Tag Archive for: genuine issue of material fact

J. C. v. Experian Information Solutions (October 23, 2007)

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J. C. v. Experian Information Solutions (October 23, 2007)
J. C. Opinion No. 30-07WC
v. By: Phyllis Severance Phillips, Esq.
Hearing Officer
Experian Information
Solutions For: Patricia Moulton Powden
State File No. U-04233
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant
Whether a genuine issue of material fact exists as to the compensability of Claimant’s claim for workers’ compensation benefits arising out of her September 15, 2003 injury.
The following material facts are undisputed:
1. On September 15, 2003 Claimant Judy Carlson was employed by Defendant Experian Information Solutions.
2. Defendant is a bulk mail facility with the numerous machines necessary to print, cut, fold, insert and mail a high volume of bulk mail.
3. Claimant had worked for Defendant or its predecessor companies since 1984. She started as a temporary machine operator. She then trained as a mechanic. Over the years, she was promoted through the ranks to Senior Mechanic.
4. Kevin Barkey was a machine operator at Experian. Shortly before 11:00 PM on September 15, 2003 he saw Claimant walking towards him.
5. Claimant was next to an unwinder machine known as Machine 490.
6. When Claimant was 10-15 feet from Mr. Barkey, he noticed that she was shaking. There was music playing, and he thought that she might be dancing or “goofing around.” He then saw her “go down.”
7. Claimant dropped like dead weight. She fell without attempting to protect herself. Mr. Barkey saw her strike the back of her head on a large machine bolt that extended from the end of Machine 490. The bolt is about two feet from the floor.
8. Claimant then continued to fall towards the floor and again struck her head on the machine, this time against a steel “rail” about three inches from the floor.
9. Claimant landed on her left side. Her left shoulder was on the ground and her tool belt was under her. Mr. Barkey, who was only about 10 feet away, came to her assistance within seconds.
10. At the time, Claimant was bleeding from the head and mouth. According to Mr. Barkey, she was “trembling” and “shaking.” He was concerned that she was going to hit her head on the cement floor. He cradled her head in an effort to protect her from further injury.
11. The Rutland Regional Ambulance immediately responded to the scene. Their report indicates that Claimant initially was able to speak to them, but then began a grand mal seizure.
12. The Rutland Hospital Emergency Department Report reports that paramedics initially found Claimant “perhaps a bit lethargic but cooperative following commands and then began experiencing seizure activity.”
13. The Emergency Department diagnosed Claimant with a skull fracture, head injuries, a left shoulder dislocation, liver laceration, fractured ribs and a scalp laceration.
14. Claimant’s injuries were so severe that the police initially considered foul play. Ultimately, the police concluded that the injuries occurred when she “fell against unwinder Machine Number 490.”
15. Claimant has no recollection of the events leading to her injury. She does not recall anything until she awoke in the hospital about two weeks later.
16. The Employer’s Form 1 described the incident as follows: “THE IW APPERARED (sic) TO HAVE A SEIZURE AND PAAOUT (sic) WHICH CAUSED HER TO FALL AND HIT HER HEAD ON THE UNWINDER STAND.”
17. Defendant denied the claim on the grounds that the incident did not arise from Claimant’s employment.
1. In order to prevail on a motion for summary judgment, the moving party must satisfy a stringent two-part test: first, no genuine issue of material fact must exist between the parties; and second, there must be a valid legal theory that entitles the moving party to judgment as a matter of law. Price v. Leland, 149 Vt. 518, 521 (1988); V.R.C.P. 56(c). The moving party has the burden of proof, and the opposing party must be given the benefits of all reasonable doubts and inferences in determining whether a genuine issue of material fact exists. Id., citing Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 520 (1985).
2. In the current claim, the key issue is compensability. Claimant argues that she suffered an idiopathic fall, the injurious consequences of which were exacerbated because of her proximity either to the unwinder machine and/or to the cement floor, both work-related hazards. Claimant argues that the increased danger posed by these work conditions establishes the causal connection necessary to render her injuries compensable.
