McCormick, Fitzpatrick, Kasper, and Burchard, P.C. Search Home About Us The Team Practice Areas News Contact UNCATEGORIZED VERMONT WORKERS’ COMPENSATION UPDATE JANUARY TO MARCH 2021 BY: KEITH KASPER ESQ. JULY 12, 2021 LORIE FLYNN Shores v. Mack Molding, Opinion No. 1-21WC (Jan. 21,2021)(ALJ DeBernardi) DOL finds Claimant’s treating physician’s a opinions more credible then those of IME doctor. “Relying primarily on the first and fifth Geiger factors…. As Claimant’s treating physician, Dr Giering is in the best position to understand Claimant’s past response to radio-frequency denervation and to determine the best treatment going forward. In addition, Dr Giering is a pain management specialist who has performed this procedure more than 5,000 times.” Rainville v Boxer, Blake & Moore, PLLC Opinion No. 2-21WC (ALJ Brown)(Jan. 15, 2021) Claimant loses compensability issue on summary judgment motion alleging that pizza eaten in the course of her employment resulted in gluten allergy reaction and a cascade of health issues thereafter. DOL found no connection between Claimant’s law practice and her pizza consumption. “While the time pressures of her workday certainly influenced Claimant’s choice about how to obtain her lunch, it was still her decision to choose pizza and to form an agreement with her coworker to place the order. Under these circumstances, the risk of gluten consumption was not incidental to the ‘conditions and obligations of [her] employment.[]’ As a matter of law, her wheat pizza consumption therefore did not ‘arise out of’ her employment.” Gregorek v. Dynapower Corp., Opinion No. 3-21WC (ALJ Brown) (Jan. 28, 2021) Defendant accepts hearing loss as being work related but disputes impairment rating. “While it is possible that some of Claimant’s hearing loss may have been caused by non-occupational noise exposure from gun use or from normal aging process, there is no evidence beyond the realm of speculation concerning the specific extent, if any, of those sources’ effects on his present aural capacity. Accordingly, there is no basis to conclude that any cause other than Claimant’s work resulted in his clinically documented hearing loss.” Claimant awarded 4% impairment based upon a 2018 hearing test. Reis v Windham Northeast Supervisory Union, Opinion No.4-21WC (ALJ DeBernardi) (Feb. 16, 2021) Claimant’s family nurse practitioner’s affidavit as to compensability of PTSD claim found insufficient to defeat Defendant’s Motion for Summary Judgment, as affidavit contains no description of the alleged “unspecified harassment” nor any “factual detail as to Claimant’s symptoms or the manifestation of his increased stress and anxiety. Further she did not address, or even refer to, any diagnostic criteria for his psychological condition. In short, [FNP’s] letter contains no facts, no hint of an inferential process, and no discussion of any hypotheses that she considered and rejected. She simply states that harassment occurred and that it exacerbated Claimant’s psychological condition.” Vanesse v Springfield Printing Corp., Opinion No. 5-21WC (Mar. 9, 2021)(ALJ Brown) Employee uses personal vehicle for business purposes. Slip and fall at dealership to fix flat tire is insufficiently connected to time, place and activity of work to render this a compensable injury as the business trip portion of the traveling employee exception tot he going and coming rule had not yet begun. In a footnote, however, the DOL warns that “This is not to say that an employee injured while obtaining automotive repairs close in time to a business trip can never establish that such injuries occurred within the course of his or her employment. Such inquiries are always fact-intensive and depend upon the multi factorial balancing of the circumstance specific to each case. Konjuhovac v University of Vermont, Opinion No. 6-21WC (Mar. 16, 2021) (ALJ Brown) Surgery performed by treating physician found reasonable over those opinions of equally qualified Defendant’s IME Doctor. “Two well qualified surgeons,… differed in their opinions about whether surgery was appropriate in a patient who presented a mixed medical picture with some normal diagnostic studies and some subject to conflicting interpretations. The existence of such an academic disagreement between experts does not render the surgery unreasonable.” Parks v. Norwich University, Opinion No. 7-21WC (Mar. 23, 2021) (ALJ DeBernardi) On cross motions for summary judgment, date of injury for determination of minimum compensation rate shall be date of disability. UNCATEGORIZED VERMONT WORKERS’ COMPENSATION UPDATE OCTOBER TO DECEMBER 2020 BY KEITH J. KASPER, ESQ. JANUARY 11, 2021 LORIE FLYNN Effective 1/1/21 Claimant’s can require the carrier to pay their weekly indemnity benefits pursuant to direct deposit. DOL is also now requiring all medical records or Forms e-mailed to the Department to be encrypted Holbrook v. Kennametal Inc (II), Opinion No. 16-20WC (Oct. 6, 2020)(ALJ DeBernardi). After mediation parties reach a settlement, with MSA submitted to CMS. Claimant objects to MSA alleging it is underfunded in the amount of $4,700 over remaining lifetime for certain medications, and therefore Claimant refuses to sign Form 16 and Settlement Addendum thereon. Defendant’s Motion to Enforce Settlement Agreement denied as no executed Form 16 approved by Commissioner. “As an injured worker can rescind a fully executed Form 16 Agreement prior to the Commissioner’s approval, I see no reason why he or she cannot rescind a proposed agreement at an earlier stage in the process. Further, ordering Claimant to sign the Form 16 Agreement only to allow him to rescind it after signature would be pointless. The law does not require a futile act.” Fitzgerald v AE MacKenzie, Inc., Opinion No. 17-20WC (Oct. 20, 2020) (ALJ Brown) Pro Se Claimant fails to have treating doctor testify at formal hearing. “Without the benefit of {treating physician’s] sworn testimony, and with no opportunity to allow her to explain how a corrected factual account of Claimant’s injury history might affect her analysis, I cannot attach any weight to Dr Henley’s causation opinions.” Also, claimant not entitled to TTD benefits as not taken out of work until after terminated from employment for reasons unrelated to her injury and Claimant fails “to demonstrate