Jeffrey Wimble v. Green Mountain Coffee Roaster/ MEMIC and (May 2, 2014)
Green Mountain Coffee Roasters/Liberty Mutual Ins. Co.
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeffrey Wimble Opinion No. 08-14WC
v. By: Phyllis Phillips, Esq.
Green Mountain Coffee Roasters/MEMIC
and Green Mountain Coffee Roasters/ For: Anne M. Noonan
Liberty Mutual Insurance Co. Commissioner
State File Nos. X-60513 and DD-61994
RULING ON DEFENDANT MEMIC’S MOTION FOR RELIEF FROM ARBITRATION
John Valente, Esq., for Defendant MEMIC
Keith Kasper, Esq., for Defendant Liberty Mutual Insurance Co.
This claim originated as an aggravation/recurrence dispute between two successive insurers for
the same employer. Claimant initially suffered a compensable injury to his left elbow in 2006.
As the carrier on the risk at the time, Defendant MEMIC paid workers’ compensation benefits
accordingly, including a period of temporary total disability following surgery in October 2006.
Claimant returned to work and was determined to have reached an end medical result in May
In October 2011 Claimant sought additional treatment, which culminated in a second surgery on
April 11, 2013. By that time, he was working for another employer, his employment for Green
Mountain Coffee Roasters (GMCR) having terminated as of February 29, 2012. On March 3,
2012 GMCR had filed a new First Report of Injury, with an injury date of February 28, 2012.
Defendant Liberty Mutual Insurance Co. was the carrier on the risk as of that date.
Liberty denied responsibility for the additional workers’ compensation benefits Claimant sought
on the grounds that no new injury had occurred on February 28, 2012. To the contrary, it
asserted that he had suffered a recurrence of his 2006 injury, such that MEMIC remained liable
for any benefits due him.
Faced with an aggravation/recurrence dispute, the Department issued an interim order under 21
V.S.A. §662(c) requiring Liberty, as the more recent carrier on the risk, to pay benefits.
Concurrently, it ordered both carriers to submit to arbitration as to which of them bore ultimate
responsibility for Claimant’s renewed treatment, pursuant to 21 V.S.A. §662(e).
Notwithstanding that he had resumed treatment as of October 2011, Claimant did not lose time
from work until his April 2013 surgery. Thereafter, Liberty calculated his compensation rate for
temporary total disability based on the wages he had earned prior to February 28, 2012, the date
of injury alleged in GMCR’s March 3, 2012 First Report of Injury.
On February 6, 2014 the arbitrator issued his Arbitration Decision and Order. Based on the
evidence presented, he determined that Claimant’s renewed treatment represented a recurrence of
his 2006 injury, for which MEMIC remained responsible. He thus ordered MEMIC to “assume
responsibility for the current medical treatment and ancillary workers’ compensation benefits.”
In addition, he ordered MEMIC to “reimburse Liberty Mutual for all sums paid, by Liberty
Mutual, to or on behalf of [Claimant] in this matter.”
MEMIC does not question the arbitrator’s finding of recurrence, and therefore does not assert
any error as to the first part of his order. As to the second part, however, it argues that the
arbitrator exceeded his authority by ordering reimbursement for all of the monies Liberty
previously paid to Claimant. Specifically, it claims that because Liberty erroneously calculated
Claimant’s compensation rate for temporary total disability benefits,1 Liberty should bear full
responsibility for any resulting overpayment, and MEMIC should be excused from reimbursing
any overpaid amounts.
Vermont’s workers’ compensation statute authorizes the commissioner to order arbitration as to
“any dispute between employers and insurers” that arises “whenever payment of a compensable
claim is refused, on the basis that another employer or insurer is liable.” 21 V.S.A. §§662(c) and
(e). If arbitration is ordered, the statute imposes responsibility upon the arbitrator as follows:
[To] determine apportionment of the liability for the claim . . . among the
respective employers or insurers, or both. The apportionment may be limited to
one or more parties.
21 V.S.A. §662(e)(2)(A). The arbitrator also must issue a written decision, “which shall be
final.” 21 V.S.A. §662(e)(2)(B). An arbitrator’s award can only be vacated by a showing of
“corruption, fraud or partiality,” Workers’ Compensation Rule 8.6211, and can only be modified
“if there is a miscalculation of figures or mistake describing any person, thing or property
referred to in the award.” Workers’ Compensation Rule 8.7110.