3. In contrast, Defendant argues that questions of fact exist as to whether Claimant’s injuries were caused by the combination of her striking the unwinder machine and the cement floor or solely by striking the cement floor. If the latter, Defendant argues, then this is insufficient legally to establish that work conditions increased the danger of injury from an idiopathic fall, and therefore Claimant’s motion for summary judgment must fail.
4. To establish a compensable claim under Vermont’s workers’ compensation law, a claimant must show both that the accident giving rise to his or her injury occurred “in the course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161 Vt. 213, 214 (1993); 21 V.S.A. §618.
5. An injury occurs in the course of employment “when it occurs within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
6. An injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called “positional risk” analysis lays responsibility on an employer when an employee’s injury would not have occurred “but for” the employment and the worker’s position at work. Id.
7. Putting these two prongs of the compensability test together, the “in the course of” requirement establishes a time and place connection between the injury and the employment, while the “arising out of” requirement establishes a causal connection between the injury and the employment. See Spinks v. Ecowater Systems, WC 04-217 (Minn. Work.Comp.Ct.App., January 21, 2005). Both connections are necessary for a claim to be compensable.
8. There is no dispute in the current claim as to the “in the course of” requirement to establish compensability. Claimant’s injuries occurred while she was at Defendant’s work place, performing the job duties she was hired to do at the time she was supposed to be doing them.
9. The dispute here concerns the “arising out of” component, and it is driven by the fact that Claimant’s fall itself was not caused by her work, but rather by a medical event that was purely personal to her, a so-called idiopathic fall.1 Professor Larson has described the requirements for finding such injuries compensable as follows:
The basic rule, on which there is now general agreement, is that the effects of [an idiopathic] fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
1 Larson, Workers’ Compensation Law §9.01[1].
10. It is important to understand the rationale for requiring that the employment connection in idiopathic fall claims be one of “increased danger” rather than simply “positional risk.” An idiopathic fall case begins as one caused solely by the claimant’s personal risk, with no work-related causal link whatsoever. To shift responsibility for the injury that results from such a fall to the employer, it is reasonable to require a greater showing than merely that the employee was at work when he or she fell. Thus, there must be some “substantial employment contribution” to the resulting harm for it to be compensable. Larson, supra at §9.01[4][b].
11. Applying this rule to the current claim, were Defendant to admit that Claimant’s injuries were caused, in whole or in part, by striking the unwinder machine, then there would be no genuine issue of material fact as to compensability and Claimant would be entitled to summary judgment as a matter of law. In such circumstances, the unwinder machine’s proximity to Claimant at the time of her fall would pose a sufficiently increased danger of harm as to meet the “substantial employment contribution” test.
1 The medical cause of the event that led to Claimant’s idiopathic fall remains unclear. Defendant contends that Claimant may have suffered an alcohol withdrawal seizure, a conclusion that Claimant argues is merely speculative. Regardless of its medical origin, however, the parties agree that the precipitating event that led to Claimant’s fall was purely personal and not work-related at all. Thus the fall qualifies as an idiopathic one and the rules relating to such falls apply. See Pemberton Chevrolet, Inc. v. Harger, 120 P.3d 892 (Ok.Civ.App. 2005) (alcohol withdrawal seizure constitutes an idiopathic condition).
12. Defendant has admitted no such thing, however. To the contrary, Defendant has produced expert medical testimony that purports to establish that Claimant’s injuries resulted solely from her striking the cement floor. This raises a more controversial question – “whether the effects of an idiopathic fall to a level floor should be deemed to arise out of the employment.” Larson, supra.
13. The majority of jurisdictions that have considered the question have denied compensation in level-fall cases, reasoning that the employment does not significantly add to the risk merely by providing a floor upon which the claimant might fall. Larson, supra at §9.01[4][a] and cases cited therein.
