Beauregard v. Baker Distributing (Dec. 30, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Robert Beauregard File # J-19177 By: Barbara H. Alsop
v. Hearing Officer For: Mary S. Hooper
Baker Distributing Commissioner
Opinion No. 76-96WC
Hearing held in Montpelier, Vermont, on October 22, 1996.
Record closed on November 8, 1996.
APPEARANCES
Christopher McVeigh, Esq., for the claimant
Eric A. Johnson, Esq., for the employer
ISSUE
Whether the claimant suffered an injury arising out of and in the course of
his employment on February 22, 1996.
THE CLAIM
1. Temporary total disability benefits pursuant to 21 V.S.A. §642.
2. Medical and hospital benefits pursuant to 21 V.S.A. §640.
3. Permanent partial disability benefits pursuant to V.S.A. §648.
4. Attorney's fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. At all relevant times, the claimant was an employee within the meaning
of the Workers' Compensation Act.
2. At all relevant times, the defendant was an employer within the meaning
of the Workers' Compensation Act.
3. On February 22, 1996, the claimant worked for the defendant.
EXHIBITS
1. Joint Exhibit 1 Timesheets for the claimant
2. Joint Exhibit 2 Physical therapy records
3. Joint Exhibit 3 Medical records
4. Joint Exhibit 4 Claimant's personnel record
5. Claimant's Exhibit I Employee termination form
6. Defendant's Exhibit A Claimant's application for employment at
B's Discount
7. For I.D. "a" Deposition of Douglas Blair
8. For I.D. "b" Deposition of Lori Tine
PROCEDURAL HISTORY
The claimant filed a pretrial Motion in Limine to preclude a particular
defense. The hearing officer issued a written denial of this motion.
At hearing, the defendant offered the deposition of Douglas Blair, a prior
employer of the claimant, in support of its contention that the claimant had
a reputation for dishonesty in the community. The claimant objected to the
introduction of the deposition. On October 23, 1996, the hearing officer
issued a written opinion sustaining the claimant's objection. The deposition
was not admitted into evidence.
FINDINGS OF FACTS
1. The above stipulations are accepted as true and the exhibits are
admitted into evidence. Notice is taken of all forms filed with the
Department of Labor and Industry.
2. Robert Beauregard applied for a position with the defendant, and
commenced work as a night crew loader on February 15, 1996. His job entailed
the loading of cases of beer onto trucks for delivery in the morning. He and
other members of the crew would work on either side of a conveyor belt,
moving to different pallets of beer as the order was called out from an
employee (the "caller") at the back of the truck being loaded. The hours
were Sunday through Thursday, starting at 6:00 p.m. and finishing when all
the trucks were loaded. At the end of each shift, the loading area had to be
cleaned prior to the end of the work shift.
3. Cleaning of the area included sweeping, mopping and straightening of
cases on the pallets. All of the employees were involved in the cleaning
process, and all of the employees left the plant at the same time to avoid
any possibility of pilfering.
4. On February 22, 1996, the claimant alleges that he slipped on the wet
floor while running to get a broom. The claimant testified that no one
observed the fall, although he claimed that two employees saw him getting up
and inquired if he was okay. He identified those employees as Ernie Adams
and Tom Smart. The claimant indicated that he hurt his right knee in the
fall.
5. The claimant did not report the injury that night to his supervisor
Gerald Dumas. He went home, and noted that the knee got progressively worse
over the weekend. On Sunday, February 25, he went to the walk-in clinic at
Fanny Allen, where he was diagnosed with a possible tear of the anterior
cruciate ligament. He received a note recommending that he stay out of work
until he could see a specialist. He walked home, with the note to see Dr.
Renstrom. He claimed that on his walk home, he encountered two coworkers,
one of whom was Paul Cushing. He alleged that he gave Mr. Cushing the
doctor's note to pass on to Mr. Dumas.
6. On Sunday night, the claimant claimed that he called the employer. I
find that he received a telephone call from Mr. Dumas. Mr. Dumas was
concerned that the claimant had not appeared for work on two specific dates.
The claimant had apparently volunteered on Thursday night, the 22nd, to work
on Friday night. He had not called on Friday to cancel his work on that
shift. He had also not called on Sunday to say that he would not be working.
When the claimant spoke with Mr. Dumas on Sunday, he reported the injury of
Thursday night. He could not remember whether they discussed the note
regarding Dr. Renstrom.
7. The claimant did not work on Sunday, Monday or Tuesday. He went to see
Dr. Renstrom, with whom he had previously treated for a prior injury to his
right knee, on Tuesday. Dr. Renstrom placed him in a knee stabilizer and
told him to be out of work for two weeks. The claimant nonetheless went to
work on Wednesday night, and again on Thursday night. He gave the
out-of-work note to Mr. Dumas on Wednesday night, when he worked a full
shift. On Thursday night, the claimant indicated that he twisted his sore
knee on a pallet, but managed to finish the night. He did not return to work
thereafter until he was released to light duty work by Dr. Renstrom in the
end of March.
8. The claimant did not advise the employer of his decision not to return
to work. After he did not go to work on Friday or Sunday, he received a
telephone call from Mr. Dumas who stated "So I take it you're not working
here anymore." It was at that time that the claimant told his employer that
he was planning to take the two weeks off that Dr. Renstrom had recommended.
