STATE OF VERMONT
DEPARTMENT OF LABOR
David Flood v. Feed Commodities, Inc. Opinion No. 09-16WC
- By: Phyllis Phillips, Esq.
Administrative Law Judge
For: Anne M. Noonan
State File No. GG-00758
OPINION AND ORDER
Hearing held in Montpelier on September 21, 2015
Record closed on November 6, 2015
Bruce Hesselbach, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant
- Did Claimant suffer a compensable work-related injury on January 19, 2015?
- If not, did Claimant willfully make false statements and/or representations for the
purpose of obtaining workers’ compensation benefits, in violation of 21 V.S.A.
Joint Exhibit I: Medical records
Joint Exhibit II: Supplemental medical records
Joint Exhibit III: Supplemental medical records
Joint Exhibit IV: Deposition of Isaac Smith, July 16, 2015
Joint Exhibit V: Deposition of Emily Stone, July 16, 2015
Claimant’s Exhibit 1: Diagram of Grassy Brook Road homes
Claimant’s Exhibit 2: Various medical records
Claimant’s Exhibit 3: Newbrook Rescue Squad record
Claimant’s Exhibit 4: 2014 Prehospital Care Report for incident date 01/19/2015
Claimant’s Exhibit 5: Physician Clinical Report, 01/19/2015
Claimant’s Exhibit 6: Observation Detail Report, 1/20/2015
Claimant’s Exhibit 7: Employer First Report of Injury (Form 1)
Claimant’s Exhibit 9: Various medical bills1
Claimant’s Exhibit 10-A: Photograph of video surveillance notice, truck loading area
Claimant’s Exhibit 10-B: Photograph of video surveillance notice, office door
Defendant’s Exhibit A: Certified transcript of 911 recording, 1/19/20152
Defendant’s Exhibit B: Rescue Inc. records, 1/19/2015
Defendant’s Exhibit C: Newbrook Volunteer Fire & Rescue records
Defendant’s Exhibit D: Docuweather, USA daily weather summary, Bernardston,
MA, January 17-19, 2015
Defendant’s Exhibit E: Docuweather, USA daily weather summary, Brookline,
VT, January 17-19, 2015
Defendant’s Exhibit F: Various x-ray images
Defendant’s Exhibit G-1: Laura Flood’s cell phone records
Defendant’s Exhibit G-2: Claimant’s cell phone records
Defendant’s Exhibit G-3: Doris Flood’s telephone records
Defendant’s Exhibit H: Various photographs of truck yard
Defendant’s Exhibit H-1: Mapquest photograph of truck yard
Defendant’s Exhibit H-2: Photograph of truck and hitching post
Defendant’s Exhibit I: Timeclock entries, 01/19/2015
Defendant’s Exhibit J: GPS tracking, 1/19/15
Defendant’s Exhibit K: Radiology reports with handwritten notes, 01/19/2015
Defendant’s Exhibit L: Sand and salt records
Defendant’s Exhibit M: Driver’s daily log, 1/19/15
Defendant’s Exhibit N: Photograph of trucks in truck yard
Defendant’s Exhibit O: Photograph of truck
Defendant’s Exhibit P: Claimant’s recorded statement3
Defendant’s Exhibit Q: Certified audio copy of 911 call, 1/19/20154
Defendant’s Exhibit R: Google Maps route information and driving distance, Feed
Commodities International, Inc. to 252 Grassy Brook Rd,
All workers’ compensation benefits to which Claimant proves his entitlement as causally
related to his alleged January 19, 2015 work-related injury
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
1 Claimant’s Exhibit 9 was admitted only to show medical treatments rendered, and not to establish the
appropriate charges incurred under Vermont’s Workers’ Compensation Medical Fee Schedule.
2 Defendant’s Exhibit A is admitted solely to establish the substance of the 911 call itself, and not the truth
of the matters asserted therein.
3 See discussion regarding admissibility, infra at p.4.
4 See n.2 above.
- Assertion of Attorney-Client Privilege during Depositions of Nancy Jean Flood,
Doris Flood and Laura Flood
Defendant seeks reconsideration of a ruling made in the course of discovery in which the
Administrative Law Judge upheld as proper the assertions of attorney-client privilege
made by Claimant’s wife (Nancy Jean Flood), mother (Doris Flood) and sister (Laura
Flood) during their respective depositions.
In addition to representing Claimant, his attorney also represents the three deponents with
respect to Defendant’s allegations that they fraudulently misrepresented the
circumstances surrounding Claimant’s injury for the purpose of furthering his claim for
workers’ compensation benefits. Notwithstanding these allegations, Defendant argues
that because the family members are not parties to the pending claim for workers’
compensation benefits, they should have been barred from asserting the attorney-client
privilege in the context of the pending action.
Rule 502 of the Vermont Rules of Evidence provides that a client “has a privilege to
refuse to disclose . . . confidential communications made for the purpose of facilitating
the rendition of professional legal services to the client (1) between himself . . . and his
lawyer; . . .” V.R.E. 502(b). A “confidential” communication is defined as one “not
intended to be disclosed to third persons other than those to whom disclosure is made in
furtherance of the rendition of professional legal services to the client. . . .” V.R.E.
