Workers' Compensation

Vermont Workers' Compensation Update: October to December 2014

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

McCormick, Fitzpatrick, Kasper & Buchard, PC

 

 

The long awaited proposed re-write of the VT WC Rules has been unveiled and will be ready for public comment soon.

DEPARTMENT DECISIONS

Shaffer v First Choice Communications, Opinion No. 15-14WC (Oct. 21, 2014)(HO Phillips).

Claimant’s request for Synvisc injections found reasonable and necessary medical care relying on doctor’s opinion who is supplying the injections since 2012 over those of IME doctor. “While [IME Doctor’s] concerns as to the efficacy of Synvisc injections when used ‘off label’ are worth noting, I do not consider them determinative in this case.” PTD claim denied relying upon IVE which found that “if Claimant avails himself of additional vocational rehabilitation services such as tutoring, access to assistive technology and focused job development, it is reasonable to expect that he will be able to resume regular gainful work.”

Simmons v Landmark College, Inc., Opinion No. 07F-13WC (Oct. 23, 2014)(HO Woodruff)

On remand from successful Superior Court Appeal, Claimant awarded attorney fees and costs at DOL rate ($145/hour for attorneys and $75/hour for paralegals) and only for those costs associated with DOL hearing, not those incurred at Superior Court..No statutory basis for an award of interest on attorney fees and thus none awarded.

Rodrigue v Enterprises Precision Inc., Opinion No. 16-14WC (Nov. 4, 2014)(HO Woodruff)

Voc Rehab denied at this point in time as Claimant is back to work, may become available in the future if current employment is no longer suitable. “As the circumstances of this case demonstrate, at times the concept of suitability involves more than merely comparing pre-and post-injury wages earned, or hours worked, during discrete snapshots in time. The goal of vocational rehabilitation is to return the injure worker to work that resembles, as nearly as possible, the conditions of his or her pre-injury employment. Where the pre-injury job involved consistent hours at a consistent weekly wage, a simple mathematical comparison will determine whether a post-injury job is suitable or not. However, where, as here, the pre-injury job involved widely fluctuating hours resulting in widely fluctuating weekly wages, a broader perspective is required.” Claimant is entitled to TTD of TPD benefits for those weeks in which he earned less that his AWW even though his co-workers were also working less given the seasonal nature of the job.

Moreton v State of Vermont Department of Children and Families, Opinion No. 17-14WC (Dec. 24, 2014)(HO Phillips).

Claimant slips and falls upon entering a Starbucks to meet co-workers to travel to a training session. Injury found compensable on cross-motions for summary judgment. The fact that injury occurred a half hour prior to her scheduled start of work time does not sever connection to work.

Also, meeting at a Starbucks was not a personal or substantial deviation as for the day of the injury, Claimant was a “traveling employee”.

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

For more information about LexisNexis products and solutions connect with us through our corporate site.