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. 


by Keith Kasper Esq.


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).”


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.”


by: Keith J. Kasper


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).”


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.


By: Keith J. Kasper, Esq.


Perrault v. Chittenden County Trans. Auth., 2018 VT 58 (June 1, 2018)(J. Caroll)
Court upholds Commissioner’s decision that mileage reimbursement does not equate to wages for purposes of determining employer-employee relationship. “Put simply, a reimbursement makes the recipient whole, but is not an earning – that is, the reimbursement is not a gain to the recipient.” Differentiates Lyons v, Chittenden Central Supervisory Authority, 2018 VT 26 by showing that in the instant matter there were no wages. “The Commissioner’s reasoning on this point makes explicit what our prior decisions have made implicit, and we therefore adopt the rule that employment under the first prong of the statutory definition requires wages as they are defined for workers’ compensation.”


Holbrook v. Kennametal, Inc., Opinion No. 7-18WC (May 21, 2018)(ALJ DeBernardi)
Claimant with upper extremity injury found not to be PTD. Claimant’s treating physician found Claimant permanently disabled, but “did not testify that Claimant was permanently and totally disabled. As the term suggests, there are two separate prongs to a permanent total disability determination. First the disability must be permanent, as opposed to temporary. Second, it must be total as opposed to partial.” (Emphasis in original). Furthermore, Claimant did not exhaust his VR services prior to the formal hearing. “In short, there are additional vocational services that may benefit Claimant, but only if he engages fully, and participates actively, in the process.”

Bergeron v Rock-Tenn Co., Opinion No. 8-18WC (May 23, 2018)(ALJ Phillips).
All doctor’s opinions as to causation found wanting, but compensability found primarily on the “strong temporal relationship between [low back pain] and the work injury. Given the well-documented new event, combined with a relatively unremarkable prior history, as to Claimant’s specific complaints of low back pain I conclude that the evidence is sufficient to establish work-related causation.” “I reach the opposite conclusion as to Claimant’s lower extremity symptoms, however. Notwithstanding Claimant’s hearing testimony, I remain unconvinced that these complaints arose as soon after his July 2013 fall as his experts assumed. From the evidence presented, I am also unsure whether Claimant’s prior history of lower extremity numbness is at all relevant to his more recent presentation. Absent clarification on this issue, I must reject the analysis that Claimant’s expert proffered as incomplete.” Claimant’s IME expert’s opinion as to permanent impairment for the cervical spine found :the most persuasive. Considering the waxing and waning nature of low back pain generally, Dr White’s rating better accounts for Claimant’s ongoing symptoms.”

Clark v. Blair Farm Maple Products, Inc., Opinion No. 9-18WC (ALJ Phillips & Brown)(June 12 2018). Claimant found not to be an employee of Defendant. “I conclude from the credible evidence that Claimant was a volunteer who gratuitously offered his assistance to Mr. Barber in a personal matter unrelated to Defendant’s business operations. Under these circumstances, Claimant’s efforts were those of a volunteer not an employee.”



Lyons v Chittenden Central Supervisory Union, 2018 Vt 26 (Mar. 16, 2018)
In three way split decision, Court reverses Commissioner=s decision finding that a student teacher is in fact an employee of school for WC purposes, remands for determination of benefits including AWW calculation. The plurality decision written by Justice Dooley and supported by Chief Justice Reiber concluded that: “If this were a case where the loss of the educational opportunity were not so directly tied to the ability to obtain a license to practice a profession, we would conclude that the question of whether the lost advantage could be estimated in money would require separate factual development so that summary judgment would be inappropriate. Where, however, the loss of the educational program equates to a loss of the license to practice a profession, we can say as a matter of law that the value of the lost advantage can be estimated in money.” Justice Robinson, concurring in the result only of the plurality opinion argued for a broader interpretation: “I would reverse on the ground that claimant is a statutory employee under the workers’ compensation laws because she worked under apprenticeship with the Chittenden Central Supervisory Union.” Justice Eaton and Justice Skoglund dissented arguing that: “First, I do not believe an employer-employee relationship exists in the absence of the
’employee’ receiving wages; whatever benefits claimant received from her student teaching experience were not quantifiable remuneration, and thus were not wages…. Regardless of whether the value of training or certification can be estimated in monetary terms, claimant could not receive, and was not intending or expecting to receive, her teaching certification from CCSU….. The plurality acknowledges the ‘grand bargain’ underlying workers’ compensation. Yet, this Court’s decisions continue to chip away at the bargain so that only one side of it, the employer’s liability without regard to fault, would be recognizable today to those who crafted it. The other side of the bargain, a liability for employers that is limited and determinate, has become a vacuous mantra.”


