Vermont Workers' Compensation Update: October to December 2013

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

VERMONT DEPARTMENT OF LABOR DECISIONS

Nguyen v. Best Foods Baking Co., Opinion No. 22-13WC (October 2, 2013)
Claimant’s ongoing Oxycontin medication regimen initiated in 2000 remains reasonable and necessary medical treatment. “While acknowledging Defense IME’s opinion “that according to the available research, the use of long-term opiate therapy to treat chronic pain conditions is often ineffective and always fraught with risk. Were there sufficient evidence to convince me that a more effective treatment was available, one that likely would afford Claimant both better symptom control and greater function, I would find more credible his conclusion that narcotic pain medications should be discontinued in this case.”

Dudley v. South Burlington Supervisory Union, Opinion No. 23-13WC (Oct. 16, 2013)
In a pre-formal hearing determination in favor of Claimant, Claimant’s request for Attorney fees and costs denied when Carrier initially denies claim but “in its own review of the evidence the Department found the opinion of claimant’s medical expert to be more credible, and on those grounds it rejected Defendant’s denial as not reasonably supported. That it did so does not in any way render Defendant’s actions objectionable ab initio however. Claimant may have won the battle, but this does not mean Defendant was wrong to have fought it.” “The goal [of §678(d)] is not to penalize the employer unduly when it reaches a conclusion tiwht which the claimant disagrees, even if the Department ultimately does so as well.”

Mahmutovic v State of Vermont, Opinion No. 24-13WC (Oct 22, 2013).
Proposed Spinal Cord stimulator found not reasonable and necessary “[a]s the surveillance videos document Claimant’s functional abilities are significantly greater than what typically is required to justify this course of treatment. That no structural basis for Claimant’s subjective complaints has yet been identified is further cause of concern.” Atty fees and costs prorated to portions of claim for which Claimant prevailed.

Labbe v Lunenberg Fire D. #2, Opinion No. 25-13WC (Nov.25, 2013).
Claimant’s PTD claim barred by statute of limitations based upon Defendant’s motion for summary judgment based upon factual finding that Claimant knew at least by April of 200 that at least three of her medical providers found that she was “100% disabled”.  Rejects Claimant’s contention that “Defendant’s obligation to pay permanent total disability benefits became automatic once its independent medical examiners determined that she was unemployable.” Given IME doctors’ opinions that Claimant was “essentially unemployable”, “Defendant could have accepted responsibility and commenced paying. When it failed to do so, the responsibility fell to Claimant to take action at some point within the six-year limitations period.”

Cyr v Record Concrete, Inc., Opinion No. 26-13WC (Nov. 25, 2013).
Two separate injuries result in two periods of TTD. AWW and comp rate determined on basis of each independent injury. “[I]t is appropriate to hold NGM responsible for the temporary total disability benefits it owes as a consequence of the low back injury. As a matter of law, there is no basis for imposing liability upon NGM for temporary partial disability benefits that, if owed at all, flow from the neck injury for which FirstComp is still responsible.”

Luce v Town of Stowe, Opinion No. 27-13WC (Dec. 11, 2013)
Dispute between treating physician and IME doctor as to reasonableness and necessity of spinal cord stimulator. “I conclude that for Claimant to treat the sympoms referable to hsi work-related injury with a spinal cord stimulator was a medically reasonable option for him to pursue. Whether another patient, on advice of another treating physician, might weight the potential risks and benefits differently does not render his treatment choice any less reasonable.”

Martin v Brattleboro Coop, Opinion No. 28-13WC (Dec. 11.2013).
A third party obtained death benefits based upon apparently fraudulent marriage certificate. Unopposed Motion for Summary Judgment to forfeit and repay these benefits denied as Defendant cannot show that unrepresented received notice of motion. “The fraud statute’s specific requirement that ‘notice and opportunity for hearing’ be given before forfeiture can occur imposes a somewhat greater level of formality with respect to service of process than is the case in workers’ compensation proceedings generally. This is particularly true where, as here, the target for forfeiture is someone other than the claimant.”

ARBITRATIONS

Lussier v. Green Mountain Electric Supply, Inc., (Glenn Yates Arbitrator)(No. 13, 2013)
Based upon conflicting IME opinions, Recurrence found as original injury was “literally an explosive release of energy in the shoulder... [and the subsequent] 2012 incident was, as described by Claimant and Dr. Kirkpatrick, an insignificant event compared to the October 2011. The January 2012 incident would not, and did not by itself cause the right shoulder injury. The January, 2012 incident neither caused nor aggravated the right shoulder within the meaning of the Vermont Workers’ Compensation Act.

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

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