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VERMONT WORKERS COMPENSATION UPDATE

APRIL TO JUNE 2009

by Keith J. Kasper, Esq.

The annual COLA increase this year effective 7/1/09 will be 1.037 with anew maximum rate of $1,092 and a new minimum rate of $364.

As a result of new legislation also taking effect July 1, 2009, within 30 days of being presented with a medical bill, Carriers must notify medical providers, with specificity, as to why they are denying the medical bill and what information they require to accept the bill if the denial is based upon lack of supporting documentation. Medical providers now have a direct cause of action against carriers for non-payment of medical bills.

VERMONT SUPREME COURT CASES

Stoll v. Burlington Elec Dept., 2009 VT 61 (Jun 19, 2009).

Majority agrees with Superior Court dismissal of purely legal question for lack of jurisdiction and Court does not allow for untimely appeal to Supreme Court. In dissent Justice Dooley argues that the current appeal process as set forth by Rothke and Letourneau may foreclose an appellant from ever taking a legal appeal.

Garger v. Desroches, 2009 VT 37 (Mar. 27, 2009)

Supervisor order employee to drive ATV up steep slope resulting in injury. Plaintiff's suit dismissed because supervisor performing non-delegable duty of employer for creating safe work environment. Fact that supervisor was not owner of employer nor fact that allegation of negligence was active as opposed to act of omission is irrelevant in affirmance of decision by Vermont Supreme Court.

DEPARTMENT OF LABOR DECISIONS

J. S. v. Jan Co. Inc., Opinion No. 09-09WC (Apr. 2, 2009)

Claimant fails to attend deposition, pre-trial conference or status conferences nor formal hearing. Motion for dismissal without prejudice granted, no motion to dismiss with prejudice granted until statute of limitations has run.

M. S. v. State of Vermont, Opinion No. 10-09WC (Apr. 2, 2009)

Claimant's treatment for more than 10 years does not improve her condition. Ultimately determined pain complaints not caused by work-related injuries. "This condition is strictly related to the natural progression of her disc disease, and has been neither caused nor aggravated by her work injuries. CTS treatment , therefore, is not compensable."

D. S. v. Feed Commodities Intl., Opinion No. 11-09WC (Apr. 17, 2009)

Following fall, Claimant alleges temporal lobe epilepsy or pseudoseizures, which Defendant's IMEs reject based in part upon repeat negative EEGs. PTD claim hurt as well by Claimant's failure of "accessing, considering and exhausting all viable vocational rehabilitation options prior to concluding that an injured worker is permanently precluded form returning to regular gainful employment."

D. P. v. Jan Co. Inc, Opinion No. 12-09WC (Apr. 17, 2009)

Both treating and IME doc opine that if Claimant's history is accurate then injury is compensable. Claimant found credible and claim found compensable.

R.. Martin Brothers Trucking, Opinion No. 13-09WC (Apr. 30 2009)

Truck Driver injured in MVA files claim against two brothers and "Martin Brothers Trucking." Two years later after having been served by both Department and Superior Court in enforcement action on brother claims he not employer and "Martin Brothers Trucking" is named for other deceased brother. Other brother declares bankruptcy. "I simply cannot countenance a delay of nearly tow years in raising a factual defense that should have been apparent to Defendants form the outset. Particularly in light of subsequent events, Defendant [R} Martin now having declared bankruptcy and become judgment-proof, the prejudice to Claimant that would result if I were to do so is too glaring to ignore."

E. H. v. Mack Molding Co., Opinion No. 14-09WC (May 13, 2009)

Claimant suffered compensable injury to his thumb, almost a year later he tries to commit suicide by drowning. Initial psychiatrist to treat Claimant after injury did not correlate suicide attempt to work injury, but subsequent psychiatrist alleged PTSD related to suicide attempt and PTSD caused by work injury. Defendant's IME rejected diagnosis of PTSD. Commissioner sides with Claimant finding that even though Defense IME report "recites the history and records more thoroughly in his report than the other experts did, but that does not mean his conclusion is correct." Commissioner also rejects intentional injury defense raised by Defendant stating that if the suicide attempt flowed from the PTSD which arose due to the work injury then the suicide attempt is compensable.