As Defendant correctly notes, ordinarily a non-party fact witness would not be allowed to
assert an attorney-client privilege in proceedings involving another person’s workers’
compensation claim. Here, however, Defendant’s defense of the claim is based in large
part on allegations of fraud involving not only Claimant but also his family members.
Because of that, the question of attorney-client privilege as it applies to the latter group
merits close scrutiny.
According to 21 V.S.A. §708, a person who “willfully makes a false statement or
representation, for the purpose of obtaining any benefit or payment under the provisions
of this chapter, either for her or himself or for any other person, [emphasis supplied]” is
subject to both administrative and criminal penalties, including even imprisonment, see
13 V.S.A. §2024. Given the fraud statute’s broad coverage, Defendant’s allegations, if
proven, could implicate any or all of the deponents and expose them to both civil and
criminal liability. With that in mind, to the extent that they retained Claimant’s attorney
to represent them in any legal proceedings that might arise under §708, their
communications with him are thus subject to the attorney-client privilege to the same
extent that Claimant’s communications are.
Defendant’s request for reconsideration of the Administrative Law Judge’s prior ruling
on its Motion Regarding Claimed Attorney-Client Privilege and Request to Re-depose
Three Witnesses at Claimant’s Expense is hereby DENIED.
- Admissibility of Claimant’s Prior Recorded Statement
At the formal hearing, Defendant proffered as evidence a transcript of a recorded
statement (Defendant’s Exhibit P) that Claimant gave to its workers’ compensation
insurance adjuster on or about February 10, 2015, less than a month after his alleged
work injury. Claimant objected to the proffer on the grounds that, considered in light of
his formal hearing testimony, the statement was cumulative and therefore inadmissible.
Under Vermont Rules of Evidence 613 and 801(d)(2), a statement made by a partyopponent
does not constitute hearsay, and is admissible as evidence. Under Vermont
Rule of Evidence 403, however, even relevant evidence can be excluded “if its probative
value is substantially outweighed by . . . considerations of undue delay, waste of time or
needless presentation of cumulative evidence.”
I conclude here that the proffered statement is not cumulative, and therefore is properly
FINDINGS OF FACT:
- 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’
- Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim. Judicial notice is also taken as follows:
(a) that Defendant’s Exhibit Q is a certified audio copy of a 911 call made by
Doris Flood on January 19, 2015; and (b) that Defendant’s Exhibit R is an
accurate Google Maps representation of the driving distance from Feed
Commodities International, Inc. in Bernardston, Massachusetts to 252 Grassy
Brook Road in Brookline, Vermont.
- Claimant worked as a tractor-trailer driver for Defendant’s feed company.
Typically, he began his work day at around 5:00 AM, having driven from his
home in Brookline to Defendant’s Bernardston mill, a distance of approximately
31 miles. During the day he would travel back and forth between Defendant’s
mill and various farms, loading and unloading cornmeal and grains. Depending
on his daily route, his work day might end as early as 5:00 PM, or as late as 10:00
- Claimant’s Brookline home is situated in close proximity to that of his parents
and sister. All three homes are clustered around a circular driveway, with a
flower bed at its center. Claimant’s home is accessed by a short, downhill-sloping
walkway to his front door. Claimant’s Exhibit 1.
- Claimant has a prior medical history that includes two arthroscopic surgeries to
repair a meniscal tear in his left knee, the first in December 2013 and the second
in mid-September 2014.
- At least two signs are posted at Defendant’s Bernardston facility indicating that
video surveillance “is in use on these premises.” Claimant’s Exhibits 10-A and
10-B. Defendant’s operations manager, Randy Bigelow, and Claimant’s direct
manager, James Peterson, both credibly testified that in fact there were no
surveillance cameras on site; they were in boxes in the basement, and had never
been installed. However, Claimant credibly testified that Defendant’s employees
were unaware of this, and believed instead that video surveillance was
The Events of January 19, 2015 – Claimant’s Version
- Before leaving for work on Monday, January 19, 2015 Claimant first drove his
pickup truck to the Brookline town garage to get a load of sand for his driveway.
Because his parents are elderly, he, his wife Nancy and his sister Laura all help
out to ensure that the drive- and walkways are well sanded in the wintertime. On
this day, upon returning from the town garage, Claimant sanded in front of all
three homes, left his pickup truck and drove to work in his minivan. Later, Laura
used a small shovel to throw additional sand down around the circular driveway,
along the path from her house to her parents’ house and down towards Claimant’s
house. Nancy as well sanded the walkway in front of hers and Claimant’s home
and up the path towards the spot where Claimant typically parked his minivan. It
had rained the day before, so the ground was covered with wet snow, slush and
ice. Towards evening, as the temperature dropped, patches of ice likely formed in
spots. Defendant’s Exhibit E.
- Claimant’s work duties on January 19th took him first to Canaan, Connecticut and
then to Vergennes, Vermont to pick up a load. The day had been clear and cold,
but a storm came in while he was waiting for the truck to be loaded in Vergennes,
and his drive back to Bernardston was through snow and freezing rain.
- The storm had ended by the time Claimant arrived back at the Bernardston mill.
According to the truck’s GPS tracking system, Defendant’s Exhibit J, he entered
the premises at 8:32 PM. By this time, the facility was empty and he was alone.
Claimant parked in the designated truck parking area, in the same spot he always
chose, the farthest right, in front of the telephone pole. Defendant’s Exhibit H.
