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

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T. P. v. S. D. Ireland Brothers (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 41-06WC
T. P.
By: Margaret A. Mangan
v. Hearing Officer
S.D. Ireland Brothers For: Patricia Moulton Powden
Commissioner
State File No. X- 53328
RULING ON DEFENSE MOTION TO DISMISS
Defendant S.D. Ireland Brothers moves to dismiss with prejudice claimant Terry Parmer workers’ compensation claim pursuant to V.R.C.P. 37, 41, and 79.1 for failure to prosecute. In addition, defendant requests that claimant pay court reporter costs and attorney fees resulting from claimant’s failure to appear at his scheduled deposition. Defendant has not presented sufficient evidence to support these requests.
Defendant filed a First Report of Injury on October 13, 2005. This report stated that claimant fell or slipped from a ladder or scaffolding on September 30, 2005, resulting in skin surface bruising and injury to the bone portion of the spine. The Department’s file indicates that defendant’s Workers’ Compensation Insurance Carrier, Liberty Mutual Insurance Company (Liberty Mutual), paid Temporary Total Disability benefits and medical benefits to the claimant. Then, on November 15, 2005, Liberty Mutual filed a Form 2 denying “any ongoing indemnity benefits.” Liberty Mutual also filed a Form 27 to discontinue TTD and medical benefits. On December 20, the Department wrote a letter to Liberty Mutual and claimant’s attorney notifying them that the Form 27 was approved. This letter also informed the claimant of his right to contest this discontinuance. On February 10, 2006, the defendant moved to dismiss the claimant’s claim with prejudice for failure to prosecute. On February 27, 2006 the Staff Attorney ruled that “a delay of years rather than months would be necessary to support dismissal of a claim due to claimant’s failure to prosecute.”
The following day, February 28, 2006, the claimant’s attorney motioned to withdraw because he was unable to contact the claimant by telephone or in writing after repeated attempts. On March 6, 2006 the Department sent a certified letter to the claimant to notify him of the request to withdraw. On March 30, 2006 the postal service returned the certified letter to the Department because it remained unclaimed despite two separate notices to the claimant. The Department then sent another certified letter to the claimant, addressed to a slightly different address, to notify him of the request to withdraw. Again, the letter was returned to the Department because it had been unclaimed after two notices to the claimant. As a result, the Department granted the request to withdraw, and sent a letter to the claimant to notify him that he would be required to represent himself pro se.
2
Subsequently, on June 20, 2006, defendant noticed claimant’s deposition. Claimant did not attend the deposition, resulting in this motion by defendant.
Vermont Rule of Civil Procedure 41(b)(2) states that an action may be dismissed where a plaintiff fails to prosecute or comply with the rules of civil procedure. However, the V.C.R.P. apply to workers’ compensation hearings, only “insofar as they do not interfere with the informal nature of the proceedings.” WC Rule 7.1000. To grant the defendant’s motion to dismiss with prejudice would be the equivalent of adjudication on the merits. Grant v. Cobbs Corner, Op No. 22-02WC (2002) at 1.
The defendant’s right to seek finality of a claim must be balanced with the claimant’s right to seek the benefits to which he may be entitled. “[O]ur Supreme Court once stated, ‘allowing a case to slumber on the docket for a period of five years indicates a lack of diligence warranting its dismissal…’” Holmes v. Northeast Tool, Op No. 26-05WC, at 1 (2005) (quoting Capitol Savings Bank & Trust Co. v. E.W. Hammett, 95 Vt. 47, 50 (1921). Furthermore, 21 V.S.A. §§ 656, 660 prevent a claimant from commencing with any claim more than three years after the date of injury. This law shows that the Court and legislature have considered the rights of both parties and have indicated a timeframe to protect each party’s interest. In other words, a claimant must fail to act for a number of years before his or her rights may be justly foreclosed. As such, less than a year of inaction does not yet warrant a dismissal for failure to prosecute.
This case is clearly distinguishable from C.H. v. Schwan’s Food, Op. No. 40-06 (2006), a case dismissed more than two years after the First Report of Injury had been filed. In that case, the Claimant had actively participated in her case, and then failed to appear for a scheduled appointment, status conference and hearing. Prior to the dismissal, she had several telephone conversations with personnel in this Department.
Defendant’s request to recoup expenses incurred in preparation for deposition in this case is also denied. Efforts to depose the claimant were undertaken by the defendant’s own initiative at a time when it was not paying any benefits, rather than in response to any action taken by the claimant. Furthermore, because it was fully aware of the repeated unsuccessful attempts to contact the claimant, the defendant knew or should have known that the claimant could not be reached. As such, the defendant understood that there was a potential financial risk involved in attempting to notice the claimant’s deposition.
Also, while it is clear that claimant has not initiated further action on this claim or acknowledged the correspondence sent from the defendant or the Department itself, the reason for this inaction is uncertain. It is possible that claimant’s unresponsiveness and inactivity is intentional. However, it is also entirely possible that claimant is somehow incapacitated or otherwise legitimately unable to take further action at this time. To dismiss for failure to prosecute under these uncertain circumstances would be patently unfair to the claimant.
3
Therefore, for the foregoing reasons, the defendant’s Motion to Dismiss this claim with prejudice is DENIED.
Dated at Montpelier, Vermont this 9th day of October 2006.
_____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672

