BY Keith J. Kasper, Esq.

DEPARTMENT OF LABOR

Leo Moulton v. J.P. Carrera, Inc., Opinion No. 30-11WC (Oct. 11, 2011).

Claimant succeeds in claim for both medical benefits and PTD benefits. Claimant’ medical and vocational experts found more persuasive. “I conclude that Mr. LeRoy’s analysis of Claimant’s employability more accurately reflects the fundamental nature of off lot permanent total disability than Mr. Prinson’s does. Mr. LeRoy focused on the probability that Claimant would be able to compete successfully for jobs within his physical capabilities, and concluded that for him to do so would be highly unlikely. In contrast, Mr. Prinson focused on a few specific jobs for which Claimant conceivably might apply, and disregarded how improbable it would be, given his age, education, limited transferable skills, chronic pain and physical restrictions, for him actually to be hired.”

McNally v. State of Vermont Dep’t for Children and Families, Opinion No. 31-11WC (Oct. 12, 2011).

Based upon treating physician’s opinion, Claimant’s claim for temporary total disability benefits for work related enthesopathy found compensable. Attorney fees awarded for work performed prior to Claimant’s counsel entering an appearance on behalf of Claimant before the Department.

Bacon v. Gerald Morrissey, Inc., Opinion No. 32-11WC (Oct. 14, 2011).

1981 work-related injury and 1985 formal hearing results in compensable claim for medical and indemnity benefits related to post concussive work injury. In December of 2002, Claimant made claim for disability for his self-employment as a carpenter related to the 1981 work injury and liver damage related to medication usage to control seizures related to work injury. Claimant fails to cooperate appropriately and thus 2006 formal hearing canceled. In 2010 Claimant resurrects claim but Department grants Defendant’s motion to dismiss with prejudice. “Given the passage of time, even were Claimant to produce evidence to support his position at this point, Defendant’s ability to investigate and develop its own evidence would be severely compromised.”

Gadwah v. Ethan Allen, Opinion No. 33-11WC (Oct. 24, 2011).

Despite finding of MER, intervening employment found not to have necessitated 2009 fusion surgery, thus recurrence of 199 work injury due to failed fusion. Defendant’s IME’s doctor’s “opinion as to the medical reasoning behind Claimant’s January 2009 surgery is not credible. I simply can find no support in the record for his assumption that Dr. Brummett’s surgical motivation was any more to address Claimant’s L2-3 disc herniation that it was to correct his failed fusion at L4-5. In fact, I conclude that the opposite is more likely true. Claimant consistently had complained of symptoms at the L4-5 and L5-S1 levels both before and after his 2001 fusion, and certainly well before his tree farm employment even began.”

Mariani v. Kindred Nursing Home, Opinion No. 34-11WC (Nov. 3, 2011)

Defendant entitled to future credit against future WC benefits to extent of third party recovery at the rate of 39.87 percent reimbursement for every dollar of benefits paid by Claimant to the full extent of Claimant’s WC holiday.

Martin v Burlington Public School District, Opinion No. 35-11WC (Nov. 3, 2011).

Claimant is not entitled to receive PPD benefits to a body part for which he has achieved MER when he is not at MER for all body parts injured in the course of the compensable work injury giving rise to both injuries.

Dunn v. Windham Northeast Supervisory Union, Opinion No. 36-11WC (Nov. 15, 2011).

Claimant had a work-related injury and later dies as a complication of surgery for the work-related condition. Defendant claimed an offset for life insurance proceeds paid to Claimant’s estate. Summary judgment granted to Claimant. ” Defendant equates the benefits payable under Claimant’s life insurance policy with the term ‘damages’ as used in §624. the two concepts are not equivalent, however. The term ‘damages’ denotes ‘the money payable by a tortfeasor who is liable for injuries caused by his tortious act.’ In contrast, a benefit paid under the terms of an insurance policy is ‘a payment made in performance of a contractual obligation,’ and not a payment of ‘damages.’” (citations omitted).

McNally v. State of Vermont Dep’t of Path, Opinion No. 37-11WC (Nov. 15, 2011).

On remand from Vt Supreme Court Appeal, Commissioner makes additional findings, but still concludes that Claimant’s injury did not arise out of and in the course of her employment as opposed to her non-work-related snow shoveling activities.

Zahirivic v. Super Thin Saws, Inc., Opinion No. 38-11WC (Nov. 18, 2011).

Prior employer denied compensability of current disability based upon aggravation theory. Prior employer originally ordered to pay benefits but then subsequent medical evidence develops finding that subsequent employer was responsible for claim. Claimant files request for attorney fees more than 30 days after either interim order against prior employer or subsequent employer’s acceptance of the claim. “Claimant has offered no extenuating circumstances to justify the delay, nor can I discern any reason to overlook it. That being the case, Claimant’s petition for attorney fees deserves to be rejected on those grounds alone.”

Hathaway v. C& S Wholesale Grocers, Inc., Opinion No. 39-11WC (Nov. 18, 2011).

Physical-mental claim found compensable based upon Claimant’s treating psychologist’s testimony. “The fact that personal stressors may play some part in causing the psychological portion of a “physical-mental” claim to develop is not dispositive unless the medical evidence clearly establishes them to be the superseding cause of the resulting injury.”

Birchmore v. The McKernon Group, Opinion No. 40-11WC (Nov. 29, 2011).

In multi-period TTD claim, Claimant not entitled to COLA if he was employed and receiving wages on July 1, 2010. “The plain language of Rule 16.2000 thus mandates that only those claimants who are receiving disability benefits on July 1st are entitled to a cost of living adjustment for that year.” (emphasis in original)(citations omitted).


Goodwin-Abare v. SOV Agency of Human Resources, Opinion No. 41-11WC (Dec. 14, 2011).

Claimant’s claim for carpal tunnel syndrome and cubital tunnel syndrome denied based upon Defendant’s IME opinions. “The fact that a claimant is equally likely to suffer from disease regardless of his or her work activities deos not necessarily preclude a finding that work has either caused or aggravated the condition in a particular case. Where occupational risk factors are lacking at the same time that non-occupational risk factors abound, however, occupational causation becomes more speculative. It is the claimant’s burden of proof in such cases to produce sufficient addititonal evidence so as to cross the threshold from speculation to probability.”