VERMONT SUPREME COURT

Lyons v Chittenden Central Supervisory Union, 2018 Vt 26 (Mar. 16, 2018)
In three way split decision, Court reverses Commissioner=s decision finding that a student teacher is in fact an employee of school for WC purposes, remands for determination of benefits including AWW calculation. The plurality decision written by Justice Dooley and supported by Chief Justice Reiber concluded that: “If this were a case where the loss of the educational opportunity were not so directly tied to the ability to obtain a license to practice a profession, we would conclude that the question of whether the lost advantage could be estimated in money would require separate factual development so that summary judgment would be inappropriate. Where, however, the loss of the educational program equates to a loss of the license to practice a profession, we can say as a matter of law that the value of the lost advantage can be estimated in money.” Justice Robinson, concurring in the result only of the plurality opinion argued for a broader interpretation: “I would reverse on the ground that claimant is a statutory employee under the workers’ compensation laws because she worked under apprenticeship with the Chittenden Central Supervisory Union.” Justice Eaton and Justice Skoglund dissented arguing that: “First, I do not believe an employer-employee relationship exists in the absence of the
’employee’ receiving wages; whatever benefits claimant received from her student teaching experience were not quantifiable remuneration, and thus were not wages…. Regardless of whether the value of training or certification can be estimated in monetary terms, claimant could not receive, and was not intending or expecting to receive, her teaching certification from CCSU….. The plurality acknowledges the ‘grand bargain’ underlying workers’ compensation. Yet, this Court’s decisions continue to chip away at the bargain so that only one side of it, the employer’s liability without regard to fault, would be recognizable today to those who crafted it. The other side of the bargain, a liability for employers that is limited and determinate, has become a vacuous mantra.”

VERMONT DEPARTMENT OF LABOR

Daniels v Ronald Corliss, Opinion No. 1-18WC (Jan. 4, 2018)(ALJ DeBernardi)
On Defendant’s Summary Judgment Motion, pro se Claimant=s claim barred on grounds of statute of limitations and laches. “Claimant alleges that he suffers from chronic headaches casually related to the June 25, 1995 accident. His headaches became reasonably discoverable and apparent by approximately June 25, 1996. Applying the six-year statute of limitations that was in effect in 1996, I conclude that Claimant had until June 25, 2002 within which to initiate a proceed for workers’ compensation benefits relating to his injuries.” Defendant also satisfied the affirmative defense of laches given the 22 year delay by Claimant in filing this matter as Defendant “no longer has a clear memory of the June 1995 accident or its surrounding circumstances, nor does he have his business records from that time. Moreover due to the passage of time, he cannot effectively investigate the circumstances underlying Claimant’s allegations; even obtaining the contemporaneous medical records would be burdensome or impossible.”

Bartlett v. Trapp Family Lodge, Inc., Opinion No. 02-18WC (Jan. 31, 2018)(ALJ DeBernardi)
Claimant denied claim for PTD benefits with a work capacity of two hours per day three days per week. “Based on [the VR Counselor’s] reports, I find [Claimant’s] testimony to be an inaccurate summary [of her VR efforts]. In particular, I find that they did not determine that there were no jobs for her, but rather services were suspended while she pursued additional medical treatment. Due to the suspension of services, [VR Counselor] did not complete his vocational assessment, and Claimant has received no additional assessments or services…. No vocational rehabilitation counselor has used the [functional capacity] evaluations to explore what work she might be able to do. Thus, I am unconvinced that she has no reasonable prospect of finding and sustaining regular, gainful employment.”

Darby v. W.E. Aubuchon Co., Inc., Opinion No. 3-18WC (Feb. 13, 2018)(ALJ Phillips)
Claimant found to be PTD. Defendant attempted to terminate Claimant’s opioid treatment which, after adjustments by Claimant’s treating physician was found to comply with DOL standards. Defendant also denies individual psychotherapy as not being reasonable and necessary medical treatment. “Though I acknowledge Defendant=s right to contest its obligation to pay for treatment it believes is unreasonable. I am dismayed nonetheless at its response to claimant=s request for psychotherapy in this case. I share Defendant’s concern that opioid medication have neither decreased her pain nor increased her function effectively as anyone would hope. But to advocate for removal of the only pain management tool she currently has at her disposal, while simultaneously refusing to embrace a reasonable alternative, is callous and inhumane.”

Crowe v. The Fonda Group, Opinion No. 4-18WC (Mar. 2, 2018)(ALJ Phillips)
Claimant had a 2001 work related injury with an employer which went out of business in Vermont shortly thereafter. Claimant had follow-up medical appointments in 2015 for the original work-related injury which caused her to lose time from work in order to attend those medical appointments. Claimant sought an order from the Commissioner requiring the workers’ compensation carrier to compensate Claimant for that lost time instead of her current employer. The Commissioner rejected that argument holding that “The Commissioner’s interpretation of ‘6408 as expressed in Hathaway [v. S.T. Griswold & Co., Opinion No. 04-14WC (Mar. 17, 2014)] rests on a solid foundation, now buttressed by a legally promulgated rule. Claimant’s arguments to the contrary notwithstanding, I can discern no basis for reconsidering or reversing it.”

LaHaye v. Kathy=s Caregivers, Opinion no. 05-08WC (Mar. 27, 2018)(ALJ DeBernardi)
Claimant’s hip injury found compensable by testimony of treating physician over that of IME doctor’s opinions. No evidence of waiver defense when Defendant paid for diagnostic testing to determine if pain coming from contested hip condition as opposed to accepted low back claim.

Hall v. Safelite Group, Inc., Opinion No. 06-18WC (Mar. 29, 2018)(ALJ Phillps)
Medical marijuana found to constitute reasonable medical treatment for Claimant’s CRPS diagnosis but found not compensable pursuant to VT WC Act. “Vermont’s medical marijuana statute was enacted in 2004. The landscape has changed significantly in the years since. Medical marijuana is now legal in more than half the states, and Vermont recently became the ninth state to legalize the use of recreational marijuana as well. Changes may also be afoot at the federal level, though it remains difficult to discern what direction those will take. It seems inevitable that state and federal policy regarding legalization will eventually coalesce. When that occurs, the uncertainty that now exists as to insurance coverage for medical marijuana will likely be resolved. Until then, and particularly given the shadow cast by the federal Justice Department’s most recent enforcement guidance, the specific language of 18 V.S.A. ‘447c(b)(4) permits only one result. Notwithstanding that Claimant’s use of the drug is medically appropriate, necessary and therefore reasonable under 21 V.S.A. ‘640(a), I cannot compel Defendant to reimburse him for his medical marijuana purchases.”

ARBITRATION DECISIONS

Jarvis v Burlington Food Service, (Jan. 17, 2018) (R.Cain Arbitrator)
In preliminary ruling on multi party Agg v Rec issue, Arbitrator bars middle carrier from arguing recurrence based upon lack of prosecution of original arbitration in 2011 and lack of rebuttal of original carrier’s filing with the Department in 2013 in response to second carrier=s filing of Form 22 with escape clause language that “this matter is concluded from our end and that [second carrier] is relieved of any further responsibility/liability in this matter.” Underlying claim between second and third carrier on agg v rec issue to continue.