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