finally, Claimant is entitled to the necessary costs incurred totaling $3,498.87 and attorney fees of the total award not to exceed $9,000. 21 V.S.A. § 678(a); WC Rule 10.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Claimant is awarded medical, temporary total and permanent partial benefits, interest, attorney fees and costs as specified above.
Dated at Montpelier, Vermont this 9th day of October 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Josef Knoff v. Josef Knoff Illuminating (June 2, 2011)

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Josef Knoff v. Josef Knoff Illuminating (June 2, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Josef Knoff Opinion No. 13-11WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Josef Knoff Illuminating
For: Anne M. Noonan
Commissioner
State File No. P-16619
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Josef Knoff, pro se
William Blake, Esq., for Defendant
ISSUE:
Can Defendant apply a previously awarded credit of overpaid temporary total disability benefits against a new claim for temporary total disability benefits?
FINDINGS OF FACT:
I take judicial notice of the Commissioner’s prior decision in this claim, Joe Knoff v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005). In addition, the following facts are undisputed:
1. Claimant suffered a work-related injury to his neck in February 2000. Thereafter, Defendant paid temporary total disability benefits until March 2001, at which point the Department approved its discontinuance.
2. In April 2003 Claimant suffered a recurrence of his neck pain and requested that Defendant reinstate temporary total disability benefits. Defendant agreed to do so on a voluntary, without prejudice basis. Thereafter, it paid weekly benefits at the maximum compensation rate until September 2004. Payments during this period totaled approximately $63,700.00.
3. In September 2004 Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), which the Department approved. In the notice, Defendant listed two grounds for terminating temporary disability benefits. One of the grounds it alleged was that the income Claimant had received during the twelve weeks preceding the April 2003 recurrence constituted profits from the sale of his business rather than wages earned
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during that period. As such, Defendant asserted, Claimant had not suffered any wage loss and therefore was not entitled to temporary total disability benefits.
4. Claimant appealed Defendant’s discontinuance. After considering the evidence, the Commissioner ruled in Defendant’s favor. Joe Knoff v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005). It thus determined that the benefits Defendant had paid from April 2003 through September 2004 in fact had not been owed.
5. Recognizing that Defendant’s payments during the period in question had been made voluntarily and without prejudice, in reliance on 21 V.S.A. §651 the Commissioner also ruled that Defendant was entitled to a credit of $63,700.00 (the total amount it had paid in temporary disability benefits during this period) “against any future compensation.” Joe Knoff v. Joe Knoff Illuminating, id. at ¶8.
6. Claimant did not appeal the Commissioner’s July 12, 2005 ruling.
7. In August 2005 the Hearing Officer clarified the Commissioner’s ruling with respect to the types of benefits against which the credit it had awarded Defendant properly could be applied. The Hearing Officer declared that the credit definitely could not be taken against future medical benefits, and that it definitely could be taken against future permanent partial disability benefits. As to whether the credit could be applied against future temporary total disability benefits, the Hearing Officer stated, “If the carrier presents a persuasive case for such a credit and the Commissioner approves it,” then a credit against these benefits would be allowed.
8. Claimant has been receiving monthly social security disability benefits on account of his neck injury since December 2005. In addition, beginning in April 2010 he worked intermittently as a substitute teacher, for which he was paid $80.00 per day.
9. Claimant did not seek any further workers’ compensation benefits causally related to either his 2000 injury or his 2003 recurrence until December 2010. At that point, Claimant notified Defendant that he was experiencing new symptoms, for which he sought a medical evaluation and treatment. Claimant also claimed entitlement to temporary total disability benefits.
10. Defendant denied Claimant’s claim for temporary total disability benefits on the grounds that until its $63,700.00 credit is exhausted it is not obligated to make payment.
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).
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2. Defendant seeks summary judgment in its favor. It asserts that given the undisputed facts presented here, it is entitled as a matter of law to a credit of $63,700.00 against any claim for indemnity benefits, whether temporary total or permanent partial.
3. Claimant argues in response that the credit should not be applied to his current claim for temporary total disability benefits. He asserts that the overpayment upon which the credit was based resulted from Defendant’s inordinate delay in determining the extent, if any, of his wage loss in 2003. As a result, he claims, Defendant did not deserve the credit. In addition, Claimant argues that to allow the credit to be taken against temporary total disability benefits will cause him to suffer undue financial hardship.
4. The applicable statute, 21 V.S.A. § 651, states:
Payments made by an employer or his insurer to an injured worker during the period of his disability . . . which, by the provisions of this chapter, were not due and payable when made, may, subject to the approval of the commissioner, be deducted from the amount to be paid as compensation.
5. The Supreme Court has validated the commissioner’s authority to allow an offset to be taken against permanent partial disability benefits. Bishop v. Town of Barre, 140 Vt. 564, 579 (1982). In addition, the Commissioner has made clear that the offset applies only to compensation benefits paid directly to the claimant, and not to “medical, vocational rehabilitation or other benefits payable on his behalf.” Felion v. NSK Corporation, Opinion No. 10-11WC (May 2, 2011). The legal question presented here, therefore, is simply whether, given the particular facts of this claim, the credit should be allowed against Claimant’s temporary total disability benefits.
6. Encouraging insurers to voluntarily pay workers’ compensation benefits during the investigatory phase of a claim promotes the State’s public policy of compensating workers quickly for their work-related injuries. Bishop v. Town of Barre, supra. This policy ensures that injured workers are able to provide for their living expenses while they heal. Orvis v. Hutchins, 123 Vt. 18, 22 (1962). To deny an insurer an offset when an overpayment results would undermine this policy, by creating a disincentive for making voluntary, without prejudice payments. The offset should not be denied, therefore, unless there are equally strong public policy reasons against allowing it.
7. Claimant has failed to present sufficiently strong reasons here. His argument that because Defendant failed to promptly and properly investigate the basis for his wage claim the credit never should have been allowed might have been persuasive in the context of the 2005 proceedings before the Commissioner, but Claimant failed to raise it there. The doctrine of collateral estoppel precludes him from raising it at this point. In re P.J., 2009 VT 5 at ¶¶8-15 (2009). This argument does not merit disallowing the credit against his temporary total disability benefits, therefore.
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8. As for Claimant’s assertion that the offset should be disallowed because of the financial hardship it will cause him, under the circumstances of this case this argument too is unpersuasive. Claimant’s social security disability benefits provide him with another regular source of income sufficient to meet his basic living expenses. Understandably, supplementing that income with temporary total disability benefits likely would be helpful to him. However, the undisputed facts do not demonstrate such financial hardship as to justify awarding Claimant benefits to which he is not entitled.
9. Claimant himself admits that Defendant erred by presuming that he had suffered a wage loss in the weeks prior to his 2003 disability when in fact he had not. As a result, he received $63,700.00 in workers’ compensation benefits to which he was not entitled. Essentially Claimant already has been prepaid the benefits he now seeks. Given the undisputed facts and particular circumstances of this case, I cannot justify requiring Defendant to pay him again.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Defendant is entitled to apply the $63,700.00 credit previously awarded against the temporary total disability benefits Claimant now seeks.
DATED at Montpelier, Vermont this 2nd day of June 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.

Timothy Martin v. Burlington Public School District (November 2, 2011)

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Timothy Martin v. Burlington Public School District (November 2, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Timothy Martin Opinion No. 35-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Burlington Public
School District For: Anne M. Noonan
Commissioner
State File Nos. Z-54128 and W-6342
RULING ON CLAIMANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Marion Ferguson, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to receive payment of permanent partial disability benefits referable to an injury for which he already has reached an end medical result at the same time that he is receiving temporary disability benefits referable to another injury, arising out of the same accident, for which he has not yet reached an end medical result?
FINDINGS OF FACT:
The following facts are undisputed:
1. Claimant suffered a personal injury by accident arising in the course and scope of his employment for Defendant on February 7, 2005.
2. As a result of this accident Claimant suffered a right hip injury, for which he underwent right total hip replacement surgery on November 11, 2006.
3. Defendant accepted Claimant’s right hip injury as compensable.
4. Claimant subsequently developed a left hip condition, for which he underwent left total hip replacement surgery on October 28, 2010.
5. Defendant accepted Claimant’s left hip injury as compensable.
6. At Defendant’s request, Claimant underwent an independent medical examination with Dr. White on March 25, 2011. Dr. White concluded that Claimant had reached an end
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medical result for his right hip injury, and assessed him with a 30 percent whole person permanent impairment referable thereto.
7. Dr. White concluded that as of the date of his examination Claimant had not yet reached an end medical result for his left hip injury.
8. Claimant demanded that Defendant commence paying permanent partial disability benefits as compensation for the rated permanency to his right hip. Defendant refused.
9. Claimant is still receiving temporary total disability benefits on account of his left hip injury.
DISCUSSION:
1. Claimant presents a purely legal issue for determination – whether a worker who is receiving temporary disability benefits for one injury related to a work accident can receive permanency benefits for a separate injury arising out of the same accident. 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 mandates the point at which permanency benefits are to be paid to an injured worker, that is, “at the termination of [temporary] total disability.” 21 V.S.A. §648(a). The Vermont Supreme Court has concluded that this language is plain, and clearly evidences the legislature’s intent. Laumann v. Department of Public Safety, 2004 VT 60, ¶¶12-14. Simply put, the trigger for paying permanency benefits is the date upon which the injured worker’s entitlement to temporary total disability benefits ends. Id.; Sweetser v. Vermont Country Camper, Opinion No. 36-09WC (September 24, 2009).
3. Claimant’s attempt to distinguish Laumann is unpersuasive. The specific legal issue presented in that case may have been different, but to resolve it the court considered exactly the same statutory language that is at issue here. When that language is plain on its face, there is no need to resort to construction. Rather, the statute must be enforced according to its stated terms. Id. at ¶10, citing Russell v. Armitage, 166 Vt. 392, 403 (1997).
4. I am similarly unconvinced by Claimant’s argument that he is being deprived of a substantive right, that is, the right to reap the time value of the permanency benefits referable to his right hip injury. First of all, the statute does not grant him the right to be paid permanency benefits at this juncture of his claim, and therefore he cannot be said to have been deprived of anything yet. Beyond that, when his permanency benefits do become payable, it will be at the compensation rate prevailing at the time his temporary benefits end. See, e.g., Sweetser, supra. As this rate already will have been adjusted for cost of living increases, Claimant will be adequately compensated from a time value perspective.
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ORDER:
Claimant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 2nd 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.

