Alan Levick
v.
Specialty Paper Board
Opinion No. 23-19WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
20 December 2019
State
File No. D-18052
Vanessa B. Kittell, Esq., for Claimant.
William J. Blake, Esq., for Defendant.
Stephen W. Brown Administrative Law Judge
RULING ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY
JUDGMENT AND DECLARATORY RELIEF
Michael A. Harrington Interim Commissioner
ISSUE
PRESENTED:
What
legal standard applies to Claimant's claim for permanent
total disability ("PTD") benefits?
EXHIBIT:
Defendant's
Statement of Undisputed Material Facts ("DSUMF")
BACKGROUND:
Considering
the evidence in the light most favorable to Claimant as the
non-moving party, State v. Delaney, 157 Vt. 247, 252
(1991), I find the following facts:
1.
Claimant was injured at work on March 11, 1991. Defendant
accepted his claim as compensable at that time. (DSUMF 1).
Though he initially returned to work, he later asserted a
claim for PTD benefits, first in 2014 and then in 2019.
(DSUMF 2-4).
2.
Defendant contests Claimant's claim for PTD benefits and
seeks a declaration that based on Claimant's date of
injury, the "odd lot doctrine" cannot apply to his
claim.
CONCLUSIONS
OF LAW:
Summary
Judgment and Declaratory Relief
1. To
prevail on a summary judgment motion, the moving party must
show that there exist no genuine issues of material fact,
such that it is entitled to judgment in its favor as a matter
of law. Samplid Enterprises, Inc. v. First Vermont
Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion,
the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney,
157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington
Co., 155 Vt. 44, 48 (1990). Summary judgment is
appropriate only when the facts are clear, undisputed, or
unrefuted. State v. Heritage Realty of Vermont, 137
Vt. 425, 428 (1979). It is unwarranted where the evidence is
subject to conflicting interpretations, regardless of the
comparative plausibility of the facts offered by either party
or the likelihood that one party or the other might prevail
at trial. Provost v. Fletcher Allen Health Care,
Inc., 2005 VT 115, ¶ 15.
2. In
addition to summary judgment, the Department has authority to
issue declaratory rulings, so long as they arise from actual
cases or controversies and are consistent with the informal
nature of workers' compensation proceedings. White v.
Town of Hartford and Town of Hartland, Opinion No.
14-19WC (July 25,2019).
Legislative
Amendments to 21 V.S.A. § 644
3.
Claims for PTD benefits are governed by 21 V.S.A. § 644.
Between 1977 and 2000, that section provided as follows:
(a) In case of the following injuries, the disability caused
thereby shall be deemed total and permanent:
(1) the total and permanent loss of sight in both eyes;
(2) the loss of both feet at or above the ankle;
(3) the loss of both hands at or above the wrist;
(4) the loss of one hand and one foot;
(5) an injury to the spine resulting in permanent and
complete paralysis of both legs or both arms or of one leg
and of one arm; and
(6) an injury to the skull resulting in incurable imbecility
or insanity.
(b) The enumeration in subsection (a) of this section is not
exclusive.
See 1999 Adj. Session No. 97, 2000 Vermont Laws PA.
97 (H. 185) ("2000 Amendment"); 2013-2014
Legislative Session, No. 96, 2014 Vermont Laws No. 96 (S. 27)
("2014 Amendment").
4.
Effective July 1, 2000, subsection (b) of that statute was
amended to provide as follows, with additions italicized
and underlined:
(b) The enumeration in subsection (a) of this section is not
exclusive, and. in order to determine disability under
this section, the commissioner shall consider other specific
characteristics of the claimant, including the claimant's
age, experience, training, education and mental
capacity.
See 2000 Amendment, supra.
5.
Effective July 1, 2014, subsection (a)(6) of that statute was
amended to replace the phrase "incurable imbecility or
insanity" with the phrase, "severe traumatic brain
injury causing permanent and severe cognitive, physical, or
psychiatric disabilities." See 2014 Amendment...
