Kevin Wilber
v.
FoodScience Corporation
Opinion No. 06-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
March 30, 2020
State
File No. LL-61223
Christopher McVeigh, Esq., for Claimant.
Jennifer K. Moore, Esq., for Defendant.
Beth
A. DeBernardi, Administrative Law Judge.
RULING
ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Michael A. Harrington Interim Commissioner.
ISSUE
PRESENTED:
Is
Defendant entitled to judgment in its favor as a matter of
law on the question of whether Claimant’s hernia is
work-related?
EXHIBITS:
Defendant’s
Statement of Undisputed Material Facts filed January 31, 2020
Defendant’s
Exhibit A: Employer First Report of Injury (Form 1)
Defendant’s
Exhibit B: Claimant’s recorded statement, March 6, 2019
Defendant’s
Exhibit C: Medical record, March 6, 2019
Defendant’s
Exhibit D: Dr. Davignon’s October 9, 2019 independent
medical examination report
Claimant’s
Statement of Undisputed Material Facts
[1] and Response to
Defendant’s Statement of Undisputed Material Facts
filed March 4, 2020
Claimant’s
Exhibit 1: Employer First Report of Injury (Form 1)
Claimant’s
Exhibit 2: Claimant’s recorded statement, March 6, 2019
Claimant’s
Exhibit 3: Medical record, March 6, 2019
Claimant’s
Exhibit 4: Dr. Davignon’s October 9, 2019 independent
medical examination report
Claimant’s
Exhibit 5: Dr. Davignon’s February 10, 2020
supplemental report
FINDINGS
OF FACT:
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 is a 53-year-old man who works as a shipping
clerk for Defendant. Defendant’s Statement of
Undisputed Material Facts (“Defendant’s
Statement”), ¶ 1; Defendant’s Exhibit A. His
job involves lifting boxes that weigh between five and
seventy pounds. Claimant’s Statement of Undisputed
Material Facts (“Claimant’s Statement”),
¶ 3; Claimant’s Exhibit 2, at 5-6.
2. Claimant reported a work injury to Defendant with an
accident date of March 6, 2019. Claimant’s Statement,
¶ 1; Claimant’s Exhibit 1.
3. Claimant sought treatment at Champlain Medical Urgent Care
on March 6, 2019. The visit record includes the following
patient-provided history:
Pt denies any known injury. About one week ago while at work,
he started developing some right lower abdominal pain with
coughing or bending to pick something up. He thought he had
strained his groin[,] but it gradually has worsened. [N]ow
there is swelling to that area. He has never had a hernia
before. He notes that his job in shipping does require
frequent lifting of heavy objects weighing anywhere to 5-70#.
Claimant’s Statement, ¶ 4; Claimant’s
Exhibit 3.
4.
Physician Assistant Molly Somaini noted that...
