All posts by Martha Hunt

VERMONT WORKERS’ COMPENSATION UPDATE OCTOBER TO DECEMBER 2017

VERMONT SUPREME COURT DECISIONS

Diamond v. Burlington Free Press, 2017 VT 93 (Oct. 6, 2017).
Reversed Commissioner’s opinion finding no bar to claim for additional permanent impairment as claim not a time barred modification of 2004 PPD award as original Form 22 did not cover new impairment. “Barring the claim based merely on the generic reference to claimant’s ‘cervical spine’ ignores a material portion of the agreement -namely, the medical report upon which it was based – and is the sort of ‘medieval literalism’ we have warned against in previous workers’ compensation cases.” Court also dismisses Employer’s argument that allowing claim “will lead to potentially endless liability for employers” citing to limited liability protections in the Act and the Employer’s ongoing liability for medical benefits regardless of any bar to additional permanency benefits.

DEPARTMENT OF LABOR DECISIONS

Brosam v United Parcel Service, Opinion No. 14-17WC (Oct. 20, 2017)(ALJ Phillips).
Rejection of treating physician’s causation opinion as to opposing body party overuse syndrome in favor if IME doctor’s opinion that “even in a case where a patient’s arm is amputated, the other shoulder does not normally break down, because people do not typically use their bodies to maximum capacity. Thus he testified, the development of opposite side pathology due to overuse is ‘very unusual.’ I find this analysis credible.” Also rejected Claimant’s attempt to distinguish Lydy v. Trustaff, Inc., 2013 VT44 due to the fact that in the instant case health insurance premiums were paid by Defendant not some other employer as in Lydy. “[T]he Court’s determination that it is better left to the legislature to engage in a ‘robust… debate’ prior to changing longstanding policy is as defensible a rationale today as it was in Lydy.”

Liberty v. Town of Richmond, Opinion No. 15-17WC (Nov. 29, 2017)(ALJ Phillips)
Claimant seeks recalculation of Form 32 based upon exclusion of weeks in which Claimant took some vacation or sick leave in the 26 weeks prior to the work injury. “[O]nly the sick or holiday pay attributable to weeks during which Claimant was unable to work for more than one-half of his normally scheduled hours are properly excludable from his average weekly wage and compensation rate calculation.” No laches defense allowed as no prejudice found given that the information had previously been available to Defendant. “Any prejudice it now claims was of its own doing, not Claimant’s.” Form 22 allowed to be modified as a mutual mistake of fact, not law. “These were factual errors grounded in incomplete data. They were mutual as well- although either party might have discovered the true facts, neither did.” Interest awarded only since interim order in 2016, not from incorrect Form 32 in 2010, and given the unique circumstance of the case, “it would be inequitable to impose any late payment penalty.”

Vohnoutka v Ronnie=s Cycle Sales of Bennington Inc., Opinion No. 16-17WC (Dec. 8, 2017)(ALJ Phillips).
Pro se Claimant fails on third attempt to obtain TTD, PPD and certain medical benefits with summary judgment granted on behalf of Defendant. However, while both Defendant’s IME and Claimant’s treating physician “have now diagnosed Claimant’s behavior as malingering, without further testimony as to what each intended by that characterization, I am unwilling to consider this an absolute bar to future treatment.” Claimant also fails to produce credible medical evidence sufficient to “establishing his disability from working ‘in any capacity'” “Claimant has now tried- and failed- to establish a claim for temporary total disability benefits arising out of his February 22, 2013 cervical spine injury on three separate occasions. Given the passage of time, and considering the factors that have resulted in adjudications against him in the past, I anticipate that it will be even more difficult for him to establish a future claim for temporary disability benefits referral to the same injury. With that in mind, I encourage Claimant, in the strongest possible terms, to focus his energies instead on returning to work.”

