Saturday, February 20, 2016

Compensation Litigation

Morisseau v. Hannaford Brothers, 2016 VT 17

By Amy E. Davis

This case is an appeal of the Commissioner of Labor’s decision to award summary judgment to the employer on whether the employer had to pay for voice-recognition technology, either as a vocational-rehabilitation benefit, or as a medical benefit.

In 2009, claimant worked for Hannaford as a baker, and for the Visiting Nurse Association as a personal care attendant, when she suffered a work-related injury to her right wrist. She had surgery and other treatment, but suffered a permanent impairment to her wrist, along with pain in her hand, wrist, and arm.

Claimant became eligible for voc rehab in 2011, and underwent a functional-capacity evaluation. Claimant was capable of full-time sedentary work with the right ergonomic equipment—one of those fancy split keyboards that do nothing but cause typos. Parties submitted a Return-to-Work Plan to the Department of Labor, which approved the plan. The idea was for claimant to work as a receptionist in a doctor’s or dentist’s office or as a customer-service rep somewhere. The employer was to provide work-readiness training, placement assistance, short-term computer skills training, software, and an ergonomic keyboard and mouse to support home practice. The plan included the possibility of additional assistive devices like voice-recognition software.

Later in 2011, claimant started working as a home support aide for developmentally disabled adults. The position was within a reasonable commuting distance and was largely unaffected by her wrist. Claimant was generally very satisfied with the job, and after a couple of months, her pay met or exceeded her pre-injury average weekly wage.

Claimant’s doctor strongly recommended that she use voice-activated software for her computer tasks because it would help prevent pain flare-ups and loss of function. Her voc rehab counselor agreed, adding that claimant had not successfully returned to suitable full-time work because her two part-time positions were not “firmly established.”

In 2012, after an informal conference, the DOL’s voc rehab specialist approved Hannaford’s request to discontinue voc rehab because claimant had returned to suitable employment. The specialist also denied claimant’s request for voice-recognition software because there was no evidence that it was necessary and reasonable in order for her to perform the functions of her job. The case went to the formal-hearing docket, and the employer moved for summary judgment, which the Commissioner awarded in early 2013.

Reviewing de novo, under the standard that summary judgment is proper only where the material undisputed facts show that the moving party is entitled to judgment as a matter of law, the SCOV affirms.

Claimant argues that the Commissioner did not faithfully apply the summary judgment standard in concluding that she had returned to suitable employment. When an employee is injured and is unable to perform work for which the employee has previous training, the employee gets voc rehab services. These services may be suspended or terminated under certain circumstances, one of them being the employee’s return to suitable employment. Suitable employment includes the requirement that the employment pays a “suitable wage,” meaning a wage as close as possible to the pre-injury wage. It also includes the requirement that the work, at the time of hire, is expected to continue indefinitely.

There is no dispute in the summary judgment record that the claimant’s current job satisfies most of the elements of suitable employment. The SCOV concludes that the employer made a prima facie case that the claimant’s current jobs have no expected end date and are expected to continue indefinitely. Claimant’s argument about her job security makes it a close case, but does not create a genuine dispute of material fact. Her voc rehab counselor does not assert that the current employment is not expected to continue indefinitely. His letter just opined that her job is not secure, which is not enough to create a factual dispute sufficient to survive summary judgment.

Alternatively, claimant argues that the Commissioner erred in granting summary judgment in regards to the voice recognition software as a medical benefit. Commissioner concluded that the software may have been helpful, but wasn’t a medical device. According to Commissioner, performing a computer task is not a “basic life function.”

The SCOV uses many words to describe the medical benefits statute: broad, general, reasonable, flexible, etc. Under the statute, the employer is only required to furnish assistive devices if the worker’s injury leaves the worker permanently disabled, or substantially and permanently limits the worker from continuing to live at home or perform basic life functions. But, because there is not enough evidence to create a claim to survive summary judgment, the SCOV does not reach the question as to whether this voice-recognition technology would ever be available as a medical benefit. Thus, the Commissioner’s grant of summary judgment is affirmed.

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