Vermont Workers' Compensation Update: October to December 2012

Vermont Workers' Compensation Update: October to December 2012

VERMONT SUPREME COURT DECISIONS

Estate of Dunn v. Windham Northeast Supervisory Union, 2012 VT 93 (2012).
Section 624(e) does not allow for reimbursement to the workers' compensation carrier for payment from life insurance policy "because such proceeds are not 'damages,' as contemplated by the statute, paid because of a third party's tortious actions."

DEPARTMENT OF LABOR DECISIONS

Knoff v. Knoff Illuminating, Opinion No. 25-12WC (Oct, 16, 2012).
Claimant's treating physician's opinions as to causation more credible then Defendant's IME's opinions. "Had Dr Backus propounded a causation theory that effectively distinguished Claimant's current condition without denying either the injury Defendant accepted in 2001 or the one the Commissioner found compensable in 2006, I might view his opinion more favorably. Instead, his analysis relies at its core on the assumption that Claimant's February 2000 work injury was a soft tissue strain that neither caused nor accelerated any disc herniation or disease."Claimant's claim for ongoing TTD benefits defined as Claimant remains at MER despite for ongoing medical treatment as "none of Claimant's providers have adequately explained why the specific treatments Drs. Naylor and Johansson have offered recently are likely to result in lasting improvement when what appear to be very similar programs failed to do so in the past." While Claimant unable to resume employment at his prior highly remunerative level due to his work injury,  "by taking the [vocational rehabilitation] path that he did, form an average weekly wage perspective I conclude that Claimant has severed the causal link between his current earning capacity and his work injury, such that his pre-injury wages are no longer relevant to his average weekly wage calculation." Finally, a statute of limitations change to the Act is a substantive law change, inapplicable to this pre-existing claim and thus six year statute of limitations would apply to mileage reimbursement claim.

Bowen v. Ethan Allen, Inc., Opinion No. 26-12WC (Oct.23, 2012).
Commissioner accepts Defense IME opinion over those of treating physician in denying Claimant's request for permanent implantation of spinal cord stimulator. "The credible evidence, including Claimant's own testimony, establishes that his pain level has remained relatively static, through both a rigorous functional evaluation and even a trial period with the stimulator. The determination whether a treatment is reasonable must be based primarily on evidence establishing the likelihood that it will improve the patient's condition."

Hill v. Lamell Lumber Corp., Opinion No. 27-12WC (Nov. 14, 2012).
Claim denied as Claimant's credibility found lacking in late reported unwitnessed injury despite Employer's "workers' compensation bonus program"

Kuljancic v. Wal-Mart, Opinion No. 28-12WC (Nov. 28, 2012)
Pursuant to an odd lot analysis, Bosnian Claimant found PTD primarily based upon vocational rehabilitation opinions.

Zeno v. University of Vermont, Opinion No. 29-12WC (Dec. 13, 2012).
Defendant's IME expert opinion as to causation found more persuasive than that of Claimant's treating doctor as treating doctor an advocate for patient and did not review all the relevant medical records.

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

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