a causal connection between [her] work injury and the disability.” Brochu v Peck Electric Inc., Opinion No. 18WC (No. 4, 2020)(ALJ DeBernardi) Claimant’s testimony found not credible so claim for compensable back injury denied. “I have rejected Dr. Gennaro’s opinions that Claimant suffered a back injury when he landed on his buttocks, or that he suffered a back injury working in the solar fields, as those opinions were based on factual misunderstanding. His other two opinions depend on Claimant’s credibility concerning his alleged persistent back pain since the roof incident and the alleged stumbling incident.” Gallo v. Costco, Opinion No. 19-20WC (Nov. 22, 2020) (ALJ De Bernardi) Claimant’s claim for TTD benefits post resignation on March 19, 2019 and subsequent to her May 29, 2020 surgery denied. ALJ finds Claimant left work for reasons unrelated to her work injury so no entitlement for TTD benefits after leaving work. Claimant’s exit interview did not mention work injury as contributing to her departure while written exit questionnaire does relate departure to injury. No attempt to return to work thereafter. No earnings in 26 weeks prior to surgery, and ALJ determination that wage loss did not result from work injury, bars claim for TTD benefits as no wages to replace. Ali v University of Vermont, Opinion No. 202-20WC (Dec. 15, 2020)(ALJ Brown) Unwitnessed, late reported injury found compensable as Claimant’s testimony found credible “on substantially all material and contested factual issues.” Claimant’s IME as to causation found supported, but Defendant’s IME as to MER and impairment accepted. Marden v. Carrols LLC, Opinion No. 21-20WC (Dec. 15, 2020)(ALJ DeBernardi) Claimant’s IME doctor’s opinion found credible as to both causation and a 15% spinal impairment. Defendant’s IME opinions relating symptoms to a “somatoform disorder lacks a solid foundation. Although he credibly testified about some non-organic findings, those findings do not necessarily rule out a physical injury. Further, there is no credible factual basis for his testimony that Claimant suffered childhood abuse or that she engages in self-destructive behavior.” UNCATEGORIZED VERMONT WORKERS’ COMPENSATION UPDATE APRIL TO JUNE 2019 SEPTEMBER 19, 2019 LORIE FLYNN DEPARTMENT OF LABOR Souligny v. PB&J, Inc. (Souligny III), Opinion No. 7-19WC (Apr. 9, 2019)(ALJ DeBernardi) Claimant determined not to be PTD as she rejected VR benefits and has a full-time sedentary to light duty work capacity. Claimant also found not entitled to mileage reimbursement for pool exercise related to her work injury. “Claimant has not met her burden of proving that her self-directed use of a swimming pool constitutes medical treatment for purposes of the mileage reimbursement rules, nor has she provided reasonable documentation of her mileage to and from the pool.” McNall v. Town of Westford, Opinion No. 8-19WC (May 10, 2019)(ALJ Brown) Claimant’s treating physician did not satisfy burden of proof that proposed back surgery was causally related to 2015 accepted work injury. “The temporal gap between Claimant=s fall and his seeking treatment for back pain, combined with his lifetime of arduous physical labor, make the affirmative inclusion and exclusion of alternative trauma sources essential to the causation analysis in this case.” This does not mean that the Defendant’s IME doctor’s opinion was more persuasive. “On the one hand, her analysis of Claimant’s medical chronology was thorough and helpful in illuminating alternative causes that may have contributed to Claimant’s spinal condition. On the other hand, her speculative attacks on Claimant’s credibility and her incorrect assumptions about his activity tolerance when his pain was undisputedly at its worst highlight the epistemic limitations of evaluating the honesty of subjective pain complaints medical records review.” Hall v. Safelite Group, Inc., Opinion No. 9-19WC (May 14, 2019)(ALJ DeBernardi) Claimant with CRPS found to be PTD despite earlier FCE finding work capacity. “Although Mr. Alexander’s functional capacity evaluation identified a limited part-time work capacity, Dr. Horton’s work restrictions and Dr Bucksbaum’s description of Claimant’s CRPS condition convincingly establish that Claimant has no reliable and safe work capacity. Further, [vocational experts] testified that Claimant has exhausted vocational rehabilitation services and cannot reasonably be expected to return to regular, gainful employment. No vocational rehabilitation professional testified to the contrary….” West v. North Branch Fire District #1, Opinion No. 10-19WC (June 11, 2019)(ALJ DeBernardi) 2014 Statutory Amendment to 21 VSA 644(a)(6) (changing “incurable imbecility” to “severe traumatic brain injury causing permanent and severe cognitive, physical or psychiatric disabilities”) determined to be a substantive change not a procedural change and thus cannot be applied retroactively to injuries arising prior to the amendment. While has unintentionally “the Vermont Legislature’s stated intent was not to change the substance of existing law, … words by their very nature have meaning and effect…. [B]y deleting the ‘imbecility’ language and replacing it with new language, the Legislature changed the substance of 21 V.S.A. ‘644(a)(6). ” However, Defendant’s Motion for Summary Judgment denied as disputed facts exist in this matter. UNCATEGORIZED VERMONT WORKERS’ COMPENSATION UPDATE OCTOBER TO DECEMBER 2018 JANUARY 10, 2019 LORIE FLYNN by Keith Kasper Esq. VERMONT SUPREME COURT DECISION Martel v. Connor Contracting Inc., 2018 VT 107 (Oct 12, 2018)(AJ Carroll) Return to the Kittell specific intent to injure standard for exclusion to exclusivity doctrine for WC Act. Claimant falls off roof alleges substantial certainty of injury when Supervisor allegedly takes safety device off job site to use on another job site. “We hold that under Vermont law, an injured employee must show specific intent to injure. Exclusivity protections extend to co-employees and owner of company as “the duty to provide a safe workplace is a non-delegable corporate duty and the presence or absence of the [safety device] is part of the safe workplace equation.” Robinson and Reiber concur in mandate but argue that given the facts of the case it is “unnecessary … to readopt the specific-intent