Vermont Workers' Compensation Update: October to December 2015

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

Julie Charanko long term WC Specialist II has retired, but she is not going far as she is going to continue her work at the Department as a “temp” for the time being.

Note to Lexis Online Subscribers: Citations link to Lexis

VERMONT DEPARTMENT OF LABOR DECISIONS

Cameron v. Lilly Transport, Opinion No. 21-15WC, 2015 VT Wrk. Comp. LEXIS 23,  (Oct. 1, 2015) (ALJ Woodruff)

Claimant found not to be Permanently and Totally Disabled as working part time. “[T]he fact that Claimant worked only one, two or three days per week for [new employer] does not disqualify the job from consideration as regular gainful employment. The statute 21 V.S.A. §644, ‘does not require that one have a full-time work capacity to be capable of regular gainful employment.’” (quoting Arnold v Central Vermont Hosp., Opinion Nol 20-06WC (Apr. 21, 2006).While Claimant may not be able to recover to “suitable employment” he is not disabled from regular gainful employment and is thus not permanently and totally disabled pursuant to the statute. “I conclude that Claimant’s actual [work] experience more than amply demonstrates his ability to perform the latter, notwithstanding that he may never achieve the former.”

Cyr v Record Concrete II, Opinion No. 22-15WC, 2015 VT Wrk. Comp. LEXIS 24,  (Oct. 2, 2015)(ALJ Woodruff)

On summary judgment motion, Claimant determined not to be at medical end result as Defense argument that defense IME report included earlier 2011 injury is without support in the record. However, summary judgment denied as to claim for temporary partial disability benefits as “[i]t is impossible to determine which, if any, of the work restrictions [Claimant’s doctor] subsequently imposed were causally related to [Claimant’s] June 2011 cervical injury. Without clarity on that issue, I cannot determine to what extent Claimant remained disabled on account of the latter injury....”

Bienvenue v. Sandra Kuc, Opinion No. 23-15WC, 2015 VT Wrk. Comp. LEXIS 25,  (Oct. 14, 2015)(ALJ Phillips)

Pro se Claimant’s 2011 claim barred when Claimant withdraws the claim in 2012 and then attempts to reassert the claim in 2015. “For statute of limitations purposes, the legal effect of Claimant having voluntarily dismissed her appeal without pursuing a determination on the merits of Defendant’s claim denial is the same as if hse had never filed a claim for benefits at all. Were the rule otherwise, a claimant might voluntarily dismiss and then renew his or her claim “in perpetuity.” Two subsequent bill denials to medical providers in 2013, however, were “suffiecient to toll the statute of limitations before its three-year expiration date.” Pursuant tot he concept of laches, however, Claimant’s claim is dismissed with prejudice because “Claimant unreasonably delayed asserting her right to workers’ compensation benefits and that the Defendant was prejudiced thereby. Particularly in this case, where the most basic facts underlying her claim were hotly contested, including where and when the injury occurred, who witnesses it and what if any disability resulted, Claimant was obliges to take timely action, lest memories fate, witnesses disappear or medical evidence becomes stale. Her failure to do so for more than two years worked a disadvantage not only on Defendant but on the fact-finder as well. Under these circumstances, equity requires that her claim be dismissed.”

Chadbourne v. Walmart Associates, Inc. Opinion No. 24-15WC, 2015 VT Wrk. Comp. LEXIS 21,  (Oct. 13, 2015)(ALJ Phillips)

Previous out of State settlement with same employer does not foreclose as a matter of law Claimant’s claim for benefits as the prior settlement language does not “contain the broader language necessary to encompass an affiliated store owned by the same corporation.” However, claim may still be barred “if Claimant’s more recent symptoms are deemed a recurrence of her August 2010 injury rather than a flare-up.... this result will flow directly from the plain language of the settlement documents themsleves, which clearly identify the first employer - Walmart #1297 - as the entity entitled to protection against further liability. But under Vermont law, a flare-up by definition constitutes a new injury, for which the subsequent employer -here, the Walmart store at which Claimant worked as of June 7, 2013 - is liable until the condition returns to its previous baseline.”

Koski  v Blackrock Construction, Opinion No. 25-15WC, 2015 VT Wrk. Comp. LEXIS 31, (Nov. 16, 2015)(ALJ Phillips)

Claimant excludes himself from WC coverage but buys policy for his LLC. Injures eye in construction project and seeks to collect WC benefits from general contractor as statutory employer of Claimant. ALJ notes inconsistencies between 21 VSA 601(14)(H) which “appears to grant a right but not a remedy.... I assume that the Legislature did not intend this result. Instead, I assume that it intended to offer the excluded employee the remedy that best exemplifies the statute’s public policy objectives and remedial purpose. By its plain language, the second sentence of subsection (H) accomplishes this result, while the first sentence does not. I further asume that by its reference to ‘personal injury’ in the first sentence of subsection (H), the Legislature intended to preserve the exculded individual’s right to damages in tort in the event of a work-related injury. No other interpretation makes sense. I thus conclude that by excluding himself from coverage under §601(14)(H) Claimant thereby forfeited his right to claim workers’ compensation benefits form either his own LLC of form Defendant, his statutory employer. Having effectively removed himself from the statute’s coverage, his remedy now lies in tort.” In dictum, ALJ also determines that Claimant was not a “volunteer” at the time of the injury as both parties fully expected Claimant would be paid for the assistance he was rendering to Defendant at the time of the injury even though no contract had been signed between the parties and the work at the time of the injury was beyond the scope of work expected to be performed in the furtherance of this project.

Collado v Mack Molding, Opinion No. 26-15WC, 2015 VT Wrk. Comp. LEXIS 28,  (Nov. 16, 2015)(ALJ Woodruff)

Disputed credibility issue found against Claimant. “Claimant’s testimony was replete with disturbing inconsistencies.” Also, medical causation opinion based upon determination that Claimant had a herniated disc which subsequently “proved to be inaccurate. Thereafter, [treating physician] did not propose an alternate theory. As Claimant bears the burden of proof on the causation issue, in the final analysis it is his expert’s credibility that matters most. In this case, [treating physician’s] opinion does not carry the necessary weight.”

Combs v Broe’s Masonry, Opinion No. 27-15WC, 2015 VT Wrk. Comp. LEXIS 30, (Nov. 23, 2015) (ALJ Woodruff)

Claimant awarded attorney fees as “the settlement agreement that ultimately issued in this case, came about primarily as a result of the efforts of Claimant’s attorney.” Fees incurred prior to Defendant’s denial not compensable.

Thompson v Greensboro Hosp., Opinion No. 28-15WC, 2015 VT Wrk. Comp. LEXIS 32, (Dec. 4, 2015)(ALJ Phillips)

Late reported unwitnessed injury found compensable. Contemporaneous medical records and determination of co-worker’s testimony of Claimant’s interaction with patient as “likely inaccurate” support determination of compensability.

ARBITRATIONS

Vaccarelli v. Middlebury College, State File No. EE-55706 & W-03314 (W. Skiff Arbitrator)

Arbitrator concludes that 2012 work-related injury found to be an aggravation of 2004 work injury. “I find [Claimant] accurately summed up the case with his statement that ‘after that fall in 2012 everything seemed to go downhill.’ I find the opinion of Dr Leon Ensalada to be more persuasive and more in line with the factual and medical evidence.”

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

For more information about LexisNexis products and solutions connect with us through our corporate site.