Cormier v. Capital Candy Co.

Cormier v. Capital Candy Co. (Oct. 25, 1996)

STATE OF VERMONT

DEPARTMENT OF LABOR AND INDUSTRY

Julie Cormier File #: H-2201

By: Barbara H. Alsop

v. Hearing Officer

For: Mary S. Hooper

Capital Candy Company Commissioner

Opinion #: 60-96WC

Hearing held at Montpelier, Vermont, on August 19, 1996.

Record closed on August 30, 1996.

APPEARANCES

Robert Halpert, Esq., for the claimant

James B. Grussing, Esq., for the employer

ISSUES

1. Was the carrier required to file a Form 27 prior to terminating the claimant's benefits upon her entry to college?

2. If the answer to #1 is affirmative, was the adjuster's letter of February 1995 sufficient to satisfy the notice requirements of Rule 18?

3. If the answer to #1 is negative, what if any benefits is the claimant entitled to after her return to school?

THE CLAIM

1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from August 20, 1994, to April 12, 1996.

2. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).

STIPULATION

1. The claimant reached end medical result as of April, 1996.

EXHIBITS

1. Joint Exhibit 1: Medical records notebook

2. Claimant's Exhibit A: Claimant's resume

3. Claimant's Exhibit B: Vocational rehabilitation notes

4. Defendant's Exhibit I: Letter of February 1, 1995, to Ms. Cormier from Michael McGrath

5. Defendant's Exhibit II: Letter of February 1, 1995, to Jean Perrigo from Michael McGrath

6. Defendant's Exhibit III: Claimant's 1994-95 financial aid application

7. Defendant's Exhibit IV: Claimant's 1994-95 Free Application for Federal Student Aid

8. Defendant's Exhibit V W-2 form from Twinfield School District

9. For Identification "a" Form 27 dated February 1, 1996

10. For Identification "b" Claimant's Response to Defendant's Interrogatories

FINDINGS OF FACT

1. The above stipulation is accepted as true, and the exhibits are admitted into evidence. Notice is taken of all forms filed with the Department in this matter.

2. Claimant graduated in 1994 from Twinfield Union High School as the valedictorian of her class. Her father obtained employment for her at the defendant through the offices of a friend, who apparently indicated that the claimant would be able to work at the defendant for summers and vacations during her college career.

3. The claimant was scheduled to work at the candy company for 40 hours a week at $5.50 an hour until her entry into college in mid August. The claimant had been working part time for the law firm of Davis & Associates in Barre at the same rate of pay for approximately ten hours a week. The claimant also held a number of other part time jobs prior to her employment at the defendant, including a regular baby sitting job, office work for her mother's company, and work at the local radio station.

4. The claimant injured her back on her second day of work for the defendant. Her father called Dr. Russell Davignon a few days later to report that the claimant was in pain and was unable to work. Dr. Davignon thereafter gave the claimant a medical release from work, and made a preliminary diagnosis of sciatica. He found that she was in a moderate amount of discomfort, but that her examination was essentially negative. He placed her on a conservative care regime and released her from work for the balance of the summer. At a visit shortly before she left for college, Dr. Davignon noted that the claimant was 50-60% improved and that "[s]he has a grant at school for work-study, and I told her that although I think she can do some things, preferably they would not include any heavy lifting over 10 lbs., repetitive bending, stooping, sweeping or things of that nature and would probably have to be confined to very sedentary activities at least for this semester."

5. The carrier for the employer, Peerless Insurance, paid the claimant temporary total disability benefits until August 20, 1994. At that time, the claimant left to enter college on a full time basis in Pennsylvania, at Carnegie-Mellon University.

6. The claimant had received a work study grant for $1,000.00 for the academic year of 1994-95. However she never pursued this option beyond looking at the university's internet site for job listings. She never applied for any position, and made the determination of the suitability of work for her condition based on her own understanding of her limitations. She did not discuss her inability to hold these jobs with her physicians or with any university officials. Although she claimed that she was not allowed to work in the work-study program until she had been released to work, she based this statement on something she heard from her father, and not from any communication from the university.