BH v. State of Vermont, Opinion No. 17-17WC (Dec. 22, 2017)(ALJ De Bernardi)
Claimant’s claim for mental injury denied. “The evidence here does not establish a causal relationship between Claimant’s work stress and her psychological condition. Accordingly whether analyzed as a physical-mental claim or a mental-mental claim, her claim fails in either event. Moreover, even if she had established a causal relationship, she has also failed to prove that her work stress was extraordinary when compared to similarly situated employees performing the same or similar work.” 2017 amendment to statute changing standard for mental-mental injuries not applied as a substantive change in the law and the injury herein occurred prior to the change in the statute.

VERMONT WORKERS’ COMPENSATION UPDATE JULY TO SEPTEMBER 2017

Argentina Kearney, WC Specialist II is leaving the Department

VERMONT SUPREME COURT DECISIONS

Clayton v. J.C. Penny Corp, 2017 VT 87 (Sept. 22, 2017).
Reversing Commissioner’s decision that general release settlement language was void against public policy and thus relieving Claimant of the effects of the Agreement. Absent allegations of fraud or material mistake of fact, Commissioner’s authority in this matter is limited by Section 662(a) “the only consideration to be made is whether it is in the claimant’s best interests and the Commissioner is given latitude to make that determination only at the time of the initial approval of the settlement agreement.” Case remanded to determine whether claimant’s left- and right-foot injuries are causally related.

Haller v. Champlain College, 2017 VT 86 (Sept. 29, 2017).
Split decision upholds Commissioner’s determination that value of tuition free college credits earned in the 26 weeks prior to the work injury are included in Average Weekly Wage calculation for permanency benefits as a “other advantage” as set forth in the statute 21 V.S.A. §601(13). Justice Skoglund dissents: “Including in the calculation of weekly wage any fringe benefits that are not paid in lieu of wager or are not an explicit substitute for wages will create a morass that will overwhelm employers and the workers’ compensation system.” Justice Eaton also dissents citing to Lydy v. Trustaff, Inc. 2013 VT 44 which rejected including health insurance premiums paid in the Average Weekly Wage calculation as not remuneration, similar analysis would apply to free college tuition as not remuneration but rather a fringe benefit.

DEPARTMENT OF LABOR DECISIONS

Collette v. Hannaford Bros. Co., Opinion No. 12-17WC (Sept. 1, 2017)(ALJ Phillips).
Claimant’s treatment after September 2015 “when his previously stable low back condition acutely worsened negated his prior August 2012 medical end result determination. The course of treatment upon which he embarked thereafter was not merely palliative, but rather carried with it the expectation of significant medical improvement. It culminated in the October 25, 2016 radiofrequency ablation procedure which at the time it was contemplated
“In most cases, an injured worker attains the point of end medical result only once-he or she reaches a plateau following treatment and does not treat or become disabled again. Not every case follows this path, however. Even after reaching an end medical result, an injured worker’s condition might still worsen to the point where additional curative treatment becomes necessary, and along with it, an additional period of temporary disability.’
“[T]o the extent that Claimant was still functionally restricted from full employment as a consequence of his work injury after September 1, 2015, and until such time as he reached an end medical result, he was once again eligible for temporary total disability compensation.”

Green v. Oldcastle, Inc., Opinion No. 13-17WC (Sept. 27, 2017)(ALJ DeBernardi).
Defendant’s Motion for Summary Judgment denied as material issue of fact in dispute as to whether Claimant had a fixed place of employment when he was injured on his way to a construction site. Fact that Claimant paid for portion of travel time when injured not determinative of compensability as Defendant argues payment mere inducement to encourage employees to work at far flung locations.

VERMONT WORKERS’ COMPENSATION UPDATE JULY to SEPTEMBER 2016

Erica Mongeon of Waterbury, Vermont, was hired as the new WC Administrative Assistant B for the Workers’ Compensation Program otherwise known as the “voice” of the Department position, replacing Ellen Gonyaw who moved to Maine.