During his time out of work, the claimant was participating in physical
therapy, and treating with Dr. Renstrom.
9. When the claimant was released for light duty work at the end of
February, he called Gerald Frenier, the manager of the plant. The claimant
went in to work on either the 24th or the 25th. On the first day, Mr. Dumas
told him that there was not any light duty work available that night. On the
second night, the claimant worked about 5 hours, which was the length of time
they were all working. The next night, on March 27, the claimant was late to
work. Mr. Dumas took him into the office to discuss his lateness. The
claimant initiated an argument with Mr. Dumas, claiming that Mr. Dumas was
harassing him, and pointing his finger in Mr. Dumas' face.
10. The claimant stormed out of the building that night. He claims that he
said to Ernie Adams that he was not quitting, he was just leaving for the
night. He was fired the next day.
11. The primary issue in this case is the credibility of the claimant in his
story about the manner and means of his injury. To test that credibility,
the employer has introduced a number of different incidents to contest the
claimant's claim to honesty. For example, Ernest Adams testified that he
never saw the claimant getting up from a fall on the night in question. Nor
did he see the claimant limping when they all left the premises together. He
also denied any specific conversation with the claimant on the night that the
claimant argued with Mr. Dumas.
12. Mr. Dumas also contested the claimant's recollection of a number of
events. He never learned about the claimant's allegation that he fell when
he was running to get a broom until he saw the first report of injury that
the claimant filled out in March. In fact, he testified that the claimant's
first story to him was that he stepped on a pallet and twisted his knee. He
indicated that when he spoke with the claimant on the Sunday after the
alleged injury, the claimant did not tell him that he had been to see a
physician, nor that the physician had recommended that he stay out of work
because of a possible ACL tear. Mr. Dumas claimed that he, not Mr.
Beauregard, initiated the Sunday telephone call, and I find that Mr. Dumas
initiated that call.
13. The claimant's claim was investigated by Lori Tine, a claims
representative for the insurer. Ms. Tine took a recorded statement from the
claimant in which the claimant made a number of representations which were
incorrect. He denied any prior work related injury, any prior injury to his
right knee, any prior receipt of workers' compensation benefits, and he
omitted the name of the employer in whose employ he had previously injured
his right knee when asked about his work history. Mr. Beauregard also told
her that he had seen a doctor the day after the alleged injury, when in fact
he did not see a doctor until three days after the day he claimed the injury
occurred. Mr. Beauregard called Ms. Tine back about ten minutes later, and
corrected some of the errors in his statement.
14. The claimant also told Ms. Tine that Mr. Adams witnessed the fall. Mr.
Beauregard did not change his story in this regard until some time later,
apparently after he learned that Mr. Adams did not support his story.
15. The claimant also admitted at hearing that he made a misstatement in his
application for employment at a previous employer. The claimant in that
application claimed that he had gone further in school than he actually had.
The employer in question was the employer at the time of the claimant's prior
workers' compensation claim.
16. The claimant has presented evidence of his fee agreement with his
attorney for a contingency fee of 33% of the amount recovered. Subject to
the restrictions of Rule 10(a), this agreement is acceptable. The claimant
has also produced evidence of his costs in the amount of $1,635.45, the bulk
of which is attributable to a number of depositions of fact witnesses that
were not offered at hearing. These costs are reasonable.
CONCLUSIONS
1. In workers' compensation cases, the claimant has the burden of
establishing all facts essential to the rights asserted. Goodwin v.
Fairbanks, Morse Co., 123 Vt. 161 (1963). The claimant must establish by
sufficient credible evidence the character and extent of the injury as well
as the causal connection between the injury and the employment. Egbert v.
The Book Press, 144 Vt. 367 (1984).
2. This case relies entirely on a determination of the claimant's
credibility. If he is credible, he prevails, and if he is not, he must lose.
In the claimant's favor is that he has consistently told his medical
providers that he was injured at work. However, that is the only evidence in
his favor. The number of discrepancies in his story and his chameleon like
changing of the story to fit the agreements or denials of other witnesses
severely test the credibility to given to anything he says. It is noteworthy
that he initially denied a prior injury to his right knee to the carrier, as
that is a matter that clearly could not have slipped his mind. One must
suspect that his quick change of heart about telling the truth came about
because of a reasonable fear that his deception was easily discoverable, for
example when the carrier obtained Dr. Renstrom's medical reports.
3. The claimant's story also suffers from the failing of all late reported
injuries. When, as here, the claimant does not treat for his injury or
report it until three days after the alleged injury, and the injury was of
the magnitude that it was in this case, questions must be asked. Se, e.g.,
Steimel v. Burgess Electric Supply, Opinion No. 64-96WC. The opportunities
for a non-work-related injury are too high to accept the claimant's
allegations, particularly where no coworker observed the claimant to be
limping or otherwise injured when he left work with the others on Thursday.
This fact is of particular significance when all of the employees are
required to leave the work site together. I cannot find that the claimant
has met his burden of proof.
4. The claimant not having prevailed is not entitled to an award of
attorney's fees or costs.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it
is hereby ORDERED that Robert Beauregard's claim for benefits for an injury
arising out of and in the course of his employment with Baker Distributing on
February 22, 1996, is DENIED.
DATED at Montpelier, Vermont, this 30th day of December,1996.
_____________________________
Mary S. Hooper
Commissioner