Daniels v Ronald Corliss, Opinion No. 1-18WC (Jan. 4, 2018)(ALJ DeBernardi)
On Defendant’s Summary Judgment Motion, pro se Claimant=s claim barred on grounds of statute of limitations and laches. “Claimant alleges that he suffers from chronic headaches casually related to the June 25, 1995 accident. His headaches became reasonably discoverable and apparent by approximately June 25, 1996. Applying the six-year statute of limitations that was in effect in 1996, I conclude that Claimant had until June 25, 2002 within which to initiate a proceed for workers’ compensation benefits relating to his injuries.” Defendant also satisfied the affirmative defense of laches given the 22 year delay by Claimant in filing this matter as Defendant “no longer has a clear memory of the June 1995 accident or its surrounding circumstances, nor does he have his business records from that time. Moreover due to the passage of time, he cannot effectively investigate the circumstances underlying Claimant’s allegations; even obtaining the contemporaneous medical records would be burdensome or impossible.”

Bartlett v. Trapp Family Lodge, Inc., Opinion No. 02-18WC (Jan. 31, 2018)(ALJ DeBernardi)
Claimant denied claim for PTD benefits with a work capacity of two hours per day three days per week. “Based on [the VR Counselor’s] reports, I find [Claimant’s] testimony to be an inaccurate summary [of her VR efforts]. In particular, I find that they did not determine that there were no jobs for her, but rather services were suspended while she pursued additional medical treatment. Due to the suspension of services, [VR Counselor] did not complete his vocational assessment, and Claimant has received no additional assessments or services…. No vocational rehabilitation counselor has used the [functional capacity] evaluations to explore what work she might be able to do. Thus, I am unconvinced that she has no reasonable prospect of finding and sustaining regular, gainful employment.”

Darby v. W.E. Aubuchon Co., Inc., Opinion No. 3-18WC (Feb. 13, 2018)(ALJ Phillips)
Claimant found to be PTD. Defendant attempted to terminate Claimant’s opioid treatment which, after adjustments by Claimant’s treating physician was found to comply with DOL standards. Defendant also denies individual psychotherapy as not being reasonable and necessary medical treatment. “Though I acknowledge Defendant=s right to contest its obligation to pay for treatment it believes is unreasonable. I am dismayed nonetheless at its response to claimant=s request for psychotherapy in this case. I share Defendant’s concern that opioid medication have neither decreased her pain nor increased her function effectively as anyone would hope. But to advocate for removal of the only pain management tool she currently has at her disposal, while simultaneously refusing to embrace a reasonable alternative, is callous and inhumane.”

Crowe v. The Fonda Group, Opinion No. 4-18WC (Mar. 2, 2018)(ALJ Phillips)
Claimant had a 2001 work related injury with an employer which went out of business in Vermont shortly thereafter. Claimant had follow-up medical appointments in 2015 for the original work-related injury which caused her to lose time from work in order to attend those medical appointments. Claimant sought an order from the Commissioner requiring the workers’ compensation carrier to compensate Claimant for that lost time instead of her current employer. The Commissioner rejected that argument holding that “The Commissioner’s interpretation of ‘6408 as expressed in Hathaway [v. S.T. Griswold & Co., Opinion No. 04-14WC (Mar. 17, 2014)] rests on a solid foundation, now buttressed by a legally promulgated rule. Claimant’s arguments to the contrary notwithstanding, I can discern no basis for reconsidering or reversing it.”

LaHaye v. Kathy=s Caregivers, Opinion no. 05-08WC (Mar. 27, 2018)(ALJ DeBernardi)
Claimant’s hip injury found compensable by testimony of treating physician over that of IME doctor’s opinions. No evidence of waiver defense when Defendant paid for diagnostic testing to determine if pain coming from contested hip condition as opposed to accepted low back claim.

