STATE OF VERMONT
DEPARTMENT OF LABOR
Tony Vohnoutka v. Ronnie’s Cycle Sales of Bennington, Inc
Opinion No. 01-16WC
- By: Phyllis Phillips, Esq.
Administrative Law Judge
For: Anne M. Noonan
Commissioner
State File No. FF-00938
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Claimant, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
- Is Claimant’s claim for workers’ compensation benefits barred as a matter of law
for failure to give timely notice of his alleged work-related injury as required by
21 V.S.A. §656(a)?
- Is Defendant entitled to judgment in its favor as a matter of law on the question
whether Claimant suffered a compensable work-related injury on or about
February 22, 2013?
- Is Defendant entitled to judgment in its favor as a matter of law on the question
whether Claimant is entitled to workers’ compensation benefits causally related to
his alleged February 22, 2013 work injury?
EXHIBITS:1
Claimant’s Exhibit 1: Affidavit of Tony Vohnoutka, January 9, 2015
Claimant’s Exhibit 2: Office note and referrals (Melanie Clark, NP), 2/10/2014
Claimant’s Exhibit 3: Office note and referrals (Melanie Clark, NP), 6/20/2014
1 Claimant failed to file a separate and concise statement of contested facts in response to Defendant’s
Motion for Summary Judgment, as is required by V.R.C.P. 56(c)(1)(A), and his memorandum in opposition
was non-responsive to the issues presented. Given both Claimant’s pro se status and the relatively informal
nature of the formal hearing process, Workers’ Compensation Rule 17.1100, in ruling on Defendant’s
motion I have considered various documents, identified herein as Claimant’s exhibits, that were previously
filed with the Department, as is permitted by V.R.C.P. 56(c)(3).
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Claimant’s Exhibit 4: Doctor’s progress report (Dr. Maggio), 6/25/2014
Claimant’s Exhibit 5: Doctor’s initial report (Dr. Maggio), 6/26/2014
Claimant’s Exhibit 6: Office note (Melanie Clark, NP), 12/9/2014
Defendant’s Exhibit A: Letter from Denise Bourassa, March 27, 2014
Defendant’s Exhibit B: Timecards, March 4 – July 18, 2013; various tardy/absence
reports; documented warnings; employee’s statement
verifying receipt of company handbook
Defendant’s Exhibit C: Affidavit of Dave Munson, March 18, 2015
Defendant’s Exhibit D: Office note (Dr. Robbins), 7/14/2014
Defendant’s Exhibit E: Independent medical evaluation report (Dr. Boucher),
9/25/2015
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving
party, State v. Delaney, 157 Vt. 247, 252 (1991), and taking judicial notice of all relevant
forms contained in the Department’s claim file, I find the following facts:
- Claimant worked for Defendant, a retailer of recreational vehicles, as a service
technician. First Report of Injury (Form 1), March 27, 2014.
Claimant’s Alleged February 2013 Work Injury, Subsequent Medical Course and
Employment Status
- On or about November 12, 2013 Claimant informed Defendant’s service manager,
Dave Munson, that he wished to seek medical treatment for an injury he alleged
he had suffered while at work in January or February 2013. Letter from Denise
Bourassa, Defendant’s Exhibit A.
- More specifically, Claimant asserts by affidavit that he injured his neck on
February 22, 2013, while helping Mr. Munson unload a snowmobile from the
back of a truck. Affidavit of Tony Vohnoutka, Claimant’s Exhibit 1. He further
asserts that Mr. Munson later acknowledged that the incident had occurred,
although he recalled it as having taken place at a later date. Id.
- For his part, Mr. Munson denies any knowledge or recollection of the incident
Claimant alleged, or of any other work-related accident or injury occurring in
January or February 2013. According to his affidavit, prior to November 12,
2013 Claimant had never indicated either that he had suffered an injury or that he
was unable to perform his routine job duties. Affidavit of Dave Munson,
Defendant’s Exhibit C. Nor had Mr. Munson observed anything in Claimant’s
performance that was suggestive of an injury. Id.
