Vermont Workers' Compensation Update: June to September 2013

Vermont Workers' Compensation Update: June to September 2013

This list of recent noteworthy cases was compiled by Keith J. Kasper of McCormick, Fitzpatrick, Kasper & Buchard, PC.

McCormick, Fitzpatrick, Kasper & Buchard, PC




Lisa Brassard, WC Specialist II has left the Department to work for another agency within the State of Vermont.


Hawley v Webster Trucking Corp., Opinion No. 18-13WC (August 9, 2013).

Claimant found to be PTD: “As the Commissioner observed in Moulton, it would be a harsh result to deny an injured worker’s claim for permanent total disability benefits solely because the possibility exists, however, slight, that he or she might someday find a job. The standard required by Rule 11.3100 is what is reasonably to be expected, not what is remotely possible.”  Assisted living facility payments approved due in part to Claimant’s risk of fall and subsequent injury thereon and due to the loss of Claimant’s private home. Defendant objects in part due to the fact that the assisted living facility provides services in excess of those solely medically necessary for Claimant’s condition including laundry housekeeping and cooking. “[I]t is a pointless exercise to argue whether Claimant could or could not receive an equally appropriate level of case ina private home setting rather than in an assisted living facility. Defendant might just as easily argue that if Claimant had sustained a different injury, he would not require any home health or nursing assistance at all. The fact is that Claimant has no private home in which to live. ‘If wishes were horses, beggars would ride’, an old English proverb admonishes. The workers’ compensation statute confers rights and responsibilities according to existing circumstances, not fictional alternatives.”

Plante v. State of Vermont Agency of Transportation, Opinion No. 19-13WC (Aug. 22, 2013).

Claimant found to have left his concurrent employment with the Vermont National Guard due to the work related injury, thus these wages are included in the AWW calculation. Relying upon Claimant’s expert witness, Department concluded that Claimant’s 2011 staph infection related to 2005 work-related injury.

Duffy v. Sisler Builders, Inc., Opinion No. 20-13WC (Aug. 28, 2013).

Claimant’s request for TTD benefits denied as he was not working in the applicable time frame prior to the onset of his total disability. “When an injured worker has not earned any wages at all during the weeks preceding a period of total disability, it is appropriate to question whether he or she is entitled to wage replacement benefits. Unless the evidence establishes that the failure to earn wages was the result of an injury-related consequence rahte that a personal choce, ion most cases no benefits will be due.

Goodwin v. American Gas Propane, Opinion No. 21-13WC (Sept. 10, 2013).

Claimant’s need for total knee replacement found to be result of aggravation of pre-existing condition. “Claimant’s pre-existing osteoarthritis had been completely asymptomatic until the work injury caused a specific, objectively verifiable new trauma to the joint, resulting in immediate, ongoing pain, swelling and loss of function. Under these circumstances, it is not necessary to guess when, if ever, Claimant would have come to knee replacement surgery had the work injury never occurred. It is enough to know that as a consequence of the work injury, he came to it sooner than he otherwise would have.”

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

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