Lowell v. Rutland Area Visiting Nurses Assoc.

Lowell v. Rutland Area Visiting Nurses Assoc. (99-500)

[Filed May 2, 2000]

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 99-500

                             APRIL TERM, 2000



Judith Lowell			   }	APPEALED FROM
				   }
				   }
   	v.			   }	Department of Labor & Industry                           						
                                   }
Rutland Area Visiting Nurses	   }
				   }	DOCKET NO. L-04140



       In the above-entitled cause, the Clerk will enter:

       Appellant's motion to dismiss the appeal and vacate the decision below
  is granted.




BY THE COURT:



________________________________ 
Jeffrey L. Amestoy, Chief Justice

________________________________ 
John A. Dooley, Associate Justice
________________________________ 
James L. Morse, Associate Justice

________________________________ 
Denise R. Johnson, Associate Justice

________________________________ 
Marilyn S. Skoglund, Associate Justice


-------------------------------------------------------------
Lowell v. Rutland Area Visiting Nurses Assoc. (Oct. 12, 1999)


                             STATE OF VERMONT
                     DEPARTMENT OF LABOR AND INDUSTRY


                                )	State File No. L-04140
Judith Lowell			)
                                )	By:	Amy Reichard
       v.                       )		Staff Attorney
                                )
                                )	For:	Steve Janson	
Rutland Area Visiting Nurses	)		Commissioner
Association			)		
                                )	Opinion No. 42-99WC


Heard in Middlebury, Vermont, on August 10, 1999.
Record Closed: September 7, 1999

APPEARANCES:	

Beth Robinson, Esquire for claimant Judith Lowell
Christopher J. McVeigh, Esquire for employer Rutland Area Visiting Nurses
Association

ISSUES:

Whether the claimant is barred from receiving workers' compensation benefits
pursuant to 21  V.S.A. § 656.

EXHIBITS:

Claimant's Exhibit A:		Medical Records
Defendant's Exhibit 1:	        Employee Daily Attendance Record

FINDINGS OF FACT:

1. Notice is taken of all forms filed with the Department in this matter. 
The exhibits are  admitted into evidence.

2. At all relevant times in this case, claimant was an employee and defendant
an employer,  within the meaning of the Vermont Workers' Compensation Act.

3. Defendant has employed claimant as a licensed nursing assistant since
March 1993.   Serving in this capacity, claimant routinely traveled to the
homes of clients in order to  provide them with the necessary care.

4. On February 3, 1995, while claimant was en route between the homes of two
clients, she  was involved in a motor vehicle accident.  Specifically, when
she was stopped at a stop  sign, claimant's vehicle was rear-ended by another
automobile.

5. After the accident, claimant proceeded with her scheduled care visits.  At
the conclusion  of her work shift, claimant returned to defendant's office. 
At that time, she informed Jo  Short, an office scheduler, about the
automobile accident that occurred earlier in the day  when she was travelling
between client's homes.  Ms. Short is not claimant's supervisor.   It is not
clear from the record in this case if scheduler duties, during February 1995, 
included officially accepting, on behalf of the defendant, notice of workers'
compensation  injuries.

6. Ann Colvin, who is actually claimant's supervisor, was also present in the
office at this  time.  However, she was on the telephone when claimant told
Ms. Short about the  accident.  Claimant did not specifically inform Ms.
Colvin about the accident and the  circumstances surrounding it.

7. Claimant was aware that work injuries should be reported to a supervisor. 
Yet, she did  not file a report with Ms. Colvin.  As explained by claimant,
she was simply unaware that  an automobile accident injury, which was
sustained while travelling between clients'  homes on company time, qualified
as a workers' compensation injury.

8. Following the accident, claimant's back began to feel sore.  As such, she
sought medical  care on February 22, 1995 and she was prescribed pain
medication.  Thereafter, claimant  continued to periodically seek medical
treatment, including chiropractic manipulations in  July 1995.  Claimant also
eventually began receiving physical therapy treatments in  January and
February of 1997.

9. Prior to late January or early February 1997, on the numerous occasions
when claimant  was examined and treated by her primary caregivers, Dr. Peter
Diercksen and Dr.  Michael Bell, a conservative course of medical treatment
was continually recommended  and pursued.

10. In late January or early February of 1997, while attempting to rearrange
her work  schedule in an effort to attend physical therapy sessions, the
claimant conversed with Ms.  Colvin, her supervisor, about the automobile
accident.  During the course of this  conversation, claimant informed Ms.
Colvin that her back injury was sustained while  travelling between the homes
of clients.

11. Acting upon this information, Ms. Colvin directed claimant to complete an
incident  report and file a workers' compensation claim.  In the ensuing
days, claimant followed  Ms. Colvin's instructions and a First Report of
Injury was filed with the Department in  February 1997.  This was the first
time claimant learned that her automobile accident  injury was covered under
workers' compensation.

