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Arthur Saffold v. Palmieri Roofing Inc. (July 14, 2010)

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Arthur Saffold v. Palmieri Roofing Inc. (July 14, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arthur Saffold Opinion No. 24-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Palmieri Roofing, Inc. For: Patricia Moulton Powden
Commissioner
State File No. H-22526
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
ATTORNEYS:
David Williams, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE:
Defendant moves for summary judgment on the grounds that the undisputed evidence establishes that Claimant’s current claim for workers’ compensation benefits arose from a non-work-related condition for which it cannot be held liable.
FINDINGS OF FACT:
Taking the evidence in the light most favorable to the non-moving parties, as is required when considering a motion for summary judgment, Carr v. Peerless Insurance Co., 168 Vt. 465, 476 (1998), I find the following facts:
Claimant’s 1994 Injury and Subsequent Treatment
1. Claimant worked for Defendant as a general laborer and roofer. On September 30, 1994 he injured his back while carrying a 12-foot-long roll of roofing paper weighing 320 pounds.
2. Claimant presented to Littleton Orthopaedics on November 8, 1994 with complaints of low back and right-sided radicular pain. A subsequent myelogram revealed findings suggestive of a disc herniation at L5-6.1 On November 30, 1994 Claimant underwent a laminectomy and discectomy at that level.
1 Claimant has six lumbar vertebrae, which can lead to some confusion when counting disc levels. Early radiological studies and operative reports referred to the lowest (most inferior) lumbar disc level as L5-6; this corresponds to what later is referred to as the L4-5 level.
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3. Claimant recovered well from the November 1994 surgery. His low back pain lessened significantly, and the pain, numbness and tingling in his right lower extremity abated as well.
4. Claimant underwent physical therapy in early 1995, during which he made steady progress but continued to complain occasionally of numbness in his thigh and/or foot. His therapy was interrupted for a time after he suffered a heart attack in March 1995. After his recovery from that event, Claimant continued to experience some residual low back pain, as well as radicular symptoms into his right lower extremity.
5. In December 1996 Claimant’s treating physician, Dr. Howard, determined that he had reached an end medical result and rated him with a 20% whole person permanent impairment. Even at that time, Claimant continued to experience symptoms in his low back and right leg. He had difficulty with lifting, bending, standing on concrete floors and sitting for more than 40-50 minutes. Claimant also complained of ongoing weakness and numbness in his right leg.
6. At Defendant’s request, in February 1997 Claimant underwent an independent medical examination with Dr. Jennings, who rated his permanent impairment at 10% whole person. Subsequently, the parties executed an Agreement for Permanent Partial Disability Compensation (Form 22) that reflected a compromise of the two impairment ratings, which the Department approved in July 1997.
7. Claimant experienced an episode of increased low back and right leg pain in April 1997, for which he underwent an epidural steroid injection. In June 1997 Claimant reported to Dr. Howard that he had obtained “quite a bit of relief” from the injection, notwithstanding some lingering residual symptoms. Dr. Howard’s impression at that time was “disc degeneration following herniated disc L5-6 and scar tissue.”
8. Aside from one visit to his primary care provider immediately following a motor vehicle accident in 2005, from June 1997 until April 2006 Claimant did not seek medical treatment for any low back pain or other radicular symptoms. Claimant testified that he continued to experience occasional stiffness in his back during this nine-year period, for which he may have taken an occasional muscle relaxant, but nothing serious enough to warrant specific medical treatment.
9. Claimant held a variety of jobs during this time, though none after March 2004. From July 1996 until some time in 1997 he worked at Hitchener’s, a golf club manufacturing company. For approximately two years thereafter, he owned and operated a small coffee shop; that business closed in 2000. From 2001 until 2004 he worked as a lathe operator at NSA Industries. In Claimant’s words, this job required “grueling” hours and a significant amount of standing on mat-covered concrete floors.
10. Following triple-bypass surgery in September 2001, Claimant was disabled from working at NSA Industries for six months. Upon returning to work he continued to experience cardiac symptoms. As a result, in March 2004 his doctors again advised him to stop working, which he did.
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11. Claimant has not worked since March 2004. He has been receiving social security disability benefits since that time, primarily due to his cardiac condition.
12. Claimant testified that his work activities from 1997 through 2004 neither caused nor aggravated his low back pain or radicular symptoms.
Claimant’s 2006 Surgery
13. In April 2006 Claimant experienced the spontaneous onset of low back pain with radicular symptoms down his right leg. Contemporaneous medical records reflect that Claimant was “simply walking along” when he felt a “spasm” in his back, followed by worsening pain, tingling, numbness and weakness down his right lower extremity. The symptoms were exactly the same as those he had experienced prior to his 1994 surgery.
14. A May 2006 MRI revealed a right-sided disc herniation at L4-5, the same level as had been operated on in 1994.2 There also was evidence of scar tissue at the site. Upon reviewing the MRI, Dr. Sengupta, the orthopedic surgeon to whom Claimant had been referred, observed that the disc herniation “appears to be moderate in size, but it appears that because of the scar tissue around the right L5 nerve root it is producing significant symptoms on the right leg.”
15. As treatment for Claimant’s symptoms, Dr. Sengupta recommended a repeat L4-5 discectomy, which Claimant underwent in June 2006. In his operative findings, Dr. Sengupta reported “scar tissue identified from prior surgery.” He also remarked that the “dura and [L5] nerve root were . . . found to be tight within the canal.”
16. The medical records reflect that after the June 2006 surgery Claimant initially experienced good relief of his symptoms, but by the following year his radicular complaints had returned. According to Dr. Sengupta’s June 18, 2007 office note, an MRI study completed two days earlier showed disc degeneration at both L4-5 and L5-S1, but no evidence of disc herniation at either level.
Expert Medical Opinions
17. At Defendant’s request, in October 2006 Claimant underwent an independent medical examination with Dr. Gennaro, an orthopedic surgeon. The purpose of the examination was to determine whether Claimant’s June 2006 surgery represented a recurrence causally related to his 1994 work injury and subsequent disc surgery or alternatively, whether it reflected an unrelated aggravation or new injury.
18. Unfortunately, without being able to review the previous MRI studies and operative reports side by side, Dr. Gennaro was unable to determine whether the L5-6 disc herniation addressed in the context of Claimant’s 1994 surgery was in fact at the same level as the L4-5 disc herniation addressed during his June 2006 surgery. Dr. Gennaro did state, however, that if the 1994 surgery was in fact at the same level as the 2006
2 As noted above, see footnote 1, this level previously had been referred to as L5-6. In April 2007 Defendant’s own medical expert, Dr. Gennaro, conducted a side-by-side comparison of the various radiographic studies and operative reports and confirmed that both references actually related to the same disc level. See Finding of Fact No. 19, infra.
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surgery, “then I believe this represents a recurrence of his previous disease, and that it would be related. If in fact his new surgery is at a different level, the conclusion would be that it is not related.”
19. In April 2007 Dr. Gennaro compared Claimant’s MRI studies and operative reports side by side, and concluded that in fact both surgeries had taken place at the same disc level. In addition, Dr. Gennaro reported that a January 25, 2007 MRI “shows a new disc herniation now present at L5-S1, . . . [w]hich represents a new disc herniation at a newer level.”3
20. With this new finding in mind, Dr. Gennaro concluded that Claimant’s 2006 surgery reflected neither an aggravation nor a recurrence. As Claimant had not identified any “specific work or other activity which provoked a disc herniation,” Dr. Gennaro discarded the possibility of an aggravation or new injury. Given the number of years that had passed since Claimant’s original surgery, furthermore, Dr. Gennaro deemed it “unlikely” that the 2006 surgery would have been caused by a “recurrent” disc herniation, as those typically occur within a “relatively short period of time” after the original injury.
21. Having discarded both aggravation and recurrence as likely causes, Dr. Gennaro concluded that the symptoms Claimant began experiencing in 2006 were more likely than not “the manifestation of longstanding chronic degenerative disc disease in his spine.” The natural progression of this disease, according to Dr. Gennaro, was evidenced both by worsening degeneration “at the old [L4-5] disc level and other levels,” and by “a newer disc herniation at an adjacent level [L5-S1].” In Dr. Gennaro’s opinion, Claimant’s condition was the consequence of “aging and time,” and thus was completely independent of either the 1994 surgery or of any subsequent injury or event.
22. With Dr. Gennaro’s opinion as support, on April 17, 2007 Defendant issued a Form 2 denial of Claimant’s claim for workers’ compensation benefits referable to his June 2006 surgery and subsequent symptoms.
23. At Dr. Sengupta’s referral, in July 2008 Claimant underwent an evaluation with Dr. McLellan, a physician at Dartmouth Hitchcock Medical Center. Upon reviewing Claimant’s June 2007 MRI Dr. McLellan remarked that it revealed evidence of a disc herniation at L4-5 and postoperative changes, prior surgery at the L5-S1 level and also “considerable scar tissue around [the] right L5 nerve root.”
3 Dr. Gennaro is the only medical expert who claims to have reviewed a January 25, 2007 MRI. The report is not included in the attachments to Defendant’s Motion for Summary Judgment. Nor is it referenced by Dr. Sengupta, who noted that an MRI study done six months later, in June 2007, showed no evidence of disc herniation. See Finding of Fact No. 16, supra.
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24. Absent a more comprehensive review of Claimant’s medical records, Dr. McLellan declined to issue a “final” opinion as to the causal relationship, if any, between Claimant’s 1994 surgery and the symptoms that led to his 2006 surgery. Speaking “in a more generic way,” however, Dr. McLellan stated:
[Claimant] clearly had a disc herniation back in 1994. Individuals who have had disc herniations are at high risk of recurrence. In the absence of an intervening injury, recurrent symptoms on the same side at the same level are more probably than not related to the original injury. Given insidious onset of [symptoms] in the same dermatomal pattern as before and given the MRI results, the current radicular symptoms are also more probably than not related to the original injury.
25. At the request of Claimant’s attorney, Dr. Ross, an orthopedic surgeon, conducted a medical records review in December 2008. Although his initial report was somewhat confusing, ultimately Dr. Ross concluded that Claimant’s 2006 disc herniation, subsequent surgery and current condition most likely were causally related to his 1994 injury and surgery.
26. Dr. Ross based his conclusion both on the existence of scar tissue around Claimant’s L5 nerve root and on the likelihood that the earlier surgery resulted in spinal instability at adjacent disc levels. According to Dr. Ross, it is well-documented in the spinal literature that a discectomy at one level predisposes a patient to disc degeneration and/or instability at adjacent levels as well. In contrast to Dr. Gennaro’s viewpoint, therefore, in Dr. Ross’ opinion there was “no basis in fact” from which to conclude that the natural history of Claimant’s disc degeneration would have caused his current condition had the 1994 surgery not predisposed him to further deterioration.
CONCLUSIONS OF LAW:
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 judgment in its favor as a matter of law. Samlid 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. Heritage Realty of Vermont, 137 Vt. 425 (1979). Summary judgment is unwarranted where the evidence is subject to conflicting interpretations, regardless of the comparative plausibility of facts offered by either party or the likelihood that one party or another might prevail at trial. Provost v. Fletcher Allen Health Care, Inc., 2005 VT 115, ¶15.
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2. In this claim, Defendant argues that the undisputed evidence establishes that the symptoms that led to Claimant’s 2006 disc surgery and subsequent disability were not causally related in any way to his 1994 work injury. With reference to the factors enunciated in Trask v. Richburg Builders, Opinion No. 51-98WC (August 25, 1998), for differentiating between an aggravation and a recurrence, Defendant asserts that it was the natural progression of Claimant’s degenerative disc disease that ultimately caused his disability, an aggravating condition for which it bears no responsibility.
3. In Trask, the Commissioner identified five factors that typically will support a finding of aggravation, thus severing the causal connection back to an earlier injury:
(1) Whether there has been a subsequent incident or work condition which destabilized a previously stable condition;
(2) Whether the claimant had stopped treating medically;
(3) Whether the claimant had successfully returned to work;
(4) Whether the claimant had reached an end medical result; and
(5) Whether the subsequent incident or work condition contributed independently to the final disability.
In accordance with the Vermont Supreme Court’s holding in Pacher v. Fairdale Farms, 166 Vt. 626 (1997), the fifth factor – whether the subsequent incident or work condition contributed independently to cause the final disability – is accorded the greatest weight. Id.
4. When considering a progressively degenerative disease in the context of an aggravation-versus-recurrence dispute, one “where ‘the disease, if left to itself, and apart from any injury, would, in time, have inevitably caused a complete disability,’ the causation test becomes whether, due to a work injury or the work environment, ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard v. Stannard Co, Inc., 175 Vt. 549, 552 (2003), quoting Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989).
5. Here, Defendant asserts that the evidence is undisputed as to all five of the Trask factors, and that all five point undeniably to a non-work-related aggravation. With particular reference to the fifth factor, Defendant asserts that both its own medical expert, Dr. Gennaro, and Claimant’s medical expert, Dr. Ross, agree that Claimant’s degenerative disc disease contributed independently to cause his 2006 symptoms. That, Defendant claims, is the beginning, the middle and the end of any aggravation-versus-recurrence dispute.
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6. Defendant’s argument ignores the patently obvious discrepancy between Dr. Gennaro’s opinion and Dr. Ross’. It is true that according to Dr. Gennaro, the symptoms Claimant began experiencing in 2006 resulted from the natural progression of his underlying degenerative disc disease, a process that Dr. Gennaro claims existed wholly separate and apart from Claimant’s 1994 work injury and ensuing disc surgery. According to Dr. Ross, however, the process was not at all independent from Claimant’s earlier injury. To the contrary, Dr. Ross asserts that Claimant’s 1994 surgery predisposed him to further disc degeneration, such that the symptoms he experienced in 2006 most likely came on sooner than they otherwise would have.
7. The factual dispute between the parties is thus clearly framed. Resolving it will require me to consider both the facts underlying each doctor’s opinion and the reasoning each used to arrive at his conclusions. I am curious, for example, to understand what role, if any, Dr. Gennaro believes the presence of scar tissue at the 1994 operative site may have played in causing the symptoms Claimant exhibited in 2006. It also will be relevant to my determination to judge the credibility of Dr. Ross’ assertion that a disc herniation more than ten years earlier most likely accelerated the progression of a disease that naturally worsens over time in any event. These questions are not amenable to resolution by summary judgment, but rather will require an evidentiary hearing to decide.
8. The sole purpose of summary judgment review is to determine if a genuine issue of material fact exists. If such an issue does exist, it cannot be adjudicated in the summary judgment context, no matter how unlikely it seems that the party opposing the motion will prevail at trial. Provost, supra; Fonda v. Fay, 131 Vt. 421 (1973). That is the case here. Summary judgment is not appropriate.
ORDER:
For the foregoing reasons, Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 14th day of July 2010.
____________________________
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.

Stacey Colson v. Town of Randolph (August 5, 2010)

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

Stacey Colson v. Town of Randolph (August 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Stacey Colson Opinion No. 20R-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Town of Randolph
For: Valerie Rickert
Acting Commissioner
State File No. U-09762
RULING ON CLAIMANT’S MOTION TO APPEND FACTS AND TO RECONSIDER
Claimant moves both to append additional facts and to reconsider the Commissioner’s June 4, 2010 Order granting summary judgment in Defendant’s favor. Pursuant to 21 V.S.A. §672, Claimant also has appealed the Commissioner’s ruling to the Vermont Supreme Court.
I can find no basis for appending additional facts to the June 4, 2010 ruling. None of the facts Claimant seeks to add are relevant to the specific grounds upon which the ruling was based.
As for Claimant’s request for reconsideration, it is based on arguments that already were raised and rejected in the context of the June 4, 2010 ruling. Having filed his appeal, jurisdiction now rests with the Vermont Supreme Court to consider them.
Claimant’s Motion to Append Facts and to Reconsider is DENIED.
DATED at Montpelier, Vermont this 5th day of August 2010.
________________________
Valerie Rickert
Acting Commissioner

