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Vermont Workers' Compensation Update: January to March 2016

April 20, 2016 (5 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



The Voice of The Department, Ellen Gonyaw, the receptionist, has retired after almost 9 years to move to Maine to open a campground. We all wish her well and hope she survives black fly season!

Paula Liberty is starting to take cases ending in 8 as the WC Specialist II

At the annual meeting of the College of Workers Compensation Lawyers on March 11, 2016, Todd Kalter became the first Vermont Attorney to be selected for the College’s Board of Directors

The WC Bill redefining Independent Contractors H867 was voted unanimously out of committee, but has not gotten a vote on the House floor.


Morisseau v Hannaford Bros. 2016 VT 17 (Lexis Advance), 2016 VT 17 ( (J. Robinson)

Affirming Commissioner’s grant of summary judgment. Insufficient evidence submitted to support claim that voice recognition system is a medical device not subject to vocational rehabilitation compensability rules. Vocational Rehabilitation Counselor’s letter to DOL stating that Claimant’s two part-time jobs were “not firmly established” enough to justify termination of VR benefits found insufficient to overcome Defendant’s motion for summary judgment terminating VR as Claimant had successfully returned to work.


Lyons v Chittenden Central Supervisory Union, Opinion No. 29-15WC, 2016 VT Wrk. Comp. LEXIS 1 (Lexis Advance), 2016 VT Wrk. Comp. LEXIS 1 (,  (Jan.13, 2016)(ALJ Phillips)

Student intern not an employee for WC purposes. “[T]here are real benefits to the volunteer relationship, both for the individual and for the organization. Nevertheless, the test of remuneration is not whether either or both parties benefit from a volunteer’s activities. The test is whether both parties intended the benefit as “wages.... The days of indentured servitude having long since passed, I accept the more modern definition of the term ‘apprentice’ as the one most appropriately applied here. Nothing in that definition compels me to ignore the element of bargained for remuneration that forms the basis of any employment relationship, whether one of service or of apprenticeship.”

Vohnoutka v Ronnie’s Cycle Sales of Bennington, Inc., Opinion No. 1-16WC (Jan. 25, 2016)(ALJ Phillips).


On Motion for Summary Judgment, Claimant’s claim for TTD benefits barred for the time period prior to December 9, 2014, as Claimant failed to provide any evidence he was totally disabled prior to that date. Claimant’s other claims survive Motion for Summary Judgment. “The sole purpose of summary judgment review is to determine if a genuine issue of material fact exists. If such an issue does exist, it cannot be adjudicated in the summary judgment context, no matter how unlikely it seems that the party opposing the motion will prevail at trial. [citations omitted] However, tenuous or unlikely the evidence in support of Claimant’s claims for medical and vocational rehabilitation benefits are, he is entitled nonetheless to present his case and litigate the fact questions that surround them.”

Wetherby v Blake, Opinion No. 2-16WC (Jan. 25, 2016)(ALJ Phillips)

Commissioner rejects Claimant’s argument that more than 4 weeks of employment are necessary to determine Average Weekly Wage of a recently hired employee given increase in statutory baseline for wage calculation to 26 weeks. “In evaluating the current rule against the amended statute, the only inquiry is whether four weeks is still an appropriate sample size from which to extrapolate a pattern of weekly earnings. I conclude that it is. It is not so small as to be an impracticable means of computing even a recently-employed workers’ rate of remuneration, and it is likely to be as accurate a method as using a comparable employee’s average weekly wages would be, if not more so. It thus remains consistent with both the language and the intent of §650(a).”

Quebec v FCI Federal, Opinion No, 3-16WC (Feb 4, 2016)(ALJ Phillips).

Treating surgeon’s opinion found more persuasive as to exacerbation of pre-existing degenerative condition. TTD awarded even though Claimant had canceled surgery due to unrelated reasons as “Defendant had denied responsibility for the surgery even prior to the cancellation... on the grounds that it was not causally related to her work injury. It therefore acted at its peril, that notwithstanding her personal reasons for doing so, Claimant likely would delay undergoing an expensive surgical procedure without having first secured a means of paying for it. Defendant is fully accountable for this result. I conclude that its various attempts to discontinue temporary disability benefits were appropriately rejected at the time, and remain unsupported now.”

Quinones v State of Vermont, Opinion No. 4-16WV (Feb. 9, 2016)(ALJ Phillips)

Both parties executed a Form 22 and submitted it to Commissioner for approval, however, the next day Defendant sought to rescind it. “To allow one party to bind another to an agreement that had not been subjected to the scrutiny mandated by statute would impermissibly undermine the commissioner’s essential role in the process.”

Kibbie v. Killingont Ltd., Opinion No. 5-16WC (Feb. 23, 2016)(ALJ Woodruff).


Full and final settlement for work injury closed out all indemnity benefits for injury and all medical treatment except for “‘cognitive and other head injury’” including ‘neurological, psychological, ophthalmological and TBI.’” Claimant’s claim for medical treatment for Claimant’s neck found to be covered by this previous settlement and thus not compensable. Claimant’s mistaken presumption as to the terms of the settlement was a “unilateral mistake on Claimant’s part.” “I do not dispute that the settlement agreement Claimant executed may not have said what he wanted it to say. I cannot conclude that this was a consequence of ambiguous or inadequately defined terms, however. Merely because the agreement’s plain language led to an unfavorable outcome for him is not an appropriate basis for finding ambiguity. Nor, does his unilateral misunderstanding of the agreement’s scope provide sufficient grounds for recesssion. Absent a mutual mistake of fact, ‘one of the parties can no more rescind the contract without the other’s express or implied assent then he alone could have made it.’” Also, parol evidence rule applied to foreclose testimony by former attorney for Claimant to testify as to the parties understanding of the settlement language. Claimant awarded some medical benefits associated with the allowed head injury.

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

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