Souligny v. PB&J, Inc. (Souligny III), Opinion No. 7-19WC (Apr. 9, 2019)(ALJ DeBernardi)

Claimant determined not to be PTD as she rejected VR benefits and has a full-time sedentary to light duty work capacity. Claimant also found not entitled to mileage reimbursement for pool exercise related to her work injury. “Claimant has not met her burden of proving that her self-directed use of a swimming pool constitutes medical treatment for purposes of the mileage reimbursement rules, nor has she provided reasonable documentation of her mileage to and from the pool.”                                                    

McNall v. Town of Westford, Opinion No. 8-19WC (May 10, 2019)(ALJ Brown)

Claimant’s treating physician did not satisfy burden of proof that proposed back surgery was causally related to 2015 accepted work injury. “The temporal gap between Claimant=s fall and his seeking treatment for back pain, combined with his lifetime of arduous physical labor, make the affirmative inclusion and exclusion of alternative trauma sources essential to the causation analysis in this case.” This does not mean that the Defendant’s IME doctor’s opinion was more persuasive. “On the one hand, her analysis of Claimant’s medical chronology was thorough and helpful in illuminating alternative causes that may have contributed to Claimant’s spinal condition. On the other hand, her speculative attacks on Claimant’s credibility and her incorrect assumptions about his activity tolerance when his pain was undisputedly at its worst highlight the epistemic limitations of evaluating the honesty of subjective pain complaints medical records review.”               

Hall v. Safelite Group, Inc., Opinion No. 9-19WC (May 14, 2019)(ALJ DeBernardi)

Claimant with CRPS found to be PTD despite earlier FCE finding work capacity. “Although Mr. Alexander’s functional capacity evaluation identified a limited part-time work capacity, Dr. Horton’s work restrictions and Dr Bucksbaum’s description of Claimant’s CRPS condition convincingly establish that Claimant has no reliable and safe work capacity. Further, [vocational experts] testified that Claimant has exhausted vocational rehabilitation services and cannot reasonably be expected to return to regular, gainful employment. No vocational rehabilitation professional testified to the contrary….”

West v. North Branch Fire District #1, Opinion No. 10-19WC (June 11, 2019)(ALJ DeBernardi)

2014 Statutory Amendment to 21 VSA 644(a)(6) (changing “incurable imbecility” to “severe traumatic brain injury causing permanent and severe cognitive, physical or psychiatric disabilities”) determined to be a substantive change not a procedural change and thus cannot be applied retroactively to injuries arising prior to the amendment. While has unintentionally “the Vermont Legislature’s stated intent was not to change the substance of existing law, … words by their very nature have meaning and effect…. [B]y deleting the ‘imbecility’ language and replacing it with new language, the Legislature changed the substance of 21 V.S.A. ‘644(a)(6). ” However, Defendant’s Motion for Summary Judgment denied as disputed facts exist in this matter.