K. D. v. Lydall Thermal/Acoustical, Inc. (February 26, 2007)

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K. D. v. Lydall Thermal/Acoustical, Inc. (February 26, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
K. D. Opinion No.04-07WC
By: Rebecca L. Smith
v. Staff Attorney
Lydall Thermal/Acoustical, Inc. For: Patricia Moulton Powden
Commissioner
State File No. X-52920
APPEARANCES:
K. D., pro se Claimant
Andrew C. Boxer, Esq. for Defendant Lydall Thermal Acoustical Inc./St. Paul Travelers
Ryan Smith & Carbine for Defendant Greenfield Industries/ACE
McCormick, Fitzpatrick, Kasper & Burchard for Defendant Vermont Tap & Die/CNA
RULING ON DEFENSE MOTION TO DISMISS
According to the First Report of Injury filed in this matter, Claimant began working for Lydall Thermal/Acoustical, Inc. on July 26, 2004.
Claimant alleged that she injured both upper extremities from the repetitive motion involved in her work for Lydall. The injury was described as gradual onset, with September 12, 2005 identified as the date of “accident.”
St. Paul Travelers, Lydall’s workers’ compensation insurance carrier, initially denied this claim on the basis that the Claimant’s condition was a recurrence of a previous work-related injury. Two additional insurance carriers from former employers, ACE and CNA, were put on notice of potential liability in this claim.
Claimant had a work-related elbow injury in 1994 while employed by Vermont Tap & Die, which was accepted by insurer CNA and which resulted in the Claimant being placed at medical end result in 1998 with a finding of 19% impairment related to her upper extremities. In 2002, Claimant had injury to both elbows while employed by Greenfield Industries, for which insurer ACE, after initially denying the claim, paid benefits without prejudice. The Claimant was placed at medical end result with no permanent impairment in June 2003.
Following informal proceedings including conference regarding the 2005 claim, Defendant St. Paul Travelers was ordered on December 21, 2005 to pay medical benefits related to the Claimant’s upper extremity injuries. Claimant appeared pro se during proceedings in all three of these claims.
2
On February 21, 2006 this claim was transferred to the formal hearing docket after Defendant St. Paul Travelers submitted additional evidence indicating that the Claimant treated for elbow pain a month prior to her claim at Lydall and described activities occurring in a home business. St. Paul Travelers amended its defense to assert that Claimant’s present condition was not related to her work at Lydall and to raise issues of credibility and material omissions regarding the Claimant’s reports.
The parties were sent notice on March 6, 2006 of a pre-trial conference with hearing officer Margaret Mangan to be held on April 17, 2006. The Claimant telephoned the Department on March 9, 2006 to report that she wanted to drop the claim and would send a letter to that effect to the Department and the defense attorneys. The Claimant did not send such a letter at that time.
The Claimant did not appear at the pre-trial conference, nor was she available by telephone. Defendant St. Paul Travelers filed a Motion to Dismiss the claim due to the Claimant’s failure to appear.
The Claimant later informed Hearing Officer Mangan by telephone that she did not wish to pursue her claim. On May 4, 2006, the Claimant sent to the Department a written statement that she could afford neither an attorney nor to take days off from work to attend to the administration of her claim.
On May 9, 2006 Hearing Officer Mangan wrote to the Claimant asking that the Claimant respond in writing if Claimant agreed that the insurer could stop paying medical benefits. The Department received no response to this letter.
On January 17, 2007 Defendant St. Paul Travelers renewed its Motion to Dismiss this claim.
Therefore, for her failure to prosecute this claim, pursuant to V.R.C.P. 41 (b) (2), the workers’ compensation claim of K. D. is hereby DISMISSED. Lydall Thermal Acoustical Inc./St Paul Travelers is hereby relieved of the Interim Order of December 21, 2005.
Dated at Montpelier, Vermont this26th day of February 2007.
_____________________________
Patricia Moulton Powden
Commissioner

S. H. v. Athena’s Healing Arts LLC (August 23, 2007)

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S. H. v. Athena’s Healing Arts LLC (August 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. H. Opinion No. 25-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
Athena’s Healing Arts, LLC For: Patricia Moulton Powden
Commissioner
State File No. X-61522
RULING ON DEFENDANT’S MOTION TO DISMISS
On July 27, 2007, Defendant moved to dismiss Claimant’s case pursuant to V.R.C.P. 41(b)(2). Defendant asserts that Claimant’s case should be dismissed with prejudice for her failure to: (i) provide Defendant with a Form 7 Medical Authorization; (ii) clarify what benefits she is claiming; (iii) attend a scheduled Independent Medical Evaluation; and (iv) advise the Department whether she wishes to reschedule a pre-trial conference or withdraw her appeal to the formal hearing docket.
To date, Claimant has not responded to Defendant’s filing.
Workers’ Compensation Rule 7.1000 states that “[t]he Vermont Rules of Civil Procedure … shall . . . apply to all [formal Workers’ Compensation] hearings . . . insofar as they do not defeat the informal nature of the hearing[s].”
V.R.C.P. 41(b)(2) provides that “a defendant may move for dismissal of an action or of any claim against the defendant” if “the plaintiff [fails] to prosecute.” V.R.C.P. 41 (b) (3) states that “[u]nless the . . . order for dismissal otherwise specifies, a dismissal under . . . subdivision (b) . . . operates as an adjudication upon the merits.”
Defendant cites four reasons why Claimant’s case should be dismissed. Of these four reasons, the second and third do not warrant dismissal.
2
First, Defendant’s assertion that Claimant’s case should be dismissed because she failed to clarify what benefits she is seeking has no legal basis. If Defendant’s assertion is based upon V.R.C.P. 12(b)(6) (failure to state a claim upon which relief can be granted), the Department will not “dismiss a cause of action for failure to state a claim upon which relief may be granted unless it appears, beyond doubt, that no circumstances or facts exist which could prove entitlement to relief. This type of motion is not favored and rarely granted.” See Walker v. Johnson Fuel Service, Opinion No. 07D-99WC (citing Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443 (1985)). Further, if Defendant’s assertion is based upon V.R.C.P. 56(c) (summary judgment), the Department will only award “summary judgment . . . if [the moving party] can demonstrate that there is no genuine issue as to any material fact and [that] it is entitled to judgment as a matter of law. . . . [Also,] the nonmoving party receives the benefit of all reasonable doubts and inferences.” Walker, Opinion No 07D-99WC (citing Samplid Enter., Inc. v. First Vermont Bank, 165 Vt. 22 (1996); also citing Murray v. White, 155 Vt. 621 (1991)). Finally, “the [Workers’] Compensation Act, having benevolent objectives, is remedial in nature and must be given a liberal construction; no injured employee should be excluded unless the law clearly intends such an exclusion or termination of benefits.” See Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983).
Next, Claimant’s failure to attend the scheduled IME only warrants assessment of all or part of the cost of the missed examination, and not dismissal of her claim. See Rule 14.7000.
However, Defendant’s first and fourth arguments above do support dismissal of Claimant’s case.
First, Claimant’s failure to provide Defendant with a Form 7 Medical Authorization warrants dismissal of her claim. Indeed, Rule 3.0830 allows “a claim [to be] dismissed without prejudice if a claimant fails or refuses, without good cause, to provide a medical authorization upon request.” On June 28, 2007, Defendant sent a letter to Judy Barone, Esq. (Claimant’s then attorney) requesting a medical authorization from the Claimant. Since Ms. Barone did not file her Motion to Withdraw as Claimant’s attorney until July 6, 2007, the Department assumes she sent the medical authorization to the Claimant for her signature. However, the Claimant never sent a signed medical authorization to the Defendant; further, the Claimant never explained to the Department or to the Defendant why she failed to do so. Therefore, the Department finds that the Claimant failed, without good cause, to provide a medical authorization upon request. Since the medical authorization sought by the Defendant would generate evidence relevant to the claim, and since the Claimant has not shown good cause for her failure to sign the medical release, her claim can be dismissed without prejudice. See Woznek v. Champlain College, Opinion No. 49D-95WC.
3
Claimant’s failure to respond to Department correspondence could also warrant dismissal of her claim. Indeed, in Cox v. Staffing Network, Opinion No. 9-95WC, the Claimant’s case was dismissed with prejudice because the Claimant failed to attend the final hearing and failed to respond to the Defendant’s Motion to Dismiss. Further, in Gursky v. Pizzagalli Construction, Opinion No. 47-95WC, the Claimant’s case was dismissed without prejudice, despite the fact that the Claimant frequently contacted and attended hearings at the Department, because the Claimant failed to produce medical records supporting his claim. Finally, in E.C. v. Reel Hospitality, LLC, Opinion No. 17-07WC, the Claimant’s case was dismissed without prejudice because the Claimant failed to respond to Department correspondence and failed to attend the status conference and hearing on his claim. In the case at hand, the Department indefinitely continued the pre-trial conference scheduled for July 16, 2007 due to Ms. Barone’s withdrawal as Claimant’s attorney. However, a condition of the continuance was that the Claimant contact the Department by July 25, 2007 to advise whether she wanted to reschedule the pre-trial conference or withdraw her appeal to the formal hearing docket. The Claimant never responded to the Department’s request and no further conferences were scheduled. Further, the Claimant has not replied to the Defendant’s Motion to Dismiss. Thus, based on the above-cited Department case law, Claimant’s case can be dismissed without prejudice.
ORDER
While the Department is loathe to dismiss claims, especially those of pro se claimants, unless all parties have been given a full and fair hearing on the matter, the Claimant’s conduct in this case dictates that her claim be dismissed. See Gursky, Opinion No. 47-95WC. Therefore, the Defendant’s Motion to Dismiss is granted; however, the dismissal is without prejudice.
DATED at Montpelier, Vermont this 23rd day of August 2007.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)

