Archive

Tag Archive for: summary judgement

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

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

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.
2
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
3
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.
4
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.
5
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.
6
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.
7
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.

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

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

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

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

Categories: Workers' Compensation Hearing DecisionTags: , Author:

R. S. v. Burlington Electric Dept. (September 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 39-06WC
R. S. By: Margaret A. Mangan
Hearing Officer
v.
For: Patricia Moulton Powden
Burlington Electric Department Commissioner
State File No. W-05113
RULING ON DEFENSE MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Frank E. Talbottt, Esq. for the Claimant
William J. Blake, Esq. for Guaranty Fund Management
Robert G. Cain, Esq. for CNA Insurance Company
Richard R. Hennessey, Esq. for National Union Fire Insurance
Eric A. Johnson, Esq. for The Hartford
John T, Leddy, Esq. for Vermont League of Cities and Towns
Corina Schaffner-Fegard, Esq. for Insurance Company of North America
ISSUE:
Should Defendant/Employer, Burlington Electric Department, be granted summary judgment on liability for an injury to Claimant on the basis of a statute of limitations defense?
UNCONTESTED FACTS:
1. Claimant began working for the Burlington Electrical Department (BED) on January 19, 1969 at first as a welder and later as mechanic 1st class and certified welder Class 15A. In 1982 he was promoted to Chief Mechanic.
2. Claimant installed and removed asbestos from pipes and packed loose asbestos directly onto pipes without adequate respiratory protection. Exposure was a regular occurrence at the Moran Generating Plant.
3. Claimant was transferred from the Moran Plant to the McNeil plant in 1984 or 1985, around the time the Moran Plant was closed.
4. Claimant retired from Burlington Electric in 1995. Prior to his retirement he was not disabled from working because of any asbestos-related condition.
2
5. Claimant was diagnosed in June of 2004 with pleurisy, emphysema and bronchiectasis caused by direct exposure to asbestos.
6. Claimant seeks medical costs for the treatment of his lung conditions.
7. As listed above, several insurers provided workers’ compensation coverage to Burlington Electric during the time Claimant worked there.
STANDARD:
Defendant insurers argue that the Occupational Disease Act bars this claim. See 21 V.S.A. §1006(a)(1987) (repealed by 1999, No.41, §8(a)(1)). In response, Claimant argues that he filed a timely claim under the Workers’ Compensation Act. § 660(b).
Summary judgment is appropriate where there is no dispute of material fact and a party is entitled to judgment as a matter of law. V.C.R.P 56(c)(3); Robertson v. Mylan Laboratories, Inc., 176 Vt. 356, 362 (2004) (citing White v. Quechee Lakes Landowners’ Ass’n., 170 Vt. 25, 28 (1999)). In this case, when evaluating the merits of the motions for summary judgment, the defense has the burden of proof, and the Claimant must be given the benefit of all reasonable doubts and inferences in determining whether a genuine issue of material fact exists. Miller v. Town of West Windsor, 167 Vt. 588, 589 (1987). Any allegations to the contrary must be supported by specific facts sufficient to create a genuine issue of material fact. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). A judgment on the pleadings is appropriate if the pleadings contain no allegations that, if proven, would permit recovery. See Hinsdale v. Sherman, 171 Vt. 605, 606 (2000).
Giving the Claimant the benefit of all reasonable doubts and inferences leads to the conclusion that his pulmonary condition resulted from his work-related exposure to asbestos and is an “occupational disease” under Vermont’s Occupational Disease Act (“ODA”). The Vermont Supreme Court citing the ODA defines an occupational disease as:
a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment, and to which an employee is not ordinarily subjected or exposed outside of or away from his employment, and which arises out of an in the course of such employment.
Campbell v. Savelberg, 139 Vt. 31 (1980).
Claimant’s condition is occupational because he was exposed to asbestos in his particular trade, he would not have been exposed otherwise, and his diseases are caused by exposure to asbestos. Thus, Claimant’s claim falls under the ODA rather than worker’s compensation.
Effective July 1, 1999, the Legislature repealed the ODA, replacing it with a new statutory scheme under 21 V.S.A. § 660(b). The ODA contained a statute of repose which read: “Compensation shall not be payable for disablement by reason of occupational disease unless such disablement results within five years after the last injurious exposure to such disease in the employment….” §1006(a) (repealed). The applicable statute of limitations under 21 V.S.A.
3
§660(b) states: “A claim for occupation disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent.”
4
The statute of limitations that applies to a particular cause of action is generally the one in effect when the cause of action accrued. Cavanaugh v. Abbott Labs., 145 Vt. 516, 521 (1985). Claimant’s cause of action began to accrue for asbestos-related pulmonary disease, an occupational disease as defined by 21 V.S.A. § 1002, on the last day of injurious exposure. Claimant admits his last day of injurious exposure was in 1984 or 1985, thus, his five-year limitation period elapsed in 1990—well before the legislature repealed the ODA in 1999 and before Claimant’s diagnosis in August 2004.
Although the legislature limited availability of the remedy to workers’ compensation claimants when it issued the non-retroactive statute repealing the ODA. 21 V.S.A. §660(b); the legislature did not interfere with a vested right of claimant, and thus, there was no constitutional deprivation or right to redress when occupational disease claim was found to be barred by ODA’s limitations period. Carter v. Fred’s Plumbing and Heating, Inc., 174 Vt. 572, 575 (2002).
DISCUSSION:
Claimant argues that this is a workers’ compensation claim, not an occupational disease claim, because he was never “disabled” during the time the ODA was in effect. Consequently, he argues that his injury did not occur until the 2004 diagnosis. Since his claim was filed that year, he contends it is timely.
The Defense, by and through its attorneys, moves for summary judgment as a matter of law on the issue whether this claim is timely. It argues that this claim falls outside the five-year statute of limitations provided in 21 V.S.A § 1006(a), which was in effect at the time of Claimant’s last injurious exposure. In support of its argument Defendants cite to the uncontested fact that Claimant’s last alleged injurious exposure to asbestos occurred in 1984 or 1985—well before July 1, 1999 when the ODA was repealed. I agree.
Here, Claimant is in the same position as claimants in Carter v. Fred’s Plumbing and Heating, Inc., 174 Vt. 572 (2002) and in Sheltra v. Vt. Asbestos Group, 175 Vt. 499 (2003), where claims were time-barred under 21 V.S.A. § 1006(a) because, in both cases, claimants’ causes of action had expired under the ODA’s statute of repose before the effective date of the new statute, 21 V.S.A. §660(b). Like Carter, whose last injurious exposure was in 1981, and Sheltra, whose last injurious exposure was in February 1994, the present Claimant’s last injurious exposure was in 1984 or 1985, thus, in Carter, Sheltra, and here as well, five years has elapsed before July 1, 1999, when §1006(b) was repealed and § 660(b) became effective. The Court in Carter determined that the Legislature did not intend that the new state of limitations in §660(b) apply retroactively to save causes of action that had already expired. Id. at 575.
Under this clearly binding precedent, Claimant’s argument that no injury occurred until the diagnosis cannot be accepted. Carter, 174 Vt. 572. “Unfortunately for plaintiff, the line was drawn in a manner that does not afford him relief. Id. at 575.
5
ORDER:
Therefore, Defendant’s motions for summary judgment are GRANTED.
Dated at Montpelier, Vermont this 21st day of September 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

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

Robert Ryan v. Dale Martin, Ronald Martin and Martin Brothers Trucking (April 29, 2009)

