Ryan Wetherby v. Donald P. Blake, Jr. Opinion No. 02-16WC

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Ryan Wetherby Opinion No. 02-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

Donald P. Blake, Jr.

For: Anne M. Noonan


State File No. EE-65426


This claim came before the Commissioner on Defendant’s Motion for Partial

Summary Judgment. The sole issue in dispute was whether Defendant’s

calculation of Claimant’s average weekly wage and compensation rate in

accordance with Workers’ Compensation Rule 15.4240 violated the parameters of

21 V.S.A. §650(a).

By Order dated January 25, 2016, the Commissioner concluded as a matter of law

that Rule 15.4240 was consistent with the statute, rationally based and validly

promulgated, and therefore that it was appropriate for Defendant to have calculated

Claimant’s average weekly wage in accordance with its terms. On those grounds,

the Commissioner granted Defendant’s Motion for Partial Summary Judgment.

Wetherby v. Donald P. Blake, Jr., Opinion No. 02-16WC (January 25, 2016).

Claimant’s underlying workers’ compensation claim remains open. There are

currently no claim disputes pending in which the Commissioner is actively

involved, nor any anticipated that might trigger additional scrutiny of the specific

legal issues already determined by the Commissioner’s January 25, 2016 Order.

Final resolution of these issues will determine whether Claimant is appropriately

compensated for past and/or future periods of indemnity causally related to his June

24, 2013 compensable work injury. With that consideration in mind, I conclude

that there is no just reason for delaying entry of final judgment. See V.R.C.P.

54(b). To the contrary, there is every reason to expedite it.


Claimant’s Motion for Final Judgment is hereby GRANTED. Consistent with the

Commissioner’s January 25, 2016 Ruling on Defendant’s Motion for Partial

Summary Judgment, and in accordance with V.R.C.P. 54(b), final judgment in

Defendant’s favor on the question whether Claimant’s average weekly wage has

been appropriately calculated in accordance with Workers’ Compensation Rule

15.4240 and 21 V.S.A. §650(a) is hereby ENTERED.

DATED at Montpelier, Vermont this ____ day of _____________, 2016.


Anne M. Noonan



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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