VERMONT WORKERS' COMPENSATION NEWSLETTER

APRIL TO JUNE 2008

by Keith J. Kasper

 

Reminder that Annual COLA adjustments and Form 28s are due effective July 1, 2008. New COLA adjustment is 1.04, minimum rate is $352 and maximum rate is $1053.

New statute takes effect which includes mediation, new AWW calculations based upon 26 weeks instead of 12 weeks, requiring carriers to notify Department of all cases in which Claimant has been out of work for 104 weeks, new WC deductibles for policies available, fraud task force, mediation, first aid only claims, misclassification of employees amongst other issues.

 

VERMONT SUPREME COURT DECISIONS

Chayer v. Ethan Allen, 2008 Vt. 45 (Apr. 11, 2008).

Claim against co-employees and employer's safety committees found barred by exclusive remedy provision of the Act as committee's performing non-delegable duty of the employer; safe work place. "For the foregoing reasons, we hold that plaintiff may not maintain an action against an employer-employee safety committee or its employer and employee members for gross negligence or wilful misconduct. We recognize that this construction of the statute is contrary to its plain language, but absent more explicit direction from the Legislature we cannot apply the plain meaning of the statute without contravening other statutory provision. We do not lightly depart form the plain meaning of a legislative enactment, but must so in light of the conflict presented here."

 

In re: Chatham Woods Holdings 2008 VT 70 (2008)

Building subcontractors were considered employees for WC premium purposes even though subcontractors deemed themselves "sole proprietors." 21 VSA §601(14)(F) "When 'employer' and 'employee' are the same person, the bargain struck by the statute between limiting recovery and ensuring compensation is not implicated. It is implicated, however, when potential liability does not end with the sole-proprietor employee, but extends to third parties like Chatham Woods here."

 

VERMONT SUPERIOR COURT DECISIONS

Shaffer v. The Hartford Ins. Co., Dkt. No. 642-9-07Wrcv (Apr. 24, 2008)(Judge Morris)

Judge Morris dismisses bad faith allegation brought by injured worker complaining that permanency benefits were not advanced during dispute over the extent of those benefits. Court rules that Department has primary jurisdiction over this issue and Claimant must exhaust his administrative remedies prior to bringing civil action in the courts.

 

Harness v. Therrien Foundations, Dkt. No. 557-11-05Wrcv (Apr. 28, 2008)(Judge Morris)

On appeal form Department of Labor determination finding compensable claim but no wages due to lack of employment in the twelve weeks preceding the work injury and date of medical end result, Judge Morris finds for the Claimant on both grounds. Judge Morris rejects Department analysis and holds that Section 650 only addresses increases in AWW therefore, if Claimant did not earn income in the twelve weeks subsequent to the onset of disability one still uses the original wage at time of injury.

 

 

VERMONT DEPARTMENT OF LABOR DECISIONS

 

J.D. v. Putney Paper Company, Opinion No. 13-08WC (Apr. 8, 2008).

Claimant entitled to TTD benefits in 2006 when doctor took him out of work for problem related to original 1981 work injury based upon wage rate at time of original injury (with applicable COLAs) even though he had been determined to be at MER in 2005 and had not worked since 2003, because Claimant unemployed throughout that period of time due to original work injury and Claimant engaged in vocational rehabilitation efforts at the time he again was totally disabled.

 

Heath v. Vermont Agency of Transportation, Opinion No. 14-08WC (Apr. 11, 2008).

Claimant's work on father-in-law's garage in October of 2006 did not constitute an intervening cause sufficient to relieve Defendant of liability for claim, but rather a mere flare up of the compensable condition until it returned to baseline in March of 2007. IME doctor's opinion as to flareup accepted over treating medical provider's opinion as to claimant's symptoms "might have worsened in November of 2006 even if he had not been engaged in the garage construction project during the prior month.""Focusing on what 'might have been' is as pointless in workers' compensation claims as it is in life; what matters is what in fact happened."

 

Heath v. Vermont Agency of Transportation, Opinion No. 14R-08WC (May 20, 2008)

Defendant's request for reconsideration of award of attorney fees denied as Claimant substantially prevailed in decision even though Claimant did not succeed in proving right to medical benefits during period of flare-up, remaining medical benefits thereafter found to be compensable and rejecting Defendant's intervening cause argument. "The Commissioner found that the latter benefits were of far greater import to Claimant than the former."

 

Gardner v. S.D. Ireland, Opinion No. 15-08WC (May 13, 2008).

Due to Claimant's admitted exaggerations to his treating and examining physicians and the reliance upon these same physicians in opining as to the cause of Claimant's condition, Claimant fails in his burden of proof that Claimant's injury arose out of and in the course of his employment.

 

Boucher v. Peerless, Opinion No. 16-08WC (Apr. 18 2008).

Claimant's avascular necrosis is found to be work-related resulting in total knee replacement. "Applying the positional risk doctrine to the current claim, it was the conditions and obligations of Claimant's employment - having to turn quickly to his right as he exited his office- which placed him in the position where he was injured. That Claimant might have injured his knee while making a similarly quick right turn in a non-work-related setting is irrelevant. He did it at work, because his work responsibilities required him to traverse that path and make that turn. Positional risk analysis needs no more than that.""An injury caused by the concurrence of both personal and employment risks is not idiopathic and does not merit special consideration under that doctrine."

