Vermont Workers' Compensation Update: April to June 2014

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

DEPARTMENT DECISIONS

Brodeur v Energizer Battery Manufacturing, Inc., Opinion No. 6-14 (Apr. 2, 2014).

Treating physician’s opinions as to proposed minimally invasive SI joint fusion found more persuasive then those of Defendant’s IME doctor’s opinions. “As is the case with many aspects of medical decision-making, however, there can be more than one right answer, and thus more than one reasonable treatment option for any given condition. And although the workers’ compensation statute mandates that employers pay only for ‘reasonable’ medical treatment, it does not in any way require that injured workers forfeit the right to direct their own medical care.” (citations omitted)

Myrick v. Ormond Bushey & Sons Opinion No. 7-14WC (Apr. 24, 2014) (HO Phillips)

Commissioner finds summary judgment procedure applicable and constitutional in VT WC system. “Claimant here argues that because the workers’ compensation statute allows for a de novo appeal to the superior court on issues of fact, somehow that excuses him from having to present sufficient evidence to overcome summary judgment at the formal hearing stage. The commissioner’s vital role in the dispute resolution process is not so easily dismissed, however.” Payments to treating physician must be tried as disputed issues of fact thereon, but no payment allowed for treatment with unlicensed chiropractor. Mileage for “normal commute distance” deducted from mileage reimbursement even though at time of incursion of mileage bills, Claimant neither employed nor receiving TD benefits.

Wimble v Green Mt Coffee Roasters, Opinion No. 8-14WC (May 2, 2014)(HO Phillips)

Attempt to reopen arbitration award to correct alleged error in average weekly wage and compensation rate payment rejected. “Faced with potential liability for all or a portion of the benefits Liberty had paid, it should have been a routine exercise for MEMIC to request an itemized list of the payments made to date, along with the wage statements and compensation agreements upon which any indemnity payments were based. That it failed to do so is unfortunate, but it is not grounds for modifying the arbitrator’s award.”

Hoyt v. Chittenden South Supervisory Union, Opinion No. 9-14WC (May 15, 2014)(HO Phillips)

Attorney fees awarded in part to Claimant due to Defendant’s conduct in failing to alter its initial denial after it received medical records which supported pro se Claimant’s claim. “At that point, it owed a duty to investigate in order to determine whether substantive grounds still existed to deny. Its failure to do so caused undue delay in adjusting the claim. It thus put itself at risk for an award of fees under Rule 10.1310. Claimant not awarded all fees sought because Claimant’s counsel’s “failure to provide clarifying information as to the specific benefits owed impeded Defendant’s ability to evaluate its exposure, and thus unnecessarily delayed its acceptance of the claim.” Catalyst theory of an award of attorney fees found “not necessarily determinative” for WC claims.

Hathaway v. ST Griswold & Co. Opinion No. 4A-WC (June 11, 2014).

“As typically occurs, the statute thus envisions thatas a result of a single compensable injury a claimant may become entitled to a variety of benefits. Some of these may be ‘fixed by agreement,’ while others may require a hearing and ‘award’ in order to resolve. But nowhere does the statute require that all benefits must be either fixed by agreement or awarded before an appeal can be taken.”

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

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