Sherri Armstrong
v.
Norwich University
Opinion No. 07-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
April 23, 2020
State
File No. KK-60020
Ronald
A. Fox, Esq., for Claimant.
Jennifer K. Moore, Esq., for Defendant.
Stephen W. Brown, Administrative Law Judge.
RULING
ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Michael A. Harrington Interim Commissioner.
ISSUES
PRESENTED:
1. Did
Claimant effectively initiate vocational rehabilitation
(“V.R.”) services by filing a Notice of Intent to
Change Vocational Rehabilitation Counselor (Form V.R.-8)
without undergoing the V.R. screening process required by the
Workers’ Compensation Act and the Vocational
Rehabilitation Rules?
2. If
Claimant did not effectively initiate V.R. services, is
Defendant liable for the V.R. services Claimant has received
to date?
3. If
Claimant did not effectively initiate V.R. services, should
V.R. services be discontinued?
4. If
Claimant did not effectively initiate V.R. services, is
Defendant entitled to replace Claimant’s V.R. counselor
with another counselor of its choice?
EXHIBITS:
Claimant’s
Statement of Undisputed Facts (“CSUF”)
Claimant’s
Exhibit 1 Employee’s Claim and Employer’s First
Report of Injury (Form 1), received February 15, 2018
Claimant’s
Exhibit 2 Compromise Agreement (Form 16) relating to
temporary disability benefits for the period between February
18, 2018 and March 16, 2019, approved November 7, 2019
Claimant’s
Exhibit 3 Agreement for Temporary Compensation (Form 32),
approved November 7, 2019
Claimant’s
Exhibit 4 Work Capabilities Form (Form 20) releasing Claimant
back to work with restrictions on January 15, 2019
Claimant’s
Exhibit 5 Medical Records from Daniel Woodcock, DC
Claimant’s
Exhibit 6 Medical Records from Matthew Sullivan, MD
Claimant’s
Exhibit 7 Notice of Intent to Change Vocational
Rehabilitation Counselor (Form V.R.-8)
Claimant’s
Exhibit 8 Correspondence from Defendant’s Counsel to
Department of Labor, dated June 3, 2019
Claimant’s
Exhibit 9 Email from Claimant’s Counsel to Department
of Labor, dated June 9, 2019
Claimant’s
Exhibit 10 Fax from Matthew Sullivan, MD, dated June 11, 2019
Claimant’s
Exhibit 11 Medical Records from Dr. Daniel Woodcock
Claimant’s
Exhibit 12 Disability Certificate signed by Dr. Daniel
Woodcock on June 27, 2019
Claimant’s
Exhibit 13 Vocational Rehabilitation Progress Report by Tammy
Parker, dated August 20, 2019
Claimant’s
Exhibit 14 Interim Order from Department of Labor, relating
to Temporary Disability Benefits, dated September 11, 2019
Defendant’s
Response to CSUF (“DRCSUF”)
Defendant’s
Statement of Undisputed Facts (“DSUF”)
Defendant’s
Exhibit A Affidavit of Gloria J. Marceau, signed August 16,
2019
Defendant’s
Exhibit B Medical Records
Defendant’s
Exhibit C Email Correspondence Between Counsel, dated May 29,
2019
Defendant’s
Exhibit D Correspondence from Defendant’s Counsel to
Department of Labor, dated June 3, 2019
Defendant’s
Exhibit E Vocational Rehabilitation Progress Report and
Invoice dated June 10, 2019 by Tammy Parker
Defendant’s
Exhibit F Email Correspondence Between Tammy Parker and
Defendant’s Counsel dated June 10, 2019
Defendant’s
Exhibit G Email Correspondence Between Defendant’s
Counsel, Tammy Parker, and Department of Labor, dated June
24-25, 2019
Defendant’s
Exhibit H Correspondence from Department of Labor to
Defendant’s Counsel, dated July 9, 2019
Defendant’s
Exhibit I Vocational Rehabilitation Progress Reports and
Invoices by Tammy Parker, dated July 31, 2019; August 20,
2019; and November 27, 2019
Email
Correspondence from Claimant’s Counsel, dated March 6,
2020, treated as Claimant’s Response to
Defendant’s Statement of Undisputed Facts
(“CRDSUF”)
BACKGROUND:
The
following material facts are undisputed:
1. This
case arises out of an accepted back injury that Claimant
sustained on February 9, 2018 while employed as a custodian
for Defendant. (See CSUF 1-4; DRCSUF 1-4).