 

Thibault v. Fletcher Allen Health Care, Opinion No. 17-08WC (May 13, 2008).

Defendant contest compensability of three drugs. On day of hearing Defendant accepts compensability of two drugs, but continues to deny compensability of third; Protonix. Treating physician's opinions taken over those of IME doctors. "Even if her stomach problems preceded her work injury, she still cannot tolerate the medications for her work injury without Protonix or a proton pump inhibitor according to Dr. Gunther."

 

Chamberlain v. Kinney Drugs, Opinion No. 18-08WC (May 13, 2008)

Claimant's receipt of radiofrequency Ablation "does not negate the previous finding of medical end result,...[as] the purpose of this treatment is to control Claimant's pain, not to improve her underlying condition." Award of only 50% of requested fees as Claimant only partially successful.

 

Lynch v. Prison Health Services, Opinion No. 19-08WC (May 20, 2008) Compensable mental mental claim as Claimant's work situation "aggravated her pre-existing depression to the point where she was unable to work." Claim was compensable as "the workplace stress she faced in her job at SSCF was both objectively real and extraordinary as compared with the stress encountered by Program Managers at other correctional facilities. This was due not only to SSCF's unique position as the state's primary medical facility, but also to [her coworkers's] inadequacies as Nurse Manager. The confluence of these two factors resulted in a perfect storm of extraordinary stress.... Were those conditions not stressful enough, Claimant was forced to manage without either administrative support form below (as most other Program Managers had)or responsive supervisory backing from above."Claimant out of work from June 17, 2005 until January 8, 2008.

 

Messeck v. Vermont Dep't of Corrections, Opinion No. 20-08WC (May 15, 2008).

Rejection of utilization of Chapter 13 in the Ama Guides 5th edition for mental impairment absent a brain injury. Vision impairment reduced as Claimant's expert bases his rating upon uncorrected visual acuity  "because visual acuity is to be measured under the Guides with the 'best correction.'" Back impairment ratings devolve to Claimant's IME due to "a much more thorough examination of the Claimant's" spine. Allowance of expert witness fee for physical impairment rating as treating physician did not perform impairment ratings. Functional capacity evaluation not compensable litigation cost as "there was no clear medical need for the functional capacity examination . There was no evidence that he vocational counselor asked for this evaluation."Ongoing biweekly chiropractic beginning in 2005 found compensable "The weight of the evidence in this case is in favor of the compensability of such treatments as a palliative measure."(emphasis in original)

 

Messeck v. Vermont Dep't of Corrections, Opinion No. 20C-08WC (June 13, 2006)

Attorney fees awarded on hourly basis for entire claim even though fee agreement was for a contingency and Claimant did not prevail on all issues.

 

Duchamo v. F. R. LaFayette, Inc., Opinion No. 21-08WC (May 27, 2008).

Insufficient factual evidence to support defense of attempted suicide when Claimant drives off bridge and into river. Claimant alleges that he was overcome by carbon monoxide poisoning, but lack of treatment or high enough blood levels to support that claim. Claim found compensable pursuant to the dual purpose doctrine whereby Claimant was on way home at time of injury but with materials loaded for next day's job and intention to go straight to job site and pick up other employees along the way.

 

Gross v. Verizon, Opinion No. 22-08WC (June 6, 2008).

Claimant found to be PTD even though not at medical end result for recent carpal tunnel surgery as treating physiatrist did not believe that surgery would have any significant impact on his pain complaints which are generated primarily from his spine Also, treatment of Claimant's depression for which Claimant stopped treatment will also not result in his becoming employed. Claimant found to be PTD even though FCE found him  to have a full-time work capacity and Claimant's FCE found him to be able to work a full day but not consecutive days.

 

Carlson v. Experian, Opinion No. 23-08WC (June 6, 2008)

Split as to compensability of injuries following idiopathic fall at work. Head and liver injuries are compensable as result of Claimant hitting machinery on the way down, however, shoulder dislocation and rib fractures found not compensable as no doctor could state within a reasonable degree of medical certainty how those injuries occurred. Commissioner rejects Claimant's argument that "if any of Claimant's injuries are determined to have been caused by impacting the unwinder machine as opposed to the floor, then all must be deemed compensable.""This compensability standard must be met as to every injury that an employee sustains in a work-related accident. There is no basis for piggybacking a non-work-related injury onto a work-related one solely because both occurred at the same time."

 

Bonanno v. Verizon, Opinion No. 24-08WC (June 13, 2008).

Commissioner approves Claimant's requested double disc replacement and single level fusion surgery by California doctor who specializes in such synthetic disc replacement surgeries. "A proposed surgery may be found to be reasonable where it is recommended by the treating physician and where the surgery has an objective basis or foundation." Fact that "this particular type of surgery is beyond the FDA approval, does not mean that the proposed surgery is not reasonable.... An 'off-label' use of a FDA approved device can be approved where the claimant's need for the surgery and the propriety of the proposed surgery are shown by competent medical opinions."

 

Cyr v. McDermott's Inc. Opinion No. 25-08WC (June 13, 2008)

Rejection of "ticking time bomb" theory of compensability. Compensability is determined at time of injury not at time of event that ultimately leads to injury. Defendant's motion for summary judgment on grounds of intoxication granted even though relation back of BAC not at same standard applied to DUI cases and other evidence exists of Claimant's non-intoxication at time he injured himself.