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.