Brandy Clayton
v.
J.C. Penney Corporation
Opinion No. 11-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
June 17, 2020
State
File No. GG-61153
David
L. Grayck, Esq., for Claimant.
Wesley
M. Lawrence, Esq., for Defendant.
Beth
A. DeBernardi, Administrative Law Judge.
RULING
ON CLAIMANT’S MOTION FOR PARTIAL SUMMARY
JUDGMENT
Michael A. Harrington, Commissioner
ISSUE
PRESENTED:
Is
Claimant’s right foot plantar fasciitis a work-related
injury for which she is entitled to workers’
compensation benefits as a matter of law?
EXHIBITS:
Claimant’s
Statement of Undisputed Material Facts filed December 3, 2019
Claimant’s
Exhibit 1: Vermont Supreme Court’s Opinion and Order in
Clayton v. J.C. Penney Corp., 2017 VT 87, dated
September 22, 2017
Claimant’s
Exhibit 2: Vermont Supreme Court’s Entry Order in
Clayton v. J.C. Penney Corp., dated September 22,
2017
Claimant’s
Exhibit 3: Appellant’s Motion for Reconsideration in
Clayton v. J.C. Penney Corp., filed October 5, 2017
Claimant’s
Exhibit 4: Vermont Supreme Court’s Entry Order on
Appellant’s Motion for Reconsideration, dated October
17, 2017
Claimant’s
Exhibit 5: Vermont Supreme Court’s Opinion and Order
in Clayton v. J.C. Penney Corp., 2017 VT 87, revised
October 17, 2017
Claimant’s
Exhibit 6: Dr. McNamara’s January 23, 2019 affidavit
Claimant’s
Exhibit 7: Dr. McNamara’s October 4, 2019 affidavit
Claimant’s
Exhibit 8: Medical records
Defendant’s
Statement of Undisputed Material Facts and Response to
Claimant’s Statement of Undisputed Material Facts filed
February 13, 2020
Defendant’s
Exhibit A: Dr. McNamara’s November 20, 2007 medical
record
Defendant’s
Exhibit B: Dr. Boucher’s March 19, 2013 report
Defendant’s
Exhibit C: Dr. Smith’s medical records from October
2013 through February 2014
Defendant’s
Exhibit D: Dr. Smith’s December 2, 2013 medical record
Defendant’s
Exhibit E: Dr. Rudolf’s January 11, 2020 report
Defendant’s
Exhibit F: Dr. White’s June 16, 2014 report
Defendant’s
Exhibit 1: Dr. Rudolf’s Curriculum vitae
FINDINGS
OF FACT:
Taking
judicial notice of all forms and correspondence in the
Department’s files on this matter and considering the
evidence in the light most favorable to Defendant as the
non-moving party, State v. Delaney, 157 Vt. 247, 252
(1991), I find the following facts:
1. At
all times relevant to these proceedings, Claimant was an
employee and Defendant was her employer as those terms are
defined in Vermont’s Workers’ Compensation Act.
2.
Claimant worked for Defendant as a hair stylist. Her job
required her to stand on her feet during working hours.
Claims
for Work-Related Left Foot and Right Foot Injuries
3. In
February 2011, Claimant alleged a work-related left foot
injury with an injury date of March 26, 2010. First
Report of Injury (Form 1). Defendant accepted her claim
as compensable and paid benefits accordingly. See, e.g.,
Agreement for Temporary Total Disability Compensation
(Form 21), approved June 24, 2011. On September 24, 2014, the
Department approved the parties’ Modified Full and
Final Form 16 Settlement Agreement with Addendum
(“Settlement Agreement”).
4. Six
months later, in March 2015, Claimant alleged a work-related
right foot injury with an injury date of March 10, 2015.
First Report of Injury (Form 1). Defendant denied
her claim on two grounds: first, that Claimant’s injury
was unrelated to her employment, and second, that her injury
was preexisting. Denial of Benefits (Form 2), dated
March 26, 2015. Defendant contends that, as a preexisting
injury, Claimant’s right foot claim is barred by the
general release language of the Settlement
Agreement.
1 Claimant appealed the denial on April 6,
2015.
The
Parties’ 2015-2016 Cross Motions for Summary
Judgment
5. The
parties filed cross motions for summary judgment on whether
the Settlement Agreement barred Claimant from asserting a
workers’ compensation claim for her alleged March 10,
2015 right foot injury. On August 24, 2016, the Commissioner
found that the Settlement Agreement’s general release
language
2 violated public policy to the extent that
it purported to release claims for injuries that might have
arisen during Claimant’s employment from causes
completely unrelated to her left foot injury. Clayton v.
J.C. Penney Corp., Opinion No. 13-16WC (August 24, 2016)
(“Clayton I”). The Commissioner
concluded:
As to whether Claimant’s pending claim for benefits on
account of an alleged March 10, 2015 right foot injury is
barred or not, I cannot yet say. I do not consider either of
Dr. McNamara’s statements . . . conclusive on the
question whether Claimant’s current complaints are
causally related in any way to her previously settled left
foot claim, or whether, to a reasonable degree of medical
certainty, they are entirely separate and distinct. If the
former, then her current claim is barred; if the latter, then
it may proceed. In either event, genuine issues of material
fact exist, sufficient to preclude summary judgment in either
party’s favor.
6. In
September 2016, Defendant appealed Clayton I to the
Vermont Supreme Court on the following Certified Question:
“As a matter of law, does the parties’ September
24, 2014 approved settlement agreement bar Claimant from
asserting a claim for workers’ compensation benefits on
account of her alleged March 10, 2015 work-related right foot
injury?”
Vermont
Supreme Court’s Decision and Entry Orders
7. On
September 22, 2017, the Vermont Supreme Court issued
Clayton v. J.C. Penney Corp., 2017 VT 87
(“Clayton II”). The Court held that the
Commissioner did not have the authority to invalidate the
general release language in the Settlement Agreement on
public policy grounds. Id. at ¶ 13. The Court...
