Vermont Department of Labor Case Summaries 2015 – Workers’ Compensation

Lyons v. Chittenden Central Supervisory Union, Op. No. 29-15WC: The claimant was a student teacher and was injured in the course of working, but without remuneration.

Holding: The Department adopted the rule that absent a specific statutory directive, a student teacher is excluded from coverage if the only remuneration to which his or her placement school agrees is the opportunity to fulfill state-mandated licensure requirements. As the claimant only received credit towards licensure, she was not a covered employee.

Thompson v. Greensboro Hospital, Op No. 28-15WC: In a credibility case, the claimant proved that her injuries were related to work.

Combs v. Broe Masonry, Op. No. 27-15WC: Attorney fee award because attorney was the but-for cause of the award of benefits.

Collado v. Mack Molding, Op. No. 26-15WC: Claimant did not prove a work-related injury.

Koski v. BlackRock Construction, Op. No. 25-15: Claimant owned a contracting business and took all the appropriate steps to exclude himself from WC coverage. He was injured in the course of doing subcontracting work for a general contractor. He then sought WC benefits from the general contractor as a statutory employer.

Holding: A subcontractor’s actions to exclude himself from coverage under his own policy takes him out of the definition of employee in the WC Act. He therefore cannot sue the general contractor for benefits as a statutory employer.

Chadbourne v. Walmart Associates,  Op. No. 24-15WC: No SJ when claimant sought further treatment after a full and final settlement. Factual dispute existed as to whether the treatment was needed for a flare up, which is treated like a new injury, or whether it was a recurrence.

Bienvenue v. Sandra Kuc, Op. No. 23-15WC: The claimant was injured on March 21, 2011 and brought a claim on May 5, 2011. She withdrew the application for hearing on February 2012 and sought to revive it in February 2015. Holding: The effects of voluntarily withdrawing an action is the same as never having brought the action. Therefore, SOL ran on March 21, 2014. She failed to reassert the claim prior to that date.

Cameron v. Lily Transport, Op. No. 22-15WC: The claimant claimed PTD benefits. In 2014 he worked part-time for eight months and earned over $19,000. He stopped that work so as not to jeopardize his Social Security Disability benefits.

Holding: Claimant was not permanently and totally disabled. He had demonstrated an ability to engage in regular gainful work. The ALJ found the ability to earn $19,000 over the 8-month period without needing to stop because of his medical condition particularly persuasive.

Cry v. Record Concrete, Op. No. 21-15CW: The claimant won SJ that he was not at MER, but did not win SJ for entitled to temporary disability benefits.

Reynolds v. Northwest Vermont Solid Waste Management District, Op. No. 20-15WC: Fungal infection found not to be work related in dispute of medical opinions.

Brown v. Casella Waste Management Op. No. 19-15WC: Doctor of Physical Therapy has sufficient expertise to testify about end medical result. Defendant is responsible for paying for suboxone with duel treatment proposed to treat both work-related pain and narcotic addiction.

Dobson v Ethan Allen Interiors, Inc. Op. No. 18-15WC: The claimant reached medical end result for a knee injury that happened initially in 2007 and entered into PPD agreement in March 2012. In July 2012, her doctor took her out of work and said that she needed a knee replacement. The defendant denied medical and TTD benefits. It litigated the medical until it was ordered to cover the knee replacement in November 2014. The claimant was out of work completely or worked for less money than she had been earing after July 2012. The defendant argued that she was not entitled to further TTD until after the surgery happened in Nov. 2014. The defendant also argued that the comp rate should be based on lower earnings in 2012 than from higher earnings in 2007 when the initial injury occurred.

Holding: The claimant was temporarily disabled from the time that the doctor took her out of work and recommended new corrective treatment. The delay in treatment was due to the defendant’s choice to litigate the claim, a choice that it main at its own peril. With respect to the compensation rate, the higher earnings from 2007 were used because Claimant suffered a loss in earning capacity from the 2007 injury. The defendant’s strongest argument was that the claimant had abandon’s VR services before reaching suitable employment. This was rejected because the claimant faced exigent circumstances that had forced her to accept employment at a lesser rate.

Dunroe v. Monro Muffler Brake, Inc. Op No. 17-15WC: Summary Judgement was granted to defendant for a statute of limitations defense. The claimant worked for the same company since 1980, which the current owners purchased in 2009. The claimant started suffering from shortness of breath in 2004. He received a diagnosis of COPD prior to 2008 and started treating with a pulmonologist that year. On November 6, 2008, his pulmonologist wrote, “the patient states that his work environment is very dusty, which may be exacerbating his COPD and nasal polyps.” On May 6, 2009, the doctor wrote more definitively that work environment was exacerbating the COPD. In 2010, Claimant mentioned in conversations with supervisors that he had COPD and that he would use his bonus to pay for medication for a work-related medical condition. A Form 1 was not filed until May 2, 2014.

Holding: The claim is time-barred. The claim was not brought within either the two-year SOL for occupational disease 660(b) or the three-year SOL for an occupational injury 660(a). The ALJ rejected the claimant’s argument that each environmental exposure that leads to a new exacerbation constitutes a new injury with a new statute of limitations. Under these facts, the relationship of the COPD became reasonably apparent on May 6, 2009 when the doctor wrote the letter definitively stating a causal relationship to work. The SOL had expired for both 660(a) and 660(b). The Department also rejected an equitable tolling argument based on 660(a) that the conversations with supervisors in 2010 should have tolled the SOL. The tolling provision in 660(a) refer only to filing of a notice of injury. They do not excuse the claimant for failing to take affirmative steps to protect his legal rights.