Hall v. Safelite Group, Inc., Opinion No. 06-18WC (Mar. 29, 2018)(ALJ Phillps)
Medical marijuana found to constitute reasonable medical treatment for Claimant’s CRPS diagnosis but found not compensable pursuant to VT WC Act. “Vermont’s medical marijuana statute was enacted in 2004. The landscape has changed significantly in the years since. Medical marijuana is now legal in more than half the states, and Vermont recently became the ninth state to legalize the use of recreational marijuana as well. Changes may also be afoot at the federal level, though it remains difficult to discern what direction those will take. It seems inevitable that state and federal policy regarding legalization will eventually coalesce. When that occurs, the uncertainty that now exists as to insurance coverage for medical marijuana will likely be resolved. Until then, and particularly given the shadow cast by the federal Justice Department’s most recent enforcement guidance, the specific language of 18 V.S.A. ‘447c(b)(4) permits only one result. Notwithstanding that Claimant’s use of the drug is medically appropriate, necessary and therefore reasonable under 21 V.S.A. ‘640(a), I cannot compel Defendant to reimburse him for his medical marijuana purchases.”


Jarvis v Burlington Food Service, (Jan. 17, 2018) (R.Cain Arbitrator)
In preliminary ruling on multi party Agg v Rec issue, Arbitrator bars middle carrier from arguing recurrence based upon lack of prosecution of original arbitration in 2011 and lack of rebuttal of original carrier’s filing with the Department in 2013 in response to second carrier=s filing of Form 22 with escape clause language that “this matter is concluded from our end and that [second carrier] is relieved of any further responsibility/liability in this matter.” Underlying claim between second and third carrier on agg v rec issue to continue.



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.


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.


Argentina Kearney, WC Specialist II is leaving the Department


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.


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.


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!


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.


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….”


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.


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.



Two new WC specialists have joined the VT DOL.
The new WC rules went into effect on August 1, 2015.
The COLA for July 1, 2015 was 1.023 with the new minimum compensation rate of $408 and the new maximum compensation rate of $1224.

Marsh v. Koffee Kup Bakery, Inc., Opinion No. 15-15WC (July 6, 2015) (HO Phillips)
Relying in part upon the precedence set forth in Brace v Vergennes Auto Inc., 2009 VT 49, Commissioner ruled in favor of treating physician’s opinion that Claimant had not reached a medical end result at the time of the approved Form 27 as the “pain management treatment Ms Gagnon provided to Claimant through February 10, 2015 was sufficiently curative in nature to negate Dr White’s prior end medical result determination. Its purpose was not merely ‘to offer improvement in [Claimant’s] coping mechanisms,’ as Dr White characterized it, but rather to alleviate and stabilize her condition. It thus was directed at long-term symptom relief, with a reasonable expectation of significant functional restoration as a result. And although Ms Gagnon’s treatment plan was no as finite as the treatments at issue in either Luff [v Rent Way, Opinion No. 7-01WC (Feb. 16, 2010)] or Cochran [v. Northeast Human Services, Opinion No. 31-09WC (Aug. 12, 2009)] neither was it so open-ended as to lack a defined goal aimed at permanently improving rather than just maintaining function, see N.C. v. Kinney Drugs, Opinion No. 18-08WC (end medical result not negated by chiropractic treatment that provided only temporary pain relief and maintained ‘decidedly low’ level of function).”

Wolff v. Johnson State College, Opinion No. 16-15WC (July 13, 2015)(HO Phillips)
Applying post 2010 Attorney Fees rules an interim order was rendered in this matter on behalf of Claimant due to Claimant’s counsel’s actions. “As this is the principal touchstone under the current statute, an award of some portion of the fees and costs Claimant incurred is justified.” However, fees limited to those incurred after denial issued by Defendant and Attorney fees reduced as “the amount for billed telephone conferences, e-mail responses and other client status updates was excessive.”

Dunroe v. Monro Muffler Brake Inc., Opinion No. 17-15WC (July 23, 2015)(HO Phillips)
Statute of limitations begins to run, for either work-related injury or occupational injury, at “the moment when both the injury and its relationship to employment are reasonably discoverable and apparent.” “The equitable tolling provision contained [in 21 V.S.A. §660(a)] applies only to the six-month limitations period for filing a notice of injury and claim for compensation under § 656. It does not in any way excuse an injured worker form taking affirmative action to protect his or her rights before the statute of limitations expires.”