While the truck was idling down, he completed his log book, Defendant’s Exhibit
M, and mileage sheet. Then he exited the truck and began his “post-trip,” walking
down the driver’s side and checking the tires and lights. However, because the
truck was covered in snow that had accumulated during the drive back from
Vergennes, he did not continue around the rear to check the tires and lights on the
other side of the truck. Instead, he reached inside and, at 8:53 PM according to
the GPS monitor, shut the truck off.
- Claimant next walked up to the office, a distance of approximately 1,000 to 1,200
feet. Defendant’s Exhibit H-1. On the way, he stopped at his minivan, which was
parked nearby, and started it so that it would begin to warm up. At this point, he
was wearing Chippewa logging boots, Dickie construction pants, a t-shirt under a
green hooded sweatshirt and fingerless motorcycle gloves. He was not wearing a
winter coat. The parties dispute the exact temperature – Claimant estimated it to
be in the teens, with a cold wind blowing, Defendant’s meteorological expert
estimated it to be slightly warmer, in the low 20’s, Defendant’s Exhibit D. I find
that it was a cold and wintry night in any event. During the day, the ground had
been covered with wet snow, slush and ice; by evening patches of ice were likely
present. Defendant’s Exhibit D.
- After starting his car, Claimant proceeded into the office and punched out on two
timeclocks – one manual, at 8:54 PM, the other computerized, at 8:56 PM.
Defendant’s Exhibit I. Then he got into his minivan and drove back down to his
truck so that he could plug in the block heater.
- The block heater, which is used in cold weather to keep the truck’s diesel engine
warm overnight, is accessed by way of a plug attached to a short cord located
under the passenger side door. Defendant’s Exhibit H. A “hitching post” –
essentially a metal rail with electrical outlets attached – runs along the rear of the
truck parking area. Defendant’s Exhibit H. Power is supplied by running an
extension cord from one of the outlets to the truck’s plug. Parked in its usual
spot, in front of the telephone pole marking one end of the hitching post,
Claimant’s truck was approximately 25 feet away. Defendant’s Exhibit H-2.
- What happened next is hotly contested.5 After plugging the extension cord into
the truck’s heater, Claimant testified that he turned, took one step towards his
minivan, slipped on the icy ground and fell, landing on his right side. On the way
down, he scraped his knuckles on the truck’s metal step. He felt pain in his right
hip from having landed on his cell phone holder, and heard a pop and felt pain
from his left knee down.
- Having undergone arthroscopic surgery only a few months previously, Finding of
Fact No. 5 supra, Claimant believed he had again “blown out” his knee. He was
upset, and his first thought was to get home, ice the joint and call Dr. Vranos, his
orthopedic surgeon, in the morning. But when he tried to stand up, his leg hurt
and it was too slippery to even get up on his knees.
- Claimant knew he could not stay where he was – it was a cold night, there was
nobody around to help him and cell phone coverage was sporadic at best. Using
his hands for support, pushing with his right leg and holding his left leg extended
5 As will be seen infra, Finding of Fact Nos. 43-52, Defendant disputes the veracity of the testimony given
by Claimant, his wife and his sister regarding the sequence of events discussed in Finding of Fact Nos. 13-
out in front of him, he “scooted” backwards to his minivan, which was parked
fifteen or twenty yards away, and lifted himself in. Once in the car, he tried to
call his manager, Mr. Peterson, but could not get through. He did not try to call
his wife, for fear of waking their children.
- Claimant typically drives fast, and he estimated that on this night it took him
about a half hour to get home. On the way, he passed both the highway exit for
Brattleboro Memorial Hospital and the road to Grace Cottage Hospital. Still
thinking that he had reinjured his knee, rather than seeking immediate medical
attention at either hospital his plan was to go home for the night and call Dr.
Vranos in the morning.
- Upon arriving home, Claimant parked in his usual spot in the circular driveway,
approximately 30 to 35 feet from his front door. Claimant’s Exhibit 1. He shut
off the minivan and opened the car door. Using a four-foot crowbar (one of the
tools he typically kept with him in his van) for support, he exited the vehicle and
attempted to walk. The pain was too severe, and he could only manage one or
two steps, however. As he had in Defendant’s truck yard, he lowered himself to
the ground and scooted backwards, using his hands and his right foot as support
and with his left leg extended out in front of him, along the driveway and down
the path to his front door. Sometime later, either that night or the following day,
Nancy Flood discovered his car keys in the walkway, and both the crowbar and
his eyeglasses lying on the ground a few feet from the minivan.
- Claimant realized that he would not be able to negotiate his front door and get
inside without assistance. Thus, when he was almost to the end of the walkway,
he called Nancy on his cell phone and told her he was on the ground outside and
could not get in. Claimant’s cell phone records place the time of this call at 9:38
- Defendant’s Exhibit G-2.
- Nancy Flood was in the living room, and saw the headlights when Claimant drove
into the driveway. Her phone rang very shortly thereafter. She immediately went
to the front door, opened it and found him on the ground, leaning up against the
post that supports the door’s overhang, with his legs outstretched. She asked what
had happened, and Claimant told her that he had fallen at work and needed help
getting inside. Her initial understanding was that he had reinjured his knee.