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

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David Yustin v. State of VT, Dept. of Public Safety (March 20, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
David Yustin Opinion No. 08-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
State of Vermont,
Department of Public Safety For: Anne M. Noonan
Commissioner
State File No. Y-03486
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to an award of costs and attorney fees for legal representation provided in securing the Department’s March 2008 interim order?
2. Was Claimant’s request for an award of costs and attorney fees timely filed?
FINDINGS OF FACT:
For the purposes of these cross motions, the following facts are not disputed:
1. Claimant was an employee and Defendant was his employer within the meaning of Vermont’s Workers’ Compensation Act.
2. On June 12, 2006 Claimant, a Vermont State trooper, injured his left shoulder. The injury occurred while he was working out at the Rutland County Sheriff’s Department gym in preparation for a physical fitness exam. Claimant was off duty at the time.
3. Initially Defendant denied that Claimant’s injury was compensable, on the grounds that it did not arise out of and in the course of his employment with Defendant.
4. While Claimant contested Defendant’s denial, he used accumulated sick leave to pay for his time out of work, and employer-provided health care benefits to cover his medical costs.
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5. On March 24, 2008 the Department issued an interim order requiring Defendant to pay both temporary total disability and medical benefits causally related to Claimant’s shoulder injury.
6. Defendant did not challenge the Department’s March 2008 interim order. However, rather than paying temporary disability benefits outright, instead it reinstated the sick leave Claimant had used to cover his time out of work.
7. Claimant objected to this reimbursement procedure. He argued that Defendant should have paid him the temporary disability benefits it owed in a lump sum rather than reimbursing his sick leave bank. If it had done so, then Claimant would have had funds available from the benefit award with which to pay his attorney fees.
8. Claimant pursued this issue to formal hearing. On July 17, 2009 the Commissioner ruled in Defendant’s favor, thus denying Claimant’s challenge to its sick leave reimbursement process. Claimant then appealed to the Vermont Supreme Court. On February 23, 2011 the Court issued its decision upholding the Commissioner’s determination. Yustin v. Department of Public Safety, 2011 VT 20.
9. In affirming Defendant’s right to offset Claimant’s sick leave wages against the temporary disability benefits the Department had ordered it to pay, the majority opinion in Yustin addressed the question whether the process was in fact “cost-neutral” to Claimant. Id., ¶14. Responding to the argument raised in the dissenting opinion – that the process was not cost-neutral because it deprived Claimant of a lump-sum award from which to pay his attorney fees – the majority stated:
Claimant’s argument overlooks his clear statutory right to seek from the Commissioner a reimbursement of reasonable attorney fees incurred in pursuing his claim, a right that applies even where – as here – the attorney fees are incurred prior to final hearing. See 21 V.S.A. §678(d) (authorizing an award of attorney fees incurred to secure payment of benefits in settlement after denial but before formal hearing).
Id.
10. In a footnote, the majority addressed in greater detail the dissent’s charge that Claimant’s right to seek attorney fees was “illusory,” because it was restricted by certain workers’ compensation rules limiting the circumstances under which fees could be awarded at the informal dispute resolution level. With specific reference to what is now Workers’ Compensation Rule 10.1320 – where a claim is denied “without reasonable basis” – the majority noted that there had been ample evidence in the record to support a request for attorney fees on those grounds. It concluded:
Thus, Claimant was afforded a reasonable opportunity, had he applied, to secure his attorney fees. Recovery of fees may not be guaranteed, but it is not illusory. Of course, Claimant cannot recover what he does not seek.
Id., ¶14, n.2.
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11. Claimant first sought an award of costs and attorney fees incurred in securing the Department’s March 24, 2008 interim order on April 14, 2009; however, his filing was not accompanied by a fee agreement and itemization of costs, as required by Workers’ Compensation Rule 10.7000. Although duly notified of these deficiencies, Claimant did not immediately supplement his filing, and therefore it was never ruled upon.
12. On May 9, 2011 Claimant again filed a request for an award of the costs and attorney fees associated with securing the Department’s interim order. In support of his request, Claimant asserted that in its February 23, 2011 decision the Supreme Court had enunciated a “newly discovered legal principle” – that the discretion granted by 21 V.S.A. §678(d) to award fees at the informal level could be applied to work injuries that had occurred prior to the statute’s effective date, June 11, 2008. Analogizing to the long-standing principle by which the date of a work-related injury is deemed to be the point when it becomes “reasonably discoverable and apparent,” Hartman v. Ouellette Plumbing, 146 Vt. 443, 447 (1985), Claimant argued that his right to request an award of fees and costs had only accrued as of the date when the Supreme Court’s decision was issued.
13. On November 4, 2011 the Department issued a preliminary ruling denying Claimant’s request for costs and attorney fees. It is in the context of Claimant’s appeal of this ruling that the parties have filed the pending cross motions for summary judgment.
14. Claimant has appended to his summary judgment motion a fee agreement that he executed on December 19, 2011. The agreement appears to cover his attorney’s representation for all aspects of his claim for benefits causally related to his left shoulder injury.
15. Claimant seeks an award of costs totaling $199.23 and attorney fees totaling $2,591.00. The latter amount represents 24.6 hours incurred to secure the Department’s March 24, 2008 interim order, and 2.6 hours incurred in preparing his fee request. In addition, Claimant seeks interest at the rate of 12 percent per annum from June 11, 2008 until the requested costs and fees are paid.
DISCUSSION:
1. The issue presented by these cross motions is fairly simple: whether Claimant is entitled to an award of costs and attorney fees for representation provided to secure the Department’s March 24, 2008 interim order. Resolving this question requires consideration of the statute, both as it existed at the time of Claimant’s injury and as amended in June 2008, and of Workers’ Compensation Rule 10.
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2. Vermont’s workers’ compensation statute has long provided for an award of costs and attorney fees as follows:
Necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails. The commissioner may allow the claimant to recover reasonable attorney fees when the claimant prevails. Costs shall not be taxed or allowed either party except as provided in this section.
21 V.S.A. §678(a).
3. Notably, in authorizing the award of costs and fees to a prevailing claimant §678(a) does not differentiate between the informal dispute resolution process and the formal hearing process. Both constitute “proceedings under this chapter.” Taft v. Central Vermont Public Service Corp., Opinion No. 03-11WC (January 25, 2011). In appropriate circumstances, therefore, the commissioner has long considered the discretion granted by §678(a) to extend to attorney fee awards at either level. Id.; see, e.g., Reed v. Leblanc, Opinion No. 08-05WC (January 19, 2005).
4. Indeed, it was under the authority granted by §678(a) that Workers’ Compensation Rule 10.1300 was promulgated. That rule deals specifically with attorney fee awards at the informal level, as follows:
Awards to prevailing claimants are discretionary. In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing where the claimant is able to demonstrate:
10.1310 that the employer or insurance carrier is responsible for undue delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 that the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been responsible for any unreasonable delay in resolving the issues.
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5. Effective June 11, 2008 two additional subsections were added to §678, as follows:
(d) In cases for which a formal hearing is requested and the case is resolved prior to formal hearing, the commissioner may award reasonable attorney fees if the claimant retained an attorney in response to an actual or effective denial of a claim and thereafter payments were made to the claimant as a result of the attorney’s efforts.
(e) An attorney representing a claimant shall submit a claim for attorney fees and costs within 30 days following a decision in which the claimant prevails.
6. As noted above, Finding of Fact No. 9 supra, in its decision denying Claimant’s challenge to Defendant’s sick leave reimbursement process the Supreme Court specifically referenced §678(d) as an avenue Claimant could have pursued in order to recoup the costs and attorney fees he had incurred at the informal dispute resolution level. Yustin, supra at ¶14. Given that §678(d) had not yet been enacted at the time of Claimant’s 2006 injury, the reference is somewhat confusing. To decipher the Court’s intention, it is necessary to review how statutory amendments, whether substantive or procedural, are applied to pending workers’ compensation claims.
7. Vermont law provides that the amendment of a statutory provision “shall not affect any right, privilege, obligation or liability acquired, accrued or incurred” prior to the amendment’s effective date. 1 V.S.A. §214(b)(2); Myott v. Myott, 149 Vt. 573, 575-76 (1988). Phrased alternatively, this general rule of statutory construction prohibits legislative amendments that affect substantive rights from being applied retroactively. In contrast, amendments that are solely procedural can be given retroactive effect, and therefore can be applied to claims that already are pending at the time the new statute becomes effective. Id.
8. The Supreme Court has applied these well-established rules specifically to workers’ compensation claims. Citing to 1 V.S.A. §214, in Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983), the Court declared, “The right to compensation for an injury under the Workmen’s Compensation Act is governed by the law in force at the time of occurrence of such injury.” The date of an employee’s work-related injury is thus the controlling date for determining whether a substantive amendment to the statute will apply.
9. In Sanz v. Douglas Collins Construction, 2006 VT 106, the Court clarified what constitutes the “right to compensation” for the purposes of determining whether a statutory amendment is substantive or procedural. A post-injury amendment that “fundamentally changes the right to benefits or the obligation to pay them” is substantive, and cannot be applied retroactively. An amendment that does not fundamentally change pre-existing rights is procedural, and can be applied in a pending action. Id.
10. With this background, I now consider whether the statutory amendment to 21 V.S.A. §678, in which subsection (d) was added, was substantive or procedural in nature. I conclude that it was procedural.
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11. As noted above, the commissioner has long exercised the discretion granted by §678(a) to award costs and fees at the informal dispute resolution level. Workers’ Compensation Rule 10.1300 provided further clarification as to the circumstances under which this discretion would be exercised in such cases. Taft, supra. By adding subsection (d), the statute neither expanded nor contracted the commissioner’s discretion in any respect. It merely provided a more specific statutory base upon which to rest the requirements of the rule. See, Zahirovic v. Super Thin Saws, Inc., Opinion No. 38-11WC (November 18, 2011).
12. The Supreme Court’s prior ruling in this claim provides explicit support for this interpretation. As noted above, Finding of Fact Nos. 9-10 supra, at the same time that the Court referenced §678(d), it referred as well to Workers’ Compensation Rule 10. Considering both together, the Court concluded that even though the circumstances under which Claimant might qualify for an award of fees was limited by the rule, his right to attorney fees under the statute was not illusory. Yustin, supra at ¶14 and n.2.
13. Claimant argues that the addition of subsection (d) to §678 created a right to attorney fees at the informal dispute resolution level that is broader than that allowed by Workers’ Compensation Rule 10.1300. In his view, therefore, the amendment was substantive in nature. With that in mind, he asserts that when the Supreme Court in Yustin applied subsection (d) to his claim notwithstanding that his date of injury predated its enactment, in effect it signaled its intention to overrule long-standing precedent, enunciated in Montgomery and reaffirmed in Sanz, prohibiting substantive amendments from being given retroactive effect in the workers’ compensation context.
14. I will not infer from the Court’s brief reference to §678(d) its intent either to overrule prior precedent or to nullify the plain language of 1 V.S.A. §214(b)(2). It is far more plausible simply to infer from the Court’s reference that the addition of subsection (d) was procedural, not substantive.1
15. Having concluded that subsection (d) did not create any new substantive rights applicable to Claimant’s claim, I next consider whether his request for fees was timely filed.
16. Prior to the enactment of §678(e), neither the statute nor the rules imposed a specific time limit within which a prevailing claimant was to request an award of costs and attorney fees at the informal level.2 Absent any mandate, the commissioner’s discretion to award fees necessarily must be deemed to include an element of reasonableness as regards the timeliness of the request.
1 Defendant suggests that the Court may have overlooked the fact that §678(d) was not enacted until after Claimant’s injury occurred, and mistakenly referenced it without considering whether it was substantive or procedural. It is not for me to guess at the Court’s thought process in this regard.
2 Rule 10.4000 requires that evidence establishing the amount and reasonableness of a claimant’s request for an award of costs and attorney fees “shall be offered no later than the date upon which the proposed findings of fact and conclusions of law are filed with the Department.” Such filings are neither made nor required at the informal level; therefore that time limitation has no application here.
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17. That discretion since has been limited, and §678(e) now mandates that a prevailing claimant’s request for an award of fees and costs must be filed within 30 days after the favorable decision is rendered. Subsection (e) thus is analogous to a statute of limitation or repose. As such it cannot be applied retroactively to bar an action that would not yet have been barred under prior law. Sanz, supra at ¶9. In considering the timeliness of Claimant’s request in the current claim, therefore, I evaluate it not against the 30-day limit mandated by subsection (e) but rather against the more general reasonableness standard implicit in §678 and Rule 10.1300.
18. Even against this standard, however, Claimant’s request is untimely. The favorable decision upon which it was based – the Department’s March 2008 interim order – was issued more than three years ago. Without specifying a particular time frame beyond which a fee request should not be considered, In this matter I find that three years is too long.
19. As for Claimant’s argument that the delay is to be excused on the grounds that his request for attorney fees arose from a “newly discovered legal principle,” Claimant’s own actions belie this assertion. That he was well aware of his right to seek attorney fees at the informal level long before the Supreme Court reminded him of that remedy in Yustin is documented by the fact that he first requested them in 2009, two years before that decision issued.
20. Claimant’s analogy to the discovery doctrine in support of his timeliness argument is equally unavailing. It is one thing to allow that an injured worker’s obligation to seek redress for a work-related injury does not arise until the facts establishing its compensability become “reasonably discoverable and apparent,” Hartman, supra. I do not discern any basis for extending that rule to the discovery of legal remedies or principles, however, nor has Claimant cited to any legal precedent encouraging me to do so.
21. Having concluded that Claimant’s request was not timely, I need not consider whether he satisfied the criteria for an award under Rule 10.1300. Nevertheless, it is instructive to note that I do not necessarily equate the requisite finding for issuing an interim order under 21 V.S.A. §662(b) – that the employer’s denial lacks “reasonable support” – with the finding required for an award of attorney fees under Rule 10.1320 – that the employer had no “reasonable basis” for denying the claim.
22. For example, the circumstances of this case, involving as it did an off-premises, off-duty injury, justified both a complete factual inquiry and a considered legal analysis. That in the end the Department deemed Claimant’s claim to be compensable does not mean that Defendant acted unreasonably in denying it.
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23. Were I to accept the position Claimant advocates, the result would be to award attorney fees in virtually every case in which an interim order issues. This would directly contradict the language of Rule 10.1300, which authorizes an award of fees short of formal hearing only in “limited instances.” More importantly, it would unduly penalize an employer for exercising its right to thoroughly investigate the factual and legal circumstances surrounding an employee’s claim for benefits at the very stage of the proceedings when such investigation is most warranted. For these reasons, I find Claimant’s interpretation of Rule 10.1320 untenable, and I decline to adopt it.
ORDER:
Claimant’s Motion for Summary Judgment is hereby DENIED. Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s request for an award of costs and attorney fees associated with securing the Department’s March 24, 2008 interim order is DENIED.
DATED at Montpelier, Vermont this 20th day of March 2012.
___________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Fernando Flores-Diaz v. Joel Letournea Drywall LLC (July 25, 2014)