P. H. v. CV Oil Co. Inc., Opinion No. 15-09WC (May 27, 2009).

Claimant stuck by lightening in 2001 resulting in PTSD diagnosis. Claimant alleges PTD and a higher psych impairment rating both of which are contested by Defendant. Both Claimant and Defendant retain IME psych docs who both rate Claimant pursuant to the Colorado Guidelines for psychological impairment. Claimant's rating found more favorable at 17% because Claimant's IME nationally recognized expert in PTSD and "thoroughly explained his rationale and included the completed Colorado rating system work sheet as support." Claimant's claim for PTD denied as Claimant has not exhausted VR services. "A Finding of odd lot permanent total disability is not to be made lightly. In a system that embraces successful return to work as the ultimate goal, and vocational rehabilitation as a critical tool for achieving it, to conclude that an injured worker's employment barriers realistically cannot be overcome means admitting defeat, acknowledging that he or she probably will never work again."

G. D. v. Censor Security, Inc., Opinion No. 16-09WC (May 29, 2009).

Delayed reported claim found compensable given credible testimony of co-worker in support of occurrence of incident. TTD benefits terminated however on date of "precautionary Form 27" filed when Claimant refused proffered modified duty job without even speaking to Defendant about the proffered job.

K.G. v. Alpine Glen Farm, Opinion No. 17-09WC (June 3, 2009).

Defendant not obligated to pay for Claimant's moving expenses under 21 VSA §640. "They may be desirous or helpful, but that is not the standard."

F. v. Valley Floors, Inc., Opinion No. 18-09WC (June 9, 2009).

Denial of Defendant's motion for summary judgment arguing aggravation so as to relieve Defendant of liability in this matter due to lack of expert medical evidence supporting allegation that 2008 slip on the ice severed the causal chain form the compensable 2004 injury.

G. L. v. G. W. Savage Corp., Opinion No. 19-09WC (June 25, 2009).

In apportioning prior permanency impairment even though the "AMA Guides seem to favor" an approach whereby one would calculate prior AMA Guide impairment ratings pursuant to the current Guides' rating system, Department rejects that approach. "But the Guides also direct physicians to defer to each state's 'customized method' for determining how best to apportion. In Vermont, in order for mandatory apportionment to be triggered the statute requires that a prior impairment be not simply rated, but also paid as well. It is reasonable to infer that the statutory reference to payment requires that the apportionment calculation be based on the rating that actually was paid, not the one that might have resulted had a more recent edition of the Guides been available at the time. To rule otherwise would open up all prior impairment ratings to retrospective analysis and recalculation. This would undermine the binding nature of prior approved compensation agreements and the finality of permanency awards." Mileage reimbursement allowed for all medical travel more than the 35 miles one way which Employer did not pay for Claimant's work-related travel to various job sites. No intervening cause found for Claimant running after pickup truck when he had pre-existing appointments with neurosurgeon.

Estate of R. C. v. Middlebury College, Opinion No. 20-09WC (June 25, 2009).

Claimant suffered a work related injury for which he was prescribed ibuprofen. Claimant had pre-existing hepatitis C, alcohol abuse and undiagnosed severe cirrhosis of the liver. Claimant is OW for two months then returned to work full time for Defendant. Ten days later Claimant dies of esophageal variceal bleeding. Claimant fails to prove that the ibuprofen prescribed for his work injury caused or contributed to his death primarily based upon Defendant's IME expert opinion and lack of clarity as to when Claimant had last taken the ibuprofen prior to his death.

P. K. v. Addisn-Rutland Supervisory Union (II), Opinion No. 21-09WC (June 25, 2009).

No apportionment of pre-existing non-work-related 10% impairment because Claimant had "recovered fully and had no lingering symptoms" form prior surgically corrected problem. Given this pre-exiting condition "the combination of that increased vulnerability and those work activities have resulted in residual symptoms, functional limitations and permanent partial disability" resulting in no apportionment of the prior impairment. Acting in its discretion no award of interest on even the undisputed but unpaid amount of permanent impairment.

