WC Rule 27, requiring mediation between the parties prior to a formal hearing went into effect on August 31, 2009. This rule generally follows mandatory mediation rules in existence in liability matters in Vermont and is designed to assist in the resolution of claims prior to their reaching a formal hearing.
WC Specialist II Luanne Biron has retired after over 30 years of government service to the Vermont Department of Labor.
Hearing Officer Dimotsis will also be leaving the Department on October 9, after three years as the administrative law judge for contested WC matters. Most of this time was spent as the sole Hearing Officer for all formal hearings in the WC system for the State of Vermont.
We wish them both well in the future
VERMONT SUPREME COURT DECISIONS
Stamp Tech, Inc. v. Lydall/Thermal Acoustical, Inc., 2009 VT 91 (Sept. 4, 2009).
"Without expressing an opinion as to whether we would entertain plaintiff's invitation to adopt some form of a substantial certainty exception to the Vermont Workers' Compensation Act's exclusive remedy provision... superior court erred in granting [employer] summary judgment...." Court remands for further factual development "on the issue of intent or substantial certainty." "Intent must often be inferred form a party's acts, and where intent is a dispositive issue, courts should exercise caution in granting summary judgment." Justices Burgess and Skoglund in dissent argues that: "[T]he majority now holds that prima facie intent to injure is made out, not by evidence of specific intent to injure, but by evidence that an employer knows that a machine is inevitably dangerous.... Thus, the majority adopts a liberal version of a 'substantial certainty of injury' exception to the exclusive remedy of workers' compensation, but fails to explain how this employer's injurious maintenance practices differ form 'wanton, willful, deliberate, intentional, reckless... or malicious negligence' not exempted from the Act's coverage. This is a major amendment to a statute which is not ours to rewrite." (citations omitted). The dissent goes on to point out that "by substituting evidence of apparent inevitability of dangerousness in place of specific intent to injure required under Kittell, the majority's analysis renders many, if not most or all, machine-induced workplace injuries subject to tort action, rather than workers' compensation."
Kaputsa v. Vermont Department of Health, 2009 VT 81 (2009).
Supreme Court upholds Commissioner's decision allowing apportionment in cases where injured claimant did not receive workers compensation benefits for pre-existing permanent impairment. However, Court also upholds Commissioner's discretion in not applying it to the instant case "Because '[c]laimant was not at all limited prior to her work injury' and 'would not be limited or in pain at all if not for her work injury aggravating the condition.'"
VERMONT DEPARTMENT OF LABOR DECISIONS
Claimant suffers from a compensable hernia injury and then 1 1/2 years later complains of back pain causally related to original work injury of which he has suffered all along. Commissioner finds Claimant has not met his burden of proof in this matter due to lack of concurrent medical records documenting back pain and Claimant failure to note back pain himself on pain drawing.
R. Jandric v. Danforth Pewterers, Opinion No. 25-09WC (July 8, 2009).
Cross motions for summary judgment denied as Superior Court's Harness v. Therrien Foundations, docket No. 557-11-05Wrcv found not to be binding precedence overruling Commissioner's previous holdings that lack of work for 12 weeks prior to onset of disability forecloses any award of TTD benefits as Claimant's AWW would thus be $0. Defendant's motion for summary judgment denied as disputed issues of fact need to be resolved on matter.
Claimant suffers a compensable traumatic brain injury while working at home. Subsequently laid off as part of employer generalized layoff. Commissioner determines that Claimant not entitled to TTD benefits after layoff as lay off unrelated to work injury and claimant unable to show continued unemployment caused by work injury when Claimant draft self-employment business plan to do same job and receive grant funding for same and not do significant work search and not tell those prospective employers that she had a work injury. Claimant was entitled to TPD benefits for wage loss following work injury but before lay off.
Defendant initially contested compensability of claim and during contest, Claimant utilized sick leave benefits and employer sponsored private health insurance to pay expenses related to work injury. Following informal conference and interim order thereon, Defendant paid Claimant WC benefits by reinstating sick leave and all associated taxes and retirement benefits thereon and reimbursing health providers directly. Claimant contested that this is an assignment of his WC benefits in violation of WC Act section 681. Department rules that as Defendant is self-insured for WC, no assignment exists and following other administrative rules in reimbursing sick leave. Department reiterates prior ruling that medical reimbursement not payable to Claimant, but rather responsibility of Defendant to reimburse appropriate party.