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

Fernando Flores-Diaz v. Joel Letournea Drywall LLC (July 25, 2014)
Baybutt Construction Corp and
NWS Northern Wall Systems LLC
STATE OF VERMONT
DEPARTMENT OF LABOR
Fernando Flores-Diaz Opinion No. 10-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Joel Letourneau Drywall, LLC,
Baybutt Construction Corp., and For: Anne M. Noonan
NWS Northern Wall Systems, LLC Commissioner
State File No. Y-03484
RULING ON DEFENDANTS LETOURNEAU AND BAYBUTT’S MOTIONS FOR
SUMMARY JUDGMENT
APPEARANCES:
Cristina Rousseau, Esq., for Claimant
Eric Johnson, Esq., for Defendant Joel Letourneau Drywall, LLC (The Hartford Financial
Services Group)
Robert Mabey, Esq., for Defendant Baybutt Construction Corp. (Travelers Insurance Co.)
John Serafino, Esq., for Defendant NWS Northern Wall Systems, LLC (Riverport Insurance Co.)
ISSUES PRESENTED:
1. Does jurisdiction lie in Vermont over Claimant’s alleged February 2, 2012 work
injury?
2. If yes, should the Commissioner decline to exercise jurisdiction in Vermont under
principles of comity and/or forum non conveniens?
EXHIBITS:
Claimant’s Exhibit 1: New Hampshire Department of Labor, Employer’s First Report of
Occupational Injury or Disease, February 3, 2012
Claimant’s Exhibit 2: Accident Report (Baybutt Construction Managers), February 3,
2012
Claimant’s Exhibit 3: Employee’s Assented-To Motion to Continue November 1, 2013
Pre-Hearing Conference Date, related correspondence and New
Hampshire Department of Labor Appeals fax notification, October
22, 2013
2
Defendant Hartford’s Exhibit A:
State of New Hampshire, 2011 and 2012 Annual Reports,
Corporate Division filed documents, Baybutt Construction Corp.
Defendant Hartford’s Exhibit B:
Employers’ Workers’ Compensation Insurance Coverage
Verification (Vermont), Baybutt Construction Corp.
Defendant Hartford’s Exhibit C:
Agreement between Baybutt Construction Managers and Joel
Letourneau Drywall, LLC, November 23, 2010 (page 1 of 13)
Defendant Hartford’s Exhibit D:
State of New Hampshire, Corporate Division filed documents,
2011 and 2014 Annual Reports, Joel Letourneau Drywall, LLC
Defendant Hartford’s Exhibit E:
Employers’ Workers’ Compensation Insurance Coverage
Verification (New Hampshire and Vermont), Joel Letourneau
Drywall, LLC
Defendant Hartford’s Exhibit F:
State of New Hampshire, Corporate Division filed documents,
2011 Annual Report, NWS Northern Wall Systems, LLC
Defendant Hartford’s Exhibit G:
Brattleboro Memorial Hospital discharge summary, 02/04/2012
Defendant Hartford’s Exhibit H:
Lowell General Hospital operative note, 2/23/12
Defendant Hartford’s Exhibit I:
New Hampshire Department of Labor, Hearing Officer Decision,
Fernando Flores Diaz v. Aurelio Alcala Infante, Case No. 70681,
June 21, 2012
Defendant Hartford’s Exhibit J:
New Hampshire Department of Labor, Hearing Officer Decision,
Fernando Flores Diaz v. Ricardo Lazo/Joel Letourneau
Drywall/NWS Northern Wall Systems, Case No. 72063, April 11,
2013
Defendant Hartford’s Exhibit K:
Operative report, 08/23/2012
Defendant Hartford’s Exhibit L:
Correspondence from State of New Hampshire Compensation
Appeals Board, April 22, 2013; deposition of Ricardo Lazo,
January 24, 2014 (excerpted portions); deposition of Fernando
Flores-Diaz, January 9, 2014 (excerpted portions)
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Defendant Travelers’ Exhibit A:
Deposition of Fernando Flores-Diaz, January 9, 2014
Defendant Travelers’ Exhibit B:
State of New Hampshire, Corporate Division filed documents, Joel
Letourneau Drywall, LLC
Defendant Travelers’ Exhibit C:
State of New Hampshire, Corporate Division filed documents,
NWS Northern Wall Systems, LLC
Defendant Travelers’ Exhibit D:
Agreement between Baybutt Construction Managers and Joel
Letourneau Drywall, LLC, November 23, 2010 (pages 1-13 of 13)
Defendant Travelers’ Exhibit E:
Deposition of Ricardo Lazo, January 24, 2014
Defendant Travelers’ Exhibit F:
New Hampshire Department of Labor, Hearing Officer Decision,
Fernando Flores Diaz v. Aurelio Alcala Infante, Case No. 70681,
June 21, 2012
Defendant Travelers’ Exhibit G:
Employee’s Notice of Appeal, New Hampshire Dept. of Labor,
Case No. 72063, April 17, 2013
Defendant Travelers’ Exhibit H:
New Hampshire Department of Labor, Hearing Officer Decision,
Fernando Flores Diaz v. Ricardo Lazo/Joel Letourneau
Drywall/NWS Northern Wall Systems, Case No. 72063, April 11,
2013
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving party, see,
e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. At all times relevant to this claim, Baybutt Construction Corporation (“Baybutt”) was the
general contractor for the redevelopment of the Brattleboro Food Coop plaza (the
“Brattleboro project”), located in Brattleboro, Vermont. Defendant Travelers’ Exhibit D.
2. Baybutt is a New Hampshire corporation with a principle place of business in Keene,
New Hampshire. At all times relevant to this claim, Baybutt maintained workers’
compensation insurance covering its operations in Vermont. Defendant Hartford’s
Exhibit B.
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3. Pursuant to an agreement executed in November 2010, Baybutt subcontracted certain
drywall work on the Brattleboro project to Joel Letourneau Drywall, LLC. According to
Article 5 of the agreement, prior to commencing work Letourneau was obligated to
furnish Baybutt with suitable certificates indicating workers’ compensation insurance
coverage, for both itself and for any further subcontractors, in accordance with Vermont
law. Pursuant to Article 6.4 of the agreement, Letourneau was prohibited from further
subcontracting the whole or portions of its subcontract without Baybutt’s written consent.
Defendant Travelers’ Exhibit D.
4. Joel Letourneau Drywall, LLC (“Letourneau”) is a New Hampshire limited liability
company with a principal office in Surry, New Hampshire. At all times relevant to this
claim, Letourneau maintained workers’ compensation insurance covering its operations
in New Hampshire, but not in Vermont. Defendant Hartford’s Exhibit E.
5. At some point, Letourneau subcontracted certain drywall work on the Brattleboro project
to NWS Northern Wall Systems, LLC (“NWS”). At all times relevant to this claim,
NWS was a New Hampshire limited liability company with a principal office in
Dunbarton, New Hampshire. Defendant Hartford’s Exhibit F. NWS maintained
workers’ compensation insurance covering its operations in New Hampshire, but not in
Vermont. Defendant Hartford’s Exhibit J at p. 2.
6. Dwayne Wallace is an owner of NWS. Lazo deposition at 26:3 (Defendant Travelers’
Exhibit E).
7. At all times relevant to this claim, Claimant’s nephew, Ricardo Lazo, has resided in
Nashua, New Hampshire. Lazo deposition at 7:3-8.
8. Mr. Lazo is a drywall/sheetrock laborer. Lazo deposition at 29:17-21. Prior to the
Brattleboro project, he had worked for NWS on a job in Rochester, New Hampshire.
Initially he had come to work on that job as part of a crew headed by one Luis Martinez.
Lazo deposition at 26:25-27:1-9. Subsequently, Mr. Wallace’s partner, Tim, became
dissatisfied with the quality of Mr. Martinez’ work and discharged him. Tim was willing
to retain Mr. Lazo and another co-worker on the Rochester job, however, provided that
Mr. Lazo procured a certificate verifying workers’ compensation insurance coverage.
Lazo deposition at 32:12-21.
9. Rather than pay for and procure insurance coverage himself, Mr. Lazo telephoned his
brother-in-law, who also works in the drywall/construction business, “to see if he had an
insurance that we could borrow to submit to [Mr. Wallace] . . . .” Lazo deposition at
33:21-25. The brother-in-law conveyed Mr. Lazo’s request to a relative, Aurelio Infante,
a drywall taper. Subsequently, Mr. Infante faxed a copy of his insurance certificate to
Mr. Wallace. Lazo deposition at 33:25-34:2.
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10. Mr. Lazo and his co-worker remained on the Rochester job until its completion
approximately a week and a half later. Lazo deposition at 30:19-21. Shortly thereafter,
Mr. Lazo met Mr. Wallace at a McDonald’s parking lot in Manchester, New Hampshire,
where Mr. Wallace delivered a check, drawn on an NWS account and made payable to
Mr. Infante, for the compensation due Mr. Lazo and his co-worker on the Rochester job.
Lazo deposition at 30:5-11, 32:1-5, 36:1-6. Mr. Lazo delivered the check to Mr. Infante
at his home in Nashua; after cashing it, Mr. Infante retained 15 or 20 percent for himself
and gave the rest to Mr. Lazo to be distributed between himself and his co-worker. Lazo
deposition at 36:7-14, 37:23-38:5, 38:24-39:14.
11. Upon completing the Rochester job, on or about January 30, 2012 Mr. Lazo and his
brother, Carlos Lazo, began working with Mr. Wallace’s crew at the Brattleboro project.
Lazo deposition at 27:1-4. However, their first day on the project was aborted, because
they had not brought step ladders with them and therefore were unable to accomplish the
ceiling work Mr. Wallace wanted done. As they were leaving the jobsite, Mr. Wallace
requested that when they returned, they bring two more men with them to fill out the
work crew. Lazo deposition at 44:17-25, 48:24-49:6, 87:14-20.
12. In order to locate additional workers to join Mr. Wallace’s crew, from his home in
Nashua Mr. Lazo phoned an acquaintance, Miguel Piña. Mr. Piña was not working and
therefore agreed to join the crew. Lazo deposition at 49:20. Then Mr. Lazo called
Claimant, his uncle, “to see if he knew anybody that was not working.” Lazo deposition
at 50:1-4.
13. At all times relevant to this claim, Claimant has resided in Lowell, Massachusetts.
Flores-Diaz deposition at 7:1-4 (Defendant Travelers’ Exhibit A). He is a native of
Mexico, with permanent resident status in the United States. His formal education ended
in the 8th grade. He understands some English, but cannot speak it fluently. Flores-Diaz
deposition at 10:17-11:7, 14:25-15:5, 81:24-82:8.
14. Claimant’s prior work experience was as a mechanic; more recently he worked for a
cleaning company. He was laid off from that job in 2010. When he received Mr. Lazo’s
telephone call he was collecting unemployment benefits; these were due to expire within
the next week or so. Flores-Diaz deposition at 10:8-16, 12:20-25, 16:20-25.
15. Claimant received Mr. Lazo’s telephone call at his home in Lowell. He had no prior
sheetrock or drywall experience, and had never worked with his nephew before.
Nevertheless, upon learning that Mr. Lazo was seeking a laborer to join Mr. Wallace’s
crew on the Brattleboro project, Claimant told him he would do so. Flores-Diaz
deposition at 26:7-27:4; Lazo deposition at 51:19-25.
6
16. Claimant and Mr. Lazo next discussed transportation to and from the jobsite. Neither Mr.
Lazo nor his brother had a valid driver’s license. Lazo deposition at 45:1-3, 47:22-24.
Claimant’s ability to join Mr. Lazo on the Brattleboro project was in no way conditioned
on his status as a legal driver, but because his license was valid he agreed to assume
responsibility for driving the crew Mr. Lazo had assembled to Brattleboro. Flores-Diaz
deposition at 37:7-14.
17. At the time of his telephone conversation with Mr. Lazo, Claimant knew only that work
was available on the Brattleboro project. He understood that he would be working for
Mr. Lazo’s employer, though Mr. Lazo did not identify Mr. Wallace by name until the
following day, at the jobsite. Lazo deposition at 53:10-17. He did not know whether he
would be paid in cash or by check. Flores-Diaz deposition at 33:19-22. He “imagined”
that the job would be for 40 hours per week, but did not know for how many weeks it was
likely to last. Flores-Diaz deposition at 35:25-36:7. Until he arrived on the jobsite and
met Mr. Wallace, he did not know what his job responsibilities would be, or what specific
tasks he would be assigned. Flores-Diaz deposition at 46:2-23.
18. Mr. Lazo as well understood that he was acting on Mr. Wallace’s behalf when he
telephoned Claimant in search of additional workers, and that Mr. Wallace would be
Claimant’s employer. Lazo deposition at 53:24-54:8.
19. Both Claimant and Mr. Lazo credibly testified that for Claimant, securing work was a
more important consideration than salary. Flores-Diaz deposition at 38:4-6; Lazo
deposition at 55:6-16. As the following exchange demonstrates, Claimant’s testimony
was somewhat ambiguous as to when he first came to understand what his salary would
be, whether at the time of his telephone conversation with Mr. Lazo or the following day,
after he arrived on the jobsite:
Q [by Attorney Mabey]: And you said that you were going to be paid $12
an hour?
A: That’s what they told me.
Q: Is that what [Mr. Lazo] told you?
A: [Mr. Wallace] told [Mr. Lazo] who passed the orders on.
Q: Your conversation on the phone was only with [Mr. Lazo], right?
A: Yes.
Q: So [Mr. Lazo] told you that you would be paid $12 per hour?
A: Yes, there were more of us, workers.
Q: That wasn’t my question. [Mr. Lazo] told you that you would be paid
$12 an hour for this work in Brattleboro when you spoke with him on the
phone a week before your accident; correct?
A: Yes, that was the salary.
7
Flores-Diaz deposition at 35:8-24. In contrast, Mr. Lazo’s deposition testimony was
unambigious:
Q [by Attorney Mabey]: Okay. So when you had this conversation with
[Claimant], did you talk about how much the job would pay?
A: No that was the next – ah, the first morning when – when we got there,
I think, ah, we were in front, waiting for [Mr. Wallace] and his partner –
not Tim, some other kid he was working with, his coworker and whatnot.
And he said that he was going to pay Carlos and [Claimant] twelve bucks
because he was going to use them as laborers.
Lazo deposition at 52:7-17. Considering the evidence in the light most favorable to
Claimant as the non-moving party in the pending motions, I accept Mr. Lazo’s testimony
on this point.
20. On the morning following his telephone conversation with Mr. Lazo, on or about January
31, 2012 Claimant used his personal truck to drive from his home in Lowell to Nashua.
From there, he used a vehicle belonging to Mr. Lazo’s mother to drive himself, Mr. Lazo
and his brother, and Mr. Piña to the jobsite in Brattleboro. Lazo deposition at 56:9-58:7.
Upon arriving, Mr. Lazo introduced Claimant to Mr. Wallace. At some point, he
informed Claimant that Mr. Wallace would be paying him $12.00 per hour for his work.
Lazo deposition at 55:6-12, 88:10-14; Flores-Diaz deposition at 102:9-12. Also at some
point, with Mr. Lazo acting as interpreter, Mr. Wallace began assigning Claimant tasks
around the jobsite. Flores-Diaz deposition at 46:2-23.
21. Claimant did not complete a job application or fill out any paperwork upon his arrival at
the jobsite. He assumed that he would be given the appropriate forms to fill out by the
end of the week. Flores-Diaz deposition at 43:6-13.
22. At some point during their first day on the job, Mr. Wallace engaged in a conversation
with Claimant, Mr. Lazo, Mr. Lazo’s brother and another worker. Mr. Wallace informed
the group that upon completing the Brattleboro project he was preparing to start another,
larger project in Manchester, New Hampshire, which he expected to last for as much as a
year. Mr. Lazo understood from that conversation that the crew he had assembled –
himself, his brother, Mr. Piña and Claimant – would be working on the Manchester
project as well. Lazo deposition at 58:18-60:11; Flores-Diaz deposition at 36:8-24.
23. Joel Letourneau was also present at the Brattleboro project worksite during the time that
Claimant and Mr. Lazo worked there. He spoke with Mr. Wallace throughout the day,
but did not issue orders or otherwise direct Claimant’s work at any time. Flores-Diaz
deposition at 109:21-25; Lazo deposition at 80:20-81-11.
8
24. Claimant worked on the Brattleboro project for three days. On the third day, Thursday,
February 2, 2012, he was standing on some scaffolding to hold a piece of sheetrock in
place when the scaffolding shifted and he fell. Claimant suffered various injuries as a
consequence of this accident, including a dislocated left rotator cuff and a fractured left
heel. Flores-Diaz deposition at 51:8-18, 53:11-17; Defendant Hartford’s Exhibit G.
25. Following the accident, Claimant was transported to Brattleboro Memorial Hospital,
where he received initial medical treatment. Thereafter, he returned to Massachusetts,
where all subsequent care has been delivered. Flores-Diaz deposition at 67:3-23.
26. At the direction of a Baybutt employee, on the day after Claimant’s accident Mr. Lazo
completed a New Hampshire First Report of Injury. Claimant’s Exhibit 1. Because he
was “using” Aurelio Infante’s workers’ compensation insurance policy to cover his work
for Mr. Wallace, Mr. Lazo identified Aurelio Infante as Claimant’s employer. Lazo
deposition at 86:25-87:13, 96:10-97:4.
27. Mr. Lazo did not work again for NWS after Claimant’s injury. As noted above, he had
anticipated that upon completing the Brattleboro project he and the other members of his
crew, including Claimant, would be offered work on the upcoming Manchester, New
Hampshire job. Lazo deposition at 58:18-60:11. However, when he called to inquire,
Mr. Wallace responded, “I got no work for you.” Lazo deposition at 109:8-15.
28. Mr. Wallace paid Claimant, Mr. Piña, Mr. Lazo and his brother by way of a check drawn
off an NWS account and made payable to Mr. Infante. Because Mr. Infante was no
longer living at his Nashua residence (having apparently returned to Mexico), Mr. Lazo
deposited the check into his own account. While waiting for the check to clear, he paid
his brother, Mr. Piña and Claimant their wages out of his own funds. When the check
cleared, he reimbursed himself. Lazo deposition at 62:13-68:9; Flores-Diaz deposition
at 44:5-23.
29. The First Report of Injury in which Mr. Infante was identified as the employer was filed
with the New Hampshire Department of Labor on March 2, 2012. On March 19, 2012
Mr. Infante’s workers’ compensation insurance carrier denied the claim, on the grounds
that (a) no employer-employee relationship existed, and (b) the policy did not cover
injuries occurring outside the state of New Hampshire. Subsequently, on April 10, 2012
a second First Report of Injury was filed, this time naming Baybutt as the employer. On
April 27, 2012 Baybutt’s workers’ compensation insurance carrier denied the claim, on
the grounds that no employer-employee relationship existed.
30. Claimant appealed both denials to a hearing before the New Hampshire Department of
Labor. On June 21, 2012 the hearing officer determined (a) that Claimant had failed to
prove that he was an employee of Mr. Infante at the time of his injury; and (b) that as the
general contractor on the project, Baybutt might become obligated to pay benefits, but
only if Claimant “is able to determine who was the sub-contractor and then if that entity
does not have insurance or coverage.” Defendant Hartford’s Exhibit I at pp. 2 and 6.
9
31. In December 2012 two new First Reports of Injury were filed with the New Hampshire
Department of Labor – one identifying NWS Northern Wall Systems as Claimant’s
employer, the other implicating Joel Letourneau Drywall, LLC. Through their respective
workers’ compensation insurance carriers, both employers denied responsibility, on the
grounds that no employer-employee relationship existed; NWS’ denial also cited the lack
of coverage in Vermont.
32. Claimant appealed both denials to a hearing before the New Hampshire Department of
Labor.1 On April 11, 2013 the hearing officer upheld the denials on the grounds that
Claimant had failed to satisfy the statutory criteria necessary to establish jurisdiction over
his injury in New Hampshire, given that it had occurred in Vermont. In making this
determination, the hearing officer relied on the New Hampshire statute governing injuries
sustained out of state, RSA 281-A:12. That statute reads as follows:
§281-A:12. Injuries Outside the State
I. If an employee is injured while employed elsewhere than in this
state, and is injured under circumstances that would have entitled
the employee or a dependent to workers’ compensation under this
chapter had such employee been injured in this state, then such
employee or dependents of such employee shall be entitled to
workers’ compensation as provided in this chapter:
(a) If the employee or the employee’s dependents release the
employer from all liability under any other law;
(b) If the employer is engaged in business in this state;
(c) If the contract of employment was made in this state; and
(d) If the contract of employment was not expressly for service
exclusively outside of this state.
33. Specifically, from the evidence presented the hearing officer found that “[w]hile
debatable, . . . the final verbal contract of employment was made in Nashua, New
Hampshire between Mr. Lazo, probably Dwayne Wallace and the claimant and that
verbal contract and agreement for employment was only for the Vermont job.”
Therefore, because “[Claimant’s] only agreement was for the work at the facility in
Brattleboro, Vermont,” he failed to satisfy the requirements of subsection (d) above. As
a consequence, the hearing officer ruled, “the State of New Hampshire does not have
jurisdiction in this matter and it is not a New Hampshire workers’ compensation case
subject to this chapter.” Defendant Hartford’s Exhibit J at p. 5.
1 Claimant also filed a Notice of Injury against Ricardo Lazo as an employer; Mr. Lazo was uninsured and
represented himself at the appeal hearing.
10
34. Claimant appealed both the June 2012 and April 2013 hearing officer determinations to
the New Hampshire Compensation Appeals Board. Defendant Hartford’s Exhibit J at p.
2; Defendant Hartford’s Exhibit L. Subsequently, he filed the pending claim for benefits
in Vermont 2 and moved to continue the pre-hearing conference in the New Hampshire
appeals. All parties assented to the motion, which the New Hampshire Department of
Labor granted pending a hearing and decision on the claim in Vermont. Claimant’s
Exhibit 3.
CONCLUSIONS OF LAW:
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. On behalf of their respective insureds, Defendants Hartford and Travelers’ both assert
that as a matter of law jurisdiction does not lie over Claimant’s workers’ compensation
claim in Vermont. Both further assert that even if a basis for jurisdiction can be found,
the Commissioner should decline to exercise it based on principles of comity and/or
forum non conveniens.
Jurisdiction under 21 V.S.A. §§616, 619, 620 and 623
3. Vermont’s workers’ compensation statute provides four separate avenues for asserting
jurisdiction over an injured worker’s claim for benefits – one based on whether the
claimant’s employment is covered here, 21 V.S.A. §616, two based on whether he or she
was hired here or in another state, 21 V.S.A. §§619, 620, and one based on the parties’
agreement to be bound by Vermont law, 21 V.S.A. §623.
(a) Jurisdiction under Section 616
4. Section 616 vests jurisdiction in the commissioner to apply Vermont’s workers’
compensation law to “all employment in this state.” Defendant Hartford argues that by
this language the Legislature intended merely “to describe the scope of the chapter that
follows,” not to confer jurisdiction. The legislative history does not support such an
interpretation, however.
2 This is according to the Department’s file, which reflects three separate Notice of Injury and Claim for
Compensation forms (one for each of the named Defendants) filed on July 3, 2013.
11
5. Prior to 1967, the purpose of §616 was to provide a de minimus exemption from the
requirements of the Workers’ Compensation Act for small employers, that is, those who
regularly employed fewer than five employees. See Martin v. Furman Lumber Co., 134
Vt. 1, 3 (1975). In 1967, the statute was amended to exempt only employers with fewer
than two employees from its coverage. Id. In 1973, the exemption was eliminated
altogether. Id. In its current form, therefore, there is no “minimum-number
requirement,” id; unless otherwise exempted, the Act applies equally to all employers,
whether large or small.
6. The most basic requirement of the Act – to pay workers’ compensation benefits to
employees who are injured on the job – is reflected in the following section:
If a worker receives a personal injury by accident arising out of and in the
course of employment by an employer subject to this chapter, the
employer or the insurance carrier shall pay compensation in the amounts
and to the person hereinafter specified.
21 V.S.A. §618(a)(1) (emphasis added).
7. Considered in conjunction with the emphasized language in §618, what the 1973
amendment to §616 accomplished was to confer jurisdiction in Vermont over even the
smallest employer when an employee is injured as a consequence of his or her
“employment in this state.”
8. As Defendant Hartford correctly notes, “employment” is a defined term under the Act.
However, the definition provided does not explain the word’s meaning per se; rather, it
simply clarifies what the Legislature intended to include therein:
“Employment” includes public employment, and, in the case of private
employers, includes all employment in any trade or occupation
notwithstanding that an employer may be a nonprofit corporation,
institution, association, partnership or proprietorship.
21 V.S.A. §601(4).
9. The Legislature having failed otherwise to define the meaning of the term “employment,”
it is appropriate to consider its common usage. Walker v. Wolverine Fabricating & Mfg.
Co., 391 N.W.2d 296, 300 (Mich. 1986), cited in State v. Madison, 163 Vt. 360, 368
(1995). According to Merriam-Webster, the word “employ” means “to use or engage the
services of,” and the word “employment” means “an activity in which one engages or is
employed.”
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10. Construing together §§601(4), 616 and 618, the Legislature thus intended to confer
subject matter jurisdiction over an employee who is injured in Vermont while engaged in
the services of a covered employer, regardless of where he or she was hired. 3 See, e.g.,
Letourneau v. A.N. Deringer, 2008 VT 106 ¶2 (2008) (acknowledging the application of
§616 to persons employed in Vermont).
11. In the pending claim, the evidence establishing that Claimant was injured in Vermont,
while engaged in work activities on behalf of a covered employer, is undisputed.
Jurisdiction over his workers’ compensation claim thus lies under §616.
(b) Jurisdiction under Sections 619 and 620
12. Even apart from §616, §§619 and 620 provide another possible basis for asserting
jurisdiction over Claimant’s claim in Vermont. Section 619 vests jurisdiction in the
Commissioner to award workers’ compensation benefits under Vermont law to an
employee who is hired in Vermont, even if the injury occurs elsewhere:
If a worker who has been hired in this state receives personal injury by
accident arising out of and in the course of such employment, he or she
shall be entitled to compensation according to the law of this state even
though such injury was received outside of this state.
13. As for an employee who is hired in a foreign state, Section 620 vests jurisdiction in the
Commissioner to award workers’ compensation benefits under the foreign state’s law in
limited situations:
If a worker who has been hired outside of this state is injured while
engaged in his or her employer’s business and is entitled to compensation
for such injury under the law of the state where he or she was hired, he or
she shall be entitled to enforce against his or her employer his or her rights
in this state, if his or her rights are such that they can be reasonably
determined and dealt with by the commissioner and the court in this state.
3 That the Legislature could do so without running afoul of constitutional full faith and credit concerns is well
settled. See, e.g., Martin v. Furman Lumber Co., 134 Vt. 1, 5-8 (1975) and cases cited therein; 9 Lex K. Larson,
Larson’s Workers’ Compensation §142.01 et seq. (Matthew Bender Rev. Ed.) and cases cited therein; Restatement
(Second) of Conflict of Laws §181 (1971).
13
14. As past precedent has shown, it is a far more difficult matter for the Commissioner to
exercise jurisdiction under §620 than it is for her to do so under §619. See, e.g., L.S. v.
Dartmouth College, Opinion No. 45-05WC (August 9, 2005), cited with approval in
Letourneau, supra at ¶12; Grenier v. Alta Crest Farms, Inc., 115 Vt. 324 (1948). Under
§619, the Commissioner is empowered to apply Vermont law in any claim involving an
injured worker who was hired in Vermont.4 Letourneau, supra at ¶2. However, if the
worker was both hired and employed in a foreign state, jurisdiction lies in Vermont only
if (1) the worker would be entitled to benefits under the foreign state’s law; and (2) the
foreign state’s process and procedure can be accommodated here. Letourneau, supra at
¶¶9-10; Grenier, supra at 330-31.
15. Lacking sufficient familiarity with the foreign state’s law and/or access to the appropriate
decision-making tribunal, practical considerations pose substantial impediments to the
exercise of jurisdiction under §620. Letourneau, supra at ¶10. These considerations are
of great concern in the case before me now. Significant differences exist between New
Hampshire’s statute and our own as to the circumstances under which jurisdiction can be
taken over an injury that occurs in a foreign state. Compare New Hampshire RSA 281-
A:12 (Finding of Fact No. 32 supra), with 21 V.S.A. §620 (Conclusion of Law No. 13
supra). Given the New Hampshire hearing officer’s initial determination – that Claimant
was not entitled to benefits under New Hampshire law – it would be presumptuous for
me to apply the same law to different effect in this forum. For this reason, I conclude as
a matter of law that it would be inappropriate to assume jurisdiction over Claimant’s
claim under §620.
16. It is a far easier matter for me to assume jurisdiction over Claimant’s claim under §619,
provided, of course, that he was hired here. To determine that issue, I must decide where
his employment contract with NWS was completed, whether in Brattleboro, when he first
came on the jobsite there, or in New Hampshire or Massachusetts, during his telephone
conversation with Mr. Lazo the night before.
17. The place of a contract is “where the last act essential to its completion was done.”
Chase Commercial Corp. v. Barton, 153 Vt. 457, 461 (1990), quoting West-Nesbitt, Inc.
v. Randall, 126 Vt. 481, 483 (1967). And while a completed contract “need not contain
each and every contractual term, it must contain all of the material and essential terms” in
order to be binding. Evarts v. Forte, 135 Vt. 306, 309 (1977). In the context of
employment agreements, “typical essential terms include, among others, ‘compensation,
duties or responsibilities.’” City of Houston v. Williams, 353 S.W.3d 128, 139 (Tx.
2011), quoting Martin v. Credit Protection Association, Inc., 793 S.W.2d 667, 669 (Tx.
1990).
4 Defendant Hartford correctly interprets the language of §619 to mean that if the injured worker was hired in
Vermont, jurisdiction lies under that section regardless of where he or she was injured, whether here or in another
state. However, this does not mean that it is duplicative also to interpret §616 as conferring jurisdiction on the basis
of an injury that occurs here. For example, under §616 the Commissioner is empowered to assume jurisdiction (and
to award benefits in accordance with Vermont law) if the injured worker both resides and is injured here, as was the
case in Martin v. Furman Lumber, supra. Under §619, Vermont workers’ compensation benefits could not be
awarded unless the injured worker also was hired here.
14
18. Claimant cites Candido v. Polymers, 166 Vt. 15 (1996), in support of his assertion that
his employment agreement with NWS was not completed until his first morning on the
job, when he met with Mr. Wallace at the Brattleboro jobsite. That case concerned the
informed consent required in order to find that an employee hired and placed by a
temporary employment agency could be said to have become the statutory employee of
the employer for whom he or she actually worked. Although not directly on point, the
Court’s focus on the employee’s “informed consent” to the employment relationship as
an essential element of the contract of hire, id. at 20, is equally applicable here.
19. Considering the evidence in the light most favorable to Claimant, I conclude here that
genuine issues of material fact exist as to when and where Claimant gave his informed
consent to the salary Mr. Wallace offered for his work on the Brattleboro project.
Although Claimant’s testimony on this point was somewhat ambiguous,5 Mr. Lazo’s
account was clearly stated – he did not learn that Mr. Wallace intended to pay Claimant
$12.00 per hour for his work until the four-man crew arrived on the Brattleboro jobsite
for their first day on the project.
20. Genuine issues of material fact also exist as to whether, when Mr. Wallace told Mr. Lazo
on the day prior to Claimant’s appearance on the Brattleboro worksite to bring two more
men to join the work crew, he thus empowered him to be a hiring agent with full
authority to bind NWS to an employment contract. Mr. Lazo’s testimony that he was
“acting on [Mr. Wallace’s] behalf” when he enlisted Claimant to work on the Brattleboro
project is open to interpretation on this point. It is equally plausible that his role was
merely as a recruiting or referral source, and that Mr. Wallace retained the ultimate hiring
authority.
21. With these two factual issues as yet undecided, I cannot yet determine whether Claimant
was hired in Vermont or elsewhere. Consequently, I cannot as a matter of law eliminate
§619 as a basis for asserting jurisdiction over his claim.
(c) Jurisdiction under Section 623
22. The fourth and final statutory basis by which the Commissioner can assume jurisdiction
over an injured worker’s claim for benefits derives from §623. That section governs
“employers who hire workers within this state to work outside of the state.” The statute
authorizes the parties to the employment contract to agree that Vermont’s benefit scheme
will apply to any work-related injury that subsequently occurs.6
5 Defendants claim that because Claimant’s deposition testimony was unambiguous, he is bound by it, and cannot
now create a genuine issue of material fact by pointing instead to contradictory evidence. See Johnson v. Harwood,
2008 VT 4, ¶5. However, as noted above, Finding of Fact No. 19 supra, Claimant’s sworn testimony on the salary
question was by no means clear, and therefore Defendants’ characterization is inaccurate.
6 Notably, §623 further provides that “[a]ll contracts of hiring in this state shall be presumed to include such an
agreement.” Vermont law thus favors jurisdiction in all cases in which the injured worker was hired here, even if
the work was to be done exclusively in another state. In contrast, New Hampshire law seems to favor exactly the
opposite, see RSA 281-A:12(I)(c) and (d), Finding of Fact No. 32 supra.
15
23. Claimant here was hired to work in Brattleboro, not elsewhere. The language of §623
contemplates work exclusively in a foreign state, furthermore; thus, even if Mr. Wallace
intended to hire him on as well to work on his next project, in Manchester, New
Hampshire, this still would not trigger jurisdiction over the current claim under that
section. For this reason, I conclude as a matter of law that jurisdiction does not lie under
§623.
Principles of Comity and Forum non Conveniens
24. Considering the evidence in the light most favorable to Claimant, I have identified both a
legal basis for asserting jurisdiction in Vermont under §616 and possibly a factual basis
for doing so as well under §619. The fact that Vermont’s statute authorizes jurisdiction
over a particular claim does not necessarily mean that it must be exercised, however.
DeGray v. Miller Brothers Construction Co., 106 Vt. 259, 276 (1934). Principles of
comity and forum non conveniens may point to another state as presenting a more
suitable forum.
25. In appropriate circumstances, principles of comity can provide a basis “for
nonintervention by a Vermont court in a dispute that has already come before some other
forum.” Cavallari v. Martin, 169 Vt. 210, 215 (1999). The doctrine is designed to foster
cooperation among the states, preclude forum shopping and promote uniformity of
decision. Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 39 (Ind. Ct. App. 2010). Comity
has “the power to persuade but not command;” it is not an imperative rule of law, but
rather a rule of convenience and courtesy. Boston Law Book Co. v. Hathorn, 119 Vt.
416, 422 (1956) (internal quotations omitted); Brightpoint, supra. As such, where the
forum state’s established legislative policy conflicts with that of another state, the
doctrine does not require the forum state to yield in any way. Boston Law Book Co.,
supra.
26. Comity is often applied in cases in which a final judgment in another court has already
been rendered. See, e.g., Office of Child Support v. Sholan, 172 Vt. 619, 621 (2001). In
cases where an already-filed suit is still pending in another forum, factors to consider
include whether the first suit has been proceeding normally and without delay, and
whether there is a danger that the parties may be subjected to multiple or inconsistent
judgments if the second suit is allowed to continue. Brightpoint, supra.
27. In this case, were Claimant’s appeals before the New Hampshire Department of Labor
still moving forward, principles of comity might dictate that his Vermont claim be stayed
in the meantime. The New Hampshire tribunal having already agreed to stay its
proceedings pending a hearing and decision here, it would serve no purpose for me to do
likewise, however.
16
28. That Vermont’s legislative policy conflicts with New Hampshire’s with respect to
jurisdiction over an employee who is injured here is of even greater significance. I have
determined that jurisdiction lies over Claimant’s claim in Vermont under §616, and
possibly under §619 as well. But because Claimant was hired only for work outside of
New Hampshire, jurisdiction in that forum already has been denied, see Finding of Fact
Nos. 32-33 supra. It would be unfair to deny Claimant his right to benefits based solely
on principles of convenience, courtesy and deference to a policy that our own statute has
rejected. Boston Law Book Co., supra at 422-423. For this reason as well, I conclude
that principles of comity should not in any way dissuade me from assuming jurisdiction
over Claimant’s claim.
29. Nor does the equitable doctrine of forum non conveniens play any appropriate role here.
The application of this doctrine “is by far the exception, not the rule.” Burrington v.
Ashland Oil Co., Inc., 134 Vt. 211, 215-216 (1976). Its purpose is “to prevent the
plaintiff from seeking to vex, harass, or oppress the defendant by inflicting upon [it]
expenses not necessary to [the plaintiff’s] own right to pursue his remedy . . . .” Id.
Dismissing an action on forum non conveniens grounds should be granted only “in the
rare case in which the combination of factors to be considered tips the scales
overwhelmingly in favor of” the defendant, id., quoting States Marine Lines v. Domingo,
269 A.2d 223, 225 (Del. 1970). Thus, merely showing inconvenience on the defendant’s
part is insufficient; “it must also be established that the dismissal will cause no serious
inconvenience to the plaintiff.” Were the rule otherwise, a defendant would be given an
unfair opportunity to undermine the plaintiff’s right to a good faith choice of forum. Id.
30. Both Defendants here point to a variety of factors in support of their assertion that
Claimant’s claim could be more conveniently resolved in another jurisdiction. Claimant
lives in Massachusetts, and as most of his injury-related medical care has been provided
there, it is likely that whatever medical expert witnesses he calls to support his claim for
benefits will hail from there as well. Mr. Lazo, his brother, Mr. Piña and Mr. Wallace
reside in New Hampshire, as do all three of the named defendants in this action.
Defendants argue that conducting discovery under these circumstances will be needlessly
expensive. In addition, they fear that if key witnesses refuse to testify voluntarily the
Department will have no means of compelling them to do so by subpoena. Last, they
assert that costly litigation on tangential issues, involving both coverage disputes and
breach of subcontractor agreements, likely will accompany their defense of Claimant’s
claim for benefits in Vermont, but might be avoidable in New Hampshire.
31. Weighed against these concerns, Defendants argue that Claimant will not be unduly
inconvenienced by pursuing his claim in another forum. Somewhat blithely, they assert
that Claimant likely will prevail on his appeals in New Hampshire, or alternatively, that
the facts will support a claim for compensation under Massachusetts law.7 Last, they
assert that because Claimant initially chose New Hampshire as his forum, he should be
precluded from transferring to another jurisdiction now.
7 Jurisdiction lies in Massachusetts over a claim involving a worker who was hired in that state, even if the injury
occurred elsewhere. See, e.g., Case of Murphy, 759 N.E.2d 754, 757 (Mass.App.Ct. 2001).
17
32. Having carefully considered the parties’ competing interests, I am unconvinced that any
of the concerns Defendant has raised justify dismissing Claimant’s claim on forum non
conveniens grounds. While it is true, first of all, that most of the fact witnesses reside out
of state, they are not so far away as to pose an unduly burdensome expense for
Defendants. In the event a witness refuses to appear voluntarily, laws in both Vermont
and New Hampshire now provide a streamlined process for compelling testimony by
subpoena, see V.R.C.P. 45(f); New Hampshire RSA §517-A:1. As for expert witnesses,
the Department’s long-established practice is to accommodate expert witness testimony
either by deposition or by telephone, see Workers’ Compensation Rule 7.1500.
Defendants’ protestations to the contrary, the discovery process in this claim likely will
be no more complicated or expensive than it is in most other workers’ compensation
claims.
33. Nor does the threat of litigation on tangential issues compel me to deny Claimant his
chosen forum. The fact is, had each of the potentially responsible employers here
complied with the responsibilities imposed on it by both contract and law, all would have
been properly insured for their work in Vermont and none of them would now be faced
with litigation over such matters as insurance coverage, statutory employment or breach
of contract. The fault for those omissions lies with them, not with Claimant.
34. Considered in this light, I conclude that whatever inconvenience Defendants face in this
forum are insubstantial. Should jurisdiction here be declined, the “inconvenience” to
Claimant may well prove insurmountable, however. The most likely alternative forum,
New Hampshire, already has denied his claim, by virtue of a statute that, unlike Vermont,
does not permit jurisdiction over a claimant who was hired to work exclusively in another
state. And although Defendants point to Massachusetts as another possible forum,
jurisdiction in that state would depend on a finding that Claimant’s employment contract
was completed there. Based on the evidence presented so far, neither the New
Hampshire tribunal nor I have found this to be true.
35. An initial requirement for applying the forum non conveniens doctrine to justify dismissal
of an action is that an adequate alternative forum exists. Where the alternative forum
does not permit litigation of the subject matter of the dispute, it is clearly unsatisfactory,
and the inquiry must end. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981)
(internal citations omitted). That is the case here.
36. I am mindful of Defendants’ claim that because Claimant initially chose New Hampshire
as his forum they already have incurred defense costs there, some of which likely will be
duplicated if he is allowed to proceed now in this forum. However, I am more concerned
about implementing the public policy embodied in Vermont’s workers’ compensation
law, which affords protection to employees who are hired to work on Vermont jobsites.
There being no alternative forum in which that policy can be effectuated, to dismiss
Claimant’s action here would be inappropriate.
18
Summary
37. I conclude that jurisdiction over Claimant’s claim in Vermont lies as a matter of law
under §616, and also that genuine issues of material fact exist as to whether jurisdiction
might also lie under §619. I further conclude that neither principles of comity nor the
equitable doctrine of forum non conveniens compel me to reject jurisdiction here. For
these reasons, summary judgment in Defendants’ favor is inappropriate.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendants Letourneau and
Baybutt’s Motions for Summary Judgment are hereby DENIED.
DATED at Montpelier, Vermont this 25th day of July 2014.
_____________________
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.