Knowing that she would not be able to move him herself, she used his cell phone
to call his sister, Laura Flood, who lives next door. Cell phone records place the
time of this call at 9:40 PM. Defendant’s Exhibits G-1 and G-2.
- Laura Flood was sitting on her couch, watching television and perusing her laptop
computer, when she saw the headlights from Claimant’s minivan as he pulled into
the driveway. She had turned off the television, shut down her computer and
gone into the bathroom to get ready for bed when Nancy called and said that
Claimant had fallen and she needed her help. Laura immediately ran outside and
down the path to Claimant’s house. Claimant was lying on the ground, and she
observed both that he “looked like he was in a lot of pain” and that his left leg
“just didn’t look right to me.”
- Both Laura and Nancy recalled that Claimant initially thought that he had
reinjured his knee. However, almost immediately after arriving on the scene
Laura determined that his left leg was, in her words, “f***ed up,” and his foot
was “flopped over” and crooked. Neither she nor Nancy felt comfortable
attempting to move him in this condition. Instead, over Claimant’s protestations,
they decided to call an ambulance.
- While Nancy stayed with Claimant, Laura ran to her parents’ house, which has a
landline telephone. Claimant’s mother, Doris Flood, was in the bedroom when
Laura rushed in and told her to call 911 because Claimant was on the ground with
what appeared to be a broken leg. Doris immediately grabbed her telephone, and
Laura ran back outside to wait with Claimant and Nancy for the ambulance to
- Doris’ cell phone records place the time of her 911 call at 9:44 PM, Defendant’s
Exhibit G-3, just seven minutes after Claimant’s initial call to Nancy. During the
call, she made the following statements: “My son just fell. I think he broke his
leg. . . . He’s outside. He fell on the ice going down to his place. He just got
home from work . . . My daughter just came in and said that I need to call 911 for
him because we’re not able to get him up.” Defendant’s Exhibits A and Q. At
hearing, Doris testified that she did not learn until the next morning that Claimant
had fallen at work, and not “on the ice going down to his place,” as she had
presumed at the time of her 911 call. I find her testimony in this regard credible.
- The Newbrook Volunteer Fire and Rescue Squad arrived first on the scene,
followed shortly thereafter by Rescue, Inc. emergency medical technicians.
According to the Vermont EMS Incident Reporting System record, Defendant’s
Exhibit C, the first responders arrived at 9:55 PM and the last unit cleared the
scene at 10:42 PM. Claimant was transported by ambulance to Brattleboro
Memorial Hospital, where he was admitted at 11:02 PM. Joint Exhibit I at p.
- X-rays revealed a low mid-shaft fracture of the tibia (down near the
ankle) and a high shaft fracture of the fibula (up near the knee). Defendant’s
Exhibit F. The fractures were displaced, meaning that the broken ends were no
longer aligned, slightly comminuted, meaning that some bone fragments had
splintered off, and spiral or oblique, meaning that the mechanism of injury must
have involved a rotational component. Dr. Vranos surgically repaired the
fractures the following day, January 20, 2015. Joint Exhibit I at p.000086.
- While Claimant was being transported to the hospital, Nancy Flood telephoned
Mr. Peterson, and left a voice mail message advising that he had fallen at work
and was on his way to the hospital. She called again early the next morning, at
which time she spoke to Mr. Peterson directly. In his formal hearing testimony,
Mr. Peterson acknowledged having received the call. Upon learning that
Claimant allegedly had slipped on ice in the truck yard, he promptly called Mike
Scoville, Defendant’s snow plowing contractor, and arranged to have the area
salted and sanded anew. See infra at Finding of Fact No. 44.
- A day or two after his surgery, Claimant and his wife returned to Defendant’s
truck yard to drop off some paperwork and retrieve some personal belongings
from his truck. Claimant spoke briefly with Mr. Peterson. Mr. Peterson
acknowledged in his testimony that during the conversation he observed that
Claimant’s knuckles were scratched, and that Claimant explained that he had hit
them on the truck’s step as he fell.
- Nancy, Laura and Doris Flood all testified credibly regarding their past
observations of Claimant’s high tolerance for pain. Nancy and Laura both
recalled that while awaiting surgery after injuring his knee in 2013, Claimant iced
it every evening but still continued to work for some months. And Nancy and
Doris recalled an occasion when he broke his finger while using a sledgehammer,
but just taped it up and kept working. Doris credibly described a family culture in
which everyone was encouraged to “just get on with it” rather than complain.
Medical Evidence Pertinent to the Events of January 19, 2015
(a) Contemporaneous medical records
- Contemporaneous medical records document the initial response to Claimant’s
injury and give somewhat varying accounts of how it occurred. The Newbrook
rescue squad’s handwritten report, Claimant’s Exhibit 3, notes a chief complaint
of “left tib-fib pain,” a past medical history of “left knee surgery in Sept.” and a
description of “events” as “fell @ work heard a snap tried to walk 9:00 PM.”
Another handwritten report, this one also apparently generated by the Newbrook
rescue squad, states, “The patient informs us that the injury happened about 1
hour ago while at work. He is a truck driver and when jumping down from his
truck he injured his leg.” Defendant’s Exhibit C. And a third handwritten report,
this one completed at the scene by Rescue, Inc.’s emergency medical technician
Isaac Smith, states Claimant’s complaint as “lower leg pain secondary to ground
level fall,” and notes exam findings of “lower left leg pain with deformity and
outward rotation.” Defendant’s Exhibit B.
