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.”