IME doctors opinions based upon medical research as to non-work-relatedness of carpal tunnel for only the most repetitive jobs rejected as work only needs to contribute to the work injury to make it compensable.
Claimant had pre-existing WC back injury which claim resolved by Form 22 back in 1990. However, all paper files destroyed and no record of extent of impairment paid to Claimant back in 1990, so no mandatory apportionment of impairment. Claimant's IME doc uses AMA Guides DRE methodology to determine original impairment then uses the range of motion methodology to determine current impairment of 6% due to multiple injuries to same spinal area. Employer's IME doc relies opines that no impairment arises by using both ratings pursuant to the DRE methodology opines that no injury due to second incident thus no need to utilize ROM methodology. Apportionment allowed due to Claimant's pre-existing problems and work limitations as a result of prior back injury.
Ainsworth v. Wolcott Store, Inc., Opinion No. 30-09WC (Aug. 11, 2009).
Twisting /lifting injury found to have caused avascular necrosis of hip. Treating physician's opinion found more credible than that of IME doctor. TTD benefits terminated however prior to Claimant's return to work due to delay in work recovery due to non-work-related surgery to opposite hip.
Interest award modified on physical permanency portion of previous award to stop at date check tendered for permanency even though refused by Claimant. Psychological permanency interest to run from date of medical end result even though Claimant not rated for permanent psychological impairment until almost three years later.
Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (Aug. 12, 2009).
Claimant has extensive pre-existing problems including fibromyalgia and depression and family issues resulting in her only working part-time at time of slip and fall work injury. Claimant's program at DHMC reasonable medical treatment even if it did not result in benefits hoped for, thus postponing determination of MER. "Nor does the fact that the program ultimately may have been unsuccessful at improving Claimant's function to any appreciable extent change this result. The reasonable necessity of further treatment must be evaluated as of the time it is proposed, not in hindsight." However, IME doc's permanency rating found most reasonable due to lack of verifiable objective signs of radiculopathy, resulting in a 0% impairment rating or DRE 1. Defendant's Vocational Rehabilitation expert's opinion resulting in denial of vocational rehabilitation services was found more compelling than Claimant's VR expert because Defendant's expert's opinion "was based on a comprehensive review of her work experience and included direct correspondence with her employer as to the requirements of her pre-injury job."
Alden v. FAHC, Opinion No. 32-09WC (Aug. 21, 2009).
Self-insured Employer files summary judgment motion seeking determination that Claimant's claim for back condition is time barred or, in the alternative prior WC insurer barred from asserting liability on employer due to doctrines of laches, waiver or estoppel. Factual dispute exists as to whether Claimant timely informed her supervisor and timely filed a claim for benefits within 6 years of alleged date of injury so as to defeat summary judgment motion. six month notice provision in 21 V.S.A. § 656 inapplicable to intercarrier disputes. On basis of undisputed fact, 6 year statute of limitations has not run against carrier's claim against employer. Waiver, estoppel and laches arguments may be successful in third party coverage dispute but inappropriate in instant forum whereby granting such motion could result in Claimant entitled to WC benefits, "but no responsible employer or carrier from which to collect them. This would be manifestly unfair and I cannot allow it."
J. New v. Conway Central Express, Opinion No. 33-09WC (Aug. 28, 2009).
Spinal cord stimulator found not compensable despite treating doctor's opinion in support thereon because: "Not only did Dr. Ross fail to review Claimant's pertinent medical history in its entirety, but also he may have been misled by Claimant, who was not as forthcoming as perhaps he should have been." Pro se Claimant does succeed on extending MER date as IME doctor's opinion "premature" until DHMC had determined Claimant not a candidate for spinal cord stimulator. Future narcotic pain medications not reasonable and necessary. Videotape of Claimant unloading lumber reviewed by doctors all of whom conclude that "Claimant demonstrated significantly grater physical capabilities and appeared to be in significantly less pain in the videos than what he had exhibit in the course of his office visits with each of them."
