Vermont Workers' Compensation Update: July to September 2011

Vermont Workers' Compensation Update: July to September 2011

DEPARTMENT OF LABOR DECISIONS

Rowell v. Northeast Kingdom Community Action, Opinion No. 17-11WC (July 8, 2011).

Claimant is not entitled to PTD for his February 2007 back injury under the "odd lot" doctrine.  Claimant's medical experts testified that his work injury aggravated a preexisting low back condition, whereas Defendant's medical expert testified that Claimant's condition has returned to its pre-injury baseline and did not objectively worsen as a result of the work injury.  Claimant's medical experts are more credible because they include his primary care provider from prior to the work injury.  In addition, credible objective evidence establishes that Claimant's condition worsened appreciably as a result of the February 2007 work injury.  However, although Claimant's May 2009 FCE results indicated that he lacked even a sedentary work capacity, Defendant's medical expert "presented a more credible assessment of Claimant's work capacity, one that will accommodate sedentary work on at least a part time basis."  Defendant's VR expert also suggested that Claimant has vocational options even at his current level of functioning.  "It is Claimant's burden of proof to show that in his labor market area no viable vocational options exist for a person of his physical abilities, his limitations and his transferable job skills.  As the vocational exploration process has just begun, I am as yet unconvinced that this is the case."  With respect to PPD, Claimant's medical expert rated him with an 8% whole person impairment while Defendant's expert found no impairment.  I conclude that Claimant's medical expert is more credible and that Claimant suffered an 8% whole person impairment.  Claimant's primary care provider could not recall prescribing a reclining lift chair for Claimant as a result of his February 2007 injury, however, so Claimant is not entitled to reimbursement for the chair.  Because Claimant has partially prevailed, he shall have 30 days to submit evidence of his allowable costs and attorney fees.

Matheny v. Best Food Baking Co., Opinion No. 18-11WC (July 19, 2011)

Defense IME opinion undercut by failure to review day of injury emergency room record, so Commissioner sides with treating physician and finds Claimant's shoulder claim compensable. Claimant fails in claim for TTD benefits as he continued to pay himself a salary from his business. "A claimant cannot receive a wage and temporary total disability benefits at the same time." Claimant's second shoulder surgery also found compensable "as second surgery cannot be attributed to his failure to complete physical therapy, and likely would have occurred regardless." Attorney fee award to be prorated pursuant to degree of success achieved by Claimant.

Lewia v. Stowe Motel, Opinion no. 19-11WC (July 25, 2011).

Defendant's IME found more persuasive then Claimant's IME that Claimant had a work capacity and thus failed in her obligation to perform a good faith job search. 

Puric v. Dunkin Donuts, Opinion No. 20-11WC (July 29, 2011).

Claimant's video surveilled activities inconsistent with claimed disabilities thus Claimant's entitlement to future WC benefits is forfeited. 21 V.S.A. §708(a).

Boutin v. Unite Parcel Service, Opinion No. 21-11WC (Aug. 8, 2011).

Claimant's IME expert opinion found more persuasive then Defendant's IME opinion that Claimant's cervical spondylitic myelopathy from a compensable injury occurring five years earlier resulted in compensable three level fusion.

Collins v. State of Vermont, Opinion No. 22-11WC (Aug. 9, 2011).

Question as to compensability of Claimant's hip condition, Claimant's doctor found more persuasive than Defendant's IME doctor as IME doctor "admitted that his review of Claimant's medical records was not 'totally comprehensive'" Form 27 filed for failure to attend noticed deposition not justified by either the statute nor the WC rules nor the facts of this case.

Drew v. Northeast Kingdom Human Services Opinion No. 23-11WC (Aug. 31, 2011).

Claimant's claim for PTD benefits as Claimant's condition likely to improve if she were to participate in a functional restoration program and further vocational rehabilitation efforts may assist her in finding "suitable gainful employment." Claimant is found entitled to additional TTD, medical and vocational benefits thus a partial award of relevant costs and attorneys fees.

Brucker v. Ethan Allen Interiors Inc., Opinion No. 24-11WC (Aug. 31, 2011).

Claimant's treating physician's opinions found more persuasive than Defendant's IME opinions. IME doctor's reliance upon non-testifying witness statements found "unpersuasive as well, not only because there is no way to judge the credibility of witnesses who do not testify, but also because I have found Claimant to be credible in his description of how the incident occurred."

Rowell v. Northeast Kingdom Community Action Opinion No. 25-11WC (Aug. 31, 2011)

Claimant's post hearing motion for attorney fees  and costs. Claimant's costs awarded except for one minor issue. Atty fees award on a 60%-40% allocation. "For Claimant's attorney to allocate only fifty percent of her pre-hearing, hearing and post hearing hours to the issue upon which claimant failed to prevail is questionable." Atty fees awarded at $145/hour for work performed after effective date of statute change on June 15, 2010.

Pelissier v. Hannaford Bros., Opinion No. 26-11WC (Sept. 9, 2011).

Claimant's fusion surgery found reasonable and necessary based upon treating orthopedic's opinion prevailing over that of the IME doctor. Claimant's claim for "the value of Defendant's contributions to his group health insurance premium should be included in his average weekly wage and compensation rate calculations"  rejected as the Commissioner finds such benefits not included in the statutes inclusion of "other advantages" to be included in an injured employee's wage calculation. The Commissioner also elicited significant policy concerns with this proposal: "The change for which Claimant advocates could dramatically impact the delicate balance that the workers' compensation act seeks to maintain between employers and employees. It has the potential to increase significantly an employer's workers' compensation insurance premium, which might act as a disincentive for offering any employer-paid group health insurance coverage at all. At the same time, it might complicate the wage calculation process to the point where the injured worker's right to timely benefits is compromised. Considerations of this magnitude are best debated and decided in the legislature, not here."

Ashley v. R.E. Michel Co., Opinion No. 27-11WC (Sept. 20, 2011).

"I concur with Claimant's and Defendant US Fire's assertion that there has not yet been adequate time for discovery to be completed, and that therefore, summary judgment is premature."

Montague v. Tivoly, Inc., Opinion No. 28-11WC (Sept. 22, 2011).

Treating surgeon's opinions found more credible then IME doctor's opinions as to both causation and reasonableness of fusion surgery. "The conclusions she drew from Claimant's clinical exam and diagnostic studies were confirmed by her surgical findings and therefore objectively supported. That Claimant improved thereafter provides further corroboration."

Otero v. Woodstock Inn & Resort, Opinion No. 29-11WC (Sept 29, 2011).

An unwitnessed 2005 injury found compensable. "Claimant credibly testified, however, as to the two co-workers who assisted him immediately thereafter, and Ms. O'Connell credibly testified that she observed his injuries, which were obvious the next day. Defendant offered no evidence to rebut either of these accounts. Without such rebuttal testimony, I am satisfied that Claimant in fact fell as he said he did in Defendant's kitchen."

Keith Kasper 

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

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