Tina Ploof v. Franklin County Sheriff’s Department and (August 8, 2014)

Tina Ploof v. Franklin County Sheriff’s Department and (August 8, 2014)
Tina Ploof Opinion No. 13-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Franklin County
Sheriff’s Department and For: Anne M. Noonan
Trident/Massamont Commissioner
State File No. EE-58445
Claimant seeks an award of attorney fees totaling $11,599.09 and costs totaling $500.51 after
successfully convincing the Department to issue an interim order for workers’ compensation
benefits during the informal dispute resolution process.
The underlying facts in this case are somewhat complicated. Claimant suffered a low back
injury as a result of a work-related motor vehicle accident in 2004. In 2005 she underwent
surgical fusion at the L5-S1 level. As the workers’ compensation insurance carrier on the risk at
the time, Defendant Trident/Massamont (“Trident”) paid benefits accordingly. In 2006 she
reached a settlement with the third party who was at fault for her accident. After deducting its
share of the expenses of recovery, 21 V.S.A. §624(f), Trident was credited with a workers’
compensation “holiday” totaling $135,538.45, in accordance with 21 V.S.A. §624(e).
Claimant resumed treatment for low back pain in January 2013. In April 2013 she underwent a
second fusion surgery, this time at the L4-5 level. Her treating surgeon, Dr. Barnum, diagnosed
adjacent segment disease, which he attributed to her original work injury in 2004 and subsequent
L5-S1 fusion. Claimant suffered complications from the second fusion surgery, necessitating
two additional surgeries thereafter as well as ongoing temporary total disability.
In July 2013 Claimant’s then-counsel, Attorney Lynn, corresponded with Trident’s attorney
regarding her recently submitted claim for workers’ compensation benefits causally related to her
renewed treatment and disability. Notwithstanding Dr. Barnum’s causation opinion, Attorney
Lynn asserted that Claimant’s condition was causally related not to her original 2004 injury, but
rather to her work activities in late 2012 and thereafter. This constituted a new injury, he
claimed. The legal consequence of this characterization, according to Attorney Lynn, was that
Trident would not be entitled to claim any §624(e) “holiday” referable to Claimant’s 2006 third
party settlement.
In October 2013 Attorney Lynn’s partner, Attorney Blackman, filed a Notice of Injury and Claim
for Compensation (Form 5) on Claimant’s behalf with the Department. Trident denied
responsibility on the grounds that Claimant had suffered a new injury or aggravation, for which
her employer’s current insurance carrier was responsible. Attorney Blackman responded by
filing a Notice and Application for Hearing (Form 6) in November 2013.
Also in November 2013, at Trident’s request Claimant underwent an independent medical
examination with Dr. Backus. Dr. Backus agreed with Dr. Barnum’s assessment that Claimant
suffered from adjacent segment disease at the L4-5 level as a consequence of the L5-S1 fusion
surgery she had undergone in 2005. However, his ultimate conclusion, which he stated to a
reasonable degree of medical certainty, was that her work activities in late 2012 and early 2013
had further worsened the deterioration at that level, and thus amounted to an aggravation.
In December 2013 Attorney Blackman requested that Trident’s attorney put the employer’s
current carrier on notice of its potential liability for Claimant’s claim. Trident’s attorney
conveyed this message to the Department, which promptly notified the current carrier, Acadia.
Acadia responded in January 2014, denying responsibility on the grounds that there had been no
aggravation or new injury, and that Trident remained responsible for whatever benefits were
In early February 2014 Attorney Blackman was granted leave to withdraw as Claimant’s counsel
on conflict of interest grounds, and Claimant’s current counsel, Attorney McVeigh, entered his
appearance in her place. Following an informal conference, in late February 2014 the
Department’s workers’ compensation specialist concluded that Claimant had suffered a
recurrence rather than an aggravation, for which Trident remained on the risk. Based on medical
bills Claimant’s current counsel had submitted, the specialist further determined that the
workers’ compensation “holiday” attributable to Claimant’s 2006 third party settlement had been
exhausted. The specialist therefore issued an interim order against Trident for retroactive and
ongoing temporary total disability and medical benefits. Trident’s motion to stay was denied,
and it commenced payment as ordered thereafter. The claim is now pending on the formal
hearing docket, where the disputed issues include both aggravation/recurrence and the proper
calculation of any applicable workers’ compensation “holiday.”
In support of her petition for attorney fees and costs, Claimant cites to 21 V.S.A. §678(d), which
states as follows:
In cases for which a formal hearing is requested and the case is resolved
prior to formal hearing, the commissioner may award reasonable attorney
fees if the claimant retained an attorney in response to an actual or
effective denial of a claim and thereafter payments were made to the
claimant as a result of the attorney’s efforts.