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

Robert Ryan v. Dale Martin, Ronald Martin and Martin Brothers Trucking (April 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Ryan Opinion No. 13-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Dale Martin, Ronald Martin
and Martin Brothers Trucking For: Patricia Moulton Powden
Commissioner
State File No. X-04332
RULING ON CLAIMANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Thomas Nuovo, Esq. for Claimant
Frank Talbott, Esq. for Defendants Dale Martin and Martin Brothers Trucking
Keith Kasper, Esq. for Defendant Ronald Martin
ISSUE:
Whether Defendants Dale Martin and Martin Brothers Trucking are precluded from raising the defense that they were not Claimant’s employer at the time of his work-related accident, such that Claimant is entitled to summary judgment on the issue under V.R.C.P. 56(c).
EXHIBITS:
Claimant’s Exhibit 1: Employee’s Notice of Injury and Claim for Compensation
Claimant’s Exhibit 2: Certified letter from Department of Labor to Dale and Ronald Martin and Martin Brother’s Trucking, June 29, 2006
Claimant’s Exhibit 3: Certified Mail Notice to Dale Martin and Martin Brothers Trucking
Claimant’s Exhibit 4: Return of Service from Chittenden County Sheriff’s Department to Dale Martin and Martin Brothers Trucking
Claimant’s Exhibit 5: Enforcement complaint, Franklin Superior Court
Claimant’s Exhibit 6: Defendants’ Answer to Plaintiff’s Complaint
2
FINDINGS OF FACT:
Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim. In addition, considering the evidence in the light most favorable to the non-moving party, based on the parties’ respective pleadings I find the following facts:
1. Claimant was injured in an accident on March 26, 2006 while operating a semi tractor trailer in the course of his employment.
2. Claimant sustained severe injuries to both ankles in the injury and his wife, a passenger in the vehicle, was killed.
3. On June 6, 2006 Claimant filed an Employee’s Notice of Injury and Claim for Compensation (Form 5) with the Department. On that form Claimant listed his employers as “Dale Martin and Ronald Martin, Martin Brothers Trucking, Maquam Shore Road, Swanton, Vermont.” Claimant listed Ronald Martin as the employer’s owner/supervisor.
4. On June 29, 2006 the Department sent letters via certified mail to Dale Martin, Ronald Martin and Martin Brothers Trucking, both to notify them of the claim and to inform them that Claimant’s Notice of Injury was being treated as a request for hearing under Workers’ Compensation Rule 4.1100. The letter further informed all three named employers that an informal telephone conference had been scheduled for July 27, 2006 to discuss the claim.
5. Workers’ Compensation Rule 4.1300 requires that when an employer receives notice from the Department that a claimant has requested a hearing, it must serve an answer specifically stating its defenses within 21 days. The rule further states:
If specific facts sufficient to support the claim have been provided by an employee, failure to answer by the employer may be treated as an unreasonable denial subject to an order to pay compensation pursuant to 21 V.S.A. §662(b). This provision shall not be construed to bar the timely assertion of additional defenses when justice requires. (Emphasis added).
6. Defendants received the Department’s June 29, 2006 letter on June 30, 2006. The letter addressed to Dale Martin, Martin Brothers Trucking, Georgia, Vermont, was signed for by Sis Martin, Dale Martin’s wife and the trucking business’ dispatcher. Ms. Martin accepted the letter as properly addressed by checking the box that so inquired.
7. A second copy of the Department’s June 29, 2006 letter also was signed for on June 30, 2006, this time by Ronald Martin. In accepting the letter, Ronald Martin indicated that his delivery address was not simply “Maquam Shore Road,” but “72 Maquam Shore Road.”
3
8. Neither Dale Martin, Ronald Martin nor Martin Brothers Trucking filed any response to the Department’s letter within the 21-day period specified. Nor did they participate in any way in the July 27, 2006 informal conference.
9. On July 27, 2006 the Department issued an Interim Order and sent a copy of it via certified mail to Dale Martin, Ronald Martin and Martin Brothers Trucking.1 The order stated that there had been no response from any of them and that therefore an interim order to pay weekly temporary total disability benefits was appropriate. The order also imposed administrative penalties as a consequence of Defendants’ failure to pay or otherwise respond in a timely manner.
10. In addition, the July 27, 2006 Interim Order specifically stated:
Dale Martin and Ronald Martin, DBA Martin Brothers Trucking, if you disagree with the Interim Order you may request a stay of the Interim Order and/or submit a written request for hearing. However, benefits shall be paid in the interim. Failure to comply with the Interim Order may result in the issuance of administrative fines of up to $5,000.00. Any request for a stay shall be filed with the Commissioner at the time of the filing of an appeal. No stay shall exist unless granted by the Commissioner.
11. Neither Dale Martin, Ronald Martin nor Martin Brothers Trucking filed any request for stay until almost two years later.
12. On August 3, 2006 the Department received an unsigned First Report of Injury listing Ronald Martin as Claimant’s employer on March 26, 2006, the date of injury. The First Report further stated that Claimant was hired in November 1994, that he began his shift at 8:00 a.m. in Georgia, Vermont on the date of the accident and that the accident occurred at 8:30 a.m.
13. The Department did not receive anything further from Dale Martin, Martin Brother’s Trucking or Ronald Martin for more than eighteen months.
14. On September 6, 2006 Claimant’s attorney filed a Complaint in Franklin Superior Court asking that the Department’s July 27th Interim Order be enforced through the Court pursuant to 21 V.S.A. §675. Claimant asked the Court to attach the property and assets of the Defendants, specifically Dale Martin, Ronald Martin and Martin Brothers Trucking, to cover his temporary disability benefits, permanent partial benefits, medical expenses, associated penalties and attorney’s fees and costs. Both Dale Martin and Ronald Martin were individually served with a copy of the Complaint, and in addition, Dale Martin was served with a copy as registered agent for Martin Brothers Trucking.
1 Although the Interim Order is dated June 27, 2006 it is clear from its context that this was in error and that it actually issued on July 27, 2006.
4
15. The Complaint alleged, in “Background Facts #7,” that “Robert Ryan has been an employee of the Defendants for over 12 years.” In its Answer to the Complaint, Defendants’ attorney responded: “Denied. [Claimant] has been an employee of the Defendants for over 11 years.”
16. In “Background Facts #8” the Complaint further alleged that “On March 26, 2006, [Claimant] suffered an accident while in the employment of the Defendants. As a result of the accident [Claimant] suffered bi-lateral ankle fractures and has significant emotional issues regarding both the accident and the loss of his wife who was a passenger in the vehicle at the time.” Defendants admitted these statements in their Answer. Defendants also admitted that they had no workers’ compensation insurance.
17. In their Answer to Claimant’s Complaint, Defendants also asserted that as of October 27, 2006 payments totaling $12,852.62 in workers’ compensation benefits had been made to Claimant.
18. In the context of the Franklin Superior Court enforcement action, Claimant obtained trustee process against the bank account held by Martin Brothers Trucking. Claimant also moved for Writs of Attachment on Dale Martin’s property.
19. Jesse Bugbee, Esq. was the attorney of record for Defendants at the time they responded to Claimant’s Complaint. Through their current attorney, Frank Talbott, Esq., Dale Martin and Martin Brothers Trucking now state that Attorney Bugbee was not representing them at the civil court proceeding but was only authorized to represent Ronald Martin. Attorney Talbott has produced no evidence, by affidavit or otherwise, to support this allegation.
