United States District Court, D. Vermont
OPINION AND ORDER ON MOTION FOR JUDGMENT ON THE
PLEADINGS (DOC. 45)
Geoffrey W. Crawford, Judge United States District Court.
Annemieke Graven Meau brings this case against her former
employer's workers' compensation carrier, Sentry
Casualty Company ("Sentry"), alleging that, after
she was injured in a workplace accident, Sentry failed to
properly adjust her claims and wrongfully failed to pay
benefits owed to her in a timely manner. (See Doc.
18, Am. Compl.) She claims insurance bad faith and violation
of the Vermont Consumer Protection Act (VCPA), 9 V.S.A.
§ 2453(a), and seeks damages for emotional distress as
well as punitive damages. After answering Plaintiffs Amended
Complaint, Sentry filed a Rule 12(c) Motion for Judgment on
the Pleadings asserting, among other things, that the court
lacks primary jurisdiction. (See Doc. 45.) Sentry
seeks either dismissal or a stay until the conclusion of
Meau's pending workers' compensation proceeding.
(See Doc. 49 at 8.) The court heard argument on the
motion on June 27, 2016, and has considered the parties'
post-hearing memoranda (Docs. 49, 52).
Amended Complaint, Plaintiff alleges as follows. On March 3,
2010, she was employed by The Howard Center, Inc. as a
Licensed Clinical Mental Health Counselor. On that date,
while working on behalf of her employer at the H.O. Wheeler
School in Burlington, Vermont, she was paged to assist the
principal in restraining a student who had become violent and
uncontrollable. She was injured in two falls while helping to
restrain the student. In the second fall, she struck her head
and neck against a cement wall, and then hit the base of her
spine as she fell to the floor.
the accident, and for many years since, Meau sought and
received medical treatment for her injuries. She has been
diagnosed with several conditions that she claims are the
result of, or complications connected to, the injuries she
received on March 3, 2010. Those conditions include: cervical
soft tissue injuries with muscle spasms, neck pain, low back
pain, prolapsed bladder with urinary issues, headaches,
vertigo, hypertension, and traumatic brain injury (TBI).
Vermont's Workers' Compensation Act (VWCA), 21 V.S.A.
§§ 601-711, Meau filed a claim for workers'
compensation benefits with Sentry, and since then has
received temporary total disability (TTD) payments due to her
inability to return to work. Meau was also found to be
entitled to vocational rehabilitation services, and a plan
was submitted to Sentry for such services. Because Sentry
never objected to the plan, the Vermont Department of Labor
(DOL) deemed it to be valid and enforceable.
to Meau, Sentry repeatedly failed to make timely payments to
her for benefits to which she was entitled. She gives six
examples of those alleged failures. First, she asserts that
Sentry denied or failed to make timely payment of her
September 30, 2011 vocational rehabilitation services.
Second, she alleges repeated and ongoing denials or failures
to make timely payment for prescription drugs and other
medical expenses. Third, Meau asserts that Sentry failed to
make timely payment within 30 days of receipt of her ongoing
trip reimbursement expenses, which she incurred to attend
office visits with her physicians. Fourth, she alleges that
Sentry denied or failed to make timely payment within 30 days
of her receipt of vocational rehabilitation services. Fifth,
she asserts that Sentry failed to make timely payments of her
Meau alleges that Sentry failed to make payment when due for
her physical therapy (PT). She asserts that Sentry failed to
pay for PT that she needed to help treat constipation issues
that she developed as a result of taking prescription opiate
pain medications. According to Meau, because she did not
receive timely PT, she now suffers constant physical pain and
discomfort from a prolapsed bladder. Meau asserts that she
has suffered financial, physical, and emotional injuries as a
result of Sentry's alleged failures.
History Regarding POL Proceedings
before DOL are ongoing in Meau's workers'
compensation case. The court does not have the complete
procedural history of the DOL proceedings, but the records
available to the court show that DOL assigned file number
BB-59825 to Meau's case, and has been involved in
handling appeals related to Sentry's actions since 2012,
if not before. (See Doc. 52-2.) On December 11,
2012, DOL issued a decision regarding Meau's requests
that multiple Form 2 Denials filed by Sentry be rejected.
(Doc. 52-2.) In that decision, DOL ordered Sentry to pay
medical benefits, concluding that several denials were not
reasonably supported, and further ordered that Sentry pay
medical benefits related to Meau's bladder prolapse.
(Id. at 2.) The decision also ordered Sentry
"to properly adjust this claim." (Id. at
3, 2013, DOL entered an order requiring Sentry to immediately
pay interim TTD benefits, noting that DOL had not received
the required forms from Sentry, and that Sentry had
acknowledged that Meau's checks were late or not timely
issued. (Doc. 52-4 at 2.) The May 3 order assessed a 10%
penalty on any overdue amount. (Id.)
January 24, 2014, DOL Commissioner Anne M. Noonan issued an
Opinion and Order addressing three issues:
1. Is Claimant's shingles disease causally related to her
March 3, 2010 compensable injury?
2. What amounts, if any, is Claimant entitled to receive for
unreimbursed mileage charges, medical bills, co-payments,
pharmacy expenses and/or temporary total disability benefits
(including cost of living adjustments and dependency
benefits) as a consequence of her compensable injuries?
3. To what extent, if any, should interest and/or penalties
be assessed on any of the above amounts?
Meau v. The Howard Ctr. Inc., Opinion No. 01-14WC,
at 1 (Vt. Dep't of Labor Jan. 24, 2014), available at
On the first issue, the Commissioner concluded that Meau had
"failed to sustain her burden of proving the necessary
causal relationship between her work injury and her shingles
to establish compensability." Id. at
second issue, the Commissioner recited the evidence that Meau
had presented showing amounts that Sentry owed her for
unreimbursed mileage and medical expenses, medical bill
co-payments, pharmacy expenses, dependency benefits,
cost-of-living-adjustments, and other TTD benefit shortages.
Id. at 9. The Commissioner found that Sentry had
failed "almost from the beginning to calculate
Claimant's weekly benefit correctly." Id.
The Commissioner noted that the May 3, 2013 order addressed
those issues by ordering that all arrearages be paid, with
interest and penalties. Id. The Commissioner found
that "penalties and interest were appropriately
assessed" and that the May 3, 2013 order was
appropriately issued. Id.
Commissioner also observed in her decision that neither party
had addressed whether Meau had reached an end medical result
as to shingles or any of her accepted injuries. Because
Sentry had not filed the necessary form, it was difficult to
determine which of Meau's other injuries Sentry had
accepted as compensable. The Commissioner concluded that
"[t]here seems little doubt that her cervical and lower
back injuries are causally related to the March 2010
accident, but Defendant's position as to her claimed
traumatic brain injury is less clear. Certainly more
attentive adjusting and closer adherence to Vermont's
workers' compensation rules would have provided more
clarity." Id. at 10 n.6. Ultimately, the
Commissioner ordered Sentry to pay:
1. Whichever unpaid claims for mileage expenses, medical bill
co-payments, prescription charges and/or unreimbursed medical
expenses are referable to injuries other than Claimant's
shingles disease, with interest ...