Kevin Holbrook
v.
Kennametal, Inc.
Opinion No. 16-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
October 6, 2020
State
File No. Y-60018
Ronald
A. Fox, Esq., for Claimant.
Erin
J. Gilmore, Esq., for Defendant.
Beth
A. DeBernardi, Administrative Law Judge.
RULING
ON DEFENDANT’S MOTION TO ENFORCE SETTLEMENT
AGREEMENT
Michael A. Harrington, Commissioner.
ISSUE
PRESENTED:
Is
Claimant bound by the terms of the agreement that the parties
reached in mediation to sign settlement documents for filing
with the Commissioner?
EXHIBITS:
Defendant’s
Statement of Undisputed Facts dated July 15,
20201Claimant’s Statement of Undisputed
Facts dated August 7, 2020
Joint
Exhibit I: Settlement Terms signed on January 16, 2020
FINDINGS
OF FACT:
The
following facts are undisputed:
1.
Claimant injured his right wrist on March 8, 2007 while
working as Defendant’s employee. Defendant’s
Statement of Undisputed Facts
(“Defendant’s Statement”) ¶
1.
2. On
May 21, 2018, after a formal hearing, the Commissioner
determined that Claimant failed to prove that he was
permanently and totally disabled as a result of his
compensable wrist injury. Holbrook v. Kennametal,
Inc., Opinion No. 07-18WC (May 21, 2018);
Defendant’s Statement ¶¶ 2-4.
Claimant did not appeal that determination.
Defendant’s Statement ¶ 5.
3. In
January 2019, the parties participated in an informal
conference concerning the continued provision of vocational
rehabilitation services. The Department’s specialist
ordered services to continue. Defendant’s
Statement ¶¶ 6-7.
4.
Defendant appealed the specialist’s determination, and
the specialist forwarded the matter to the formal hearing
docket in February 2019. Defendant’s Statement
¶ 8. Defendant’s objection to the proposed Return
to Work Plan was added to the formal docket in March 2019.
Id. ¶ 9.
5. A
pretrial conference took place in April 2019. The
administrative law judge set a mediation deadline of October
15, 2019 and a hearing date of December 18, 2019 on the
vocational rehabilitation disputes. Defendant’s
Statement ¶ 10; Claimant’s Statement of
Undisputed Facts (“Claimant’s
Statement”) ¶ 1.
6. On
November 6, 2019, Defendant’s counsel informed
Claimant’s counsel that her client was unwilling to
settle the case other than on a full and final basis
including the closing out of medical benefits coupled with
the funding of a Medicare Set Aside (“MSA”)
agreement. Claimant’s Statement ¶ 2.
7. On
November 14, 2019, Claimant’s counsel emailed
Defendant’s counsel that Claimant was willing to
discuss a full and final settlement but needed to assess
whether any medical expenses covered by workers’
compensation might not be covered by either an MSA or
Medicare. Claimant’s Statement ¶ 3.
8. On
November 19, 2019, Defendant’s counsel notified the
Department that the parties had not yet mediated. She also
emailed Claimant’s counsel that she did not see how
they would be able to attempt to settle before the December
18, 2019 hearing and reiterated that Defendant was not
willing to discuss settlement of just the vocational
rehabilitation claim. Claimant’s Statement
¶¶ 4-5.
9. On
November 20, 2019, Claimant’s counsel notified the
Department that mediation was delayed and that the hearing
might need rescheduling because Defendant was only interested
in a full and final settlement, which would require an MSA.
Claimant’s Statement ¶ 6.
10. On
November 21, 2019, the Department revised the scheduling
order to provide a mediation deadline of January 3, 2020 and
a new hearing date of January 29, 2020. Defendant’s
Statement ¶ 11; Claimant’s Statement
¶ 8.
11. On
December 18, 2019, Claimant’s counsel emailed
Defendant’s counsel with concerns about the upcoming
mediation deadline and the fact that the parties had not yet
selected a mediator or had any settlement discussions.
Claimant’s Statement ¶ 9.
12. On
December 23, 2019, Defendant’s counsel emailed
Claimant’s counsel an MSA allocation report and
requested a settlement demand. Claimant’s
Statement ¶ 10.
13. Two
hours later, Claimant’s counsel emailed
Defendant’s counsel raising a concern about the
proposed MSA. In his view, the MSA vendor had
“underfunded” Claimant’s prescriptions by
$6,044.00. He requested permission to speak with the vendor
about this, as well as about whether there were any health
care services or medications covered by Claimant’s
workers’ compensation insurance that would not be
covered by Medicare. Claimant’s Statement
¶ 11.
14.
Over the next few weeks, the parties made efforts to engage a
mediator. Claimant’s Statement ¶ 12.
15. On
January 6, 2020, Claimant’s counsel again emailed
Defendant’s counsel seeking permission to speak with
the MSA vendor. He wrote: “I never heard back from you
about speaking with [the vendor] who drafted the MSA. If your
client’s position is to close medical benefits as a
precondition to the mediation, I need to discuss the apparent
exclusion of medications and confirm nothing else was
excluded.” Defendant’s counsel then gave her
permission. Claimant’s Statement ¶¶
13-14.
16. On
January 8, 2020, Claimant’s counsel emailed the MSA
vendor and asked to speak with someone about the
vendor’s discounting of Claimant’s medications by
fifty percent in the MSA allocation report and about whether
there were likely any future medical charges not covered by
Medicare. Defendant’s Statement ¶ 12;
Claimant’s...
