Vermont Workers' Compensation Update: July to September 2012

DEPARTMENT OF LABOR DECISIONS

Westover v North Country Hospital, Opinion No. 19-12WC (July 20, 2012).

Claimant found to have CRPS, therefore not at medical end result. Defendant's IME opinions undercut in part due to lack of review of complete medical record. Furthermore, Defendant "waived the right to contest responsibility for the medical complications that developed subsequently" to an accepted fusion surgery. "Had it wanted to question the reasonableness of that treatment, it should have done so before the surgery occurred, not many months afterwards." Claimant's low back condition caused by her compensable foot injury due to her altered gait resulting from the compensable foot injury. Claimant leaving area for family reasons did not negatively impact her claim for TTD benefits.

McGinness v OWL Int'l, Opinion No. 20-12WC (Aug. 10, 2012).

Claimant's treating physician's opinion found more credible than that of IME expert even though treating physician agrees with IME doctor's new diagnosis which treating physician "with the benefit of hindsight, acknowledged that he himself had noted findings indicative of the condition, but had failed to connect the dots."

Morrisseau v. Hannaford Bros., Opinion No. 21-12WC (Aug. 10, 2012).

Claimant's treating physician's opinions as to new treatment modalities (ultrasound guided cortisone injections and platelet rich plasma injections) found more persuasive then IME doctor's opinions even though treating physician had not read entire medical file of Claimant. As Claimant requires additional potentially curative treatment, she is not at MER for her work injury.

Waters v. Commonwealth Dairy, Opinion No. 22-12WC (Aug. 28, 2012).

Claimant's venous stasis ulcer neither caused by nor aggravated by his employment with Defendant.  Defendant's IME opinion found more credible than that of Claimant's treating physician as IME doctor had better understanding of Claimant's actual job duties. While "Claimant's ulcer may have worsened during the period during which he worked for Defendant, these is insufficient credible evidence to establish either his job duties or his work environment as the cause of such exacerbation." Exacerbation more likely caused by Claimant's non-compliance with treatment including continued smoking.

Veillette v. Pompanoosuc Mills Corp., Opinion No. 23-12WC (Sept. 14, 2012).

Claimant's treating physician's opinions found more credible then those of IME doctors for ongoing medical pain management treatments resulting from 2004 work injury. However, Claimant presented with insufficient evidence to support physical therapy an chiropractic treatment regimens. "I will not give carte blanche approval for [chiropractic] treatment that Claimant has not recently pursued absent more persuasive evidence regarding its efficacy in this case."

Plante v. Vermont Agency of Transportation, Opinion No. 24-12WC (Sept. 14, 2012).

Determination of date of injury for purposes of determining average weekly wage. "In prior decisions, the commissioner has at times held that the 'date of injury' in this context is not the date upon which the injury itself occurred, but rather the date upon which it became disabling. In other cases, the average weekly wage calculation has been based solely on the date when the injury and its relationship to the employment became reasonably discoverable and apparent, regardless of when it first became disabling. In all cases, the commissioner has applied the analysis that best incorporates the statutes' intent with respect to indemnity benefits - to replace wages lost as a direct result of a compensable injury."

ARBITRATION DECISIONS

Larson v. Norwich University, Bill Skiff Arbitrator (Aug. 29, 2012)

All five of Trask factors favor determination of aggravation even though low back pain had never disappeared his condition had clearly stabilized and then made destable by work-related conditions five years later.

This newsletter is written by Keith J. Kasper. Reprinted with permission.

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