On Appeal from Commissioner of Labor Anne M. Noonan, Commissioner
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.
¶ 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 ...