standard set forth in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).” DEPARTMENT OF LABOR DECISIONS Bergeron v. City of Burlington, Opinion No. 14-WC( Oct. 15, 2018)(ALJ Brown) Claimant starts treatment for mental injuries in May of 2016 and diagnosed with PTSD in March of 2017. In October of 2017 Claimant suffers a work-related back injury and files a claim for PTSD in January of 2018. On Defendant’s motion for summary judgment firefighter’s claim for PTSD governed by prior statute of unusual and extraordinary stress for similarly situated employees as Claimant discovered psychological injury and relationship to work prior to statute change on 7/1/17. Statutory amendment is substantive not procedural, thus applied prospectively not retroactively. Alternative theory that the portion of the statutory amendment giving a presumption of compensability for PTSD diagnosed within three years of injured employees last active date of employment means no claim can be made under the new statute for this presumption until 7/1/20. Omerovic v. University of Vermont Medical Center, Opinion No. 15-18WC (Nov. 13, 2018)(ALJ Brown) Ruling on treating mental health care provider’s motion to quash subpoena to testify in deposition. Department requires treating PA as to her evaluation of Claimant for PTSD. Both Claimant and Defendant supported subpoena. Department rules she must attend at reasonable time and place a be compensated for her time but she is not being forced to testify as an “Unretained Expert” in violation of V.R.C.P. 45 (c)(3)(B)(ii). Abraham v. Mountain Communities Supporting Education, Inc., Opinion No. 16-18WC (Dec. 19, 2018)(ALJ DeBernardi) Both parties cross motions for summary judgement denied. Claimant injured falling down stairs at home 4 hours after the end of her work day. Claimant alleges she fell due to the weight of carrying a safe up her stairs that she had used earlier in the day for a video shoot for her employer showing safe methods for storing prescriptions at home. Defendant alleges Claimant fell from non-work-related vertigo. ALJ finds: “Having considered the undisputed facts relevant to time, place and activity, I conclude as a mater of law that Claimant’s January 31, 2018 injury was sufficiently linked to her employment to have occurred in the course of it.” However, insufficient evidence showing that the injury arose out of the employment as “there are genuine issues of material fact as to the cause of Claimant’s fall and the role, if any, that her idiopathic conditions might have played. These facts are material because an unexplained fall is generally compensable, but an idiopathic fall is generally not.” Huang v. Progressive Plastics, Inc., Opinion No. 17-18WC (Dec. 21, 2018)(ALJ Brown) Defendant’s motion for summary judgment is approved as evidence supports finding that current complaints are related to previously settled 2014 injury and 2016 Settlement Agreement covers all future arising “natural sequella” of the 2014 work injury. Current claim for neck benefits not mentioned in prior settlement, but Claimant fails to bring forth any evidence “that Claimant’s neck injuries probably resulted from his work activities.” Thus, “Claimant has not established a genuine issue of material fact as to whether his current neck complaints are causally related to his 2018 alleged lifting activities.” UNCATEGORIZED VERMONT WORKERS’ COMPENSATION UPDATE JULY TO SEPTEMBER 2018 OCTOBER 30, 2018 LORIE FLYNN by: Keith J. Kasper VERMONT SUPREME COURT DECISION Martel v. Connor Contracting Inc., 2018 VT 107 (Oct 12, 2018)(AJ Carroll) Return to the Kittell specific intent to injure standard for exclusion to exclusivity doctrine for WC Act. Claimant falls off roof alleges substantial certainty of injury when Supervisor allegedly takes safety device off job site to use on another job site. “We hold that under Vermont law, an injured employee must show specific intent to injure. Exclusivity protections extend to co-employees and owner of company as “the duty to provide a safe workplace is a non-delegable corporate duty and the presence or absence of the [safety device] is part of the safe workplace equation.” Robinson and Reiber concur in mandate but argue that given the facts of the case it is “unnecessary … to readopt the specific-intent standard set forth in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980).” DEPARTMENT OF LABOR DECISIONS Samson v. Central Vermont Medical Center, Opinion No. 11-18WC (July 5, 2018)(ALJ Phillips) Claimant voluntarily terminated Vocational Rehabilitation benefits then tried to reopen them three weeks later to which the Defendant objected. “Because Claimant rescinded her prior request to terminate vocational rehabilitation services in a timely manner and with no resulting prejudice to Defendant, I conclude that she is entitled to resume” Vocational Rehabilitation benefits. [Note proposed VR Rules would allow Claimant to rescind prior closure request within 6 months of closure.] Souligny v. PB&J Inc., Opinion No. 12-18WC (Aug. 24, 2018)(ALJ Brown) Defendant’s motion for summary judgement as to unsupervised pool therapy denied. Unsupervised pool therapy found to be medical treatment despite the lack of “medical records.” “However, requiring records of exercise sessions to be in a particular form or from a particular source before considering them ‘medical treatment’ would conflate the questions of whether a given activity is treatment and whether a given treatment is reasonably documented.” Claimant’s treating physician remains involved in Claimant’s medical treatment and “[h]is records show that he repeatedly checked on her progress and tolerance of pool exercises, made specific recommendations concerning their frequency, and identified ‘self-directed pool therapy’ as a ‘long range goal.’” Deuso v. Shelburne Limestone Corp., Opinion No. 13-18WC (Sept 14, 2018)(ALJ Debernardi). Denying Defendant’s motion for summary judgment on statute of limitations, intent to injure another, and termination for cause, but granted as to hernia claim for lack of supporting evidence. The intent to injury defense requires “an intent to injure not merely an intent to make physical contact, and second, a deliberate state of mind, rather than an impulsive one. Statute of limitations for tinnutus because “‘The time period does not begin to run until claimant, as a reasonable person, should recognize the nature, seriousness and compensable character of his injury or disease.” (Quoting Larsons). Bergeron v. City of Burlington, Opinion No. 14-18WC( Oct. 15, 2018)(ALJ Brown) Claimant starts treatment for mental injuries in May of 2016 and diagnosed with PTSD in March of 2017. In October of 2017 Claimant suffers a work-related back injury and files a claim for PTSD in January of 2018. On Defendant’s motion for summary judgment firefighter’s claim for PTSD governed by prior statute of unusual and extraordinary stress for similarly situated employees as Claimant discovered psychological injury and relationship to work prior to statute change on 7/1/17. Statutory amendment is substantive not procedural, thus applied prospectively not retroactively. Alternative theory that the portion of the statutory amendment giving a presumption of compensability for PTSD diagnosed within three years of injured employees last active date of employment means no claim can be made under the new statute for this presumption until 7/1/20. VERMONT WORKERS' COMPENSATION NEWSLETTER VERMONT WORKERS’ COMPENSATION UPDATE APRIL TO JUNE 2018 JULY 10, 2018 LORIE FLYNN By: Keith J. Kasper, Esq. VERMONT SUPREME COURT DECISIONS Perrault v. Chittenden County Trans. Auth., 2018 VT 58 (June 1, 2018)(J. Caroll) Court upholds Commissioner’s decision that mileage reimbursement does not equate to wages for purposes of determining employer-employee relationship. “Put simply, a reimbursement makes the recipient whole, but is not an earning – that is, the reimbursement is not a gain to the recipient.” Differentiates Lyons v, Chittenden Central Supervisory Authority, 2018 VT 26 by showing that in the instant matter there were no wages. “The Commissioner’s reasoning on this point makes explicit what our prior decisions have made implicit, and we therefore adopt the rule that employment under the first prong of the statutory definition requires wages as they are defined for workers’ compensation.” VERMONT DEPARTMENT OF LABOR DECISIONS Holbrook v. Kennametal, Inc., Opinion No. 7-18WC (May 21, 2018)(ALJ DeBernardi) Claimant with upper extremity injury found not to be PTD. Claimant’s treating physician found Claimant permanently disabled, but “did not testify that Claimant was permanently and totally disabled. As the term suggests, there are two separate prongs to a permanent total disability determination. First the disability must be permanent, as opposed to temporary. Second, it must be total as opposed to partial.” (Emphasis in original). Furthermore, Claimant did not exhaust his VR services prior to the formal hearing. “In short, there are additional vocational services that may benefit Claimant, but only if he engages fully, and participates actively, in the process.” Bergeron v Rock-Tenn Co., Opinion No. 8-18WC (May 23, 2018)(ALJ Phillips). All doctor’s opinions as to causation found wanting, but compensability found primarily on the “strong temporal relationship between [low back pain] and the work injury. Given the well-documented new event, combined with a relatively unremarkable prior history, as to Claimant’s specific complaints of low back pain I conclude that the evidence is sufficient to establish work-related causation.” “I reach the opposite conclusion as to Claimant’s lower extremity symptoms, however. Notwithstanding Claimant’s hearing testimony, I remain unconvinced that these complaints arose as soon after his July 2013 fall as his experts assumed. From the evidence presented, I am also unsure whether Claimant’s prior history of lower extremity numbness is at all relevant to his more recent presentation. Absent clarification on this issue, I must reject the analysis that Claimant’s expert proffered as incomplete.” Claimant’s IME expert’s opinion as to permanent impairment for the cervical spine found :the most persuasive. Considering the waxing and waning nature of low back pain generally, Dr White’s rating better accounts for Claimant’s ongoing symptoms.” Clark v. Blair Farm Maple Products, Inc., Opinion No. 9-18WC (ALJ Phillips & Brown)(June 12 2018). Claimant found not to be an employee of Defendant. “I conclude from the credible evidence that Claimant was a volunteer who gratuitously offered his assistance to Mr. Barber in a personal matter unrelated to Defendant’s business operations. Under these circumstances, Claimant’s efforts were those of a volunteer not an employee.” VERMONT WORKERS' COMPENSATION NEWSLETTER VERMONT WORKERS’ COMPENSATION UPDATE JANUARY TO MARCH 2018 APRIL 9, 2018 LORIE FLYNN VERMONT SUPREME COURT Lyons v Chittenden Central Supervisory Union, 2018 Vt 26 (Mar. 16, 2018) In three way split decision, Court reverses Commissioner=s decision finding that a student teacher is in fact an employee of school for WC purposes, remands for determination of benefits including AWW calculation. The plurality decision written by Justice Dooley and supported by Chief Justice Reiber concluded that: “If this were a case where the loss of the educational opportunity were not so directly tied to the ability to obtain a license to practice a profession, we would conclude that the question of whether the lost advantage could be estimated in money would require separate factual development so that summary judgment would be inappropriate. Where, however, the loss of the educational program equates to a loss of the license to practice a profession, we can say as a matter of law that the value of the lost advantage can be estimated in money.” Justice Robinson, concurring in the result only of the plurality opinion argued for a broader interpretation: “I would reverse on the ground that claimant is a statutory employee under the workers’ compensation laws because she worked under apprenticeship with the Chittenden Central Supervisory Union.” Justice Eaton and Justice Skoglund dissented arguing that: “First, I do not believe an employer-employee relationship exists in the absence of the ’employee’ receiving wages; whatever benefits claimant received from her student teaching experience were not quantifiable remuneration, and thus were not wages…. Regardless of whether the value of training or certification can be estimated in monetary terms, claimant could not