- Upon learning of Claimant’s claim that he had suffered a work-related injury,
Defendant’s human resources representative, Denise Bourassa, advised him “to
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seek medical attention on his own accord because the claim was not made
available at [the] time of the incident.” As support for Defendant’s position, Ms.
Bourassa cited language from Defendant’s Company Policy Handbook requiring
that “any accident on the job, no matter how small, must be reported immediately
to your supervisor.” Defendant’s Exhibit A.
- The medical records do not document any treatment for neck pain or injury until
February 10, 2014. On that date, Claimant presented to Melanie Clark, a nurse
practitioner, with a complaint of neck pain that reportedly had begun “about a
year ago at work moving a snowmobile.” Ms. Clark diagnosed cervicalgia.
Based on the history Claimant described, she determined that the February 2013
lifting incident was the “competent medical cause” of his injury. As treatment,
Ms. Clark prescribed pain medications and made referrals for both physical
therapy and an orthopedic consult. In the meantime, noting that Claimant had
been able to work without restrictions since his injury, she did not change his
work duties. Melanie Clark office note, Claimant’s Exhibit 2.
- Ms. Clark next examined Claimant on June 20, 2014. She reiterated that his
complaints were consistent with the history he had reported, and again
recommended both physical therapy (which Claimant had not yet initiated) and an
orthopedic consultation. Notwithstanding his subjective report of worsening pain,
Ms. Clark also reiterated that Claimant was capable of working without
restrictions or limitations. Melanie Clark office note, Claimant’s Exhibit 3; see
also Doctor’s Progress Report, Claimant’s Exhibit 4, and Doctor’s Initial Report,
Claimant’s Exhibit 5.
- Claimant underwent an orthopedic consultation with Dr. Robbins on July 14,
- According to the medical record, he reported the sudden onset of neck pain
some two years previously “as a result of lifting.” Dr. Robbins’ clinical
impression was of a soft tissue and posterior element cervical spine injury, with
resulting spasm and mechanical decompensation. I cannot discern from the
medical record whether he attributed these conditions to an acute event or to
“incremental repeat irritations,” whether work-related or not. Dr. Robbins office
note, Defendant’s Exhibit D.
- As treatment for Claimant’s symptoms, Dr. Robbins recommended home
exercises, ice and a short course of physical therapy. As for work capacity,
consistent with Ms. Clark’s prior determination, he too indicated that Claimant
was capable of working full duty, without restrictions. Id.
- In August 2014 Defendant terminated Claimant’s employment “due to
increasingly substandard performance.” Affidavit of Dave Munson, Defendant’s
Exhibit C.
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- Between February 22, 2013 and August 2014, Claimant worked full time and
performed his regular duties. Affidavit of Dave Munson, Defendant’s Exhibit C;
timecards and absence reports, Defendant’s Exhibit B.
- On December 9, 2014 Claimant returned to Ms. Clark, again complaining of
ongoing neck pain. Ms. Clark reported that Claimant felt that his injury “has
caused him a degree of disability and he is [now] unable to perform the type of
work he did previously as a mechanic technician.” As treatment, she referred him
for chiropractic evaluation. She also expressed that vocational rehabilitation
would be beneficial, “as he feels due to the ongoing neck pain he is unable to
perform heavy lifting anymore.” With that in mind, Ms. Clark determined that as
of December 9th Claimant was able to work, but with limitations against bending,
twisting, lifting and operating heavy equipment. Melanie Clark office note,
Claimant’s Exhibit 6.
- At Defendant’s request, on September 25, 2015 Claimant underwent an
independent medical examination with Dr. Boucher. Dr. Boucher diagnosed
myofascial pain, which in his opinion was not causally related to the alleged
February 22, 2013 work injury. Dr. Boucher further determined that Claimant
had reached an end medical result, with no permanent impairment and no need for
additional medical treatment. As for work capacity, he found “no objective
reason for any work restrictions.”
- Following Defendant’s termination of his employment, Claimant applied for and
received unemployment compensation, but the record does not indicate for how
long. As of this date, he remains unemployed.
