VERMONT TOP CASES, powered by McCormick, Fitzpatrick, Kasper & Buchard, PC (updated 7/11/2016)

VERMONT TOP CASES, powered by McCormick, Fitzpatrick, Kasper & Buchard, PC (updated 7/11/2016)

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.

VERMONT SUPREME COURT DECISIONS

Morisseau v Hannaford Bros. 2016 VT 17 (Lexis Advance), 2016 VT 17 (lexis.com) (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.

DEPARTMENT OF LABOR DECISIONS

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

Julie Charanko long term WC Specialist II has retired, but she is not going far as she is going to continue her work at the Department as a “temp” for the time being.

Note to Lexis Online Subscribers: Citations link to Lexis Advance. Bracketed citations link to lexis.com.

VERMONT DEPARTMENT OF LABOR DECISIONS

Cameron v. Lilly Transport, Opinion No. 21-15WC, 2015 VT Wrk. Comp. LEXIS 23, [2015 VT Wrk. Comp. LEXIS 23] (Oct. 1, 2015) (ALJ Woodruff)

Claimant found not to be Permanently and Totally Disabled as working part time. “[T]he fact that Claimant worked only one, two or three days per week for [new employer] does not disqualify the job from consideration as regular gainful employment. The statute 21 V.S.A. §644, ‘does not require that one have a full-time work capacity to be capable of regular gainful employment.’” (quoting Arnold v Central Vermont Hosp., Opinion Nol 20-06WC (Apr. 21, 2006).While Claimant may not be able to recover to “suitable employment” he is not disabled from regular gainful employment and is thus not permanently and totally disabled pursuant to the statute. “I conclude that Claimant’s actual [work] experience more than amply demonstrates his ability to perform the latter, notwithstanding that he may never achieve the former.”

Cyr v Record Concrete II, Opinion No. 22-15WC, 2015 VT Wrk. Comp. LEXIS 24, [2015 VT Wrk. Comp. LEXIS 24] (Oct. 2, 2015)(ALJ Woodruff)

On summary judgment motion, Claimant determined not to be at medical end result as Defense argument that defense IME report included earlier 2011 injury is without support in the record. However, summary judgment denied as to claim for temporary partial disability benefits as “[i]t is impossible to determine which, if any, of the work restrictions [Claimant’s doctor] subsequently imposed were causally related to [Claimant’s] June 2011 cervical injury. Without clarity on that issue, I cannot determine to what extent Claimant remained disabled on account of the latter injury....”

Bienvenue v. Sandra Kuc, Opinion No. 23-15WC, 2015 VT Wrk. Comp. LEXIS 25, [2015 VT Wrk. Comp. LEXIS 25] (Oct. 14, 2015)(ALJ Phillips)

Pro se Claimant’s 2011 claim barred when Claimant withdraws the claim in 2012 and then attempts to reassert the claim in 2015. “For statute of limitations purposes, the legal effect of Claimant having voluntarily dismissed her appeal without pursuing a determination on the merits of Defendant’s claim denial is the same as if hse had never filed a claim for benefits at all. Were the rule otherwise, a claimant might voluntarily dismiss and then renew his or her claim “in perpetuity.” Two subsequent bill denials to medical providers in 2013, however, were “suffiecient to toll the statute of limitations before its three-year expiration date.” Pursuant tot he concept of laches, however, Claimant’s claim is dismissed with prejudice because “Claimant unreasonably delayed asserting her right to workers’ compensation benefits and that the Defendant was prejudiced thereby. Particularly in this case, where the most basic facts underlying her claim were hotly contested, including where and when the injury occurred, who witnesses it and what if any disability resulted, Claimant was obliges to take timely action, lest memories fate, witnesses disappear or medical evidence becomes stale. Her failure to do so for more than two years worked a disadvantage not only on Defendant but on the fact-finder as well. Under these circumstances, equity requires that her claim be dismissed.”