20. On its face, Attorney Bugbee’s pleading in the Franklin Superior Court enforcement action appears to indicate otherwise. It is captioned, “Defendants’ Answer to Plaintiff’s Complaint” (emphasis added). It specifically denies allegations as to both Dale Martin’s residence and the business address for Martin Brothers Trucking, and purports to allege more accurate addresses instead. It repeatedly refers to “Defendants” in responding to other allegations of the Complaint. As noted above, it expressly admits the allegation that Claimant “suffered an accident while in the employment of the Defendants.” (Emphasis added). In the section captioned “Affirmative Defenses,” it states, “For their affirmative defenses, Defendants state as follows,” (emphasis added), and the relief requested states that it is on behalf of “Defendants.” (Emphasis added). Last, it reflects that Attorney Bugbee carbon copied his filing to both Dale Martin and Ronald Martin.
21. Even if Attorney Bugbee was not representing Dale Martin and Martin Brothers Trucking, as they now allege, then in that case because they were named and served with the civil complaint but failed to answer, the judgment issued against them would be a default judgment under V.R.C.P. 4(b).
5
22. Attorney Talbott did not enter his appearance before the Department on behalf of Defendants Dale Martin and Martin Brothers Trucking until April 2008, more than two years after the accident. In seeking relief from the Department’s July 2006 Interim Order Attorney Talbott argued that Dale Martin and Martin Brothers Trucking were not Claimant’s employers on the date of his accident, but rather that Ronald Martin was the responsible employer. Attorney Talbott asserted that the reason neither Dale Martin nor Martin Brothers Trucking had raised this defense earlier was because they had assumed that Ronald Martin would pay whatever benefits were owed. Attorney Talbott also asserted that Ronald Martin has his own trucking business although Dale Martin does hire him at times to run hauls.
23. The Department denied Attorney Talbott’s motion for relief from the Interim Order on May 5, 2008. As grounds for doing so, it cited Defendants’ “unaccountable delay in asserting any defense.” The Department also noted that the contrary representations as to Claimant’s relationship with Dale Martin and Martin Brothers Trucking on the date of his accident “preclude finding reasonable basis to disturb the Order.”
24. Attorney Talbott’s motion for relief having been denied, the claim was forwarded to the formal hearing docket on the question whether Dale Martin and Martin Brothers Trucking are barred from raising the defense that neither was Claimant’s employer. Claimant’s motion for summary judgment on the issue followed and is now pending.
25. On August 4, 2008, Keith Kasper, Esq., representing Defendant Ronald Martin, informed the Department that his client had filed for bankruptcy. On August 31, 2008 Attorney Kasper notified the Department that in light of the bankruptcy proceeding Defendant Ronald Martin would not be appearing at either the pre-trial conference or the formal hearing, and presumably would take no active role in these proceedings.
CONCLUSIONS OF LAW:
1. Under V.R.C.P. 56(c), summary judgment shall be awarded to the moving party if it can demonstrate that there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. In evaluating the propriety of a summary judgment motion, the non-moving party is entitled to the benefit of all reasonable doubt and inferences. Murray v. White, 155, 621 (1991); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
2. Applying that standard to the current claim, I conclude first of all that Defendants Dale Martin and Martin Brothers Trucking received proper notice of Claimant’s claim, their right to defend against it, the informal conference process in which such defenses would be heard and the possibility that an interim order might issue should their defenses prove unconvincing. The Department’s June 29, 2006 letter to this effect was sent to all three Defendants by certified mail, and all three Defendants signed to indicate their receipt.
3. Similarly, the Department’s July 27, 2006 Interim Order was mailed to all three Defendants by certified mail, and all three Defendants signed to indicate their receipt.
6
4. Workers’ Compensation Rule 4.1300 allows the Department to issue an interim order to pay compensation against a defendant who has failed to answer a claimant’s claim for benefits. While the rule does not bar such a defendant from later asserting additional defenses, the right to do so is clearly qualified in two important respects. First, the additional defenses must be asserted “in a timely manner,” and second, they must only be allowed “when justice requires.”
5. As to the first requirement, I find that Defendants have failed to assert their defenses “in a timely manner.” I simply cannot countenance a delay of nearly two years in raising a factual defense that should have been apparent to Defendants from the outset. Particularly in light of subsequent events, Defendant Ronald Martin now having declared bankruptcy and become judgment-proof, the prejudice to Claimant that would result if I were to do so is too glaring to ignore.
6. Nor can I conclude that under the circumstances of this claim “justice requires” that Defendants be given yet another opportunity to assert defenses that they should have raised long ago. In reaching that conclusion, I am mindful, first of all, that in the context of administrative proceedings, due process grants to each party the right to be heard. That right can be waived, however, which means that due process is satisfied so long as each party has been furnished an opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).
7. Clearly Defendants Dale Martin and Martin Brothers Trucking were given an opportunity to be heard here, and clearly they opted not to take advantage of it. The reason stated for their failure to respond – that they thought Ronald Martin was taking care of matters – does not in any way change the legal ramifications of their decision not to defend themselves.
8. Not only did Defendants fail to defend themselves in the context of the Department’s initial proceedings, furthermore, but they also remained silent throughout the course of enforcement proceedings brought against them in superior court, proceedings that even went so far as to result in trustee process against their bank account.
9. Against this backdrop, I simply cannot conclude that “justice requires” that Defendants be allowed now to assert the defense that they were not Claimant’s employer on the date of his accident. In fact, exactly the opposite is true. By their inaction, Defendants lulled Claimant into a false sense of security on the issue. Now they point the finger instead at Ronald Martin, who since has declared bankruptcy and therefore likely will have no resources with which to pay Claimant the benefits to which he is entitled. Unfortunately, what injustice there is likely will land on Claimant’s shoulders, therefore, not Defendants’.
10. Furthermore, this entire scenario has played out in the context of Defendants having failed to maintain workers’ compensation insurance, a serious violation of 21 V.S.A. §687 that may subject them to fines and penalties. The intent of that law is to protect injured workers from the very situation Claimant now faces.
7
11. I conclude, therefore, that Defendants Dale Martin and Martin Brothers Trucking are precluded from raising the defense that they were not Claimant’s employer on the date of his injury. The only issue for hearing shall be the amount of compensation due Claimant, taking into account both the medical and indemnity benefits to which he proves his entitlement and the amount of any applicable administrative penalties previously imposed, less credit for any amounts already paid.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s Motion for Summary Judgment is hereby GRANTED.
DATED at Montpelier, Vermont this 29th day of April 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.