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Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR

Opinion No.: 38-11WC

Dzevad Zahirovic v. Super Thin Saws, Inc.

By: Phyllis Phillips, Esq., Hearing Officer

For: Anne M. Noonan, Commissioner

State File Nos. S-6844 and CC-56257
RULING ON DEFENDANTS’ MOTIONS TO DISMISS CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
Background
Claimant has worked for Defendant Super Thin Saws, Inc. (“Super Thin Saws”) for many years. His job requires him to work with machine coolants, oils and motor fluids on a daily basis. As a result of this exposure, in October 2001 Claimant was diagnosed with contact dermatitis, for which he filed a claim for workers’ compensation benefits. The workers’ compensation insurance carrier on the risk at that time was the predecessor in interest to Defendant One Beacon Insurance Co. (“One Beacon”). It accepted Claimant’s claim as compensable and paid workers’ compensation medical benefits accordingly.
Claimant again sought workers’ compensation medical benefits for contact dermatitis nearly ten years later, in April 2010. One Beacon seasonably denied the claim on various grounds. Most notably, it alleged that Claimant’s current condition represented an aggravation for which Super Thin Saws’ current workers’ compensation insurance carrier, Defendant The Hartford Insurance Co. (“The Hartford”), was liable. Aside from asserting that Claimant had not treated for his condition in the intervening ten years since his 2001 claim, One Beacon offered no evidence in support of this contention.
Through his attorney, on July 27, 2010 Claimant filed a Notice and Application for Hearing in which he disputed One Beacon’s aggravation claim. Because the medical records available at the time recounted a ten-year history of the condition and referenced a 2001 date of injury, upon review the Department determined that One Beacon was liable. By interim order dated November 18, 2010 it directed One Beacon to pay workers’ compensation benefits accordingly.
Medical records produced subsequent to the Department’s interim order clarified that in fact Claimant had neither sought treatment nor lost time from work on account of his condition for a period of years prior to April 2010. Accordingly, on December 7, 2010 the Department notified The Hartford of its potential liability for Claimant’s current claim. The Department’s Workers’ Compensation Specialist granted The Hartford a brief extension to investigate the claim, and also scheduled an informal conference for January 3, 2011. Although it had filed a denial on that same day, during the informal conference The Hartford accepted responsibility for the claim and agreed voluntarily to pay benefits. One Beacon was thereby relieved of any responsibility for Claimant’s April 2010 injury.
On May 6, 2011 Claimant’s attorney filed the pending Petition for Attorney Fees and Costs. Defendants One Beacon and The Hartford both have moved to dismiss the petition on various grounds, discussed below.
Discussion
In support of his petition for attorney fees and costs, which he asserts should be awarded against either One Beacon or The Hartford, Claimant cites to those provisions of the workers’ compensation statute and rules dealing with awards in claims that are resolved short of formal hearing. Specifically, 21 V.S.A. §678(d) provides:
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.
Workers’ Compensation Rule 10.1300 provides further guidance:
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 that:
10.1310 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 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.
As to the timeliness of a request for an award of attorney fees, the statute specifically provides that 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.” 21 V.S.A. §678(e).
Claimant clearly has failed to meet the timeliness requirement, as against either Defendant. His petition for attorney fees was not submitted until May 2011, almost six months after the Department ordered One Beacon to pay benefits and some four months after The Hartford voluntarily agreed to do so. Claimant has offered no extenuating circumstances to justify the delay, nor can I discern any reason to overlook it. That being the case, Claimant’s petition for attorney fees deserves to be rejected on those grounds alone.
Even were I to overlook the fact that Claimant’s petition for fees was not timely filed, Rule 10 provides no basis for an award against either Defendant. As against One Beacon, Claimant asserts that his claim was denied without reasonable basis (Rule 10.1320), and that his attorney’s representation was necessary to resolve the issue (Rule 10.1350). I do not accept either of these assertions. The fact that The Hartford voluntarily accepted responsibility for the benefits owed Claimant is justification enough for One Beacon’s denial. That The Hartford was even in the case, furthermore, occurred as a result of One Beacon’s advocacy, not Claimant’s. Given the ultimate disposition of the claim in One Beacon’s favor, there is no basis for an award of fees against it.
4
Claimant all but concedes that Rule 10.1300 provides no basis for an award against The Hartford. Instead he argues that by accepting Claimant’s claim for benefits The Hartford somehow stepped into One Beacon’s shoes and thereby inherited One Beacon’s responsibility for attorney fees. Claimant cites no legal authority for this proposition and I cannot accept it. Even if I could, having just determined that One Beacon is not liable for Claimant’s attorney fees, there is nothing for The Hartford to inherit.
The discretion granted by §678(d) to award fees in cases that are resolved prior to formal hearing is broad. Rule 13 directs that this discretion is to be exercised only in limited circumstances, and only when specific requirements are met. This is not one of those circumstances.
Last, as for The Hartford’s request that the attorney fees it has incurred in defending Claimant’s petition be assessed against Claimant, neither the statute nor the rule authorizes me to do so.
Defendants’ Motions to Dismiss Claimant’s Petition for Attorney Fees and Costs are GRANTED. Claimant’s Petition for Attorney Fees and Costs is DISMISSED.
DATED at Montpelier, Vermont this 17th 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.

