Vermont Workers' Compensation Update: January to March 2014

Vermont Workers' Compensation Update: January to March 2014

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

McCormick, Fitzpatrick, Kasper & Buchard, PC

 

 

Chadwick Best an Attorney from Michigan will be filling the vacant Specialist II position at the Department

SUPERIOR COURT DECISIONS

Marshall v State of Vermont, Dkt. No. 253-4-11Wncv (Feb5, 2014)(J. Toor).
Judge Toor partially overrules Department decision. Supports finding that Claimant not entitled to medical benefits for L4-5 disc herniation and right leg pain supporting Defendant’s IME opinion. Judge rejects both IME doctors opinions as to impairment rating and renders its own rating. Judge also overrules Department decision and allows for reformation of prior 2004 Form 22 based upon mutual mistake of fact of prior impairment rating.

DEPARTMENT DECISIONS

Meau v. The Howard Center, Inc. Opinion No. 1-14WC (1/24/14)(HO Phillips)
Claimant’s shingles found not compensable based upon dueling IME opinions. No Form 27 filed so ongoing TTD benefits required for accepted injuries. 1/3 of attorney fees and no costs awarded as Claimant loses primary issue in dispute before the Commissioner.

Pawley v Booska Movers, Opinion No. 2-14WC (Feb. 19, 2014)(HO Phillips)
Claimant a long distance driver has compensable DVT resulting in pulmonary thrombosis. However, Claimant’s claim for TPD benefits denied as he is losing time form work not as a result of his work injury, but rather due to the nature of the slow season at his employer and his own personal choices to use vacation time instead of working. Claimant does prevail on argument raised in dicta portion of decision that unlike TTD benefits, TPD benefits are not capped at maximum rate. “There is nothing illogical about encouraging an injured worker to return to work as soon as he or she is medically cleared to do so, in whatever limited initial capacity is deemed appropriate. Using temporary partial disability benefits to help subsidize a claimant’s return to part time work is an essential strategy in the workers’ compensation arena, to the benefit of employees and employers alike. (Citation omitted) Were there a cap on temporary partial disability benefits, high wage earners in particular would face a disincentive to returning to work, because doing so would yield no additional financial reward than remaining home. I doubt the Legislature would condone such a result.”

Bohannon v. Town of Stowe, Opinion No. 3-14WC (Feb. 26 2014)(HO Woodruff)
Defendant’s summary judgment motion for statute of limitations defense denied based upon allegation of estoppel by Claimant.

Hathaway v ST Griswold, Opinion No. 04-14WC (Mar. 17, 2014)(HO Phillips)
Defendant’s motion for summary judgment granted. No VR services as Claimant allowed to Claimant when performs job for 5 years even though treating doctors opine “that it would be preferable or beneficial for him to pursue another line of work, neither has ever determined that he lacks the necessary physical capacities to perform the tasks he is routinely assigned in his current job.” “Neither Dr Sargent no any other expert proffered an opinion that, if believed, would establish the compensability of a neurogenically-based erectile dysfunction, however,” Despite “Claimant’s argu[ments] that it is unfair to impose the mandate of §640(c) on an employer who bears no responsibility for the underlying injury.... I conclude as a matter of law that Defendant’s workers’ compensation insurance carrier cannot be held liable for reimbursing wages withheld from the Claimant under §640, and that Claimant’s claim for reimbursement lies, if at all against his current employer.”

Phillips v Orange North Supervisory Union, Opinion No. 5-14WC (Mar. 21, 2014)(HO Woodruff)
Claimant’s IME doctor found more credible in determining impairment than Defendant’s IME doctor when Claimant’s IME exhibited muscle guarding and no muscle guarding at time of Defendant’s IME. No interest awarded on underpaid PPD benefits until TTD benefits terminated.

ARBITRATION DECISION

Wimble v. Green Mountain Coffee Roasters, State File No. X-60513 (Feb. 6, 2014)(Atty B. Skiff Arbitrator)
Recurrence found based upon treating physician’s opinion that Claimant’s “ulnar nerve gradually moved off form the original surgical site and back toward the medial epicondyle. This movement was a continuation of the prior 2006 injury. This movement was not wholly unexpected and is a known disadvantage of the original more superficial 2006 surgical procedure.”

Raymond v SD Ireland Concrete, State file No. T-19436 & BB-01610 (Feb. 26, 2014) (Atty Yates Arbitrator)
Aggravation found. “There is no evidence form the experts or from the documents from which it could reasonably be predicted that a total knee replacement was inevitable or in what time frame. The knee may have been on a gradual, very long downhill course to quote Dr. Weineke, but there is no evidence that a TKR was inevitable. The knee was stable, it was functional for the purposes of doing very heavy labor and, because Claimant is credible in this regard, the knee was ‘great.’”

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

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