C. C. v. Central Vt. Medical Center, Opinion No. 22-09WC (Jun. 26, 2009).


VERMONT WORKERS COMPENSATION UPDATE APRIL TO JUNE 2009 by Keith J. Kasper, Esq. The annual COLA increase this year effective 7/1/09 will be 1.037 with anew maximum rate of $1,092 and a new minimum rate of $364. As a result of new legislation also taking effect July 1, 2009, within 30 days of being presented with a medical bill, Carriers must notify medical providers, with specificity, as to why they are denying the medical bill and what information they require to accept the bill if the denial is based upon lack of supporting documentation. Medical providers now have a direct cause of action against carriers for non-payment of medical bills. VERMONT SUPREME COURT CASES Stoll v. Burlington Elec Dept., 2009 VT 61 (Jun 19, 2009). Majority agrees with Superior Court dismissal of purely legal question for lack of jurisdiction and Court does not allow for untimely appeal to Supreme Court. In dissent Justice Dooley argues that the current appeal process as set forth by Rothke and Letourneau may foreclose an appellant from ever taking a legal appeal. Garger v. Desroches, 2009 VT 37 (Mar. 27, 2009) Supervisor order employee to drive ATV up steep slope resulting in injury. Plaintiff's suit dismissed because supervisor performing non-delegable duty of employer for creating safe work environment. Fact that supervisor was not owner of employer nor fact that allegation of negligence was active as opposed to act of omission is irrelevant in affirmance of decision by Vermont Supreme Court. DEPARTMENT OF LABOR DECISIONS J. S. v. Jan Co. Inc., Opinion No. 09-09WC (Apr. 2, 2009) Claimant fails to attend deposition, pre-trial conference or status conferences nor formal hearing. Motion for dismissal without prejudice granted, no motion to dismiss with prejudice granted until statute of limitations has run. M. S. v. State of Vermont, Opinion No. 10-09WC (Apr. 2, 2009) Claimant's treatment for more than 10 years does not improve her condition. Ultimately determined pain complaints not caused by work-related injuries. "This condition is strictly related to the natural progression of her disc disease, and has been neither caused nor aggravated by her work injuries. CTS treatment , therefore, is not compensable." D. S. v. Feed Commodities Intl., Opinion No. 11-09WC (Apr. 17, 2009) Following fall, Claimant alleges temporal lobe epilepsy or pseudoseizures, which Defendant's IMEs reject based in part upon repeat negative EEGs. PTD claim hurt as well by Claimant's failure of "accessing, considering and exhausting all viable vocational rehabilitation options prior to concluding that an injured worker is permanently precluded form returning to regular gainful employment." D. P. v. Jan Co. Inc, Opinion No. 12-09WC (Apr. 17, 2009) Both treating and IME doc opine that if Claimant's history is accurate then injury is compensable. Claimant found credible and claim found compensable. R.. Martin Brothers Trucking, Opinion No. 13-09WC (Apr. 30 2009) Truck Driver injured in MVA files claim against two brothers and "Martin Brothers Trucking." Two years later after having been served by both Department and Superior Court in enforcement action on brother claims he not employer and "Martin Brothers Trucking" is named for other deceased brother. Other brother declares bankruptcy. "I simply cannot countenance a delay of nearly tow years in raising a factual defense that should have been apparent to Defendants form the outset. Particularly in light of subsequent events, Defendant [R} Martin now having declared bankruptcy and become judgment-proof, the prejudice to Claimant that would result if I were to do so is too glaring to ignore." E. H. v. Mack Molding Co., Opinion No. 14-09WC (May 13, 2009) Claimant suffered compensable injury to his thumb, almost a year later he tries to commit suicide by drowning. Initial psychiatrist to treat Claimant after injury did not correlate suicide attempt to work injury, but subsequent psychiatrist alleged PTSD related to suicide attempt and PTSD caused by work injury. Defendant's IME rejected diagnosis of PTSD. Commissioner sides with Claimant finding that even though Defense IME report "recites the history and records more thoroughly in his report than the other experts did, but that does not mean his conclusion is correct." Commissioner also rejects intentional injury defense raised by Defendant stating that if the suicide attempt flowed from the PTSD which arose due to the work injury then the suicide attempt is compensable. P. H. v. CV Oil Co. Inc., Opinion No. 15-09WC (May 27, 2009). Claimant stuck by lightening in 2001 resulting in PTSD diagnosis. Claimant alleges PTD and a higher psych impairment rating both of which are contested by Defendant. Both Claimant and Defendant retain IME psych docs