Procedural History
- Defendant filed a First Report of Injury (Form 1) with the Department on or about
April 10, 2014. It denied the claim on the same date, on the grounds that the
injury Claimant alleged had not arisen in the course and scope of his employment
and was not causally related thereto. Denial of Workers’ Compensation Benefits
by Employer or Carrier (Form 2), April 9, 2014.
- Claimant appealed Defendant’s claim denial by way of a Notice and Application
for Hearing (Form 6), filed on September 22, 2014 and supplemented on January
23, 2015. After informal dispute resolution efforts failed, the claim was
forwarded to the formal hearing docket.
DISCUSSION:
- 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 non5
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. Heritage Realty of Vermont, 137 Vt.
425 (1979). It is unwarranted where the evidence is subject to conflicting
interpretations, regardless of the comparative plausibility of facts offered by either
party or the likelihood that one party or another might prevail at trial. Provost v.
Fletcher Allen Health Care, Inc., 2005 VT 115, ¶15.
- Defendant here seeks summary judgment on three grounds. First, it asserts that
Claimant’s claim for workers’ compensation benefits is barred as a matter of law
because he failed to give timely notice of his alleged work-related injury, as
required by 21 V.S.A. §656(a). Second, it asserts that Claimant has failed to
produce sufficient evidence to establish a prima facie case that he suffered a
compensable work injury on or about February 22, 2013. Last, and in the same
vein, it asserts that Claimant has failed to produce sufficient evidence to establish
a prima facie case entitling him to the benefits available under Vermont’s
workers’ compensation law.2
Timely Notice
- Vermont’s workers’ compensation statute requires that a worker give notice of an
alleged work-related injury to his or her employer “as soon as practicable” after
the injury occurs, and that a claim for compensation be made within six months
thereafter. 21 V.S.A. §656(a). These requirements are not absolute, however.
Section 660(a) excuses the worker from them “if it is shown that the employer,
the employer’s agent, or representative had knowledge of the accident . . ..”
- Defendant here claims that Claimant failed to give timely notice of his alleged
injury and resulting claim for benefits. True, this is what Claimant’s supervisor
has averred, Finding of Fact No. 4 supra, but Claimant has sworn otherwise,
Finding of Fact No. 3 supra. Their conflicting statements thus present genuine
issues of material fact, which cannot be resolved on summary judgment.
Compensability
- To establish a compensable claim under Vermont’s workers’ compensation
statute, 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
2 I acknowledge that the only benefit Claimant specifically claimed in his September 22, 2014 Notice and
Application for Hearing was for permanent total disability benefits. However, given both his pro se status
and the relatively informal nature of these proceedings, Workers’ Compensation Rule 17.1100, I consider
his claim to encompass any other benefits to which he might be entitled should his injury be deemed
compensable. Having participated in numerous status conferences at which indemnity, medical and
vocational rehabilitation benefits were discussed, I presume that Defendant’s counsel is well aware of the
actual scope of Claimant’s demands.
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employment.” 21 V.S.A. §618(a)(1); Miller v. IBM Corp., 161 Vt. 213, 214
(1993).
- 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’s Estate v. Granite City Auto
Sales, Inc., 124 Vt. 95, 98 (1964).
- 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 the claimant
in the position where claimant was injured.” Shaw v. Dutton Berry Farm, 160 Vt.
594, 599 (1993) (emphasis in original).
- Putting the two prongs of the compensability test together, the “in the course of”
requirement generally “tests work-connection as to time, place and activity,” Cyr
- McDermott’s, Inc., 2010 VT 19, ¶13 (internal quotations omitted), while the
“arising out of” component establishes the required causal connection, id. at ¶10.
In order to establish entitlement to benefits, it is the claimant’s burden to prove
both components of the compensability test. Id. at ¶9 (internal citations omitted).
