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STATE OF VERMONT

DEPARTMENT OF LABOR

Lesley Bienvenue v. Sandra Kuc d/b/a Vermonsters Daycare Center

Opinion No. 23-15WC

1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. CC-2661

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

APPEARANCES:

Lesley Bienvenue, pro se

Jennifer Moore, Esq., for Defendant

ISSUE PRESENTED:

Is Claimant’s workers’ compensation claim time-barred under 21 V.S.A. §660(a)?

EXHIBITS:

Defendant’s Exhibit A: Employer First Report of Injury (Form 1)

Defendant’s Exhibit B: Denial of Workers’ Compensation Benefits (Form 2)

Defendant’s Exhibit C: Letter from Anne Coutermarsh, November 18, 2011

Defendant’s Exhibit D: Letter from Tracy Downing, February 9, 2012

Defendant’s Exhibit E: Letter from Claimant, February 15, 2012

Defendant’s Exhibit F: Letter from Anne Coutermarsh, March 11, 2015

FINDINGS OF FACT:

Considering the evidence in the light most favorable to Claimant as the non-moving

party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:

1. At all times relevant to these proceedings, Claimant was an employee and

Defendant was her employer as those terms are defined in Vermont’s Workers’

Compensation Act.

2. Judicial notice is taken of all relevant forms contained in the Department’s file

relative to this claim.

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3. On or about May 5, 2011 Claimant filed an Employer First Report of Injury

(Form 1) with the Department, in which she alleged that on March 21, 2011 she

had injured her lower back and left knee when a co-worker fell into her and

knocked her to the ground.1 Defendant’s Exhibit A.

4. On or about June 10, 2011 Defendant filed a Denial of Workers’ Compensation

Benefits (Form 2), Defendant’s Exhibit B, in which it asserted that there was no

causal relationship between Claimant’s injuries and her employment. In support

of its position, Defendant submitted email correspondence from Sandra Kuc, its

executive director, and Stacy Sturtevant, its assistant director, both of whom

challenged Claimant’s version of events. Specifically, Ms. Kuc and Ms.

Sturtevant denied that Claimant had ever informed them either of the incident or

of the injuries she alleged, nor had she ever appeared disabled to the extent she

now claimed.

5. Claimant appealed Defendant’s denial on or about June 20, 2011. On September

14, 2011 the parties participated in an informal conference with the Department’s

specialist. By this time, Defendant had produced additional statements from two

of Claimant’s co-employees, both of whom denied having witnessed the incident

she had alleged despite having worked with her on the day in question. Based on

this evidence, as well as her review of the contemporaneous medical records, on

November 18, 2011 the Department’s workers’ compensation specialist

determined that Defendant’s denial was reasonably supported and therefore

upheld it. Defendant’s Exhibit C.

6. By Notice and Application for Hearing (Form 6) dated December 7, 2011,

Claimant challenged the specialist’s determination and requested a formal

hearing.

7. By letter dated February 9, 2012 the formal hearing docket administrator notified

the parties that Claimant’s claim had been referred to the formal hearing docket,

and that a telephone pretrial conference had been scheduled for March 12, 2012.

Defendant’s Exhibit D.

8. On February 15, 2012 Claimant addressed the following letter to the Department,

Defendant’s Exhibit E:

I have chosen to withdraw my request for a hearing. I am not able

to handle the stress associated with this case. I unfortunately, I

chose to wait and see if I would heal on my own before reporting

the incident to my Doctor and can’t undo that fact.

9. Upon receipt of Claimant’s letter, the specialist notified the parties that the

previously scheduled pretrial conference had been cancelled.

1 Claimant appears to have completed the First Report of Injury herself; it is in her handwriting, and neither

Defendant nor its representative signed it.

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10. Defendant filed additional denials with the Department on February 21, 2013 and

May 1, 2013, pertaining to medical bills it had received from various providers

for treatment rendered to Claimant between January and March 2013. Claimant

did not immediately appeal either denial.

11. By correspondence dated February 27, 2015 (received by the Department on

March 4, 2015), Claimant sought to renew her appeal of Defendant’s claim

denial. By letter dated March 11, 2015 the Department’s specialist determined

that the evidence did not support her claim, and therefore declined to issue an

interim order for benefits. Defendant’s Exhibit F.

12. At Claimant’s request thereafter, the specialist referred the matter back to the

formal hearing docket. Defendant’s motion for summary judgment followed.

Claimant has not filed any response.

DISCUSSION:

1. Summary judgment is proper when “there is no genuine issue of material fact and

the moving party is entitled to a judgment as a matter of law, after giving the

benefit of all reasonable doubts and inferences to the opposing party.” State v.

