Morisseau v. Hannaford Brothers

• Decision Date: 12 February 2016
• Docket Number: No. 13–067.,13–067.
• Citation: 141 A.3d 745,2016 VT 17
• Parties: Debra MORISSEAU v. HANNAFORD BROTHERS.
• Court: Vermont Supreme Court

141 A.3d 745

2016 VT 17

Debra MORISSEAU

v.HANNAFORD BROTHERS.

No. 13–067.

Supreme Court of Vermont.

Feb. 12, 2016.

Christopher McVeigh of McVeigh ? Skiff, Burlington, for Plaintiff–Appellant.

J. Justin Sluka of Ellis Boxer & Blake PLLC, Springfield, for Defendant–Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and EATON, JJ.

ROBINSON

, J.

¶ 1. Claimant appeals from a decision by the Commissioner of the Vermont Department of Labor awarding summary judgment to employer Hannaford Brothers on the question of whether the employer was obligated to pay for voice recognition technology, either as a vocational rehabilitation or medical benefit, as a consequence of her compensable work injury. We affirm.

¶ 2. On appeal from an award of summary judgment, we review the record evidence in the light most favorable to the nonmoving party. Stone v. Town of Irasburg, 2014 VT 43, ¶ 25, 196 Vt. 356, 98 A.3d 769

. That evidence, and the procedural history of this case, is as follows.

¶ 3. In August 2009, claimant was working for employer as a baker. Concurrently, she was working as a personal care attendant at the Visiting Nurse Association. While working for employer, claimant suffered a work-related injury to her right wrist, diagnosed as right wrist triangular fibrocartilage complex and ulnar nerve impingement. Despite both surgery and conservative treatment, claimant suffered a permanent impairment to her right wrist and has chronic pain and weakness in her hand, wrist, and upper extremity.

¶ 4. In January 2011, it was determined that claimant was entitled to vocational rehabilitation services, and in February 2011, she underwent a functional capacity evaluation, which determined that she was capable of full-time sedentary work. The evaluation found that with the correct ergonomic equipment, such as a split keyboard, claimant could tolerate frequent computer work, including up to thirty minutes of sustained typing per hour.

¶ 5. In June 2011, the parties submitted a Return to Work Plan to the Department, which was approved. The primary goal for the plan was for claimant to find work as a receptionist or clerk at a medical or dental office or as a customer service representative in other settings. Secondary goals included human services work with agencies providing assistance to people with disabilities—for example, as a community support worker. To accomplish these goals, the plan required employer to provide vocational exploration, work readiness training and placement assistance, concurrent short-term computer skills training, software, and an ergonomic keyboard and mouse to support home practice, and, upon claimant's securing work, an ergonomic evaluation to assure optimal work station set-up. The Return to Work Plan contemplated the possibility that additional assistive devices, such as voice recognition software, might be identified to enhance claimant's ability to locate suitable employment given her physical restrictions and limited experience in sedentary work.

¶ 6. In August 2011, claimant began work as a home support aide for developmentally disabled adults. The home support aide position was within a reasonable commuting distance from claimant's home and was largely unaffected by the ongoing symptoms in claimant's wrist. Claimant's vocational rehabilitation counselor's January 2012 written progress report reflected that claimant was generally satisfied with her employment, particularly because of the opportunity it allowed her to manage her upper extremity symptoms by changing her activities.

¶ 7. Claimant's hours, and thus pay, varied week to week. At first, claimant's gross wages were below her pre-injury average weekly wage; however, claimant's paystubs reflected that her earnings from mid-February to mid-May 2012 met or exceeded her pre-injury average weekly wage. As of May 2012, claimant had been employed with her current employer for at least sixty days.

¶ 8. Claimant's treating physician has strongly recommended that she use voice activated software for all of her computer tasks and has opined that use of such software “will improve [her] productivity, help prevent pain flares and loss of function that can result in missed work, and improve her function overall.”

