BY Keith J. Kasper, Esq.

DEPARTMENT OF LABOR DECISIONS

Touchette v Vermont Slate and Roofing, Opinion No. 1-12WC (Jan. 13, 2012).

In 2007, Claimant, a New York resident,  suffers a work-related back injury in Vermont with a Vermont employer. In 2009, Claimant has a new work related incident in New York with a New York employer. Claimant files a workers’ compensation claim in New York which is rejected by the New York Workers’ Compensation Board. Claimant files new claim in Vermont to determine which employer is responsible for Claimant’s current injury. Commissioner concludes that Vermont lacks personal jurisdiction over New York employer even though New York employer has an all-states workers’ compensation insurance policy covering Vermont. Also, full faith and credit clause of United State Constitution “preclude[s] the imposition of liability on account of a finding of aggravation against ” New York employer. Claimant to proceed with compensability claim against Vermont employer alone. Vermont employer can raise defense of aggravation relieving it of liability in this matter and effectively leaving Claimant without benefits in this matter.

Jacobs v. Metz and Associates Ltd., Opinion No. 2-12WC (Jan. 13, 2012).

Claimant’s treating physician’s opinions found more credible then Defendant’s IME opinions and allow for trial implantation of spinal cord stimulator in CRPS Claimant.

Bower v. Mount Mansfield, Opinion No. 3-12WC (Jan. 19, 2012).

Claimant’s 2010 apple picking incident not so severe so as to amount to intervening cause so as to relieve Defendant of liability for 2009 work injury. “It is only in instances where the claimant, knowing of certain weaknesses arising from the primary injury, ‘rashly undertakes activities likely to produce harmful results’ that the causa connection disintegrates. In other words, for an intervening, non-work-related event to sever the connection back to a compensable injury the facts must establish that the claimant acted negligently under the circumstances.” (citations omitted).

Mujic v. Vt Teddy Bear, Opinion No. 4-12WC (Feb. 8, 2012).

Company doctor who is also treating physician opines that Claimant’s neck condition is compensable, but Defendant’s IME doctors’ opinions prevail. Despite treating physician’s “familiarity with Claimant’s condition [his opinion] was undermined by his failure to acquaint himself with her prior medical history.”

Lydy v, Trustaff, Inc., Opinion No. 5-12WC (Feb. 8, 2012).

Claimant’s physical-mental claim succeeds on basis of treating psychologist’s opinion over those of IME doctor. “In contrast, [the IME doctor's] opinion was based almost entirely on his determination that Claimant was exaggerating both her prior history and her current symptoms. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.” However, the disputed portions of Claimant’s  physical injury claims to her ankle and knee are successfully denied. Also, Claimant’s attempt to include health insurance benefits into the AWW calculation rejected.

Carr v. Copley Hosp., Opinion No. 6-12WC (Feb. 23, 2012).

Claimant’s treating physician’s opinion as to compensability found more credible then that of Defendant’s IME doctor. Also, while Claimant’s IME doctor renders impairment rating, claimant not seek PPD benefits so none awarded.

Sadriu v. The Home Depot, Opinion No. 7-12WC (Feb. 23 2012).

Claimant notified by IME and Defendant of ability to RTW and his good faith job search obligations. Claimant’s treating physician’s subsequent statement that Claimant was not ready to return to work found not credible as “it appears to have been motivated at least in part by Claimant’s own preference to remain off work rather than by a well-reasoned medical determination as to his work capacity. Beyond that, merely stating that a patient is ‘not ready to return to work’ or is ‘totally disabled’ is unlikely to be persuasive in cases such as this one, where the claimant obviously retains the ability to engage in at least some work-related activities.” Claimant not found to be at medical end result as Claimant referred to interdisciplinary rehabilitation program which “is another treatment option that, until adequately investigated, might well preclude a finding of medical end result.”

Yustin v Dep’t of Public Safety, Opinion No. 8-12WC (Mar. 20, 2012).

Claimant’s request for Attorney fees filed in 2011 relating to a March 2008 interim order denied as untimely. Statutory amendment to 21 V.S.A. §678(d) was procedural and not substantive and 30 day filing deadline after favorable decision “is analogous to a statute of limitations or repose.”  Furthermore, Claimant’s claim for Attorney fees fails under WC Rule 10.1300 as Claimant had a “reasonable basis” for initial denial of benefits. “Were I to accept the position Claimant advocates, the result would be to award attorney fees in virtually every case in which an interim order issues. This would directly contradict the language of Rule 10.1300, which authorizes an award of fees short of formal hearing only in ‘limited instances.’”

Skovira v. Mylan Technologies, Inc., Opinion No. 9-12WC (Mar. 30, 2012).

Claimant with chronic knee problems, falls in Defendant’s parking lot but does not treat for two days with symptoms “similar in nature to what she had experienced chronically… though far worse in degree.” Despite poor results, decision for arthroscopic surgery found reasonable. “In the workers’ compensation context, the test for determining the reasonableness of a particular medical treatment is what is known at the time the treatment was undertaken, not what became known later with the benefit of hindsight.” Subsequent joint replacement found not caused by work incident. “Where a claimant’s preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, ‘due to a work injury or the work environment the disability came upon the claimant earlier than otherwise would have occurred. Mere continuation or exacerbation of symptoms, without a worsening of the underlying disability, does not establish compensability.” (citations omitted).

Lehneman v. Town of Colchester, Opinion No. 10-12WC (Mar 13, 2012).

Commissioner denies claim brought by claimant, a police officer, while on a 12 hour shift and eating at his desk who breaks a tooth while biting into a boughten burger with bacon. Defendant concedes that injury occurred “in the course of” his employment, but disputes that injury “arose out of”  his employment pursuant to the “positional risk doctrine.” “The question in this case, then, is whether the obligations of Claimant’s employment- specifically, that he take his meals while working his shift – constitute a sufficient connection to his injury as to render it compensable.” “To impose liability upon  employers for injuries suffered under the circumstances presented by the current claim would be both unrealistic and unwieldy. In effect it would require them to ensure that all of the food their employees consume while at work, no matter what the source, is safe. But how would an employer do so? Should it be granted the right to inspect an employee’s lunch box? To ban hard candy or caramels? To declare certain restaurants off-limits? I suspect that neither employers nor employees would stomach such intrusive devices well.”

ARBITRATIONS

Waterhouse v Blue Seal Feeds Inc., State File Nos. Z-11789 & CC-1747 (Jan. 4, 2011)(Atty Kolter Arbitrator).

In aggravation versus recurrence dispute between Zurich Insurance (2010 claim) and Liberty Mutual (1986 claim)  recurrence found. “Work activities such as those Mr. Waterhouse performed in December 2010 ‘can contribute to a claimant’s symptoms of pain and discomfort without contributing to the underlying pathology.’ This is exactly what occurred. Since the 2010 work did not causally contribute to claimant’s disability, there was no aggravation as Liberty Mutual argues.” (citations omitted).