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.

VERMONT WORKERS’ COMPENSATION UPDATE JUNE TO SEPTEMBER 2015 by Keith Kasper, Esq.

DEPARTMENT OF LABOR

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.”

VERMONT WORKERS’ COMPENSATION UPDATE APRIL TO JUNE 2015 by Keith Kasper, Esq.

Florence Godin has retired after 23years in state service. She will be replaced by Paul Donovan former State Law Librarian.
Effective July 1, COLA increases for weekly indemnity benefits is effective in the amount of 2.3% with a new maximum compensation rate of $1,224 and a new minimum compensation rate of $408.
New WC Rules become effective on August 1.

DEPARTMENT DECISIONS

Wood v Fairpoint Communications, Opinion No.7-15WC (Apr.10 2015)
Attorney fees awarded following informal conference when initial denial based upon “‘lack of investigative evidence to determine causal relationship to employment.’” Treating physician altered initial treatment note to show causal connection to work but Defendant did not rescind denial.

Kurant v Sugarbush Soaring Association, Inc. (Kurant III), Opinion No. 8-15WC (April 13, 2015).
Attorney fees awarded without formal hearing when Carrier refused to pay ongoing medical treatment based upon an IME report stating that such ongoing treatment is not reasonable or necessary, but no Form 27 filed in support of the IME and no other medical records filed in support thereon. “Defendant’s failure to comply with the requirements of Rule 18.2100 amounted to misconduct or neglect under Rule 10.1330. It thus became necessary for Claimant to retain an attorney, whose efforts resulted in an interim order requiring Defendant to continue benefit payments. Notably, because the benefits at issue involve ongoing medical coverage rather than a cash award, under the circumstances of this case Claimant has no other workers’ compensation-related fund from which to pay his attorney for her work. If he is to be made whole, an award of attorney fees is necessary.”

Hoyt v Chittenden South Supervisory Union, Opinion No. 9-15WC (Apr. 28 2015)(HO Phillips)
“Claimant here relies on Rule 10.1370 as the basis for his request for an award of [attorney] fees. But for his ‘persistent efforts’ he asserts, Defendant would not have paid his medical bills, and instead would have allowed his group health insurer to retain the financial burden related to treating his work injury. Aside from the mere fact of the delay between the time when the Defendant agreed to accept Claimant’s claim and the time when it actually issued payment, I can find no evidence to support this assertion. Given both the inherently time-consuming nature of the medical bill audit and payment process and the inflammatory nature of Claimant’s accusation, I cannot accept it as substantiated.”

Conant v Entergy Corp., Opinion No. 10-15WC (Apr. 28, 2015)(HO Phillips)
“[I]n accordance with the Supreme Court’s ruling in Yustin [v. Department of Public Safety, 2011 VT20], I conclude as a matter of law that AIG may claim an offset for the sick leave benefits Claimant received against any future workers’ compensation indemnity benefits to which she may become entitled. However, I am unwilling to extend the Court’s ruling to allow for an offset of short-term disability benefits. As to those, I conclude that Defendant’s recourse lies not with the Commissioner, but rather with the grievance and dispute resolution provisions of the collective bargaining agreement.”

Siebanaler v. Chittenden County Transportation Authority, Opinion No. 11-15WC (June 3, 2015)(HO Woodruff)
IME doctor’s opinion found more persuasive than that of treating physician when treating physician’s “opinion was based upon an erroneous understanding of Claimant’s mechanism of injury, as well as a flawed understanding of her previous medical history.”

Lewis v Town of Stowe, Opinion No. 12-15WC (June 3, 2015)(HO Woodruff)
Pro se Claimant’s lack of expert medical opinion causally relating migraines to work environment results in summary judgment in favor of Defendant. Claimant’s “testimony and … belief that the fumes caused [his] headaches will not be enough to carry [his] burden.”

Boyd v. Kennametal, Inc., Opinion No. 13-15WC (June 17, 2015)(HO Woodruff)
Claimant wins summary judgment motion for COLA adjustments for intervening years when PTD benefits restart after a lump sum 330 week payment. “I emphasize the limited scope of this conclusion. Because an injured worker who is permanently and totally disabled is likely never to return to work, his or her ability to maintain the required relationship between the compensation rate and the state average weekly wage is completely dependent on the annual cost of living adjustments mandated by §650(d). In contrast, injured workers who are only partially disabled and therefore presumably able to return to work will have other avenues available to them to earn both current wages and periodic increases….. [T]his was the case in both Birchmore [v The McKernon Group, Opinion No. 40-11WC (Nov. 28, 2011)] and Bollhardt [v. Mace Security Intl, Inc. Opinion No. 51-014WC(Dec. 17, 2004)], and my conclusion here should not be read to overturn the holdings in those cases.”