Timothy Martin v. Burlington Public School District (November 29th, 2011)

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Timothy Martin v. Burlington Public School District (November 29th, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Timothy Martin Opinion No. 35O-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Burlington Public
School District For: Anne M. Noonan
Commissioner
State File Nos. Z-54128 and W-06342
OPINION AND ORDER
Claimant’s Motion for Summary Judgment, in which he sought payment of permanency benefits for an injury suffered to one body part as a result of a work-related accident at the same time that he was receiving temporary disability benefits for an injury arising out of the same accident but to a different body part, was denied on November 2, 2011. There being no other legal or factual questions still to be decided related to this issue, it is ripe for final judgment.
ORDER:
For the reasons stated in Martin v. Burlington Public School District, Opinion No 35-11WC (November 2, 2011), Claimant’s claim for payment of permanency benefits simultaneous with his receipt of temporary disability benefits is hereby DENIED.
DATED at Montpelier, Vermont this 29th 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.

Violet Ploof v. Heritage Motors (March 25, 2011)

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Violet Ploof v. Heritage Motors (March 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Violet Ploof Opinion No. 06-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Heritage Motors
For: Anne M. Noonan
Commissioner
State File Nos. S-21982 and U-10296
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
ATTORNEYS:
Richard Goldsborough, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Did the Workers’ Compensation Specialist err as a matter of law by issuing an order that Defendant pay permanency benefits in accordance with Dr. Fenton’s impairment rating as opposed to Dr. Kirkpatrick’s rating?
FINDINGS OF FACT:
The following facts are undisputed:
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 June 10, 2002 Claimant injured her right shoulder and lower back in a work-related incident.
3. Between October 2003 and December 2005 Claimant underwent numerous independent medical evaluations. Ultimately the parties were able to resolve the issues relating to Claimant’s right shoulder injury. They could not agree, however, as to (a) whether Claimant’s ongoing low back complaints were causally related to her work injury; and (b) if so, whether spinal fusion surgery was a reasonable and necessary treatment.
4. Both of these issues were determined in Claimant’s favor following a formal hearing in 2007. V.P. v. Heritage Ford, Opinion No. 26-07WC (September 28, 2007). Defendant was ordered to pay workers’ compensation benefits associated with the proposed fusion surgery, “including payment of medical bills and both temporary and/or permanent
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disability benefits, as proven following the procedure.” Id. On appeal, the Chittenden Superior Court affirmed following a jury trial in June 2008.
5. Claimant underwent lumbar spinal fusion surgery in January 2009. Thereafter, she underwent two independent medical evaluations for the purpose of determining the extent of her permanent impairment. The first was with Dr. Kirkpatrick in January 2010, the second with Dr. Fenton in July 2010.
6. There are two versions of Dr. Kirkpatrick’s report, both dated January 8, 2010. In one report, Dr. Kirkpatrick calculates the impairment referable to Claimant’s lumbar spine at 28% whole person. In the amended version of the same report, he calculates the impairment at 25% whole person. In both versions, Dr. Kirkpatrick referenced the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), and used DRE Lumbar Category V as the basis for his rating. Impairment ratings in that category can range from 25% to 28% whole person.
7. Dr. Fenton also used DRE Lumbar Category V as the basis for his lumbar spine impairment rating, which he determined to be 28% whole person. The 3% difference between this rating and Dr. Kirkpatrick’s 25% rating is what drives the parties’ current dispute.
8. In his report, Dr. Fenton explained the rationale for his rating as follows:
[Claimant] clearly meets the criteria for the higher end of a DRE Lumbar Category V . . . of 28% whole person due to her persistent radiculopathy, status post single level fusion, and continued pain and [activities of daily living] limitations.
9. In an October 2010 letter to Defendant’s attorney, Dr. Kirkpatrick acknowledged that he had placed Claimant at the lower end of the Category V impairment scale, whereas Dr. Fenton had placed her at the higher end. Dr. Kirkpatrick explained his reasoning as follows:
The claimant by criteria met Lumbar Category V by virtue of motion segment alteration and radiculopathy. . . . On a functional level, the claimant has been able to function with activities of daily living without difficulty, and has had a very good result with the degree of surgery that she has had with no clear evidence of continued defined radiculopathy, except for the symptoms that she described.
It is my opinion, therefore, that she fits the lower end of the DRE Lumbar Category of 25% whole person impairment, not 28% as ascribed by Dr. Fenton. This claimant has had a good result within that category.
10. In August 2010 Claimant filed a Notice and Application for Hearing with the Department in which he claimed entitlement to permanency benefits in accordance with Dr. Fenton’s 28% impairment rating.
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11. In December 2010 the Department’s Workers’ Compensation Specialist ordered Defendant to pay permanency benefits in accordance with Dr. Fenton’s rating. As support for her order, the Specialist noted that medical records both prior to and following Dr. Kirkpatrick’s evaluation documented ongoing complaints of low back pain, radiculopathy and limitations in Claimant’s activities of daily living. Finding these records to be more consistent with Dr. Fenton’s observations than with Dr. Kirkpatrick’s, the Specialist concluded that Dr. Fenton’s rating was the more credible one.
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. Defendant seeks a determination that the Workers’ Compensation Specialist exceeded her authority by issuing an interim order to pay permanency benefits in accordance with Dr. Fenton’s impairment rating. It asserts that in choosing that rating over Dr. Kirkpatrick’s, the Specialist improperly ignored the credibility issues surrounding Claimant’s subjective reports of pain and limitations as to daily living activities, which Dr. Kirkpatrick found to be less significant than what Dr. Fenton had concluded. As a matter of law, Defendant argues, such credibility issues preclude the Commissioner, or her designee, from ordering that benefits be paid until the parties have had an opportunity to present evidence in the context of a formal hearing.
3. The Commissioner’s power to issue an interim order in advance of a formal hearing derives from both statute, 21 V.S.A. §662(b), and rule, Workers’ Compensation Rule 6.1400. The standard of review is whether the evidence produced does or does not “reasonably support” a denial of compensation. Id.
4. Particularly with respect to claims for compensation related to the extent of an injured worker’s permanent impairment, Workers’ Compensation Rule 14.4000 requires that if the dispute in a particular claim involves permanent partial disability ratings which differ by 10 percent or less, “the rating shall be determined by the commissioner.” By virtue of 21 V.S.A. §601(20), the Commissioner’s authority extends to his or her designee, including a Workers’ Compensation Specialist. Nothing in the rule precludes the Specialist from making that determination in the context of the Department’s informal dispute resolution process.
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5. It is true, as Defendant asserts, that as a general rule it is good practice not to issue an interim order where questions as to a witness’ credibility are central to the dispute. Typically such disputes are best dealt with in the context of a formal hearing, where the witness’ demeanor can be evaluated and the truth of his or her assertions judged more effectively than is possible in the context of the Department’s informal dispute resolution process.
6. Neither the statute nor the rule absolutely prohibits an interim order from issuing in any case in which a witness’ credibility is questioned, however. Where other evidence exists from which the truthfulness of his or her statements reasonably can be inferred, an interim order still might be appropriate.
7. In issuing her interim order here, the Specialist determined that Dr. Fenton’s impairment rating was more credible than Dr. Kirkpatrick’s in part because it was based on findings as to Claimant’s pain and functional limitations that were substantiated by other medical records as well. This was a proper analysis for her to undertake. If Defendant objects to the result, its remedy is to litigate the issue at formal hearing. Haggart v. General Dynamics, Opinion No. 11-00WC (May 16, 2000). In the meantime, however, I see no basis for concluding that the Specialist’s determination was erroneous as a matter of law.
ORDER:
Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 25th day of March 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.

