Vermont Workers’ Compensation Update July to September 2010

Vermont Workers’ Compensation Update July to September 2010

Saffold v. Palmieri  Roofing Inc., Opinion No. 24-10WC (July 14, 2010).

Defendant's motion for summary judgment on aggravation denied as discrepancies exist between expert opinions as to whether the degenerative condition is independent of the work injury, thus evidentiary hearing is required to decide the case. "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." 

Johnson v. Old Equinox Holding Co., Opinion No. 25-10WC (Aug. 5, 2010).

Request for spinal cord stimulator denied relying upon Defendant's IME opinions over those of treating physicians and psychiatrists. "In contrast, the summary nature of both Dr. Alhaj's and Dr. Hawkins' conclusions made it difficult for me to understand the basis for their opinions. The fact that neither undertook any comprehensive review of the Claimant's previous medical and psychological history prior to stating their position further undermines their credibility. I do not doubt that they have their patient's best interests at heart. Nevertheless, I cannot impose upon Defendant the obligation to pay for an invasive medical procedure that, based on the evidence before me, appears unlikely to succeed."

Plante v. Vt AOT, Opinion No. 26-10WC (Aug. 5, 2010).

Claimant's compensable bilateral CTS becomes cervical degenerative condition with issue as to causation of neck condition in sign installer. Claim found not compensable based upon IME opinion over that of treating surgeon. "'Mere continuation or even exacerbation of symptoms, without a worsening of the underlying disability, does not meet the causation requirement.'" (quoting Stannard v. Stannard Co. Inc., 175 Vt. 549, 559 (2003).

Zeno v. University of Vermont, Opinion No. 27-10WC (Aug 19, 2010).

Defendant's motion for summary judgment denied as to issue of medical end result and thus also extending to failure of Claimant to produce evidence disputing Defendant's IME's opinion of 0% impairment. Claimant's supplemental expert witness disclosure not foreclosed even though significantly after filing of answers (which themselves were late) expert interrogatories as final disclosure deadline has not yet expired.

Berg v. Rutland Crossing, LLC, Opinion No. 28-10WC (Aug 19, 2010).

Claimant's claim for benefits denied as injurious fall occurred on public sidewalk off of Defendant's premises and not on Defendant's premises as Claimant was leaving work for the day. "Claimant's own words further undermine her testimony. Her inquiries concerning liability in the event of a fall at this very site are certainly suspicious. Considered in conjunction with the varying accounts she gave as to the mechanism of her fall, her version of events becomes even less credible."

Harrington v. John a. Russell Corp., Opinion No. 29-10WC (Sept. 1, 2010).

Claimant's current left hip condition found causally related to 1986 right hip injury.  "Where, as here, the preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, 'due to a work injury or the work environment, the disability came upon the claimant earlier than otherwise would have occurred. Notably, this test asks only whether a claimant's work injury contributed to accelerate the underlying condition, not whether other factors may have contributed as well. Medical causation is often multi-factorial, and the pace at which a progressive condition degenerates may be due to a number of contributing circumstances. The causal link back to the work injury is not broken, however, unless the medical evidence clearly establishes some other factor as the superseding cause." (citations omitted)

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