Michael Hathaway v. ST Griswold Company (June 11, 2014)

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

Michael Hathaway v. ST Griswold Company (June 11, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Michael Hathaway Opinion No. 04F-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
S.T. Griswold & Company
For: Anne M. Noonan
Commissioner
State File No. S-22188
RULING ON CLAIMANT’S MOTION FOR FINAL JUDGMENT
Claimant requests that the Commissioner enter final judgment in accordance with her March 17,
2014 ruling on Defendant’s Motion for Summary Judgment, so that he may take an appeal of the
issues decided therein to the Vermont Supreme Court, pursuant to 21 V.S.A. §672.
Procedural Background
In her prior ruling, Opinion No. 04-14WC, the Commissioner determined as a matter of law that
Defendant was not obligated either to provide vocational rehabilitation services to Claimant as a
consequence of his compensable low back injury or to reimburse him for wages he lost while
attending medical appointments necessitated by that injury. Summary judgment was therefore
granted in Defendant’s favor on those issues. The Commissioner also granted summary
judgment as to the third issue Defendant had presented – whether Claimant’s erectile dysfunction
was causally related to his compensable work injury. However, the ruling left open the
possibility that Claimant might still be entitled to workers’ compensation benefits as a
consequence of deficits in sexual function that could be referable to his injury-related low back
pain. As to this aspect of his claim, summary judgment in Defendant’s favor was denied,
therefore.
Pointing to the possibility that Claimant might yet be awarded additional benefits, Defendant has
objected to Claimant’s request for final judgment on the grounds that the Commissioner’s ruling
did not finally resolve all aspects of his workers’ compensation claim against it. Therefore, it
argues, any appeal at this point would be interlocutory in nature, and not justified under the
circumstances.
Discussion
Claimant cites to V.R.C.P. 54(b) in support of his request. That rule authorizes a court to “direct
the entry of a final judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay and upon an express direction
for the entry of judgment.”
2
I agree with Defendant that the more appropriate authority for evaluating Claimant’s request
derives from Vermont’s Administrative Procedures Act, 3 V.S.A. §§800 et seq. That statute
specifically exempts workers’ compensation proceedings from the requirements relating to how
administrative hearings are conducted, 3 V.S.A. §816(a)(3).1 However, workers’ compensation
proceedings are not exempted from the APA’s provisions as to the judicial review of contested
cases, 3 V.S.A. §815. That section reads as follows:
§815. Judicial review of contested cases
(a) A person who has exhausted all administrative remedies available within the
agency and who is aggrieved by a final decision in any contested case may
appeal that decision to the supreme court, unless some other court is expressly
provided by law. However, a preliminary, procedural or intermediate agency
action or ruling is immediately appealable under those rules if review of the
final decision would not provide an adequate remedy, and the filing of the
appeal does not itself stay enforcement of the agency decision. The agency
may grant, or the reviewing court may order, a stay upon appropriate terms.
The gist of Defendant’s argument is that because summary judgment resolved Claimant’s
entitlement to some, but not all, of the workers’ compensation benefits he claims are owed as a
consequence of his work injury, the Commissioner’s ruling was not a “final determination,” and
therefore not yet subject to appeal.
Careful reading of the Workers’ Compensation Act’s appeal provisions requires a different
interpretation. The appeal permitted, to either the superior court under 21 V.S.A. §670 or to the
supreme court under §672, is of the Commissioner’s “award” in cases where “the compensation
is not fixed by agreement.” 21 V.S.A. §§663(a) and 664; see also, §668 (modification of
awards) and 671 (findings for new award). As typically occurs, the statute thus envisions that as
a result of a single compensable injury a claimant may become entitled to a variety of benefits.
Some of these may be “fixed by agreement,” while others may require a hearing and “award” in
order to resolve. But nowhere does the statute require that all benefits must be either fixed by
agreement or awarded before an appeal can be taken.
Indeed, given the stages through which an injured worker often progresses following a workrelated
injury – from temporary total disability through medical treatment and vocational
rehabilitation, and then return to work and permanency – to impose such a limit on appeals
would be both impractical and unjust. In the time it might take for a claimant’s entitlement to
permanency benefits to ripen, a disputed vocational rehabilitation plan might become stale, or a
medical treatment window might close. Such a result would undermine both the “humane
purpose” for which the workers’ compensation statute was created, Herbert v. Layman, 125 Vt.
481, 485 (1966), and the “speedy and inexpensive” dispute resolution procedure that Workers’
Compensation Rule 7.1000 envisions.
1 In lieu of the process and procedure required under the APA, workers’ compensation proceedings are generally
governed by the Rules of Civil Procedure and Rules of Evidence, but “only insofar as they do not defeat the
informal nature of the [formal] hearing.” Workers’ Compensation Rule 7.1000.
3
In this case, two of the issues resolved in Defendant’s favor on summary judgment exist entirely
independently. Other than their relation back to his original compensable injury, Claimant’s
claims for vocational rehabilitation benefits and wage reimbursement do not share either a legal
or a factual basis. The Commissioner’s summary judgment ruling finally disposed of both
claims, such that no further administrative remedies are available to him in this forum. It is
appropriate to enter final judgment on these issues, so that Claimant can avail himself of the
appeal rights granted him by statute in a timely fashion.
Claimant’s right to appeal the third issue addressed by the Commissioner’s summary judgment
ruling – whether he is entitled to workers’ compensation benefits causally related to his erectile
dysfunction – stands on a different footing. The nature and extent of any benefits awarded on
account of his reported deficits in sexual function, whether due to erectile dysfunction per se or
alternatively, to his injury-related low back pain, remains to be seen. The Commissioner denied
summary judgment as to the latter theory of recovery, and thus, viewed in terms of a potential
award of benefits, summary judgment has not yet finally disposed of the issue. As Claimant has
not exhausted his administrative remedies, it would be inappropriate to enter final judgment.
ORDER:
1. The Commissioner having previously granted summary judgment in Defendant’s favor,
final judgment against Claimant is hereby entered as to his claim for vocational
rehabilitation benefits causally related to his June 14, 2002 compensable work injury, and
such claim is hereby DISMISSED.
2. The Commissioner having previously granted summary judgment in Defendant’s favor,
final judgment against Claimant is hereby entered as to his claim for wage reimbursement
under 21 V.S.A. §640(c), and such claim is hereby DISMISSED.
DATED at Montpelier, Vermont this 11th day of June 2014.
______________________
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.