receive, and was not intending or expecting to receive, her teaching certification from CCSU….. The plurality acknowledges the ‘grand bargain’ underlying workers’ compensation. Yet, this Court’s decisions continue to chip away at the bargain so that only one side of it, the employer’s liability without regard to fault, would be recognizable today to those who crafted it. The other side of the bargain, a liability for employers that is limited and determinate, has become a vacuous mantra.” VERMONT DEPARTMENT OF LABOR Daniels v Ronald Corliss, Opinion No. 1-18WC (Jan. 4, 2018)(ALJ DeBernardi) On Defendant’s Summary Judgment Motion, pro se Claimant=s claim barred on grounds of statute of limitations and laches. “Claimant alleges that he suffers from chronic headaches casually related to the June 25, 1995 accident. His headaches became reasonably discoverable and apparent by approximately June 25, 1996. Applying the six-year statute of limitations that was in effect in 1996, I conclude that Claimant had until June 25, 2002 within which to initiate a proceed for workers’ compensation benefits relating to his injuries.” Defendant also satisfied the affirmative defense of laches given the 22 year delay by Claimant in filing this matter as Defendant “no longer has a clear memory of the June 1995 accident or its surrounding circumstances, nor does he have his business records from that time. Moreover due to the passage of time, he cannot effectively investigate the circumstances underlying Claimant’s allegations; even obtaining the contemporaneous medical records would be burdensome or impossible.” Bartlett v. Trapp Family Lodge, Inc., Opinion No. 02-18WC (Jan. 31, 2018)(ALJ DeBernardi) Claimant denied claim for PTD benefits with a work capacity of two hours per day three days per week. “Based on [the VR Counselor’s] reports, I find [Claimant’s] testimony to be an inaccurate summary [of her VR efforts]. In particular, I find that they did not determine that there were no jobs for her, but rather services were suspended while she pursued additional medical treatment. Due to the suspension of services, [VR Counselor] did not complete his vocational assessment, and Claimant has received no additional assessments or services…. No vocational rehabilitation counselor has used the [functional capacity] evaluations to explore what work she might be able to do. Thus, I am unconvinced that she has no reasonable prospect of finding and sustaining regular, gainful employment.” Darby v. W.E. Aubuchon Co., Inc., Opinion No. 3-18WC (Feb. 13, 2018)(ALJ Phillips) Claimant found to be PTD. Defendant attempted to terminate Claimant’s opioid treatment which, after adjustments by Claimant’s treating physician was found to comply with DOL standards. Defendant also denies individual psychotherapy as not being reasonable and necessary medical treatment. “Though I acknowledge Defendant=s right to contest its obligation to pay for treatment it believes is unreasonable. I am dismayed nonetheless at its response to claimant=s request for psychotherapy in this case. I share Defendant’s concern that opioid medication have neither decreased her pain nor increased her function effectively as anyone would hope. But to advocate for removal of the only pain management tool she currently has at her disposal, while simultaneously refusing to embrace a reasonable alternative, is callous and inhumane.” Crowe v. The Fonda Group, Opinion No. 4-18WC (Mar. 2, 2018)(ALJ Phillips) Claimant had a 2001 work related injury with an employer which went out of business in Vermont shortly thereafter. Claimant had follow-up medical appointments in 2015 for the original work-related injury which caused her to lose time from work in order to attend those medical appointments. Claimant sought an order from the Commissioner requiring the workers’ compensation carrier to compensate Claimant for that lost time instead of her current employer. The Commissioner rejected that argument holding that “The Commissioner’s interpretation of ‘6408 as expressed in Hathaway [v. S.T. Griswold & Co., Opinion No. 04-14WC (Mar. 17, 2014)] rests on a solid foundation, now buttressed by a legally promulgated rule. Claimant’s arguments to the contrary notwithstanding, I can discern no basis for reconsidering or reversing it.” LaHaye v. Kathy=s Caregivers, Opinion no. 05-08WC (Mar. 27, 2018)(ALJ DeBernardi) Claimant’s hip injury found compensable by testimony of treating physician over that of IME doctor’s opinions. No evidence of waiver defense when Defendant paid for diagnostic testing to determine if pain coming from contested hip condition as opposed to accepted low back claim. Hall v. Safelite Group, Inc., Opinion No. 06-18WC (Mar. 29, 2018)(ALJ Phillps) Medical marijuana found to constitute reasonable medical treatment for Claimant’s CRPS diagnosis but found not compensable pursuant to VT WC Act. “Vermont’s medical marijuana statute was enacted in 2004. The landscape has changed significantly in the years since. Medical marijuana is now legal in more than half the states, and Vermont recently became the ninth state to legalize the use of recreational marijuana as well. Changes may also be afoot at the federal level, though it remains difficult to discern what direction those will take. It seems inevitable that state and federal policy regarding legalization will eventually coalesce. When that occurs, the uncertainty that now exists as to insurance coverage for medical marijuana will likely be resolved. Until then, and particularly given the shadow cast by the federal Justice Department’s most recent enforcement guidance, the specific language of 18 V.S.A. ‘447c(b)(4) permits only one result. Notwithstanding that Claimant’s use of the drug is medically appropriate, necessary and therefore reasonable under 21 V.S.A. ‘640(a), I cannot compel Defendant to reimburse him for his medical marijuana purchases.” ARBITRATION DECISIONS Jarvis v Burlington Food Service, (Jan. 17, 2018) (R.Cain Arbitrator) In preliminary ruling on multi party Agg v Rec issue, Arbitrator bars middle carrier from arguing recurrence based upon lack of prosecution of original arbitration in 2011 and lack of rebuttal of original carrier’s filing with the Department in 2013 in response to second carrier=s filing of Form 22 with escape clause language