Vermont Workers' Compensation Update: January to March 2011

Vermont Workers' Compensation Update: January to March 2011

Anne Noonan has been named the new Commissioner of the Department of Labor. Ms. Noonan has experience in the VT workers' compensation arena with her prior work with the VSEA.

Mary Sarazin, formerly an attorney with Chip Powell's office, has taken a position with the Department as a Specialist II.

DEPARTMENT OF LABOR DECISIONS

Erickson v. Kennedy Bros. Inc., Opinion NO. 36A-10WC (Mar. 25, 2011).

Claimant awarded all fees and 90% of attorney fees requested as Claimant prevailed on most but not all claims before the Commissioner. Payment based upon new rate only for work performed after amendment of Atty fee Rule on June 15, 2010.

Bortell v. Vt Composites Inc., Opinion No. 37L-10WC (Mar. 25, 2011).

Claimant previously found to be PTD. PTD benefits awarded in a pro-rated lump sum basis so as to be integrated with receipt of SSDI benefits. SSDI found to be a "regular source of income" so as to allow for award of lump sum benefits. "It is notable that while the language of Rule 19.5000 is mandatory, prohibiting a lump sum award if any of the four enumerated circumstances exist [appeal filed, Claimant best served by periodic income receipt, payment for everyday living expenses, payment for past debts] the language of Rule 19.3000 is discretionary in which the four enumerated circumstances are merely 'positive factors' to be considered."

Marshall v. Vermont State Hospital, Opinion No. 1-11WC (Jan 26, 2011).

Defendant's denial of medical billing alleging that they were for purposes of SSDI application rejected as while SSDI was discussed in these visits,  "it was not the primary purpose of either doctor's evaluation."  Denial of re-opening of prior permanency award on material mistake or change in conditions theories.

Marshall v. Vermont State Hospital, Opinion No. 1R-11WC (Mar. 25, 2011).

Claimant's attempt to amend decision is rejected as expert opinions relied upon by the commissioner sufficiently supported by the record and, "even if Dr. Cyr's interpretation of the Guides was incorrect, the result was a mistaken opinion, not a mistake of fact. Were I to rule otherwise, no permanency agreement would ever be safe from reappraisal by experts retained even years after the fact. The result would be impractical and unfair to injured workers and employer alike."

Crowe v. The Fonda Group, Opinion No. 2-11WC (Jan. 26, 2011).

Defendant refused to authorize "full payment" of medical treatment not reduced by WC Rule 40. Claimant's request for order by Department to authorize such payment rejected as "Defendant is well within its rights not to give any medical provider carte blanche in this manner." Also, disputed impairment rating requires EMG testing as opposed to speculation by Claimant's IME doctor as to impairment in the absence of such testing, therefore testing ordered.

Taft v. Central Vermont Public Service Corp., Opinion No. 3-11WC (Jan. 26, 2011)

After pre-trial, Defendant withdraws defenses to claim. Claimant seeks attorney fees and Defendant objects. Fees granted as a discretionary matter by Commissioner not pursuant to current version of WC Rule 10.1300 but under prior law because matter was on the formal hearing docket. In determining to exercise discretion and award fees prior to formal hearing Commissioner: "Among factors to be considered in exercising that discretion are the extent to which the attorney's efforts were integral to the rights secured, the time, effort and skill required to prepare and present the case, and whether the fees requested are proportional to the effort expended."

Richardson v. Regular Veteran's Association Post #514, Opinion No. 4-11WC (Feb. 17, 2011).

On cross motions for summary judgment on claim for post death permanency benefits, Commissioner determines: "In sum, as the undisputed facts establish that the permanency benefits referable to Claimant's leg and hip injuries had accrued prior to her death I conclude that they survive without limitation. I conclude that the permanency benefits, if any, attributable to Claimant's second fusion surgery in January 2009 had not yet accrued at the time of her death, and therefore survive, if at all, only to the extent provided by 21 V.S.A. §639 [limiting death benefits to Claimants dieing without dependents to funeral expenses] Last, I conclude that questions of material fact [whether Claimant had reached medical end result prior to her death] prevent me from determining whether the permanency benefits referable to Claimant's lumbar spine injury following her first fusion surgery had accrued by the time of her death."

Ploof v. Heritage Motors, Opinion 6-11WC (Mar. 25, 2011).

Long litigated claim subject to motion for summary judgment by Defendant when Department specialist issues an interim order to pay permanency benefits as found by claimant's IME doc when rating dispute involves issues of Claimant's credibility. "It is true, as Defendant asserts, that as a general rule it is good practice not to issue an interim order where questions as to witness' credibility are central to the dispute.... [However] [n]either the statute or the rule absolutely prohibits an interim order form issuing in any case in which the witness' credibility is questioned."  "However, I see no basis for concluding that the Specialist's determination was erroneous as a matter of law." Defendant's recourse is to seek formal hearing on the merits of the interim order.

 Badge v. BWP Distributors, Inc., Opinion No. 5-11WC (Mar. 25, 2011)

Claimant settles 1997 PTD claim and then has additional accepted lairs for different subsequent employers in 2004 and 2009. As settlement did not specifically recognize Claimant's PTD status, he is not estopped from claiming additional permanent partial disability benefits now. Claim found to be an aggravation not a flare up as Claimant never returns to pre-2009 baseline.

Bush v. Kelly Services, Opinion No. 7-11WC (Mar. 25, 2011).

Claimant has a pre-existing bone chip in her ankle which her doctor opined became dislodged due to a work related ankle injury but does not become symptomatic until almost 5 years later. Defendant's IME asserted the cause was a MA one year prior to the ankle becoming symptomatic. The Department accepted the treating physician's opinion in part because the IME doctor "failed to explain why, in her opinion, a dorsiflexion injury in 2008 might have precipitated movement of a preexisting bone chip, but to a reasonable degree of medical certainty a fall such as the one the Claimant experienced in 2004, which according to the emergency room record also involved dorsiflexion, did not."

Keith Kasper

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

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