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.