Edwin Sevene v. Don-Vac, Inc. (June 23, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Edwin Sevene v. Don-Vac, Inc. (June 23, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Edwin Sevene Opinion No. 16-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Don-Vac, Inc. For: Anne M. Noonan
Commissioner
State File No. H-6839
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Jennifer Pacholek, Esq., for Claimant
Stephen Ellis, Esq., for Defendant
ISSUE:
Is Claimant’s claim for permanent total disability benefits barred as a matter of law on statute of limitations grounds?
FINDINGS OF FACT:
Considering the facts in the light most favorable to the non-moving party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. Claimant worked for Defendant as a floor installer. On October 3, 1994 he injured his lower back in the course and scope of his employment. He was diagnosed with a lumbar disc herniation and later underwent L4-5 and L5-S1 disc surgery.
2. Defendant accepted Claimant’s injury as compensable and paid workers’ compensation benefits accordingly.
3. On two occasions, first in February 1995 and later in March 1997, Claimant was referred for vocational rehabilitation entitlement assessments in accordance with 21 V.S.A. §641. In both instances, medical providers had determined that Claimant had a medium duty work capacity. On each occasion, the assigned vocational rehabilitation counselor concluded that Claimant had sufficient transferable skills to obtain suitable employment at either that level or at a light duty level. On those grounds, Claimant was deemed not entitled to vocational rehabilitation services.
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4. In October 1998 Claimant was determined to have reached an end medical result, and was rated with an 8.5% whole person permanent impairment. Defendant paid permanent partial disability benefits in accordance with this rating.
5. At some point thereafter, Claimant returned to work as a self-employed light carpentry, painting and landscaping contractor. During this time he also performed similar work for two other local construction contractors.
6. In October 2001 Claimant advised Dr. Weinberg, his primary care physician, that his back pain had worsened, that he was limiting his hours at work and that he was having difficulty sleeping. Dr. Weinberg determined that Claimant was no longer able to perform light carpentry and painting work, because of the repetitive bending and heavy lifting involved. He concluded that Claimant needed to “change his back-abusing job” and obtain vocational rehabilitation assistance so as to find more suitable employment. Claimant testified at his deposition that he understood the doctor’s recommendation to mean that he should “get out of the construction business.”
7. At Defendant’s request, in April 2002 Claimant underwent an independent medical evaluation with Dr. Lefkoe. Dr. Lefkoe determined that Claimant properly had been placed at end medical result in 1998, and that his lower back condition was both chronic and permanent. Dr. Lefkoe also determined that Claimant had a light duty work capacity with a twenty-pound lifting restriction.
8. Upon reviewing Dr. Lefkoe’s report, in May 2002 Dr. Weinberg reiterated his previous recommendation that Claimant be referred for vocational rehabilitation assistance so that he could “get out of the physical labor market altogether.” Also in May 2002 Claimant corresponded with the Department’s workers’ compensation specialist, raising various issues about his workers’ compensation claim. In the letter, Claimant specifically requested vocational rehabilitation assistance. He also claimed entitlement to further temporary total and medical benefits. As to the latter, Claimant requested both physical therapy and assistance with weaning himself off of narcotic pain medications.
9. Despite a recommendation from the Department’s workers’ compensation specialist that it do so, Defendant declined either to pay for Claimant to undergo another vocational rehabilitation entitlement assessment or to offer vocational rehabilitation services in response to Claimant’s request. With reference to the 1995 and 1997 assessments, both of which had concluded that Claimant was not entitled, it stated that a third assessment was neither necessary nor warranted.
10. In July 2002 Dr. Weinberg described Claimant’s situation to the Department’s workers’ compensation specialist as follows:
For years now it has been amply demonstrated that returning to any kind of construction work, whether heavy or light, results in exacerbation of [Claimant’s] pain and disability. My patient wants to return to work but cannot return to his current vocation and would greatly benefit from vocational rehabilitation/consultation/evaluation in order for him to obtain
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long-term gainful employment that does not cause debilitating pain requiring narcotics, which themselves have debilitating side effects.
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11. In September 2002 the parties participated in an informal telephone conference with the Department’s workers’ compensation director. The substance of the conference concerned whether Claimant had yet reached an end medical result, as both the Department and Defendant previously had determined. Following the conference, the Director indicated that the matter would not be forwarded to the formal hearing docket until Claimant produced further evidence on the end medical result issue. There is no indication, however, that the question of Claimant’s entitlement to vocational rehabilitation services was ever discussed.
12. At Dr. Weinberg’s referral, on January 14, 2003 Claimant underwent an evaluation with Dr. Cody at the Spine Institute of New England. In reporting his findings back to Dr. Weinberg, Dr. Cody stated:
[Claimant] continues to have chronic low back pain. He is essentially totally disabled from work. He does believe that he is clinically depressed at this time, and he has a lot of concerns. He has gained a significant amount of weight, and he has not worked for over a year. His back pain is constant, with many aggravating activities, and no relieving activities.
After making some recommendations for further treatment, Dr. Cody continued:
We also did recommend that [Claimant] apply for disability and also try to get his workers’ compensation opened back up through a hearing, which we will think, no doubt, he will have the ability to do.
13. In June 2003 Claimant applied for social security disability benefits, alleging a date of onset of August 10, 2001. This application was denied in October 2003 on the grounds that Claimant had a “capacity for [substantial gainful activity]-other work.”
14. Claimant again applied for social security disability benefits in March 2008, this time alleging that his disability began on March 1, 2000. This application also was denied, on the same grounds as previously.
15. On January 28, 2008 Claimant wrote to Defendant and again requested vocational rehabilitation services. Defendant denied this request on February 27, 2008, once again referring to the 1995 and 1997 vocational assessments as support for its position that Claimant was not entitled.
16. In March 2008 the Department’s vocational rehabilitation specialist corresponded with Defendant as to Claimant’s renewed request for vocational rehabilitation services. The specialist instructed Defendant to file a Memorandum of Payment (Form 25M) so that the Department could determine whether Claimant was entitled to vocational rehabilitation screening in accordance with Workers’ Compensation Rule 53.0000.
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17. For reasons that are not clear from the record, the screening process did not occur until more than a year later, July 28, 2009. It concluded that Defendant was obligated to refer Claimant for a vocational rehabilitation entitlement assessment. In the meantime, in December 2008 Claimant retained legal counsel. On April 30, 2009 counsel filed a Notice and Application for Hearing (Form 6), challenging Defendant’s denial of vocational rehabilitation benefits.
18. On February 28, 2010 Claimant’s attorney filed a second Notice and Application for Hearing, again seeking vocational rehabilitation benefits. By this time, some seven months after the screening process had determined that Defendant was obligated to pay for Claimant to undergo another entitlement assessment, no such assessment had yet occurred.
19. At the Department’s referral, Claimant underwent a second screening process in November 2010. Like the first one, this screening as well determined that Claimant was an appropriate candidate for a vocational rehabilitation entitlement assessment.
20. Defendant challenged the screening determination. Following an informal conference, in February 2011 the Department’s vocational rehabilitation specialist ordered that it comply with the screening determination and undertake a vocational rehabilitation entitlement assessment.
21. At his attorney’s referral, in August 2010 Claimant underwent a functional capacity evaluation with Charles Alexander, an occupational therapist. Mr. Alexander determined that Claimant had no work capacity. Specifically, Mr. Alexander stated:
To summarize, [Claimant] currently does not have a work capacity based on the Dictionary of Occupational Titles. His residual work capacity is potentially 2 hours of sedentary work that does not require lifting from the floor. In working at this level he would need to be able to change his position from sitting at least every 30 minutes to manage his pain. With this residual work capacity coupled with the fact that he does not have a driver’s license and has a variety of other medical issues, employment is unlikely. Based on the chronic nature of this injury it is unlikely that his abilities are going to change.
22. With Mr. Alexander’s report as support, on September 13, 2010 Claimant ‘s attorney filed a third Notice and Application for Hearing, this time claiming entitlement to permanent total disability benefits.
23. At Defendant’s referral, in April 2011 Claimant underwent a second functional capacity evaluation with Sandy Ladd, a physical therapist. Ms. Ladd concluded that Claimant demonstrated “at least the capacity for sedentary to light work, but a definitive level above that cannot be ascertained from the data.”
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24. Claimant’s deposition testimony is somewhat conflicting as to when he first came to understand that he was unlikely ever to return to gainful employment. He acknowledged that his disability had not changed at least since October 2001, when he ceased doing the light carpentry and painting work he had been doing before. It is unclear, however, at what point he understood that he was precluded from performing any work at all.
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. Here, Defendant argues that Claimant’s claim for permanent total disability benefits is time-barred under 21 V.S.A. §660(a) because it was not asserted within six years of becoming reasonably discoverable and apparent. Defendant points to Dr. Cody’s January 14, 2003 statement that Claimant was “essentially totally disabled from work” as the moment at which his permanent total disability claim accrued. As a matter of law, therefore, Defendant asserts that the limitations period already had run by the time Claimant filed his September 13, 2010 Notice and Application for Hearing.
3. A cause of action for permanent total disability benefits cannot accrue until it becomes reasonably apparent, both medically and vocationally, that as a result of his or her work injury a claimant most likely will never be able to return to regular gainful employment. Hoisington v. Ingersoll Electric, Opinion No. 52-09WC (December 28, 2009); K.T. v. Specialty Paperboard, Opinion No. 33-05WC (June 24, 2005). Until that point occurs, it would be premature to make a claim for permanent total disability benefits. By the same token, because a claim period can only begin to run when there is in fact something to claim, Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 446 (1985), the same point in time also governs consideration of a statute of limitations defense. Hoisington, supra; K.T. v. Specialty Paperboard, supra.
4. Taking the evidence in the light most favorable to Claimant, Toys Inc., supra, I cannot conclude as a matter of law that his claim for permanent total disability accrued at the moment that Dr. Cody described him as “essentially totally disabled from work.” Even assuming that this constituted credible evidence of Claimant’s inability to return to work from a medical perspective, it does not begin to approach a credible statement of Claimant’s vocational outlook at the time. A viable claim for permanent total disability requires due consideration of both medical and vocational factors, however. 21 V.S.A. §644(b); Workers’ Compensation Rule 11.3100.
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5. Nor can I conclude from the undisputed evidence that Claimant’s permanent total disability claim was reasonably discoverable and apparent at any time before Dr. Cody’s pronouncement. To the contrary, up until that time Dr. Weinberg had been advocating strongly for vocational rehabilitation services aimed at assisting Claimant to find a more suitable, less “back-abusing” job.
6. Last, I cannot conclude from the undisputed evidence that Claimant’s claim became reasonably discoverable and apparent at any time after Dr. Cody’s pronouncement but before September 13, 2004, the date on which a six-year statute of limitations would preclude his most recent filing.
7. I agree with Defendant that the correct standard for determining when a claim for particular benefits arises is when it becomes reasonably discoverable and apparent, not necessarily when the claimant becomes aware of it. Longe v. Boise Cascade Corp., 171 Vt. 214, 219-220 (2000). However, Defendant’s position in this claim has long been that Claimant was not entitled to vocational rehabilitation services because he had both the work capacity and the transferable skills necessary to be employable. It is curious, therefore, for it now to argue that Claimant should have known all along that he was permanently precluded from working when its own view of the evidence, as expressed on numerous occasions to Claimant, was directly contrary.
8. In fact, there is ample evidence in the record indicating that Claimant may have had at least a light duty work capacity both before and after Dr. Cody’s pronouncement that he was totally disabled. The 1995 and 1997 vocational rehabilitation entitlement assessments, the 2003 and 2008 social security disability denials, Dr. Weinberg’s persistent recommendations for vocational rehabilitation assistance, and most recently, Ms. Ladd’s April 2011 functional capacity evaluation all point in this direction. At a minimum, this evidence gives rise to genuine factual issues as to when Claimant’s permanent total disability claim first became reasonably discoverable and apparent. Such issues are not amenable to determination on summary judgment.
9. I conclude that the undisputed evidence fails to establish that Claimant’s claim for permanent total disability benefits is time-barred as a matter of law. Summary judgment in Defendant’s favor is inappropriate.
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ORDER:
Defendant’s Motion for Summary Judgment is DENIED.
DATED at Montpelier, Vermont this 23rd day of June 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.