As the statute specifically reflects, 21 V.S.A. §662(e)(2), arbitration thus replaces the formal
hearing process for any disputes so referred. This includes not only disputes as to which
employer or carrier bears ultimate responsibility to the claimant, as is the case in most
aggravation/recurrence claims, see, e.g., Raymond v. SD Ireland Concrete Construction Co.,
State File Nos. T-19436 and BB-01610, Arbitration Decision dated February 26, 2014, but also
disputes regarding the extent, if any, to which responsibility for specific benefits should be
1 MEMIC asserts that Claimant’s compensation rate should have been based either on his average wages prior to
April 11, 2013 (the date of his most recent disability), or on his average wages at the time of his first period of
disability in October 2006. Instead, Liberty’s payments were based on Claimant’s average wages prior to February
28, 2012, the injury date reflected on GMCR’s second First Report of Injury.
shared among multiple employers or carriers. See, e.g., Webster v. Steven’s Gas, State File No.
S-15680, Arbitration Decision dated June 8, 2006; Bothwell v. North Country Hospital, State
File Nos. L-15688 and T-17209, Arbitration Decision dated June 2, 2006.
MEMIC argues that the second part of the arbitrator’s award here should be vacated, on the
grounds that the statutory authority granted him “to determine apportionment of the liability” for
a claim did not encompass the authority to order reimbursement of amounts already paid. Given
the statutory requirement that the commissioner order arbitration among various carriers only
“after payment to the claimant” has been made, 21 V.S.A. §662(e), by necessity one of the
parties already will have paid benefits by the time arbitration occurs. If ultimately the arbitrator
concludes that liability should have rested on another party’s shoulders instead, it follows that
the first party will have to be reimbursed for the amounts it was ordered to pay initially, see 21
V.S.A. §662(c). To limit the arbitrator’s award solely to responsibility for future benefits would
be manifestly unfair. Nothing in the statutory language supports such an interpretation, and for
this reason, I reject this basis for MEMIC’s request that the award be vacated.
Short of vacating the award, MEMIC argues in the alternative that the arbitrator’s order should
be modified under Workers’ Compensation Rule 8.7110, on the grounds of a “miscalculation of
figures or mistake describing . . . property.” It challenges the arbitrator’s failure to make
findings either as to the manner in which Liberty calculated Claimant’s compensation rate or as
to the total amount it paid. By then ordering reimbursement of an unspecified sum, it argues, the
arbitrator impliedly adopted Liberty’s “miscalculations.” And by requiring MEMIC to
reimburse Liberty in an amount greater than what Claimant actually was due, he thus mistakenly
“described” MEMIC’s “property.”
I agree that had MEMIC raised the compensation rate issue in the course of the arbitration
proceedings, the arbitrator would have been obligated to decide it. Had sufficient credible
evidence been presented to him, certainly it would have been within his authority to order
MEMIC to reimburse Liberty only for the benefits he determined Claimant should have received,
and not for any overpayments he found Liberty to have made. MEMIC failed to present any
evidence at all on the issue, however. As a consequence, there simply is no basis from which to
conclude that the arbitrator’s decision was flawed as a result of some miscalculation or mistake
In effect, the “modification” MEMIC seeks now is an opportunity to litigate before the
commissioner a question that it should have raised before the arbitrator. It asserts that it did not
have access at the time to the financial information it would have required to question Liberty’s
compensation rate calculations, but I find this argument unconvincing. Faced with potential
liability for all or a portion of the benefits Liberty had paid, it should have been a routine
exercise for MEMIC to request an itemized list of the payments made to date, along with the
wage statements and compensation agreements upon which any indemnity payments were based.
That it failed to do so is unfortunate, but it is not grounds for modifying the arbitrator’s award.
I agree, as MEMIC asserts, that public policy favors accuracy in calculating the benefits due an
injured worker under the workers’ compensation statute. When mistakes occur, public policy
favors that the factual and legal issues be promptly raised so that they can be resolved in a timely
and effective manner. Public policy also favors that disputes not be litigated in piecemeal
fashion. Last, public policy favors respect for the arbitration process, and particularly for the
statutorily imposed finality of the arbitrator’s decision and order. Balancing all of these policy
considerations, I conclude that there is no basis for either vacating or modifying the award in this
Based on the foregoing, Defendant MEMIC’s Motion for Relief from Arbitration Order is hereby
DATED at Montpelier, Vermont this 2nd day of May 2014.
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.
Tag Archive for: compensable rate
Jeffrey Wimble v. Green Mountain Coffee Roaster/ MEMIC and (May 2, 2014)