Phyllis Phillips, former Director of the Department of Labor and Industry Workers' Compensation Division is now the Senior Hearing Officer at the Department and will be hearing cases on a full-time basis.

Payea v. Personnel Dep't, Opinion No. 38-08WC (Oct. 3, 2008).

Claimant's counsel's failure to file an attorney lien relieves Defendant from paying attorney fees when Defendant pays benefits directly to Claimant pursuant to an interim order and Claimant fails to pay Claimant's counsel's attorney fees.

KJ v. Northern Power Systems, Inc., Opinion No. 39-08WC (Oct. 6, 2008).

No violation of Defendant's constitutional rights to due process even though WC specialist "failed to evaluate Claimant's request for an interim order with an eye towards whether sufficient evidence had been produced which on its face reasonably could support a finding against compensability. By focusing instead on whether Claimant had established a sufficient case in favor of compensability, she allocated the burden of producing evidence inappropriately and applied the wrong evidentiary standard." The "statutory scheme [] places the burden of production on the employer at the same time it imposes a lower standard of proof" ie "reasonable support". But delayed reported claim found compensable as "there is a credible consistently reported history of continuing complaints, all relating directly back to the [] incidents as the precipitating cause of Claimant's symptoms. Expert witness costs for time spent preparing testimony or conferring with Claimant's counsel are not compensable.

Church v. Springfield Hosp., Opinion No. 40-08WC (Oct. 9, 2008).

Claimant's IME doctor's opinion found more compelling than Defendant's IME doctor as to causation of spinal injury. Claimant suffers slip and fall at work, complains about pain but continued working, then suffers an excruciating aggravation of condition going upstairs at home at the end of that week. Claimant claims original injury resulted in axial load which ultimately led to disc fragment coming loose resulting in subsequent painful condition which leads to surgery and Claimant ultimately leaving work. Defendant not entitled to offset Claimant's receipt of retirement benefits from TTD claim. "[A]lthough Claimant's decision to retire constitutes some evidence that she did not intend to return to work, be it for Defendant or anyone else, absent companion evidence showing that she had been released to return to work and had failed unreasonably to do so (as that concept is defined in Workers' Compensation Rule 18.1300), there is insufficient basis for discontinuing her temporary total disability benefits on those grounds."

Murray v. Home Depot USA, Inc. Opinion No. 41-08WC (Oct. 21, 2008).

"The circumstance here dictate that it is more appropriate to award all of the permanency rated than it is to apportion. Notwithstanding the fact that the Claimant may have had some degree of pre-existing disc disease in his lumbar spine, it was not disabling and did not require medical treatment until the August 2001 work injury. Clearly the work injury acted in such a way as to aggravate and accelerate it, and Claimant's permanency award should fully reflect that result."

Bajorvic v. University of Vermont, Opinion No. 42-08WC (Oct. 28, 2008)

In dispute between treating and IME doctors, split decision with partial award for shoulder condition for which Claimant remains TTD but fails to meet burden of proof for right elbow and wrist neuropathies. "This claim presents a frustrating reminder that medical science often is inexact, particularly with respect to forensic determinations of causal relationship. Symptoms do not always progress in textbook fashion, clinical tests do not always yield consistent results , and a patient's recovery does not always proceed linearly. It is not surprising that well-qualified medical experts may have widely divergent opinions as to causal relationship."

McNiffe v. Laraway Youth and Family Services, Opinion No. 43-08WC (Nov. 3, 2008).

Defendant found to be statutory employer of Claimant at time of injury applying "Supreme Court's guidance in Chatham Woods", as Defendant provided supervision and "rigorous requirements as to exactly what was to be provided to each client."

Abare v. Ben & Jerry's, Opinion No. 44-08WC (Nov. 6, 2008).