Michael Hathaway v. ST Griswold & Company (March 17, 2014)

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

Michael Hathaway v. ST Griswold & Company (March 17, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Michael Hathaway Opinion No. 04-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
S.T. Griswold & Company
For: Anne M. Noonan
Commissioner
State File No. S-22188
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to vocational rehabilitation services as a consequence of his
June 14, 2002 compensable work injury?
2. Is Claimant’s erectile dysfunction causally related to his June 14, 2002
compensable work injury?
3. Is Defendant’s workers’ compensation insurance carrier obligated under 21
V.S.A. §640(c) to reimburse Claimant for wages withheld by his current
employer?
EXHIBITS:
Claimant’s Exhibit 1: Letters from Drs. Hebert (December 23, 2013) and Campbell
(December 19, 2013)
Claimant’s Exhibit 2: Letters from Attorney McVeigh to Attorney Schaffner-Fegard
Claimant’s Exhibit 3: Dr. Hebert office notes, 1/15/13 and 5/4/12
Claimant’s Exhibit 4: Excerpts from Claimant’s deposition, November 28, 2011
2
Defendant’s Exhibit A: Deposition of Claimant, November 28, 2011
Defendant’s Exhibit B: First Report of Injury, 6/14/2002
Defendant’s Exhibit C: Claimant’s Response to Requests to Admit, October 7, 2013
Defendant’s Exhibit D: Dr. Campbell response to August 15, 2013 letter from Attorney
McVeigh
Defendant’s Exhibit E: Dr. Campbell response to letter from William Chapman, 4/3/12;
Work Status Report
Defendant’s Exhibit F: Letter from Attorney McVeigh, July 8, 2010
Defendant’s Exhibit G: Medical records (CD)
Defendant’s Exhibit H: Wage statement with associated payroll detail, 12/5/11
Defendant’s Exhibit I: Letter from Dr. Bove, October 22, 2013
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving party, see,
e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. Beginning in 1999, Claimant worked for Defendant for a period of approximately nine
and a half years as a concrete construction laborer. His job duties included preparing
forms, tying rebar and assisting with other tasks around the job site. Claimant quit school
in the eleventh grade; he does not have a GED.
Claimant’s June 2002 Work Injury, Medical Course and Return to Work
2. On June 14, 2002 Claimant was at work, spotting a crane at the Fletcher Allen Health
Care “big dig” construction site. After hooking a concrete block to the crane and
signaling the crane operator to begin cabling up, his left foot became entangled in the tag
line. Claimant grabbed the line, so as to remain upright, and was lifted 20 feet in the air.
The line broke and he fell straight down, landing on his left foot.
3. As a result of this accident, Claimant suffered injuries to his left heel, left knee and lower
back.
4. Claimant was disabled for only three or four days following the accident. Upon returning
to work, his treating providers imposed a 75-pound lifting restriction. Thereafter, for the
remainder of his tenure with Defendant, Claimant’s job assignments focused less on
concrete work and more on lighter duty jobs. These included working as a crane rigger
and managing Defendant’s warehouse.
3
5. For some time after August 2002, Claimant treated only sporadically for his accidentrelated
injuries. In the fall of 2003, he underwent a physical therapy evaluation for
ongoing complaints of lower back and left heel pain, but did not attend follow-up visits.
In August 2004 he consulted with a chiropractor, but again did not pursue treatment.
Prior to being rehired following a layoff, in October 2004 Dr. Fitzgerald determined that
he was capable of working as a concrete laborer so long as he was restricted from lifting
more than 50 pounds frequently. There is no evidence that Defendant was unable to
accommodate this restriction.
6. In 2007 Claimant began treating for persistent left knee pain. Ultimately he was
diagnosed with a medial meniscus tear, for which he underwent arthroscopic repair with
Dr. Campbell, an orthopedic surgeon, in February 2009. Later, he suffered a recurrent
tear, which Dr. Campbell surgically repaired in November 2011. Defendant’s workers’
compensation insurance carrier paid the medical and indemnity benefits referable to both
surgeries.
7. Following first a layoff and then the sale of its business, Claimant’s employment for
Defendant terminated in 2008. In the spring of 2009 he began working for Engineers
Construction Inc. (ECI), another local concrete construction company. Claimant has
maintained continuous employment with ECI since that time. On average, he works nine
to ten hours daily. The work is year-round, without seasonal layoffs or other down time.
There is no evidence that Claimant is earning less money for ECI than he was when he
worked for Defendant.
8. After his first knee surgery, Claimant was totally disabled from working between
February and April 2009, at which point Dr. Campbell released him to return to work
without restrictions. After his November 2011 surgery, he was totally disabled until early
January 2012. Having initially released him to return to work in a modified duty capacity
(with limitations against squatting), Dr. Campbell cleared him to resume full-time, fullduty
work in April 2012. Aside from these two periods of disability, since beginning his
employment for ECI no medical provider has ever taken Claimant out of work or
otherwise restricted his activities on account of the injuries he sustained in June 2002.
9. In his deposition testimony, Claimant described his various job responsibilities at ECI.
These include tying rebar, scraping and oiling concrete forms, measuring, sizing and
building wooden forms, transporting materials via forklift, front loader or excavator and
cleaning up around construction sites. While performing these tasks, he occasionally has
to lift and carry pieces of rebar or plywood, rolls of tie wire, small bolts and tools, none
of which weighs more than approximately 40 pounds. Typically the construction site has
been back-filled to create a reasonably flat walking area, and whether working subgrade,
at ground level or on staging he is able to complete all tasks without having to kneel or
bend down.
10. Since returning to work after his second knee surgery, Claimant is no longer required to
lug the larger forms or set the actual rebar. His supervisors at ECI have assigned heavier
tasks to younger employees, leaving the “lighter bit of it” to him.
4
Suitability of Claimant’s Current Employment
11. As to the medical suitability of Claimant’s current job, Dr. Campbell responded “yes,”
without elaboration, to the following question, which Claimant’s attorney put to him in
an August 2013 letter:
[Claimant] is a construction worker and my question is whether it is
preferable for him from a medical standpoint to perform lighter duty work
– in particular working as a truck driver – than it is for him to continue in
his current line of work.
12. Dr. Campbell reiterated his opinion in a December 2013 letter to Claimant’s attorney, as
follows:
Please note it is my medical opinion that [Claimant] would benefit from
pursuit of his CDL (commercial driver’s license) and it would be best to
avoid his current line of work.
13. Dr. Hebert, who has been Claimant’s primary care physician since 2006, stated the
following in a December 2013 “To Whom It May Concern” letter:
[Claimant] has been a patient of my internal medicine practice for the last
8 years. This back pain started after an accident during work in 2001 [sic].
He was lifted by a crane and dropped from a large height. Since that time
he has had back and knee pain and evaluation by several specialists. It is
my medical opinion that [Claimant] would benefit from a job that is less
physically intense.
Erectile Dysfunction
14. Claimant first complained of problems with sexual function during an August 2003 visit
to Dr. Terrien, his primary care provider at the time. Dr. Terrien’s office note states as
follows:
Problem with erection since his injury. Also frequency of relations has ↓
from [approximately once per day] to once or twice a week. Interest also
has ↓.
15. Dr. Terrien’s plan was to “obtain x-ray report.” This reference is unclear. In any event,
from the medical records submitted, it does not appear that Claimant underwent any
follow-up evaluation or treatment with Dr. Terrien for these complaints.
5
16. In the context of a December 2007 independent medical examination with Dr. Backus,
Claimant reported, “Sex is troublesome because of pain.” In assigning an eight percent
whole person impairment rating referable to Claimant’s low back injury, Dr. Backus
specifically noted “significant limitations on normal [activities of daily living] to include
walking, sitting, lifting and even sexual function with pain radiating into his groin
(emphasis added) . . .”.
17. At Dr. Hebert’s referral, in May 2008 Claimant underwent a urology consult with Dr.
Jackson. Regarding the etiology of Claimant’s complaints, Dr. Jackson stated:
I am not sure as to the precise etiology of the patient’s erectile difficulties.
I think a significant neurovascular injury would not cause the partial
erectile dysfunction the patient is experiencing. Instead, I would expect a
more complete absence of significant erectile activity. I suppose he could
have a partial neurologic injury or may have some venous leak which has
been unmasked by some decreased inflow with age and/or adrenergic
overload secondary to his back pain.
18. As treatment, Dr. Jackson provided Claimant with samples of Viagra, Levitra and Cialis.
He also recommended that Claimant undergo testing to check his testosterone levels.
From the medical records submitted, it is unclear whether this occurred. At a follow-up
visit in November 2008, Claimant reported “reasonable results” with Cialis, but difficulty
obtaining insurance coverage for the medication.
19. In the course of a May 2012 office visit for elevated blood pressure, Dr. Hebert reported
as follows:
[Claimant] is also concerned about erectile dysfunction. He says he has
had this since his accident. He had a consult with Dr. Trotter in the past,
and Cialis helped, but it was not covered. He is questioning whether it
could be related to a workman’s comp issue.
20. Dr. Hebert’s stated plan was to refer Claimant for a urology consult, “to see if they feel
this could be a nerve injury from his accident, or whether it is related to his age, weight,
glucose of 103.”
21. At Dr. Hebert’s referral, in August 2012 Claimant underwent a second urology consult
for erectile dysfunction, this time with Dr. Sargent. Dr. Sargent reported that Claimant
had “minimal risk factors for arterial or neurogenic disease,” and that he discussed with
Claimant “the role of psychogenic factors.” At a January 2013 follow-up visit, Claimant
reported that Viagra “helps a little bit,” and also that “when he has [low back pain] during
sexual activity, [it] brings down [his] erection.” Dr. Sargent noted that Claimant was
pursuing treatment of his back pain, “which will most likely help with sexual activity.”
6
22. According to Defendant’s medical expert, Dr. Bove, Claimant’s presentation “seems
consistent with progressive erectile dysfunction based on a more limited arterial inflow in
a man who is in his mid-50’s and mildly obese.” In his opinion, the etiology of
Claimant’s dysfunction is more likely vasculogenic rather than neurogenically based,
meaning that it is not causally related to his 2002 work injury.
Lost Wages Attributable to Attendance at Medical Appointments
23. Claimant seeks to recover from Defendant a total of $189.60 in lost wages attributable to
his attendance at medical appointments necessitated by his work injury. Both
appointments occurred long after his employment for Defendant terminated and he began
working for ECI. Claimant used paid ETO (presumably, earned time off) for these
appointments, but has not otherwise demanded reimbursement from ECI.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when
the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137
Vt. 425 (1979).
2. A defendant who moves for summary judgment satisfies its legal burden when it presents
at least one legally sufficient defense that would bar the opposing party’s claim. Gore v.
Green Mountain Lakes, Inc., 140 Vt. 262, 266 (1981). Once a properly supported
summary judgment motion has been made, the non-moving party may not rest on mere
allegations in its pleadings. Pierce v. Riggs, 149 Vt. 136, 139-140 (1987). Rather, it
must respond with sufficient evidence to support a prima facie case. If an essential
element of the non-movant’s case cannot be established, summary judgment is
appropriate. State of Vermont v. G.S. Blodgett Company, 163 Vt. 175, 180 (1995).
3. Defendant here seeks summary judgment in its favor on three distinct issues. As to two
of these – whether Claimant is entitled to vocational rehabilitation services as a
consequence of his June 2002 work injury and whether his erectile dysfunction is
causally related to that injury – Defendant claims the evidence is insufficient as a matter
of law to support a ruling in Claimant’s favor. As to the third issue – whether Defendant
is obligated to pay Claimant for lost wages attributable to his attendance at medical
appointments – Defendant asserts that as a matter of law responsibility for those
payments rests not with Claimant’s former employer or its carrier, but rather with his
current employer.
7
Claimant’s Entitlement to Vocational Rehabilitation Services
4. Vermont’s workers’ compensation law makes the following provision for injured workers
whose functional restrictions preclude them from resuming their prior jobs after a workrelated
injury:
When as a result of an injury covered by this chapter, an employee is
unable to perform work for which the employee has previous training or
experience, the employee shall be entitled to vocational rehabilitation
services, including retraining and job placement, as may be reasonably
necessary to restore the employee to suitable employment.
21 V.S.A. §641(a).
5. Workers’ Compensation Rule 51.2600 defines “suitable employment” as follows:
“Suitable employment” means employment for which the employee has
the necessary mental and physical capacities, knowledge, skills and
abilities;
51.2601 Located where the employee customarily worked, or within
reasonable commuting distance of the employee’s
residence;
51.2602 Which pays or would average on a year-round basis a
suitable wage;1 AND
51.2603 Which is regular full-time work.2 Temporary work is
suitable if the employee’s job at injury was temporary and
it can be shown that the temporary job will duplicate
his/her annual income from the job at injury. (Emphasis in
original).
1 “Suitable wage” is defined as one that is as close as is reasonably attainable to 100 percent of the employee’s preinjury
average weekly wage. Workers’ Compensation Rule 51.2700.
2 “Regular full-time” employment is defined as a job that “at the time of hire was, or is currently expected to
continue indefinitely.” Workers’ Compensation Rule 51.2100.
8
6. Of note, neither the statute nor the rules require that an injured worker be returned to
specific employment in order for an employer’s vocational rehabilitation responsibilities
to be fulfilled. The goal of vocational rehabilitation is to restore earning skills, not
necessarily to procure a particular job. Bishop v. Town of Barre, 140 Vt. 564, 578
(1982); Wentworth v. Crawford & Co., 174 Vt. 118 (2002); Workers’ Compensation Rule
50.0000. Nevertheless, the workers’ compensation rules acknowledge that a claimant’s
successful return to suitable employment for at least 60 days is itself sufficient proof of
employability as to justify terminating vocational rehabilitation services. Workers’
Compensation Rule 56.1110; Morrisseau v. Hannaford Brothers, Opinion No. 21SJ-
12WC (January 10, 2013).
7. Considering the evidence in the light most favorable to Claimant, State v. Delaney, supra,
I conclude that, as currently comprised, his job at ECI fulfills the necessary requirements
of suitable employment as delineated in Rule 51.2600. It is within his mental and
physical capabilities, knowledge, skills and abilities. It is located in the same general
vicinity as his prior employment for Defendant. It pays a suitable wage as that term is
defined in Rule 51.2700, and constitutes regular full-time employment as defined in Rule
51.2100. Perhaps most important, it is a job that Claimant has proven himself fully
capable of performing for almost five years. With reference to Rule 56.1110, this in itself
is sufficient proof of suitable employment, and thus employability, to disqualify him from
entitlement to vocational rehabilitation services as a matter of law.
8. Claimant asserts that the opinions he has offered from Drs. Campbell and Hebert, Finding
of Fact Nos. 11-13 supra, constitute sufficient evidence to support at least a prima facie
case in favor of vocational rehabilitation entitlement. I disagree. What is required to
overcome summary judgment is evidence that, if found most credible at hearing, will
establish that Claimant’s current job is unsuitable, as that term is defined in Rule
51.2600. Here, although both doctors have stated that it would be preferable or beneficial
for him to pursue another line of work, neither has ever determined that he lacks the
necessary physical capacities to perform the tasks he is routinely assigned in his current
job.3 Their proffered opinions fall short of what Rule 51.2600 requires to trigger
vocational rehabilitation services, therefore.
3 Notably absent from both Dr. Campbell’s and Dr. Hebert’s opinion letters is any analysis of Claimant’s specific
job tasks at ECI, which Claimant himself acknowledged are less physically demanding than those assigned to his
younger coworkers. Had either expert undertaken such an analysis (preferably supported by a formal assessment of
Claimant’s functional capacities), this might have led them to conclude that his injury-related functional restrictions
render even those lighter duty tasks unsuitable. As it is, notwithstanding my obligation to award Claimant the
benefit of all reasonable doubts and inferences, State v. Delaney, supra, I cannot rely on evidence that does not yet
exist.
9
9. With its focus on “suitable” rather than “preferable” employment in the vocational
rehabilitation context, Vermont’s workers’ compensation statute reasonably reflects the
compromise that underlies the general purpose of our law – to provide employees with a
speedy and certain remedy for their work-related injuries, St. Paul Fire & Marine
Insurance Co. v. Surdam, 156 Vt. 585 (1991), while at the same time guaranteeing to
employers a liability that is “limited and determinate,” Morrisseau v. Legac, 123 Vt. 70,
76 (1962). When a work-related injury occurs, the employer assumes responsibility for
restoring the injured worker’s current earning skills, hopefully by reassignment to the
same or modified duties. See Workers’ Compensation Rule 55.2000. Where, as here,
such efforts prove successful, the employer is not obligated to retrain the employee for an
alternative career path as well. Morrisseau, supra.
10. Even considering the evidence in the light most favorable to Claimant, I conclude that he
has failed to establish an essential element of his claim for vocational rehabilitation
services, that is, that his current employment is unsuitable. Summary judgment in
Defendant’s favor is therefore appropriate.
Compensability of Erectile Dysfunction
11. In workers’ compensation cases the claimant has the burden of establishing all facts
essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the injury and the employment. Egbert v. The Book Press,
144 Vt. 367 (1984). There must be created in the mind of the trier of fact something
more than a possibility, suspicion or surmise that the incidents complained of were the
cause of the injury and the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
12. Claimant rests his claim for benefits related to his erectile dysfunction on Dr. Sargent’s
observation, in the context of his January 2013 evaluation, that he was pursuing treatment
of his back pain, “which will most likely help with sexual activity.” Finding of Fact No.
21 supra. Dr. Sargent’s comment followed Claimant’s report that his injury-related low
back pain sometimes affected his ability to maintain an erection during sexual activity.
13. Considering the evidence in the light most favorable to Claimant, Dr. Sargent’s comment
establishes a causal link between Claimant’s low back pain and his reported deficits in
sexual function. If the former is deemed causally related to the June 2002 work injury,4
then the latter reasonably might be considered a natural consequence flowing directly
from it, and therefore causally related as well. See 1 Lex K. Larson, Larson’s Workers’
Compensation §10 (Matthew Bender, Rev. Ed.) at p. 10-1.
4 It does not appear from the Department’s claim file that Defendant has ever formally accepted Claimant’s lower
back complaints as causally related to his June 2002 work injury. It denied responsibility for the condition in 2009,
though later it agreed voluntarily to pay for physical therapy on a without-prejudice basis.
10
14. Of note, however, Dr. Sargent’s comment only serves to establish that Claimant’s sexual
dysfunction derives from his low back pain, not from any injury-related nerve damage
per se. It thus lends support to Dr. Backus’ impairment rating, Finding of Fact No. 16
supra, which included consideration of pain during sexual activity as an element of the
limitations attributable to Claimant’s low back injury. Neither Dr. Sargent nor any other
expert proffered an opinion that, if believed, would establish the compensability of a
neurogenically-based erectile dysfunction, however. On this question, therefore,
Claimant has failed to establish a prima facie case.
15. I conclude that there is no genuine issue of material fact as to whether Claimant’s erectile
dysfunction is causally related to nerve damage or other injury referable to his June 2002
accident at work. Therefore, Defendant is entitled to summary judgment on this issue.
However, I conclude that a genuine issue of material fact does exist as to whether
Claimant’s pain during sexual activity is causally related to his low back pain. Summary
judgment on this issue is inappropriate.
Wage Reimbursement under 21 V.S.A. §640(c)
16. The final issue raised by Defendant’s motion is purely a legal one – whether Defendant’s
workers’ compensation insurance carrier is obligated under 21 V.S.A. §640(c) to
reimburse Claimant for wages withheld by his current employer.5
17. In pertinent part, §640(c) states as follows:
An employer shall not withhold any wages from an employee for the
employee’s absence from work for treatment of a work injury or to attend
a medical examination related to a work injury.
18. When the injured worker has remained continuously employed by the same employer
from the time of the injury, throughout his or her treatment period and during any
subsequent examinations as well, the statute’s mandate is clear – the employer cannot
dock the employee’s pay for time missed while attending causally related medical
appointments. But where, as here, the employee has changed jobs in the interim, which
employer is responsible for ensuring that wages are not withheld – the one for whom the
employee worked at the time of the original injury, or the one for whom he or she is
currently working?
19. Claimant contends that the employer at the time of the injury should bear responsibility in
the first instance, and if, as here, it no longer exists, then responsibility should fall on its
workers’ compensation insurance carrier. As support, he cites to 21 V.S.A. §601(3),
which defines the term “employer” to include its workers’ compensation insurance
carrier “so far as applicable.”
5 As a preliminary matter, Defendant asserts that Claimant lacks standing to defend his current employer against a
claim for wage reimbursement under §640(c). While this may be true, he clearly has standing to assert a claim for
wage reimbursement against his prior employer and/or its workers’ compensation insurance carrier, which is how I
construe his position on the issue.
11
20. Defendant points to the language of the statute as support for its assertion that the current
employer bears responsibility. A prior employer no longer pays wages, it argues, and
therefore cannot logically be barred from withholding them. As for extending the
statute’s mandate to the prior employer’s carrier, it asserts that a carrier is empowered
only to pay benefits, not wages. Again, therefore, the statutory prohibition against
withholding wages cannot logically apply.
21. The Legislature is presumed to use statutory language advisedly, “and with intent that it
should be given meaning and force.” Vermont State Colleges Faculty Federation v.
Vermont State Colleges, 138 Vt. 451, 455 (1980) (internal citations omitted). Individual
provisions must be construed in light of the entire statutory framework, Estate of Dunn v.
Windham Northeast Supervisory Union, 2012 VT 93, ¶8, citing Trickett v. Ochs, 2003
VT 91, ¶22, but a court “is not at liberty to read into the statute provisions which the
legislature did not see fit to incorporate.” Archer v. Department of Employment Security,
133 Vt. 279, 281 (1975), quoted with approval in Longe v. Boise Cascade Corp., 171 Vt.
214, 223 (2000).
22. Applying these rules of construction here, I find it significant that, in drafting the
language of §640(c), the Legislature chose to create a prohibition against “withhold[ing]
wages.” I agree with Defendant that a workers’ compensation insurance carrier has no
role to play with respect to paying wages to, or withholding wages from, an injured
employee. The carrier’s obligation is to pay “compensation,” or “benefits,” terms that in
the context of the Workers’ Compensation Act are not synonymous with wages.6 See,
e.g., 21 V.S.A. §§632 (death benefits), 642 (temporary total disability compensation),
645 (permanent total disability compensation), 646 (temporary partial disability
compensation) and 648 (permanent partial disability compensation). For that reason, this
is an instance where the statutory definition of “employer” under §601(3) logically
cannot be read to include its insurance carrier as well.
23. As for whether the prohibition against withholding wages applies to a current or former
employer, again the specific language of the statute is instructive. Section 640(c)
imposes its obligation on “an employer” not to withhold wages from an employee” on
account of “a work injury.” In contrast, in the sections noted above, the statute imposes
the obligation on “the employer” to pay indemnity benefits to “the injured employee” on
account of “the work injury.” Presumably the Legislature understood the difference
between the indefinite article “a,” which connotes a more generalized reference, and the
definite article “the,” which is meant to be more specific. See, e.g., State Farm Fire &
Casualty Co. v. Old Republic Insurance Co., 644 N.W.2d 715, 718 n.5 (Mich. 2002). In
this way, it signaled its intent to broaden the prohibition against withholding wages to
encompass an injured employee’s current employer.
6 As defined in the Act, the term “wages” signifies payments “which the employee receives from the employer as
part of his or her remuneration.” 21 V.S.A. §601(13). Considered in the context most applicable to their usage in
the statute, Merriam-Webster defines “compensation” as “payment to unemployed or injured workers or their
dependents,” and “benefit” as “a payment or service provided for under an annuity, pension plan or insurance
policy.” Merriam-Webster.com/dictionary.
12
24. Claimant argues that it is unfair to impose the mandate of §640(c) on an employer who
bears no responsibility for the underlying injury. The Legislature’s authority to do so
derives specifically from the Vermont Constitution:
The General Assembly may pass laws compelling compensation for
injuries received by employees in the course of their employment resulting
in death or bodily hurt, for the benefit of such employees, their widows,
widowers or next of kin. It may designate the class or classes of
employers and employees to which such laws shall apply.
Vermont Constitution, Chapter II, §70 (emphasis added).
25. By using the language that it did in §640(c), the Legislature thus designated a class of
employer upon which to impose the obligation not to withhold wages. Viewed in the
context of a single case, the result may seem unfair. Viewed in the context of the system
as a whole, it is an effective means of spreading the risk across all employers. Today,
ECI must pay wages for time lost on account of an injury for which it was not
responsible. Tomorrow, a worker injured while in ECI’s employ will move on to another
job, and ECI will be absolved of responsibility under §640(c).
26. Vermont’s Workers’ Compensation Act is to be liberally construed to accomplish the
humane purpose for which it was passed; thus “no injured employee should be excluded
unless the law clearly intends such an exclusion . . . .” Herbert v. Layman, 125 Vt. 481,
485-86 (1966), quoted with approval in Montgomery v. Brinver Corp., 142 Vt. 461, 463
(1983). As the facts of this case show, were the prohibition against withholding wages
under §640(c) not imposed upon the current employer, Claimant would have no recourse
at all. Given the plain language of the statute, I cannot presume the Legislature intended
this result.
27. I conclude as a matter of law that Defendant’s workers’ compensation insurance carrier
cannot be held liable for reimbursing wages withheld from Claimant under §640(c), and
that Claimant’s claim for reimbursement lies, if at all, against his current employer.
13
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN
PART, as follows:
1. Summary judgment in Defendant’s favor is hereby GRANTED as to Claimant’s claim
for vocational rehabilitation services causally related to his June 2002 work injury;
2. Summary judgment in Defendant’s favor is hereby GRANTED as to Claimant’s claim
for workers’ compensation benefits causally related to his erectile dysfunction, but
DENIED as to Claimant’s claim for workers’ compensation benefits causally related to
pain during sexual activity; and
3. Summary judgment in Defendant’s favor is hereby GRANTED as to Claimant’s claim
for reimbursement under 21 V.S.A. §640(c).
DATED at Montpelier, Vermont this 17th day of March 2014.
___________________________
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.