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

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Benjamin Bacon v. Gerald E Morrissey Inc (October 12, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Benjamin Bacon Opinion No. 32-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Gerald E. Morrissey, Inc.
For: Anne M. Noonan
Commissioner
State File No. 83-20669
RULING ON DEFENDANT’S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT
This claim has a long and convoluted history. Claimant originally was injured in 1981 when a wooden plank fell from some scaffolding and hit him on the head. In 1983 he began exhibiting symptoms indicative of a possible seizure disorder, which he contended were causally related to his 1981 injury. Following a formal hearing in 1985, the Commissioner determined that Claimant likely was suffering from post-concussive syndrome. Defendant was ordered to pay both medical and indemnity benefits causally related to that condition. Bacon v. Gerald E. Morrissey, Opinion No. 6-85WC (July 26, 1985).
Claimant has continued to treat for seizure-like episodes since 1983, and at various times has sought additional workers’ compensation benefits referable to them. In December 2002 he claimed entitlement to temporary total disability benefits on the grounds that his condition was precluding him from continuing to work as a self-employed carpenter. He also claimed entitlement to medical benefits for treatment of liver damage that he alleged had resulted from his use of Tegretol, a seizure control medication, from the mid-1980’s until 1990. Last, he claimed that Defendant had failed to pay various medical bills.
Despite prodding from both the Department and Defendant, Claimant repeatedly failed to produce the evidence necessary to support his claims for additional benefits. Time and again, he was advised to produce income tax records documenting his wages for the twelve weeks preceding his alleged disability, but did not do so. He ignored repeated requests from Defendant to schedule his deposition. He failed to sign and return a medical authorization so that Defendant could obtain and review his pertinent records. As a consequence of these repeated failures, in August 2006 the Department cancelled the formal hearing that had been scheduled on the merits of his claim.
Claimant resurrected his claim in early 2010. He now seeks essentially the same benefits to which he claimed entitlement in 2002: (1) temporary total disability benefits for an eighteen-month period from April 2002 through October 2003 during which he claims his seizure disorder precluded him from working; and (2) medical benefits for evaluation and treatment of liver damage allegedly caused by his use of Tegretol.
2
To his credit, Claimant has been more responsive to Defendant’s discovery requests this time through the process than he was previously. He appeared for his deposition, signed a medical authorization and produced his income tax records for 2001 and 2002. Unfortunately, the evidence he has produced is insufficient to support his claims. Specifically:
• Claimant has failed to show that he earned any wages during the twelve weeks prior to April 2002, the date on which he claims his work-related disability began. To the contrary, records obtained from the Internal Revenue Service document that he did not file tax returns in either 2001 or 2002, presumably because he had no income to report for those years.
• Claimant has failed to produce any medical evidence establishing a causal link between his use of Tegretol some twenty years ago and his current liver dysfunction. Indeed, the Department’s file contains no medical records at all relating to this condition.
As to the first issue, it is a necessary prerequisite to any claim for wage replacement benefits that there be previously earned wages to replace. D.G. v. Verizon, Opinion No. 72-05WC (December 30, 2005); Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC (May 24, 1995). With no earned wages for at least fifteen months prior to Claimant’s claimed period of disability, his claim for temporary total disability benefits must fail as a matter of law. See V.R.C.P. 56(c); Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996) (summary judgment appropriate where no genuine issues of material fact exist); State v. Heritage Realty of Vermont, 137 Vt. 425, 428-29 (1979) (summary judgment appropriate where facts involved in a determinative issue of law are clear, undisputed or unrefuted).
As to the second issue, it is Claimant’s burden to prove the causal connection between his work injury and any medical consequences that flow from it subsequently. Competent medical evidence is required to establish the link to the required degree of medical certainty. Lapan v. Berno’s Inc., 137 Vt. 393, 395 (1979); Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 103 (1964). No such evidence has yet been presented here.
Claimant has had many years within which to develop the evidence necessary to prove his claim for benefits referable to his liver condition, but has failed to do so. More than twenty years have now passed since he last took Tegretol and was first diagnosed with liver dysfunction. Given the passage of time, even were Claimant to produce evidence in support of his position at this point, Defendant’s ability to investigate and develop its own evidence would be severely compromised.
3
The Department has in the past exercised its discretion to dismiss a claim with prejudice when a claimant fails to pursue it in a timely manner. See, e.g.,Holmes v. Northeast Tool, Opinion No. 26-05WC (April 27, 2005); Dawson v. Price Chopper, Opinion No. 20-96WC (April 29, 1996); Cox v. Staffing Network, Opinion No. 9-95WC (April 20, 1995). I find that to be the case here. On those grounds, it is appropriate to dismiss with prejudice Claimant’s claim for medical benefits referable to the liver damage allegedly caused by his use of Tegretol.1
ORDER:
As to Claimant’s claim for temporary total disability benefits for the period from April 2002 through October 2003, Defendant’s Motion for Summary Judgment is hereby GRANTED.
Claimant’s claim for workers’ compensation benefits referable to his liver dysfunction is hereby DISMISSED WITH PREJUDICE.
DATED at Montpelier, Vermont this 12th day of October 2011.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
1 It is unclear whether any medical bills related to Claimant’s 1981 injury remain unpaid other than those relating to his liver condition. Certainly Claimant has not produced any, and the time has now long since passed for him to do so. It is appropriate to dismiss this claim with prejudice as well, therefore.

Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)