14. This Department has considered idiopathic fall cases before, but not yet in the context of a fall solely to a level floor. See A.D. v. Grand Union Co., Opinion No. 34-02WC (August 20, 2002) (injuries caused by idiopathic fall down stairs to cement landing found compensable); Marcy v. Georgia Pacific, Opinion No. 27-98WC (June 1, 1998) (injuries caused by idiopathic fall from three-foot platform found compensable). Having considered the rationale underlying the increased-danger requirement in idiopathic fall claims, the majority position as to level-fall cases is the most reasonable. The law of gravity dictates that when one falls, one will land on the surface below. If all that the employment contributes to an idiopathic fall situation is a level surface to end the fall, then it has not contributed any increased danger at all. To find compensability in such a situation – when the fall’s origin is purely personal in nature, with no link whatsoever to work – would be to negate the causal connection between the injury and the employment that the “arising out of” language of the statute requires.
15. Claimant cites to cases from other jurisdictions in support of her argument that the hardness of the floor at work provides the requisite increased danger to sustain compensability. See, e.g., Ball v. Workmen’s Compensation Appeal Board, 340 A.2d 610 (Pa. Commw. 1975); George v. Great Eastern Food Prod., Inc., 207 A.2d 161 (N.J. 1965). Presumably Claimant contends that had she fallen to a floor that was constructed of some softer material than cement, her injuries would not have occurred. This line of reasoning would require that a standard of acceptable hardness be established, with idiopathic falls to sufficiently hard floors being compensable and those to softer floors being not. See Koenig v. North Shore Landing, 54 W.C.D. 86, 94 (Minn.Work.Comp.Ct.App., 1996). I decline to adopt a rule that requires factual distinctions so fine as to be impractical. Legal standards are best applied when their outcome is predictable. Better to draw the line at falls involving some clearly observable employment-connected danger, therefore, such as a height, a machine, a sharp corner or a moving vehicle, than to attempt to ascertain the relative hardness of a floor.
16. Viewing the evidence in the light most favorable to Defendant, it is possible that Claimant’s injuries were caused solely by virtue of her contact with the level floor after her fall, and not as a result of striking the unwinder machine on the way down. If that is the case, then her claim is not compensable. A genuine issue of material fact exists, therefore, which renders summary judgment in Claimant’s favor inappropriate.
Claimant’s Motion for Summary Judgment is DENIED.
Dated at Montpelier, Vermont this 30th day of October 2007.
Patricia Moulton Powden
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.

Thomas J. Kibbie v. Killington/Pico Ski Resort (February 5, 2013)

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Thomas J. Kibbie v. Killington/Pico Ski Resort (February 5, 2013)
Thomas J. Kibbie Opinion No. 03-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Killington/Pico Ski Resort
For: Anne M. Noonan
John Mabie, Esq., for Claimant
John Valente, Esq., for Defendant
Is there a genuine issue of material fact as to whether the parties’ previously approved settlement agreement shields Defendant from responsibility for the medical treatment Claimant seeks, or is Defendant entitled to judgment in its favor as a matter of law?
Claimant’s Exhibit 1: Prescriptions and Request for Pre-Authorization
Claimant’s Exhibit 2: Occupational and physical therapy notes
Claimant’s Exhibit 3: Report of William Druckemiller, M.D., July 22, 2009
Claimant’s Exhibit 4: Report of Albert Drukteinis, M.D., July 9, 2012
Defendant’s Exhibit 1 Modified Form 15 Settlement Agreement with Addendum and Workers’ Compensation Rule 17 letter
Defendant’s Exhibit: 2 Letter from Attorney Valente to Attorney Mabie, March 20, 2012
Defendant’s Exhibit: 3: Interim Order, Memorandum and Referral to Formal Hearing Docket, August 3, 2012
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. On January 12, 2008 Claimant was engaged as a volunteer/ambassador at Killington Ski Resort. While snowboarding down to complete his day’s duties, he fell, causing injuries
to his right ankle, right elbow/bicep, neck and head. Claimant also suffered a traumatic brain injury (TBI) in the accident.
