VERMONT SUPREME COURT DECISIONS

Diamond v. Burlington Free Press, 2017 VT 93 (Oct. 6, 2017).
Reversed Commissioner’s opinion finding no bar to claim for additional permanent impairment as claim not a time barred modification of 2004 PPD award as original Form 22 did not cover new impairment. “Barring the claim based merely on the generic reference to claimant’s ‘cervical spine’ ignores a material portion of the agreement -namely, the medical report upon which it was based – and is the sort of ‘medieval literalism’ we have warned against in previous workers’ compensation cases.” Court also dismisses Employer’s argument that allowing claim “will lead to potentially endless liability for employers” citing to limited liability protections in the Act and the Employer’s ongoing liability for medical benefits regardless of any bar to additional permanency benefits.

DEPARTMENT OF LABOR DECISIONS

Brosam v United Parcel Service, Opinion No. 14-17WC (Oct. 20, 2017)(ALJ Phillips).
Rejection of treating physician’s causation opinion as to opposing body party overuse syndrome in favor if IME doctor’s opinion that “even in a case where a patient’s arm is amputated, the other shoulder does not normally break down, because people do not typically use their bodies to maximum capacity. Thus he testified, the development of opposite side pathology due to overuse is ‘very unusual.’ I find this analysis credible.” Also rejected Claimant’s attempt to distinguish Lydy v. Trustaff, Inc., 2013 VT44 due to the fact that in the instant case health insurance premiums were paid by Defendant not some other employer as in Lydy. “[T]he Court’s determination that it is better left to the legislature to engage in a ‘robust… debate’ prior to changing longstanding policy is as defensible a rationale today as it was in Lydy.”

Liberty v. Town of Richmond, Opinion No. 15-17WC (Nov. 29, 2017)(ALJ Phillips)
Claimant seeks recalculation of Form 32 based upon exclusion of weeks in which Claimant took some vacation or sick leave in the 26 weeks prior to the work injury. “[O]nly the sick or holiday pay attributable to weeks during which Claimant was unable to work for more than one-half of his normally scheduled hours are properly excludable from his average weekly wage and compensation rate calculation.” No laches defense allowed as no prejudice found given that the information had previously been available to Defendant. “Any prejudice it now claims was of its own doing, not Claimant’s.” Form 22 allowed to be modified as a mutual mistake of fact, not law. “These were factual errors grounded in incomplete data. They were mutual as well- although either party might have discovered the true facts, neither did.” Interest awarded only since interim order in 2016, not from incorrect Form 32 in 2010, and given the unique circumstance of the case, “it would be inequitable to impose any late payment penalty.”

Vohnoutka v Ronnie=s Cycle Sales of Bennington Inc., Opinion No. 16-17WC (Dec. 8, 2017)(ALJ Phillips).
Pro se Claimant fails on third attempt to obtain TTD, PPD and certain medical benefits with summary judgment granted on behalf of Defendant. However, while both Defendant’s IME and Claimant’s treating physician “have now diagnosed Claimant’s behavior as malingering, without further testimony as to what each intended by that characterization, I am unwilling to consider this an absolute bar to future treatment.” Claimant also fails to produce credible medical evidence sufficient to “establishing his disability from working ‘in any capacity'” “Claimant has now tried- and failed- to establish a claim for temporary total disability benefits arising out of his February 22, 2013 cervical spine injury on three separate occasions. Given the passage of time, and considering the factors that have resulted in adjudications against him in the past, I anticipate that it will be even more difficult for him to establish a future claim for temporary disability benefits referral to the same injury. With that in mind, I encourage Claimant, in the strongest possible terms, to focus his energies instead on returning to work.”

BH v. State of Vermont, Opinion No. 17-17WC (Dec. 22, 2017)(ALJ De Bernardi)
Claimant’s claim for mental injury denied. “The evidence here does not establish a causal relationship between Claimant’s work stress and her psychological condition. Accordingly whether analyzed as a physical-mental claim or a mental-mental claim, her claim fails in either event. Moreover, even if she had established a causal relationship, she has also failed to prove that her work stress was extraordinary when compared to similarly situated employees performing the same or similar work.” 2017 amendment to statute changing standard for mental-mental injuries not applied as a substantive change in the law and the injury herein occurred prior to the change in the statute.