Geraldine Spaulding-Singley v. GS Precision (June 6, 2011)

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Geraldine Spaulding-Singley v. GS Precision (June 6, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Geraldine Spaulding-Singley Opinion No. 14-11WC
v. By: Jane Woodruff, Esq.
Hearing Officer
G.S. Precision
For: Anne M. Noonan
Commissioner
State File No. S-01330
RULING ON CLAIMANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Charles Powell, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUE:
Is Claimant entitled as a matter of law to temporary total disability benefits from May 14, 2009 forward?
FINDINGS OF FACT:
For the purposes of this motion 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 Workers’ Compensation Act.
2. In July 2001 Claimant injured her left wrist during the course of her employment for Defendant.
3. From 2001 through May 2009 Claimant experienced chronic pain as a result of this injury. During this time she underwent five surgeries on her left wrist.
4. Claimant was admitted to Parkview Hospital on May 14, 2009 following an apparent suicide attempt. Claimant remained hospitalized there until May 26, 2009.
5. Dr. Lambertson treated Claimant during this hospitalization. Dr. Lambertson did not opine as to whether Claimant was totally disabled from work in May 2009.
6. At Defendant’s request, on March 19, 2010 Claimant underwent a medical evaluation with Dr. Rustagi, a psychiatrist. Dr. Rustagi opined that Claimant suffered from a major depressive disorder causally related to her July 2001 work injury.
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7. Dr. Rustagi also opined that Claimant’s hospitalization at Parkview Hospital in May 2009 was related to her major depressive disorder. However, he did not render an opinion as to whether Claimant was totally disabled from working from that time forward.
8. In December 2010 Claimant began treating with Dr. Kim, a psychologist, for her depressive disorder. At the request of Claimant’s attorney, in January 2011 Dr. Kim opined that Claimant had been totally disabled from working at least as of her May 2009 hospitalization, and that she remains unable to work currently.
9. Dr. Kim acknowledged that she did not have all of Claimant’s mental health records since the date of the initial 2001 injury and that her opinion was based at least in part on Claimant’s self-report.
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 issue presented in this case is whether a genuine issue of material fact exists as to whether Claimant has been totally disabled from working since her May 14, 2009 hospitalization. Claimant argues that because Dr. Kim’s opinion on this issue is unrefuted, as a matter of law she is entitled to summary judgment.
3. Defendant argues in response that even standing on its own Dr. Kim’s opinion cannot support summary judgment in Claimant’s favor. It asserts that by attempting to determine Claimant’s disability status in May 2009, when she did not even begin treating Claimant until December 2010, Dr. Kim has engaged in impermissible speculation. Defendant argues that it would be equally speculative to ask Dr. Rustagi, its own medical expert, to render an opinion on the issue.
4. I do not necessarily agree that a medical expert is precluded from ever making a retroactive determination of an injured worker’s disability status. I do agree, however, that such determinations should be closely scrutinized, particularly with respect to the facts underlying the expert’s determination. Here, where Dr. Kim’s opinion was based at least in part on Claimant’s self-report, it is important for me to be able to judge Claimant’s credibility. Dr. Kim’s credibility needs to be thoroughly evaluated as well. These credibility issues are not appropriately determined on a motion for summary judgment. Pierce v. Riggs, 149 Vt. 136, 139-40 (1987).
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5. As for Claimant’s assertion that because Dr. Kim’s opinion is unrefuted, I am compelled to accept it, this is not true. Even an undisputed expert opinion can be rejected if the fact finder determines that it is not credible. Marshall v. State of Vermont, Opinion No. 01R-11WC (March 28, 2011), and cases cited therein.
ORDER:
Claimant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 6th day of June 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.

Curtis Smiley v. State of Vermont (June 3, 2013)