Cushing v Control Technologies, Inc., Opinion No. 14-15WC (June 9, 2015)(HO Woodruff)
Grant of summary judgment in favor of Claimant when Hearing Officer “conclude[s] as a matter of law that no penalty can be imposed upon an injured worker for failing to attend a scheduled independent medical examination unless the employer can establish first, that it complied fully with the notice requirements of Workers’ compensation Rule 13000, and second, that the injured workers’ conduct was purposeful, negligent or otherwise inexcusable.”

ARBITRATION DECISIONS

Lachance v. Reliant Electric Works State File No. FF-00044 & CC-02624 (May 18, 2015)(Atty Kolter Arbitrator)
Subsequent work event resulted in a flare-up of pre-existing severe crushed knee injury resulting in liability resting with subsequent employer form June 7, 2013 until Claimant returns to baseline on December 3, 2013. “The ‘crux’ of the inquiry is whether there was a distinction between the April 2011 crushed knee injury and the June, 2013 [subsequent event] ‘and their respective effects on claimant’s overall condition so as to fairly apportion liability between the successive [insurers].’ Cehic [v. Mack Molding, Inc., 179 Vt. 602, 604 (2005)].”

Vermont Workers’ Compensation Update January to March 2015

Julie Mercier of Williamstown, VT, has joined the staff at the Department as a Workers’ Compensation Specialist II. Ms Mercier has an Associates of Science as a Paralegal and a Bachelor of Science in Legal Studies, both from Woodbury College. She also has worked for the law firm of Zalinger Cameron & Lambek, PC, as a paralegal providing support for workers’ compensation and personal injury cases. Most recently, Ms. Mercier served as a Docket Clerk for the Criminal and Family Court of Washington County, Vermont.
We also regretfully say goodbye to Lisa Brassard WC Specialist II who will be leaving the Department to join the Vermont League of Cities and Towns

VERMONT SUPREME COURT DECISIONS

Smiley v State of Vermont, 2014 Vt 42 (Mar. 6, 2015)
In 3-1 split decision, Court upholds Commissioner’s determination that statute of limitations barred claim and statute was not tolled by regulation requiring employers to determine impairment at time of medical end result. Carrier’s agreement to pay for an impairment rating after the statute of limitations had expired did not constitute a waiver as “claimant cannot unequivocally demonstrate an implicit waiver under the circumstances of this case.” Court determines that new regulation requiring carriers to determine impairment at time of medical end result was procedural not substantive and thus could be applied retroactively. “In essence, the commissioner’s decision has expanded equitable estoppel or equitable tolling by reading a critical element out of each so that the employer’s inaction alone allows the limitation period to be suspended forever. This use of equitable doctrine eliminates the statutory limitation period in favor of one created by the commissioner. This is beyond the commissioner’s power.” Case involves unique aspect of small impairment award with large interest award almost twice as large as impairment. “[I]nterest at the statutory rate is a form of penalty imposed on the employer, and if the claimant is not in immediate need for the money, the financial incentive is to delay a claim as long as possible to realize the high rate of interest. We conclude that this is prejudice as a matter of law.” Justice Robinson concurred and dissented from the majority’s opinion. She “emphasize[d] the clear state of our current law …[that] the notion that a workers’ compensation case is open-ended, and that a claimant may not be statutorily barred from pursuing a claim for benefits years after an injury, and even years after the claim for benefits has arisen, is not particularly shocking or unusual. This is one of the most striking features distinguishing workers’ compensation from its tort-law cousin.” “[T]he Legislature’s elimination of any distinct statute of limitations for permanent partial disability claims renders the majority’s appraisal of the former Rule 18(a) obsolete as it relates to injuries that arose on or after May 26, 2004.”

Marshall v. Vermont State Hospital, 2015 VT 47 (Mar. 6, 2015)
Reversing and remanding Superior Court decision and finding in favor of Defendant/Appellant. Subsequent disputes as to the propriety of an initial impairment rating is not a basis for determining that a Form 22 can be modified for mutual mistake. “While we conclude here that Dr. Cyr’s allegedly mistaken medical opinion is an insufficient basis for concluding that there has been a material mistake of fact, we decline to hold that an impairment rating can never be the basis for reforming a Form 22 agreement under the material-mistake-of-fact doctrine.”

VERMONT DEPARTMENT OF LABOR DECISIONS

Bohannon v Town of Stowe, Opinion No. 1-15WC (Jan. 5, 2015)(HO Woodruff)
Claim not barred by Statute of Limitations as equitable estoppel defense by claimant prevails. Hearing officer finds that: “ If [Claimant’s] claim was denied, he would have been seasonably notified and afforded an appropriate opportunity to appeal. Had he not done so within the applicable limitations period, his current claim would likely be time-barred.” Pursuant to the Odd Lot Doctrine, Claimant found to be PTD despite having no formal vocational rehabilitation assessment. “The language of the rule is suggestive, not mandatory, however, and the particular circumstances of this case justify a rare exception. See, e.g., Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009). Although it is Claimant’s burden of proof, Defendant has not proffered any evidence, either from a functional capacity evaluator or from a vocational rehabilitation professional, from which I might conclude that he in fact has any meaningful vocational options.”