- Mr. Smith’s “Prehospital Care Report,” Defendant’s Exhibit B, which he
completed immediately after releasing Claimant to the hospital, provides
additional details, as follows:
[Ambulance] responded priority 1 . . . for a 52 YOM that
experienced a [ground level fall] and believes that he broke his leg.
Pt c/o 10-10 [pain] to his lower left leg with a marked deformity to
his tibia with outward rotation.
Pt reports that about 2100 he was stepping from his truck at work
and slipped and fell on his L leg. Pt reports hearing a crack
followed with [pain]. Post fall pt reports that he drove himself
home and attempted to walk into his house. Pt slipped on the ice
and reports falling into snow. [Ambulance] arrived to find pt
laying supine in his driveway.
- Brattleboro Memorial Hospital records also recount the circumstances of
Claimant’s injury. The “Physician’s Clinical Report,” recorded at 11:04 PM,
Joint Exhibit I at p.000080, states:
The injury occurred about 2-1/2 hours ago. Fell; slipped (on ice).
Occurred at work. . . . (Pt. got out of his truck at work, slipped on
the ice and fell. Then he got up, hobbled to his van and drove
himself home. Once there he tried to negotiate the downhill
driveway using a crowbar for support, but was unable to go more
than a few feet so lowered himself to the ground and had wife call
- Also from Brattleboro Memorial Hospital, the “Observation Detail Report” states
the following, Joint Exhibit I at p.000077: “Triage time [11:04 PM] . . . Chief
Complaint: INJURY TO LEFT KNEE. INJURY TO THE LEFT LEG. – [11:13
- Also from Brattleboro Memorial Hospital, a handwritten notation on the
radiologist’s x-ray report, taken at 11:05 PM, Joint Exhibit I at p.000063, states,
“landed wrong when getting out of his truck.”
- In his formal hearing testimony, Claimant agreed that the above descriptions were
mostly, but not completely, accurate. According to his version of events, he
neither slipped on the ice nor fell in the snow at his home, as the emergency
medical technician stated in his Prehospital Care Report, Finding of Fact No. 29
supra. And he did not “hobble to his van” as reported in the Physician’s Clinical
Report, Finding of Fact No. 30 supra.
(b) Expert medical opinions
- Both parties proffered expert medical opinions regarding whether Claimant’s
version of events – particularly his ability to make his way home after allegedly
falling in Defendant’s truck yard – was plausible given the nature and extent of
his injuries. Both experts, Dr. Vranos for Claimant and Dr. Wieneke for
Defendant, are board certified in orthopedic surgery and well experienced in
treating leg fractures.
- In his formal hearing testimony, Dr. Vranos acknowledged that displaced tibiafibula
fractures are among the most painful orthopedic conditions a patient can
suffer. Nevertheless, in his opinion, to a reasonable degree of medical certainty
Claimant’s version of events – maneuvering himself to his car, hoisting himself in
and then driving home and making his way down the path to his front door – was
- Having treated Claimant for his 2013 knee injury, Dr. Vranos has observed his
tolerance for pain, and credibly described him as “tough.” He has encountered
other patients who managed to drive themselves to the hospital with severe
fractures. For Claimant to have acted as he did certainly would have been
difficult, but the alternative would have been to remain lying on the ground
outside on a cold January night without even a winter coat. In Dr. Vranos’
opinion he would have risked hypothermia had he done so.
- Dr. Vranos did not review any witness statements or depositions, and could not
recall where or when he learned the exact circumstances of Claimant’s injury or
the conditions he allegedly faced on the night in question. Nevertheless I find his
analysis of the medical feasibility of Claimant’s actions credible.
- Dr. Wieneke’s opinion stands in sharp contrast to Dr. Vranos’. In his experience,
displaced long bone fractures in weight-bearing extremities are so painful that
patients who sustain them do not move, but rather remain “exactly where they
fell.” With that in mind, Dr. Wieneke characterized Claimant’s story as “absurd
- Specifically, Dr. Wieneke described Claimant’s account of pushing himself along
the ground and then pulling himself up into his car as “not possible,” and
maintained that “categorically” he could not then have managed a 30-minute
drive home. That he passed in the vicinity of two hospitals along the way Dr.
Wieneke found similarly improbable. In his opinion, a patient who sustains a
spiral, oblique tibia-fibula fracture of the type Claimant suffered knows “with
absolute certainty” that he has broken his leg. For Claimant to have chosen not to
go directly to the hospital because he believed instead that he had reinjured his
knee was simply implausible.
- Much of Dr. Wieneke’s formal hearing testimony was based on his understanding
that Claimant alleged to have maneuvered himself forward, with his legs extended
out in front of him, rather than scooting backwards, using his hands and his right
foot for support and with his left leg extended straight out, as Claimant credibly
testified he did.6 He conceded on cross-examination that in the latter position, it
might have been possible for Claimant to move a short distance. However, even
6 In its proposed findings of fact and conclusions of law, Defendant asserts that Claimant first testified that
he was scooting forward towards his front door, and then changed his testimony in response to questioning
by the Administrative Law Judge. I acknowledge that his initial description was somewhat unclear, which
is what prompted the need for further clarification.
this would have been very difficult, and likely at a very slow pace. His left foot,
which according to hospital records was externally rotated to 90 degrees, would
have been “flopping around,” and the displaced bones and comminuted
fragments, which had pushed out into the surrounding soft tissue, would have
made every movement extremely painful.