¶ 9. Claimant's vocational rehabilitation counselor supports claimant's use of voice recognition technology as a means of helping her with symptom control, expanding her workplace skills, and facilitating her return to full-time, suitable employment. He took the position that claimant had not successfully returned to suitable full-time work because the security of her two part-time positions was “not firmly established.” One of her part-time employers, Howard Community Services, could offer her only part-time, direct-client work. Her other part-time position caring for a disabled child is client-directed. That is, the family she works for is her employer. As a result, she has both limited job security and limited opportunity to advocate for increased hours because each family in the program is on a limited budget. He further stated that claimant's position at Howard involves some computer data input, such that increasing her computer skills will help with that job and will also allow claimant to consider other positions at the agency.

¶ 10. In July 2012, following an informal conference, the Department's vocational rehabilitation specialist approved employer's request to discontinue vocational rehabilitation services on the ground that claimant had successfully returned to suitable employment, and denied claimant's request for voice recognition software on the ground that she had presented no evidence showing that the software was necessary and reasonable in order to perform the essential functions of her job. On claimant's request, the specialist forwarded the case to the formal hearing docket. In September 2012, employer moved for summary judgment.

¶ 11. In January 2013, the Commissioner awarded employer summary judgment with respect to the voice recognition software. Based on the record evidence, the Commissioner concluded that claimant had successfully returned to suitable, full-time employment for more than sixty days, that there was no evidence submitted as to the extent, if any, to which claimant's current job involves computer tasks, and that claimant was thus not entitled to the technology as a vocational rehabilitation benefit at this time.¹ The Commissioner also ruled that voice recognition software could not be a compensable medical benefit under 21 V.S.A. § 640(a)

. Claimant appealed to this Court.

¶ 12. We review summary judgment decisions de novo, using the same standard as the trial court or, as is the case here, the agency rendering the decision. Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 14, ––– Vt. ––––, 129 A.3d 108

. Summary judgment is proper only where the material undisputed facts show that the moving party is entitled to judgment as a matter of law. Bonanno v. Verizon Bus. Network Sys., 2014 VT 24, ¶ 8, 196 Vt. 62, 93 A.3d 146 ; see V.R.C.P. 56(a). The nonmoving party is entitled to “all reasonable doubts and inferences.” McKinstry v. Fecteau Residential Homes, Inc., 2015 VT 125, ¶ 10, ––– Vt. ––––, 131 A.3d 1123 (quotation omitted). In determining whether there is a genuine issue of material fact, “we will accept as true the allegations made in opposition to the motion ... so long as they are supported by affidavits or other evidentiary material.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 848 A.2d 310.

I. Vocational Rehabilitation Benefits

¶ 13. On appeal, claimant first argues that the Commissioner did not faithfully apply a summary judgment standard in concluding that claimant had successfully returned to suitable work. In light of claimant's vocational rehabilitation counselor's statements as to the fragility of claimant's current employment, she argues, the Commissioner failed to give claimant the benefit of all reasonable inferences in concluding as a matter of law that she had successfully returned to suitable work.

¶ 14. When, as a result of a work injury, an employee is unable to perform work for which the employee has previous training or experience, the employee is “entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment.” 21 V.S.A. § 641(a)

; see also Worker's Compensation Vocational Rehabilitation Rules, Rule 50, Code of Vt. Rules 24–010–012 [hereinafter WCVR] (describing purpose of vocational rehabilitation rules).

¶ 15. Once an injured worker has been found entitled to vocational rehabilitation services, those benefits may be suspended and/or terminated under specifically enumerated circumstances. See generally WCVR Rule 56.1000 (enumerating bases for terminating vocational rehabilitation services). One such circumstance is the “successful completion of an approved Return to Work Plan, documented by the claimant's successful return to suitable employment, not including any on-the-job training period, for at least 60 days.” WCVR Rule 56.1110. A second ground for suspending or terminating vocational rehabilitation services is an employee's “return to suitable employment that is not contingent upon successful completion of the plan.” WCVR Rule 56.1140.

¶ 16. Suitable employment is defined as follows:

51.2600 “Suitable Employment” means employment for which the employee has the necessary mental and physical capacities, knowledge, skills and abilities;

51.2601 Located where the employee customarily worked, or within reasonable commuting distance of the employee's residence;

51.2602 Which pays or would average on a year-round basis a suitable wage; and

51.2603 Which is regular full-time work. Temporary work is suitable if the employee's job at injury was temporary and it can be shown that the temporary job will duplicate his/her annual income from the job at injury.

WCVR Rules...