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

Categories: Workers' Compensation Hearing DecisionTags: , Author:

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

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

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Johanna Donovan v. AMN Healthcare (May 26, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Johanna Donovan Opinion No. 12-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
AMN Healthcare
For: Anne M. Noonan
Commissioner
State File No. Z-57862
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
David Mickenberg, Esq. for Claimant
William Blake, Esq. for Defendant
ISSUE:
Is it appropriate to include Claimant’s monthly housing allowance in calculating her average weekly wage and compensation rate for permanent partial disability benefits?
FINDINGS OF FACT:
The following facts are not disputed:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. On November 23, 2007 Claimant injured her neck and back in the course and scope of her employment for Defendant. Defendant accepted her injury as compensable and paid medical benefits accordingly.
3. Claimant did not lose any time from work as a consequence of her injury and therefore no temporary disability benefits were paid.
4. The parties agree that as a consequence of her injury Claimant suffered a 6 percent whole person permanent impairment referable to her spine. This represents a compromise between Dr. Johansson’s 5 percent impairment rating and Dr. Bucksbaum’s 7 percent rating.
5. Claimant’s average weekly wage for the twelve weeks preceding her injury was $1,102.72. In addition, she received a housing allowance of $1,800.00 per month.
2
DISCUSSION:
1. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). The nonmoving party is entitled to all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 242 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. The disputed issue here is whether Claimant’s monthly housing allowance should be included in calculating her average weekly wage for the purposes of determining her compensation rate for permanent partial disability benefits. Claimant argues that it should. Defendant asserts that because Claimant never was deprived of her housing allowance, to include it in her compensation rate would result in an inappropriate windfall.
3. Vermont’s workers’ compensation statute differentiates between two general types of compensable wage loss – temporary and permanent. Bishop v. Town of Barre, 140 Vt. 564 (1982); Orvis v. Hutchins, 123 Vt. 18, 22 (1962). Temporary disability benefits compensate an injured worker for his or her “temporary incapacity during the healing period.” Orvis, supra at 22. Their purpose is to replace the worker’s present loss of earning power, if any, during the period between the injury and final recovery. Bishop, supra at 571.
4. Permanent disability benefits compensate for a different time frame – the future, not the present. Permanency benefits are calculated solely on the basis of physical impairment, and are paid regardless of whether the injured worker’s present earning power has diminished in any way as a result of the injury. Bishop, supra. Rather, the injury’s effect on the worker’s future earning capacity is conclusively presumed. Id. at 573; Orvis, supra at 22.
5. The statute provides the same mechanism for calculating the compensation rate for both temporary total and permanent partial disability benefits – sixty-six and two-thirds percent of the injured worker’s average weekly wage for the twelve weeks preceding his or her injury. 21 V.S.A. §650(a).1
6. The statute also defines what constitutes “wages” for the purposes of calculating a claimant’s compensation rate. The term specifically includes “the market value of board [and] lodging . . . which the employee receives from the employer as a part of his remuneration . . . .” 21 V.S.A. §601(13).
1 Section 650(a) has since been amended, and now requires that the average weekly wage calculation be based on the claimant’s earnings for the 26 weeks preceding his or her injury. The amendment did not become effective until after the current claim arose.
3
7. Although the statute does not distinguish between calculating the compensation rate for temporary as opposed to permanent disability benefits, the workers’ compensation rules do. Rule 15.4130 provides generally that the fair market value of any room or board provided to the claimant by the employer is includable in the average weekly wage and compensation rate calculation. However, it then notes the following exception:
If the claimant continues to receive any of these benefits [including room or board] during the period of temporary total disability, the value of that benefit shall not be included in calculating the compensation rate.
8. This exception is in keeping with the statutory distinction between temporary and permanent disability benefits. A claimant who continues to receive room and board from the employer even during a period of temporary total disability has not suffered any present loss of that element of his or her wages. At least in that regard, therefore, there is nothing yet to replace.
9. When it comes to permanency, however, it is no longer relevant whether the claimant did or did not continue to receive room and board during the healing period. Rather, his or her future wage loss is conclusively presumed. Bishop, supra. The value of room and board being an appropriate component of the worker’s pre-injury wages, it must now be factored into the compensation rate calculation.
10. Defendant cites to Laumann v. Department of Public Safety, 2004 VT 60, in support of its argument that factoring the housing allowance into the calculation of Claimant’s compensation rate for permanency benefits will result in an impermissible windfall to her. The circumstances of that case are distinguishable from those presented here.
11. In Laumann, the Supreme Court considered whether it was appropriate to apply cost of living adjustments to the claimants’ permanency awards for periods during which they already had returned to work. The Court noted the legislature’s intent to connect permanency compensation “to wages and annual adjustments that would have been due while the claimant was injured.” Id. at ¶14. Once the claimants returned to work, however, they received both their salaries and whatever annual adjustments their employers paid thereafter. They were not deprived of any cost of living increases, and therefore to add an additional cost of living adjustment, covering those same periods, to their permanency awards would have resulted in a double benefit. Id. at ¶15.
12. A cost of living adjustment is the statute’s way of ensuring that an injured worker’s compensation rate keeps pace with the wage increases that the employer presumably would have paid following the injury. 21 V.S.A. §650(d). In contrast, a housing allowance is an element of wages actually paid as a part of the employee’s remuneration. 21 V.S.A. §601(13). The two are qualitatively different, and therefore merit different treatment.
4
13. I conclude that it is appropriate to include Claimant’s housing allowance in calculating her average weekly wage for the purposes of determining her compensation rate for permanent partial disability benefits. Excluding the allowance would artificially deflate the total amount of Claimant’s presumed loss of future earning power, and thus impermissibly diminish the value of her permanency award.
ORDER:
Defendant’s Motion for Summary Judgment is hereby DENIED. Claimant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s average weekly wage for the purposes of determining her compensation rate for permanent partial disability benefits shall include the monthly housing allowances she received during the 12 weeks preceding her injury.
DATED at Montpelier, Vermont this 26th day of May 2011.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Estate of Monica Dunn v. Windham Northeast Supervisory Union (November 15, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Estate of Monica Dunn v. Windham Northeast Supervisory Union (November 15, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Estate of Monica Dunn Opinion No. 36-11WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Windham Northeast For: Anne M. Noonan
Supervisory Union Commissioner
State File No. AA-62904
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Jennifer Moore, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant entitled to an offset under 21 V.S.A. §624(e) for the workers’ compensation benefits paid and/or payable on account of Claimant’s death from the proceeds of a life insurance policy?
FINDINGS OF FACT:
For the purposes of these cross motions, the following facts are undisputed:
1. Claimant was an employee and Defendant was her employer within the meaning of Vermont’s Workers’ Compensation Act.
2. On October 6, 2009 Claimant died from complications resulting from surgical treatment of a work-related knee injury. Defendant began paying workers’ compensation death benefits to her estate accordingly.
3. At the time of her death Claimant had a life insurance policy that named her husband, David Dunn, as beneficiary. Mr. Dunn has collected death benefits from this life insurance policy since Claimant’s death.
4. Claimant’s life insurance policy provided for a lump sum payment upon proof of her death. The policy also provided for a payment to Claimant’s children in the amount of $3,000.00 per child for a maximum of four years while they attend college.
2
5. Defendant seeks reimbursement of the death benefits it has paid to date, as well as a credit against future benefits, to the full extent of Mr. Dunn’s receipt of life insurance proceeds.
DISCUSSION:
1. These cross motions present a purely legal issue for determination – in order to prevent a double recovery, does 21 V.S.A. §624 require reimbursement and offset for the workers’ compensation benefits that Defendant owes on account of Claimant’s death from the proceeds of her life insurance policy? 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 subrogation statute, 21 V.S.A. §624, provides as follows:
(a) Where the injury for which compensation is payable under the provisions of this chapter was caused under circumstances creating a legal liability to pay the resulting damages in some person other than the employer, the acceptance of compensation benefits . . . shall not act as an election of remedies, but the injured employee or the employee’s personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section.
. . .
(e) In an action to enforce the liability of a third party, the injured employee may recover any amount which the employee or the employee’s personal representative would be entitled to recover in a civil action. Any recovery against the third party for damages resulting from personal injuries or death only, after deducting expenses of recovery, shall first reimburse the employer or its workers’ compensation insurance carrier for any amounts paid or payable under this chapter to date of recovery, and the balance shall forthwith be paid to the employee or the employee’s dependents or personal representative and shall be treated as an advance payment by the employer on account of any future payment of compensation benefits. Reimbursement required under this subsection, except to prevent double recovery, shall not reduce the employee’s recovery of any benefit or payment provided by a plan or policy that was privately purchased by the injured employee, including uninsured-under insured motorist coverage, or any other first party insurance payments or benefits.
3. Defendant argues that it is entitled to reimbursement and offset from Claimant’s life insurance proceeds because they constitute “first party insurance payments” intended to cover the same economic losses for which workers’ compensation benefits are payable – that is, to replace the loss of income to Claimant’s family on account of her death. If
3
reimbursement and offset is not required Claimant’s estate will reap a double recovery, which Defendant argues is prohibited by §624(e).1
4. Claimant argues that the plain meaning of 21 V.S.A. §624, read as a whole, requires reimbursement and offset only in situations where an injured worker has recovered damages from the third party responsible for his or her injuries. As benefits payable under a life insurance policy are not the equivalent of damages from a tortfeasor, Claimant argues, the statute does not grant Defendant any right to reimbursement. I agree.
5. The flaw in Defendant’s argument is that it reads the last sentence of §624(e) as though it has no accompanying statutory framework. The reimbursement right granted by that sentence, however, is specifically tied to the “recovery against the third party for damages” referenced in the preceding sentence. That language in turn must be read in the context of §624(a), which references the injured worker’s right, in situations where his or her “injury . . . was caused under circumstances creating a legal liability” in some third party, to recover the “resulting damages.”
6. Defendant equates the benefits payable under Claimant’s life insurance policy with the term “damages” as used in §624. The two concepts are not equivalent, however. The term “damages” denotes “the money payable by a tortfeasor who is liable for injuries caused by his tortious act.” The Travelers Companies v. Liberty Mutual Insurance Co., 164 Vt. 368, 373 (1995), citing Wincek v. Town of West Springfield, 399 Mass. 700, 702 (1987) (quoting Restatement (Second) of Torts §12A (1965), defining “damages” as “a sum of money awarded to a person injured by the tort of another”). In contrast, a benefit paid under the terms of an insurance policy is “a payment made in performance of a contractual obligation,” not a payment of “damages.” Wincek, supra at 703 (internal citation omitted).
7. With this distinction in mind, even accepting that Claimant’s life insurance proceeds represent monies recovered from a “third party,” Travelers Companies v. Liberty Mutual, supra at 372, they still are not an appropriate source of reimbursement. Rather, to attach these monies Defendant must show both that they come from a third party and that they represent damages. Id.
8. Construed as a whole, and reading all parts of the statutory scheme in harmony, In re Jenness, 2008 VT 117, ¶24, I conclude that an employer’s right to reimbursement under §624(e) only attaches to damages that the injured worker has recovered from a third party tortfeasor. See, Progressive Casualty Ins. Co. v. Estate of Keenan, 2007 VT 86, ¶11. I further conclude that the benefits paid under the terms of Claimant’s life insurance policy do not constitute “damages.” That being the case, I conclude that Defendant has no right to reimbursement or offset from them.
1 Defendant acknowledges that it is only entitled to reimbursement and offset to the extent that the benefits payable under Claimant’s life insurance policy represent economic, as opposed to non-economic, damages. Traveler’s Insurance Co. v. Henry, 2005 VT 68. Beyond summary judgment in its favor as to its right to reimbursement, it seeks a hearing to determine the extent of these.
4
9. Claimant has submitted a request under 21 V.S.A. §678 for attorney fees totaling $3,088.50. The decision whether to award attorney fees lies within the Commissioner’s discretion. Among the factors to be considered are whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003). Having reviewed the specific billing entries, I conclude Claimant is entitled to recover these fees.
ORDER:
Claimant’s Motion for Summary Judgment is GRANTED. Defendant’s Motion for Summary Judgment is DENIED. Claimant is awarded attorney fees in the amount of $3,088.50.
Dated at Montpelier, Vermont, this 15th 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.