- Having dismissed Claimant’s version of events as completely fabricated, Dr.
Wieneke concluded instead that he likely fell at his home, in the exact spot where
the first responders found him, on the walkway just outside his front door.
- Dr. Wieneke never personally examined Claimant, and his opinion is therefore
based solely on his review of the pertinent medical records, witness depositions
and other relevant documentary evidence. That he thus concluded that Claimant
was not a truthful person, without even once having met or interacted with him, is
troubling. In addition, the fact that, as noted above, his analysis was based at least
in part on his erroneous understanding regarding the manner in which Claimant
alleges he dragged himself along the ground, first to his minivan and later to his
front door, further undermines his opinion.
The Events of January 19, 2015 – Defendant’s Version
- With Dr. Wieneke’s opinion as support, Defendant asserts that Claimant’s alleged
fall at work on January 19, 2015 never happened, and that the pending claim is his
fraudulent attempt to collect workers’ compensation benefits for an injury that in
fact occurred at his home.
(a) Ground conditions at Bernardston facility
- To refute Claimant’s version of events, Defendant first sought to establish that the
ground next to where he allegedly parked his truck was not icy on the evening in
question. To do so, it proffered testimony from Mike Scoville, with whom it
regularly contracted to snowplow and salt the Bernardston mill premises during
the winter months. Mr. Scoville testified as follows:
- He first checked the facility at approximately 3:00 AM on January
19th. There was a small accumulation of light snow, sleet and
freezing rain on the ground. He salted the entire complex,
including the roadways, driveways, around every door and as close
as he could get to the trucks parked in the yard. Because there was
so little snow on the ground, he did not plow or scrape, for fear of
turning the surface into a “skating rink.” Instead, he decided to
wait until the temperature rose and the snow turned loose and
- He returned to the facility mid- to late morning, between 10:00 and
11:00 AM. By this time, it had stopped precipitating, the
temperature was above freezing and some of the trucks had left the
lot. He scraped and re-salted all of the roadways, parking lots and
parking areas, except for an area to the left-hand side of the
hitching post, where some trucks were still parked.
- He returned to the facility again at around 9:30 PM, and spent
approximately ten minutes scraping and salting the areas he had
been unable to reach earlier, particularly the employee and truck
parking lots. There were no cars in the employee lot, and only one
tractor trailer (presumably Claimant’s) parked at the far right end
of the hitching post. He did not discern any sign of a disturbance
in this area. He believed that the temperature was still above
freezing, and observed from his truck that the ground was “mealy,”
meaning that the salt he had laid down earlier in the day was still
preventing it from becoming icy. Thus, while he did not get out
and walk, he assumed that it was not slippery.
- At approximately 8:00 AM on January 20th, he received a
telephone call from Defendant’s office, advising that someone had
been injured in the truck yard the night before and requesting that
he sand or salt the area where the accident had occurred. This he
did, at approximately 9:00 AM.
- I find credible most of Mr. Scoville’s testimony, with two important exceptions.
First, as established by Barry Grossman, Defendant’s meteorological expert, the
temperature in Bernardston at 9:00 PM on January 19th was 22 degrees, and likely
remained below freezing for most of the night. Defendant’s Exhibit D. I find
inaccurate Mr. Scoville’s recollection to the contrary, therefore.
- Second, I find unpersuasive Mr. Scoville’s assertion that the ground in the vicinity
of Claimant’s alleged fall was completely clear of ice. As he acknowledged, the
surfaces in that area were dirt, not asphalt, such that even after being scraped,
pockets of slush likely remained. Again, according to Mr. Grossman’s report,
Defendant’s Exhibit D, these patches of wet snow, slush and ice likely refroze
during the evening and were present throughout the night.
(b) Ground conditions at Claimant’s home
- Defendant next sought to establish that the driveway and paths in the vicinity of
Claimant’s Brookline home were icy on the evening of January 19, 2016. I accept
as credible Laura Flood’s testimony that she sanded the drive- and walkways at
various times during the morning, Finding of Fact No. 7 supra. However, she
admitted on cross-examination that she did not do so after 1:00 PM. Similarly,
Nancy Flood testified that she sanded the walkway in front of her house, but only
during the day, Finding of Fact No. 7 supra. Both witnesses credibly asserted that
they sanded the area mostly as a precaution, because it was not slippery at the
- As the meteorological evidence establishes, Defendant’s Exhibit E, by nightfall
the temperature had fallen below freezing, and patches of ice likely had formed,
however. Emily Stone, one of the emergency medical technicians who responded
to the 911 call at Claimant’s home, credibly recalled that she had to walk
carefully down the path to reach him because it was slippery, and equally
carefully when the crew carried him by stretcher back up the path to the
ambulance. I find from this evidence that, as was the case at the Bernardston
location, by 9:00 PM patches of ice likely had formed on the ground in the area of
Claimant’s Brookline home.