12. Claimant's medical treatment continued.  Specifically, she received
additional  chiropractic treatment in April, May, and August of 1997.  In
addition, claimant's primary  caregiver recommended, in June 1998, that a
diagnostic study be performed on claimant's  back.  This study, an MRI, was
eventually performed in May 1999.  As stipulated by the  parties, the
diagnostic study was not performed until May 1999, approximately a year 
after it was recommended, because no insurance carrier agreed to pay for the
cost of such  a study.
 
13. Presently, after interpreting the results of the MRI, one of the
claimant's treating  physicians determined that claimant is not an
appropriate candidate for surgery.  A  conservative course of care was
recommended as treatment for claimant's back pain.  In  particular, the
doctor prescribed Medrol Dose Packs and he suggested a course of steroid 
injections.

14. Claimant testified that, in comparison to her back condition six months
to a year after the  automobile accident, her back pain is actually worse
now.

15. Following the automobile accident, claimant filed a civil action against
the driver who  struck her automobile from behind.  This matter is presently
scheduled for trial in the fall  of this year.

CONCLUSIONS OF LAW:

1. In this case, defendant maintains that the instant workers' compensation
claim should be  dismissed for lack of timely notice, based upon 21 V.S.A. §
656, which mandates a  specific time period for providing notice of an injury
and for filing a claim for  compensation.

TIMELY NOTICE AND FILING

2. Specifically, the timely notice statute provides, in part:

A proceeding under this chapter for compensation shall not be 
maintained unless a notice of the injury has been given to the 
employer as soon as reasonably practicable after the injury 
occurred, and unless a claim for compensation with respect to an 
injury has been made within six months after the date of injury. 21 
V.S.A. § 656.

3. The statute defines the date of injury as "the point in time when the
injury and its  relationship to the employment is reasonably discoverable and
apparent."  Id.

4. In resolving this case, it is necessary to properly interpret the phrase
"discovery of the  injury and its relationship to the employment." 
Particularly at issue in the present case is  whether this provision
encompasses not only a claimant's discovery of an actual physical  and/or
emotional injury and its cause, but also the discovery of the existence of a 
workers' compensation claim.

5. The Lillicrap v. Martin, 156 Vt. 165 (July 14, 1989) decision, being
closely analogous to  the instant case, provides the guidance necessary for
evaluating the pertinent statutory  language.  In Lillicrap, the Vermont
Supreme Court interpreted the language of a statute  of limitations, which
provides, in part, that an action to recover damages in a medical 
malpractice case should be brought within two years "from the date the injury
is or  reasonably should have been discovered."  See 12 V.S.A. § 521.   The
court held that this  provision includes not only discovery of the injury
itself, but also discovery of the cause  of the injury, as well as the
existence of a cause of action.  Id. at 176.

6. In reaching its ultimate conclusion, the court reasoned that "a point
arises at which a  reasonable person should be able to ascertain that her
legal rights have been violated.  At  that point the statute of limitations
should commence."  Lillicrap, 156 Vt. at 174 (citing  Ware v. Gifford
Memorial Hospital, 664 F. Supp. 169, 171 (D. Vt. 1987)).  "[T]he law  ought
not to be construed to destroy a right of action before a person even becomes
aware  of the existence of that right."  Id. (quoting Foil v. Ballinger, 601 P.2d 144, 147 (Utah  1979).  "Put more succinctly, courts ought not to
declare the bread stale before it is  baked."  Id. at 174-75 (quoting
Fleishman v. Eli Lilly & Co., 96 A.D.2d 825, 826 (1983)  (Gibbons, J.,
concurring and dissenting)).  Therefore, the court concluded that the 
applicable statute of limitations does not commence to run until a plaintiff
has discovered  her "legal injury."  Id. at 176.

7. Similarly, in The University of Vermont v. W.R. Grace & Co., 152 Vt. 287
(Aug. 4,  1989), the Vermont Supreme Court further provided that a statute of
limitations should  not be utilized as an unjust and inflexible tool.  Id. at
291.  To allow a cause of action to  accrue before a party "has or can
reasonably be expected to have knowledge of any  wrong inflicted is patently
inconsistent and unrealistic.  One cannot maintain an action  before one
knows there is one."  (quoting South Burlington School District v. Goodrich, 
135 Vt.601, 609 (Billings, J. dissenting)).

8. Taking into consideration the Lillicrap and W.R. Grace rulings, it is
evident, that for  purposes of determining the accrual date for commencing
the six-month limitations  period of 21 V.S.A. § 656, notice of a work injury
and a claim for workers' compensation  must be made within six months after a
claimant discovers or reasonably should discover  her injury, its cause, and
the existence of a workers' compensation claim.

