Vermont Workers' Compensation Update: March to June 2011

DEPARTMENT OF LABOR DECISIONS

Carr v. Verizon New England, Inc., Opinion No. 8-11WC (Apr. 29, 2011).
On cross motions for summary judgment Claimant's death claim fails as Claimant fails to show that his trip on a scheduled vacation date was related to any specific business purpose and there exists insufficient evidence as to the extent of any personal deviation so as to bring the claim back within the realm of compensability. "Any business journey that begins as such from a particular base, whether the employee's home or office must contemplate both an outgoing and a returning trip. The return trip is not automatically disqualified if it immediately precedes a vacation, any more than it would be if it occurred at the start of a weekend. This is not to say, of course, that the return trip can be 'banked' indefinitely and 'cashed in' at whatever future time is convenient. The relevant inquiry, however, if not whether the return trip occurs on day off; it is whether it occurs at a time that is so far removed from the journey's business purpose as to fall outside the sphere of employment."

Auclair v. G.W. Savage, Opinion No. 9-11WC (Apr. 29, 2011).
Dispute amongst various carriers and employers as to right ankle injury originally compensable in 2000. Last employer's IME doctor's opinion found credible as "Dr. Ensalada's causation analysis was based not only on Claimant's credible history of how his symptoms had progressed through the years, but also on a comprehensive understanding of claimant's specific job duties at BH & R. His opinion was clear, thorough, straightforward and convincing. For these reasons, I accept it as the most persuasive."

Felion v. NSK Corp., Opinion No. 10-11WC (Apr. 29, 2011).
Defendant erroneously applies cost of living adjustment and increase carried forward for years. Defendant allowed to offset overpayment from future workers' compensation benefits as "Defendant's error is not evidence such a degree of careless or negligent claims handling practices as to disqualify it from receiving an offset." Offset limited however to future indemnity benefits not medical or vocational rehabilitation benefits.

Fosher v. Fletcher Allen Health Care, Opinion No. 11-11WC (May 5, 2011).
Claimant entitled to mileage reimbursement for medical treatment. "In both the language and spirit, Rule 12.2100 requires reimbursement for actual expenses necessitated by the work injury, not hypothetical ones."

Donovan v. AMN Healthcare, Opinion No. 12-11WC (May 31, 2011).
On cross motions for summary judgment, it is appropriate to include Claimant's monthly housing allowance in calculating her average weekly wage and compensation rate for permanent partial disability benefits, despite Defendant's argument that Claimant was never deprived of her housing allowance because she continued to work and no temporary disability benefits were paid.  When it comes to permanency, "it is no longer relevant whether the claimant did or did not continue to receive room and board during the healing period.  Rather, his or her future wage loss is conclusively presumed.  The value of room and board being an appropriate component of the worker's pre-injury wages, it must now be factored into the compensation rate calculation."

Badger v. City of Burlington, Opinion No. 05S-11WC (June 2, 2011).
Defendant not entitled to stay of Commissioner's March 25, 2011 Order pending appeal because Defendant cannot satisfy the four criteria required by In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).

Badger v. City of Burlington, Opinion No. 05R-11WC (June 2, 2011).
Defendant moved for reconsideration of various aspects of the Commissioner's March 25, 2011 Order.  Defendant's request that it be permitted "to directly repay unemployment benefits paid during any period of awarded temporary total disability," rather than relying on Claimant to do so, is denied.  "The unemployment compensation statute sets out the appropriate procedure for recouping overpayments from benefit recipients.  It does not authorize the remedy Defendant suggests."  Defendant's request that Claimant's permanency award be been reduced by the 6 percent rated and paid in conjunction with his 2004 injury and by the 5 percent impairment rated in conjunction with his 1997 injury is denied.  Although 21 V.S.A. § 648(d) requires a permanent impairment rating to be reduced by any previously determined permanent impairment, Claimant's settlement of his 1997 claim did not allocate the $70,000 settlement amount to any particular injury (wrists, neck, low back, leg and/or psyche) or to any particular benefit sought (temporary or permanent).  "Without such allocation, there is no way to determine if in fact Claimant was paid compensation for a 5 percent impairment referable to his lumbar spine or not."  Claimant's attorney fee award also stands, as do his mileage and travel time.  Claimant's $27.00 in telephone charges reflect office overhead rather than actual long-distance calling charges are disallowed.  With respect to medical expert fees, Dr. Bucksbaum's fees for an IME must be reduced by $132.00, and Claimant must submit additional information so the Department can determine how much time Dr. Bucksbaum allocated to his formal hearing testimony.