Matthew Lavallee v. Michael Straight (August 27, 2014)

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

Matthew Lavallee v. Michael Straight (August 27, 2014)
R.L. Goodrich LLC
DEW Construction Corp and
Rynone Manufacturing Corp.
STATE OF VERMONT
DEPARTMENT OF LABOR
Matthew Lavallee Opinion No. 14-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Michael Straight,
R.L. Goodrich, LLC, For: Anne M. Noonan
DEW Construction Corp. and Commissioner
Rynone Manufacturing Corp.
State File No. FF-00310
RULING ON DEFENDANT DEW CONSTRUCTION CORPORATION’S MOTION FOR
SUMMARY JUDGMENT
APPEARANCES:
Frank Talbott, Esq., for Claimant
Corina Schafner-Fegard, Esq., for Defendant DEW Construction Corporation (“DEW”)
David Berman, Esq., for Defendant Rynone Manufacturing Corporation (“Rynone”)
ISSUE PRESENTED:
As a matter of law, is Defendant DEW shielded from liability as Claimant’s statutory employer
by virtue of Defendant Rynone’s status as an insured subcontractor?
EXHIBITS:
Defendant DEW’s Exhibit A: Rynone/DEW Purchase Order
Defendant DEW’s Exhibit B: Rynone Certificate of Insurance
Defendant DEW’s Exhibit C: R.L. Goodrich invoices
Defendant DEW’s Exhibit D: Interim order, May 14, 2014
Defendant DEW’s Exhibit E: Email correspondence between Rynone and R.L. Goodrich
Defendant DEW’s Exhibit F: Notarized letter from Kristin Fortin, May 20, 2014
Defendant DEW’s Exhibit G: Letter from Randy Goodrich, April 28, 2014
Defendant DEW’s Exhibit H: Employee’s Notice of Injury and Claim for Compensation
(Form 5), with attached affidavit of Matthew Lavallee
FINDINGS OF FACT:
2
Considering the evidence in the light most favorable to Defendant Rynone as the non-moving
party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:1
1. At all times relevant to this claim, DEW was the general contractor for the Riverhouse
Lot 7B Apartments project in Winooski, Vermont. DEW’s Exhibit A. The project
encompassed 72 units in a four-story building. DEW’s Exhibit G.
2. For the policy period April 1, 2013 to April 1, 2014 DEW maintained workers’
compensation insurance covering its operations in Vermont.2
3. On or about April 29, 2013 DEW entered into a written contract with Rynone for the
purchase, delivery and installation of millwork, countertops, sinks and mirrors at the
Riverhouse project. The scope of the work included providing the manpower necessary
to accomplish the countertop installation portion of the contract. Excluding sales tax but
including installation charges, the stated consideration for the contract was $165,142.36.
DEW’s Exhibits A and F.
4. For the policy period January 1, 2013 to January 1, 2014 Rynone maintained workers’
compensation insurance covering its operations in Vermont. DEW’s Exhibit B.
5. Rynone subcontracted with Defendant R.L. Goodrich, LLC (“Goodrich”) to install the
countertops and sinks at the Riverhouse project. Between July 8, 2013 and September
24, 2013 Goodrich presented Rynone with invoices totaling $34,698.65 for its work on
the project. DEW’s Exhibit C. Goodrich did not maintain workers’ compensation
insurance coverage at any time during this period. DEW’s Exhibit D.
6. Rynone assigned a project manager to the job, who directed the course of Goodrich’s
installation work on the Riverhouse project. DEW’s Exhibits E and F. DEW
communicated with the project manager as to progress, defective materials and changes.
The project manager was responsible for conveying this information to Goodrich and
ensuring that its on-site installers appropriately addressed DEW’s concerns. DEW’s
Exhibit F. At various times, the project manager communicated via email with both
DEW and Goodrich as to inquiries that each had of the other. DEW’s Exhibit E.
7. Goodrich hired Defendant Michael Straight (“Straight”) to assist with the countertop
installations at the Riverhouse project. Straight did not maintain workers’ compensation
insurance coverage during the time he assisted on the project. DEW’s Exhibits D and G.
1 As a preliminary matter, DEW objects to Rynone’s failure to comply with the requirements of Vermont Rule of
Civil Procedure 56(c) with respect to its response to DEW’s Statement of Undisputed Facts. In particular, Rynone
failed to provide “specific citations to particular parts of materials in the record” as to the facts it refused to fully
admit, as is required by V.R.C.P. 56(c)(1)(A) and/or (B). It also failed to comply with the requirements of V.R.C.P.
56(d) as to the facts it purportedly lacked sufficient knowledge or information either to admit or deny. With these
omissions in mind, for the purposes of the pending Motion and to the extent they are supported by the materials now
on record, I consider the facts stated in DEW’s Statement of Undisputed Facts Nos. 5, 7, 8, 9, 12 and 14 to be
undisputed. See V.R.C.P. 56(e)(2).
2 This is according to information reflected in NCCI’s Proof of Coverage Inquiry, a copy of which is contained in
the Department’s file relating to the pending claim.
3
8. Straight brought Claimant to the Riverhouse project to assist with the countertop
installations. DEW’s Exhibit D.
4
9. On or about August 5, 2013 Claimant injured his left hand while lifting a countertop at
the Riverhouse project. DEW’s Exhibit H. Randy Goodrich, Defendant Goodrich’s
principal, drove Claimant to the hospital for treatment. Based on comments Claimant
made during the ride, Mr. Goodrich came to believe that Claimant was Mr. Straight’s
friend and was merely helping him out for the day. From his own observation of
Claimant, Mr. Goodrich determined that he had little skill in the construction trade, and
likely would command a starting salary of $10.00 per hour. DEW’s Exhibit G. However,
in his affidavit Claimant stated that Mr. Straight had hired him to work a 40-hour work
week, promised to pay him at the rate of $20.00 per hour, and expected that the work
would continue full time for at least a month. DEW’s Exhibit H. From the evidence
presented, I am unable to resolve the discrepancies between these two statements, or even
to determine which is the most credible.
10. In October 2013 Claimant filed a Notice of Injury and Claim for Compensation (Form 5)
against Straight, in which he sought both lost time and medical benefits. DEW’s Exhibit
H. Upon learning that Straight lacked insurance coverage, the Department’s workers’
compensation specialist subsequently notified Goodrich, DEW and Rynone of their
potential liability for benefits under 21 V.S.A. §601(3).
11. On May 14, 2014 the Department’s workers’ compensation specialist issued an interim
order against DEW, directing it to pay medical benefits causally related to Claimant’s
August 5, 2013 injury. In fashioning the order, the specialist found that Defendant
Straight had hired Claimant as an employee, and also that neither Straight nor Goodrich,
the next subcontractor up the chain, had maintained workers’ compensation insurance
coverage. The specialist eliminated Rynone as a statutory employer on the grounds that
it “was simply the manufacturer of the solid surfaces that were to be installed . . . and
[was] only in the business of fabricating solid surface countertops and sinks.” She thus
concluded that DEW was the statutory employer responsible to pay benefits to Claimant.
DEW’s Exhibit D.
12. On July 14, 2014 the hearing officer granted DEW’s motion to stay the specialist’s
interim order as to payment for medical charges already incurred, but denied it as to
payment for medically necessary ongoing treatment causally related to Claimant’s
August 5, 2013 injury.
13. No evidence has been presented to suggest that DEW had any contractual relationship
germane to the pending workers’ compensation claim with Claimant, Goodrich or
Straight.
5
CONCLUSIONS OF LAW:
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. The legal issue posed by this claim arises under Vermont’s statutory employer provision,
21 V.S.A. §601(3). Where an injured worker’s direct employer is an uninsured
subcontractor, which of two insured contractors in the ascending order above it should be
tagged with responsibility for paying benefits in its stead? DEW asserts that as a matter
of law Rynone should, as it was the insured subcontractor closest in line to Goodrich, the
uninsured subcontractor whom it retained and who in turn retained Straight, the
uninsured direct employer.
3. Vermont’s workers’ compensation law defines the term “employer” to include so-called
“statutory” employers as well. Section 601(3) states as follows:
“Employer” includes . . . the owner or lessee of premises or other person
who is virtually the proprietor or operator of the business there carried on,
but who, by reason of there being an independent contractor or for any
other reason, is not the direct employer of the workers there employed.
4. The legislative purpose underlying this language is to impose liability upon an owner or
proprietor of a regular trade or business when it hires an uninsured independent
contractor to do what its direct employees otherwise would have done. Marcum v. State
of Vermont Agency of Human Services, 2012 VT 3, ¶8, citing King v. Snide, 144 Vt. 395,
400-01 (1984); see also Vella v. Hartford Vermont Acquisitions, Inc., 2003 VT 108, ¶7,
citing Edson v. State, 2003 VT 32, ¶6. Considered in its appropriate context, the
statutory employer concept provides essential support for the public policy compromise
embodied by the workers’ compensation law –employees relinquish their right to sue in
tort in the event of a work-related injury, in return for which employers secure insurance
to pay specified benefits regardless of fault. DeGray v. Miller Brothers Construction
Co., 106 Vt. 259, 276 (1934). Were the law otherwise, a business owner might avoid its
obligations by “purport[ing] to hire, as contractors, minions to carry out [its] own ‘regular
trade or business.’” Marcum, supra (citations omitted).
6
5. Construction employment settings often involve an ascending chain of subcontractors and
contractors. In such situations, the statutory employer concept is most logically applied
by imposing upon each contractor in the chain the responsibility for ensuring that its
immediate subcontractor has procured the required workers’ compensation insurance
coverage for its own employees. See, e.g., Sites Construction Co. v. Harbeson, 434
S.E.2d 1, 3 (Va. App. 1993); see also Minnaugh v. Topper & Griggs, Inc., 416 N.Y.S.2d
348, 349 (1979). The direct contractor is best positioned to insist on proof of such
coverage as a condition precedent to employing the subcontractor, knowing that it risks
liability under its own insurance policy if it fails to do so. And the more remote
contractor, by fulfilling its responsibility to employ an insured subcontractor, has thereby
secured protection for all of the employees on the jobsite, both direct and indirect. There
is no basis for imposing upon it responsibility for protecting the insured subcontractor as
well. After all, the Workers’ Compensation Act “is what its name implies – a
compensation act for work[ers], and not an act for the protection of subcontractors.”
Byrne v. Henry A. Hitner’s Sons Co., 138 A. 826, 827 (Pa. 1927); see also In re Van
Bibber’s Case, 179 N.E.2d 253, 257 (Mass. 1962) (purpose of statutory employer
provision is to make general contractor liable only to employees of an uninsured
subcontractor).
6. In the pending claim, the evidence is undisputed that both DEW and Rynone were
properly insured for workers’ compensation at the time Claimant was injured.
Furthermore, nowhere in its opposition to DEW’s summary judgment motion does
Rynone dispute, on either factual or legal grounds, its position as the insured contractor
closest to Goodrich and Straight, the uninsured subcontractors directly beneath it in the
chain. Instead, Rynone argues that summary judgment should be denied because genuine
issues of material fact exist regarding whether Claimant was working as Straight’s
employee at the time of his injury or merely volunteering his services for the day. See
Finding of Fact No. 9 supra.
7. I agree that the evidence is as yet inconclusive on this issue, and also that Claimant’s
entitlement to workers’ compensation benefits ultimately will depend on its resolution.
This will occur in the context of the formal hearing on the merits of Claimant’s claim,
however. The purpose of the pending motion is to determine which of two insured
defendants properly should be held responsible for defending that claim, and if
unsuccessful, for paying benefits accordingly. As to that determination, no genuine
issues of material fact exist. Accordingly, I conclude that Rynone’s objection on these
grounds is an insufficient basis for denying summary judgment.
8. Rynone also argues that dismissing DEW from the claim at this point would contravene
the purpose of Vermont’s Workers’ Compensation Act, that is, to protect injured workers
by ensuring that they are appropriately compensated in the event of a work-related injury.
To accomplish this result, Rynone advocates for a system whereby potentially
responsible employers, and their insurers, are all held primarily liable to the injured
worker. Rynone cites to the Vermont Supreme Court’s holding in Morrisseau v. Legac,
123 Vt. 70 (1962), as support for this position.
7
9. The claimant in Morrisseau was the widow of a worker who was killed in the course of
his employment for a construction subcontractor. Both the subcontractor and the general
contractor were insured for workers’ compensation. Following a formal hearing, the
commissioner prioritized the order in which the two contractors, and their respective
insurance carriers, were liable for the benefits owed, as follows: first, the subcontractor’s
insurer, and in the event of its default, the subcontractor, and in the event of the
subcontractor’s default, then the general contractor’s insurer, and in the event of that
insurer’s default, the general contractor. Id. at 72.
10. On appeal, the Supreme Court held that it was error for the commissioner to establish an
order in which the four defendants were to be held alternatively liable. Instead, it deemed
all of them primarily liable to the claimant. Citing the language in 21 V.S.A. §601(3) by
which the term “employer” is defined to “include[] its insurer so far as applicable,” the
Court first characterized the insurer’s liability as “more than that of an indemnitor; it is a
primary liability to an injured employee.” Id. at 76, citing DeGray, supra at 279; see also
21 V.S.A. §693 (granting injured employee option of proceeding directly against
employer’s insurer in pursuing any claim for benefits). As between the two sets of
employers and carriers, furthermore, the Court found no indication in the statute “that the
liability of any party, if once found to exist, is secondary to any other party’s liability.”
Thus, the Court concluded, “While the Commissioner should pass upon the primary
liability of the parties defendant, he is not required or authorized under the act to pass
upon the ultimate rights or liability as between carriers.” Id. at 78.
11. Underlying the Court’s holding in Morrisseau was its concern that an injured worker who
is clearly entitled to benefits not be made “a football” in a contest among multiple
defendants as to which of them bears the ultimate payment responsibility. Id.; see Labrie
v. LBJ’s Grocery, Opinion No. 29-02WC (July 10, 2002). In the years since Morrisseau
was decided, the statute has been amended to address this concern, however.
Specifically, 21 V.S.A. §662(c), enacted in 1984, now empowers the commissioner, in
cases “where payment of a compensable claim is refused on the basis that another
employer or insurer is liable,” to issue an interim order that one employer or insurer pay
benefits pending a formal hearing.
8
12. Here, the procedural history of the pending claim is somewhat confusing. As noted
above, Conclusion of Law No. 7 supra, given the factual issues surrounding Claimant’s
purported employee status, the compensability of his claim has not yet been finally
resolved. The workers’ compensation specialist concluded, albeit somewhat summarily,
that the evidence did not reasonably support a denial on those grounds, however. From
that point on, the posture of the dispute became one between the two insured employers.
The specialist’s decision to issue an interim order against DEW rather than Rynone is
appropriately before me now for a final administrative determination.3 I conclude as a
matter of law that it was error for her to do so. Rather, as the insured employer closest in
line to Claimant’s purported direct employer, who was uninsured, Rynone bears
responsibility for defending the claim and, if unsuccessful, paying benefits.
ORDER:
1. Summary judgment in favor of Defendant DEW Construction Corp. is hereby
GRANTED.
2. Claimant’s claim against Defendant DEW Construction Corp. is hereby DISMISSED
WITHOUT PREJUDICE. In the unlikely event that Defendant Rynone Manufacturing
Corp. ultimately is determined, by a court or tribunal with appropriate jurisdiction, to
have been an uninsured employer during the period relevant to Claimant’s claim,
Claimant shall have the right to renew his claim against Defendant DEW Construction
Corp.
3. Defendant Rynone Manufacturing Corp. is hereby ORDERED to reimburse Defendant
DEW Construction Corp. for any and all payments made pursuant to the Department’s
May 14, 2014 interim order, and pending a formal hearing on the merits of Claimant’s
claim for workers’ compensation benefits, to pay for medically necessary ongoing
treatment causally related to his August 5, 2013 injury.
DATED at Montpelier, Vermont this 27th day of August 2014.
_______________________
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.
3 Rynone asserts that DEW’s summary judgment motion amounts essentially to a renewed motion to stay the
specialist’s interim order against it, and that it should be required instead to defend at formal hearing. This argument
misses the mark. Contrary to Rynone’s assertions, the Commissioner is indeed empowered to consider the same
evidence upon which the specialist based her interim order and reach an opposite conclusion. Where, as here, the
specialist’s determination was grounded in an erroneous application of the law to the undisputed facts, summary
judgment is the appropriate vehicle for doing so.

