Vermont Workers' Compensation Update: April to June 2013

Vermont Workers' Compensation Update: April to June 2013

VERMONT SUPREME COURT DECISIONS

Brown v W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 [2013 VT 38] (Jun. 21, 2013).
Court reverses decisions of both the Commissioner and de novo bench determination (Judge Wesley) in determining that CRPS impairment ratings can be awarded pursuant to the AMA Guides Fifth Edition even when the examining doctors agree that claimant does not satisfy the CRPS diagnosis pursuant to the Guides. Justice Dooley in a strongly worded dissent states that: “The broad dicta of the majority’s decision, dicta that will have more far reaching effect than the specific holding with respect to CRPS... It is the equivalent of repealing section 648(b).”

Lydy v. Trustaff, 2013 VT 44 [2013 VT 44] (Jun. 28, 2013).
In split decision Court upholds Commissioner’s determination that inclusion of health insurance premiums as part of Average Weekly Wage calculation should be left to Vermont Legislature so as to not upset the delicate balance between the rights of employees and employers within the Vermont Workers’ Compensation system.

VERMONT DEPARTMENT OF LABOR DECISIONS

Cain v New Penn Motor Express, Opinion No. 12-13WC [Opinion No. 12-13WC] (Apr. 9, 2013).
Treating surgeon's opinion found more credible than that of IME physician as to causation on injury. IME doctor's inability to physically examine Claimant not found detrimental to credibility of IME doctor's opinion "because the evidence relevant to causation concerns Claimant's condition as of July and August 2011, not more recently." IME doctor's opinion harmed as his opinion did not "adequately account[] for the progression of Claimant's symptoms both before and after his vacation began."

Perry v. Office of  Attorney General, Opinion No. 13-13WC [Opinion No. 13-13WC] (Apr. 25, 2013).
Claimant's treating physician's opinion as to ongoing pain treatment found more credible than that of Defendant's IME doctor.

Heller v. Bast & Rood Architects, Opinion No. 14-13WC [Opinion No. 14-13WC] (May 9, 2013).
Modification of prior PPD award rejected. “The statutory language does not exclude permanency awards from modification. However, the very nature of such awards demands that a request for modification be closely scrutinized. A permanency award is, after all, presumed to be permanent.” Increase in permanency found not due to work injury, but rather “the natural aging process was the most likely cause of her increased permanent impairment.”

Smiley v State of Vermont, Opinion No. 15-13WC [Opinion No. 15-13WC] (June 3, 2013).
Claimant’s claim for PPD benefits barred by application of statute of limitations. Claimant had reason to know of permanent impairment as of date of reaching medical end result. Current duty of Defendant to inquire as to degree of impairment pursuant to WC Rule 18 cannot be applied retroactively even though Claimant did not reach MER until after effective date of rule change.

Foley v Smuggler’s Notch Management, Opinion No. 16-13WC [Opinion No. 16-13WC] (June 3, 2013).
Claimant’s leg injuries arose out of and in the course of employment pursuant to the positional risk doctrine when he jumped on a golf cart driven by a drunken co-worker. “But for that responsibility [to protect the golf cart entrusted to him] he would have had no reason to jump onto the cart after Mr Bates commandeered it. Given the potential risk of immediate harm -to his co-employee, to passerby and to the golf cart itself- it cannot be said that the circumstances under which he did so were so attenuated from his employment as to fail the ‘arising out of’ test.” “To the extent that Claimant’s formal hearing testimony was inconsistent with these earlier statements, I find that the difference were immaterial and did not affect his credibility.”

Wirasnik v. WED Precast, Opinion No. 17-13WC [Opinion No. 17-13WC] (June 21, 2013).
In aggravation versus recurrence issue, First employer granted summary judgment on basis that second employer intentionally waived right to ordered arbitration. Summary Judgment against third Defendant denied as unclear as to when Claimant actually worked for Defendant and thus whether his Form 5 filing was actually within the 3 years statute of limitations or not.

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

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