This list of recent noteworthy cases was compiled by Keith J. Kasper of McCormick, Fitzpatrick, Kasper & Buchard, PC.
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DEPARTMENT OF LABOR DECISIONS
Lehneman v. Town of Colchester, Opinion No. 10-12WC, 2012 VT Wrk. Comp. LEXIS 11 (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."
Touchette v Vermont Slate and Roofing, Opinion No. 1-12WC, 2012 VT Wrk. Comp. LEXIS 5 (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, 2012 VT Wrk. Comp. LEXIS 2 (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, 2012 VT Wrk. Comp. LEXIS 1 (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 causal 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, 2012 VT Wrk. Comp. LEXIS 4 (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, 2012 VT Wrk. Comp. LEXIS 3 (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, 2012 VT Wrk. Comp. LEXIS 8 (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, 2012 VT Wrk. Comp. LEXIS 9 (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, 2012 VT Wrk. Comp. LEXIS 13 (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, 2012 VT Wrk. Comp. LEXIS 12 (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).
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).
DEPARTMENT OF LABOR DECISIONS
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 1999 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. 34A-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 does 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 additional evidence so as to cross the threshold from speculation to probability."
Written by Keith J. Kasper. Reprinted with permission.
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