Vermont Workers’ Compensation Update – July to September, 2014

by Keith Kasper, Esq.

Lisa Brassard has returned to the WC Specialist II position at the Department

Flores-Diaz v. Joel Letourneau Drvwall, LLC., Opinion No. 10-14WC (Jul. 25, 2014)(Phillips HO).

Claimant, a New Hampshire Resident hired in Vermont and injured in Vermont brings NH workers compensation claim first but is denied but still on appeal within the NH WC system. Defendants’ motion for summary judgment for lack ofjurisdiction or in the alternative as forum non conveniens are denied as “the evidence establishing that Claimant was injured in Vermont while engaged in work activities on behalf of a covered employer, is undisputed. Jurisdiction over his workers’ compensation claim thus lies under §616.” Despite fact that witness are from NH rejected that while “I am mindful of Defendant’s claim that because Claimant initially chose New Hampshire as his forum they have already incurred defense costs there, some of which likely will be duplicated if he is allowed to proceed now in this forum. However, I am more concerned about implementing the public policy embodied in Vermont’s workers’ compensation law which affords protection to employees who are hired to work on Vermont jobsites. There being no alternative forum in which that policy can be effectuated, to dismiss Claimant’s action here would be inappropriate.”

Dobson v Ethan Allen Interiors, Inc, Opinion no. 11-14WC (July 25, 2014)(Woodruff HO).

Treating physicians’ opinions found more credible than those of Defendant’s IME doctors relative to Claimant’s request for total knee replacement as IME doctor “lacks the benefit of having directly visualized Claimant’s knee joint, which even [IME doctor] admitted was preferable to merely viewing it on x-ray.” “The determination whether a treatment is reasonable must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities.”

Barnes v Bean’s Mobile Homes, State File No. EE-62949 Ruling on Defendant’s Motion to Rescind Form 16 Settlement and For Sanctions (July 29, 2014)(Phillips HO)

Claimant’s counsel must repay insurer the amount allocated for attorney fees in the prior Settlement, but rest and remainder of settlement remains in effect. Claimant’s counsel obtains an impairment rating and fails to disclose rating to opposing counsel in settlement negotiations. Claimant’s counsel argues that impairment rating protected by attorney work product production and need not be disclosed.”The Department has consistently interpreted Rule 3.14 to require partiies to disclsoe all written medical records and reports. It has not required disclosure of informal oral communications with experts, but when an examination is performed and a report written, it must be disclsoed, especially when requested.”

Lopez v The Howard Center, Opinion No. 12-14WC (Aug. 7 2014)(Woodruff HO).

Claimant, a mental health case worker, returned home at the lunch hour to retrieve work materials, as she opens the door to her house, her dog escapes and as she attempts to retrieve the
dog, trips and injures her right upper extremity. “As Claimant was engaged in a special errant to retrieve the resource book, she falls within this exception [for traveling employees who are engaged in a special errand at the time of the injury.]” Even though personal deviation resulted in the injury, Claimant’s failure to satisfy the entirety of the of the personal deviation test was not fatal to her claim. “The nature and extent of her deviation as a whole was temporally brief, geographically short and reasonable under the circumstances.” Claimant’s injury also arises out of her employment. “Were Claimant to have raced home on her lunch hour to play with her dog, her activities would not have merited workers’ compensation coverage. But because her actions were necessitated by her job responsibilities, it is appropriate to consider her subsequent injry as having arisen out of her employment.”

Ploof v Franklin CountY Sherriffs Dep’t, Opinion No. 13-14 (WC (Aug. 7, 2104 (Phillips HO).

No attorney fees awarded following interim order for payment of benefits. “That [the WC Specialist II] thus rejected the basis for [Defendant’s] denial does not automatically render it so unreasonable as to justify an award of attorney fees, however.”

Lavalee v Strait:ht, Opinion No. 14-14WC (Aug. 27, 2014)(Phillips HO)

Grant of summary judgement in favor of General Contractor when subcontractor who was not Claimant’s direct employer also had WC insurance. “[A]s the insured employer closest in line to Claimant’s purported direct employer, who was uninsured, Ryone bears responsibility for defending the claim and, if unsuccessful, paying benefits.”

Simmons v Landmark College, Opinion No. 7A-13WC (Sept. 19, 2014)(Woodruff HO).

Claimant successfully appeals Departments February 28, 2013 order to Windham Superior Court. Commissioner issues amended order to which Defendant objects as “the order did not accurately reflect the certified question.” Commissioner agrees and amends July 2014 Amended Order.