Jane Woodruff has stepped down as Administrative Law Judge. The Department is currently interviewing candidates for her replacement.

Julie Charonko, long, long, long time WC Specialist II, is retiring from the Department and moving to Florida. We wish her well!

UNITED STATES DISTRICT COURT

Adecco USA Inc. V Colombia Forest Products, Inc., Case No. 2:15-cv-25 (July 8, 2016)(Judge Sessions) On Cross Motions for Summary Judgment, Columbia Forest Products successfully defends indemnification argument by Adecco the temporary hiring agency for the injured employee injured in the course of working at Columbia Forest products. Court found no express indemnification language in the contract between Adecco and Columbia Forest Products and implied indemnification language fails as well. “Because the parties’ contractual arrangement essentially required CFP to pay for workers’ compensation as part of the mark-up it paid to Adecco, there is no viable equitable argument that it would now be fair to shift the cost of [the injured workers’] workers compensation benefits to” Columbia Forest Products.

VERMONT SUPREME COURT DECISION

Conant v. Entergy Corp. 2016 VT 74 (J. Eaton July 8, 2016)
Court overrules Commissioner’s determination and reiterates holding of Yustin v Department of Public Safety, 2011 VT 20 to allow for credits against TTD benefits for payments made by employer pursuant to a collective bargaining agreement for short term disability. “[A]n employer complies with the Act when a claimant ‘receive[s] full and direct payment of wage replacement from the employer during the disability period.’” Justices Robinson and Dooley dissent arguing that: “Absent statutory authority for applying an offset, the Commissioner has no authority to offset statutory workers’ compensation benefits to account for transactions between employer and employee that took place outside of the workers’ compensation proceedings. The majority’s holding that not only authorizes, but apparently requires, the Commissioner to so as a matter of law is inconsistent with our ordinary deference to the Commissioner on such matters, expands the Commissioner’s responsibilities beyond her statutory authority and expertise, undermines the private contracts, introduces unnecessary complexity into the calculation of workers’ compensation benefits, and expands this Court’s prior decision on the subject far beyond its rationale and holding.”

Bindrum v American Home Assurance Co. 2016 WL 4446533 (unpublished Entry Order)(August 19, 2016).
Claimant sues MSA Vendor alleging the MSA was undervalued. Court upholds trial court’s summary judgment ruling finding that “plaintiff had produced no evidence of any economic damage sustained due to the alleged undervaluation of the MSA. Nor could he, reasoned the court, because any inadequacy in the MSA would harm only Medicare, which had indicated that it would cover any shortfall- not plaintiff. According to the court, as long as the MSA was approved by CMS, plaintiff had no cause of action….”

DEPARTMENT OF LABOR DECISIONS

Hall v. Safelite Group, Opinion No. 10-16WC (July 15, 2016)(ALJ Phillips).
Defendant ordered to pay for teeth extraction and dentures which were not injured in work accident but necessary for treatment of Claimant’s work-related injury and the “replacement teeth are both medically necessary and vocationally advantageous.” Commissioner adopts the “ancillary treatment” principle which requires Defendant to pay for non-work related medical treatment if “effective treatment of a compensable injury requires ancillary treatment for an otherwise non-work-related condition…. I stress the fact-specific nature of my determination, however. Here, the evidence is support is both clear and undisputed. In another case, the nature of the ancillary treatment at issue, the extent to which it is medically necessary as a condition precedent to treating the work injury, and/or the injured workers’ previously established plan to undergo it might dictate a different result.”