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Dzevad Zahirovic v. Super Thin Saws Inc (November 17, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dzevad Zahirovic Opinion No. 38-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Super Thin Saws, Inc. For: Anne M. Noonan
Commissioner
State File Nos. S-6844 and CC-56257
RULING ON DEFENDANTS’ MOTIONS TO DISMISS CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
Background
Claimant has worked for Defendant Super Thin Saws, Inc. (“Super Thin Saws”) for many years. His job requires him to work with machine coolants, oils and motor fluids on a daily basis. As a result of this exposure, in October 2001 Claimant was diagnosed with contact dermatitis, for which he filed a claim for workers’ compensation benefits. The workers’ compensation insurance carrier on the risk at that time was the predecessor in interest to Defendant One Beacon Insurance Co. (“One Beacon”). It accepted Claimant’s claim as compensable and paid workers’ compensation medical benefits accordingly.
Claimant again sought workers’ compensation medical benefits for contact dermatitis nearly ten years later, in April 2010. One Beacon seasonably denied the claim on various grounds. Most notably, it alleged that Claimant’s current condition represented an aggravation for which Super Thin Saws’ current workers’ compensation insurance carrier, Defendant The Hartford Insurance Co. (“The Hartford”), was liable. Aside from asserting that Claimant had not treated for his condition in the intervening ten years since his 2001 claim, One Beacon offered no evidence in support of this contention.
Through his attorney, on July 27, 2010 Claimant filed a Notice and Application for Hearing in which he disputed One Beacon’s aggravation claim. Because the medical records available at the time recounted a ten-year history of the condition and referenced a 2001 date of injury, upon review the Department determined that One Beacon was liable. By interim order dated November 18, 2010 it directed One Beacon to pay workers’ compensation benefits accordingly.
2
Medical records produced subsequent to the Department’s interim order clarified that in fact Claimant had neither sought treatment nor lost time from work on account of his condition for a period of years prior to April 2010. Accordingly, on December 7, 2010 the Department notified The Hartford of its potential liability for Claimant’s current claim. The Department’s Workers’ Compensation Specialist granted The Hartford a brief extension to investigate the claim, and also scheduled an informal conference for January 3, 2011. Although it had filed a denial on that same day, during the informal conference The Hartford accepted responsibility for the claim and agreed voluntarily to pay benefits. One Beacon was thereby relieved of any responsibility for Claimant’s April 2010 injury.
On May 6, 2011 Claimant’s attorney filed the pending Petition for Attorney Fees and Costs. Defendants One Beacon and The Hartford both have moved to dismiss the petition on various grounds, discussed below.
Discussion
In support of his petition for attorney fees and costs, which he asserts should be awarded against either One Beacon or The Hartford, Claimant cites to those provisions of the workers’ compensation statute and rules dealing with awards in claims that are resolved short of formal hearing. Specifically, 21 V.S.A. §678(d) provides:
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.
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Workers’ Compensation Rule 10.1300 provides further guidance:
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 that:
10.1310 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 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.
As to the timeliness of a request for an award of attorney fees, the statute specifically provides that 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.” 21 V.S.A. §678(e).
Claimant clearly has failed to meet the timeliness requirement, as against either Defendant. His petition for attorney fees was not submitted until May 2011, almost six months after the Department ordered One Beacon to pay benefits and some four months after The Hartford voluntarily agreed to do so. Claimant has offered no extenuating circumstances to justify the delay, nor can I discern any reason to overlook it. That being the case, Claimant’s petition for attorney fees deserves to be rejected on those grounds alone.
Even were I to overlook the fact that Claimant’s petition for fees was not timely filed, Rule 10 provides no basis for an award against either Defendant. As against One Beacon, Claimant asserts that his claim was denied without reasonable basis (Rule 10.1320), and that his attorney’s representation was necessary to resolve the issue (Rule 10.1350). I do not accept either of these assertions. The fact that The Hartford voluntarily accepted responsibility for the benefits owed Claimant is justification enough for One Beacon’s denial. That The Hartford was even in the case, furthermore, occurred as a result of One Beacon’s advocacy, not Claimant’s. Given the ultimate disposition of the claim in One Beacon’s favor, there is no basis for an award of fees against it.
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Claimant all but concedes that Rule 10.1300 provides no basis for an award against The Hartford. Instead he argues that by accepting Claimant’s claim for benefits The Hartford somehow stepped into One Beacon’s shoes and thereby inherited One Beacon’s responsibility for attorney fees. Claimant cites no legal authority for this proposition and I cannot accept it. Even if I could, having just determined that One Beacon is not liable for Claimant’s attorney fees, there is nothing for The Hartford to inherit.
The discretion granted by §678(d) to award fees in cases that are resolved prior to formal hearing is broad. Rule 13 directs that this discretion is to be exercised only in limited circumstances, and only when specific requirements are met. This is not one of those circumstances.
Last, as for The Hartford’s request that the attorney fees it has incurred in defending Claimant’s petition be assessed against Claimant, neither the statute nor the rule authorizes me to do so.
Defendants’ Motions to Dismiss Claimant’s Petition for Attorney Fees and Costs are GRANTED. Claimant’s Petition for Attorney Fees and Costs is DISMISSED.
DATED at Montpelier, Vermont this 17th 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.

Melissa Marcum v. State of Vermont, Agency of Human Services (December 15, 2009)