7. The claimant continued to treat, albeit sporadically, for her condition after her matriculation at college. In January of 1995, her father contacted the carrier and requested temporary total disability benefits back to August 20, 1994. In response, the adjuster, Michael McGrath, sent the two letters marked as Defendant's Exhibits I and II. In those letters, Mr. McGrath indicated that he had terminated benefits in August based on the claimant's voluntary withdrawal from the work force, citing to the Commissioner's decision in the case of Whalen v. Lake Champlain Transportation, Inc., Opinion No. 21-93WC. Mr. McGrath did not file a Form 27, Notice of Intent to Discontinue Benefits, at that time or indeed at any time until 1996.

8. The claimant was engaged in physical therapy after October of 1994. She was also given a home exercise program, involving stretching and some strengthening exercises. The claimant indicated that physical therapy sessions occurred twice a week and took about four hours of time. The home exercises took between 20 minutes and two hours, depending on which exercises were performed. As a result of the time she spent in therapy and exercises,

the claimant was unable to complete her course load in either semester, having to drop one course each term. As a result, the claimant had to attend summer school at the University of Vermont in order to catch up.

9. When the claimant returned home in the spring of 1995, she worked a few days as a substitute teacher at Twinfield Union. She was paid $50.00 for each day, and she does not recall how many days she worked, although work was sporadic. Her income according to her W-2 form was $189.00. She had also dropped off her resum‚ at local radio stations, but was not surprised to find that her limited availability weighed against her. She went to UVM for a six week session from July 1 until mid August. She spent 4.5 hours a day in class, and 5 hours a day studying. Also during the summer, the claimant continued to treat through the Spine Institute in Burlington.

10. The claimant continued her education in the fall, although her course work was compromised when she came down with meningitis, a condition not related to her work injury. The claimant dropped three courses and received an incomplete in a fourth. She attributed one of the dropped courses to the time required by her physical therapy. The claimant had not been awarded a work study grant for the 1995-96 school year, although she continued to check the internet for work possibilities. However, she testified that she had no free time during the school year, which calls into question her availability to work.

11. On January 29, 1996, the employer was ordered to pay temporary total disability and medical benefits from the date of discontinuance and ongoing. Thereafter, on February 1, 1996, the carrier filed its first Form 27, with an effective date of February 9, 1996, based on the claimant's return to school and her failure to provide evidence supporting her entitlement to further benefits. That Form 27 was rejected. The carrier filed another Form 27 on April 5, 1996, seeking to terminate benefits on April 12, 1996, based on supporting medical evidence that indicated that the claimant had reached end medical result. That Form 27 was accepted, and the claimant agrees that she reached an end medical result in April of 1996.

12. The claimant has presented evidence of her fee agreement with her attorney for a contingency fee. Subject to the limitations of Rule 10(a), that agreement is acceptable. The claimant has also presented evidence of her costs in the amount of $19.12. These 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. Once a claim has been accepted by a carrier or employer, the burden of proof is on that party to establish the propriety of terminating temporary benefits. See, e.g., Merrill v. University of Vermont, 133 Vt. 101 (1974). This principle is codified in both 21 V.S.A. §643a and in Rule 18 of the Workers' Compensation and Occupational Disease Rules. Both require that the carrier must notify the Commissioner and the claimant in writing prior to terminating benefits. Rule 18 (or its predecessor, Rule 14) requires the particular form for the writing. One of the reasons for requiring that specific form is so that the dictates of §643a requiring review by the department can be easily accommodated. The carrier's letter of February 1, 1995, was not sufficient notice not only because of the failure to use the form required but also because it was a retroactive notice and explanation, unsupported by evidence. Rule 18 requires receipt of notice prior to the termination of benefits.

3. I find that the letters of February 1, 1994, do not meet the requirements of Rule 18. Rule 18 prohibits the termination of benefits "[u]nless the claimant has successfully returned to work." Nothing in Rule 18 gives the carrier the right to assume that a return to school is the legal equivalent of a successful return to work. There are many students who work full or nearly full time in order to complete their educations, and it would be inappropriate to presume, as the carrier did here, that a student is necessarily "voluntarily removing herself from the work force." Moreover, the decision relied upon by the carrier, Whalen v. Lake Champlain Transportation, Inc., Opinion No. 21-93WC, does not even address the issue at hand, that is, whether a return to school can be equated with a return to work. Therefore, the ruling in Whalen is inapposite.