(c) Inconsistencies in Claimant’s version of events
- Last, Defendant sought to establish that Claimant’s version of events was both
internally inconsistent and at odds with other, more credible evidence. Most
notably, as discussed above, Finding of Fact Nos. 38-41 supra, it proffered Dr.
Wieneke’s expert medical opinion that having suffered displaced, comminuted
fractures of both his tibia and his fibula, Claimant could not possibly have moved
himself from the spot where he fell; therefore, he must necessarily have fallen
after arriving home rather than before leaving work.
- Defendant also questioned the timing of events as Claimant alleged they occurred,
beginning with the time it likely took him to get from the Bernardston facility to
his Brookline home on the night of his injury. In his February 10, 2015 recorded
statement, Defendant’s Exhibit P, Claimant advised that his daily commute
typically took 45 to 50 minutes. On the night in question, however, he was still at
Bernardston at least as of 8:56 PM, as evidenced by the timeclock records,
Defendant’s Exhibit I, and was telephoning his wife while lying on the ground at
his front door at 9:38 PM, as evidenced by his cell phone records, Defendant’s
Exhibit G-2. This was a span of only 42 minutes. Defendant asserts that this was
insufficient time for him to have (a) exited the office after clocking out, then
walking to his minivan and driving back down to his truck; (b) plugging in the
truck’s block heater, falling on the ice and then dragging himself to his minivan;
(c) driving 31 miles home, Defendant’s Exhibit R; and then (d) dragging himself
down the driveway and to his front door.
- After carefully reviewing the evidence adduced at hearing, I find that when, in the
context of his February 2015 recorded statement, Claimant had estimated his
regular commute time to be 45 to 50 minutes, this likely was inaccurate. I further
find that the estimate Claimant gave during his formal hearing testimony – that
driving faster than usual, it took him approximately 30 minutes to get home on the
night in question – was likely accurate. This would have left 12 minutes for
Claimant to (a) get to his truck, plug in the block heater, fall and then drag himself
to his minivan in Bernardston; and (b) exit his minivan in Brookline and drag
himself to his front door. Admittedly this is a brief timeframe, but I find that it is
- Defendant also proffered testimony to contradict Claimant’s assertion that cell
phone coverage at its Bernardston facility was poor. Mr. Peterson credibly
testified that aside from the mill itself, he had no problems with cell reception
either in the office or in the rail shed, the areas where he typically worked. He
further testified that he was not aware of any complaints of poor cell coverage in
the truck yard. He did not testify to having personal knowledge of cell reception
in that location, however. His testimony is not so contradictory as to undermine
Claimant’s credibility on this issue, therefore.
CONCLUSIONS OF LAW:
- 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).
- In many disputed workers’ compensation claims, the question whether the
claimant’s injury was work-related turns on whether it satisfies the legal
definition of having arisen “out of and in the course of the employment,” 21
V.S.A. §618(a)(1). Here the issue is even more fundamental – simply, did
Claimant’s injury occur when and as he claims it did? If yes, then it is surely
work-related and compensable. If not, as Defendant claims, then just as surely it
is neither work-related nor compensable.
- As a starting point to determining this question, the parties proffered conflicting
expert medical opinions regarding whether Claimant’s version of events was even
plausible given the severity of the injury he suffered. In such situations, the
Commissioner traditionally uses a five-part test to determine which expert’s
opinion is the most persuasive: (1) the nature of treatment and the length of time
there has been a patient-provider relationship; (2) whether the expert examined all
pertinent records; (3) the clarity, thoroughness and objective support underlying
the opinion; (4) the comprehensiveness of the evaluation; and (5) the
qualifications of the experts, including training and experience. Geiger v. Hawk
Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
- In most cases, applying this traditional test is a useful exercise; it facilitates a
better understanding of how each expert came to conclude, to the required degree
of medical certainty, that from a medical perspective the claimant’s injury either
was or was not causally related to work. Here, however, the test is of only limited
value, because medical causation per se is not at issue. There is no doubt in this
case that when Claimant fell, he broke his leg; the question is where did he fall?
In this situation, the best the medical experts can do is address whether it was
medically plausible for him to have taken the actions he claims to have taken –
dragging himself to his minivan, driving home and then dragging himself to his
front door. Dr. Vranos concluded that he could have done so, while Dr. Wieneke
concluded quite emphatically that it would have been impossible.
- I conclude that Dr. Vranos’ opinion is the most credible. True, he did not conduct
as thorough a review as Dr. Wieneke did of the various depositions, statements,
photographs and diagrams developed in the course of first investigating and then
litigating Claimant’s claim. Nevertheless, I accept as valid his assertion that it
was at least medically feasible for Claimant to have withstood the pain involved
with moving rather than remain where he was.
- I reject Dr. Wieneke’s conclusion to the contrary for two reasons. First, as noted
above, Finding of Fact No. 40 supra, his opinion was based on an erroneous
understanding of the manner in which Claimant managed to maneuver himself –
not by scooting forward, as Dr. Wieneke presumed, but backwards. Even Dr.
Wieneke admitted that the latter position would have been somewhat less painful
and therefore more plausible than the former.