that “this matter is concluded from our end and that [second carrier] is relieved of any further responsibility/liability in this matter.” Underlying claim between second and third carrier on agg v rec issue to continue. VERMONT WORKERS' COMPENSATION NEWSLETTER VERMONT WORKERS’ COMPENSATION UPDATE OCTOBER TO DECEMBER 2017 JANUARY 10, 2018 LORIE FLYNN VERMONT SUPREME COURT DECISIONS Diamond v. Burlington Free Press, 2017 VT 93 (Oct. 6, 2017). Reversed Commissioner’s opinion finding no bar to claim for additional permanent impairment as claim not a time barred modification of 2004 PPD award as original Form 22 did not cover new impairment. “Barring the claim based merely on the generic reference to claimant’s ‘cervical spine’ ignores a material portion of the agreement -namely, the medical report upon which it was based – and is the sort of ‘medieval literalism’ we have warned against in previous workers’ compensation cases.” Court also dismisses Employer’s argument that allowing claim “will lead to potentially endless liability for employers” citing to limited liability protections in the Act and the Employer’s ongoing liability for medical benefits regardless of any bar to additional permanency benefits. DEPARTMENT OF LABOR DECISIONS Brosam v United Parcel Service, Opinion No. 14-17WC (Oct. 20, 2017)(ALJ Phillips). Rejection of treating physician’s causation opinion as to opposing body party overuse syndrome in favor if IME doctor’s opinion that “even in a case where a patient’s arm is amputated, the other shoulder does not normally break down, because people do not typically use their bodies to maximum capacity. Thus he testified, the development of opposite side pathology due to overuse is ‘very unusual.’ I find this analysis credible.” Also rejected Claimant’s attempt to distinguish Lydy v. Trustaff, Inc., 2013 VT44 due to the fact that in the instant case health insurance premiums were paid by Defendant not some other employer as in Lydy. “[T]he Court’s determination that it is better left to the legislature to engage in a ‘robust… debate’ prior to changing longstanding policy is as defensible a rationale today as it was in Lydy.” Liberty v. Town of Richmond, Opinion No. 15-17WC (Nov. 29, 2017)(ALJ Phillips) Claimant seeks recalculation of Form 32 based upon exclusion of weeks in which Claimant took some vacation or sick leave in the 26 weeks prior to the work injury. “[O]nly the sick or holiday pay attributable to weeks during which Claimant was unable to work for more than one-half of his normally scheduled hours are properly excludable from his average weekly wage and compensation rate calculation.” No laches defense allowed as no prejudice found given that the information had previously been available to Defendant. “Any prejudice it now claims was of its own doing, not Claimant’s.” Form 22 allowed to be modified as a mutual mistake of fact, not law. “These were factual errors grounded in incomplete data. They were mutual as well- although either party might have discovered the true facts, neither did.” Interest awarded only since interim order in 2016, not from incorrect Form 32 in 2010, and given the unique circumstance of the case, “it would be inequitable to impose any late payment penalty.” Vohnoutka v Ronnie=s Cycle Sales of Bennington Inc., Opinion No. 16-17WC (Dec. 8, 2017)(ALJ Phillips). Pro se Claimant fails on third attempt to obtain TTD, PPD and certain medical benefits with summary judgment granted on behalf of Defendant. However, while both Defendant’s IME and Claimant’s treating physician “have now diagnosed Claimant’s behavior as malingering, without further testimony as to what each intended by that characterization, I am unwilling to consider this an absolute bar to future treatment.” Claimant also fails to produce credible medical evidence sufficient to “establishing his disability from working ‘in any capacity'” “Claimant has now tried- and failed- to establish a claim for temporary total disability benefits arising out of his February 22, 2013 cervical spine injury on three separate occasions. Given the passage of time, and considering the factors that have resulted in adjudications against him in the past, I anticipate that it will be even more difficult for him to establish a future claim for temporary disability benefits referral to the same injury. With that in mind, I encourage Claimant, in the strongest possible terms, to focus his energies instead on returning to work.” BH v. State of Vermont, Opinion No. 17-17WC (Dec. 22, 2017)(ALJ De Bernardi) Claimant’s claim for mental injury denied. “The evidence here does not establish a causal relationship between Claimant’s work stress and her psychological condition. Accordingly whether analyzed as a physical-mental claim or a mental-mental claim, her claim fails in either event. Moreover, even if she had established a causal relationship, she has also failed to prove that her work stress was extraordinary when compared to similarly situated employees performing the same or similar work.” 2017 amendment to statute changing standard for mental-mental injuries not applied as a substantive change in the law and the injury herein occurred prior to the change in the statute. VERMONT WORKERS' COMPENSATION NEWSLETTER VERMONT WORKERS’ COMPENSATION UPDATE JULY TO SEPTEMBER 2017 OCTOBER 3, 2017 LORIE FLYNN Argentina Kearney, WC Specialist II is leaving the Department VERMONT SUPREME COURT DECISIONS Clayton v. J.C. Penny Corp, 2017 VT 87 (Sept. 22, 2017). Reversing Commissioner’s decision that general release settlement language was void against public policy and thus relieving Claimant of the effects of the Agreement. Absent allegations of fraud or material mistake of fact, Commissioner’s authority in this matter is limited by Section 662(a) “the only consideration to be made is whether it is in the claimant’s best interests and the Commissioner is given latitude to make that determination only at the time of the initial approval of the settlement agreement.” Case remanded to determine whether claimant’s left- and right-foot injuries are causally related. Haller v. Champlain College, 2017 VT 86 (Sept. 29, 2017). Split decision upholds Commissioner’s determination that value of tuition free college credits earned in the 26 weeks prior to the work injury are