Meunier v. The Lodge at Shelburne Bay Real Estate LLC., Opinion No. 11-16WC (July 27, 2016)(ALJ Woodruff).
Claim compensable even though Claimant unable to articulate how or why she fell. “Cases involving unexplained falls, as Claimant alleges occurred here, also may trigger positional risk analysis. The neutral force that caused the injury to occur in these cases is simply unknown. The situation is often confused with, but is entirely distinguishable from, so-called ‘idiopathic’ injury cases, in which the medical evidence establishes that the injury resulted for a purely persona condition and therefore is not unexplained…. In truly unexplained fall cases, most courts have awarded benefits notwithstanding the claimant’s inability to prove that the cause of the fall was directly connected to the employment. Instead, they have applied positional risk ‘but for’ reasoning to satisfy the ‘arising out of’ component of compensability….. But for the employment and Claimant’s position at work, her injury would not have occurred as it did. Lacking any evidence of an idiopathic cause for her fall, I am left with one of two conclusions- either it was work-related, or it was unexplained. Under Vermont law, either cause is sufficient to establish compensability.”

Hilliker v. Synergy Solar Inc., Opinion No. 12-16WC (Aug. 9, 2016)(ALJ Woodruff).
Dispute as to where Claimant was hired Vermont or Massachusetts. Claimant injured in Massachusetts in 2015 and collects WC benefits pursuant to MA WC Statute. Claimant wants to collect pursuant to VT WC Act instead. Claimant found to be hired in Vermont. “Defendant confuses the last act essential to the making of the hiring contract – Claimant’s assent to its terms – with actions which were triggered once she did so, such as completing federal tax and homeland security forms. Had Claimant been injured on her first day at the Sheffield work site, there is no doubt that her injury would have been compensable notwithstanding that she had not yet submitted the forms that [Employer] had requested. These documents may have evidence her hiring, but they did not in anyway create it.” “[B]ecause Claimant was hired in Vermont, jurisdiction lies here under 21 V.S.A. §619, and second, that neither the Full Faith and Credit Clause [of the United State Constitution nor principles of comity, waiver and/or estoppel bar her claim for a supplemental award here. So long as any such award is consistent with the facts underlying her Massachusetts claim, and provided that Defendant is allowed full monetary credit for the benefits it already has paid, she is free to proceed in this forum.”

Clayton v. J.C.Penny, Opinion No. 13-16WC (Aug. 24, 2016)(ALJ Woodruff)
Pro se Claimant settled on a full and final basis for compensable left foot injury but Settlement Addendum included language purporting to release Defendant, Insurance Carrier and TPA from “any and all” claims. Subsequently Claimant makes claim for right foot condition which she alleges arose out of her employment with Defendant but separate and distinct from the left foot injury. Commissioner holds that “a release that purports to cover not only injuries arising form a pending claim, but also those that might arise from completely unrelated causes at any time during the injured worker’s employment is impermissibly broad. It undermines the employer’s incentive to manage its risk appropriately, and absolves it from responsibility for protecting its employees from work-related harm. Because it thus violates critical public policy objectives, it is void.” Commissioner allows factual determination to see if right foot injury arose out of settled left foot injury (which would be barred by the settlement agreement) or some other non-covered incident which would allow Claimant to proceed with the litigation.

Haller v. Champlain College Corp., Opinion No. 14-16WC (Aug. 24, 2016) (Belcher ALJ).
Tuition free college credits utilized by claimant in the 26 weeks prior to her injury included in AWW calculation for permanency benefits award, but not for TTD benefits as Claimant continued to receive them while on TTD. Refusing to extend Lydy analysis barring health insurance benefits from being included in the AWW calculation to facts of this case. “If there are broader policy implications, these may be addressed by the legislature.”

Chartrand v. General Electric Aviation, Opinion No. 15-16WC (Aug. 24, 2016)(Belcher ALJ)
Defendant denies claim based upon physician’s report on causation. At subsequent deposition, physician now agrees with treating physician “that Claimant’s current condition represents the natural progression of her compensable 1990 and 2003 work-related injuries, without any contribution form non-work-related causes or events, Defendant’s only issue in this case evaporated.” Summary judgment prior to formal hearing was granted to Claimant with an award of attorney fees and costs.

