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Vermont Workers’ Compensation Update: January to March 2015

April 01, 2015 (7 min read)

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

McCormick, Fitzpatrick, Kasper & Buchard, PC



Julie Mercier of Williamstown, VT, has joined the staff at the Department as a Workers’ Compensation Specialist II.  Ms. Mercier has an Associates of Science as a Paralegal and a Bachelor of Science in Legal Studies, both from Woodbury College.  She also has worked for the law firm of Zalinger Cameron & Lambek, PC, as a paralegal providing support for workers’ compensation and personal injury cases.  Most recently, Ms. Mercier served as a Docket Clerk for the Criminal and Family Court of Washington County, Vermont.

We also regretfully say goodbye to Lisa Brassard WC Specialist II who will be leaving the Department to join the Vermont League of Cities and Towns.

Note to Lexis Online Subscribers: Supreme Court citations link to Lexis Advance. Bracketed citations link to


Smiley v State of Vermont2015 Vt 42 [2015 Vt 42] (Mar. 6, 2015)

In 3-1 split decision, Court upholds Commissioner’s determination that statute of limitations barred claim and statute was not tolled by regulation requiring employers to determine impairment at time of medical end result. Carrier’s agreement to pay for an impairment rating after the statute of limitations had expired did not constitute a waiver as “claimant cannot unequivocally demonstrate an implicit waiver under the circumstances of this case.” Court determines that new regulation requiring carriers to determine impairment at time of medical end result was procedural not substantive and thus could be applied retroactively. “In essence, the commissioner’s decision has expanded equitable estoppel or equitable tolling by reading a critical element out of each so that the employer’s inaction alone allows the limitation period to be suspended forever. This use of equitable doctrine eliminates the statutory limitation period in favor of one created by the commissioner. This is beyond the commissioner’s power.” Case involves unique aspect of small impairment award with large interest award almost twice as large as impairment. “[I]nterest at the statutory rate is a form of penalty imposed on the employer, and if the claimant is not in immediate need for the money, the financial incentive is to delay a claim as long as possible to realize the high rate of interest. We conclude that this is prejudice as a matter of law.” Justice Robinson concurred and dissented from the majority’s opinion. She “emphasize[d] the clear state of our current law ...[that] the notion that a workers’ compensation case is open-ended, and that a claimant may not be statutorily barred from pursuing a claim for benefits years after an injury, and even years after the claim for benefits has arisen, is not particularly shocking or unusual. This is one of the most striking features distinguishing workers’ compensation from its tort-law cousin.” “[T]he Legislature’s elimination of any distinct statute of limitations for permanent partial disability claims renders the majority’s appraisal of the former Rule 18(a) obsolete as it relates to injuries that arose on or after May 26, 2004.”

Marshall v. Vermont State Hospital2015 VT 47 [2015 VT 47] (Mar. 6, 2015)

Reversing and remanding Superior Court decision and finding in favor of Defendant/Appellant. Subsequent disputes as to the propriety of an initial impairment rating is not a basis for determining that a Form 22 can be modified for mutual mistake. “While we conclude here that Dr. Cyr’s allegedly mistaken medical opinion is an insufficient basis for concluding that there has been a material mistake of fact, we decline to hold that an impairment rating can never be the basis for reforming a Form 22 agreement under the material-mistake-of-fact doctrine.”


Bohannon v Town of Stowe, Opinion No. 1-15WC (Jan. 5, 2015)(HO Woodruff)

Claim not barred by Statute of Limitations as equitable estoppel defense by claimant prevails. Hearing officer finds that: “ If [Claimant’s] claim was denied, he would have been seasonably notified and afforded an appropriate opportunity to appeal. Had he not done so within the applicable limitations period, his current claim would likely be time-barred.” Pursuant to the Odd Lot Doctrine, Claimant found to be PTD despite having no formal vocational rehabilitation assessment. “The language of the rule is suggestive, not mandatory, however, and the particular circumstances of this case justify a rare exception. See, e.g., Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009). Although it is Claimant’s burden of proof, Defendant has not proffered any evidence, either from a functional capacity evaluator or from a vocational rehabilitation professional, from which I might conclude that he in fact has any meaningful vocational options.”