- Defendant here asserts that it is entitled to summary judgment on the grounds that
Claimant has failed to produce evidence sufficient to raise genuine issues of
material fact as to either element of compensability. I disagree. As to the first
element, the “time, place and activity” component, Claimant has sworn in his
affidavit that his injury occurred while moving a snowmobile at work, Finding of
Fact No. 3 supra. That Mr. Munson has sworn otherwise, Finding of Fact No. 4
supra, establishes only that genuine issues of material fact exist. Summary
judgment on this issue is therefore inappropriate.
- Similarly, determining the second element of compensability will require me to
evaluate whether Ms. Clark’s opinion on medical causation, as reflected in her
office notes, Finding of Fact Nos. 6, 7 and 12 supra, is more compelling than that
of Defendant’s expert, Dr. Boucher, Finding of Fact No. 13 supra. Again,
genuine issues of material fact have been presented, sufficient to defeat summary
judgment in Defendant’s favor.
Entitlement to Benefits
- Last, I consider whether summary judgment in Defendant’s favor is appropriate as
to any of the benefits Claimant seeks. Establishing both components of the
compensability test is a necessary prerequisite to every workers’ compensation
benefit, 21 V.S.A. §618(a)(1). With that in mind, and for the reasons stated
above, genuine issues of material fact exist as to Defendant’s responsibility for
Claimant’s medical treatment under 21 V.S.A. §640(a), and also as to Claimant’s
entitlement to vocational rehabilitation benefits under 21 V.S.A. §641. Only after
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I resolve the discrepancies between Claimant’s and Mr. Munson’s testimony
regarding the “in the course of” component, and those between Ms. Clark and Dr.
Boucher on the “arising out of” component, will I be able to determine to what
extent, if any, Defendant is responsible for providing these benefits.
- Given the record before me, I must evaluate Claimant’s claim for temporary
disability benefits in two parts – before and after December 9, 2014. Prior to that
date, Ms. Clark, Dr. Robbins and Dr. Boucher each determined that he was
capable of working full time and full duty, with no activity restrictions
whatsoever. Claimant has not proffered any evidence to the contrary, despite
having had ample opportunity to do so. He thus has failed to raise a genuine issue
of material fact, and for that reason, I conclude as a matter of law that he is not
entitled to temporary disability benefits for any period prior to December 9, 2014.
See, e.g., Doe v. Doe, 172 Vt. 533 (2001); Poplaski v. Lamphere, 152 Vt. 251,
254-255 (1989) (summary judgment mandated where, after adequate time for
discovery, a party fails to make a sufficient showing to establish the existence of
an element essential to its case).
- After December 9, 2014 Ms. Clark imposed activity restrictions, Finding of Fact
No. 12 supra, which if found credible might entitle Claimant to temporary
disability benefits from that date forward. Summary judgment on this issue is
therefore inappropriate.
Summary
- 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 claims for medical and vocational rehabilitation benefits are, he is
entitled nonetheless to present his case and litigate the fact questions that surround
them. The same is true with respect to his claim for temporary disability benefits
after December 9, 2014. Summary judgment against him on these issues is not
appropriate. Bohannon v. Town of Stowe, Opinion No. 03-14WC (February 26,
2014).
- Because no genuine issues of material fact exist as to Claimant’s claim for
temporary disability benefits for any period prior to December 9, 2014, summary
judgment on this issue is appropriate.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and
DENIED IN PART, as follows:
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- Summary judgment in Defendant’s favor is GRANTED as to Claimant’s
claim for temporary disability benefits for any period prior to December 9,
2014, and Claimant’s claim for such benefits is hereby DENIED;
- Summary judgment in Defendant’s favor is DENIED on the question
whether Claimant’s claim for workers’ compensation benefits is barred for
failure to give timely notice as required by 21 V.S.A. §656(a);
- Summary judgment in Defendant’s favor is DENIED on the question
whether Claimant suffered a compensable work-related injury on or about
February 22, 2013;
- Summary judgment in Defendant’s favor is DENIED as to Claimant’s
claim for medical, vocational rehabilitation and/or temporary disability
benefits for any period(s) after December 9, 2014.
DATED at Montpelier, Vermont this _____ day of __________________, 2016.
_________________________
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.