Estate of Stephen Paul Carr v. Verizon New England, Inc. (April 29, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Estate of Stephen Paul Carr v. Verizon New England, Inc. (April 29, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Estate of Stephen Paul Carr, by Opinion No. 08-11WC
and through the Widow and
Administratrix, Bonnie Carr By: Phyllis Phillips, Esq.
Hearing Officer
v.
For: Anne M. Noonan
Verizon New England, Inc. Commissioner
State File No. Y-53261
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ATTORNEYS:
Dennis Shillen, Esq., for Claimant1
J. Christopher Callahan, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s fatal injury arise out of and in the course of his employment for Defendant?
FINDINGS OF FACT:
The following facts are undisputed:2
1. Claimant Stephen Paul Carr was employed by Defendant as a field manager for the Rutland and Sunderland, Vermont offices. As a “floating” manager, at times his job required him to work different assignments at other company locations throughout Vermont.
2. Maureen Oday was Claimant’s supervisor from 2003 on.
3. Ms. Oday designated Claimant for a special duty work assignment from Monday, June 26, 2006 to Wednesday, June 28, 2006. The special duty assignment required Claimant to fill in as the acting manager of the Construction Control Center, located at Defendant’s
1 For ease of reference, “Claimant” is used herein to identify the deceased worker, Stephen Paul Carr. In point of fact, the current claim has been brought by his estate.
2 Claimant failed to file a separate statement of contested facts in response to Defendant’s Motion for Summary Judgment, as is required by V.R.C.P. 56(c)(2). To the extent that his Objection to Defendant’s Motion and Cross-Motion for Summary Judgment identifies disputed material facts, I have considered them as such. Closer adherence to the requirements of Rule 56 would have been preferable, however. See, Webb v. LeClair, 2007 VT 65; T.A. v. Johnston, Opinion No. 05S-07WC (September 12, 2007).
2
800 Hinesburg Road, South Burlington, Vermont office (the “Hinesburg Road office”), while the regularly assigned manager was on vacation.
4. At the time of this special assignment, Claimant lived with his wife, Bonnie Carr, at 7383 US Route 4 in Bridgewater, Vermont. The distance from Claimant’s residence to Defendant’s Hinesburg Road office was approximately 104 miles.
5. Travel expenses incurred during Claimant’s special duty assignment, including mileage, meals and lodging, were to be reimbursed in accordance with Defendant’s policies.
6. When an employee is given a special duty assignment, Defendant reimburses for travel expenses based on the direct route mileage between the employee’s regular reporting location and his or her special duty reporting location, not to and from the employee’s home. In this case, therefore, Defendant paid Claimant’s mileage from the Rutland office to the Hinesburg Road office and back, not to and from his home in Bridgewater.
7. Claimant was responsible for making his own lodging arrangements for his special duty assignment. This he did, by booking accommodations at the Hampton Inn in Colchester, Vermont from Sunday, June 25th through Wednesday, June 28th.
8. The Hampton Inn is located 5.7 miles north of Defendant’s Hinesburg Road office. Consistent with previous arrangements between Defendant and the Hampton Inn, the hotel billed Defendant directly for Claimant’s accommodations, and Defendant subsequently paid for them.
9. On Sunday evening, Claimant traveled from his home in Bridgewater to the Colchester Hampton Inn. His likely route of travel was via Interstate 89 North. Claimant checked into the hotel at approximately 9:17 PM.
10. Claimant’s expected work hours during his special duty assignment were from approximately 7:30 AM to 4:00 PM. As a manager, his actual hours may have varied somewhat from this.
11. Claimant was responsible for a number of tasks during his special duty assignment. At Ms. Oday’s request, he completed a motor vehicle inventory and researched some callout activity. These tasks likely were completed by Tuesday.
12. Claimant also spent some time during his special duty assignment managing the process by which employees assigned to Defendant’s construction unit were loaned out to its installation and maintenance unit in order to assist with workload. He likely fielded requests from other staff and/or Ms. Oday as well, though there is no specific documentation of this.
13. Following the conclusion of his workday at the Hinesburg Road office on Tuesday, Claimant drove to his home in Bridgewater to participate in a non-work-related golf event and to pick up his motorcycle for servicing in the Burlington area the following day. Notwithstanding that Claimant did not actually stay at the Hampton Inn that night, Defendant paid for his accommodations there nevertheless.
3
14. On Wednesday morning Claimant again traveled from his home in Bridgewater to the Hinesburg Road office. This time he was driving his motorcycle, which he dropped off for servicing at Green Mountain Harley Davidson, located at 157 Pearl Street in Essex Junction, Vermont.
15. Also on Wednesday, at approximately 12:21 PM Claimant checked out of the Hampton Inn. Later, between 4:30 and 4:45 PM Claimant’s co-employee, Krista Karns, drove him to Green Mountain Harley Davidson so that he could retrieve his motorcycle.
16. Ms. Oday spoke to Claimant numerous times on Wednesday. For much of that day she was attending a meeting in White River Junction, and later on she had to travel to Woodstock to supervise repairs to a “fiber break” there. She last spoke to Claimant via cell phone late in the day. At that time, Ms. Oday was unaware of any remaining duties that would have required Claimant to extend his special duty assignment to Thursday morning.
17. At some point prior to beginning his special duty assignment, Claimant had requested a half-day of vacation on Thursday morning, so that he could attend an 8:15 AM medical appointment at Dartmouth Hitchcock Medical Center in Lebanon, New Hampshire. Ms. Oday acceded to this request.
18. After concluding his medical appointment, Claimant was expected to report to his regular duty assignment at Defendant’s Rutland office on Thursday afternoon. This is where Claimant would have been expected to begin his work day had he not been granted vacation time for the first half of that day.
19. Claimant’s wife did not expect him to return home on Wednesday night; rather, it was her understanding that he did not intend to return home until Thursday. Claimant’s wife recalled that Claimant had advised her of this on Tuesday evening, when he was home for his golf event.
20. Claimant’s wife recalled that Claimant called her on his cell phone on Wednesday evening at approximately 9:45 PM and said that he was “settled in for the night,” that he “had to go into work for a little while in the morning” to photocopy and/or fax some documents, and that thereafter he would be headed to his medical appointment at Dartmouth Hitchcock.3 Claimant’s cell phone records confirm that he did place a call to his home phone at 10:02 PM on Wednesday evening.
21. Claimant was entitled to mileage reimbursement in accordance with Defendant’s reporting-location-to-reporting-location policy regardless of whether he departed from his special duty assignment on Wednesday evening or on Thursday morning.
3 Defendant argues that Claimant’s cell phone conversation constitutes inadmissible hearsay under V.R.E. 802. Hearsay evidence of intention is admissible “on the question whether the intended act was done.” V.R.E. 803(3), Reporter’s Notes, citing Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-300 (1892). Although it is by no means conclusive, the evidence is available to show that Claimant acted in accordance with the plan he allegedly described to his wife, which was “to go into work for a little while” on Thursday morning.
4
22. Had Claimant concluded and departed from his special duty assignment on Wednesday evening, he would have traveled from the Hinesburg Road office to his home in Bridgewater by way of Interstate 89 South.
23. Early on Thursday morning, at approximately 5:50 AM Claimant was traveling on his motorcycle eastbound on Route 117 in Essex, Vermont in the vicinity of North Williston Road. Claimant was injured when a car failed to yield the right of way to him as it exited North Williston Road and headed westbound on Route 117. Claimant struck the driver’s side of the other vehicle and was thrown from his motorcycle. He died from his injuries the following day.
24. At the time of Claimant’s collision, traffic on Route 117 was likely very light. The sight view at the intersection of North Williston Road was unobstructed both easterly and westerly.
25. From Route 117 East, the Hinesburg Road office can be reached most directly via North Williston Road and Route 2. Had Claimant been traveling to that office at the time of the collision, he would have turned right from the eastbound lane of Route 117 onto North Williston Road.
26. Had Claimant been traveling from the Hinesburg Road office towards Route 117 eastbound at the time of the collision, he would have taken a right turn off of North Williston Road and onto Route 117. The collision occurred slightly west of that intersection, however.