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Curtis Smiley v. State of Vermont (June 3, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Curtis Smiley Opinion No. 15-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
For: Anne M. Noonan
Commissioner
State File No. J-15114
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s claim for permanent partial disability benefits referable to his
January 29, 1996 compensable work injury barred by the applicable statute of
limitations?
2. If yes, is Defendant barred from asserting the defense?
EXHIBITS:
Defendant’s Exhibit A: Dr. Thatcher medical record, July 8, 1996
Defendant’s Exhibit B: Dr. Backus report, January 20, 2011
Defendant’s Exhibit C : Dr. White report, March 24, 2011
Defendant’s Exhibit D: Case note, March 6, 1996
Defendant’s Exhibit E: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 1: Dr. Backus report, January 20, 2011
Claimant’s Exhibit 2: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 3: Dr. Thatcher medical record, July 8, 1996
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FINDINGS OF FACT:
The following facts are undisputed:
1. This case arises out of an accepted work injury that occurred on January 29, 1996. See
Smiley v. State of Vermont, Opinion No. 12-12WC (April 15, 2012), and exhibits
admitted therein.
2. Following a course of medical treatment with Dr. Thatcher, by July 8, 1996 Claimant had
returned to work, and overall appeared to be doing quite well. He declined physical
therapy for his lingering symptoms. Dr. Thatcher anticipated that these would continue
to improve over time, and therefore advised him to return for treatment only as needed.
3. There was no further activity on Claimant’s claim file for more than fourteen years, until
October 21, 2010. On that date, Claimant’s attorney entered his appearance.
Subsequently, the attorney advised Defendant that Claimant was pursuing a claim for
permanent partial disability benefits referable to his 1996 work injury.
4. In November and December 2010, Claimant’s attorney requested that Defendant
schedule a permanency evaluation. In response, Defendant scheduled an independent
medical evaluation with Dr. Backus, which Claimant attended on January 20, 2011.
5. Dr. Backus determined that Claimant had suffered a one percent whole person permanent
impairment referable to his 1996 work injury. Following an evaluation in March 2011,
Claimant’s own medical expert, Dr. White, also calculated his ratable impairment at one
percent.
6. Dr. Backus determined that Claimant probably had reached an end medical result for his
work-related injury “back in 1996.” Dr. White as well determined that Claimant had
reached an end medical result, but did not specify a date when this likely occurred.
7. On May 16, 2011 Defendant filed a Denial of Workers’ Compensation Benefits (Form 2),
in which it denied Claimant’s demand that permanency benefits be paid on the grounds
that his claim was time-barred.
8. On June 3, 2011 Claimant filed a Notice and Application for Hearing (Form 6) as to
whether he was entitled to permanent partial disability benefits referable to his 1996 work
injury.
9. On September 7, 2011 Defendant’s counsel filed its answer, which pled the affirmative
defense of statute of limitations.
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10. Claimant initially argued that Defendant had waived its right to assert a statute of
limitations defense by scheduling Dr. Backus’ January 2011 permanency evaluation. In a
ruling dated April 15, 2012 the Commissioner determined that Defendant’s statute of
limitations defense was still viable. Smiley v. State of Vermont, Opinion No. 12-12WC
(April 15, 2012).
11. The remaining issue is whether Claimant’s claim for permanent partial disability benefits
is in fact time-barred, and if so, whether Defendant should be barred from asserting the
defense.
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). Summary judgment is appropriate only when the facts in question are clear,
undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979). That is the case
here.
2. The legal issues raised by this claim are similar to those that the Vermont Supreme Court
has considered in Longe v. Boise Cascade Corp., 171 Vt. 214 (2000), and Sanz v.
Douglas Collins Construction, 2006 VT 102. As in Longe, Defendant argues that
Claimant’s claim for permanency benefits is barred by the applicable statute of
limitations, because he failed to assert it within six years after reaching an end medical
result for his work-related injury.1 Also as in Longe, Claimant argues in response that
Defendant should be barred from asserting the statute of limitations as a defense because
it owed, and breached, a legal duty to investigate whether any permanent impairment had
been suffered. As in Sanz, the question whether such a duty existed depends on whether
an amended rule should be applied retroactively to govern the parties’ rights and
responsibilities in this case.
Statute of Limitations
3. According to Vermont’s workers’ compensation statute, the controlling date for
determining when the applicable statute of limitations begins to run is the “date of
injury.” 21 V.S.A. §660(a). That phrase has long been interpreted to mean “the point in
time when an injury becomes reasonably discoverable and apparent.” Longe, supra at
219, citing Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 447 (1985).
1 The statute of limitations for initiating a claim for workers’ compensation benefits has since been amended, and is
now three years. 21 V.S.A. §660(a).
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4. Determining when an injury has become “reasonably discoverable and apparent” is a
question of fact that necessarily varies from case to case. Kraby v. Vermont Telephone
Co., 2004 VT 120, ¶6; see also, Lillicrap v. Martin, 156 Vt. 165, 172 (1989) (applying
reasonable discovery rule in medical malpractice context). Notably, a litigant “need not
have an airtight case before the limitations period begins to run,” but merely “should
have obtained information sufficient to put a reasonable person on notice that a particular
defendant may have been liable” for his or her injuries. Rodrigue v. Valco Enterprises,
169 Vt. 539, 540-41 (1999) (applying reasonable discovery rule in dram shop action).
The limitations period itself affords ample opportunity subsequently to flesh out the facts
and pursue available remedies. Id.
5. In the context of a claim for permanent partial disability benefits, the reasonable
discovery rule typically requires that the statute of limitations not begin to run until the
claimant reaches an end medical result. Kraby, supra; Longe, supra. “The claim period
can only begin to run when there is in fact something to claim,” Hartman, supra at 446.
Not every work-related injury justifies permanency compensation. Until treatment
concludes, the ongoing medical recovery process still might yield a full recovery with no
permanent impairment at all. Richardson v. Regular Veteran’s Association Post #514,
Opinion No. 04-11WC (February 16, 2011).
6. Applying these rules to the current claim, and considering the evidence in the light most
favorable to Claimant as the non-moving party, State v. Delaney, 157 Vt. 247, 252
(1991), I conclude as a matter of law that the statute of limitations on Claimant’s claim
for permanent partial disability benefits began to run on or about July 8, 1996. This was
the date on which his treating physician released him from active care, with instructions
to follow up only as needed. By this time Claimant had returned to work and there is no
evidence that he ever considered resuming treatment subsequently. The logical inference
is that both Claimant and his doctor appropriately perceived that treatment for the workrelated
injury had concluded.
7. What expert evidence there is also establishes July 1996 as the most likely end medical
result date. With no record of any subsequent treatment, Dr. Backus’ conclusion that
Claimant probably had reached the point of maximum medical improvement “back in
1996” likely refers to that timeframe. That his opinion necessarily was retrospective in
nature does not in any way disqualify it. See, e.g., Kraby, supra (treating surgeon’s
retrospective declaration of end medical result accepted as determinative).
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8. Claimant argues that because the determination of end medical result is a medical opinion
requiring expert evidence, and because he is not an expert, he cannot be charged with
knowledge of that event sufficient to trigger the statute of limitations until an expert so
declared it. I disagree. It is true that medical expert testimony is required to establish
those elements of a workers’ compensation claim about which “a layman could have had
no well-grounded opinion,” most notably the causal relationship between an injured
worker’s employment and his or her injury. Lapan v. Berno’s, Inc., 137 Vt. 393, 395
(1979). It does not necessarily follow that a lay person can never be deemed to know
whether he or she has concluded treatment, either with or without lingering deficits or
dysfunction. Such matters are not so far beyond “the untutored understanding of the
average layman” that they are only reasonably discoverable with an expert’s assistance.
See Lillicrap, supra at 174 (noting that recipient of health care services may be aware of
fact of a “disability or dysfunction,” though admittedly not of its cause); see also, Bruno
v. Directech Holding Co., Opinion No. 18-10WC (May 19, 2010) (extension of end
medical result date not justified where claimant had failed to actively treat during period
in question).
9. As the court explained in Hartman, supra at 447, the issue raised by the reasonable
discovery standard is simply “whether the claimant had any reasonable occasion to file a
claim sooner than he did.” Though this is ordinarily a question of fact, the evidence here
is so clear as to render it a matter of law. Claimant probably would not have described
his situation in these terms, but as of July 1996 he knew, or should have known, that he
had reached an end medical result, and that whatever deficits he was left with were likely
permanent in nature. He then had six years within which to investigate and pursue his
legal remedies. Having failed to do so, I conclude that his claim for permanent partial
disability benefits is now time-barred.
Duty to Investigate
10. Notwithstanding that Claimant’s claim for permanency benefits is time-barred, Defendant
still might be precluded from asserting the statute of limitations as a defense if it is shown
to have had, and breached, a duty to investigate the extent of his permanent impairment
in a more seasonable fashion. Such a duty can be imposed either by way of an applicable
statute or rule, or by operation of the doctrines of equitable estoppel or equitable tolling.
Longe, supra at 223.
(a) The 1996 Amendments to Workers’ Compensation Rule 18
11. In 1983, when the injury under consideration in Longe occurred, neither the workers’
compensation statute nor the applicable rules imposed an affirmative duty on an
