State News : Vermont

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NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


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Vermont

MCCORMICK, FIRZPATRICK, KASPER & BURCHARD PC

  802-863-3494

The long awaited proposed re-write of the VT WC Rules has been unveiled and will be ready for public comment soon.

Shaffer v First Choice Communications, Opinion No. 15-14WC (Oct. 21, 2014)(HO Phillips).

Claimant’s request for Synvisc injections found reasonable and necessary medical care relying on doctor’s opinion who is supplying the injections since 2012 over those of IME doctor. “While [IME Doctor’s] concerns as to the efficacy of Synvisc injections when used ‘off label’ are worth noting, I do not consider them determinative in this case.” PTD claim denied relying upon IVE which found that “if Claimant avails himself of additional vocational rehabilitation services such as tutoring, access to assistive technology and focused job development, it is reasonable to expect that he will be able to resume regular gainful work.”

Simmons v Landmark College, Inc., Opinion No. 07F-13WC (Oct. 23, 2014)(HO Woodruff)

On remand from successful Superior Court Appeal, Claimant awarded attorney fees and costs at DOL rate ($145/hour for attorneys and $75/hour for paralegals) and only for those costs associated with DOL hearing, not those incurred at Superior Court..No statutory basis for an award of interest on attorney fees and thus none awarded.                       

Rodrigue v Enterprises Precision Inc., Opinion No. 16-14WC (Nov. 4, 2014)(HO Woodruff)

Voc Rehab denied at this point in time as Claimant is back to work, may become available in the future if current employment is no longer suitable. “As the circumstances of this case demonstrate, at times the concept of suitability involves more than merely comparing pre-and post-injury wages earned, or hours worked, during discrete snapshots in time. The goal of vocational rehabilitation is to return the injure worker to work that resembles, as nearly as possible, the conditions of his or her pre-injury employment. Where the pre-injury job involved consistent hours at a consistent weekly wage, a simple mathematical comparison will determine whether a post-injury job is suitable or not. However, where, as here, the pre-injury job involved widely fluctuating hours resulting in widely fluctuating weekly wages, a broader perspective is required.” Claimant is entitled to TTD of TPD benefits for those weeks in which he earned less that his AWW even though his co-workers were also working less given the seasonal nature of the job.

Moreton v State of Vermont Department of Children and Families, Opinion No. 17-14WC (Dec. 24, 2014)(HO Phillips).

Claimant slips and falls upon entering a Starbucks to meet co-workers to travel to a training session. Injury found compensable on cross-motions for summary judgment. The fact that injury occurred a half hour prior to her scheduled start of work time does not sever connection to work.

Also, meeting at a Starbucks was not a personal or substantial deviation as for the day of the injury, Claimant was a “traveling employee”.

Florence Godin has retired as a Specialist I after 23years in state service.

DEPARTMENT DECISIONS

Wood v. Fairpoint Communications Opinion No. 7-15WC (Apr. 10 2015)

Attorney fees awarded following informal conference when initial denial based upon “‘lack of investigative evidence to determine causal relationship to employment.’” Treating physician altered initial treatment note to show causal connection to work but Defendant did not rescind denial.

Kurant v Sugarbush Soaring Association, Inc. (Kurant III), Opinion No. 8-15WC (April 13, 2015). Attorney fees awarded without formal hearing when Carrier refused to pay ongoing medical treatment based upon an IME report stating that such ongoing treatment is not reasonable or necessary, but no Form 27 filed in support of the IME and no other medical records filed in support thereon. “Defendant’s failure to comply with the requirements of Rule 18.2100 amounted to misconduct or neglect under Rule 10.1330. It thus became necessary for Claimant to retain an attorney, whose efforts resulted in an interim order requiring Defendant to continue benefit payments. Notably, because the benefits at issue involve ongoing medical coverage rather than a cash award, under the circumstances of this case Claimant has no other workers’ compensation-related fund from which topay his attorney for her work. If he is to be made whole, an award of attorney fees is necessary.”

Julie Mercier of Williamstown, VT, has joined the staff at the Department as a Workers’ Compensation Specialist II.  Ms Mercier has an Associates of Science as a Paralegal and a Bachelor of Science in Legal Studies, both from Woodbury College.  She also has worked for the law firm of Zalinger Cameron & Lambek, PC, as a paralegal providing support for workers’ compensation and personal injury cases.  Most recently, Ms. Mercier served as a Docket Clerk for the Criminal and Family Court of Washington County, Vermont.