Thomas v. Engelberth Construction, Opinion No. 2-15WC (Feb. 6, 2015)
“I do not necessarily equate the requisite finding for issuing and interim order under 21 V.S.A.§662(b)- that the employer’s denial lacks ‘reasonable support’ based upon the record as a whole, see 21 V.S.A. §601(24) – with the finding required for an award of attorney fees under Rule 10.1320- that at the tine it denied the claim the employer had no ‘reasonable basis’ for doing so. Ploof v. Franklin County Sheriff’s Department, Opinion No. 13-14WC (August 8, 2014), citing Yustin [v. State of Vermont, Department of Public Safety., Opinion No. 38-11WC (November 18, 2011).]”

Chase v State of Vermont, Opinion No. 3-15WC (Jan. 28, 2015)(HO Phillips)
Claimant’s treating physician’s opinions found more credible than Defendant’s IME opinion. Vermont Supreme Court’s “heightened burden of proof” in which aggravated symptoms “without a worsening of the underlying disability, does not meet the causation requirement”, (Stannard v. Stannard Co, Inc., 2003 VT 52) found inapplicable in the instant case. “Where the claimant is already suffering from a symptomatic, degenerative condition, it is often impossible to discern whether worsened symptoms during work activities are merely a manifestation of the underlying disease or alternatively, whether the work activities themselves have caused or aggravated it. No such ambiguity exists here, however.” Claimant’s claim for reimbursement for naturopathic supplements denied pursuant to statutes 21 V.S.A. §640(a) as “the employer’s obligation does not extend to over-the-counter medication, no matter how effective of necessary they might be.”

Fifield v Heatech Inc., Opinion No. 4-15WC (Feb. 25 2015)(HO Woodruff)
Based upon treating medical providers opinions Sacroliac joint injection is reasonable and necessary medical treatment as opposed to IME doctor’s opinions. “As in so many areas of medical decision-making, the analysis required to make an accurate diagnosis is most often a question of quality, not quantity.”

Richards v C&S Wholesale Grocers, Opinion No. 5-15WC (HO Woodruff)(Feb. 27, 2105)
In rejecting IME doctor’s opinion as to causation, Hearing Officer relies, in part, upon Vermont Supreme Court decision in Stannard v. Stannard, 203 VT 52 to determine that the “work injury caused his preexisting L5-S1 pathology to become symptomatic to the point where his associated disability came upon him sooner than otherwise would have occurred.”

Herring v Department of Liquor Control, Opinion No. 6-15WC (HO Phillips) (Mar. 24, 2015).
Claimant had accepted back injury with an alleged 0% permanent impairment and files a claim for compensability determination of shoulder condition. However, Claimant withdrew the claim and six months later files a new claim for 10% permanency benefits based upon the accepted back condition. At the informal level, an interim order issued against Defendant which pays the full 10% impairment rating. Then Claimant seeks an award of attorney fees. Analyzing the request for an award of attorney fees pursuant to the 2008 amendments to the statute and the 2010 amendments to the WC Rules governing an award of attorney fees at the informal conference level, Commissioner awards most of the attorney fees and all of the costs Claimant had sought in this matter. “[T]he amendments have effectively eliminated employer or insurance carrier delay, unreasonable denial or misconduct as a necessary prerequisite to an award of fees at the informal level. Instead, in appropriate circumstances an award can now be based solely on a finding that but for the attorney’s efforts, the claimant would not have prevailed…. [W]hile the Commissioner retains the authority to award fees when a claim is resolved informally, she is by no means compelled to do so in every case. Exercising that discretion should further the goals of (a) maintaining appropriate standards of employer and adjuster conduct; (b) discouraging excessive and unnecessary attorney involvement; and © encouraging the parties to make effective use of the informal dispute resolution process. With these goals in mind, for example, an award of attorney fees might not be appropriate in a case that would have been amenable to informal resolution but for the attorney’s unnecessarily adversarial posturing. Similarly, where the claimant’s attorney prolongs a dispute by failing to obtain and share critical information promptly and voluntarily, fees will likely be denied. There might be other instances as well where the attorney’s conduct so undermines the informal process as to negate his or her entitlement to an award of fees. And last, there might be claims that are successfully resolved largely as a consequence of the workers’ compensation specialist’s efforts rather than the attorney’s, in which case a fee award might not be justified.”

VERMONT WORKERS’ COMPENSATION UPDATE OCTOBER TO DECEMBER 2014

The long awaited proposed re-write of the VT WC Rules has been unveiled and will be ready for public comment soon.