employer to investigate whether an injured worker had suffered a permanent impairment
as a result of a work-related injury. Longe, supra at 222. Nor was there any duty owed
to notify the worker of his or her right to permanency benefits. Id. at 223.
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12. Effective May 15, 1996 the Department amended Workers’ Compensation Rule 18 and
imposed upon employers a duty to investigate the extent of an injured worker’s
permanent impairment. As amended, the rule now states:
The employer (insurer) shall take action necessary to determine whether
an employee has any permanent impairment as a result of the work injury
at such time as the employee reaches a medical end result.
. . .
A determination as to whether the claimant has any permanent impairment
shall be made within 45 days of filing the notice of termination [of
temporary disability compensation].
Workers’ Compensation Rules 18.1100 and 18.1200 (formerly Rules 18(a)(1) and
18(a)(2)).
13. Had Claimant’s work injury occurred after May 15, 1996, the effective date of these
amendments, there would be no reason to question their applicability to his pending claim
for permanency benefits. The injury at issue here occurred some five months earlier,
however, in January 1996. Under these circumstances, the question arises whether the
amendments properly should control the parties’ respective rights and responsibilities in
this case.
14. Vermont law provides that the amendment of a statutory provision “shall not affect any
right, privilege, obligation or liability acquired, accrued or incurred” prior to the
amendment’s effective date. 1 V.S.A. §214(b)(2); Myott v. Myott, 149 Vt. 573, 575-76
(1988). Phrased alternatively, this general rule of statutory construction prohibits
legislative amendments that affect substantive rights and responsibilities from being
applied retroactively. In contrast, amendments that are solely procedural can be given
retroactive effect, and therefore can be applied to claims that already are pending at the
time the new statute becomes effective. Id.
15. The Supreme Court has applied these well-established rules specifically to workers’
compensation claims. Citing to 1 V.S.A. §214, in Montgomery v. Brinver Corp., 142 Vt.
461, 463 (1983), the court declared, “The right to compensation for an injury under the
Workmen’s Compensation Act is governed by the law in force at the time of occurrence
of such injury.” The date of an employee’s work-related injury is thus the controlling
date for determining whether a substantive amendment to the statute will apply.
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16. The court clarified what constitutes the “right to compensation” for the purposes of
determining whether a statutory amendment is substantive or procedural in Sanz, supra at
¶6. A post-injury amendment that “fundamentally changes the right to benefits or the
obligation to pay them” is substantive, and cannot be applied retroactively. An
amendment that does not fundamentally change pre-existing rights and responsibilities is
procedural, and can be applied in a pending action.2 Id.
17. The claimant in Sanz suffered a work-related injury in 1998, for which he reached an end
medical result in 2003. After some dispute regarding the extent of his permanent
impairment, in 2004 the employer accepted his claim for permanent total disability
benefits. However, it refused to honor his request that benefits be paid in a lump sum
rather than weekly. Relying on a 2000 amendment to the statute, which empowered the
commissioner to order payment in a lump sum even without the employer’s consent, the
claimant sought redress, first before the commissioner and then before the Supreme
Court. The issue was whether the amendment to the statute, which was enacted after the
claimant’s injury occurred but before his claim for permanent total disability benefits
accrued, properly governed his case.
18. Claimant premised his assertion that the amended statute applied to his circumstance on
two grounds. First, he argued that because the employer’s obligation to pay permanency
benefits did not arise until he reached an end medical result in 2003, the law in effect as
of that date should control. The court disagreed. Relying on the rule enunciated in
Montgomery, supra, it held that regardless of when a statutorily defined benefit is
required to be paid, the right to receive it – “the right to compensation” – is still acquired
at the time of the injury. Sanz, supra at ¶11. By the same token, the court continued,
“the obligation to pay those benefits is also governed by the law in force at the time of
injury.” Id.
19. Next, the claimant in Sanz argued that because the amendment in question altered only
the method by which an employer might be obligated to pay permanency benefits, but not
the obligation to pay benefits itself, it was procedural rather than substantive in nature,
and therefore could be applied retroactively to his claim. The court rejected this
argument as well. By allowing the commissioner to order an employer to discharge its
payment obligation all at once rather than gradually, it reasoned, the amendment would
“fundamentally alter” the employer’s obligation. Id. at ¶13. Just as significantly, by
awarding claimants the opportunity to use or invest a large up-front payment, the
amendment would “fundamentally change” the benefit owed them. Id. Thus, because
the amendment substantially affected both the claimant’s right to compensation and the
employer’s obligation to pay it, the court concluded that it was substantive in nature. As
a consequence, it could not be applied retroactively to injuries that predated its
enactment. Id.
2 The same substantive-versus-procedural analysis applies to amendments to the administrative rules that govern
workers’ compensation proceedings. Workers’ Compensation Rule 46.1000; see, e.g., Taft v. Central Vermont
Public Service Corp., Opinion No. 03-11WC (January 25, 2011).
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20. Claimant here makes essentially the same arguments as were asserted in Sanz. First, he
argues that although the amendments to Rule 18 were not enacted until after his work
injury occurred, nevertheless they should govern his claim for permanency benefits
because they became effective before he reached an end medical result. The court
specifically rejected this argument in Sanz, supra at ¶11, and so I do as well.
21. Second, Claimant asserts that the amendments to Rule 18 can be applied retroactively,
because they did not alter any of the parties’ fundamental rights or obligations and
therefore are appropriately characterized as procedural rather than substantive in nature.
Again, I disagree. As the result in Longe demonstrated, both the duty to pay permanency
benefits and the duty to investigate whether such benefits are payable go to the heart of
the responsibilities owed by an employer to an injured worker. By imposing the latter
obligation on employers where clearly, according to the court in Longe, none had existed
before, the amended rule fundamentally altered each party’s respective rights and
responsibilities. As a consequence, the amendments can only be applied prospectively, to
claims involving injuries that occurred after their effective date. That is not the case here.
(b) Equitable Estoppel and Equitable Tolling
22. Having concluded that the duty to investigate imposed by the amended Rule 18 did not
apply to Defendant’s conduct here, the only other basis for excusing Claimant’s failure to
pursue his permanency claim in a timely manner is if the circumstances justify invoking
the doctrines of equitable estoppel or equitable tolling. Longe, supra at 226. The
undisputed facts do not support applying either doctrine.
23. The doctrine of equitable estoppel promotes fair dealing and good faith “by preventing
‘one party from asserting rights which may have existed against another party who in
good faith has changed his or her position in reliance upon earlier representations.’”
Beecher v. Stratton Corp., 170 Vt. 137, 139 (1990), quoting Fisher v. Poole, 142 Vt. 162,
168 (1982). At the doctrine’s core is the concept that through its conduct, the party
against whom estoppel is asserted must have intended that the other party would be
misled to his or her detriment. Id.; Longe, supra at 224.
24. Absent either a promise or some degree of fraudulent misrepresentation or concealment,
generally the doctrine of equitable estoppel will not bar a defendant from asserting the
statute of limitations as a defense to another party’s claim. Beecher, supra. In the
workers’ compensation context, estoppel applies “when the conduct or statements of an
employer or its representatives lull the employee into a false sense of security, thereby
causing the employee to delay the assertion of his or her rights.” Freese v. Carl’s
Service, 375 N.W.2d 484, 487 (Minn. 1985), quoted in Longe, supra at 224.
25. The doctrine of equitable tolling has even more limited application. It is justified only
when either “‘(1) the defendant actively misled the plaintiff or prevented the plaintiff in
some extraordinary way from filing a timely lawsuit; or (2) the plaintiff timely raised the
precise claim in the wrong forum.’” Longe, supra at 224-225, quoting Beecher, supra at
143.
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26. Claimant has failed to assert any facts here from which I might conclude that he was
misled to his detriment as a result of Defendant’s conduct. That he was unaware of his
right to seek permanency benefits is apparent from his own failure to act, but this is not
sufficient to establish estoppel. Longe, supra. What is required is that his failure must
have been induced in some way by Defendant’s intentional conduct. There is no
evidence whatsoever that this is what occurred.
27. Even considering the evidence in the light most favorable to Claimant, I conclude as a
matter of law that neither the doctrine of equitable estoppel nor that of equitable tolling
justifies barring Defendant from asserting the statute of limitations as a defense to
Claimant’s claim for permanency benefits.
Summary
28. “The burden is generally on the party seeking relief to take some affirmative action in
order to protect his or her rights.” Longe, supra at 225. If he or she fails to do so,
thereby letting the statute of limitations expire, then “absent a legal disability or
circumstances sufficient to invoke the doctrines of equitable estoppel or equitable tolling,
he has no right to relief.” Id. at 226. Claimant here did not take action until some years
after the statute of limitations on his claim for permanency benefits had expired. His
failure to do so is not excused by any neglect of duty on Defendant’s part, nor by
circumstances sufficient to justify equitable relief in his favor. As a matter of law, his
claim is time-barred.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for
permanent partial disability benefits referable to his January 29, 1996 work-related injury is
barred by the applicable statute of limitations and is therefore DENIED.
DATED at Montpelier, Vermont this 3rd day of June 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.