2. On September 15, 2010, while Claimant was represented by counsel, the Department approved a modified Form 15 settlement agreement pertaining to his snowboard accident.
4. As executed by the parties and approved by the Department, Claimant agreed to accept $50,000.00 in return for a full and final settlement of “[a]ll claims occurring as a result of the work incident including but not limited to right ankle, head/TBI and right elbow/biceps, while leaving open all related future medical treatment pursuant to the Rules necessary for the treatment of [his] cognitive or other head injury, including neurological, psychological, ophthalmological, TBI care and treatment; and prior care for his covered injuries.”
5. Defendant’s responsibilities as to future medical benefits were restated in an addendum to the Form 15 as follows: “As part of this agreement, the carrier agrees it will continue to furnish all reasonable and related future medical treatment pursuant to the Rules, necessary to for [sic] the treatment of his cognitive or other head injury, including neurological, psychological ophthalmological, TBI care and treatment; and to pay for care for his covered injuries prior to the time of settlement.”
6. Since his injury, Claimant has received both occupational and physical therapy services. The latter services have at times included manual techniques, massage and cervical traction. It is unclear from the record to what extent these modalities were directed at head as opposed to neck pain. For example:
• While undergoing physical therapy in March 2008, Claimant described headaches emanating from the base of his skull to his right frontal area; treatments included both sub-occipital release and upper trapezius massage;
• In November 2008 Claimant’s in-patient rehabilitation treatment providers commented that he would benefit from “manual therapy to neck/head” as treatment for a primary diagnosis of “TBI” and a treatment diagnosis of “head pain, headaches;”
• In September 2009 Claimant again underwent in-patient rehabilitation treatment for a primary diagnosis of “TBI” and a treatment diagnosis of “head and right upper extremity pain, headaches, decreased oculomotor skills.” His treatment providers reported that he was suffering from “severe headaches in the back of the head,” that moving his eyes caused “instant headache,” and that he had pain both in the back of his head and in his forehead. Without specifying which modalities were recommended for which symptoms, the treatment plan included therapeutic exercises, neuro re-education, manual therapy and home exercises.
7. Dr. Druckemiller, a neurosurgeon, performed an independent medical evaluation of Claimant in July 2009. Dr. Druckemiller reported that Claimant complained of pain on the right side of his neck, with radiation into his head and severe headaches on a continuing basis. His diagnosis was closed head injury, though he noted that Claimant
was “having more symptoms than I would expect for this type of injury.” Dr. Druckemiller did not specify whether Claimant’s headaches were a consequence of his closed head injury, his neck injury, or some combination of the two.
8. On October 7, 2010 Dr. Miller, Claimant’s treating physiatrist, referred him for physical therapy, including both manual techniques and massage. The diagnosis stated on the referral form was “TBI/HA/neck pain.” Dr. Miller did not specify whether the prescribed therapy was directed at one, two or all three of these diagnoses. Subsequently, on November 8, 2010 Dr. Miller completed a second physical therapy referral form. This form as well was for both manual therapy and massage, but the stated diagnosis read simply, “cervical pain.”
9. Claimant attended physical therapy sessions in November and December 2010. In the therapist’s November 19, 2010 initial evaluation, the assessment stated a diagnosis of “chronic neck pain, headaches, [right] sub-occipital pain [secondary to] TBI [January] 2008 while working at ski resort in Vermont. [Patient] presents with limited ROM and headaches.” The problems identified were: “1. pain; 2. headaches; 3. limited cervical spine ROM.” The treatment plan was for physical therapy consisting of manual techniques, patient education, mechanical traction and spinal mobility. The record does not specify which of the therapist’s services were to be directed at which symptoms.