Thomas v. Engelberth Construction, Opinion No. 2-15WC (Feb. 6, 2015)

“I do not necessarily equate the requisite finding for issuing and interim order under 21 V.S.A.§662(b)- that the employer’s denial lacks ‘reasonable support’ based upon the record as a whole, see 21 V.S.A. §601(24) - with the finding required for an award of attorney fees under Rule 10.1320- that at the tine it denied the claim the employer had no ‘reasonable basis’ for doing so. Ploof v. Franklin County Sherriff’s Department, Opinion No. 13-14WC (August 8, 2014), citing Yustin [v. State of Vermont, Department of Public Safety., Opinion No. 38-11WC (November 18, 2011).]”

Chase v State of Vermont, Opinion No. 3-15WC (Jan. 28, 2015)(HO Phillips)

Claimant’s treating physician’s opinions found more credible than Defendant’s IME opinion. Vermont Supreme Court’s “heightened burden of proof” in which aggravated symptoms “without a worsening of the underlying disability, does not meet the causation requirement”, (Stanard v. Stannard Co, Inc., 2003 VT 52) found inapplicable in the instant case. “Where the claimant is already suffering from a symptomatic, degenerative condition, it is often impossible to discern whether worsened symptoms during work activities are merely a manifestation of the underlying disease or alternatively, whether the work activities themselves have caused or aggravated it. No such ambiguity exists here, however.”  Claimant’s claim for reimbursement for naturpoathic supplements denied pursuant to statutes 21 V.S.A. §640(a) as “the employer’s obligation does not extend to over-the-counter medication, no matter how effective of necessary they might be.”

Fifield v Heatech Inc., Opinion No. 4-15WC (Feb. 25 2015)(HO Woodruff)

Based upon treating medical providers opinions Sacroliac joint injection is reasonable and necessary medical treatment as opposed to IME doctor’s opinions. “As in so many areas of medical decision-making, the analysis required to make an accurate diagnosis is most oftn a question of quality, not quantity.”

Richards v C&S Wholesale Grocers, Opinion No. 5-15WC (HO Woodruff)(Feb. 27, 2105)

In rejecting IME doctor’s opinion as to causation, Hearing Officer relies, in part, upon Vermont Supreme Court decision in Stannard v. Stannard, 203 VT 52 to determine that the “work injury caused his preexisting L5-S1 pathology to become symptomatic to the point where his associated disability came upon him sooner than otherwise would have occurred.”

Herring v Department of Liquor Control, Opinion No. 6-15WC (HO Phillips) (Mar. 24, 2015).

Claimant had accepted back injury with an alleged 0% permanent impairment and files a claim for compensability determination of shoulder condition. However, Claimant withdrew the claim and six months later files a new claim for 10% permanency benefits based upon the accepted back condition. At the informal level, an interiem order issued against Defendant which pays the full 10% impairment rating. Then Claimant seeks an award of attorney fees. Analyzing the request for an award of attorney fees pursuant to the 2008 amendments to the statute and the 2010 amendments to the WC Rules governing an award of attorney fees at the informal conference level, Commissioner awards most of the attorney fees and all of the costs Claimant had sought in this matter. “[T]he amendments have effectively eliminated employer or insurance carrier delay, unreasonable denial or misconduct as a necessary prerequisite to an award of fees at the informal level. Instead, in appropriate circumstances an award can now be based solely on a finding that but for the attorney’s efforts, the claimant would not have prevailed.... [W]hile the Commissioner retains the authority to award fees when a claim is resolved informally, she is by no means compelled to do so in every case. Exercising that discretion should further the goals of (a) maintaining appropriate standards of employer and adjuster conduct; (b) discouraging excessive and unnecessary attorney involvement; and © encouraging the parties to make effective use of the informal dispute resolution process. With these goals in mind, for example, an award of attorney fees might not be appropriate in a case that would have been amenable to informal resolution but for the attorney’s unnecessarily adversarial posturing. Similarly, where the claimant’s attorney prolongs a dispute by failing to obtain and share critical information promptly and voluntarily, fees will likely be denied. There might be other instances as well where the attorney’s conduct so undermines the informal process as to negate his or her entitlement to an award of fees. And last, there might be claims that are successfully resolved largely as a consequence of the workers’ compensation specialist’s efforts rather than the attorney’s, in which case a fee award might not be justified.”

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

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