Gillock v. Package It Systems, Inc. (12/31/03)

Douglas Gillock                    Opinion No. 57-03WC

                                        By: Margaret A. Mangan
v.                                           Hearing Officer

Package It Systems, Inc.       For: Michael S. Bertrand
                                               Commissioner

                                         State File No. K-07480

The defendant, by and through counsel, Stephen D. Ellis, Esq. and John Vorder Bruegge, Esq., moves for judgment as a matter of law on the issue of claimant’s entitlement to resumption of vocational rehabilitation benefits. Claimant, by and through his attorney, Ronald A. Fox, Esq., opposes the motion.

The relevant undisputed facts are:

1. In 1996, Douglas Gillock (claimant) was an "employee" and Package It Systems, Inc. (defendant) his "employer" within the meaning of the Workers’ Compensation Act (Act).

2. The Hartford was the workers’ compensation carrier for Package It Systems. As used in this opinion, "defendant" refers to the employer and insurer. See 21 V.S.A. § 601(3).

3. On October 8, 1996, claimant incurred a work-related injury to his left leg while working at Package It Systems, which resulted in a period of temporary total disability.

4. At the time of his injury, claimant’s average weekly wage was $320.94. He was earning $6.50 per hour.

5. After claimant was found entitled to vocational rehabilitation services, an Individual Written Rehabilitation Plan (IWRP) was signed by claimant, Hartford Representative, and Melanie Hamilton, the rehabilitation counselor. This Department approved the plan. The specified vocational goal was "[e]mployment in suitable occupations, based on Mr. Gillock’s stated interests, anticipated physical capacities, and local labor market. Vocational exploration will be conducted to identify suitable occupations."

6. Because of the claimant’s physical limitations, the plan was suspended several times. When services were resumed, Ms. Hamilton filed at least six status reports.

7. Three amendments to the IWRP were filed in this case, one each in January, July and October of 1998. Claimant signed each of the amendments, which were approved by this Department. On the last of the amendments, filed on October 12, 1998 was a projected complete date of February 26, 1999.

8. Also on October 12, 1998, this Department approved a Form 22 Agreement for Permanent Partial Disability Compensation. Claimant received a lump sum payment of his permanency award.

9. Following his injury, claimant applied for and received social security disability benefits.

10. On January 18, 1999, claimant returned to work at a new employer, Geographic Data Technology (GDT) as a Remote Digital Mapping Technician, a job he could do from home. He was hired with the expectation that his hours were not to exceed 30 per week. This job met claimant’s need not to sit for prolonged periods without a break or to stand for too long.

11. In March of 1999 claimant told Ms Hamilton that he was concerned that he would not earn enough at GDT to pay the bills.

12. A Vocational Rehabilitation Closure Report (VR5) was filed with the department on May 11, 1999, specifying a closure date of April 5, 1999.

13. With the VR5 was a Final Report authored by Melanie Hamilton directed to the claimant and a representative of the Hartford, describing the training for the job, hours he was working and positive reports received about his work.

14. Claimant was hired at GDT for $7.00 per hour. He averaged 6.1 hours per week in 1999; 14.2 hours in 2000; 17 hours per week in 2001; and 20 hours in 2002 according to the earnings statement appended to the affidavit of Pamela Gile, GDT Human Resource Manager. By 2000, he was earning $8.00 an hour.

15. Claimant worked at GDT until his job was eliminated in March of 2003. At no time between March of 1999 and March of 2003 did the claimant express any concerns about the suitability of the job.

1. Summary judgment is appropriate when the moving party has demonstrated that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). In determining whether a material fact exists, the party opposing the motion is entitled to all reasonable doubts and inferences. If supported with affidavits or other evidentiary material, allegations made in opposition to the motion for summary judgment are accepted as true. White v. Quechee Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999).

2. "The purpose of the workers’ compensation law is to provide, not only for the employee, a remedy that is both expeditious and independent of proof of fault, but also for employers, a liability which is limited and determinate." Morrisseau v. Legac, 123 Vt. 70, 76 (1962).

3. A worker injured in the course of employment is entitled to compensation, 21 V.S.A. § 618(a), including vocational rehabilitation services if, "as a result of an injury [he] is unable to perform work for which [he] has previous training or experience…" § 641(a).

4. Once vocational rehabilitation services have begun, they cannot be terminated or suspended until a Vocational Rehabilitation Closure Report (Form VR 5) is filed with the Division, with a copy to the claimant. WC Rule 38.3000.

5. Waiver is the intentional relinquishment or abandonment of a known right and may be inferred from the party’s words or conduct. Tooley v. Robinson Springs Corp., 163 Vt. 627, 628, 660 A.2d 293, 295 (1995)(mem). " The essence of a waiver is a voluntary choice and thus the party must have acted with a knowledge of all the material facts." Humphrey v. Vermont Tap & Die Co, Vt. Supreme Ct. No. 96-187 (April 23,1997), citing Eastman v. Pelletier, 114 Vt. 419, 423, 47 A.2d 298, 301(1946).

6. In this case, claimant was aware of the VR plan goals. He consented to several amendments, which clearly stated a projected closure date. When he received the closure report in May of 1999, he did not object. In fact, by his continued work at CDT he affirmed the suitability of the plan. An attempt to now characterize the Form 5 as a "suspension" ignores the plain meaning of the form used and inactivity that followed for four years.

7. To accept the claimant’s position that vocational rehabilitation services must be reinstated when an economic downturn leads to the termination of a job years after it was secured would deny employers the limited and determinate aspects of the Workers’ Compensation Act. It would also eliminate the crucial causation aspect of the law. In this case, claimant’s job ended for reasons unrelated to his work-related injury. Had his job not been eliminated, he would still be working there, making his current argument that it was an "unsuitable" job unconvincing.

8. The legal doctrine of waiver and public policy in favor of limited and determinate liability, therefore, bar reinstatement of vocational rehabilitation benefits at this juncture.

Accordingly, the defense motion for summary judgment is GRANTED.

Dated at Montpelier, Vermont this 31^st day of December 2003.

________________________________
Michael S. Bertrand
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.