2. The
central dispute in the present cross-motions concerns
Defendant’s liability for certain V.R. services that
Claimant received between May and November 2019 over
Defendant’s objection, where Claimant never underwent
the required V.R. screening process.
Claimant’s
January 2019 Limited Work Release and Reassignment to
Administrative Duties
3. In
January 2019, Claimant’s primary care provider, Matthew
Sullivan, MD, released her to limited duty work. He
restricted her from bending, squatting, climbing, twisting,
or reaching above the shoulder, lifting more than five
pounds, working more than eight hours per day, or performing
repetitive activities for more than twenty minutes. (CSUF 5;
DRCSUF 5; Claimant’s Exhibit 4).
4. The
following month, Defendant reassigned Claimant to an
administrative position as a temporary accommodation for
those restrictions. (DSUF 1).
5.
Claimant’s treating chiropractor, Daniel Woodcock, DC,
opined that Claimant probably could not tolerate a work
hardening program and that he expected her pain to return if
she went back to her original custodial job. However, he was
not concerned with the potential for flare-ups in her
administrative position. (See DSUF 4; Defendant’s
Exhibit B; CSUF 7, DRCSUF 7; Claimant’s Exhibit 6).
6. In
or around April 2019, Claimant told her medical providers
that she was considering looking for alternative employment.
(See DSUF 4; Defendant’s Exhibit B).
7. That
month, Dr. Woodcock left a message for Defendant to discuss
permanently modifying the nature of Claimant’s job. He
stated that her job included “some very rigorous, labor
intensive requirements,” although he acknowledged that
at that time, she was performing part-time “office
work” such as filing. (See CSUF 8; CRCSUF 8;
Claimant’s Exhibit 5).
8.
Claimant’s temporary administrative job was set to
conclude by June 2019 with the end of the academic year. In
May 2019, Defendant began searching for other suitable work
for her, to be coordinated with a work hardening program that
it still anticipated she might complete in the
future.1 (DSUF 5-6; Defendant’s Exhibits B
and C).
Claimant’s
Initiation of V.R. Services Without Undergoing V.R.
Screening
9. On
May 8, 2019, Claimant filed a Notice of Intent to Change
Vocational Rehabilitation Provider (Form V.R.-8) naming Tammy
Parker as the “New V.R. Provider,” and leaving
blank all fields under the heading “First V.R.
Provider.” (See CSUF 9; DRCSUF 9; Claimant’s
Exhibit 7).
10.
Prior to filing that form, Claimant had never been screened
for V.R. services, Defendant had not filed a referral for
V.R. services, and Claimant had not received any V.R.
services. (DSUF 7; Defendant’s Exhibit E). However,
unbeknownst to Defendant, Ms. Parker began providing V.R.
services to Claimant and began billing Defendant for her time
without ever having contacted Defendant, its insurance
adjuster, or its counsel. (See id.).
11.
Unaware that Ms. Parker had already begun providing V.R.
services, Defendant continued to seek solutions to keep
Claimant employed. On May 29, 2019, Defendant’s counsel
emailed Claimant’s counsel indicating that Defendant
had been investigating other modified duty positions for
Claimant and seeking to coordinate this with Claimant’s
subsequent treatments and potential work hardening programs.
(DSUF 6; Defendant’s Exhibit C).
Defendant’s
Objections to V.R. Services
12. On
June 3, 2019, Defendant filed a Denial/Discontinuance of
Vocational Rehabilitation by Employer or Carrier (Form
V.R.-227), based in part on Claimant’s failure to
undergo the V.R. screening process before beginning V.R.
services. (See CSUF 10; DRCSUF 10; DSUF 7; Claimant’s
Exhibit 8).
13. On
June 9, 2019, Claimant’s counsel responded to
Defendant’s Form...