Claimant suffers injuries in 1999 and 2005, current condition found to be an aggravation of original injury as additional permanency results following second injury. Claimant's hernia rated pursuant to Department's prior analysis in Estabrook and Knapp-Bowen. Claimant not at medical end result, but in order to continue TTD benefits, within 30 days of decision if "Claimant should fail to take the steps necessary to begin undergoing the recommended treatment... [otherwise] he will be deemed to be at medical end result." Claimant's genital pain and erectile dysfunction found not compensable as no objective support found for Claimant's pain complaints "and Claimant's subjective testimony was not sufficiently credible to overcome the deficiency thus created." As Claimant did not prevail on all aspects of the claim, only 75% of Attorney fees and costs are awarded to Claimant's counsel.

Southworth v. Vt. Agency of Transportation, Opinion No. 45-08WC (Nov. 12, 2008)

Defendant's motion for summary judgment denied as disputed issues of material fact remain as supported by Claimant's treating physician. "However tenuous or unlikely the evidence in support of Claimant's claim that her work-related falls aggravated her underlying pain disorder, she is entitled nonetheless to present evidence and litigate the question."

Reid v. Vermont Agency of Transportation and Young's Farm Equipment, Opinion No. 46-08WC (Nov. 14, 2008).

Aggravation found as Claimant's subsequent "heavy work... finally took its toll" on Claimant ultimately requiring surgery and a resulting permanent impairment. Defendant's work at the subsequent employer "caused more than just exacerbated symptoms but a worsening of his underlying condition as well...."

Forest v. Fletcher Allen Health Care, Opinion No. 47-08WC (Nov. 21, 2008).

Claimant's IME's opinion found less credible than Defendant's IME opinion because he "did not account for the role that other significant risk factors probably played in causing Claimant's symptom complex to change...."

Garrow v. Chittenden Transportation Authority, Opinion No. 48-08WC (Nov. 26, 2008).

For undisputed low back injury Claimant found at MER. "There is no medical evidence to refute that conclusion, only Claimant's continued subjective complaints, which I find to be insufficient." Claimant's left shoulder complaints found not compensable as Claimant failed to report any such condition to her treating physicians for six weeks.

Gaudette v. Norton Bros, Inc., Opinion No. 49-08WC (Dec. 4, 2008).

Claimant found not to be PTD as "I find hat Claimant has not yet had the benefit of the full range of vocational rehabilitation services that should have been offered him." Defendant must now supply those adequate VR services.

JH v. NSK Corp. Opinion No. 50-08WC (Dec. 3, 2008)

Treating physician's opinions rendered as "more likely than not" satisfies compensability determination when Defendant's doctor's opinions were found "problematic". Change in work station found cause of shoulder condition. Video of person other than Claimant performing Claimant's job found not helpful as substitute was 7 inches taller with wider reach than Claimant.

Smith v. Fletcher Allen Health Care, Opinion No. 51-08WC (Dec. 16, 2008).

Defendant's expert's opinion relative to the aggravation issue found not credible as opinion focused more on compensability rather than medical end result given Defendant's earlier acceptance of the claim through the filing of appropriate TTD forms approved by the Department. Defendant did meet burden of proof on issue of MER for another body part. "The fact that Claimant may require additional surgery in the future does not negate a finding of end medical result now."

Oritz v. Buttura & Sons, Opinion No. 52-08WC (Dec. 16, 2008).

Late reported injury found not compensable due to Claimant's lack of credibility which also thus undercuts treating physician's opinions as to causation. "When medical personnel rely on a patient's history of a work-related incident that proves not to be credible... their opinions lose their crucial base."

Seymour v. Genesis Health Care, Corp., Opinion No. 53-08WC (Dec. 30, 2008)

Claimant's claim of aggravation of pre-existing condition by writing for VR testing fails as treating doctor's opinion lacked specific facts to support, and Claimant fails to "fill in the blanks. She could not recall any of the specific as to her writing activities on December 13, 2006 and instead appeared to have confused her activities on that date with those in which she engaged on December 15, 2006 the day after she presented in the emergency room with bruising and swelling in her forearm."