By: Keith J. Kasper, Esq.


Perrault v. Chittenden County Trans. Auth., 2018 VT 58 (June 1, 2018)(J. Caroll)
Court upholds Commissioner’s decision that mileage reimbursement does not equate to wages for purposes of determining employer-employee relationship. “Put simply, a reimbursement makes the recipient whole, but is not an earning – that is, the reimbursement is not a gain to the recipient.” Differentiates Lyons v, Chittenden Central Supervisory Authority, 2018 VT 26 by showing that in the instant matter there were no wages. “The Commissioner’s reasoning on this point makes explicit what our prior decisions have made implicit, and we therefore adopt the rule that employment under the first prong of the statutory definition requires wages as they are defined for workers’ compensation.”


Holbrook v. Kennametal, Inc., Opinion No. 7-18WC (May 21, 2018)(ALJ DeBernardi)
Claimant with upper extremity injury found not to be PTD. Claimant’s treating physician found Claimant permanently disabled, but “did not testify that Claimant was permanently and totally disabled. As the term suggests, there are two separate prongs to a permanent total disability determination. First the disability must be permanent, as opposed to temporary. Second, it must be total as opposed to partial.” (Emphasis in original). Furthermore, Claimant did not exhaust his VR services prior to the formal hearing. “In short, there are additional vocational services that may benefit Claimant, but only if he engages fully, and participates actively, in the process.”

Bergeron v Rock-Tenn Co., Opinion No. 8-18WC (May 23, 2018)(ALJ Phillips).
All doctor’s opinions as to causation found wanting, but compensability found primarily on the “strong temporal relationship between [low back pain] and the work injury. Given the well-documented new event, combined with a relatively unremarkable prior history, as to Claimant’s specific complaints of low back pain I conclude that the evidence is sufficient to establish work-related causation.” “I reach the opposite conclusion as to Claimant’s lower extremity symptoms, however. Notwithstanding Claimant’s hearing testimony, I remain unconvinced that these complaints arose as soon after his July 2013 fall as his experts assumed. From the evidence presented, I am also unsure whether Claimant’s prior history of lower extremity numbness is at all relevant to his more recent presentation. Absent clarification on this issue, I must reject the analysis that Claimant’s expert proffered as incomplete.” Claimant’s IME expert’s opinion as to permanent impairment for the cervical spine found :the most persuasive. Considering the waxing and waning nature of low back pain generally, Dr White’s rating better accounts for Claimant’s ongoing symptoms.”

Clark v. Blair Farm Maple Products, Inc., Opinion No. 9-18WC (ALJ Phillips & Brown)(June 12 2018). Claimant found not to be an employee of Defendant. “I conclude from the credible evidence that Claimant was a volunteer who gratuitously offered his assistance to Mr. Barber in a personal matter unrelated to Defendant’s business operations. Under these circumstances, Claimant’s efforts were those of a volunteer not an employee.”