Scott Myrick v. Ormond Bushey & Sons (April 24, 2014)

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

Scott Myrick v. Ormond Bushey & Sons (April 24, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Scott Myrick Opinion No. 07-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Ormond Bushey & Sons
For: Anne M. Noonan
Commissioner
State File No. Z-01465
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES PRESENTED:1
1. Is Defendant obligated to reimburse Claimant for various medical charges he paid
directly to Dr. Bucksbaum?
2. Is Defendant obligated to pay interest and/or penalties referable to its late
payment of Dr. Bucksbaum’s medical charges?
3. Is Defendant obligated to reimburse Claimant for monies he paid to an unlicensed
provider who failed to properly bill for or substantiate the treatment rendered?
4. Does Defendant owe additional mileage reimbursement referable to Claimant’s
travel for medical treatment causally related to his compensable work injury?
1 Defendant initially sought summary judgment as to Claimant’s claim for wage replacement benefits under 21
V.S.A. §650(c) for time spent attending medical appointments necessitated by his injury. Claimant has now
acknowledged that as he was not employed at the time of these appointments, he has “no viable lost wage claim.”
Therefore, I consider this claim withdrawn.
2
EXHIBITS:
Claimant’s Exhibit 1: Letter from Attorney McVeigh to Attorney Wright, October 13,
2010
Claimant’s Exhibit 2: Letters from Attorney McVeigh with attached cancelled checks,
statement and Affidavit of Scott Myrick
Defendant’s Exhibit 1: Opinion and Order, Myrick v. Ormond Bushey & Sons, Opinion
No. 31-10WC (October 5, 2010)
Defendant’s Exhibit 2: Dr. Bucksbaum medical bills, 06/08/2010 – 07/12/2011
Defendant’s Exhibit 3: Payment spreadsheet
Defendant’s Exhibit 4: Formal hearing referral memorandum, 7/10/13
Defendant’s Exhibit 5: State of Vermont Board of Chiropractic, Default Order, In re
Elmer Sweetland, Docket No. CH 04-0105, with attached
Specification of Charges
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving party, see,
e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. At 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. Claimant suffered a compensable work-related injury on November 8, 2006. Following a
formal hearing, on October 5, 2010 Defendant was ordered to pay workers’ compensation
benefits accordingly. Myrick v. Ormond Bushey & Sons, Opinion No. 31-10WC
(October 5, 2010).
3. Claimant paid a total of $814.00 for medical treatment provided by Dr. Bucksbaum on
two occasions – June 8, 2010 and July 8, 2010 – in accordance with Dr. Bucksbaum’s
billing for those dates. Shortly after the decision referenced above issued, by letter dated
October 13, 2010 he requested that Defendant reimburse him for those payments, but
Defendant did not do so.
4. In all, Dr. Bucksbaum billed a total of $3,210.00 for medical treatments rendered
between June 8, 2010 and July 12, 2011. Consistent with the Commissioner’s October 5,
2010 Opinion and Order, to the extent these treatments were both causally related to the
work injury and medically necessary, Defendant was obligated to pay for them.
5. On or about May 10, 2012 Defendant issued payment in the amount of $2,869.06 to Dr.
Bucksbaum for the above dates of service, including the two dates of service (June 8th
and July 8, 2010) that Claimant previously had paid directly. The difference between the
amount paid and the amounts billed likely represented reductions taken upon application
of the medical fee schedule, Workers’ Compensation Rule 40.
3
6. The record does not reflect when Defendant first received the billings upon which its
May 10, 2012 payment to Dr. Bucksbaum was based. Neither Defendant’s identity nor
the identity of its workers’ compensation insurance carrier is reflected on the bills. In
addition, on each of the bills the “No” box is checked in response to the question, “Is
patient’s condition related to employment?”
7. Defendant has paid Claimant a total of $1,654.32 as reimbursement for various mileage,
meals and lodging expenses he claimed were due, in accordance with an interim order
issued by the Department’s specialist on July 10, 2013. The amount paid included
interest and penalties as specified in the interim order.
8. Consistent with the specialist’s interim order, the mileage expenses that Defendant paid
were calculated after deducting Claimant’s normal commute distance to and from his
workplace, see Workers’ Compensation Rule 12.2000, which at the time of his injury was
70.2 miles. At the time these mileage expenses were incurred, Claimant was neither
employed nor receiving temporary total disability benefits.
9. When Claimant began treating with Dr. Bucksbaum, his mileage to and from Dr.
Bucksbaum’s Rutland, Vermont office totaled 80.4 miles. At some point, Dr.
Bucksbaum relocated his practice from Rutland to Maine. The record does not clearly
reflect the mileage to and from Dr. Bucksbaum’s Maine office, though based on the
specialist’s interim order it appears to have been in excess of 600 miles round-trip.
10. Claimant underwent chiropractic adjustments with Monk Sweetland, an unlicensed
chiropractor, on November 8th, November 22nd and December 15th, 2008 and on February
16th, 2009. Dr. Sweetland’s chiropractic license previously had expired on September 30,
2004. Subsequently, the State of Vermont Board of Chiropractic revoked the license,
effective September 8, 2005, on the grounds that Dr. Sweetland had engaged in
unprofessional conduct. Among the allegations accepted as true in the revocation order
were that he had failed to maintain patient medical records, continued to treat patients
after his license lapsed and adjusted animals in his practice without first obtaining a
veterinary referral.
11. Claimant paid Dr. Sweetland a total of $180.00 for the treatments rendered on the above
dates, in accordance with a billing statement entitled “Monk’s Place.” Beneath the title
the word “Consultant” appears. Beneath that is the phrase, “Common sense solutions to
everyday problems” and beneath that, “Help when you need it.” Aside from the dates of
service, amounts charged and a two-word illegible notation, the billing statement does not
reflect either the diagnosis or the specific treatments provided.
4
CONCLUSIONS OF LAW:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when
the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137
Vt. 425 (1979).
2. Defendant here seeks summary judgment in its favor as to whether it is obligated to
reimburse Claimant for the following expenses:
· $814.00 for treatment with Dr. Bucksbaum on June 8th and July 8th, 2010;
· $180.00 for treatment with Dr. Sweetland from November 8th, 2008 through
February 16th, 2009; and
· Additional mileage for treatment-related travel to and from Dr. Bucksbaum’s
Maine office, representing the amounts deducted from previous reimbursements
in consideration of Claimant’s normal commute distance to and from work.
Procedural Issues
(a) Constitutionality of Summary Judgment in Workers’ Compensation Proceedings
3. As his first argument in opposition to Defendant’s motion, Claimant asserts that summary
judgment in the context of Vermont’s workers’ compensation statute should be limited
solely to consideration of issues that are based “entirely upon a question of law,” and not
those that require determination of a “factual legal issue.” He argues that because the
statute, 21 V.S.A. §670, allows for a de novo appeal of the commissioner’s decision to
the superior court, for the commissioner to rule as a matter of law that no genuine issue of
material fact exists in effect deprives the opposing party of its constitutional right to a
jury trial.
4. The commissioner’s authority to determine the amount of compensation due under the
Workers’ Compensation Act by way of a formal hearing derives directly from the statute,
21 V.S.A. §§606, 663 and 664. The Vermont Rules of Civil Procedure are applicable to
formal hearings “insofar as they do not defeat the informal nature of the hearing.”
Workers’ Compensation Rule 7.1000. In accordance with this rule, the commissioner has
at times applied the summary judgment procedure, V.R.C.P. 56, as a means of
adjudicating contested claims. This includes both claims in which purely legal issues are
decided, see, e.g., Yustin v. State of Vermont Department of Public Safety, Opinion No.
27-09WC (July 17, 2009), aff’d 2011 VT 20, and those in which no genuine issue of
5
material fact are found to exist, see, e.g., Hathaway v. S.T. Griswold & Co., Opinion No.
04-14WC (March 17, 2014).
5. The Vermont Supreme Court has upheld the constitutionality of summary judgment as a
mechanism for disposing of issues, claims and defenses that do not merit a full trial. In
re Deer View LLC Subdivision Permit, 2009 VT 20, ¶3; Gore v. Green Mountain Lakes,
Inc., 140 Vt. 262, 264 (1981). The function of summary judgment is to avoid a useless
trial, that is, one where there is no genuine issue as to any material fact. Sykas v. Kearns,
135 Vt. 610, 612 (1978). Summary judgment does not entail a trial of the underlying
merits of a case. “Rather, it resolves the question whether the party opposed to the
motion can demonstrate that [it] has evidence sufficient to create an issue.” Tierney v.
Tierney, 131 Vt. 48, 51-52 (1973).
6. As these well-settled principles establish, the line Claimant seeks to draw – between
summary judgment as to a purely legal issue and summary judgment as to a “factual legal
issue” – is a distinction without a difference. In both cases, the losing party lacks the
facts necessary to establish a prima facie case, such that judgment “as a matter of law” is
appropriate. Ross v. Times Mirror, Inc., 164 Vt. 13 (1995).
7. Claimant here argues that because the workers’ compensation statute allows for a de novo
appeal to the superior court on issues of fact, somehow that excuses him from having to
present sufficient evidence to overcome summary judgment at the formal hearing stage.
The commissioner’s vital role in the dispute resolution process is not so easily dismissed,
however. The Supreme Court has repeatedly acknowledged the deference due the
commissioner’s initial interpretation and application of the workers’ compensation
statute, having been entrusted by the Legislature with its administration. See, e.g., Cyr v.
McDermott’s, 2008 VT 106, ¶7; Travelers Indemnity Co. v. Wallis, 2003 VT 103, ¶14;
Wood v. Fletcher Allen Health Care, 169 Vt. 419, 422 (1999). As the Court specifically
has noted, “This is true notwithstanding the fact that the workers’ compensation statutes
authorize a trial de novo in superior court.” Letourneau v. A.N. Deringer/WAUSAU
Insurance Co., 2008 VT 106, ¶8.
8. Indeed, recognizing the commissioner’s primary jurisdiction over the adjudication of
disputes, whether factual or legal, arising under the Workers’ Compensation Act,
Travelers Indemnity Co., supra, the statute, 21 V.S.A. §671, requires that even a de novo
appeal to superior court must be based solely on questions certified to it by the
commissioner. Issues not first considered at the formal hearing stage will not be
certified, and therefore are not ripe for consideration on appeal. See, Morrisseau v.
Legac, 123 Vt. 70, 73 (1962) (applying same statutory language in context of supreme
court appeal).
9. I conclude that the commissioner’s use of summary judgment as a mechanism for ruling
as a matter of law that a party lacks the evidence necessary to present a genuine issue of
material fact is an appropriate use of the authority granted by the workers’ compensation
statute, one which does not deprive the losing party of its constitutional right to a jury
trial in any respect.
6
(b) Admissibility of Hearsay-Based Spreadsheet
10. As a second procedural issue, Claimant asserts that because the spreadsheet (Defendant’s
Exhibit 3) that Defendant submitted to establish its payment of Dr. Bucksbaum’s
outstanding bills is based on unauthenticated hearsay, it should not be considered in
support of its motion for summary judgment. In making this argument, Claimant does
not suggest that the document contains any factual errors or misrepresentations,
intentional or otherwise. Rather, he objects to the spreadsheet as a matter of “form and
substance.”
11. As is the case with the rules of civil procedure, the Vermont Rules of Evidence are
applicable to formal hearings, but only “insofar as they do not defeat the informal nature
of the hearing.” Workers’ Compensation Rule 7.1000. Hearsay is admissible “provided
that it is of a type commonly relied upon by prudent people in the conduct of their affairs,
conforms to the requirements of [Rule 7.1000], and the opposing party has had sufficient
notice of it to verify its accuracy.” Workers’ Compensation Rule 7.1010.
12. Aside from his general characterization of Defendant’s spreadsheet as “inadmissible
hearsay,” Claimant has not asserted any grounds for disqualifying the evidence in
accordance with the factors listed in Rule 7.1010. In keeping with the informal nature of
workers’ compensation proceedings before the commissioner, and without any allegation
that the exhibit contains false, misleading or erroneous information, I conclude that it is
admissible.
Defendant’s Obligation to Reimburse Claimant for Monies Paid to Dr. Bucksbaum
13. Defendant seeks summary judgment in its favor as to its obligation to reimburse Claimant
for two bills, totaling $814.00, which he paid directly to Dr. Bucksbaum for medical
treatment causally related to his work injury. Some two years later, Defendant issued
payment to Dr. Bucksbaum to cover all of his billings, including the two bills Claimant
previously had paid. In doing so, Defendant ignored at least one prior notification from
Claimant, in which he identified both the service provided and the amount paid, and
requested prompt reimbursement.
14. Defendant has made no attempt to explain why it failed to respond to Claimant’s request.
Instead, it seeks to shift the blame to Dr. Bucksbaum, for having accepted what amounted
to double payment for the two bills without subsequently issuing a refund to Claimant.
Defendant cites no legal theory in support of its position. Nor can I discern support from
the statute.
7
15. Section 640a(a) of the workers’ compensation statute requires that within 30 days after
receiving a bill from a health care provider, an employer must either “pay or reimburse
the bill,” 21 V.S.A. §640a(a)(1) (emphasis added), or give written notice that it is
contesting or denying it. 21 V.S.A. §640a(a)(2). It is reasonable to infer from the
italicized language that the Legislature contemplated the exact situation presented here –
that the injured worker, or perhaps a group health insurer, will already have paid the bill,
such that reimbursement to someone other than the provider itself will have to be made.
If, as may have been the case here, the bill is submitted without sufficient information to
determine its compensability, the employer has an affirmative obligation to promptly
request whatever additional records or reports are necessary. 21 V.S.A. §640a(a)(2).
16. The undisputed evidence here establishes that Defendant was aware of Claimant’s claim
for reimbursement at least as of October 13, 2010. However, the record does not reflect
what steps, if any, it took subsequently to request additional information, whether from
Claimant or directly from Dr. Bucksbaum. If it took appropriate action and received no
response, its obligation to pay or reimburse may have expired, see 21 V.S.A. §640a(f). If
it took no action, it likely remains responsible even today. In either event, for so long as
the question remains unresolved summary judgment in Defendant’s favor is not
appropriate.
17. I conclude that genuine issues of material fact exist as to Defendant’s obligation to
reimburse Claimant a total of $814.00, representing payment for treatment he received
from Dr. Bucksbaum on June 8th and July 8th, 2010. Therefore, it is not entitled to
summary judgment on this issue.
Defendant’s Obligation to Pay Interest and Penalties to Dr. Bucksbaum
18. In his Opposition to Defendant’s Motion, Claimant requests that Defendant be ordered to
pay interest and penalties to Dr. Bucksbaum on account of its delayed payment of his
treatment-related charges between June 8, 2010 and July 12, 2011. Procedurally, as
Defendant has not sought summary judgment on this issue Claimant has chosen the
wrong context in which to raise it. Even if it was appropriately raised, the evidence is
insufficient at this point to support such an order.
19. The undisputed evidence clearly documents a significant delay between the treatment
dates, which ranged from June 8, 2010 through July 12, 2011, and the date when payment
was issued, May 10, 2012. However, the record does not establish when Defendant first
received both the bills and the supporting medical records, which would have been the
trigger for determining when payment was due under §640a. Without this information, I
cannot calculate whether the payment was late, and therefore I cannot assess either
interest or penalties.
8
Defendant’s Obligation to Reimburse Claimant for Monies Paid to Dr. Sweetland
20. Defendant seeks summary judgment in its favor as to its obligation to reimburse Claimant
a total of $180.00, representing payment for four treatments he received from Dr.
Sweetland between November 8, 2008 and February 16, 2009. It asserts that because Dr.
Sweetland was not a licensed health care provider at the time he rendered treatment, and
also because he failed to document his charges appropriately, as a matter of law he is not
entitled to payment under the statute.
21. The statute requires an employer to pay for “reasonable . . . medical . . . services”
necessitated by a compensable injury. 21 V.S.A. §640(a). It is logical to infer that only
lawfully delivered medical services are covered by this mandate. Otherwise, it would be
difficult to ensure that the treatment provided meets the appropriate standards of care and
quality. For this reason, where the statute elsewhere references health care providers, for
example in §§640(b) (allowing employer or employee to designate a “treating health care
provider”) and 640a (establishing procedure for reviewing and paying “health care
provider” bills), it defines the term to mean a practitioner who is “licensed or certified or
authorized by law to provide professional health care service to an individual . . ..” 21
V.S.A. §601(22).
22. A practitioner who is not required to be licensed or certified under Vermont law can
lawfully provide treatment, and therefore an employer may still be responsible under
§640(a) for paying the charges related thereto.2 V.O. v. Windsor Hospital, Opinion No.
12-08WC (March 27, 2008). But where Vermont law requires that only a licensed or
certified practitioner can provide a particular type of medical service, such that treatment
rendered by an unlicensed provider is unlawful, I must consider it to be unreasonable as
well, and therefore not covered under §640(a).
23. The undisputed evidence here establishes that Dr. Sweetland was not licensed to practice
chiropractic medicine at the time that he provided treatment to Claimant, as is required
under Vermont law, 26 V.S.A. §522(a). That in itself disqualifies him from receiving
payment under §640(a). That he also failed either to maintain treatment records or to
submit appropriately documented and coded medical bills, as is required under §§640a(f)
and (g), further disqualifies him.
24. Claimant argues that Defendant should be obligated to reimburse him nonetheless,
because he was unaware that Dr. Sweetland was not licensed and consequently paid for
the services he received “in good faith.” The statute does not allow for any such
exception, and strong policy considerations weigh against it. The fact is, by providing
treatment without a license, Dr. Sweetland put Claimant’s safety and health at risk. That
Claimant paid his bill without recognizing the danger is unfortunate, but it is not a
consequence I properly can lay at Defendant’s feet.
2 For example, massage therapists are not required to be licensed under Vermont law; their charges are routinely
covered under §640(a).
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25. I conclude that because Dr. Sweetland was not licensed to practice chiropractic medicine
at the time he treated Claimant, as a matter of law the services he provided are not
covered under the workers’ compensation statute. For this reason, and also because Dr.
Sweetland failed either to maintain treatment records or to submit appropriately
documented medical bills, I conclude as a matter of law that Defendant is not obligated to
pay his charges, either directly or by way of reimbursement to Claimant.
Defendant’s Obligation to Reimburse Claimant for his “Normal Commute Distance” Mileage
Expenses
26. Defendant seeks summary judgment in its favor as to whether it is obligated to include
Claimant’s normal commute mileage to and from work as part of the mileage
reimbursement due him, under Workers’ Compensation Rule 12.2100, for his treatmentrelated
travel to and from Dr. Bucksbaum’s Maine office. As Claimant was neither
employed nor receiving temporary total disability benefits at the time of these excursions,
he contends that the “normal commute distance” deduction should not have applied.
27. Under Rule 12.2100, an injured worker who is required to travel for treatment of a
compensable injury is entitled to reimbursement for mileage “beyond the distance
normally traveled to the workplace.” The purpose of the rule is to make the worker
whole, by providing compensation for expenses that he or she would not have incurred
but for the work injury. At the same time, the rule is phrased so as to deny
reimbursement for regular commuting expenses that presumably the worker would have
had to bear even had there been no injury. Fosher v. Fletcher Allen Health Care,
Opinion No. 11-11WC (May 5, 2011).
28. Although often not specifically authorized by statute, most jurisdictions consider
treatment-related transportation expenses, whether local or distant, to be included as part
of an employer’s obligation to provide medical benefits to an injured worker. See
generally, 5 Lex K. Larson, Larson’s Workers’ Compensation §94.03[2] (Matthew
Bender, Rev. Ed.) and cases cited therein. As Vermont’s statute is silent on the issue,
Rule 12.2100 was promulgated with that interpretation in mind. Both the language and
the purpose of the rule are clear, and do not allow for the exception Claimant favors.
29. I conclude as a matter of law that Defendant appropriately deducted the mileage referable
to Claimant’s normal commute distance to and from work from the reimbursement due
him on account of his treatment-related travel to and from Dr. Bucksbaum’s Maine
office.3 Summary judgment in its favor is appropriate, therefore.
3 As further support for its summary judgment claim, Defendant argues that it should be excused from paying
additional mileage related to Claimant’s travel to and from Dr. Bucksbaum’s Maine office because he likely could
have obtained the same treatment from another, more locally situated provider. Having concluded as a matter of law
that Rule 12.2100 does not permit the interpretation for which Claimant advocates, I need not reach this argument.
In any event, the proper context for Defendant to have raised this defense would have been with respect to its
obligation to pay Dr. Bucksbaum’s charges themselves, not the mileage charges to and from his office.
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ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN
PART, as follows:
1. Summary judgment in Defendant’s favor is hereby DENIED as to its obligation to
reimburse Claimant in the amount of $814.00, representing payment for treatment he
received from Dr. Bucksbaum on June 8th and July 8th, 2010;
2. Summary judgment in Defendant’s favor is hereby GRANTED as to its obligation to
reimburse Claimant in the amount of $180.00, representing payment for treatments he
received from Dr. Sweetland between November 8, 2008 and February 16, 2009;
3. Summary judgment in Defendant’s favor is hereby GRANTED as to its obligation to
include Claimant’s normal commute mileage to and from work as part of the
reimbursement due him for his treatment-related travel to and from Dr. Bucksbaum’s
Maine office.
DATED at Montpelier, Vermont this 24th day of April 2014.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