27. At the time of Claimant’s collision, Defendant maintained a “Central Office,” or “CO,” located at 9 Lincoln Street (immediately off of Route 117) in Essex Junction, Vermont. A CO is a technical building that houses the switches and equipment from which dial tone and data communications originate and terminate. Defendant maintains several CO’s throughout the state.
28. According to Google Maps, the Lincoln Street CO is located 3.9 miles from the site of Claimant’s collision. According to Google Maps, it is a 6.9 mile drive from the CO to Defendant’s Hinesburg Road office.
29. As viewed from a Google Earth map, Claimant’s collision on Route 117 appears to have occurred at a site approximately equidistant from both the Lincoln Street CO and the Interstate 89 on-ramp in Richmond.
30. Claimant’s wife does not know where Claimant stayed on Wednesday night. She assumed at the time that he was still at the Colchester Hampton Inn. Later she learned that Claimant had checked out of that hotel on Wednesday afternoon, whereupon she assumed that Claimant had spent the night at Ms. Oday’s residence. Ms. Oday lives on Route 117 in Essex, less than one mile west of the site of Claimant’s collision.
31. Claimant’s wife suspected that Claimant and Ms. Oday were romantically involved. Ms. Oday acknowledged that she and Claimant were close friends, but denied that they were romantically involved. She denied that Claimant spent Wednesday night at her house.
5
32. On Friday, June 30th, Claimant’s wife telephoned Ms. Oday and advised her of Claimant’s Wednesday evening cell phone call, during which, as Claimant’s wife recalled, Claimant had told her he needed to go into the office on Thursday morning to take care of some photocopying and/or faxing. Ms. Oday responded that she did not know of any work activities in which Claimant would have been engaged on Thursday morning.
33. Ms. Oday testified that although she had not formally extended Claimant’s special duty assignment beyond Wednesday, June 28th, she could not say definitively whether Claimant might have gone to work early Thursday morning or not.
34. Claimant’s estate did not commence a workers’ compensation claim, or retain counsel for that purpose, prior to September 19, 2006.
35. In September 2006 Defendant’s corporate security investigator, Dan Jamroz, conducted an internal investigation as to the circumstances surrounding Claimant’s death. During the course of this investigation, Mr. Jamroz reviewed the entry records for Thursday, June 29th, at the Hinesburg Road office. During the hours when the doors are locked to the public (which would have been the case in the hours leading up to Claimant’s accident), employees can gain access either by way of an electronic access card or with a key. Claimant had an entry card by which he could have accessed the Hinesburg Road office during the early morning hours on Thursday.
36. The entry records for Thursday show that only one employee – Douglas Klinefelter – used an entry card to gain access to the Hinesburg Road office prior to 5:50 AM, when Claimant’s accident occurred. This was at 4:10 AM. The first access by using a key was at 6:49 AM, nearly one hour after Claimant’s accident. There is no evidence that Claimant entered the Hinesburg Road office prior to his accident on Thursday morning.
37. Mr. Jamroz assumed that Claimant had access to the Lincoln Street CO. Although he tried to determine whether Claimant had entered the building on Thursday morning, the entry recording system was not functioning on that day. If Claimant did access the building, therefore, no record of him having done so would exist.
38. Mr. Jamroz also sought to obtain fax records from the Lincoln Street CO for Thursday morning. By the time of his investigation, however, those fax records were no longer available.
39. Had Claimant returned home on Wednesday night rather than choosing to remain in the Burlington area, it stands to reason he would have departed for his Dartmouth Hitchcock medical appointment from his home in Bridgewater the following morning.
40. Had Claimant taken the most direct route from the Hinesburg Road office to Defendant’s Rutland office on Thursday morning he would have traveled Route 116 South to Route 7 South. This is the most typical and direct route of travel between those two reporting locations.
6
41. According to Google Maps, it is approximately 63.6 miles from the Hinesburg Road office to Rutland using the Route 116 to Route 7 route. If traveling via Interstate 89 South, the distance between these two locations is approximately 103 miles, or 39.4 miles longer.
42. According to Google Maps, the most direct route to Dartmouth Hitchcock from the location of Claimant’s accident would be Route 117 East to Interstate 89 South, which can be accessed via the on-ramp in Richmond.
43. According to Google Maps, the Hampton Inn is in close proximity to Interstate 89 South and is 5.7 miles from the Hinesburg Road office. The most direct route from the Hampton Inn to Dartmouth Hitchcock is via Interstate 89 South.
44. Defendant did not exercise any control over the location from which Claimant elected to travel to his medical appointment on Thursday, June 29th, nor did it exercise any control over the time of his departure.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. Both parties here seek summary judgment in their favor. According to Defendant, the undisputed facts establish that Claimant was engaged in a scheduled half-day vacation and pursuing a purely personal errand at the time of his injury. Because the injury was not sufficiently connected to a work place or time to have arisen in the course of his employment, therefore, as a matter of law it is not compensable.
3. Claimant asserts that there is evidence from which it might be inferred that at the time of his injury he was en route either to or from a work-related task, and on those grounds alone summary judgment in Defendant’s favor must be denied. Beyond that, Claimant asserts that because he was engaged in the travel necessitated by his special duty assignment, as a matter of law his injury arose in the course of his employment and is therefore compensable.
4. An injury is compensable only if it arises both “out of” and “in the course of” employment. 21 V.S.A. §618; Miller v. IBM, 161 Vt. 213, 214 (1993). An injury arises out of employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original).
7
5. An injury arises in the course of employment “when it occurs within the period of time when the employee was on duty at a place where the employee may reasonably be expected to be.” Miller, supra at 215. It is this prong of the compensability test that is at issue here – the time and place connection between Claimant’s injury and his work. Walbridge v. Hunger Mountain Co-op, Opinion No. 12-10WC (March 24, 2010).
6. Generally speaking, an employee is not within the scope of employment when he or she is injured while traveling to and from work, unless the injury occurs on the employer’s premises. Miller, supra at 216. There is an exception to this rule, however, in cases involving traveling employees – those who either have no fixed place of employment or who are engaged in a special errand or business trip at the time of their injuries. Where the travel is itself “a substantial part of the service for which the worker is employed,” then injuries incurred en route are usually covered as well. 1 Larson’s Workers’ Compensation Chapter 14 at p. 14-1 (2010).
7. There is as well, however, an exception to the exception. If a traveling employee deviates substantially from a journey’s business purpose in order to pursue personal interests instead, an injury sustained during the deviation will no longer be deemed to be within the course of employment. Larson’s, supra at Chapter 17, p. 17-1.
8. Here, Claimant argues that the evidence is sufficient at least to create a factual dispute as to whether he was pursuing a business purpose on the morning of Thursday, June 29th such that there was no personal deviation at all. This argument is premised entirely on Claimant’s telephone conversation with his wife the night before, during which he allegedly told her that he planned to “go into work for a little while” on Thursday morning so that he could photocopy or fax some documents. From this evidence, Claimant hypothesizes that on Thursday morning he traveled first to the Lincoln Street CO to fax and/or photocopy the documents, and thereafter was traveling on a direct route home as part of the return leg of his business trip when his fatal accident occurred.
9. Had Claimant told his wife that he planned to go specifically to the Lincoln Street CO to accomplish his work on Thursday morning, then I agree this would be sufficient evidence at least to raise a factual issue. He did not do so, however. Nor is there any other evidence that, if believed, would establish his presence there. With no evidence at all to support Claimant’s hypothesis, I cannot use it as a basis for finding a genuine issue of material fact. Richards v. Nowicki, 172 Vt. 142, 150 (2001), citing Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (opponent of summary judgment cannot rely upon conjecture or speculation).