Knoff v. Joseph Knoff Illuminating, Opinion No. 13-11WC (June 6, 2011).
Defendant granted summary judgment establishing that its overpayment to Claimant of $63,700 in temporary total disability benefits from April 2003 to September 2004 must be credited against Claimant's new 2010 claim for temporary total disability benefits.  The Supreme Court has already "validated the commissioner's authority to allow an offset to be taken against permanent partial disability benefits."  Claimant argued Defendant's overpayment was due to Defendant's inordinate delay in determining the extent of Claimant's wage loss in 2003.  To deny an insurer an offset for overpayment of benefits would undermine the State's public policy of encouraging insurers to voluntarily pay workers' compensation benefits during the investigatory phase of a claim in order to compensate injured workers quickly.  Moreover, Claimant failed to raise Defendant's failure to promptly investigate the basis for his wage claim in his 2005 proceedings before the Commissioner and is barred by the doctrine of collateral estoppel.  Claimant's assertion that the offset will cause him financial hardship is also unpersuasive under the circumstances, because Claimant is already receiving SSDI.  "Claimant himself admits that Defendant erred by presuming he had suffered a wage loss in the weeks prior to his 2003 disability when in fact he had not.  As a result, he received $63,700.00 in workers' compensation benefits to which he was not entitled.  Essentially Claimant already has been prepaid the benefits he now seeks.  Given the undisputed facts and particular circumstances of this case, I cannot justify requiring Defendant to pay him again."

Spaulding-Singley v. G.S. Precision, Opinion No. 14-11WC (June 8, 2011).
Claimant is not entitled to summary judgment that she has been totally disabled from working since her May 2009 hospitalization after her attempted suicide.  Although Claimant's assertion is supported by Dr. Kim's unrefuted opinion, Claimant did not begin treating with Dr. Kim until December 2010.  Although a medical expert is not necessarily precluded from ever making a retroactive determination of an injured worker's disability status, such determinations should be closely scrutinized.  "Here, where Dr. Kim's opinion was based at least in part on Claimant's self-report, it is important for me to be able to judge Claimant's credibility.  Dr. Kim's credibility needs to be thoroughly evaluated as well.  These credibility issues are not appropriately determined on a motion for summary judgment."  Claimant's assertion that the Commissioner is compelled to accept an unrefuted expert opinion is not true.

Saffold v. Palmieri Roofing, Inc., Opinion No. 15-11WC (June 22, 2011).
Claimant suffered a work-related disc herniation in 1994 and underwent a laminectomy and discectomy to correct it.  Claimant recovered well from the surgery and was placed at medical end result in 1996.  Although Claimant continued to experience low back pain and radicular symptoms from 1997 to 2006, for the most part he did not seek medical treatment and his symptoms did not preclude him from working.  In April 2006, Claimant experienced a spontaneous worsening of his low back pain and radicular symptoms while he was "simply walking along."  A May 2006 MRI revealed a disc herniation at the same level as had been operated on in 1994.  Dr. Gennaro conducted an IME in October 2006 and "concluded that Claimant's condition since 2006 has been the consequence solely of 'aging and time.'  Notwithstanding some residual symptoms over the years, his 1994 surgery was successful. . . ."  Dr. Ross conducted a medical records review in 2008 and concluded that Claimant's 2006 disc herniation, surgery, and current condition most likely were causally related to his 1994 injury and surgery.  Claimant's symptoms do not involve a recurrence or an aggravation, because they do not involve a "return" of symptoms following a "temporary" remission, nor did they involve an intervening "event."  Applying the five-part test used by the Commissioner where expert medical opinions are conflicting, Dr. Gennaro's opinion was more persuasive than Dr. Ross's.  "He reviewed Claimant's entire medical record, read his deposition and most importantly, interviewed Claimant personally as to the history of his injury and the progression of his symptoms from 1994 forward.  In contrast, Dr. Ross reviewed only a portion of Claimant's medical record."  Likewise, Dr. Gennaro's opinion "was clear, thorough and objectively supported.  It adequately accounted for the presence of disc degeneration at other levels in Claimant's lumbar spine at the same time that it discounted scar tissue as a contributing factor. . . .  Claimant has failed to establish the required causal link back to his compensable 1994 injury so as to render either his 2006 surgery or his current condition compensable."     

Sevene v. Don-Vac, Inc., Opinion No. 16-11WC (June 24, 2011).
Defendant moves for summary judgment that Claimant's claim is barred as a matter of law on statute of limitations grounds.  Defendant argues that Claimant's September 13, 2010, claim for permanent total disability benefits is time barred because it was not asserted within six years of becoming reasonably discoverable and apparent.  However, even if Dr. Cody's 2003 statement that Claimant was "essentially totally disabled from work" constituted "credible evidence of Claimant's inability to return to work from a medical perspective, it does not begin to approach a credible statement of Claimant's vocational outlook at the time.  A viable claim for permanent total disability requires due consideration of both medical and vocational factors. . . ."  Moreover, up until the time of Dr. Cody's pronouncement, Claimant's treating physician had been advocating for VR services aimed at assisting Claimant to find more suitable work, and Claimant's 1995 and 1997 VR entitlement assessments, his 2003 and 2008 social security disability denials, and his April 2011 FCE all point to the possibility that Claimant may have had at least a light duty work capacity.  "At a minimum, this evidence gives rise to genuine fact issues as to when Claimant's permanent total disability claim first became reasonably discoverable and apparent.  Such issues are not amenable to determination on summary judgment. 

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

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