David Yustin v. State of VT, Dept. of Public Safety (March 20, 2012)

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

David Yustin v. State of VT, Dept. of Public Safety (March 20, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
David Yustin Opinion No. 08-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
State of Vermont,
Department of Public Safety For: Anne M. Noonan
Commissioner
State File No. Y-03486
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to an award of costs and attorney fees for legal representation provided in securing the Department’s March 2008 interim order?
2. Was Claimant’s request for an award of costs and attorney fees timely filed?
FINDINGS OF FACT:
For the purposes of these cross motions, the following facts are not disputed:
1. Claimant was an employee and Defendant was his employer within the meaning of Vermont’s Workers’ Compensation Act.
2. On June 12, 2006 Claimant, a Vermont State trooper, injured his left shoulder. The injury occurred while he was working out at the Rutland County Sheriff’s Department gym in preparation for a physical fitness exam. Claimant was off duty at the time.
3. Initially Defendant denied that Claimant’s injury was compensable, on the grounds that it did not arise out of and in the course of his employment with Defendant.
4. While Claimant contested Defendant’s denial, he used accumulated sick leave to pay for his time out of work, and employer-provided health care benefits to cover his medical costs.
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5. On March 24, 2008 the Department issued an interim order requiring Defendant to pay both temporary total disability and medical benefits causally related to Claimant’s shoulder injury.
6. Defendant did not challenge the Department’s March 2008 interim order. However, rather than paying temporary disability benefits outright, instead it reinstated the sick leave Claimant had used to cover his time out of work.
7. Claimant objected to this reimbursement procedure. He argued that Defendant should have paid him the temporary disability benefits it owed in a lump sum rather than reimbursing his sick leave bank. If it had done so, then Claimant would have had funds available from the benefit award with which to pay his attorney fees.
8. Claimant pursued this issue to formal hearing. On July 17, 2009 the Commissioner ruled in Defendant’s favor, thus denying Claimant’s challenge to its sick leave reimbursement process. Claimant then appealed to the Vermont Supreme Court. On February 23, 2011 the Court issued its decision upholding the Commissioner’s determination. Yustin v. Department of Public Safety, 2011 VT 20.
9. In affirming Defendant’s right to offset Claimant’s sick leave wages against the temporary disability benefits the Department had ordered it to pay, the majority opinion in Yustin addressed the question whether the process was in fact “cost-neutral” to Claimant. Id., ¶14. Responding to the argument raised in the dissenting opinion – that the process was not cost-neutral because it deprived Claimant of a lump-sum award from which to pay his attorney fees – the majority stated:
Claimant’s argument overlooks his clear statutory right to seek from the Commissioner a reimbursement of reasonable attorney fees incurred in pursuing his claim, a right that applies even where – as here – the attorney fees are incurred prior to final hearing. See 21 V.S.A. §678(d) (authorizing an award of attorney fees incurred to secure payment of benefits in settlement after denial but before formal hearing).
Id.
10. In a footnote, the majority addressed in greater detail the dissent’s charge that Claimant’s right to seek attorney fees was “illusory,” because it was restricted by certain workers’ compensation rules limiting the circumstances under which fees could be awarded at the informal dispute resolution level. With specific reference to what is now Workers’ Compensation Rule 10.1320 – where a claim is denied “without reasonable basis” – the majority noted that there had been ample evidence in the record to support a request for attorney fees on those grounds. It concluded:
Thus, Claimant was afforded a reasonable opportunity, had he applied, to secure his attorney fees. Recovery of fees may not be guaranteed, but it is not illusory. Of course, Claimant cannot recover what he does not seek.
Id., ¶14, n.2.
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11. Claimant first sought an award of costs and attorney fees incurred in securing the Department’s March 24, 2008 interim order on April 14, 2009; however, his filing was not accompanied by a fee agreement and itemization of costs, as required by Workers’ Compensation Rule 10.7000. Although duly notified of these deficiencies, Claimant did not immediately supplement his filing, and therefore it was never ruled upon.
12. On May 9, 2011 Claimant again filed a request for an award of the costs and attorney fees associated with securing the Department’s interim order. In support of his request, Claimant asserted that in its February 23, 2011 decision the Supreme Court had enunciated a “newly discovered legal principle” – that the discretion granted by 21 V.S.A. §678(d) to award fees at the informal level could be applied to work injuries that had occurred prior to the statute’s effective date, June 11, 2008. Analogizing to the long-standing principle by which the date of a work-related injury is deemed to be the point when it becomes “reasonably discoverable and apparent,” Hartman v. Ouellette Plumbing, 146 Vt. 443, 447 (1985), Claimant argued that his right to request an award of fees and costs had only accrued as of the date when the Supreme Court’s decision was issued.
13. On November 4, 2011 the Department issued a preliminary ruling denying Claimant’s request for costs and attorney fees. It is in the context of Claimant’s appeal of this ruling that the parties have filed the pending cross motions for summary judgment.
14. Claimant has appended to his summary judgment motion a fee agreement that he executed on December 19, 2011. The agreement appears to cover his attorney’s representation for all aspects of his claim for benefits causally related to his left shoulder injury.
15. Claimant seeks an award of costs totaling $199.23 and attorney fees totaling $2,591.00. The latter amount represents 24.6 hours incurred to secure the Department’s March 24, 2008 interim order, and 2.6 hours incurred in preparing his fee request. In addition, Claimant seeks interest at the rate of 12 percent per annum from June 11, 2008 until the requested costs and fees are paid.
DISCUSSION:
1. The issue presented by these cross motions is fairly simple: whether Claimant is entitled to an award of costs and attorney fees for representation provided to secure the Department’s March 24, 2008 interim order. Resolving this question requires consideration of the statute, both as it existed at the time of Claimant’s injury and as amended in June 2008, and of Workers’ Compensation Rule 10.
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2. Vermont’s workers’ compensation statute has long provided for an award of costs and attorney fees as follows:
Necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails. The commissioner may allow the claimant to recover reasonable attorney fees when the claimant prevails. Costs shall not be taxed or allowed either party except as provided in this section.
21 V.S.A. §678(a).
3. Notably, in authorizing the award of costs and fees to a prevailing claimant §678(a) does not differentiate between the informal dispute resolution process and the formal hearing process. Both constitute “proceedings under this chapter.” Taft v. Central Vermont Public Service Corp., Opinion No. 03-11WC (January 25, 2011). In appropriate circumstances, therefore, the commissioner has long considered the discretion granted by §678(a) to extend to attorney fee awards at either level. Id.; see, e.g., Reed v. Leblanc, Opinion No. 08-05WC (January 19, 2005).
4. Indeed, it was under the authority granted by §678(a) that Workers’ Compensation Rule 10.1300 was promulgated. That rule deals specifically with attorney fee awards at the informal level, as follows:
Awards to prevailing claimants are discretionary. In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing where the claimant is able to demonstrate:
10.1310 that the employer or insurance carrier is responsible for undue delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 that the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been responsible for any unreasonable delay in resolving the issues.
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5. Effective June 11, 2008 two additional subsections were added to §678, as follows:
(d) In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the commissioner may award reasonable attorney fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney’s efforts.
(e) An attorney representing a claimant shall submit a claim for attorney fees and costs within 30 days following a decision in which the claimant prevails.
6. As noted above, Finding of Fact No. 9 supra, in its decision denying Claimant’s challenge to Defendant’s sick leave reimbursement process the Supreme Court specifically referenced §678(d) as an avenue Claimant could have pursued in order to recoup the costs and attorney fees he had incurred at the informal dispute resolution level. Yustin, supra at ¶14. Given that §678(d) had not yet been enacted at the time of Claimant’s 2006 injury, the reference is somewhat confusing. To decipher the Court’s intention, it is necessary to review how statutory amendments, whether substantive or procedural, are applied to pending workers’ compensation claims.
7. Vermont law provides that the amendment of a statutory provision “shall not affect any right, privilege, obligation or liability acquired, accrued or incurred” prior to the amendment’s effective date. 1 V.S.A. §214(b)(2); Myott v. Myott, 149 Vt. 573, 575-76 (1988). Phrased alternatively, this general rule of statutory construction prohibits legislative amendments that affect substantive rights from being applied retroactively. In contrast, amendments that are solely procedural can be given retroactive effect, and therefore can be applied to claims that already are pending at the time the new statute becomes effective. Id.
8. The Supreme Court has applied these well-established rules specifically to workers’ compensation claims. Citing to 1 V.S.A. §214, in Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983), the Court declared, “The right to compensation for an injury under the Workmen’s Compensation Act is governed by the law in force at the time of occurrence of such injury.” The date of an employee’s work-related injury is thus the controlling date for determining whether a substantive amendment to the statute will apply.
9. In Sanz v. Douglas Collins Construction, 2006 VT 106, the Court clarified what constitutes the “right to compensation” for the purposes of determining whether a statutory amendment is substantive or procedural. A post-injury amendment that “fundamentally changes the right to benefits or the obligation to pay them” is substantive, and cannot be applied retroactively. An amendment that does not fundamentally change pre-existing rights is procedural, and can be applied in a pending action. Id.
10. With this background, I now consider whether the statutory amendment to 21 V.S.A. §678, in which subsection (d) was added, was substantive or procedural in nature. I conclude that it was procedural.
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11. As noted above, the commissioner has long exercised the discretion granted by §678(a) to award costs and fees at the informal dispute resolution level. Workers’ Compensation Rule 10.1300 provided further clarification as to the circumstances under which this discretion would be exercised in such cases. Taft, supra. By adding subsection (d), the statute neither expanded nor contracted the commissioner’s discretion in any respect. It merely provided a more specific statutory base upon which to rest the requirements of the rule. See, Zahirovic v. Super Thin Saws, Inc., Opinion No. 38-11WC (November 18, 2011).
12. The Supreme Court’s prior ruling in this claim provides explicit support for this interpretation. As noted above, Finding of Fact Nos. 9-10 supra, at the same time that the Court referenced §678(d), it referred as well to Workers’ Compensation Rule 10. Considering both together, the Court concluded that even though the circumstances under which Claimant might qualify for an award of fees was limited by the rule, his right to attorney fees under the statute was not illusory. Yustin, supra at ¶14 and n.2.
13. Claimant argues that the addition of subsection (d) to §678 created a right to attorney fees at the informal dispute resolution level that is broader than that allowed by Workers’ Compensation Rule 10.1300. In his view, therefore, the amendment was substantive in nature. With that in mind, he asserts that when the Supreme Court in Yustin applied subsection (d) to his claim notwithstanding that his date of injury predated its enactment, in effect it signaled its intention to overrule long-standing precedent, enunciated in Montgomery and reaffirmed in Sanz, prohibiting substantive amendments from being given retroactive effect in the workers’ compensation context.
14. I will not infer from the Court’s brief reference to §678(d) its intent either to overrule prior precedent or to nullify the plain language of 1 V.S.A. §214(b)(2). It is far more plausible simply to infer from the Court’s reference that the addition of subsection (d) was procedural, not substantive.1
15. Having concluded that subsection (d) did not create any new substantive rights applicable to Claimant’s claim, I next consider whether his request for fees was timely filed.
16. Prior to the enactment of §678(e), neither the statute nor the rules imposed a specific time limit within which a prevailing claimant was to request an award of costs and attorney fees at the informal level.2 Absent any mandate, the commissioner’s discretion to award fees necessarily must be deemed to include an element of reasonableness as regards the timeliness of the request.
1 Defendant suggests that the Court may have overlooked the fact that §678(d) was not enacted until after Claimant’s injury occurred, and mistakenly referenced it without considering whether it was substantive or procedural. It is not for me to guess at the Court’s thought process in this regard.
2 Rule 10.4000 requires that evidence establishing the amount and reasonableness of a claimant’s request for an award of costs and attorney fees “shall be offered no later than the date upon which the proposed findings of fact and conclusions of law are filed with the Department.” Such filings are neither made nor required at the informal level; therefore that time limitation has no application here.
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17. That discretion since has been limited, and §678(e) now mandates that a prevailing claimant’s request for an award of fees and costs must be filed within 30 days after the favorable decision is rendered. Subsection (e) thus is analogous to a statute of limitation or repose. As such it cannot be applied retroactively to bar an action that would not yet have been barred under prior law. Sanz, supra at ¶9. In considering the timeliness of Claimant’s request in the current claim, therefore, I evaluate it not against the 30-day limit mandated by subsection (e) but rather against the more general reasonableness standard implicit in §678 and Rule 10.1300.
18. Even against this standard, however, Claimant’s request is untimely. The favorable decision upon which it was based – the Department’s March 2008 interim order – was issued more than three years ago. Without specifying a particular time frame beyond which a fee request should not be considered, In this matter I find that three years is too long.
19. As for Claimant’s argument that the delay is to be excused on the grounds that his request for attorney fees arose from a “newly discovered legal principle,” Claimant’s own actions belie this assertion. That he was well aware of his right to seek attorney fees at the informal level long before the Supreme Court reminded him of that remedy in Yustin is documented by the fact that he first requested them in 2009, two years before that decision issued.
20. Claimant’s analogy to the discovery doctrine in support of his timeliness argument is equally unavailing. It is one thing to allow that an injured worker’s obligation to seek redress for a work-related injury does not arise until the facts establishing its compensability become “reasonably discoverable and apparent,” Hartman, supra. I do not discern any basis for extending that rule to the discovery of legal remedies or principles, however, nor has Claimant cited to any legal precedent encouraging me to do so.
21. Having concluded that Claimant’s request was not timely, I need not consider whether he satisfied the criteria for an award under Rule 10.1300. Nevertheless, it is instructive to note that I do not necessarily equate the requisite finding for issuing an interim order under 21 V.S.A. §662(b) – that the employer’s denial lacks “reasonable support” – with the finding required for an award of attorney fees under Rule 10.1320 – that the employer had no “reasonable basis” for denying the claim.
22. For example, the circumstances of this case, involving as it did an off-premises, off-duty injury, justified both a complete factual inquiry and a considered legal analysis. That in the end the Department deemed Claimant’s claim to be compensable does not mean that Defendant acted unreasonably in denying it.
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23. Were I to accept the position Claimant advocates, the result would be to award attorney fees in virtually every case in which an interim order issues. This would directly contradict the language of Rule 10.1300, which authorizes an award of fees short of formal hearing only in “limited instances.” More importantly, it would unduly penalize an employer for exercising its right to thoroughly investigate the factual and legal circumstances surrounding an employee’s claim for benefits at the very stage of the proceedings when such investigation is most warranted. For these reasons, I find Claimant’s interpretation of Rule 10.1320 untenable, and I decline to adopt it.
ORDER:
Claimant’s Motion for Summary Judgment is hereby DENIED. Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s request for an award of costs and attorney fees associated with securing the Department’s March 24, 2008 interim order is DENIED.
DATED at Montpelier, Vermont this 20th 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.

