VERMONT TOP CASES, powered by McCormick, Fitzpatrick, Kasper & Buchard, PC (updated 1/9/2013)

VERMONT TOP CASES, powered by McCormick, Fitzpatrick, Kasper & Buchard, PC (updated 1/9/2013)

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

 McCormick, Fitzpatrick, Kasper & Buchard, PC

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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.

Westover v North Country Hospital, Opinion No. 19-12WC (July 20, 2012).

Claimant found to have CRPS, therefore not at medical end result. Defendant's IME opinions undercut in part due to lack of review of complete medical record. Furthermore, Defendant "waived the right to contest responsibility for the medical complications that developed subsequently" to an accepted fusion surgery. "Had it wanted to question the reasonableness of that treatment, it should have done so before the surgery occurred, not many months afterwards." Claimant's low back condition caused by her compensable foot injury due to her altered gait resulting from the compensable foot injury. Claimant leaving area for family reasons did not negatively impact her claim for TTD benefits.

McGinness v OWL Int'l, Opinion No. 20-12WC (Aug. 10, 2012).

Claimant's treating physician's opinion found more credible than that of IME expert even though treating physician agrees with IME doctor's new diagnosis which treating physician "with the benefit of hindsight, acknowledged that he himself had noted findings indicative of the condition, but had failed to connect the dots."

Morrisseau v. Hannaford Bros., Opinion No. 21-12WC (Aug. 10, 2012).

Claimant's treating physician's opinions as to new treatment modalities (ultrasound guided cortisone injections and platelet rich plasma injections) found more persuasive then IME doctor's opinions even though treating physician had not read entire medical file of Claimant. As Claimant requires additional potentially curative treatment, she is not at MER for her work injury.

Waters v. Commonwealth Dairy, Opinion No. 22-12WC (Aug. 28, 2012).

Claimant's venous stasis ulcer neither caused by nor aggravated by his employment with Defendant.  Defendant's IME opinion found more credible than that of Claimant's treating physician as IME doctor had better understanding of Claimant's actual job duties. While "Claimant's ulcer may have worsened during the period during which he worked for Defendant, these is insufficient credible evidence to establish either his job duties or his work environment as the cause of such exacerbation." Exacerbation more likely caused by Claimant's non-compliance with treatment including continued smoking.

Veillette v. Pompanoosuc Mills Corp., Opinion No. 23-12WC (Sept. 14, 2012).

Claimant's treating physician's opinions found more credible then those of IME doctors for ongoing medical pain management treatments resulting from 2004 work injury. However, Claimant presented with insufficient evidence to support physical therapy an chiropractic treatment regimens. "I will not give carte blanche approval for [chiropractic] treatment that Claimant has not recently pursued absent more persuasive evidence regarding its efficacy in this case."

Plante v. Vermont Agency of Transportation, Opinion No. 24-12WC (Sept. 14, 2012).

Determination of date of injury for purposes of determining average weekly wage. "In prior decisions, the commissioner has at times held that the 'date of injury' in this context is not the date upon which the injury itself occurred, but rather the date upon which it became disabling. In other cases, the average weekly wage calculation has been based solely on the date when the injury and its relationship to the employment became reasonably discoverable and apparent, regardless of when it first became disabling. In all cases, the commissioner has applied the analysis that best incorporates the statutes' intent with respect to indemnity benefits - to replace wages lost as a direct result of a compensable injury."

ARBITRATION DECISIONS

Larson v. Norwich University, Bill Skiff Arbitrator (Aug. 29, 2012)

All five of Trask factors favor determination of aggravation even though low back pain had never disappeared his condition had clearly stabilized and then made destable by work-related conditions five years later.

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

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