01-12WC. Michael Touchette v. Vermont Recycled Slate and Roofing Michael Touchette v. Telescope Casual Furniture Co.

• Court: Vermont

Vermont Workers Compensation 2012. 01-12WC. Michael Touchette v. Vermont Recycled Slate and Roofing Michael Touchette v. Telescope Casual Furniture Co Michael Touchette v. Vermont Recycled Slate and Roofing Michael Touchette v. Telescope Casual Furniture Co.(January 11, 2012)STATE OF VERMONT DEPARTMENT OF LABORMichael Touchette v. Vermont Recycled Slate and Roofing Michael Touchette v. Telescope Casual Furniture Co.Opinion No. 01-12WCBy: Phyllis Phillips, Esq. Hearing Officer For: Anne M. Noonan CommissionerState File Nos.Z-01489 and BB-56358RULING ON DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT APPEARANCES:James Dingley, Esq., for ClaimantKeith Kasper, Esq., for Defendant Vermont Recycled Slate and Roofing James O'Sullivan, Esq., for Defendant Telescope Casual Furniture Co.ISSUES PRESENTED:

1. Does the Vermont Department of Labor have personal and subject matter jurisdiction over Defendant Telescope Casual Furniture Co. ("Telescope") relative to Claimant's claim for workers' compensation benefits?

2. If yes, is Claimant's claim against Defendant Telescope barred by any of the jurisdictional and/or full faith and credit defenses raised in its August 4, 2010 denial?

3. If yes, did Defendant Telescope waive these defenses?

EXHIBITS: Joint Exhibit I: Reserved Decision, In regard to Michael Touchette, WCB Case #G0058816, State of New York Workers' Compensation Board, October 29, 2009 Joint Exhibit II: Deposition of Michael Touchette, April 19, 2011 Joint Exhibit III: Deposition of Katherine Juckett, October 7, 2011 Joint Exhibit IV: State of New York Workers' Compensation Board hearing transcript, July 15, 2009 FINDINGS OF FACT: The following facts are undisputed: 1. On November 11, 2007 Claimant was an employee of Defendant Vermont Recycled Slate and Roofing Co. ("Vermont Recycled Slate") and Defendant Vermont Recycled Slate was his employer as those terms are defined in Vermont's Workers' Compensation Act (the "Act"). 2. On November 11, 2007 Claimant suffered a compensable work-related injury to his lower back arising out of and in the course of his employment with Vermont Recycled Slate. 3. Claimant was paid all workers' compensation benefits to which he was entitled under the Act relative to this claim (State File No. Z-1489) up until his 2009 incident. 4. Defendant Telescope is a New York corporation located in Granville, New York, a town that borders Vermont. From that location, it manufactures summer furniture, which it distributes by way of a network of independent sales representatives to retailers throughout the country. It also publishes a catalog for retailers and maintains a website. Retail customers can view its products on the website, but cannot purchase items directly. 5. Defendant Telescope has a registered agent located in Vermont. It registered to do business as a foreign corporation in Vermont on April 19, 2010. One of its corporate directors resides in Vermont, as do approximately 50 of its 280 employees. 6. Through its network of independent sales representatives, Defendant Telescope sells its products to four or five Vermont businesses. Payment for these sales comes directly to Defendant Telescope, not through the independent sales representatives. Vermont businesses that carry Telescope products actively market them in Vermont, but with no advertising input or assistance from Defendant Telescope. 7. Since April 2010 Defendant Telescope also has sold and delivered products directly from its company store in New York to Vermont customers. Prior to this time the company store was leased to and operated by an independent retailer. 8. Defendant Telescope's sales volume in Vermont is estimated to be in the range of $200,000 to $300,000 annually. 9. Defendant Telescope occasionally purchases lumber and other materials from R.K. Miles, a Vermont supplier. 10. In 2008 and 2009 Defendant Telescope maintained a policy of workers' compensation insurance with a rider that provided coverage in all but two states, New Jersey and Wisconsin. The policy thus provided coverage in Vermont. 11. Claimant began working for Defendant Telescope on May 27, 2008. During this employment, he alleged that he suffered a work-related injury to his lower back on February 23, 2009. 12. Claimant's employment for Defendant Telescope terminated on March 11, 2009. 13. Claimant filed a claim for workers' compensation benefits relative to the February 23, 2009 incident with the New York State Workers' Compensation Board (the "New York Board"). 14. On July 15, 2009 the New York Board held a hearing on Claimant's claim for benefits arising out of his alleged February 23, 2009 injury. 15. On October 29, 2009 the New York Board issued a decision denying Claimant's claim for workers' compensation benefits pursuant to New York's Workers' Compensation Law. This decision held in part:

The description of onset of pain and initial report to the employer clearly supports an exacerbation of the original Vermont industrial accident as Claimant described an onset or pop while bending down but never picking up anything.

It is clear that if the original injury was a New York state claim and the onset of pathology in the identical site under identical circumstances had occurred at home while bending down that the recurrence would be regarded as a compensable exacerbation wholly related to the industrial accident. The only fair analogous application of the law dictates the instant determination that the treatment and lost time relates to the Vermont industrial injury.

16. Claimant did not appeal the New York Board's decision. The decision became a full and final decision on Claimant's claim in New York. 17. On December 18, 2009 a First Report of Injury was filed on Claimant's behalf with the Vermont Department of Labor (the "Department"). The First Report (State File No. BB-56358) noticed a February 23, 2009 lower back injury and listed Defendant Telescope as the employer. 18. Having been notified by Claimant's attorney that the New York Board had denied Claimant's claim for workers' compensation benefits against Defendant Telescope in New York, on January 7, 2010 the workers' compensation insurance adjuster for Defendant Vermont Recycled Slate filed a Denial of Workers' Compensation Benefits (Form 2) with the Department (State File No. Z-1489). 19. On June 14, 2010 Defendant Vermont Recycled Slate filed a Notice and Application for Hearing (Form 6) in which it raised the issue whether Claimant's current condition was an aggravation for which Defendant Telescope should be held liable. 20. On August 4, 2010 Defendant Telescope's attorney entered his appearance. By separate correspondence on that same date, Defendant Telescope's workers' compensation insurance adjuster filed a Form 2 Denial with the Department (State File No. BB-56358). The reason for the denial was stated to be "no jurisdiction, no hazard created by workplace." The adjuster's accompanying cover letter further clarified the grounds for denial, with specific reference to all of the jurisdictional issues currently being litigated in the context of the parties' cross...