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Melissa Marcum v. State of Vermont, Agency of Human Services (December 15, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Melissa Marcum Opinion No. 50-09WC
v. By: Sal Spinosa, Esq.
Hearing Officer
State of Vermont, Agency of
Human Services For: Patricia Moulton Powden
Commissioner
State File No. AA-2088
RULING ON DEFENDANT’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT1
ATTORNEYS:
Charles Powell, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant an employee of Defendant at the time of her June 5, 2007 injury?
2. If yes, is Claimant’s current claim time-barred under the provisions of 21 V.S.A. §§656 and 660(a)?
FINDINGS OF FACT:
Considering the facts in the light most favorable to Claimant as the non-moving party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. On June 5, 2007, while working in the Nelson home in Ryegate, Vermont, Claimant injured her shoulder when she fell while holding the Nelson child, CN. Claimant provided home-based medical care services for CN, who suffers from a congenital disease that affects his ability to breathe involuntarily. This is a life-threatening condition that requires 24-hour monitoring and care.
2. Claimant first met Heather Nelson at Dartmouth Hitchcock Medical Center, where CN was a recurrent patient. Claimant was a licensed practical nurse, and CN came under her care.
1 Although Defendant frames its pleading as a Motion to Dismiss, it is more properly characterized as a Motion for Summary Judgment. See generally V.R.C.P. 12(b)(6) and 56.
2
3. Due to his medical condition CN qualified as a Medicaid beneficiary. As a consequence, he was eligible for a variety of Medicaid-funded services, including in-home personal care attendant services provided in accordance with the Children’s Personal Care Services Program (CPCSP). In Vermont, the CPCSP is administered through the Agency of Human Services’ Department of Disabilities, Aging & Independent Living (DAIL).
4. The goal of the CPCSP is to provide supplemental assistance with self-care and activities of daily living to Medicaid-eligible children with significant disabilities or health conditions. This support is meant to supplement, not replace, parental roles.
5. In order to assist eligible individuals in gaining access to the personal care attendant program, DAIL has contracted with ARIS Solutions, an intermediary payroll service, to process the payroll and billing for personal care attendants hired under the program. ARIS uses Medicaid funds to pay personal care attendants for their work.
6. The state also has contracted with ARIS to procure a single workers’ compensation insurance policy covering all personal care attendants, so that the time and expense of doing so does not fall to each eligible individual him- or herself. In taking this step, however, the statute specifically mandates that personal care attendants “shall not be construed as state employees except for purposes of 21 V.S.A. chapters 9 [dealing with workers’ compensation] and 17 [dealing with unemployment compensation].” 33 V.S.A. §6321(f).2
7. There is another option for parents of Medicaid-eligible dependents to access Medicaid funds for the in-home medical services their children require. Under the Family Managed Nursing Initiative (FMNI), parents assume responsibility for selecting skilled nursing staff (either registered or licensed practical nurses) to provide in-home care. In addition, they must select a nurse coordinator (also a registered or licensed practical nurse) to assist in hiring, training and supervising the nursing staff. Last, the parents are responsible for managing the staff’s work schedules and reviewing their time sheets.
8. The goal of the FMNI program is to secure quality, consistent, cost-effective home care services. It does so by directing less money to home health care agencies in the form of administrative fees, thus making more money available for nursing wages.
2 The statute was amended in 2008, adding subsection (g) to clarify the state’s ability (through its intermediary payroll service) to provide workers’ compensation coverage for personal care attendants in the manner described. In making this amendment, the statute also clarified that “subsections (f) and (g) . . . are intended to permit the state to provide workers’ compensation and unemployment compensation and shall not be considered for any other purposes.” Whether this amendment merely codified the state’s prior intent or added something new is unclear. In either event, Defendant’s reliance on the language of the amendment itself in support of its position is misplaced, as it was not in effect at the time of Claimant’s 2007 injury.
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9. To participate in the FMNI program, parents must use only those nurses who are enrolled as qualified Medicaid providers. Otherwise, the nurses are not eligible to receive payment through the FMNI program. In Vermont, the Agency of Human Services (AHS) has contracted with EDS, a third-party payer, to review, adjust and pay the bills for in-home services provided under the FMNI program. EDS uses Medicaid funds to do so. All told, Medicaid pays for the services of approximately 14,000 approved providers in Vermont, including doctors, nurses and other medical providers.
10. During a meeting at Dartmouth Hitchcock in 2006 Heather Nelson asked Claimant if she would be interested in providing the home care that CN required. Because at that point Claimant was not a qualified Medicaid provider, Ms. Nelson proposed that she work initially as a personal care attendant under the CPCSP. Ms. Nelson further proposed that both she and Claimant would work towards garnering approval to transition into the FMNI program – Ms. Nelson as a qualified FMNI client and Claimant as an approved medical provider. At that point Claimant would be eligible to be paid at a significantly higher rate than what she would receive initially as a personal care attendant.
11. Claimant was amenable to this proposal. In late 2006 she began providing home care services for CN as a personal care attendant. Claimant’s duties included monitoring CN’s ventilator, suctioning him as needed and otherwise tending to his personal care needs. Claimant was paid under the CPCSP, at the rate of $10.00 per hour.
12. Claimant also began the process of qualifying as a provider under the FMNI program. In that context, she received an informational bulletin that described the program. Under the section entitled “Family Managed Nursing Initiative Program Requirements,” the bulletin stated, “Nurses will be self-employed and will be responsible for handling their own tax payments.”
13. On January 27, 2007 Claimant signed her initial provider enrollment contract which allowed her to participate in the FMNI program. She continued to care for CN, but now as a medical provider rather than as a personal care attendant. Although her job duties were essentially the same as they had been as a personal care attendant, Claimant’s responsibilities under the FMNI program recognized her status as a trained and certified licensed practical nurse. As such she could perform some additional services that CN required.
14. Claimant’s reimbursement rate under the FMNI program recognized her altered status as well. Depending on the shift differential Claimant’s pay rate ranged from $27.86 to $37.66 hourly, a significant increase from her wage rate as a personal care attendant. Claimant billed EDS directly for her services, and no taxes were deducted. The time sheets she submitted to EDS included the phrase “….private duty (self-employed) nurse for the child named above.”
15. Neither Claimant nor Ms. Nelson understood that the transition from the CPCSP to the FMNI program affected Claimant’s workers’ compensation coverage in any respect. Prior to Claimant’s June 5, 2007 injury the issue was never discussed.
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16. Ms. Nelson was aware of Claimant’s injury on the date it occurred. However, Claimant did not file a notice of injury and claim for compensation with the Department until January 9, 2009. AHS first learned of her injury at around the same time.
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. In the current claim, Defendant’s motion for summary judgment is predicated on its assertion that Claimant was not an AHS employee at the time of her injury. Claimant asserts otherwise, and argues that she is thus entitled to workers’ compensation coverage for her injury.
3. Had she been injured when she worked as a personal care attendant under the CPSCP, Claimant would have been entitled to workers’ compensation coverage under 33 V.S.A. §6321(f). This is true not because she was in fact a state employee, but solely because the statute provided such coverage to personal care attendants in the program.
4. Once Claimant made the transition to the FMNI program, however, the coverage provided by §6321(f) no longer applied to her. That Claimant performed the same services after the transition is irrelevant. All that matters is that, for whatever reason, the legislature decided to provide coverage for personal care attendants but not to FMNI providers.
5. Without the coverage mandated by §6321(f), in order to be entitled to workers’ compensation benefits Claimant must establish that she was an AHS employee at the time of her June 5, 2007 injury. To do that, she must either fit herself within the definition of employee provided in 21 V.S.A. §601(14), or establish that the state was her statutory employer under 21 V.S.A. §601(3).
6. Section §601(14) defines an “employee” as “an individual who has entered into the employment of, or works under contract of service or apprenticeship with, an employer.” The definition codifies the common law concept of employee; it presumes on a most basic level a person who performs services for another. See 3 Larson’s Workers’ Compensation Law §60.01.
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7. Claimant’s relationship with AHS does not fit within that definition. Her interaction with AHS was limited to submitting her bills to the agency’s third-party payer for processing and payment under the FMNI program. AHS neither hired Claimant, nor assigned her responsibilities, nor set her schedule, nor assessed her work. Her interaction with the state consisted solely in processing payment for the services she provided to CN. This is insufficient to establish an employer-employee relationship with AHS.
8. Nor does Defendant qualify as Claimant’s “statutory employer” under 21 V.S.A. §601 (3). That provision defines an “employer” to include “the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed.” This definition creates within Vermont’s workers’ compensation law a statutory employer-employee relationship where none existed at common law. In re Chatham Woods Holdings, LLC, 184 Vt. 163, 169 (2008), citing King v. Snide, 144 Vt. 395 (1984).
9. The Vermont Supreme Court has embraced the “nature of the business” test to determine whether a statutory employment relationship exists. This test asks whether the work performed by the putative employee “is a part of, or process in, the trade, business or occupation” of the putative employer. In re Chatham Woods Holdings, supra at 170. The test is to be applied broadly, in keeping with the purposes of Vermont’s workers’ compensation laws. In re Chatham Woods, supra at 168. At the same time, due regard must be given to the facts of each particular situation. King, supra at 401.
10. Applied to the circumstances of the current claim, the critical inquiry, therefore, is whether the type of work that Claimant performed is the type of work that AHS employees themselves could have carried out as part of AHS’ regular course of business. See Frazier v. Preferred Operators, Inc., 177 Vt. 571, 573 (2004).
11. Given AHS’ limited role in administering the FMNI program, the answer is no. AHS is not itself charged with providing medical services to eligible beneficiaries; it merely facilitates payment for them. AHS does not employ a stable of nurses to deliver in-home care, nor does it hire, train, assign work to or otherwise supervise those, like Claimant, who do. Its business is to process payments, not to provide direct services. See Dwinell v. Merchants Bancshares, Inc., Opinion No. 40-09WC (October 14, 2009).
6
12. Notwithstanding her failure to qualify as either a common law or a statutory employee, Claimant argues that she should be granted employee status nonetheless by virtue of Defendant’s failure to comply with the requirements of 21 V.S.A. §601(14)(F). That provision carves out an exception to the common law concept of employee for sole proprietors who express clearly their desire to be treated as independent contractors instead. Claimant misreads the intent of this provision, however. Section 601(14)(F) creates an exception, not a rule. Its purpose is not to create an employer-employee relationship where one otherwise would not have existed. Rather, its function is to undo a relationship that the law otherwise might have found.3
13. I find, therefore, that Claimant was not an employee of AHS at the time of her injury. As a matter of law, she did not meet the common law definition of employee as reflected in 21 V.S.A. §601(14), nor did she establish the existence of a statutory employment relationship under 21 V.S.A. §601(3). AHS bears no workers’ compensation responsibility for her June 5, 2007 injury.
14. In view of my determination that AHS was not Claimant’s employer at the time of her injury, it is not necessary to reach Defendant’s notice and statute of limitations argument.
ORDER:
For the foregoing reasons, Defendant’s Motion to Dismiss and/or for Summary Judgment is GRANTED. Claimant’s claim for workers’ compensation benefits arising out of her June 5, 2007 injury is DISMISSED.
DATED at Montpelier, Vermont this 15th day of December 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.
3 In the context of her §601(14)(F) argument, Claimant asserts that Defendant did not explicitly notify her that the workers’ compensation coverage she had enjoyed under the CPCSP terminated once she transitioned instead to the FMNI program. Given that the provisions of §601(14)(F) do not apply, Defendant’s alleged failure to do so is irrelevant. In any event, Claimant received sufficient information to alert her to her change in status, but failed adequately to appreciate its significance. See Finding of Fact Nos. 12 and 14 above.