We also regretfully say goodbye to Lisa Brassard WC Specialist II who will be leaving the Department to join the Vermont League of Cities and Towns

 

VERMONT SUPREME COURT DECISIONS

 

Smiley v State of Vermont, 2014 Vt 42 (Mar. 6, 2015)

In 3-1 split decision, Court upholds Commissioner’s determination that statute of limitations barred claim and statute was not tolled by regulation requiring employers to determine impairment at time of medical end result. Carrier’s agreement to pay for an impairment rating after the statute of limitations had expired did not constitute a waiver as “claimant cannot unequivocally demonstrate an implicit wiaver under the circumstances of this case.” Court determines that new regulation requiring carriers to determine impairment at time of medical end result was procedural not substantive and thus could be applied retroactively. “In essence, the commissioner’s decision has expanded equitable estoppel or equitable tolling by reading a critical element out of each so that the employer’s inaction alone allows the limitation period to be suspended forever. This use of equitable doctrine eliminates the statutory limitation period in favor of one created by the commissioner. This is beyond the commissioner’s power.” Case invovles unique aspect of small impairment award with large interest award almost twice as large as impairment. “[I]nterest at the statutory rate is a form of penalty imposed on the employer, and if the claimant is not in immediate need for the money, the financial incentive is to delay a claim as long as possible to realize the high rate of interest. We conclude that this is prejdice as a matter of law.” Justice Robinson concurred and dissented from the majority’s opinion. She “emphasize[d] the clear state of our current law ...[that] the notion that a workers’ compensation case is open-ended, and that a claimant may not be statutorily barred from pursuing a claim for benefits years after an injury, and even years after the claim for benefits has arisen, is not particularly shocking or unusual. This is one of the most striking features distinguishing workers’ compensation from its tort-law cousin.” “[T]he Legislature’s elimination ofany distinct statute of limitations for permanent partial disability claims renders the majority’s appraisal of the former Rule 18(a) obsolete as it relates to injuries that arose on or after May 26, 2004.”                 

Marshall v. Vermont State Hospital, 2015 VT 47 (Mar. 6, 2015)

Reversing and remanding Superior Court decision and finding in favor of Defendant/Appellant. Subsequent disputes as to the propriety of an initial impairment rating is not a basis for determining that a Form 22 can be modified for mutual mistake. “While we conclude here that Dr Cyr’s allegedly mistaken medical opinion is an insufficient basis for concluding that there has been a material mistake of fact, we decline to hold that an impairment rating cannever be the basis for reforming a Form 22 agreement under the material-mistake-of-fact doctrine.”

VERMONT DEPARTMENT OF LABOR DECISIONS

Bohannon v Town of Stowe, Opinion No. 1-15WC (Jan. 5, 2015)(HO Woodruff)

Claim not barred by Statute of Limitations as equitable estoppel defense by claimant prevails. Hearing officer finds that: “ If [Claimant’s] claim was denied, he would have been seasonably notified and afforded an appropriate opportunity to appeal. Had he not done so within the applicable limitations period, his current claim would likely be time-barred.” Pursuant to the Odd Lot Doctrine, Claimant found to be PTD despite having no formal vocational rehabilitation assessment. “The language of the rule is suggestive, not mandatory, however, and the particular circumstances of this case justify a rare exception.See, e.g., Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009). Although it is Claimant’s burden of proof, Defendant has not proffered any evidence, either from a functional capacity evaluator or from a vocational rehabilitation professional, from which I might conclude that he in fact has any meaningful vocational options.”

Thomas v. Engelberth Construction, Opinion No. 2-15WC (Feb. 6, 2015)

“I do not necessarily equate the requisite finding for issuing and interim order under 21 V.S.A.§662(b)- that the employer’s denial lacks ‘reasonable support’ based upon the record as a whole,see 21 V.S.A. §601(24) - with the finding required for an award of attorney fees under Rule 10.1320- that at the tine it denied the claim the employer had no ‘reasonable basis’ for doing so.Ploof v. Franklin County Sherriff’s Department, Opinion No. 13-14WC (August 8, 2014), citingYustin [v. State of Vermont, Department of Public Safety., Opinion No. 38-11WC (November 18, 2011).]”