who both rate Claimant pursuant to the Colorado Guidelines for psychological impairment. Claimant's rating found more favorable at 17% because Claimant's IME nationally recognized expert in PTSD and "thoroughly explained his rationale and included the completed Colorado rating system work sheet as support." Claimant's claim for PTD denied as Claimant has not exhausted VR services. "A Finding of odd lot permanent total disability is not to be made lightly. In a system that embraces successful return to work as the ultimate goal, and vocational rehabilitation as a critical tool for achieving it, to conclude that an injured worker's employment barriers realistically cannot be overcome means admitting defeat, acknowledging that he or she probably will never work again." G. D. v. Censor Security, Inc., Opinion No. 16-09WC (May 29, 2009). Delayed reported claim found compensable given credible testimony of co-worker in support of occurrence of incident. TTD benefits terminated however on date of "precautionary Form 27" filed when Claimant refused proffered modified duty job without even speaking to Defendant about the proffered job. K.G. v. Alpine Glen Farm, Opinion No. 17-09WC (June 3, 2009). Defendant not obligated to pay for Claimant's moving expenses under 21 VSA §640. "They may be desirous or helpful, but that is not the standard." F. v. Valley Floors, Inc., Opinion No. 18-09WC (June 9, 2009). Denial of Defendant's motion for summary judgment arguing aggravation so as to relieve Defendant of liability in this matter due to lack of expert medical evidence supporting allegation that 2008 slip on the ice severed the causal chain form the compensable 2004 injury. G. L. v. G. W. Savage Corp., Opinion No. 19-09WC (June 25, 2009). In apportioning prior permanency impairment even though the "AMA Guides seem to favor" an approach whereby one would calculate prior AMA Guide impairment ratings pursuant to the current Guides' rating system, Department rejects that approach. "But the Guides also direct physicians to defer to each state's 'customized method' for determining how best to apportion. In Vermont, in order for mandatory apportionment to be triggered the statute requires that a prior impairment be not simply rated, but also paid as well. It is reasonable to infer that the statutory reference to payment requires that the apportionment calculation be based on the rating that actually was paid, not the one that might have resulted had a more recent edition of the Guides been available at the time. To rule otherwise would open up all prior impairment ratings to retrospective analysis and recalculation. This would undermine the binding nature of prior approved compensation agreements and the finality of permanency awards." Mileage reimbursement allowed for all medical travel more than the 35 miles one way which Employer did not pay for Claimant's work-related travel to various job sites. No intervening cause found for Claimant running after pickup truck when he had pre-existing appointments with neurosurgeon. Estate of R. C. v. Middlebury College, Opinion No. 20-09WC (June 25, 2009). Claimant suffered a work related injury for which he was prescribed ibuprofen. Claimant had pre-existing hepatitis C, alcohol abuse and undiagnosed severe cirrhosis of the liver. Claimant is OW for two months then returned to work full time for Defendant. Ten days later Claimant dies of esophageal variceal bleeding. Claimant fails to prove that the ibuprofen prescribed for his work injury caused or contributed to his death primarily based upon Defendant's IME expert opinion and lack of clarity as to when Claimant had last taken the ibuprofen prior to his death. P. K. v. Addisn-Rutland Supervisory Union (II), Opinion No. 21-09WC (June 25, 2009). No apportionment of pre-existing non-work-related 10% impairment because Claimant had "recovered fully and had no lingering symptoms" form prior surgically corrected problem. Given this pre-exiting condition "the combination of that increased vulnerability and those work activities have resulted in residual symptoms, functional limitations and permanent partial disability" resulting in no apportionment of the prior impairment. Acting in its discretion no award of interest on even the undisputed but unpaid amount of permanent impairment. C. C. v. Central Vt. Medical Center, Opinion No. 22-09WC (Jun. 26, 2009). Treating physician's opinion accepted over those of IME doctor as to diagnosis of RSD. AMA Guides not required for use by treating doctors for diagnosis and treatment of RSD and similar CRPS conditions. J. W. v. Hunger Mt Coop, Inc., Opinion No. 23-09WC (June 30, 2009). Claimant's motion for summary judgment denied as disputed facts as to why Claimant was at the employer's store so as to make the subsequent fall in the parking lot a compensable injury.