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Workers' Compensation

Vermont Workers’ Compensation Update: April to June 2016

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

McCormick, Fitzpatrick, Kasper & Buchard, PC

 

 

Argentina Kearney has joined the Department of Labor staff as a Workers’ Compensation Specialist II starting May 16, 2016.  Ms. Kearney has most recently been employed with the Montana State Fund, where she served as a Workers’ Compensation Claims Examiner.

Form 28 COLAs due July 1 with increase of 2.8% with new minimum rate of $420 and new maximum rate of $1,259. Also recall that pursuant to the new WC Rule 8.2010 Form 28s must now also be filed with the Claimant.

Comment period for the proposed new WC Rules involving Opiate treatment, Attorney Fee rates and Vocational Rehabilitation provider rates ends on July 14.

DEPARTMENT OF LABOR DECISIONS

Goodrich v Fletcher Allen Health Care, Opinion No. 6-16WC, 2016 VT Wrk. Comp. LEXIS 2 (Lexis Advance), 2016 VT Wrk. Comp. LEXIS 2 (lexis.com) (Apr. 11, 2016) (ALJ Woodruff)

Claimant exercises statutory right to videotape entire neuropsych test over objections of Defendant’s expert that such videotaping would render the test results unreliable and compromise the proprietary nature of the written test materials. ALJ rules that video recording through one way mirror or behind the examinee “[t]hough perhaps not perfect, these steps represent an effective compromise between the examinee’s rights and the examiner’s need for valid test results.... In addition, in order to protect the prorpietary nature of the test materials, I conclude that it is reasonable to prohibit Claimant from disclosing the video recording to anyone (including her attorney) other than directly to another qualified expert neuropsychologist.” Claimant failed to give 3 “full business” days notice of intent to videotape and thus Claimant is liable for late appointment cancellation fee of $1,600. Defendant not allowed to suspend benefits alleging that Claimant failed to attend the IME when she failed to give adequate notice of her intention to videotape the exam.

Kendrick v. LSI Cleaning Service Inc., Opinion No. 7-16WC 2016 VT Wrk. Comp. LEXIS 3 (Lexis Advance), 2016 VT Wrk. Comp. LEXIS 3 (lexis.com) (May 2, 2016) (ALJ Phillips)

Claimant not found to be at medical end result as continuing to improve with PT despite three prior unsuccessful PT modalities. No TTD award for period of time when Claimant canceled PT for unknown reasons. Permanency awarded based in part upon Claimant’s IME’s opinion, and also in part on Defendant’s IME opinion as to impairment.

Cook v Precis Manufacturing, Opinion No. 8-16WC (June21, 2016) (ALJ Woodruff)

Claimant’s testimony and treating physician’s opinions found more credible then IME doctor’s opinions given inaccurate understanding by IME doctor of nature of injury. Claimant not succeed on burden of proof in interpreting AMA Guides as to whether radial styloid can be added to impairment rating following arthroplasty of carpal bones in wrists. AMA Guides Table 16-27.

Flood v Feed Commodities, Inc., Opinion No. 9-16WC (June 29, 2016) (ALJ Phillips)

Claimant’s claim for broken leg arising out of his work for Defendant found compensable over Defendant’s allegations of fraud. “In fact , it is Defendant’s version of events that I find implausible. For me to accept its account, I must conclude that Claimant, his wife, his sister and possible his mother as well conspired together to defraud his employer. They would have had only 17 minutes-... to concoct their story, presumably with him directing the effort whole lying on the ground in severe pain. They would have had to do so notwithstanding, his understanding that the Defendant’s video surveillance system was fully operational....” Claimant’s fact witnesses claim of Attorney client privilege upheld given allegations of fraud and potential legal ramifications thereon for these fact witnesses. Claim for attorney fees reduced by 10% given Claimant’ counsel’s “unfamiliarity with Vermont’s workers’ compensation law and process...” on a $31,987 attorney fee request.

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

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