Lamont v Agri-Mark Inc., Opinion No. 16-16WC (Sept. 16, 2016)(ALJ Phillips)
Dispute over causation of Claimant’s shoulder condition, Claimant’s IME doctor found more credible then Defendant’s IME doctor based upon third factor (“clarity, thoroughness and objective support underling the opinion”) of the five part Geiger test for determining which of the competing medical opinions was more persuasive.

VERMONT WORKERS’ COMPENSATION UPDATE APRIL TO JUNE 2016

Argentina Kearney has joined the Department of Labor staff as a Workers’ Compensation Specialist II starting May 16, 2016. Ms. Kearney has most recently been employed with the Montana State Fund, where she served as a Workers’ Compensation Claims Examiner

Form 28 COLAs due July 1 with increase of 2.8% with new minimum rate of $420 and new maximum rate of $1,259. Also recall that pursuant to the new WC Rule 8.2010 Form 28’s must now also be filed with the Claimant.

Comment period for the proposed new WC Rules involving Opiate treatment, Attorney Fee rates and Vocational Rehabilitation provider rates ends on July 14.

Goodrich v. Fletcher Allen Health Care, Opinion No. 6-16WC (Apr. 11, 2016(ALJ Woodruff)
Claimant exercises statutory right to videotape entire neuropsych test over objections of Defendant=s expert that such videotaping would render the test results unreliable and compromise the proprietary nature of the written test materials. ALJ rules that video recording through one way mirror or behind the examinee. “[t]hough perhaps not perfect, these steps represent an effective compromise between the examinee’s rights and the examiner’s need for valid test results…. In addition, in order to protect the proprietary nature of the test materials, I conclude that it is reasonable to prohibit Claimant from disclosing the video recording to anyone (including her attorney) other than directly to another qualified expert neuropsychologist.” Claimant failed to give 3 “full business” days notice of intent to videotape and thus Claimant is liable for late appointment cancellation fee of $1,600. Defendant not allowed to suspend benefits alleging that Claimant failed to attend the IME when she failed to give adequate notice of her intention to videotape the exam.

Kendrick v. LSI Cleaning Service Inc., Opinion No. 7-16WC (May 2, 2016)(ALJ Phillips)
Claimant not found to be at medical end result as continuing to improve with PT despite three prior unsuccessful PT modalities. No TTD award for period of time when Claimant canceled PT for unknown reasons. Permanency awarded based in part upon Claimant’s IME’s opinion, and also in part on Defendant’s IME opinion as to impairment.

Cook v. Precis Manufacturing, Opinion No. 8-16WC (June21, 2016)(ALJ Woodruff)
Claimant’s testimony and treating physician=s opinions found more credible then IME doctor’s opinions given inaccurate understanding by IME doctor of nature of injury. Claimant not succeed on burden of proof in interpreting AMA Guides as to whether radial styloid can be added to impairment rating following arthroplasty of carpal bones in wrists. AMA Guides Table 16-27.

Flood v. Feed Commodities, Inc., Opinion No. 9-16WC (June 29, 2016)(ALJ Phillips)
Claimant’s claim for broken leg arising out of his work for Defendant found compensable over Defendant’s allegations of fraud. “In fact, it is Defendant’s version of events that I find implausible. For me to accept its account, I must conclude that Claimant, his wife, his sister and possible his mother as well conspired together to defraud his employer. They would have had only 17 minutes… to concoct their story, presumably with him directing the effort whole lying on the ground in severe pain. They would have had to do so notwithstanding, his understanding that the Defendant’s video surveillance system was fully operational….” Claimant’s fact witnesses claim of Attorney client privilege upheld given allegations of fraud and potential legal ramifications thereon for these fact witnesses. Claim for attorney fees reduced by 10% given Claimants’ counsel’s “unfamiliarity with Vermont’s Workers’ Compensation Law and process…” on a $31,987 attorney fee request.