9. In this case, claimant did not provide notice with her supervisor until
late January or early  February 1997, or file a workers' compensation claim
until February 1997, approximately  two years after the automobile accident,
which occurred in February 1995.  However,  claimant credibly and reliably
explained that she was simply unaware that injuries  sustained in an
automobile accident that occurred en route between clients' homes  qualified
as a workers' compensation claim.  She did not discover the existence of her 
workers' compensation claim prior to the discussion with her supervisor. 
Once she did  learn this fact, claimant acted immediately and filed a claim
with this Department, well  within the six-month confines of 21 V.S.A. § 656.

10. Furthermore, since claimant's injury occurred while travelling in an
automobile to  provide care to her clients, rather than on her actual
employment premises, it is entirely  reasonable that claimant was unaware,
until informed by her supervisor, that her resulting  injuries were covered
by workers' compensation.  Defendant disputes this contention,  maintaining
that claimant, who capably acquired an attorney to represent her in a civil 
action related to the automobile accident, should have made an attempt or an
effort to  determine the relationship between her injuries and her
employment.  However, taking  into account the entire context of this case,
claimant's credible testimony, as well as the  remedial nature of the
Workers' Compensation Act, which must be liberally construed to  provide
injured workers with benefits, defendant's argument is rejected.  See St.
Paul Fire  & Marine Insurance Co. v. Surdam, 156 Vt. 585 (1991).

11. Accordingly, based upon an analysis of the specific facts and relevant
law in this case,  claimant was without a basis to make a claim for workers'
compensation until February  1997, when she first learned from her supervisor
that the injuries she sustained in the  automobile accident were related to
her employment.  It was at this point when the six- month limitation period
commenced.  Since claimant filed a claim with the Department  almost
immediately thereafter, she has clearly satisfied the requirements of 21
V.S.A.  § 656 and, therefore, her claim for workers' compensation is not
barred.

12. As a final note, the conclusion in this case in not meant to allow
claimants to defeat the  requirements of section 656 with blanket assertions
that they didn't know their injury  qualified as a workers' compensation
claim.  Rather, it requires a specific analysis of the  factual
circumstances, as well as the credibility of the witnesses, to determine
when, in  fact, a claimant reasonably should have been aware of the existence
of a workers'  compensation claim.  See W.R. Grace, 152 Vt. at 291-92;
Hartman v. Ouellette Plumbing  & Heating, 146 Vt. 443, 447 (Dec. 20, 1985).

PREJUDICE

13. Notwithstanding the preceding conclusion as to claimant's compliance with
21 V.S.A.  § 656, this claim would still be allowed to proceed, since
claimant satisfactorily  demonstrated that the delay of notice did not
prejudice the defendant.

14. Pursuant to the Vermont Workers' Compensation Act, failure or delay in
providing notice  or in making a claim shall not preclude a workers'
compensation proceeding "if it is  shown that the employer, the employer's
agent or representative, had knowledge of the  accident or that the employer
has not been prejudiced by the delay or want of notice."  21  V.S.A. § 660.

15. The claimant has the burden of showing either the employer's knowledge of
the accident,  or the lack of prejudice.  See Workers' Compensation Rule
3(a)(3).

16. As to the lack of prejudice, it is demonstrated (1) by showing that the
employer was not  hampered in making its factual investigation and preparing
its case and (2) by showing  that the claimant's injury was not aggravated by
reason of the employer's inability to  provide early medical diagnosis and
treatment. See 7 Larson, Workers' Compensation  Law, 78.32(c) at 194.

17. First, the ability to investigate the claim has not been prejudiced.  In
this case, the  defendant does not dispute the underlying circumstances of
the automobile accident and  the resulting back injury.  As such, the issue
of whether defendant was prejudiced by an  inability to conduct a factual
investigation is not relevant to this matter.

18. Additionally, after conducting a thorough review of the medical records
and the  testimony in this case, it is clear that the defendant also did not
suffer any prejudice as a  result of the inability to provide earlier medical
diagnosis and treatment.

19. First, as revealed by the medical records, there was not a significant
delay in receiving  medical care following the injury, claimant having sought
treatment approximately three  weeks after the automobile accident. 
Furthermore, the absence of prejudice is also  demonstrated by evidence that
the claimant did indeed receive adequate and sufficient  medical care.  This
conclusion is bolstered by the fact that the current course of  treatment,
based upon the MRI findings, is for conservative measures, which was the 
same type of medical care provided to claimant at the recommendation of Dr.
Diercksen  and Dr. Bell prior to 1997.