S. Farnham v. Central Vt. Hosp., Opinion No. 34-09WC (Aug. 28, 2009).
Despite having paid for broken ankle TTD and medical bills since 2006, Department rules in favor of Defendant that Claimant fails in her burden of proof that fall down stairs was caused by compensable shoulder injury. IME doc opinions found more persuasive than those of treating doctor, but too many factual issues as to why Claimant fell really results in decision in favor of Defendant. Defendant's request for reimbursement of payments made as result of interim order requires briefing and more factual support prior to decision thereon.
S. Daignault v. VT Economic Services Div., Opinion No. 35-09WC (Sep. 3, 2009).
Defendant's IME report supersedes that of treating surgeon on compensability of CTS claim. Despite job invovling use of hands for 95% of job, variety of tasks involved and no forceful gripping so IME opines not work-related due to change in medical literature which no longer supports finding of compensability. Treating doctor's opinion on compensability based primarily upon temporal relationship.
Commissioner denies Claimant's motion for award of attorney fees on remand form Superior Court. At original hearing, Claimant won one of three issues litigated to formal hearing and was awarded 50% of requested attorney fees. Following Jury verdict, the Claimant won on one of the remaining issues on appeal. Thereafter, Claimant filed motion at the Department requesting remaining 50% of Attorney fees from original litigation before the Department. Commissioner distinguishes Vermont Supreme Court rulings in Electric Man v. Charos, 179 Vt. 351 (2006) and Sargent v. Town of Randolph, 2007 VT 56 (2007) in denying Claimant's request for additional 50% of fees requested below.
"I do not read these cases Claimant cites so expansively. In Electric Man the Supreme Court admonished the trial court against viewing a lawsuit between a contractor and a homeowner as 'a series of discrete claims,' but most workers' compensation actions involve exactly that - a series of separate and distinct claims for separate and distinct statutory benefits. When the same core facts give rise to clearly distinguishable benefit entitlements, as happened here, it is within the discretion granted by §678(a) to fashion an attorney fee award with those results in mind.
Nor does the Supreme Court's holding in Sargent preclude such a result. Sargent stands only for the proposition that the Commissioner is obligated to exercise the discretion granted by §678(a) in ruling on a request for attorney fees following a successful trial or appeal of a claim that initially had been denied at the formal hearing level. Sargent, 2007 VT 56 at ¶ 15. By no means does it mandate that that discretion no longer exists.
In exercising that discretion, I cannot ignore the fact that even after her appeal, Claimant still was not successful on all of her claims. I conclude that the fees already awarded remain appropriate."
L. Sweetser v. Vermont Country Camper, Opinion No. 36-09WC (Sept. 25, 2009).
Claimant's IME doctor's found more credible than the treating doctors in part to treating doctor's failure to render his opinions with the requisite level of medical certainty. Hernia resulting from physical therapy following work-related injury found compensable. Department continues prior methodology f rating hernia impairments previously set forth in Estabrook, and Knapp-Bowen for an award of 9% impairment. AWW determined by commissions earned in the twelve weeks preceding the work injury. COLA adjustments for permanency benefits determined beginning on date of termination of TTD benefits not as of date of finding of MER.
D. Karabegovic v. Monahan SFI, Opinion No. 37-09WC (Sep. 29, 2009).
IME doctors' opinions of non-compensable somataform pain diagnosis not accepted over that of treating physician's opinions as: "Not only is there no support for this analysis in Claimant's prior medical history, but it rests primarily on the results of psychological testing that is suspect given what must have been a significant language barrier." TTD benefits restarted retroactive to June 15, 2007 and ongoing.
C. Lushima v. Cathedral Square Corp., Opinion No. 38-09WC (Sep. 30, 2009).
Claimant, a Congolese refugee, has a compensable shoulder injury, then becomes involved in an altercation with US Border patrol agents further damaging her shoulder. Both treating and IME doctors agree that altercation aggravated old compensable workers' compensation injury or caused new injury to her shoulder. Causal link to work-related injury severed "if a claimant knowing of certain weaknesses arising from the primary injury, 'rashly undertakes activities likely to produce harmful results.'" Furthermore, Claimant barred from additional indemnity benefits as she signed a Form 22 which was then approved by the Department despite her allegation that she did not understand the ramifications of doing so. "To allow her to rescind it unilaterally, however, would result in an untenable loss of certainty as to what constitutes a binding, enforceable contract, not only to pay workers' compensation benefits but also to accept them."
This newsletter is written by Keith J. Kasper. Reprinted with permission.