A. P. v. Personnel Department, Inc. (October 1, 2008)

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A. P. v. Personnel Department, Inc. (October 1, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. P. Opinion No. 38-08WC
By: Phyllis G. Phillips, Esq.
v. Hearing Officer
Personnel Department, Inc. For: Patricia Moulton Powden
Commissioner
State File No. Y-53713
RULING ON DEFENDANT’S MOTION TO DISMISS
At issue in this claim is whether Defendant should be obligated to pay attorney’s fees to Claimant’s attorney. Claimant’s attorney alleges that Defendant was notified of its attorney’s lien at the time Defendant issued payment of indemnity benefits directly to Claimant, contrary to Claimant’s attorney’s directive and in contravention of the terms of the approved lien. Defendant counters that Claimant’s attorney’s lien was never perfected as required by Workers’ Compensation Rule 10.5000 and that therefore it bears no responsibility for the unpaid fees.
The relevant facts are not disputed. In April 2007 Claimant retained the law firm of Biggam, Fox & Skinner to pursue workers’ compensation benefits on her behalf relating to a right knee injury that occurred on September 22, 2006. Pursuant to Workers’ Compensation Rule 10.5000, her attorney filed a request for an attorney’s lien with the Department. The Department granted the lien on April 25, 2007. In doing so, the Department advised Claimant’s attorney that, “In the event you wish to enforce this lien you must present the department with an itemized statement detailing both the work performed and the hours billed in this matter, pursuant to Rule 10.5000.” (Emphasis in original).
On August 6, 2007 the Department issued an interim order in which it directed Defendant to pay certain indemnity benefits to Claimant. Upon receipt of the interim order, Claimant’s attorney corresponded with Defendant’s attorney and requested that payment of the indemnity benefits due be forwarded “to our office in Claimant’s name.” Defendant failed to do so and instead, in early September 2007 it forwarded payment directly to Claimant.
Upon learning that Defendant had sent payment directly to Claimant, Claimant’s attorney made several attempts to contact Claimant, but to no avail. As a result, Claimant’s attorney remained unpaid for the services it had rendered in pursuit of the benefits paid to Claimant.
In November 2007, more than two months after Defendant had issued payment, Claimant’s attorney corresponded with the Department, requesting that it issue an order directing Defendant to pay attorney’s fees “pursuant to our approved attorney lien.” Appended to the request was a spreadsheet detailing the work performed and the hours billed. The Department declined to issue the requested order and instead referred the matter to the formal hearing docket. Defendant’s motion to dismiss followed.
2
Discussion
Vermont’s Workers’ Compensation Act states that attorney’s lien requests “shall be approved by the commissioner,” and that “when so approved they may be enforced against compensation awards in such manner as the commissioner may direct.” 21 V.S.A. §682. Workers’ Compensation Rule 10.5000 details the manner in which the commissioner has directed such liens be enforced, as follows:
A request for a lien must be made to the Director in writing, with a copy to the claimant, and must include a copy of the written fee agreement executed by the claimant and an itemized statement detailing both the work performed and the hours billed. (Emphasis added).
The Department notified Claimant’s attorney of the requirement that an itemized statement be filed before an approved lien could be enforced in its April 2007 correspondence. Claimant’s attorney failed to comply with this requirement, however, until some two months already had passed from the date the interim order had issued. Notably, Defendant was obligated to issue payment pursuant to the interim order within 21 days, or else risk the imposition of penalties and interest against it pursuant to 21 V.S.A. §650(e). Under these circumstances, Claimant’s attorney must bear ultimate responsibility for the fact that its lien was not satisfied, not Defendant.
It is true that Claimant’s attorney probably would have been able to secure payment for its services had Defendant complied with its request that the indemnity benefits due Claimant be forwarded to the attorney’s office rather than mailed directly to Claimant. Professional courtesy might dictate that Defendant be more cognizant of such requests. The fact remains, however, that Claimant’s attorney’s lien was not perfected until it was too late for Defendant lawfully to comply. As a result, there is no basis for legal liability to attach.
Defendant’s Motion to Dismiss is GRANTED.1
DATED at Montpelier, Vermont this 1st day of October 2008.
_________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
1 Having dismissed Claimant’s claim for attorney’s fees, there is no need to reach Defendant’s alternative motions.

