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VERMONT WORKERS’ COMPENSATION UPDATE APRIL TO JUNE 2019

DEPARTMENT OF LABOR

Souligny v. PB&J, Inc. (Souligny III), Opinion No. 7-19WC (Apr. 9, 2019)(ALJ DeBernardi)

Claimant determined not to be PTD as she rejected VR benefits and has a full-time sedentary to light duty work capacity. Claimant also found not entitled to mileage reimbursement for pool exercise related to her work injury. “Claimant has not met her burden of proving that her self-directed use of a swimming pool constitutes medical treatment for purposes of the mileage reimbursement rules, nor has she provided reasonable documentation of her mileage to and from the pool.”                                                    

McNall v. Town of Westford, Opinion No. 8-19WC (May 10, 2019)(ALJ Brown)

Claimant’s treating physician did not satisfy burden of proof that proposed back surgery was causally related to 2015 accepted work injury. “The temporal gap between Claimant=s fall and his seeking treatment for back pain, combined with his lifetime of arduous physical labor, make the affirmative inclusion and exclusion of alternative trauma sources essential to the causation analysis in this case.” This does not mean that the Defendant’s IME doctor’s opinion was more persuasive. “On the one hand, her analysis of Claimant’s medical chronology was thorough and helpful in illuminating alternative causes that may have contributed to Claimant’s spinal condition. On the other hand, her speculative attacks on Claimant’s credibility and her incorrect assumptions about his activity tolerance when his pain was undisputedly at its worst highlight the epistemic limitations of evaluating the honesty of subjective pain complaints medical records review.”               

Hall v. Safelite Group, Inc., Opinion No. 9-19WC (May 14, 2019)(ALJ DeBernardi)

Claimant with CRPS found to be PTD despite earlier FCE finding work capacity. “Although Mr. Alexander’s functional capacity evaluation identified a limited part-time work capacity, Dr. Horton’s work restrictions and Dr Bucksbaum’s description of Claimant’s CRPS condition convincingly establish that Claimant has no reliable and safe work capacity. Further, [vocational experts] testified that Claimant has exhausted vocational rehabilitation services and cannot reasonably be expected to return to regular, gainful employment. No vocational rehabilitation professional testified to the contrary….”

West v. North Branch Fire District #1, Opinion No. 10-19WC (June 11, 2019)(ALJ DeBernardi)

2014 Statutory Amendment to 21 VSA 644(a)(6) (changing “incurable imbecility” to “severe traumatic brain injury causing permanent and severe cognitive, physical or psychiatric disabilities”) determined to be a substantive change not a procedural change and thus cannot be applied retroactively to injuries arising prior to the amendment. While has unintentionally “the Vermont Legislature’s stated intent was not to change the substance of existing law, … words by their very nature have meaning and effect…. [B]y deleting the ‘imbecility’ language and replacing it with new language, the Legislature changed the substance of 21 V.S.A. ‘644(a)(6). ” However, Defendant’s Motion for Summary Judgment denied as disputed facts exist in this matter. 

VERMONT WORKERS’ COMPENSATION UPDATE OCTOBER TO DECEMBER 2018

by Keith Kasper Esq.

VERMONT SUPREME COURT DECISION

Martel v. Connor Contracting Inc., 2018 VT 107 (Oct 12, 2018)(AJ Carroll)
Return to the Kittell specific intent to injure standard for exclusion to exclusivity doctrine for WC Act. Claimant falls off roof alleges substantial certainty of injury when Supervisor allegedly takes safety device off job site to use on another job site. “We hold that under Vermont law, an injured employee must show specific intent to injure. Exclusivity protections extend to co-employees and owner of company as “the duty to provide a safe workplace is a non-delegable corporate duty and the presence or absence of the [safety device] is part of the safe workplace equation.” Robinson and Reiber concur in mandate but argue that given the facts of the case it is “unnecessary … to readopt the specific-intent standard set forth in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).”

DEPARTMENT OF LABOR DECISIONS

Bergeron v. City of Burlington, Opinion No. 14-WC( Oct. 15, 2018)(ALJ Brown)
Claimant starts treatment for mental injuries in May of 2016 and diagnosed with PTSD in March of 2017. In October of 2017 Claimant suffers a work-related back injury and files a claim for PTSD in January of 2018. On Defendant’s motion for summary judgment firefighter’s claim for PTSD governed by prior statute of unusual and extraordinary stress for similarly situated employees as Claimant discovered psychological injury and relationship to work prior to statute change on 7/1/17. Statutory amendment is substantive not procedural, thus applied prospectively not retroactively. Alternative theory that the portion of the statutory amendment giving a presumption of compensability for PTSD diagnosed within three years of injured employees last active date of employment means no claim can be made under the new statute for this presumption until 7/1/20.

Omerovic v. University of Vermont Medical Center, Opinion No. 15-18WC (Nov. 13, 2018)(ALJ Brown)
Ruling on treating mental health care provider’s motion to quash subpoena to testify in deposition. Department requires treating PA as to her evaluation of Claimant for PTSD. Both Claimant and Defendant supported subpoena. Department rules she must attend at reasonable time and place a be compensated for her time but she is not being forced to testify as an “Unretained Expert” in violation of V.R.C.P. 45 (c)(3)(B)(ii).