David Yustin v. State of Vermont, Dept. of Public Safety (July 17, 2009)

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

David Yustin v. State of Vermont, Dept. of Public Safety (July 17, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
David Yustin Opinion No. 27-09WC
By: Phyllis Phillips, Esq.
v. Hearing Officer
State of Vermont For: Patricia Moulton Powden
Department of Public Safety Commissioner
State File No. Y-03484
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
ATTORNEYS:
Chris McVeigh, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES:
1. Was it proper for Defendant to offset the sick leave wages it paid to Claimant during his period of temporary total disability from the workers’ compensation benefits it later was ordered to pay for the same period?
2. Was it proper for Defendant to reimburse Claimant’s medical providers directly for their charges relating to his work injury?
3. Does Defendant owe interest on Claimant’s temporary disability benefits?
FINDINGS OF FACT:
The following facts are undisputed:
1. Claimant is a Vermont State Trooper. On June 12, 2006 he injured his left shoulder while working out at the Rutland County Sheriff’s gym in preparation for a physical fitness exam.
2. Defendant initially denied Claimant’s claim for workers’ compensation benefits causally related to this injury as not having arisen out of and in the course of his employment.
3. While the claim was being contested, Claimant used previously accumulated sick leave to pay for his lost time from work and his employer-provided health insurance to pay for his medical treatment.
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4. The State of Vermont Personnel Policy and Procedures Manual states as follows with respect to workers’ compensation claims that are filed but not yet approved as compensable by its Risk Management Workers’ Compensation Division:
Days lost during the pay period of injury should be coded on time reports as sick leave. Employees who do not have enough sick leave accrued to cover their lost time may report lost days as annual leave, if they have any accumulated. Any sick or annual leave used for this injury will be reimbursed to the employee if the claim is approved for Workers’ Compensation indemnity, subject to the waiting periods outlined above.
5. On March 24, 2008 the parties participated in an informal conference, following which Workers’ Compensation Specialist Anne Coutermarsh issued an interim order that provided, in relevant part:
Therefore, Risk Management is hereby ORDERED pursuant to 21 V.S.A. §662(b) to pay temporary total disability benefits for the period of 1/8/07 through 5/7/07, all related medical benefits as well as [any] permanency that may be due for the 6/12/06 work-related left shoulder injury, as required pursuant to 21 V.S.A. §640(a).
6. Defendant did not seek a formal hearing following the issuance of the interim order. Instead, on April 7, 2008 it took the following actions:
(a) Defendant’s adjuster requested that the State Finance Office reinstate the sick leave Claimant had used to pay for his period of temporary total disability from January 8, 2007 through May 7, 2007;
(b) Defendant also made the appropriate adjustments to reverse all federal and state income tax withholdings, Social Security and Medicare tax payments and retirement deductions that had been associated with the sick leave wages it had paid Claimant during his period of temporary total disability.
7. On April 8, 2008 Defendant’s adjuster notified Claimant’s attorney that she had “forwarded [Claimant’s] wage reinstatement to payroll yesterday (4/7/08).” She asked Claimant’s attorney to “[p]lease let me know if [Claimant] has any questions with the reinstatement of time used related to this injury, the changes should be reflected in his next payroll cycle.”
8. Shortly thereafter, Claimant’s sick leave account was credited for all leave taken during the period covered by the March 24th interim order.
9. Beginning on May 8, 2008 Defendant reimbursed Claimant’s health care providers for all medical benefits related to this claim.
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10. Following independent medical evaluations by both parties, Claimant was determined to have a permanent impairment to his shoulder that was less than that relating to a prior work injury to the same body part, such that no additional permanent partial disability benefits were due.
11. On August 21, 2008 the parties participated in another informal conference, following which Specialist Coutermarsh indicated her agreement with Defendant’s methodology in offsetting from the temporary disability benefits owed Claimant the amounts paid to him as sick time during his disability.
12. Defendant is self-insured for both workers’ compensation and health coverage for its employees.
13. If Claimant’s temporary total disability benefits were paid in cash, they would total $16,558.00. Defendant paid a total of approximately $22,000.00 in medical benefits associated with Claimant’s June 12, 2006 shoulder injury.
14. If calculated from May 7, 2007 through April 18, 2008, the interest due on Claimant’s temporary total disability benefits would total $1,882.24.
15. Claimant’s fee agreement with his attorney obligated him to pay one-third of any recovery, including retroactive temporary total disability benefits, as part of the contingency fee for representation.1
DISCUSSION:
1. Summary judgment is proper when “there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, after giving the benefit of all reasonable doubts and inferences to the opposing party.” State v. Delaney, 157 Vt. 247, 252 (1991). To prevail on a motion for summary judgment, the facts must be “clear, undisputed or unrefuted.” State v. Heritage Realty of Vermont, 137 Vt. 425 (1979); A.M. v. Laraway Youth and Family Services, Opinion No. 43-08WC (October 30, 2008).
2. The issues raised by Defendant’s motion for summary judgment concern a self-insured employer’s rights and responsibilities in situations where an employee draws sick leave wages and utilizes group health insurance coverage while his or her workers’ compensation claim is being disputed. Once the claim is determined to be compensable, is the employer entitled to offset the sick leave wages it paid from the temporary total disability benefits it now owes? And can it reimburse the employee’s medical providers directly for his injury-related medical expenses or must it pay those monies first to the employee? The answer is yes to both.
1 Though noting that Claimant failed to produced a copy of his fee agreement, Defendant admits that this fact is “likely true.”
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Offset for Sick Leave Wages Paid During Period of Temporary Total Disability
3. As noted above, Defendant’s Personnel Policy and Procedures Manual provides that an employee who draws time from his or her sick or annual leave bank pending review of a work-related injury claim “will be reimbursed” the time if the claim ultimately is approved. Claimant cites no reason why he should not be bound by this directive, and in fact, there is legal precedent for its binding effect. See Benoir v. Ethan Allen, 147 Vt. 268 (1986) (employee handbook constitutes part of a binding and enforceable contract between employee and employer).
4. Implicit in this directive is that the employee cannot recoup the leave time he or she took without also repaying the leave wages he or she received; otherwise he or she would be receiving compensation above and beyond what the parties had contracted for in their employment agreement.
5. I find that it was proper for Defendant to recoup the leave wages Claimant owed by offsetting them against the workers’ compensation benefits it was ordered to pay for the same period. Such a procedure equitably balances the parties’ competing interests – the employee’s interest in having access to an alternate source of wages pending resolution of a disputed workers’ compensation claim, and the employer’s interest in being reimbursed expeditiously once its workers’ compensation obligation has been determined. Courts that have considered the issue have reached the same conclusion. Morgan v. New York State Developmental Center, 563 N.Y.S.2d 125 (NY 1990); Lowell v. Metropolitan Government, 696 S.W.2d 2 (Tenn. 1985), citing Allen v. Consolidated Aluminum Co., 688 S.W.2d 64 (Tenn. 1985); Moss v. City of Philadelphia, 228 A.2d 47 (Pa. Super. 1967).
6. My conclusion is limited to the narrow factual circumstances presented by this claim, however. It allows an offset only for leave wages paid during the same period for which temporary disability benefits also are determined to be due. In that context, the wages paid are akin to an advancement of workers’ compensation benefits, see Morgan, supra, and therefore the offset is both practical and fair. My ruling should not be interpreted to give the employer the right to offset other, unrelated debts that an employee might owe. Doing so would violate the statutory prohibition against either assigning workers’ compensation claims or making them subject to creditors’ claims. 21 V.S.A. §681.
7. My ruling also is limited to situations where the employer is self-insured for workers’ compensation. In that context, both the leave wages to be offset and the workers’ compensation benefits to be paid derive from the same source.2 Whether a different conclusion might be warranted in the case of an insured employer, because the leave wages have been paid from one source and the workers’ compensation benefits are to be paid from another source, is not for me to decide now.
2 Claimant makes much of the fact that the governmental entity for which he worked, the Department of Public Safety, is distinct from the governmental entity responsible for adjusting his workers’ compensation claim, the Risk Management Division. The distinction is irrelevant. Claimant’s employer is the State of Vermont. The fact that responsibility for different aspects of his employment relationship has been assigned to different governmental entities does not alter that reality in any respect.
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Direct Reimbursement of Medical Providers
8. I find that it was proper for Defendant to reimburse Claimant’s medical providers directly for their treatment of his work-related injury rather than to funnel those monies first through Claimant. The statute obligates an employer “to furnish” medical services to an injured worker, 21 V.S.A. §640(a), not to reimburse him or her for the cost of such services. Pokorny v. Getta’s Garage, 594 A.2d 446, 455 (Conn. 1991) (interpreting similar language). As such, it relieves the employee of all responsibility for medical bills and creates instead a direct relationship solely between the employer and the medical provider. Id. Claimant has no right to inject himself as an intermediary between the two. Avdibegovic v. University of Vermont, Opinion No. 06-09WC (February 23, 2009) (claimant has no role in determining amount self-insured employer is obligated to pay to reimburse group health insurance carrier for covering medical bills relating to work injury).
Interest on Temporary Disability Benefits
9. Having found that Defendant appropriately offset the amount it had paid Claimant in sick leave wages from the amount it owed him in temporary disability benefits, Claimant’s claim for interest on the latter amount must fail. Defendant having advanced those benefits to him by paying him sick leave wages during the period of his disability, Claimant was not, as he argues, “deprived [of their] use” in any material respect. Once ordered to pay workers’ compensation benefits, furthermore, Defendant promptly reimbursed Claimant’s sick leave bank and made the appropriate adjustments to his tax withholding and retirement accounts as well. There is neither an equitable nor a legal basis for assessing interest, therefore.
ORDER:
There being no genuine issues of material fact, Defendant is entitled to judgment in its favor as a matter of law. Defendant’s Motion for Summary Judgment is hereby GRANTED.
DATED at Montpelier, Vermont this 17th day of July 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.

T. S. v. State of Vermont, Agency of Transportation (November 12, 2008)

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

T. S. v. State of Vermont, Agency of Transportation (November 12, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
T. S. Opinion No. 45-08WC
v. By: Phyllis G. Phillips, Esq.,
Hearing Officer
State of Vermont
Agency of Transportation For: Patricia Moulton Powden,
Commissioner
State File No. X-06039
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant entitled to judgment as a matter of law on the question whether Claimant has reached an end medical result?
FINDINGS OF FACT:
The following facts are undisputed:
1. On May 23, 2006 Claimant had been an eighteen-year employee of the State of Vermont, then working for the Mapping Division of the Agency of Transportation. While at work on that day, Claimant was knocked to the ground when a visitor to her office inadvertently stepped backward into her path.
2. Claimant was transported to the hospital complaining of low back and increased right leg pain.
3. Claimant attempted to return to work on June 27, 2006 but fell again and was unable to continue.
4. Defendant accepted both the May 23, 2006 and June 27, 2006 falls as involving compensable injuries and began paying workers’ compensation benefits accordingly.
5. Claimant has a prior medical history of chronic pain disorder focused in the low back, hip and right leg relating to a snowmobile accident in 1991. Several treatment providers noted non-physiological components to Claimant’s examinations following that accident, and psychological factors were found to be significant.
2
6. At Defendant’s request, on July 27, 2006 Claimant underwent an independent medical evaluation with Dr. Verne Backus. Dr. Backus stated his diagnosis as follows:
Chronic low back and right sciatica by history. Illness behavior (e.g. symptom magnification behavior) was severe.
. . .
Her current presentation is best described by a Pain Disorder.
7. As to causation, Dr. Backus stated:
Based on the available information, to a reasonable degree of medical certainty, the primary diagnosis was only a temporary exacerbation of her pre-existing condition. She has a well-established history of chronic pain disorder focused in the low back to SI and hip to right leg for many years that has been progressing in subjective symptoms over the last year without any evidence of progressive signs.
There was no objective evidence of an injury on any of the diagnostic studies and, in this examiner’s opinion, the falls at work were limited to soft tissue injuries that healed within 2-3 weeks maximum each time with subjective symptoms beyond that being only manifestations of her pre-existing pain disorder.
8. As to end medical result, Dr. Backus stated:
Maximum medical improvement has been reached at this time being one month from her second fall at work, which is more than enough time for her soft tissue injuries to have healed. It is difficult to see this given the superimposed pain disorder, but that is characteristic of that condition.
9. As to work capacity, Dr. Backus stated:
Based on the analysis of this case Ms. Southworth has no restrictions that are directly related to her work injuries. However, I would not recommend she return to work but rather stay on short-term disability until her pain syndrome is addressed, as discussed below.
10. Last, as to further treatment recommendations, Dr. Backus stated:
Based on a careful review of the clinical issues with this case, to a reasonable degree of medical certainty, no further medical care, surgical interventions or physical therapy is required that is directly related to her work injuries. In order for her to return to work, however, unrelated to her work injuries I agree an IDE at SpINE to evaluate for a multidisciplinary approach has a reasonable chance of success in returning her to work and at the same time may further define and guide her to what appropriate
3
psychological treatment may help her pre-existing non-work-related pain disorder.
11. Relying on Dr. Backus’ report, Defendant filed a Form 27 on September 21, 2006. On October 11, 2006 the Department rejected the proposed discontinuance on the grounds that “Dr. Backus’ report and opinion that claimant has reached pre-injury status is not persuasive.”
12. On October 25, 2006 Defendant filed a Notice and Application for Hearing on the issue of end medical result.
13. On December 4, 2006 Defendant filed a second Form 27, again based on Dr. Backus’ IME report. Again the Department rejected the proposed discontinuance, finding that Dr. Backus’ conclusion that Claimant had returned to her pre-injury baseline was inconsistent with his recommendation that she not return to work until she received further treatment for her pre-existing pain syndrome.
14. On May 25, 2007 the Department reconsidered its denial of Defendant’s Form 27. Considering not only Dr. Backus’ end medical result opinion but also the lack of any further treatment recommendations from Dr. Chronister, one of Claimant’s treating physicians, the Department concluded that Claimant had failed to provide any medical evidence to refute a finding of end medical result. This time, therefore, it approved the discontinuance.
15. Notwithstanding the discontinuance of her workers’ compensation benefits, Claimant continued to treat. From May 14, 2007 through May 21, 2007 she was an in-patient at a rehabilitation hospital in Concord, New Hampshire, under Dr. Chronister’s care.
16. Claimant filed a Notice and Application for Hearing to appeal the discontinuance. Claimant identified her treating physicians, Dr. Hart and Dr. Chronister, as expert medical witnesses.
17. Defendant deposed Dr. Chronister on December 6, 2007. Dr. Chronister testified that in his opinion Claimant suffered from complex regional pain syndrome (CRPS) and that her fall at work in May 2006 destabilized what previously had been a stable medical condition. Dr. Chronister further testified that there were two physicians affiliated with the pain center at Massachusetts General Hospital who do research in CRPS. With their expertise in mind, Dr. Chronister referred Claimant on for evaluation, diagnosis and possible treatment. Having done so, Dr. Chronister testified that he had no further treatment recommendations to offer Claimant and that he no longer was following her care.
18. Defendant deposed Dr. Hart on January 10, 2008. Dr. Hart testified that she did not hold an opinion to the required degree of medical certainty either as to Claimant’s medical diagnosis or as to whether further medical treatment would improve her condition significantly.
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19. Claimant underwent an evaluation with Drs. Rivera and Gulur at the Massachusetts General Hospital Pain Center on November 2, 2007. As to diagnosis, the report of this evaluation states, “It is likely that [the] primary component of the patient’s pain is neuropathic in nature with inflammatory contribution as well.” As for treatment, Drs. Rivera and Gulur commented as follows:
[W]e advise the patient at length that her presentation was certainly atypical for [complex regional pain syndrome] and regardless of the co-diagnosis, the treatment would be the same, which is primarily self-motivated physical therapy and strengthening exercise. We then further emphasize the need for aggressive prolonged physical therapy and that the patient may benefit from short-term inpatient physical therapy course, however, that would need to be decided upon between her and her primary care physician.
CONCLUSIONS OF LAW:
1. Defendant seeks summary judgment on the issue of end medical result. It contends that because neither of Claimant’s treating physicians has made any specific recommendations for further treatment, as a matter of law Claimant thereby lacks the evidence necessary to refute Dr. Backus’ end medical result finding.
2. 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 judgment in its favor as a matter of law. Samlid 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. Heritage Realty of Vermont, 137 Vt. 425 (1979).
3. Defendant argues that having produced sufficient evidence to support its discontinuance at the informal level pursuant to 21 V.S.A. §643a, the burden then shifted to Claimant to prove her entitlement to additional benefits. Vermont law clearly provides to the contrary. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that to do so is proper. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974). This is true even if, as was the case here, the discontinuance previously had been approved at the informal level. F.B. v. Visiting Nurse Association, Opinion No. 29-06WC (July 7, 2006). Because the standard of proof is different – reasonable support at the informal level, preponderance at the formal level – different conclusions logically may result.
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4. Defendant’s evidence fails to achieve this standard, because it centers on the wrong question. The true focus of the debate in this claim is whether Claimant’s work-related falls aggravated her underlying pain disorder, not whether she has reached end medical result yet. If the work-related falls caused a compensable aggravation, then arguably Claimant has not yet reached end medical result. Further treatment, in the form of self-directed and/or in-patient physical therapy as recommended by Drs. Rivera and Gulur, still might improve her condition. If, on the other hand, the work-related falls caused nothing more than a minor soft tissue injury that neither aggravated nor accelerated Claimant’s underlying pain disorder, then perhaps Dr. Backus’ end medical result determination will stick.
5. Taking the evidence in the light most favorable to Claimant, genuine issues of material fact exist that preclude summary judgment. Dr. Chronister testified that Claimant’s work-related falls destabilized what previously had been a stable medical condition. With that statement he provided the foundation for what ultimately might be a compensable work-related aggravation. If so, the treatment suggested by Drs. Rivera and Gulur reasonably might be interpreted to negate a finding of end medical result.
6. The sole purpose of summary judgment review is to determine if a genuine issue of material fact exists. If such an issue does exist, it cannot be adjudicated in the summary judgment context, no matter how unlikely it seems that the party opposing the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973). However tenuous or unlikely the evidence in support of Claimant’s claim that her work-related falls aggravated her underlying pain disorder, she is entitled nonetheless to present the evidence and litigate the question. Summary judgment against her is not appropriate.
ORDER:
Defendant’s Motion for Summary Judgment is DENIED.
DATED at Montpelier, Vermont this 12th day of November 2008.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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