4. The defendant's allegation that the burden shifted to the claimant to establish her ongoing entitlement to temporary partial disability benefits is also misplaced. The assertion that "the employer has consistently acknowledged its responsibility to compensate Ms. Cormier for any wage loss she may have suffered while attending college" is not supported by the evidence. There is no evidence that the carrier notified the claimant of her obligation to produce evidence of lost earnings upon her return to college, nor is there evidence that the insurer did anything on this indemnity claim until the claimant's father contacted the carrier in January of 1995 to question the loss of benefits. Nothing in the letter to the claimant of February 1, 1995, could be construed as an acknowledgment of the claimant's entitlement to temporary partial disability. A carrier is required to adjust a case in accordance with the Workers' Compensation and Occupational Disease Rules and its predecessors. A claimant is not presumed to know the intricacies of the Workers' Compensation Act and to behave accordingly. If the carrier believed that the claimant was removing herself from the workplace, it behooved the carrier to advise the claimant of this belief in a timely manner so that the claimant could respond appropriately. This the carrier did not do. Compare, Goslant v. Cody Chevrolet, Opinion No. 41-95WC ("The duty is on the employer to offer a claimant light duty work or to instruct him on his obligations once he has been released for such work....At no time has anyone addressed this issue with the claimant.")

5. Even assuming that the letters of February 1, 1995, operated as a Form 27, that would avail the insurer nothing, as the basis for the alleged termination of benefits was not supported. As stated above, the carrier has not established by credible evidence that the act of becoming a full time student is tantamount to a withdrawal from the work force. Therefore, termination on that basis is disapproved, and the carrier remains on the risk for temporary total disability benefits thereafter.

6. The carrier then alleges that the work at Twinfield High School was a return to work sufficient to terminate the claimant's entitlement to temporary benefits. Rule 18 identifies the triggering factor as a successful return to work. Working four days on a sporadic basis is not a successful return to work. In another context, the rules suggest that a successful return to work must last at least 60 days to terminate vocational rehabilitation benefits, see Rule 30(a)(2), and that is a reasonable standard to apply in this context.

7. The carrier's final argument is that the claimant is not entitled to temporary total benefits, but rather temporary partial benefits in accordance with the Whalen decision. That would certainly be the case had the carrier adjusted this case properly. However, the argument in this case is comparable to those advanced in the many cases decided where the carrier's failure to file a Form 27 resulted in an award of undeserved benefits. In Thivierge v. Groleau II, Opinion No. 67-94WC, the carrier's failure to file a Form 27 led to the claimant's receipt of additional years of temporary total disability benefits, even though he had reached an end medical result at an earlier date. In Gilbeau v. CEPCO, Inc., Opinion 24-95WC, a claimant who suffered a new injury that broke the link of causation nevertheless received an additional nine months of benefits because of the failure to file a Form 27. The myriad decisions in this line confirm that poor adjusting and failure to follow the rules promulgated by the Department may lead to costly mistakes for the carrier.

8. The evidence is clear that the claimant had a sedentary duty work capacity at the time she entered college in August of 1994. However, the failure of the carrier to advise her of her obligations with a work capacity and to file a Form 27 bars the carrier from arguing any of the positions that would normally arise from the claimant's having a work capacity.

9. The claimant having prevailed is entitled to an award of attorney's fees of the lesser of $3,000.00 and 20% of the amount awarded, which in this case is $3,000.00, and costs in the amount of $19.12.

ORDER

THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:

1. Peerless Insurance, or in the event of its default Capital Candy Company, pay the claimant, to the extent that they have not already been paid, temporary total disability benefits from August 21, 1994, through April 12, 1996; and

2. Peerless Insurance, or in the event of its default Capital Candy Company, pay attorney's fees in the amount of $3,000.00 and costs in the amount of $19.12.

DATED at Montpelier, Vermont this 25th day of October 1996.

_______________________________

Mary S. Hooper

Commissioner