Chadbourne v. Walmart Associates, Inc. Opinion No. 24-15WC, 2015 VT Wrk. Comp. LEXIS 21, [2015 VT Wrk. Comp. LEXIS 21] (Oct. 13, 2015)(ALJ Phillips)

Previous out of State settlement with same employer does not foreclose as a matter of law Claimant’s claim for benefits as the prior settlement language does not “contain the broader language necessary to encompass an affiliated store owned by the same corporation.” However, claim may still be barred “if Claimant’s more recent symptoms are deemed a recurrence of her August 2010 injury rather than a flare-up.... this result will flow directly from the plain language of the settlement documents themsleves, which clearly identify the first employer - Walmart #1297 - as the entity entitled to protection against further liability. But under Vermont law, a flare-up by definition constitutes a new injury, for which the subsequent employer -here, the Walmart store at which Claimant worked as of June 7, 2013 - is liable until the condition returns to its previous baseline.”

Koski  v Blackrock Construction, Opinion No. 25-15WC, 2015 VT Wrk. Comp. LEXIS 31, [2015 VT Wrk. Comp. LEXIS 31] (Nov. 16, 2015)(ALJ Phillips)

Claimant excludes himself from WC coverage but buys policy for his LLC. Injures eye in construction project and seeks to collect WC benefits from general contractor as statutory employer of Claimant. ALJ notes inconsistencies between 21 VSA 601(14)(H) which “appears to grant a right but not a remedy.... I assume that the Legislature did not intend this result. Instead, I assume that it intended to offer the excluded employee the remedy that best exemplifies the statute’s public policy objectives and remedial purpose. By its plain language, the second sentence of subsection (H) accomplishes this result, while the first sentence does not. I further asume that by its reference to ‘personal injury’ in the first sentence of subsection (H), the Legislature intended to preserve the exculded individual’s right to damages in tort in the event of a work-related injury. No other interpretation makes sense. I thus conclude that by excluding himself from coverage under §601(14)(H) Claimant thereby forfeited his right to claim workers’ compensation benefits form either his own LLC of form Defendant, his statutory employer. Having effectively removed himself from the statute’s coverage, his remedy now lies in tort.” In dictum, ALJ also determines that Claimant was not a “volunteer” at the time of the injury as both parties fully expected Claimant would be paid for the assistance he was rendering to Defendant at the time of the injury even though no contract had been signed between the parties and the work at the time of the injury was beyond the scope of work expected to be performed in the furtherance of this project.

Collado v Mack Molding, Opinion No. 26-15WC, 2015 VT Wrk. Comp. LEXIS 28, [2015 VT Wrk. Comp. LEXIS 28] (Nov. 16, 2015)(ALJ Woodruff)

Disputed credibility issue found against Claimant. “Claimant’s testimony was replete with disturbing inconsistencies.” Also, medical causation opinion based upon determination that Claimant had a herniated disc which subsequently “proved to be inaccurate. Thereafter, [treating physician] did not propose an alternate theory. As Claimant bears the burden of proof on the causation issue, in the final analysis it is his expert’s credibility that matters most. In this case, [treating physician’s] opinion does not carry the necessary weight.”

Combs v Broe’s Masonry, Opinion No. 27-15WC, 2015 VT Wrk. Comp. LEXIS 30, [2015 VT Wrk. Comp. LEXIS 30] (Nov. 23, 2015) (ALJ Woodruff)

Claimant awarded attorney fees as “the settlement agreement that ultimately issued in this case, came about primarily as a result of the efforts of Claimant’s attorney.” Fees incurred prior to Defendant’s denial not compensable.

Thompson v Greensboro Hosp., Opinion No. 28-15WC, 2015 VT Wrk. Comp. LEXIS 32, [2015 VT Wrk. Comp. LEXIS 32] (Dec. 4, 2015)(ALJ Phillips)

Late reported unwitnessed injury found compensable. Contemporaneous medical records and determination of co-worker’s testimony of Claimant’s interaction with patient as “likely inaccurate” support determination of compensability.

ARBITRATIONS

Vaccarelli v. Middlebury College, State File No. EE-55706 & W-03314 (W. Skiff Arbitrator)

Arbitrator concludes that 2012 work-related injury found to be an aggravation of 2004 work injury. “I find [Claimant] accurately summed up the case with his statement that ‘after that fall in 2012 everything seemed to go downhill.’ I find the opinion of Dr Leon Ensalada to be more persuasive and more in line with the factual and medical evidence.”

Keith KasperWritten by Keith J. Kasper. Reprinted with permission.

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