D. F. v. Valley Floors, Inc. (June 8, 2009)

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

D. F. v. Valley Floors, Inc. (June 8, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. F. Opinion No. 18-09WC
By: Phyllis Phillips
v. Hearing Officer
J.P. Isabelle, Law Clerk
Valley Floors, Inc. For: Patricia Moulton Powden
Commissioner
State File No. Y-02506
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant moves for summary judgment on the grounds that Claimant suffered a non-work-related aggravation of his condition, such that it no longer is responsible for further workers’ compensation benefits.
Summary judgment is appropriate when “there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, after giving the benefit of all reasonable doubts and inferences to the opposing party.” State v. Delaney, 157 Vt. 247, 252 (1991). After reviewing the evidence in the light most favorable to the non-moving party, factual questions remain as to whether Claimant’s injury was an aggravation or a recurrence. Therefore, summary judgment is improper.
Claimant suffered a compensable work-related low back injury in 2004, for which he underwent surgery with Dr. Abdu, an orthopedic surgeon. He hurt his back again at work in 2006 but did not undergo additional surgery. In March 2007 Claimant reached an end medical result, and was rated with a 20% permanent impairment. His doctor advised him that nothing further could be done to improve his back and that he should expect it to worsen over time.
In February 2008 Claimant began working for Wal-Mart. In March, during a trip to retrieve the mail at his home, he slipped briefly on the ice, but regained his balance and did not fall. Later that evening, Claimant’s back began to bother him. He stayed home from work for the next two days to rest it, but his pain did not resolve.
Claimant did not seek medical treatment until approximately three weeks later. On April 21st, he saw his primary care physician, who referred him back to Dr. Abdu. Dr. Abdu examined Claimant on May 29th, and recommended surgery, which he performed on June 11th.
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Defendant argues that Claimant’s March 2008 slip at home resulted in a non-work-related aggravation, thus severing the causal link back to the original compensable injury. On those grounds, Defendant asserts that it is no longer responsible for Claimant’s medical treatment and/or disability. Claimant counters that the March incident had no effect on his underlying condition and therefore is not an intervening cause sufficient to justify releasing Defendant from further workers’ compensation liability.
An aggravation is an “acceleration or exacerbation of a pre-existing condition caused by some intervening event or events.” Workers’ Compensation Rule 2.1110. A recurrence is “the return of symptoms following a temporary remission.” Workers’ Compensation Rule 2.1312.
The Department typically considers five factors in differentiating between an aggravation and a recurrence: (1) whether there is a subsequent incident or work condition which destabilized a previously stable condition; (2) whether the claimant had stopped treating medically; (3) whether the claimant had successfully returned to work; (4) whether the claimant had reached an end medical result; and (5) whether the subsequent work contributed independently to the final disability.” Trask v Richburg Builders, Op. No. 51-98WC (August 25, 1998). The critical question is whether the subsequent incident combined with the pre-existing impairment to produce a disability greater than what otherwise would have occurred. Farris v. Bryant Grinder, 177 Vt. 456, 458 (2005), citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997).
Defendant points to the fact that Claimant had reached an end medical result in March 2007, a year prior to his slip on the ice at home, and had not sought any medical treatment during the intervening period as evidence that the March 2008 slip constituted an aggravation. It is true that Claimant did not treat with any physician during this time, although he did self-treat with rest, ibuprofen and a TENS unit. It also is true, as Defendant argues, that Claimant had successfully returned to work at the time of the March 2008 position, although not in the same job or for the same employer.
What is critical, however, is that all of the expert medical opinions produced to date are to the effect that the March 2008 incident did not destabilize his condition. Specifically, after the second surgery Dr. Abdu concluded that “there is no evidence of any subsequent injury or trauma . . . [that] contributed to Mr. Farley’s [injury].” Dr. Bucksbaum concurred, stating that “the described mechanism of injury of the March 2008 event [was] insufficient by itself to have resulted in the subsequently identified . . . disc herniation.” Dr. Gennaro agreed with this assessment as well.
Defendant has not offered any testimony to counter these expert opinions. Thus, it has presented no evidence to show that the March 2008 incident severed the causal link between Claimant’s original 2004 injury and his current condition. Giving the benefit of the doubt to the non-moving party, as is required in ruling on a motion for summary judgment, genuine issues of material fact still exist that preclude me from ruling in Defendant’s favor.
3
ORDER:
Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 8th day of June 2009.
_________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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