by: Keith J. Kasper

VERMONT SUPREME COURT DECISION

Martel v. Connor Contracting Inc., 2018 VT 107 (Oct 12, 2018)(AJ Carroll)
Return to the Kittell specific intent to injure standard for exclusion to exclusivity doctrine for WC Act. Claimant falls off roof alleges substantial certainty of injury when Supervisor allegedly takes safety device off job site to use on another job site. “We hold that under Vermont law, an injured employee must show specific intent to injure. Exclusivity protections extend to co-employees and owner of company as “the duty to provide a safe workplace is a non-delegable corporate duty and the presence or absence of the [safety device] is part of the safe workplace equation.” Robinson and Reiber concur in mandate but argue that given the facts of the case it is “unnecessary … to readopt the specific-intent standard set forth in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).”

DEPARTMENT OF LABOR DECISIONS

Samson v. Central Vermont Medical Center, Opinion No. 11-18WC (July 5, 2018)(ALJ Phillips)
Claimant voluntarily terminated Vocational Rehabilitation benefits then tried to reopen them three weeks later to which the Defendant objected. “Because Claimant rescinded her prior request to terminate vocational rehabilitation services in a timely manner and with no resulting prejudice to Defendant, I conclude that she is entitled to resume” Vocational Rehabilitation benefits. [Note proposed VR Rules would allow Claimant to rescind prior closure request within 6 months of closure.]

Souligny v. PB&J Inc., Opinion No. 12-18WC (Aug. 24, 2018)(ALJ Brown)
Defendant’s motion for summary judgement as to unsupervised pool therapy denied. Unsupervised pool therapy found to be medical treatment despite the lack of “medical records.” “However, requiring records of exercise sessions to be in a particular form or from a particular source before considering them ‘medical treatment’ would conflate the questions of whether a given activity is treatment and whether a given treatment is reasonably documented.” Claimant’s treating physician remains involved in Claimant’s medical treatment and “[h]is records show that he repeatedly checked on her progress and tolerance of pool exercises, made specific recommendations concerning their frequency, and identified ‘self-directed pool therapy’ as a ‘long range goal.’”

Deuso v. Shelburne Limestone Corp., Opinion No. 13-18WC (Sept 14, 2018)(ALJ Debernardi).
Denying Defendant’s motion for summary judgment on statute of limitations, intent to injure another, and termination for cause, but granted as to hernia claim for lack of supporting evidence. The intent to injury defense requires “an intent to injure not merely an intent to make physical contact, and second, a deliberate state of mind, rather than an impulsive one. Statute of limitations for tinnutus because “‘The time period does not begin to run until claimant, as a reasonable person, should recognize the nature, seriousness and compensable character of his injury or disease.” (Quoting Larsons).

Bergeron v. City of Burlington, Opinion No. 14-18WC( Oct. 15, 2018)(ALJ Brown)
Claimant starts treatment for mental injuries in May of 2016 and diagnosed with PTSD in March of 2017. In October of 2017 Claimant suffers a work-related back injury and files a claim for PTSD in January of 2018. On Defendant’s motion for summary judgment firefighter’s claim for PTSD governed by prior statute of unusual and extraordinary stress for similarly situated employees as Claimant discovered psychological injury and relationship to work prior to statute change on 7/1/17. Statutory amendment is substantive not procedural, thus applied prospectively not retroactively. Alternative theory that the portion of the statutory amendment giving a presumption of compensability for PTSD diagnosed within three years of injured employees last active date of employment means no claim can be made under the new statute for this presumption until 7/1/20.