Vermont Workers’ Compensation Update: October to December 2010

Vermont Workers’ Compensation Update: October to December 2010


McNally v. Department of PATH, 2010 VT 99 (Oct. 28, 2010).

Court reverses and remands on direct appeal from Commissioner for error in application of legal analysis of compensability. "In performing this fundamental test [of whether an injury arose out of and in the course of employment] we also understand that even where 'worker's activity leading to the injury is not work per se, the causal connection is not necessarily broken.'" (citations omitted) "It is difficult for this Court to understand how the Commissioner could deny claimant benefits while postulating - and not deciding one way or the other- that claimant did in fact suffer from the aggravation of a work-related injury."


Dunster v. State of Vermont, 282-4-10WnCv (J. Crawford Dec. 21, 2010).

Defendant's Motion to Dismiss Claimant's breach of settlement and bad faith complaint granted without prejudice to refile after Commissioner determines if settlement exists at all and approve such settlement as primary jurisdiction over this matter rests with the Commissioner. "Because the agreement could never become enforceable without the commissioner's determination that it complies with the requirements of the workers' compensation statutes, the commissioner's expertise should be useful in determining whether the alleged agreement included the necessary terms and at least is approvable in form."


Griggs v. New Generation Communication, Opinion No. 30-10WC (Oct. 1, 2010).

Claimant has accepted work-related injury in March of 1999. Subsequently, Claimant settles third party claim relating to 1999 work-related motor vehicle accident, and subsequently has another MVA in 2003, Defendant claims comp holiday.  Commissioner applies Barney analysis to credit Defendant with a pro rata share of the expenses, including attorney fees of the third party recovery based upon both current expenditures and future WC benefits. Medical benefits paid for by Claimant's health insurer are credited to Defendant's comp holiday. Claimant's failure to notify Defendant of 2003 MVA does not bar right Claimant from seeking Defendant's offset. Whereas here, evidence shows that amount of recovery from third party claim vastly exceeds any WC benefits owed for this third work-related injury, consent of Defendant to settlement was not required. Department also holds that here where Claimant reduced his salary for second period of TAD, as that new lower wage was unrelated to the work injury, Section 650(c) does not require the original higher wage rate to be applied to this new period of disability as opposed to the new lower wage rate. No penalties or interest charged against Defendant for late payment of WC benefits to Claimant,  because Claimant not provide evidence of comp holiday to Defendant until recently so Defendant would have had no ability to determine extent of holiday.

Griggs v. New Generation Communication, Opinion No. 30A-10WC (Dec. 30, 2010)

Claimant awarded attorney fees of all costs but 90% of attorney fees as opposed to entire request. "Litigation in the workers' compensation arena, however, typically does involve exactly the type of separate and distinct claims, for separate and distinct statutory benefits, that he Court could not discern in The Electric Man. Thus, for example, although the determination of an injured worker's entitlement to one benefit may share the same 'common core of facts' relevant to the initial work-related accident as his or her claim for another benefit, each is likely nevertheless to stand or fall based on its own distinct factual and/or legal analysis."

Myrick v. Ormond Bushey & Sons, Opinion No. 31-10WC (Oct. 5, 2010).

Claimant alleges that he was injured when struck by a backhoe. Defendant denies compensability of the claim and IME states not possible to determine cause of condition. Claimant's IME states that condition usually traumatically caused. Claimant and Claimant's IME doctor are found more credible then Defendant and Defendant's IME. Claim not barred by Section 656(a) as Defendant aware of incident at time of occurrence if not extent of alleged injury.

Heller v. Blast & Rood Architects, Opinion No. 32-10WC (Oct. 5, 2010).

Claimant fails to prevail on numerous alleged aggravations of assorted body parts as Commissioner colludes that no aggravation by work injury occurred, except for Claimant's hip condition. Claimant's request for prolotherapy upheld as reasonable and necessary treatment as treatment was successful on different non-compensable body parts. As Claimant was only partially successful on claim all costs of litigation assessed against Defendant, but only 30% of requested attorney fees awarded

Boyd v. Kennametal, Inc., Opinion No. 33-10WC (Nov. 15, 2010).

Claimant's odd lot PTD claim sustained despite Defendant's argument "that Claimant's ability to perform a variety of household tasks and recreational activities precludes a finding that he is permanently and totally disabled.... As reflected both in the functional capacity examination and in Mr. Yeate's vocational rehabilitation assessment, they do not translate into a viable, sustainable work capacity at any level." Award of attorney fees split between rates before and after June 15, 2010 Rule change.

Boyd v. Kennmetal, Inc., Opinion No. 33S-10WC (Dec. 30, 2010).

Claimant's permanent total disability benefits awarded in a lump sum as spouse's receipt of SSDI benefits constitutes "a regular source of alternative household income sufficient to satisfy Rule 19.3010." "It is notable that while the language of Rule 19.500 is mandatory, prohibiting a lump sum award is any of the four enumerated circumstances exist, the language of Rule 19.300 is discretionary, in which the four enumerated circumstances are merely 'positive factors' to be considered."

LaFarr v. Trapp Family Lodge, Opinion No. 34-10WC (Nov. 16, 2010).

Claim found compensable even though Claimant's credibility as to causation questioned due to inconsistent reporting to employer and pre-existing back conditions and other unrelated medical condition for which Claimant underwent surgery while out of work for alleged work injury.  Treating physician's opinion supported over those of IME physician who had not evaluated Claimant especially on issue of credibility of Claimant's statements. Claimant's claim for TTD benefits limited due to Claimant having short period of subsequent employment which was terminated for reasons unrelated to work injury.

Simmons v. Landmark College, Inc., Opinion No. 35-10WC (Nov. 16, 2010).

Claimant's motion to strike pre-existing medical records denied as "the records are relevant to the disputed issues in this claim. They establish the background necessary to properly evaluate Claimant's assertion that the March 18, 2005 work injury either caused or aggravated the psychological conditions for which she now seeks workers' compensation coverage." Claimant's motion to strike Dr. Nash's testimony for failing to state that his opinions were rendered within a reasonable degree of medical certainty denies as "the failure to use a particular phrase [does not] automatically require a finding that an expert's opinion is too speculative even to be considered." Claimant's pre-existing ADHD not part of WC claim and thus Defendant bears no liability for medical treatment of that condition, nor does this requested treatment extend Claimant's MER date.  Claimant's failure to aggressively pursue job searches as required by approved RTW Plan not relieved by Claimant's medical condition. Claimant's request for Defendant's purchase of a second car for her family not found to be a compensable component of vocational rehabilitation nor required in the instant case. 

Erickson v. Kennedy Brothers, Inc., Opinion No. 36-10WC (Dec. 15, 2010).

Claimant's low back condition found compensable due to altered gait which was "a direct result of her initial knee injury." "The disc herniation that followed was a natural consequence of that accelerated degeneration, and likely occurred sooner than it otherwise would have had Claimant not suffered from an abnormal gait."

Bortell v. Vermont Composites, Inc., Opinion No. 37-10WC (Dec. 30, 2010).

Claimant found to be permanently and totally disabled. Defendant's medical experts' opinions discounted because "[t]hey disregarded Claimant's FCE results, which indicated that he has limited sitting tolerance and therefore is capable of only part-time sedentary work. It is unclear on what basis they did so."  Defendant's vocational expert's opinion discounted as "[h]e theorized that Claimant might require some accommodation to successfully maintain employment, though he did not specify what that might entail. With these caveats, however, Mr. Prinson concluded that Claimant has the 'potential' to be gainfully employed." 


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