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STATE OF VERMONT

DEPARTMENT OF LABOR

David Flood v. Feed Commodities, Inc. Opinion No. 09-16WC

1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. GG-00758

OPINION AND ORDER

Hearing held in Montpelier on September 21, 2015

Record closed on November 6, 2015

APPEARANCES:

Bruce Hesselbach, Esq., for Claimant

Corina Schaffner-Fegard, Esq., for Defendant

ISSUES PRESENTED:

1. Did Claimant suffer a compensable work-related injury on January 19, 2015?
2. 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.

• 708?

EXHIBITS:

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

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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,

Brookline, VT

CLAIM:

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

Procedural Rulings

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.

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1. 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.

502(a)(5).

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.

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2. 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

admitted.

FINDINGS OF FACT:

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. 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.

3. 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

PM.

4. 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.

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5. 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.

6. 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

operational.

The Events of January 19, 2015 – Claimant’s Version

7. 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.

8. 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.

9. 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.

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10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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-

22 infra.

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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.

16. 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.

17. 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.

18. 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

2. Defendant’s Exhibit G-2.
3. 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.

20. 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

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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.”

21. 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.

22. 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

come.

23. 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.

24. 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.

66. 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.

25. 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

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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.

26. 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.

27. 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

28. 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.

29. 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.

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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.

30. 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

EMS).

31. 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

PM].”

32. 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.”

33. 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

34. 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.

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35. 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

medically feasible.

36. 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.

37. 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.

38. 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

and concocted.”

39. 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.

40. 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.

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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.

41. 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.

42. 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

43. 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

44. 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

slushy.

• He returned to the facility mid- to late morning, between 10:00 and

11:00 AM. By this time, it had stopped precipitating, the

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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.

45. 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.

46. 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

47. 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

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they sanded the area mostly as a precaution, because it was not slippery at the

time.

48. 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

49. 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.

50. 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.

51. 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

15

himself to his front door. Admittedly this is a brief timeframe, but I find that it is

feasible nonetheless.

52. 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:

1. 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).

2. 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.

3. 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).

4. 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

16

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.

5. 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.

6. 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.

7. 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

https://www.nbcnews.com/id/19099572/ns/us_news-life/#.V2wTZ47cQ7A. How

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.

8. 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

1. I conclude that he has.
2. 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

17

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.

10. 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.

11. 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.

12. 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

supra.

13. 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

14. 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

18

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

15. 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).

16. 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.

ORDER:

Based on the foregoing findings of facts and conclusions of law, Defendant is hereby

ORDERED to pay:

1. 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

2. 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

Commissioner

Appeal:

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

the record.

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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.