Delaney, 157 Vt. 247, 252 (1991). To prevail on a motion for summary

judgment, the facts must be “clear, undisputed or unrefuted.” State v. Heritage

Realty of Vermont, 137 Vt. 425 (1979); A.M. v. Laraway Youth and Family

Services, Opinion No. 43-08WC (October 30, 2008).

2. Defendant here asserts that because Claimant previously withdrew her request for

a hearing on its denial of her claim for workers’ compensation benefits, the

applicable statute of limitations now precludes her from reviving it. As the

material facts are undisputed, summary judgment is an appropriate vehicle for

resolving this issue. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22,

25 (1996).

3. The statute of limitations for initiating a claim for workers’ compensation benefits

is three years from the date of injury. 21 V.S.A. §660(a). Having alleged an

injury date of March 21, 2011, Claimant here first initiated her claim on or about

May 5, 2011, which was well within the limitations period. Thereafter, however,

in February 2012 she withdrew her appeal of Defendant’s claim denial, and did

not seek to revive it until February 2015. The legal question posed by these

actions is whether the statute of limitations was tolled in the meantime, such that

her current appeal remains timely, or whether it has since expired, such that her

appeal is now time-barred.

4. So long as they do not defeat the informal nature of the dispute resolution process,

the Vermont Rules of Civil Procedure apply generally to workers’ compensation

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proceedings. Workers’ Compensation Rule 7.1000.2 Vermont Rule of Civil

Procedure 41(a) governs voluntary dismissals. It allows for a plaintiff to dismiss

an action without a court order at any time before the adverse party files an

answer, V.R.C.P. 41(a)(1), and thereafter with the court’s approval, V.R.C.P.

41(a)(2).

5. I consider the actions taken in February 2012, when in response to Claimant’s

notice that she had chosen to “withdraw” her request for a hearing the

Department’s specialist cancelled the previously scheduled pretrial conference, to

be the equivalent of a voluntary dismissal of her appeal under V.R.C.P. 41(a)(2).

See Agency of Natural Resources v. Lyndonville Savings Bank & Trust Co., 174

Vt. 498 (2002) (equating “withdrawal” of action with voluntary dismissal in

context of V.R.C.P. 11 “safe harbor” provisions).

6. For statute of limitations purposes, the legal effect of Claimant having voluntarily

dismissed her appeal without pursuing a determination on the merits of

Defendant’s claim denial is the same as if she had never filed a claim for benefits

at all. Grant v. Cobbs Corner, Inc., Opinion No. 22A-02WC (July 25, 2002),

citing Demars v. Robinson King Floors, Inc., 256 N.W.2d 501, 505 (Minn. 1977).

Were the rule otherwise, a claimant might voluntarily dismiss and then renew his

or her claim “in perpetuity.” Grant, supra.

7. The time limits imposed by a statute of limitations “represent a balance, affording

the opportunity to plaintiffs to develop and present a claim while protecting the

legitimate interests of defendants in timely assertion of that claim.” U.S. v.

Kubrick, 444 U.S. 111, 117 (1979), cited with approval in Investment Properties,

Inc. v. Lyttle, 169 Vt. 487, 492 (1999). For both the parties and the fact-finder,

“the search for truth may be seriously impaired by the loss of evidence, whether

by death or disappearance of witnesses, fading memories, disappearance of

documents, or otherwise.” Id. These concerns are especially relevant in cases

where, as here, the most basic facts underlying a claimant’s claim for workers’

compensation benefits, including where and when the alleged injury occurred,

who witnessed it and what if any disability resulted, have been hotly contested

from the beginning.

8. I conclude as a matter of law that the statute of limitations was not tolled when

Claimant voluntarily withdrew her appeal of Defendant’s claim denial in February

2012. That being the case, she had three years from the date of her alleged March

21, 2011 injury, or until March 21, 2014, within which to reassert her claim for

worker’s compensation benefits. As she failed to do so, her claim is now timebarred.

2 Effective August 1, 2015 Workers’ Compensation Rule 7.1000 has been re-codified as Rule 17.1100.

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ORDER:

Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for

workers’ compensation benefits arising out of her alleged March 11, 2011 work-related

injury is hereby DISMISSED WITH PREJUDICE.

DATED at Montpelier, Vermont this _____ day of ____________, 2015.

_______________________

Anne M. Noonan

Commissioner

Appeal:

Within 30 days after copies of this opinion have been mailed, either party may appeal

questions of fact or mixed questions of law and fact to a superior court or questions of

law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.