 

Chase v State of Vermont, Opinion No. 3-15WC (Jan. 28, 2015)(HO Phillips)

Claimant’s treating physician’s opinions found more credible than Defendant’s IME opinion. Vermont Supreme Court’s “heightened burden of proof” in which aggravated symptoms “without a worsening of the underlying disability, does not meet the causation requirement”, (Stanard v. Stannard Co, Inc., 2003 VT 52) found inapplicable in the instant case. “Where the claimant is already suffering from a symptomatic, degenerative condition, it is often impossible to discern whether worsened symptoms during work activities are merely a manifestation of the underlying disease or alternatively, whether the work activities themselves have caused or aggravated it. No such ambiguity exists here, however.”  Claimant’s claim for reimbursement for naturpoathic supplements denied pursuant to statutes 21 V.S.A. §640(a) as “the employer’s obligation does not extend to over-the-counter medication, no matter how effective of necessary they might be.” 

Fifield v Heatech Inc., Opinion No. 4-15WC (Feb. 25 2015)(HO Woodruff)

Based upon treating medical providers opinions Sacroliac joint injection is reasonable and necessary medical treatment as opposed to IME doctor’s opinions. “As in so many areas of medical decision-making, the analysis required to make an accurate diagnosis is most oftn a question of quality, not quantity.”

Richards v C&S Wholesale Grocers, Opinion No. 5-15WC (HO Woodruff)(Feb. 27, 2105)

In rejecting IME doctor’s opinion as to causation, Hearing Officer relies, in part, upon Vermont Supreme Court decision inStannard v. Stannard, 203 VT 52 to determine that the “work injury caused his preexisting L5-S1 pathology to become symptomatic to the point where his associated disability came upon him sooner than otherwise would have occurred.”

Herring v Department of Liquor Control, Opinion No. 6-15WC (HO Phillips) (Mar. 24, 2015).

Claimant had accepted back injury with an alleged 0% permanent impairment and files a claim for compensability determination of shoulder condition. However, Claimant withdrew the claim and six months later files a new claim for 10% permanency benefits based upon the accepted back condition. At the informal level, an interiem order issued against Defendant which pays the full 10% impairment rating. Then Claimant seeks an award of attorney fees. Analyzing the request for an award of attorney fees pursuant to the 2008 amendments to the statute and the 2010 amendments to the WC Rules governing an award of attorney fees at the informal conference level, Commissioner awards most of the attorney fees and all of the costs Claimant had sought in this matter. “[T]he amendments have effectively eliminated employer or insurance carrier delay, unreasonable denial or misconduct as a necessary prerequisite to an award of fees at the informal level. Instead, in appropriate circumstances an award can now be based solely on a finding that but for the attorney’s efforts, the claimant would not have prevailed.... [W]hile the Commissioner retains the authority to award fees when a claim is resolved informally, she is by no means compelled to do so in every case. Exercising that discretion should further the goals of (a) maintaining appropriate standards of employer and adjuster conduct; (b) discouraging excessive and unnecessary attorney involvement; and © encouraging the parties to make effective use of the informal dispute resolution process. With these goals in mind, for example, an award of attorney fees might not be appropriate in a case that would have been amenable to informal resolution but for the attorney’s unnecessarily adversarial posturing. Similarly, where the claimant’s attorney prolongs a dispute by failing to obtain and share critical information promptly and voluntarily, fees will likely be denied. There might be other instances as well where the attorney’s conduct so undermines the informal process as to negate his or her entitlement to an award of fees. And last, there might be claims that are successfully resolved largely as a consequence of the workers’ compensation specialist’s efforts rather than the attorney’s, in which case a fee award might not be justified.”

VERMONT WORKERS' COMPENSATION UPDATE
JANUARY TO MARCH 2013
by Keith J. Kasper Esq.

DEPARTMENT OF LABOR HEARING DECISIONS

LeClaire v. Ford of Brattleboro Inc., Opinion No. 1-13WC (Jan. 3, 2013).
Defendant's attempt to terminate TTD benefits due to concurrently disabling heart condition denied. "As it was in Wood, the critical fact here is that during the time when Claimant's non- work-related condition precluded treatment, his work-related injury continued to be totally disabling. Given the express language of the statute, which mandates that temporary total disability benefits be paid for so long as the work injury 'causes total disability for work,' 21 V.S.A. §642, sufficient grounds for discontinuing them in this case do not yet exist."