included in Average Weekly Wage calculation for permanency benefits as a “other advantage” as set forth in the statute 21 V.S.A. §601(13). Justice Skoglund dissents: “Including in the calculation of weekly wage any fringe benefits that are not paid in lieu of wager or are not an explicit substitute for wages will create a morass that will overwhelm employers and the workers’ compensation system.” Justice Eaton also dissents citing to Lydy v. Trustaff, Inc. 2013 VT 44 which rejected including health insurance premiums paid in the Average Weekly Wage calculation as not remuneration, similar analysis would apply to free college tuition as not remuneration but rather a fringe benefit. DEPARTMENT OF LABOR DECISIONS Collette v. Hannaford Bros. Co., Opinion No. 12-17WC (Sept. 1, 2017)(ALJ Phillips). Claimant’s treatment after September 2015 “when his previously stable low back condition acutely worsened negated his prior August 2012 medical end result determination. The course of treatment upon which he embarked thereafter was not merely palliative, but rather carried with it the expectation of significant medical improvement. It culminated in the October 25, 2016 radiofrequency ablation procedure which at the time it was contemplated “In most cases, an injured worker attains the point of end medical result only once-he or she reaches a plateau following treatment and does not treat or become disabled again. Not every case follows this path, however. Even after reaching an end medical result, an injured worker’s condition might still worsen to the point where additional curative treatment becomes necessary, and along with it, an additional period of temporary disability.’ “[T]o the extent that Claimant was still functionally restricted from full employment as a consequence of his work injury after September 1, 2015, and until such time as he reached an end medical result, he was once again eligible for temporary total disability compensation.” Green v. Oldcastle, Inc., Opinion No. 13-17WC (Sept. 27, 2017)(ALJ DeBernardi). Defendant’s Motion for Summary Judgment denied as material issue of fact in dispute as to whether Claimant had a fixed place of employment when he was injured on his way to a construction site. Fact that Claimant paid for portion of travel time when injured not determinative of compensability as Defendant argues payment mere inducement to encourage employees to work at far flung locations. VERMONT WORKERS' COMPENSATION NEWSLETTER VERMONT WORKERS’ COMPENSATION UPDATE JULY TO SEPTEMBER 2016 SEPTEMBER 22, 2016 LORIE FLYNN Erica Mongeon of Waterbury, Vermont, was hired as the new WC Administrative Assistant B for the Workers’ Compensation Program otherwise known as the “voice” of the Department position, replacing Ellen Gonyaw who moved to Maine. Jane Woodruff has stepped down as Administrative Law Judge. The Department is currently interviewing candidates for her replacement. Julie Charonko, long, long, long time WC Specialist II, is retiring from the Department and moving to Florida. We wish her well! UNITED STATES DISTRICT COURT Adecco USA Inc. V Colombia Forest Products, Inc., Case No. 2:15-cv-25 (July 8, 2016)(Judge Sessions) On Cross Motions for Summary Judgment, Columbia Forest Products successfully defends indemnification argument by Adecco the temporary hiring agency for the injured employee injured in the course of working at Columbia Forest products. Court found no express indemnification language in the contract between Adecco and Columbia Forest Products and implied indemnification language fails as well. “Because the parties’ contractual arrangement essentially required CFP to pay for workers’ compensation as part of the mark-up it paid to Adecco, there is no viable equitable argument that it would now be fair to shift the cost of [the injured workers’] workers compensation benefits to” Columbia Forest Products. VERMONT SUPREME COURT DECISION Conant v. Entergy Corp. 2016 VT 74 (J. Eaton July 8, 2016) Court overrules Commissioner’s determination and reiterates holding of Yustin v Department of Public Safety, 2011 VT 20 to allow for credits against TTD benefits for payments made by employer pursuant to a collective bargaining agreement for short term disability. “[A]n employer complies with the Act when a claimant ‘receive[s] full and direct payment of wage replacement from the employer during the disability period.’” Justices Robinson and Dooley dissent arguing that: “Absent statutory authority for applying an offset, the Commissioner has no authority to offset statutory workers’ compensation benefits to account for transactions between employer and employee that took place outside of the workers’ compensation proceedings. The majority’s holding that not only authorizes, but apparently requires, the Commissioner to so as a matter of law is inconsistent with our ordinary deference to the Commissioner on such matters, expands the Commissioner’s responsibilities beyond her statutory authority and expertise, undermines the private contracts, introduces unnecessary complexity into the calculation of workers’ compensation benefits, and expands this Court’s prior decision on the subject far beyond its rationale and holding.” Bindrum v American Home Assurance Co. 2016 WL 4446533 (unpublished Entry Order)(August 19, 2016). Claimant sues MSA Vendor alleging the MSA was undervalued. Court upholds trial court’s summary judgment ruling finding that “plaintiff had produced no evidence of any economic damage sustained due to the alleged undervaluation of the MSA. Nor could he, reasoned the court, because any inadequacy in the MSA would harm only Medicare, which had indicated that it would cover any shortfall- not plaintiff. According to the court, as long as the MSA was approved by CMS, plaintiff had no cause of action….” DEPARTMENT OF LABOR DECISIONS Hall v. Safelite Group, Opinion No. 10-16WC (July 15, 2016)(ALJ Phillips). Defendant ordered to pay for teeth extraction and dentures which were not injured in work accident but necessary for treatment of Claimant’s work-related injury and the “replacement teeth are both medically necessary and vocationally advantageous.” Commissioner adopts the “ancillary treatment” principle which requires Defendant to pay for non-work related medical treatment if “effective treatment of a