Vermont Workers' Compensation Update: January to March 2013

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DEPARTMENT OF LABOR HEARING DECISIONS

LeClaire v. Ford of Brattleboro Inc., Opinion No. 1-13WC [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 [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 [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 [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 [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) [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 [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 [Opinion No. 16-13WC] (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 [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 [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 [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 how 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 [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 exhibited from 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.

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

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