V. O. v. Windsor Hospital (September 9, 2009)

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V. O. v. Windsor Hospital (September 9, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. O. Opinion No. 12A-08WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Windsor Hospital
For: Patricia Moulton Powden
Commissioner
State File No. T-00023
RULING ON CLAIMANT’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS AND ON DEFENDANT’S MOTION TO DISMISS OR STAY
The Commissioner previously decided this claim on March 27, 2008. Three issues had been presented: first, whether Claimant had reached an end medical result; second, whether her low back condition was causally related to her 2002 work injury; and third, whether massage therapy was a reasonable treatment for the 2002 injury.
The Commissioner ruled in Claimant’s favor on the first issue, but denied her claim for benefits related to the second and third issues. Claimant having only partially prevailed, therefore, the Commissioner exercised the discretion granted by 21 V.S.A. §678(a) to award her only one-half of the attorney fees she had sought. In awarding fees in that amount, the Commissioner noted that Claimant had presented essentially the same body of evidence as to all three of the issues she had pursued. Therefore, the Commissioner reasoned, it was appropriate to award fees “based upon the efforts of counsel to the extent that those efforts may be allocated among the issues.”
Claimant appealed the Commissioner’s decision to the Windsor Superior Court for jury trial. Once again, she was able to garner only a partial victory. As the Commissioner had concluded, the jury found that Claimant’s low back condition was not causally related to her 2002 work injury. Contrary to the Commissioner’s decision, however, the jury concluded that massage therapy was a reasonable treatment.
In all, therefore, between the formal hearing before the Commissioner and the Windsor Superior Court jury trial, Claimant prevailed on only two of the three issues she had pursued. Nevertheless, she now seeks an award of the remaining one-half of the attorney fees she originally sought.
Claimant cites to Electric Man v. Charos, 179 Vt. 351 (2006), for the proposition that an award of attorney fees should not be apportioned when all of the issues litigated involve the same core of primary facts. Claimant also cites to Sargent v. Town of Randolph, 2007 VT 56, for the proposition that when a workers’ compensation claimant does not prevail in proceedings before the Commissioner (and therefore does not merit an award of attorney fees), but later is victorious on appeal, he or she ought to be awarded all of the fees that previously were denied.
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I do not read the cases Claimant cites so expansively. In Electric Man the Supreme Court admonished the trial court against viewing a lawsuit between a contractor and a homeowner as “a series of discrete claims,” but most workers’ compensation actions involve exactly that – a series of separate and distinct claims for separate and distinct statutory benefits. When the same core facts give rise to clearly distinguishable benefit entitlements, as happened here, it is within the discretion granted by §678(a) to fashion an attorney fee award with those results in mind.
Nor does the Supreme Court’s holding in Sargent preclude such a result. Sargent stands only for the proposition that the Commissioner is obligated to exercise the discretion granted by §678(a) in ruling on a request for attorney fees following a successful trial or appeal of a claim that initially had been denied at the formal hearing level. Sargent, 2007 VT 56 at ¶15. By no means does it mandate that that discretion no longer exists.
In exercising that discretion, I cannot ignore the fact that even after her appeal, Claimant still was not successful on all of her claims. I conclude that the fees already awarded remain appropriate.
Having determined that Claimant is not entitled to an additional award of attorney fees, there is no need to reach the issues raised by Defendant’s Motion to Dismiss or Stay.
Claimant’s Motion for Award of Attorney Fees is DENIED.
DATED at Montpelier, Vermont this 9th day of September 2009.
______________________
Patricia Moulton Powden
Commissioner

S. H. v. Kingdom Healthcare Management (March 19, 2008)

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S. H. v. Kingdom Healthcare Management (March 19, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. H. Opinion No. 11-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Kingdom Healthcare Management For: Patricia Moulton Powden
Commissioner
State File No. X-52939
OPINION AND ORDER
Motion for Dismissal and to Vacate Interim Order dated January 31, 2008
Record closed on February 21, 2008
ISSUE:
Should Claimant’s Case be dismissed pursuant to V.R.C.P. 41(b) (2) and the Interim Order vacated?
FINDINGS OF FACT:
The Defendant filed a Motion to Dismiss for failure to prosecute and to renew the Defendant’s request to vacate the Interim Order. The Defendant filed this motion due to Claimant’s failure to respond to correspondence or phone calls from the Department of Labor and the Defendant. Finally, Claimant failed to appear at the pre-trial hearing scheduled in December, 2007. A certified letter was sent by the Department informing the Claimant that she had failed to appear by phone for the pre-trial conference and that she must contact the Department within 30 days with an accurate telephone number. This certified letter was sent to the Claimant’s home in Lyndonville, Vermont, which was the only address provided by the Claimant.
The Claimant had filed a claim for worker’s compensation due to an alleged back injury which occurred at The Pines facility for which Claimant was employed. Significant questions existed as to how the original back injury began as the Claimant initially denied any prior back problems until medical records were produced indicating she had received treatment for prior back problems.
Claimant was pro se. As noted above, Claimant did not appear by telephone for her pre-trial conference for which she had received notice by first class mail. The day of the hearing, Jane Dimotsis, Hearing Officer, tried to contact Claimant by phone. However, Claimant’s phone had been disconnected and was no longer in service. It was after this that the certified mail was sent to the Claimant. No response to the certified mailing was received by the Department.
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Therefore, Defendant moves that the Interim Order issued for payments of benefits for a fixed period of time be vacated. The original Order for benefits was issued solely due to the failure of the Defendant to respond to a claim more than 21 days after notice of the injury.
On November 18, Dr. Haas indicated in his notes that the Claimant had returned to her full time work schedule, had achieved her previous pre-injury baseline and was at medical end result with no permanent impairment.
Defense Counsel filed a Motion for Dismissal and a Motion to Vacate the Interim Order on January 31, 2008 that was sent to Claimant at her Lyndonville, Vermont address. Again, there has been no response. There has also been no response to the Department’s certified letter informing the Claimant that she had to respond with a working phone number within 30 days or her case would be dismissed.
CONCLUSIONS OF LAW:
Pursuant to V.R.C.P. 41(b) (2), Involuntary Dismissal, the Claimant’s case can be dismissed for failure to prosecute or comply with the rules or order of the Court. See
Amanda Grant v Cobb’s Corner, Opinion No. 22-02WC. (Case dismissed without prejudice for failure to appear several times at deposition after proper notice given by Department pursuant to V.R.C.P. 41(b) (2) and 41(b) (3).)
In the instant case, the Claimant has failed to respond to any Motions by Defendant and the Department’s hearing notices. Claimant did not respond within the thirty day period requested. Should the Claimant ever choose to pursue her claim within the statutory limits, the passage of time and history of non-cooperation will undoubtedly increase her burden.
Since the Claimant has not responded to certified mail or by telephone regarding the appeal of the Interim Order, the order for interim benefits is vacated without prejudice.
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ORDER:
Defendant’s Motion to Dismiss is granted. The Motion to Vacate the Interim Order is granted. Both Motions are resolved without prejudice to the Claimant.
DATED at Montpelier, Vermont this 19th day of March 2008.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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