- More important, I reject Dr. Wieneke’s conclusion because it assumes a level of
pain so great that Claimant could not possibly have chosen to endure it, no matter
what the alternative. But pain tolerance varies so widely from person to person
that a blanket statement regarding the point at which it somehow becomes
medically intolerable for everyone is simply not credible. A mountain climber
amputates his own arm with a pocketknife rather than remain pinned against a
canyon wall, https://en.wikipedia.org/wiki/Aron_Ralston. A farmer trapped under
a tree amputates his own leg, see
else to explain events such as these other than to acknowledge that when a person
is faced with what seems in the moment to be an untenable situation, he or she
might feasibly endure “impossible” pain in order to survive? Dr. Wieneke’s
analysis fails to account for such deviations from his own pain tolerance
barometer, and for that reason I cannot accept it.
- Having disposed of the medical plausibility question, it remains to determine
whether Claimant has sustained his burden of proving not just that the events of
January 19, 2015 could have unfolded as he claims, but that in fact they likely did
- I conclude that he has.
- I acknowledge what I consider to be relatively minor inconsistencies in the initial
medical records regarding Claimant’s report of where he fell, see Finding of Fact
Nos. 28-32 supra. It is entirely understandable that emergency room personnel in
particular would be focused almost exclusively on assessing Claimant and treating
his injury, and not at all on recording specific details that are relevant only to
insurance adjusters and attorneys.
- Nor do I view the statements recorded in Doris Flood’s 911 call as fatal to
Claimant’s case. The credible evidence establishes that at the time of her call, all
she knew about Claimant’s accident was what Laura Flood had told her moments
earlier when she ran inside – that he had broken his leg and was on the ground
outside, Finding of Fact No. 23 supra. For Doris to have mistakenly assumed that
he had only just done so while walking down to his house, and thus to have
misstated the facts to the 911 operator, is not surprising.
- Last, I acknowledge that at least in hindsight, it seems Claimant should have
deduced when he fell in Defendant’s truck yard that he had severely fractured his
leg, and therefore should have gone directly to the hospital rather than home.
Analytically, his decision not to do so seems illogical, but considering the
circumstances he faced in the moment, emotionally it rings true to me
nevertheless. He was alone, in pain, and just wanted to get home safely.
- In fact, it is Defendant’s version of events that I find implausible. For me to
accept its account, I must conclude that Claimant, his wife, his sister and possibly
his mother as well conspired together to defraud his employer. They would have
had only 17 minutes – from 9:38 PM, when he called his wife from his front door,
to 9:55 PM, when the first responders arrived – to concoct their story, presumably
with him directing the effort while lying on the ground in severe pain. They
would have had to do so notwithstanding his understanding that Defendant’s
video surveillance system was fully operational, Finding of Fact No. 6 supra.
And they would have had to think to include such extraneous details as finding his
crowbar and eyeglasses on the ground next to his minivan, Finding of Fact No. 17
- Having carefully examined the facts and theories underlying each party’s version
of events, I conclude that Claimant’s is credible, while Defendant’s is not. I thus
conclude that Claimant has sustained his burden of proving that he broke his leg
in Defendant’s truck yard, as he claims, and not at his home, as Defendant would
have me believe. I further conclude that he did not willfully make any false
statements or misrepresentations for the purpose of obtaining workers’
compensation benefits, as Defendant contends. To the contrary, his injury arose
out of and in the course of his employment, and is therefore compensable.
Costs and Attorney Fees
- As Claimant has prevailed on his claim for benefits, he is entitled to an award of
costs and attorney fees. He has submitted a request for costs totaling $1,650.00,
paralegal fees totaling $125.00 (5 hours at $25.00 per hour) and attorney fees
totaling $31,987.00 (220.6 hours at $145.00 per hour). Defendant has objected to
the latter request on the grounds that many of the time entries submitted in
support were impermissibly “block billed.”7
- I conclude that the time entries are sufficiently detailed for me to determine
whether the work performed was related to the litigation at issue, which is all that
is required under Vermont law. Perez v. Travelers Insurance, 2006 VT 123 at
¶13. Beyond that, the touchstone for an award of fees is reasonableness, id. To
satisfy that standard, it is appropriate to adjust the claimed fee up or down based
on such factors as “the novelty of the legal issue, the experience of the attorney,
and the results obtained in the litigation,” id. at ¶10 (citations omitted).
- The legal issue here was not novel, but the factual issues were varied and
complicated. I commend Claimant’s attorney on the extent of his trial
preparation, especially with respect to direct and cross-examination of the
witnesses. However, his unfamiliarity with Vermont’s workers’ compensation
law and process was also evident at times. With that in mind, I conclude that it is
appropriate to reduce his attorney fee request by ten percent, or $3,198.00.
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby
ORDERED to pay:
- All workers’ compensation benefits to which Claimant proves his entitlement
as causally related to his January 19, 2015 work injury, with interest as
provided in 21 V.S.A. §664; and
- Costs totaling $1,650.00, paralegal fees totaling $125.00 and attorney fees
totaling $28,789.00, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 28th day of June 2016.
Anne M. Noonan
7 Defendant also objected to the statements made in Paragraph 8 of Attorney Hesselbach’s Affidavit in
Support of Motion for Attorney Fees, in which he referenced the barriers Claimant allegedly has faced in
finding another job after Defendant terminated his employment on account of his alleged fraud. I agree
that the statements made are beyond the scope of Attorney Hesselbach’s personal knowledge, and also that
they have no bearing on the reasonableness of his fee request. For that reason, I have stricken them from
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.