Roy v. The Howard Center, Opinion no. 2-13WC (Jan. 10, 2013).
Claimant's mental-mental claim found compensable as finding dead co-worker satisfies unusual stress standard. Treating psychiatrists' opinion found more credible than that of IME doctor's opinions as more objectively based.

Kibbie v Killington/Pico Ski Resort, Opinion No. 3-13WC (Feb. 5, 2013).
Request for Summary judgment denied as prior settlement agreement which left open treatment for TBI did not necessarily foreclose proposed physical therapy recommendation.

Pawley v Booska Movers, Opinion No. 4-13WC (Feb. 5, 2013)
Attorney fees awarded to Claimant for one carrier initially denying claim compensable but then retracting that defense after depo of Defendant's expert witness.  "Were this the first time Claimant had sought to establish the compensability of either incident, I likely would conclude that Dr. Pulde's report provided a reasonable basis for his employer to deny his claim for benefits. The fact is that Claimant's employer previously had accepted compensability, however. True, this occurred while another carrier was on the risk. But the statute equates employer with insurer, so both are thereby bound. 21 V.S.A. §601(3); Workers' Compensation Rule 2.1190. Given this particular circumstance, I conclude that Vanliner had no reasonable basis for denying the compensability of Claimant's August 2011 DVT on the grounds that it was not related to his employment."

Puzic v Huber + Suhner, Opinion No. 5-13WC (Feb. 5, 2013).
Defendant's IME opinion found credible even though Hearing Officer did "not accept as credible his conclusion that Claimant's ongoing symptoms were most likely due to rheumatoid arthritis or to her 2009 fall while shopping. However, I do accept as credible his conclusion that there is no medical basis whatsoever for relating Claimant's symptoms back to her 2002 work injury. That injury, which was diagnosed at the time as a myofascial strain caused by repetitive shoulder activities, resulted in no permanent impairment, no documentable structural defects, no objectively verifiable range of motion limitation and only minor functional restrictions. I conclude that there is no medical process by which Claimant's ongoing symptoms, which in the nine years since have both worsened and become more diffuse, reasonably can be attributed to her initial work-related insult."

Maluk v Plastic Technologies of Vermont, Opinion No. 6-13WC (Feb. 5, 2013).
Pro se Claimant fails to qualify for TTD benefits. "Here, the uncontradicted medical evidence establishes that claimant was capable of working, albeit with modified duty restrictions, at all times subsequent to his November 30, 2011 injury. The credible evidence further establishes that Defendant was providing suitable modified duty work. By first calling in sick and then abandoning his job, Claimant removed himself from the work force without a medical basis for doing so. Whatever wages he lost thereafter were a function of that decision, not his work injury."

Simmons v Landmark College, Opinion  No. 7-13WC (Feb. 28, 2013)
Defendant's IME doctor's opinion as to reasonableness of fourth neck surgery found more credible than that of treating surgeon. Symptoms found compensable as related to issues covered by Form 22, but not surgery to correct said symptoms.

DeChantal  v Sears, Opinion No. 8-13WC (Feb 28, 2013)
Claimant's low back injury found compensable based upon Claimant's IME opinion that  work activities caused a "'classic presentation'...[as] Claimant's symptoms progressed from feeling a 'twinge' or pop while engaged in a vehicle repair job at work on July 19th to being unable to get out of bed on July 21st."

Randall v Health Services Group,  Opinion No. 9-13WC (Mar. 12, 2013).
Treating physician's opinion as to proposed cervical surgery found not as persuasive as treating surgeon's opinion as  to causation of cervical condition and reasonableness of proposed cervical surgery. IME doctor "has not explained adequately h ow it  is that the benefit Claimant derived (or not) form her shoulder surgeries is likely to be an accurate predictor of whether she will (or will not)benefit from cervical surgery."

Haskins v Green Mountain Coffee Roasters Opinion No. 10-13WC (Mar. 18, 2013)
IME expert's opinion rejected over that Claimant's treating physician. "Had there been evidence from which he could determine, to the required degree of medical certainty, that the carpal tunnel symptoms Claimant was exhibit form September through November 2011 were due to a burgeoning systemic inflammatory response or autoimmune disorder, I might have found his opinion persuasive."  However, DOL accepts IME doctor's opinion that chiropractic treatment of CTS was not reasonable.

Named Best Lawyers' 2013 Burlington Workers' Compensation Law - Employers "Lawyer of the Year"

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.”

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).