20. Challenging the adequacy of the medical care, defendant cites to the fact
that claimant  did not receive a diagnostic study, specifically a MRI, until
recently.  However, this  challenge must fail.  The relevant time period for
determining prejudice is measured from  the date claimant should have
provided notice to her employer until the time when the  notice was actually
received.  Since the diagnostic study was not recommended until June  1998,
well after defendant was placed on notice of the injury and claim, the fact
that the  claimant actually did not undergo the MRI until a year later plays
no part in determining  whether defendant suffered prejudice due to delayed
reporting. Moreover, since the MRI  actually confirmed that the prior
conservative treatment measures were the more  appropriate treatment plan, as
opposed to surgical intervention, an earlier diagnostic  study would not have
altered claimant's overall medical care.

21. In addition, defendant also challenges the sufficiency of claimant's
evidence, maintaining  that claimant has failed to prove an essential element
on this case.  Specifically, relying  upon the Lapan standard, defendant
insists that expert evidence must be proffered to  establish that the
employer was not prejudiced by the delay in notice.  However, expert 
testimony is only required when "a layman could have no well-grounded
opinion" as to  the ultimate contested issue.  See Lapan v. Berno's Inc., 137
Vt. 393, 395 (1979).  Based  upon the record in this case, it is clearly
within the purview of the "layman" to determine  if the claimant received
reasonable medical care between the date of her injury and the  time when she
provided notice to her employer.  Therefore, expert evidence is neither 
necessary nor required.

22. Accordingly, as evidenced by the preceding conclusions of law, the
claimant has  sufficiently demonstrated that the defendant did not suffer any
prejudice as a result of the  two-year delay in reporting her work-related
injury.  Even if claimant had provided notice  to defendant at an earlier
date, the resulting treatment would have remained the same.  As  such, having
satisfied the requirements of 21 V.S.A. § 660, claimant may proceed with  her
workers' compensation claim.

ATTORNEY FEES

23. In regards to an award of attorney fees and costs, claimant submitted
evidence of her one- third contingency fee agreement with her attorney.  In
addition, claimant has also  submitted an itemized accounting of her
attorney's 31.25 hours of representation in this  workers' compensation
case.(FN1) Finally, claimant has also submitted as evidence an  itemized list
of necessary expenses, which totaled $98.24.

24. Upon reviewing claimant's fee request, defendant objected to portions of
the itemized  billing.  Specifically, defendant described multiple .25 hour
charges, which were  allocated to correspondence preparation and review, as
excessive, unreasonable and  indiscriminate.  In response, claimant's counsel
specifically explained the process she  utilizes in reviewing and sending
correspondence.  In addition, claimant's counsel  unequivocally stated that
she was entirely comfortable in characterizing the billing as  reasonable and
appropriate.

25. As evidenced by the language contained within 21 V.S.A. § 678(a), an
award for  necessary costs is mandatory, as a matter of law, if the claimant
prevails in a workers'  compensation proceeding.  Pederzani v. The Putney
School, Opinion No. 57-98WC (Oct.  6, 1998); Fredriksen v. Georgia-Pacific
Corp., Opinion No. 28-97WC (Oct. 17, 1997).  Whereas, when a claimant
prevails, an award for reasonable attorney fees is a matter of  the
Commissioner's discretion.  Aker v. ALIIC, Opinion No. 53A-98WC (Nov. 5,
1998);  Pederzani, supra; Fredriksen, supra.

26. In this matter, the claimant has indeed prevailed in this case.
Therefore, an award for  necessary costs, in the amount of $98.24, based upon
the claimant's Affidavit as to  Attorney Fees and Costs, is proper.

27. Furthermore, having reviewed the submitted charges and the parties'
respective  arguments on the issue of attorney fees, I also find that
claimant is entitled to her  requested attorney fees, including the .25 hour
charges, which I conclude are reasonable  attorney billing.  As such,
claimant is entitled to $1875, for 31.25 hours at a rate of $60  per hour. 
See Workers' Compensation Rule 10 (update effective 9/13/99).

ORDER:

Based upon the foregoing Findings of Fact and Conclusions of Law, defendant
is ORDERED to:

1. Adjust this claim in accordance with the Vermont Workers' Compensation
Act;

2. Pay claimant's requested attorney's fees, in the amount of $1,875 for
31.25 hours at a rate  of $60 per hour, as well as $98.24 for her necessary
expenses, pursuant to 21 V.S.A.  § 678.


Dated in Montpelier, Vermont, this 12th day of October 1999.





_____________________________
Steve Janson
Commissioner



FN1.  Originally, claimant's request for attorney fees was based upon a
calculation of 32.25 hours of representation.   However, after defense
counsel objected to an hour of time included in the calculation, which was
actually time  spent handling the third party action in Superior Court,
claimant conceded she incorrectly allocated that hour and it  was withdrawn
from the attorney fee request.  As such, the request for fees was reduced by
one hours time, making  it 31.25 total hours.