10. The undisputed evidence also establishes that Claimant was neither going to nor coming from the Hinesburg Road office at the time of his injury. Had he been coming from that office at the time of the collision, the entry records would have documented his admission into the building, either by electronic access card or by key, prior to 5:50 AM. They do not. Had he been traveling to that office at the time of the accident, furthermore, there would have been no collision at all, as he would have been turning right onto North Williston Road at the same time that the other driver would have been turning left onto Route 117, and their paths would not have crossed as they did.
8
11. I conclude, therefore, that Claimant has failed to make a showing sufficient to establish a specific business purpose for his presence at the collision site on Thursday morning, June 29th. Rather, by opting not to travel on a direct route home from the Hinesburg Road office immediately after his special duty assignment concluded on Wednesday evening Claimant thereby embarked on a personal deviation.
12. The inquiry does not end there, however. Not every personal deviation will justify a denial of workers’ compensation coverage. Rather, the question in each case is whether, under all the circumstances, the deviation is substantial enough to take the worker out of the course and scope of his or her employment. Estate of Rollins v. Orleans Essex Visiting Nurses Assn., Opinion No. 19-01WC (June 5, 2001). Factors bearing on this question include:
(1) the amount of time taken up by the deviation;
(2) whether the deviation increased the risk of injury;
(3) the extent of the deviation in terms of geography; and
(4) the degree to which the deviation caused the injury.4
Id.; see generally, Larson’s, supra at Chapter 17.
13. Considering the second and fourth factors first, I conclude from the undisputed facts that Claimant’s deviation here neither increased the risk of injury nor specifically caused it to occur. He was not, for example, intoxicated at the time of the injury, a frequently cited basis for denying compensation in personal deviation claims. See, e.g., Superior Asphalt & Concrete Co. v. Department of Labor & Industries, 19 Wash.App. 800 (Div. 3 1978); Dooley v. Smith’s Transfer Co., 26 N.J. Misc. 129 (1948); see generally, Larson’s, supra at §17.02[9][c] and cases cited therein. Nor did the particular route upon which he was traveling contribute significantly – traffic was light and visibility was unobstructed at the collision site.
14. Defendant asserts that under the circumstances of this claim the time factor is an automatic disqualifier. It argues that because Claimant had scheduled a half-day vacation on Thursday morning, the business purpose for his travel had ended and he was now embarked on purely personal pursuits.
4 The Vermont Supreme Court has not had occasion to apply these factors in the context of a travel deviation case, but it has adopted similar criteria to determine if horseplay injuries are so removed from the employment as to bar recovery under workers’ compensation. In Clodgo v. Rentavision, 166 Vt. 548 (1997), the Court held that it was relevant to consider “the extent and seriousness of the deviation” from the employee’s work duties in making a determination as to compensability. Id. at 552.
9
15. This reasoning is overly restrictive. Any business journey that begins as such from a particular base, whether the employee’s home or office, must contemplate both an outgoing and a returning trip. Larson’s, supra at §17.02[9][a]; Aetna Life Ins. Co. v. Schmiedeke, 192 Wis. 574 (Wis. 1927). The return trip is not automatically disqualified if it immediately precedes a vacation, any more than it would be if it occurred at the start of a weekend.
16. This is not to say, of course, that the return trip can be “banked” indefinitely and “cashed in” at whatever future time is convenient. Larson’s, supra at §17.02[9][b]. The relevant inquiry, however, is not whether the return trip occurs on a day off; it is whether it occurs at a time that is so far removed from the journey’s business purpose as to fall outside the sphere of employment. Compare Ardis v. Combined Ins. Co., 380 S.C. 313 (Ct. App. 2008) (injury sustained during overnight stay in hotel following regional sales meeting compensable as incidental to the business trip), with Kodiak Oilfield Haulers v. Adams, 777 P.2d 1145 (Alaska 1989) (injury suffered during return leg of work-connected trip following five-day delay for personal reasons not compensable).
17. Under the circumstances of this case, I conclude that for Claimant to have delayed his return trip overnight was not so substantial a deviation in time as to place it outside the course of his employment.
18. What remains for me to consider is the extent of Claimant’s deviation in terms of geography. The factual permutations that give rise to consideration of this factor are extensive. See Larson’s, supra at §§17.02[1]-17.05 (diagramming twenty different deviation patterns). Geographic deviations can occur at the beginning, middle or end of a business trip. They can consist of a side trip of many miles or a minor detour around the block. They can involve a triangular route or one that is somewhat longer, though essentially parallel to the most direct route.
19. What matters in all cases is whether the deviation is so substantial geographically as to establish that the employee has moved away from the business objective and towards a personal one. Wiegand v. Fletcher Allen Health Care, Opinion No. 06-05WC (January 14, 2005). Even where this occurs, once the deviation is completed and the employee is back on the route he or she would have traveled in any event, it stands to reason that workers’ compensation coverage should resume for the remainder of the journey. Larson’s, supra at §17.02[9][a] at p. 17-11.
20. Applying this analysis to the current claim, had Claimant’s injury occurred while he was traveling on Interstate 89 South towards his home in Bridgewater – the same route he would have taken had he left directly from the Hinesburg Road office on Wednesday evening – it likely would have been compensable. Regardless of where his personal deviation might have begun, or how extensive it might have been geographically, in that circumstance he would have regained his business route and therefore coverage would have resumed.
10
21. Claimant’s accident did not occur on Interstate 89 South, however. As a consequence, it is necessary to determine whether geographically his deviation was substantial or not. If the deviation was minor, then coverage exists. If it was major, then there is no coverage.
22. Unfortunately, there is no way to answer this question. Beyond mere speculation or conjecture, neither party knows where Claimant stayed Wednesday night or where he was coming from Thursday morning. And without knowing where Claimant began his trip, it is impossible to gauge the extent, if any, of his geographic deviation. See City of Santa Fe v. Hernandez, 643 P.2d 851 (N.M. 1982) (directness of route home was question of fact to be resolved in order to determine whether decedent had reentered the course of his employment at the time of his accident); Superior Asphalt, supra at 804 (fact that decedent was only 6 miles from his destination, on one of several routes, when the accident occurred was insufficient to show that his personal deviation had ended).
23. I acknowledge that the site of Claimant’s collision was on a direct route to the Interstate 89 South on-ramp in Richmond, only a few miles away. I accept, therefore, that had he stayed overnight in the general vicinity of Route 117 in Essex, I might consider there to have been no geographic deviation at all. But had Claimant stayed overnight in downtown Burlington, or in Montreal, or in any number of other locales more remote from Route 117 in Essex, a reasonably direct route towards Interstate 89 South likely would not have placed him at the site of his collision. In that case, the extent of Claimant’s geographic deviation might very well be deemed so substantial as to take it outside the arena of his business journey. The point is there is no way to know.
24. It is Claimant’s burden to show that there was a business purpose for him to be traveling on Route 117 in Essex on the morning of Thursday, June 29, 2006. This he might have done by establishing that he was en route from a faxing or photocopying errand at the Lincoln Street CO, but there is insufficient evidence to move that theory beyond mere conjecture. Alternatively, he might have done so by establishing that his overnight accommodations were situated such that Route 117 in Essex was a reasonably direct route towards Interstate 89 South and the return leg of his business trip home to Bridgewater. Again, however, there is no evidence to support this. With no evidence, Claimant’s claim must fail as a matter of law.
25. I conclude that Claimant has failed to make a showing sufficient to establish the existence of an element essential to his case and on which he has the burden of proof. Summary judgment against him is therefore mandated. Richards, supra at 151 (citation omitted).
11
ORDER:
Claimant’s Motion for Summary Judgment is hereby DENIED. Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for workers’ compensation benefits arising out of his June 29, 2006 accident is DENIED.
DATED at Montpelier, Vermont this 29th day of April 2011.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