compensable injury requires ancillary treatment for an otherwise non-work-related condition…. I stress the fact-specific nature of my determination, however. Here, the evidence is support is both clear and undisputed. In another case, the nature of the ancillary treatment at issue, the extent to which it is medically necessary as a condition precedent to treating the work injury, and/or the injured workers’ previously established plan to undergo it might dictate a different result.” Meunier v. The Lodge at Shelburne Bay Real Estate LLC., Opinion No. 11-16WC (July 27, 2016)(ALJ Woodruff). Claim compensable even though Claimant unable to articulate how or why she fell. “Cases involving unexplained falls, as Claimant alleges occurred here, also may trigger positional risk analysis. The neutral force that caused the injury to occur in these cases is simply unknown. The situation is often confused with, but is entirely distinguishable from, so-called ‘idiopathic’ injury cases, in which the medical evidence establishes that the injury resulted for a purely persona condition and therefore is not unexplained…. In truly unexplained fall cases, most courts have awarded benefits notwithstanding the claimant’s inability to prove that the cause of the fall was directly connected to the employment. Instead, they have applied positional risk ‘but for’ reasoning to satisfy the ‘arising out of’ component of compensability….. But for the employment and Claimant’s position at work, her injury would not have occurred as it did. Lacking any evidence of an idiopathic cause for her fall, I am left with one of two conclusions- either it was work-related, or it was unexplained. Under Vermont law, either cause is sufficient to establish compensability.” Hilliker v. Synergy Solar Inc., Opinion No. 12-16WC (Aug. 9, 2016)(ALJ Woodruff). Dispute as to where Claimant was hired Vermont or Massachusetts. Claimant injured in Massachusetts in 2015 and collects WC benefits pursuant to MA WC Statute. Claimant wants to collect pursuant to VT WC Act instead. Claimant found to be hired in Vermont. “Defendant confuses the last act essential to the making of the hiring contract – Claimant’s assent to its terms – with actions which were triggered once she did so, such as completing federal tax and homeland security forms. Had Claimant been injured on her first day at the Sheffield work site, there is no doubt that her injury would have been compensable notwithstanding that she had not yet submitted the forms that [Employer] had requested. These documents may have evidence her hiring, but they did not in anyway create it.” “[B]ecause Claimant was hired in Vermont, jurisdiction lies here under 21 V.S.A. §619, and second, that neither the Full Faith and Credit Clause [of the United State Constitution nor principles of comity, waiver and/or estoppel bar her claim for a supplemental award here. So long as any such award is consistent with the facts underlying her Massachusetts claim, and provided that Defendant is allowed full monetary credit for the benefits it already has paid, she is free to proceed in this forum.” Clayton v. J.C.Penny, Opinion No. 13-16WC (Aug. 24, 2016)(ALJ Woodruff) Pro se Claimant settled on a full and final basis for compensable left foot injury but Settlement Addendum included language purporting to release Defendant, Insurance Carrier and TPA from “any and all” claims. Subsequently Claimant makes claim for right foot condition which she alleges arose out of her employment with Defendant but separate and distinct from the left foot injury. Commissioner holds that “a release that purports to cover not only injuries arising form a pending claim, but also those that might arise from completely unrelated causes at any time during the injured worker’s employment is impermissibly broad. It undermines the employer’s incentive to manage its risk appropriately, and absolves it from responsibility for protecting its employees from work-related harm. Because it thus violates critical public policy objectives, it is void.” Commissioner allows factual determination to see if right foot injury arose out of settled left foot injury (which would be barred by the settlement agreement) or some other non-covered incident which would allow Claimant to proceed with the litigation. Haller v. Champlain College Corp., Opinion No. 14-16WC (Aug. 24, 2016) (Belcher ALJ). Tuition free college credits utilized by claimant in the 26 weeks prior to her injury included in AWW calculation for permanency benefits award, but not for TTD benefits as Claimant continued to receive them while on TTD. Refusing to extend Lydy analysis barring health insurance benefits from being included in the AWW calculation to facts of this case. “If there are broader policy implications, these may be addressed by the legislature.” Chartrand v. General Electric Aviation, Opinion No. 15-16WC (Aug. 24, 2016)(Belcher ALJ) Defendant denies claim based upon physician’s report on causation. At subsequent deposition, physician now agrees with treating physician “that Claimant’s current condition represents the natural progression of her compensable 1990 and 2003 work-related injuries, without any contribution form non-work-related causes or events, Defendant’s only issue in this case evaporated.” Summary judgment prior to formal hearing was granted to Claimant with an award of attorney fees and costs. Lamont v Agri-Mark Inc., Opinion No. 16-16WC (Sept. 16, 2016)(ALJ Phillips) Dispute over causation of Claimant’s shoulder condition, Claimant’s IME doctor found more credible then Defendant’s IME doctor based upon third factor (“clarity, thoroughness and objective support underling the opinion”) of the five part Geiger test for determining which of the competing medical opinions was more persuasive. Posts navigation 1 2 NEXT → Sign Up For Our Newsletter Your Email Vermont Bar Journal - 2015 Summer Issue ARCHIVES July 2021 January 2021 September 2019 January 2019 October 2018 July 2018 April 2018 January 2018 October 2017 September 2016 January 2016 October 2015 July 2015 April 2015 January 2015 October 2014 CATEGORIES Uncategorized Vermont Workers' Compensation Newsletter 4 0 G e o r g e S t , B u r l i n g t o n , V T 0 5 4 0 2 · T : ( 8 0 2 ) 8 6 3 - 3 4 9 4 · F : ( 8 0 2 ) 8 6 5 - 9 7 4 7 · website by Mike Brayton