Abraham v. Mountain Communities Supporting Education, Inc., Opinion No. 16-18WC (Dec. 19, 2018)(ALJ DeBernardi)
Both parties cross motions for summary judgement denied. Claimant injured falling down stairs at home 4 hours after the end of her work day. Claimant alleges she fell due to the weight of carrying a safe up her stairs that she had used earlier in the day for a video shoot for her employer showing safe methods for storing prescriptions at home. Defendant alleges Claimant fell from non-work-related vertigo. ALJ finds: “Having considered the undisputed facts relevant to time, place and activity, I conclude as a mater of law that Claimant’s January 31, 2018 injury was sufficiently linked to her employment to have occurred in the course of it.” However, insufficient evidence showing that the injury arose out of the employment as “there are genuine issues of material fact as to the cause of Claimant’s fall and the role, if any, that her idiopathic conditions might have played. These facts are material because an unexplained fall is generally compensable, but an idiopathic fall is generally not.”

Huang v. Progressive Plastics, Inc., Opinion No. 17-18WC (Dec. 21, 2018)(ALJ Brown)
Defendant’s motion for summary judgment is approved as evidence supports finding that current complaints are related to previously settled 2014 injury and 2016 Settlement Agreement covers all future arising “natural sequella” of the 2014 work injury. Current claim for neck benefits not mentioned in prior settlement, but Claimant fails to bring forth any evidence “that Claimant’s neck injuries probably resulted from his work activities.” Thus, “Claimant has not established a genuine issue of material fact as to whether his current neck complaints are causally related to his 2018 alleged lifting activities.”

VERMONT WORKERS’ COMPENSATION UPDATE JULY TO SEPTEMBER 2018

by: Keith J. Kasper

VERMONT SUPREME COURT DECISION

Martel v. Connor Contracting Inc., 2018 VT 107 (Oct 12, 2018)(AJ Carroll)
Return to the Kittell specific intent to injure standard for exclusion to exclusivity doctrine for WC Act. Claimant falls off roof alleges substantial certainty of injury when Supervisor allegedly takes safety device off job site to use on another job site. “We hold that under Vermont law, an injured employee must show specific intent to injure. Exclusivity protections extend to co-employees and owner of company as “the duty to provide a safe workplace is a non-delegable corporate duty and the presence or absence of the [safety device] is part of the safe workplace equation.” Robinson and Reiber concur in mandate but argue that given the facts of the case it is “unnecessary … to readopt the specific-intent standard set forth in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).”

DEPARTMENT OF LABOR DECISIONS

Samson v. Central Vermont Medical Center, Opinion No. 11-18WC (July 5, 2018)(ALJ Phillips)
Claimant voluntarily terminated Vocational Rehabilitation benefits then tried to reopen them three weeks later to which the Defendant objected. “Because Claimant rescinded her prior request to terminate vocational rehabilitation services in a timely manner and with no resulting prejudice to Defendant, I conclude that she is entitled to resume” Vocational Rehabilitation benefits. [Note proposed VR Rules would allow Claimant to rescind prior closure request within 6 months of closure.]

Souligny v. PB&J Inc., Opinion No. 12-18WC (Aug. 24, 2018)(ALJ Brown)
Defendant’s motion for summary judgement as to unsupervised pool therapy denied. Unsupervised pool therapy found to be medical treatment despite the lack of “medical records.” “However, requiring records of exercise sessions to be in a particular form or from a particular source before considering them ‘medical treatment’ would conflate the questions of whether a given activity is treatment and whether a given treatment is reasonably documented.” Claimant’s treating physician remains involved in Claimant’s medical treatment and “[h]is records show that he repeatedly checked on her progress and tolerance of pool exercises, made specific recommendations concerning their frequency, and identified ‘self-directed pool therapy’ as a ‘long range goal.’”

Deuso v. Shelburne Limestone Corp., Opinion No. 13-18WC (Sept 14, 2018)(ALJ Debernardi).
Denying Defendant’s motion for summary judgment on statute of limitations, intent to injure another, and termination for cause, but granted as to hernia claim for lack of supporting evidence. The intent to injury defense requires “an intent to injure not merely an intent to make physical contact, and second, a deliberate state of mind, rather than an impulsive one. Statute of limitations for tinnutus because “‘The time period does not begin to run until claimant, as a reasonable person, should recognize the nature, seriousness and compensable character of his injury or disease.” (Quoting Larsons).

Bergeron v. City of Burlington, Opinion No. 14-18WC( Oct. 15, 2018)(ALJ Brown)
Claimant starts treatment for mental injuries in May of 2016 and diagnosed with PTSD in March of 2017. In October of 2017 Claimant suffers a work-related back injury and files a claim for PTSD in January of 2018. On Defendant’s motion for summary judgment firefighter’s claim for PTSD governed by prior statute of unusual and extraordinary stress for similarly situated employees as Claimant discovered psychological injury and relationship to work prior to statute change on 7/1/17. Statutory amendment is substantive not procedural, thus applied prospectively not retroactively. Alternative theory that the portion of the statutory amendment giving a presumption of compensability for PTSD diagnosed within three years of injured employees last active date of employment means no claim can be made under the new statute for this presumption until 7/1/20.