10. On December 19, 2010 Dr. Miller issued a third physical therapy referral, this time to “assess and order” a cervical home traction unit. The diagnosis stated on this referral form was “TBI, neck pain.” It is unclear from the record whether this referral was directed at one or both of these diagnoses.
11. On November 28, 2011 Dr. Miller issued the following prescription: “P.T. – 2x/wk for 4 wks for manual therapies, cervical traction, modalities.” Stated at the top was the following notation: “Dx: neck/back pain, HA.”
12. On December 28, 2011 Dr. Miller issued a prescription for “neuro-optometry for visual eval and therapy.” Stated at the top was the notation, “Dx: TBI.”
13. Defendant maintained that Dr. Miller’s physical therapy referrals of October 7, 2010, November 8, 2010 and December 19, 2010, as well as his November 28, 2011 prescription, were necessitated by Claimant’s neck pain rather than his TBI. Therefore, it asserted, under the terms of the parties’ settlement agreement it was not obligated to pay for them.1 The Department’s Workers’ Compensation Specialist disagreed, and in January 2012 ordered that Defendant issue payment for those and other outstanding medical bills. Defendant complied.
14. At Defendant’s request, in July 2012 Claimant underwent an independent medical evaluation with Dr. Drukteinis, a psychiatrist.
1 Defendant accepted responsibility for Dr. Miller’s December 28, 2011neuro-optometry referral as causally related to Claimant’s TBI, and therefore still covered even notwithstanding the parties’ settlement agreement.
15. Dr. Drukteinis agreed that Claimant was properly diagnosed with residual TBI causally related to his January 2008 snowboarding accident. However, he did not render an opinion whether Claimant’s headaches were a symptom of TBI. Dr. Drukteinis hypothesized that the headaches “may or may not just be an exacerbation” of the occasional migraines from which Claimant had suffered before the work injury, but acknowledged in either event that they “are no doubt impacted by his disturbed emotional state.” As for the efficacy of and expenses related to physical therapy, Dr. Drukteinis viewed this as a medical determination, not a psychiatric one, and therefore did not state an opinion.
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. At issue here is whether the parties’ executed and approved settlement agreement shields Defendant from responsibility for the specific physical therapy services that Dr. Miller has prescribed. Defendant argues that under the terms of the settlement agreement it is obligated to provide only those medical treatments that represent reasonable and necessary treatment for Claimant’s “cognitive or other head injury.” It contends that the uncontradicted evidence establishes that the services at issue have been prescribed to address cervical pain and/or headaches, not a cognitive impairment or head injury. Therefore, it asserts, as a matter of law they do not qualify for ongoing coverage under the agreement.
3. There is certainly evidence from which to infer that the physical therapy Dr. Miller has prescribed is most likely directed at Claimant’s cervical pain, and/or that Claimant’s headaches are most likely cervical in origin. Were I to accept this evidence as the most credible, then by virtue of the parties’ settlement agreement Defendant would indeed be absolved of responsibility. However, considering the evidence in the light most favorable to Claimant, I find ample grounds from which to infer the opposite – that Claimant’s headaches are not cervical, but rather are a consequence of his closed head injury, oculomotor deficits and/or TBI. If the most credible evidence establishes that to be the case, then Defendant will be obligated to pay for the treatment at issue.
4. The sole purpose of summary judgment review is to determine if a genuine issue of material fact exists. If such an issue does exist, it cannot be adjudicated in the summary judgment context, no matter how unlikely it seems that the party opposing the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973); Southworth v. State of Vermont Agency of Transportation, Opinion No. 45-08WC (November 12, 2008). However tenuous or unlikely the evidence in support of Claimant’s claim that the medical treatment at issue here is directed at his “cognitive or other head injury” rather than at a cervical spine-related condition, he is entitled nonetheless to present his case and litigate the question. Summary judgment against him is not appropriate.
Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of February 2013.
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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