In exercising the discretion granted by §678(d) to award fees at the informal dispute resolution
level the commissioner typically has relied on Workers’ Compensation Rule 10.1300 for further
1 The parties dispute whether §678(d), which was added to the statute in 2008, some years after Claimant’s original
injury, is even applicable to this claim. The Commissioner has held that the new section amounts to a procedural
amendment rather than a substantive one, and therefore that it can be applied retroactively. Yustin, supra at p. 6
(interpreting the Supreme Court’s reference to §678(d) in Yustin v. State of Vermont, 2011 VT 20 at ¶14 and n.2). In
either event, both before and after the amendment, the statute has vested the Commissioner with discretion whether
Awards to prevailing claimants are discretionary. In most instances
awards will only be considered in proceedings involving formal hearing
resolution procedures. In limited instances an award may be made in a
proceeding not requiring a formal hearing where the claimant is able to
demonstrate that:
10.1310 the employer or insurance carrier is responsible for undue
delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in
misconduct or neglect, and
10.1340 that legal representation to resolve the issues was
necessary, and
10.1350 the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has
been responsible for any unreasonable delay in resolving
the issues.
Compare Pawley v. Booska Movers, Opinion No. 04-13WC (February 5, 2013) (petition for prehearing
costs and attorney fees granted), with Yustin v. State of Vermont, Department of Public
Safety, Opinion No. 08-12WC (March 20, 2012) (petition denied); Zahirovic v. Super Thin Saws,
Inc., Opinion No. 38-11WC (November 18, 2011) (same).
The discretion granted by §678(d) to award fees in cases that are resolved prior to formal hearing
is broad. Zahirovic, supra. Rule 10.1300 directs that this discretion is to be exercised only in
limited circumstances, and only when specific requirements are met. Id. One such requirement,
embodied in Rules 10.1310 through 10.1330, is that the employer or insurance carrier be shown
to have behaved unreasonably in crafting its defense against a claim for benefits. Dudley v.
South Burlington Supervisory Union, Opinion No. 23-13WC (October 16, 2013).
Claimant’s current counsel here asserts that because Trident failed either to advance disability
benefits and/or to calculate the extent of its workers’ compensation “holiday,” it
“unconscionably delayed” adjusting her claim. Counsel further asserts that at least until
November 2013, when Dr. Backus issued his causation opinion, Trident had no reasonable basis
for denying the claim, as Dr. Barnum already had attributed her renewed symptoms to her
original injury. Claimant argues that these omissions are sufficient to justify an award of fees
under Rule 10.1300.
to award fees at the informal level, and the factors listed in Rule 10.1300, which dictate how that discretion is to be
exercised, have remained unchanged as well. See, e.g., Reed v. Leblanc, Opinion No. 08-05WC (January 19, 2005).
I disagree with both assertions. The fact is, from July 2013, when Attorneys Lynn and Blackman
first notified Trident of Claimant’s claim for additional benefits, until late January 2014, when
they withdrew their representation, the factual and legal posture they assumed on her behalf was
that her renewed disability and need for treatment were not related to her original 2004 injury,
but rather indicated a new injury, one to which the “holiday” did not apply. As Trident’s
coverage had long since expired, there would have been no basis for it to advance benefits, nor
any reason for it to attempt to calculate the extent of its remaining credit.2 There also would
have been no reason for Trident to seek its own expert medical opinion on causation. Claimant’s
assertion that she had suffered a new injury, at a time when it was no longer on the risk, provided
ample basis in itself for denying the claim.
I acknowledge that upon her review, the Department’s workers’ compensation specialist
concluded that the record as a whole favored a finding of recurrence rather than new injury, and
therefore ordered Trident to assume responsibility for the claim pending formal resolution of the
issue. That she thus rejected the basis for Trident’s denial does not automatically render it so
unreasonable as to justify an award of attorney fees, however. I do not necessarily equate the
requisite finding for issuing an interim order under 21 V.S.A. §662(b) – that the employer’s
denial lacks “reasonable support” based on the record as a whole, see 21 V.S.A. §601(24) – with
the finding required for an award of attorney fees under Rule 10.1320 – that at the time it denied
the claim the employer had no “reasonable basis” for doing so. Yustin, supra at p. 7.
I conclude that neither of the grounds Claimant has asserted in support of her petition for
attorney fees is sufficient to establish that Trident unreasonably denied her claim, or otherwise
engaged in misconduct, neglect or undue delay. For that reason, I must reject her petition for an
award of attorney fees and costs.
2 Claimant’s counsel apparently assumes that the burden rested on Trident to calculate the extent of any remaining
“holiday,” and therefore that it acted unreasonably by failing to do so promptly. However, it is Claimant who
presumably would have had the best access to the information required to do so, including medical treatment
charges and/or lost wages incurred in the years since her third party settlement. That being the case, it may be more
appropriate in such cases to assign the injured worker with responsibility for monitoring the extent to which he or
she has spent down a credit, not the carrier.
Based on the foregoing, Claimant’s Petition for Award of Attorney Fees and Costs is hereby
DATED at Montpelier, Vermont this ____ day of August 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.