Shaffer v. First Choice Communications, Opinion No. 15-14WC (Oct. 21, 2014)(HO Phillips).
Claimant’s request for Synvisc injections found reasonable and necessary medical care relying on doctor’s opinion who is supplying the injections since 2012 over those of IME doctor. “While [IME Doctor’s] concerns as to the efficacy of Synvisc injections when used ‘off label’ are worth noting, I do not consider them determinative in this case.” PTD claim denied relying upon IVE which found that “if Claimant avails himself of additional vocational rehabilitation services such as tutoring, access to assistive technology and focused job development, it is reasonable to expect that he will be able to resume regular gainful work.”

Simmons v. Landmark College, Inc., Opinion No. 07F-13WC (Oct. 23, 2014)(HO Woodruff)
On remand from successful Superior Court Appeal, Claimant awarded attorney fees and costs at DOL rate ($145/hour for attorneys and $75/hour for paralegals) and only for those costs associated with DOL hearing, not those incurred at Superior Court. No statutory basis for an award of interest on attorney fees and thus none awarded.

Rodrigue v. Enterprises Precision Inc., Opinion No. 16-14WC (Nov. 4, 2014)(HO Woodruff)
Voc Rehab denied at this point in time as Claimant is back to work, may become available in the future if current employment is no longer suitable. “As the circumstances of this case demonstrate, at times the concept of suitability involves more than merely comparing pre-and post-injury wages earned, or hours worked, during discrete snapshots in time. The goal of vocational rehabilitation is to return the injured worker to work that resembles, as nearly as possible, the conditions of his or her pre-injury employment. Where the pre-injury job involved consistent hours at a consistent weekly wage, a simple mathematical comparison will determine whether a post-injury job is suitable or not. However, where, as here, the pre-injury job involved widely fluctuating hours resulting in widely fluctuating weekly wages, a broader perspective is required.” Claimant is entitled to TTD of TPD benefits for those weeks in which he earned less that his AWW even though his co-workers were also working less given the seasonal nature of the job.

Moreton v. State of Vermont Department of Children and Families, Opinion No. 17-14WC (Dec. 24, 2014)(HO Phillips).
Claimant slips and falls upon entering a Starbucks to meet co-workers to travel to a training session. Injury found compensable on cross-motions for summary judgment. The fact that injury occurred a half hour prior to her scheduled start of work time does not sever connection to work.
Also, meeting at a Starbucks was not a personal or substantial deviation as for the day of the injury, Claimant was a “traveling employee”.

Vermont Workers’ Compensation Update – July to September, 2014

VERMONT WORKERS’ COMPENSATION UPDATE
JULY TO SEPTEMBER 2014
by Keith Kasper, Esq.

Lisa Brassard has returned to the WC Specialist II position at the Department

Flores-Diaz v. Joel Letourneau Drvwall, LLC., Opinion No. 10-14WC (Jul. 25, 2014)(Phillips HO).

Claimant, a New Hampshire Resident hired in Vermont and injured in Vermont brings NH workers compensation claim first but is denied but still on appeal within the NH WC system. Defendants’ motion for summary judgment for lack ofjurisdiction or in the alternative as forum non conveniens are denied as “the evidence establishing that Claimant was injured in Vermont while engaged in work activities on behalf of a covered employer, is undisputed. Jurisdiction over his workers’ compensation claim thus lies under §616.” Despite fact that witness are from NH rejected that while “I am mindful of Defendant’s claim that because Claimant initially chose New Hampshire as his forum they have already incurred defense costs there, some of which likely will be duplicated if he is allowed to proceed now in this forum. However, I am more concerned about implementing the public policy embodied in Vermont’s workers’ compensation law which affords protection to employees who are hired to work on Vermont jobsites. There being no alternative forum in which that policy can be effectuated, to dismiss Claimant’s action here would be inappropriate.”

Continue reading Vermont Workers’ Compensation Update – July to September, 2014

Vermont Workers’ Compensation Update – April to June, 2014

VERMONT WORKERS’ COMPENSATION UPDATE
APRIL to JUNE 2014
by Keith Kasper Esq.

Brodeur v Energizer Battery Manufacturing, Inc., Opinion No. 6-14 (Apr. 2, 2014).

Treating physician=s opinions as to proposed minimally invasive SI joint fusion found more persuasive then those of Defendant=s IME doctor=s opinions. AAs is the case with many aspects of medical decision-making, however, there can be more than one right answer, and thus more than one reasonable treatment option for any given condition. And although the workers= compensation statute mandates that employers pay only for >reasonable= medical treatment, it does not in any way require that injured workers forfeit the right to direct their own medical care.@ (citations omitted)

Continue reading Vermont Workers’ Compensation Update – April to June, 2014