Dobson v. Ethan Allen Interiors, Inc., Opinion No. 18-15WC (Aug. 21, 2015)(ALJ Woodruff)
Parties agree to Form 22 for Medical End Result and impairment on April 17, 2012. Claimant continues to treat medically for the compensable knee condition. Doctors state that she will need total knee replacement, but due to her age (53) recommend she delay surgery as long as she could. On October 31, 2012, Claimant see surgeon who recommends knee replacement surgery. Defendant denies surgery as neither reasonable nor necessary medical treatment. Following formal hearing on the merits of that issue, formal hearing decision issued finding surgery reasonable and necessary. Then, Claimant has knee replacement surgery in November of 2014. Claimant found entitled to TTD benefits from date of surgeon recommending surgery in October of 2012 even though at MER by agreement of the parties back in April of 2012, not as of followup surgery in November of 2014. “It was Defendant’s choice to deny coverage, thus inviting the litigation that resolved the matter in Claimant’s favor. Had it chosen otherwise, the period of temporary disability for which it now faces responsibility would have been much shorter, likely a matter of weeks rather than years. Claimant’s Average Weekly Wage remains at original rate not new post MER rate. Defendant argues that new lower post MER rate should apply as “Claimant abandoned the path to the higher paying positions that the approved return to work plan envisioned, opting for lower paying, and therefore less suitable, jobs instead.” Commissioner rejects such an argument finding that: “Claimant here faced financial exigencies that dictate hard choices and immediate action. The vocational rehabilitation plan Defendant would have had her pursue envisioned the same types of jobs as the ones she secured opn her own. With actual was less than ten percent lower that what the plan anticipated, furthermore, any perceived disparity between what Claimant was able to accomplish and what Defendant asserts might otherwise have been possible is negligible at best.”

Brown v. Casella Waste Management, Opinion No. 19-15WC (Sept. 3, 2015)(ALJ Phillips)
While Claimant’s ongoing medical treatment is causally related to 2006 compensable work injury, Claimant failed to prove that his not working is related to that injury and thus no TTD benefits are payable following Claimant’s going out of work in 2014. Claimant’s most recent employment with a new employer did not cause an aggravation of the work injury relieving Defendant of liability for ongoing medical treatment. ALJ accepts physical therapist’s opinion over that of IME doctor. “As a doctoral level physical therapist, Ms Bell has the requisite training and expertise to render an opinion, and her status as Claimant’s treatment provider adds to, rather than detracts from, her credibility.” Defendant required to pay for ongoing medication. “That Claimant already was treating for a pre-existing condition – his narcotics addiction – at the time he was injured does not change Defendant’s responsibility to pay for causally related, medically necessary treatment. What matters is simply that, as currently prescribed, Suboxone is an effective treatment for th injury-related chronic hip pain from which he now suffers. At least until the drug ceases to be helpful for that purpose, under §640(a) Defendant is obligated to pay for it.” Attorney fees limited in relationship to extent of Claimant’s success on the merits of the claim.

Reynolds v. Northwest Vermont Solid Waste Management District, Opinion no. 20-15WC (Sept. 28, 2015)(ALJ Phillips)
Pro-se Claimant’s request to reopen formal hearing to address discrepancy on one of Defendant’s trial exhibits denied as “the discrepancy between the two sets of documents was only marginally relevant to the disputed issues in the case….” and the ALJ was “satisfied that the altered documents do not indicate any misleading or deceitful intent” on behalf of Defendant. ALJ accepts opinion of non-examining IME doctor over those of treating physicians finding Claimant’s fungal infections not caused by work. “Her qualifications were impressive, and although she neither treated nor examined Claimant personally, her review of his pertinent records, both medical and employment related, was far more thorough than either [treating physician’s] Dr. Redlich’s analysis was based in large part on the contemporaneous medical records, which documented the temporal relationship between Claimant’s worsening psoriasis and the onset of his nail infections. She also relied heavily on her own experience, corroborated by her review of the medical literature, which established that Claimant’s so-called ‘we-work’ was not of a type or extent sufficient to cause a fungal infection. Her opinion was thus clear, comprehensive and objectively supported.”