Leslie Richardson v. Regular Veteran’s Association Post #514 (February 16, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Leslie Richardson Opinion No. 04-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Regular Veteran’s Association
Post #514 For: Anne M. Noonan
Commissioner
State File No. G-14847
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ATTORNEYS:
Thomas Nuovo, Esq., for Claimant
Jennifer Moore, Esq., for Defendant
ISSUE PRESENTED:
Do Claimant’s claims for permanent partial disability benefits referable to her left leg, lumbar spine and/or left hip survive her death with no dependents and for reasons unrelated to her work injury?
FINDINGS OF FACT:
The following facts are undisputed:
1. On October 8, 1993 Claimant injured her left ankle when she slipped and fell while at work for Defendant. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly.
2. Although initially the injury was thought to be relatively minor, Claimant suffered severe complications, including deep vein thrombosis in her left calf and recurrent bone infections in her tibia. Over the course of several years she underwent numerous surgeries in an attempt to address these issues. Claimant ambulated with crutches during much of this time.
3. As a consequence of her leg injury and its resulting complications, Claimant developed lower back pain. In January 2004 she underwent L4-5 fusion surgery. Defendant accepted both the lower back condition and the surgery as causally related to the original injury and therefore compensable.
2
4. In 2005 Claimant was diagnosed with avascular necrosis in her left hip. As treatment, she underwent a left total hip replacement in 2006. Defendant disputed its responsibility for this condition, but the Commissioner ruled that it was causally related to the original 1993 injury and therefore compensable. Richardson v. Regular Veteran’s Association Post No. 514, Opinion No. 31-06WC (July 24, 2006). On appeal, both the Chittenden Superior Court and the Vermont Supreme Court affirmed. Richardson v. Regular Veteran’s Ass’n Post No. 514, 987 A.2d 336 (Vt. 2009).
5. On June 25, 2007 Defendant’s independent medical evaluator, Dr. Johansson, determined that Claimant had reached an end medical result for her left leg, lower back and left hip injuries. Dr. Johansson rated Claimant with a 14% whole person permanent impairment referable to her leg. Subsequently, on March 20, 2008 Dr. Johansson assessed Claimant with an additional 25% whole person permanent impairment referable to her lumbar spine. Dr. Johansson did not rate the permanent impairment referable to Claimant’s left hip injury.
6. On August 7, 2008 Defendant’s second independent medical evaluator, Dr. Gennaro, rated Claimant with a 10% permanent impairment referable to her left hip.
7. In January 2009 Claimant underwent a second lumbar fusion surgery to address significant disc degeneration at L3-4, the level adjacent to her prior fusion in 2004. Defendant accepted the compensability of this condition as causally related to the original 1993 injury.
8. Claimant died on December 23, 2009 from causes unrelated to her work injury. At the time of her death she had not yet reached an end medical result following her January 2009 fusion surgery. Claimant left no surviving dependents.
9. Defendant paid Claimant weekly temporary total disability benefits from October 24, 1993 through October 19, 2007. On that date, the Department approved its discontinuance on the grounds that Claimant had reached an end medical result as determined by Dr. Johansson. Subsequently, from October 21, 2007 until January 11, 2009 (a total of 64 weeks), Defendant paid permanent partial disability benefits. Following Claimant’s second fusion surgery, beginning on January 11, 2009 Defendant reinstated weekly temporary total disability payments. These continued until the time of Claimant’s death.
10. Almost a year after Defendant began paying permanency benefits, in July 2008 Claimant filed a Notice and Application for Hearing in which she disputed Defendant’s end medical result determination as to her lower back condition. Claimant requested that all permanency benefits paid from October 21, 2007 forward be re-characterized as temporary total disability benefits instead. This issue remained unresolved at the time of Claimant’s death.
11. Claimant never requested, and the Department never approved, payment of any portion of her permanency compensation in a lump sum, as permitted by 21 V.S.A. §652(b).
3
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. At issue here is the proper application of Vermont’s workers’ compensation survival statute, 21 V.S.A. §639. Claimant’s estate claims entitlement to permanent partial disability benefits, in amounts to be determined,1 for all of the injuries Claimant sustained as a result of her 1993 work-related accident. Defendant argues that at the time of her death Claimant had been paid all of the benefits that had accrued during her lifetime. Having already paid the funeral expenses mandated by §639, Defendant asserts that it owes nothing more to her estate.
3. Section 639 reads as follows:
In cases of the death of a person from any cause other than the accident during the period of payments for disability or for the permanent injury, the remaining payments for disability then due or for the permanent injury shall be made to the person’s dependents according to the provisions of sections 635 and 636 of this title, or if there are none, the remaining amount due, but not exceeding $5,500.00 for burial and funeral expenses . . . , shall be paid in a lump sum to the proper person.
4. The Vermont Supreme Court has specifically interpreted this statute. In Dodge v. Precision Construction Products, Inc., 2003 VT 11, the Court considered a claim for workers’ compensation benefits made by the estate of a claimant who, as is the case here, died without dependents and for reasons unrelated to his work injury. Unlike the situation here, however, the claimant in Dodge had never received any benefits – his claim had been disputed and the Department had not yet adjudicated its compensability at the time of his death. The employer argued that absent such a determination, there were neither any “payments” nor any “remaining amount due” on the day the claimant died, and thus §639 did not apply.
1 Claimant has reserved her right to challenge both Dr. Johansson’s and Dr. Gennaro’s permanent impairment ratings, as well as the compensation rate for any permanency benefits paid to date, if the pending cross motions for summary judgment are decided in her favor.
4
5. The Court held otherwise. With reference to Vermont’s general survival statute, 14 V.S.A. §1451, it determined that even in death the claimant had a right to have his claim adjudicated. If his claim was found compensable, the Court ruled, his administrators would be entitled to whatever benefit payments he would have received “from the date of eligibility until the date of his death, as well as payments under 21 V.S.A. §639.” Id. at ¶26. In reaching this result, the Court thus distinguished between benefits that already had accrued while the claimant was living and those that he would have received in the future had he not died. The former constitute “an asset of the estate, like any other debt,” Id. at ¶21, quoting 4 Larson’s Workers’ Compensation Law §89.02, and thus exist outside of §639. If the claimant dies without dependents, the latter are capped by the statute’s reference to funeral and burial expenses. Id. at ¶15.
6. Applying the Court’s determination in Dodge to the present case, the challenge is to determine which, if any, of the permanency benefits referable to Claimant’s various injuries already had accrued while she was still living. The answer lies in recognizing the point at which an injured worker’s entitlement to such benefits arises.
7. While it is true that an injured worker’s right to compensation is acquired at the time he or she suffers a work-related injury, Sanz v. Douglas Collins Construction, 2006 VT 102, the right to specific benefits may not accrue until some time thereafter. Id.; Kraby v. Vermont Telephone Co., 2004 VT 120. This distinction is particularly germane to permanency benefits. Not every compensable injury causes permanent impairment. Until the medical recovery process concludes there is no way to know whether the injury might fully resolve, and therefore no basis for determining whether the injured worker will even be entitled to permanency compensation. With that in mind, a cause of action for permanency benefits does not accrue until the injured worker reaches an end medical result. Kraby, id. at ¶6; Longe v. Boise Cascade Corp., 171 Vt. 214, 222 (2000); Hoisington v. Ingersoll Electric, Opinion No. 52-09WC (December 28, 2009).
8. Here, the undisputed evidence establishes that Claimant reached an end medical result, at least as to her compensable leg and hip injuries, on June 25, 2007. Her entitlement to permanency benefits for those conditions accrued and became payable as of that date. They therefore survive as an asset of her estate and are not limited in any way by §639.
9. The permanency benefits referable to Claimant’s lower back injury stand on a different footing, however. Although she had been determined, at least according to Defendant’s medical expert, to be at end medical result with a ratable permanency following her first lumbar fusion surgery in 2004, even Defendant acknowledged that her status changed when she underwent her second fusion surgery in January 2009. At that point, Defendant appropriately reinstated weekly temporary disability benefits, and these continued until Claimant’s death eleven months later. Claimant never again reached an end medical result, and the additional permanency, if any, attributable to her second fusion was never rated.
5
10. These circumstances give rise to two separate determinations as whether the permanency benefits referable to Claimant’s lumbar spine injury survive her death. The first relates to whether any permanency benefits accrued after Claimant’s first fusion surgery. The second relates to whether any additional benefits accrued after her second surgery.
11. The facts relating to the second question are undisputed, and therefore that issue is appropriate for resolution by way of summary judgment. Because Claimant never reached an end medical result following her second fusion surgery, her entitlement to whatever permanency benefits might have been attributable to her lumbar spine injury as it existed after January 2009 never accrued. Assuming that the evidence now available can establish that Claimant would have received those benefits had she lived, they will survive her death only to the extent provided by §639.
12. The facts relevant to determining the first question, however, are not as clear and therefore I cannot assume that they are undisputed. Resolving the issue of whether the permanency attributable to Claimant’s lumbar spine following her first fusion surgery survives her death requires a determination whether she did or did not reach an end medical result at any point prior to her second surgery.
13. “End medical result” is defined as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200.
14. In most cases an injured worker only attains the point of end medical result once – he or she reaches a plateau following treatment and does not treat or become disabled again. Occasionally, however, after initially reaching a plateau a claimant’s condition may worsen to the point where further treatment becomes necessary and additional permanent impairment results. Rather than negating the original determination of end medical result, the renewed treatment in such cases culminates in a second, separate end medical result determination. See 21 V.S.A. §650(c) (providing for temporary disability compensation to be paid for separate intervals of disability) and 21 V.S.A. §668 (providing for compensation to be increased “upon the ground of a change in the conditions” since the time of a previous award).
15. Applying these concepts to the circumstances here, one possible factual scenario is that Claimant reached an end medical result following her first fusion surgery in June 2007 and incurred a ratable permanent impairment referable to her lumbar spine at that time. Then, at some later point she suffered a worsening of her condition, following which she required further surgery and incurred additional disability. If the evidence establishes this to be the case, then Claimant’s entitlement to the permanency caused by her first surgery already would have accrued and become payable prior to her second surgery, and therefore will have survived her death.
6
16. Alternatively, if the evidence establishes that Claimant never truly reached a plateau in her recovery process following her first fusion surgery, such that it was inappropriate for Defendant’s expert either to have declared her to be at end medical result for her lower back injury or to have rated the permanency referable to her lumbar spine, then her entitlement to these benefits never accrued and does not now survive.
17. Considering these competing scenarios, I conclude that the question whether Claimant reached an end medical result for her lower back condition at any time between her first and second fusion surgeries involves material facts that are not yet so clear as to be undisputed. Without further evidence, it is impossible to discern whether Claimant’s entitlement to permanency benefits attributable to her first surgery ever accrued, and therefore whether they now survive her death. Summary judgment on that issue is not appropriate.
18. Defendant correctly notes that Claimant never requested, and the Department never approved, payment of any portion of her permanency compensation in a lump sum. With that in mind, it asserts that because Claimant received weekly disability benefits, whether temporary or permanent, continuously from the time of her injury until the time of her death, no further benefits could possibly have become payable. Thus, Defendant argues, the timing of any end medical result determination for Claimant’s various injuries is irrelevant to the question whether it owes additional permanency now.
19. Claimant’s right to accrued permanency compensation cannot be undone by a payment schedule, however. The Supreme Court specifically has admonished against construing §639 so narrowly. Dodge, supra at ¶8. Particularly where, as here, the fact that a subsequent period of temporary disability may have caused ongoing payments for permanency compensation to be suspended should not mean that those benefits are no longer owed.
20. In sum, as the undisputed facts establish that the permanency benefits referable to Claimant’s leg and hip injuries had accrued prior to her death I conclude that they survive without limitation. I conclude that the permanency benefits, if any, attributable to Claimant’s second fusion surgery in January 2009 had not yet accrued at the time of her death, and therefore survive, if at all, only to the extent provided by 21 V.S.A. §639. Last, I conclude that questions of material fact prevent me from determining whether the permanency benefits referable to Claimant’s lumbar spine injury following her first fusion surgery had accrued by the time of her death.
7
ORDER:
Claimant’s Motion for Summary Judgment is GRANTED as to the survival of permanency benefits referable to her left leg and left hip injuries, and DENIED as to the survival of permanency benefits referable to her lumbar spine injury. Defendant’s Motion for Summary Judgment is GRANTED as to the failure of any permanency benefits referable to Claimant’s January 2009 fusion surgery to survive, and DENIED in all other respects.
DATED at Montpelier, Vermont this ____ day of February 2011.
_________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

© Copyright - -