Wolff v. Johnson State College: Op. No. 16-15WC: No improper action by the defendant, but interim order was issued because of attorney’s effort. Attorney fees granted under Rule 10 but reduced for work done before the denial and for excessive phone calls.

Marsh v. Koffee Kup Bakery: Op. No. 15-15WC: The claimant was not at a medical end result when she engaged in a pain management program. It is not offered merely to improve the claimant’s coping mechanisms, but also intended to alleviate and stabilize her pain condition and is thus directed toward long-term pain relief. Claimant was entitled to further temporary disability benefits.

Boyd v Kennametal, Inc.: Op. No. 13-15WC: Facts: The claimant was rated for 23% PPD benefits and started getting paid beginning May 2008 at the rate of $617.10 per month. Plaintiff won a PTD claim after a hearing, and in December 2010, the Commissioner ordered that the remaining balance of 330 weeks be paid in a lump sum, which amounted to $140,531.52. At the time of the approval of the LS award, the compensation rate with COLAs was $732.48. The remaining weeks were paid at that rate. The period of 330 weeks ended in September 2014. The claimant asked that the TPD benefits be resumes with application of the ensuing COLA to bring it to $783.44. The defendant claimed that the COLAs did not apply.

Holding: The COLAs do not apply. Under the plain language of Rule 16.2000, only claimants who are “receiving” disability benefits on July 1st are entitled to a COLA for that year. The ALJ reasoned that this result was fair because by getting a lump-sum payment of $140,531.52, the claimant had received a benefit that far exceeded the benefits of the ensuing COLAs between 2010 and 2014. Because of the time value of money, if the lump sum had been invested, it would have been equivalent to the COLAs. By requesting a LS award, the claimant forfeited his claim to COLAs for the ensuing years.

Cushing v. Control Technologies Op. No. 14-15WC: The defendant’s SJ motion was denied and the claimant’s cross motion was granted on issue of reimbursement of a no-show fee because the claimant not showing up to an IME. The defendant sent the notice to counsel and not to the claimant directly. The claimant’s attorney had mailed the claimant the notice, but the claimant never received it, per his affidavit. Rule 13 requires mailing the notice to the claimant and the attorney. This is the type of situation that the procedure in Rule 13 tries to avoid.

Lewis v. Town of Stowe: Op. No. 12-15WC: Summary judgement granted when claimant had not medical expert to link his headaches to a condition of work.

Siebanaler v. Chittenden County Transportation Authority, Op. No. 11-15WC: In a medical dispute on the causation of C7 radiculopathy, the defendant won when there was evidence of preexisting radiculopathy.

Hoyt v. Chittenden South Supervisory Union, Op. No. 09-15WC: Attorney fees under Rule 10 were denied. The mere fact that a delay occurred between acceptance of the claim and payment of medical bills was not sufficient to justify attorney fee because of attorney’s “persistent efforts.”

Kurant v. Sugarbush Soaring Association, Inc, Op. No. 08-15WC: Attorney fees awarded under Rule 10 were awarded when the adjuster failed to provide written notification with adequate supporting documentation to the claimant and the Department prior to terminating benefits. Sending an e-mail with an IME attached was not sufficient to comply with Rule 18.

Wood v. Fairpoint Communication Op. No. 07-15 WC: Attorney fees awarded under rule 10 when the carrier had failed to revise its reasonable denial of benefits after a mistake by the treating physician was revealed to it. Claimant then retain counsel and received an interim order.

Herring v. State of Vermont, Op. No. 06-15WC: Holding: under the 2010 amendments to the WC Act eliminates carrier delay, unreasonable denials, or misconduct as prerequisites for awarding attorney fees when a dispute is resolved prior to a formal hearing. The claimant needs only show that but for the attorney’s efforts, he or she would not have prevailed. However, the Commissioner retains discretion and attorney fees are still supposed to be the exception rather than the rule. Exercising the discretion should further the goals of 1) maintaining appropriate standards of employer and adjuster conduct; 2) discouraging excessive and unnecessary attorney involvement; and 3) encouraging the parties to make effective use of the informal dispute resolution process. In this case, the attorney obtained a medical opinion on permanency that the specialist had found more persuasive when comparing it to two opinions obtained by the carrier that that claimant had no permanent impairment. Although there was no misconduct by the adjuster, the attorney’s work was still the but-for cause of the award at the informal level, and attorney fees were therefore awarded.

Chase v. State of Vermont, Op. No. 03-15WC: Holding: The WC Act does not cover non-prescribed, dietary supplements, in this case recommended by the Claimant’s naturopath.

Larry Bohannan v. Town of Stowe, Op. No. 01-15WC: Facts: The claimant injured his back at work on October 1, 2007. He reported it to his employer. The employer helped him file a STD claim rather than a WC claim even though a physician has said it was a WC case. No action to treat it as a WC injury was taken until a Form 6 was filed on Oct. 8, 2010. He claimed permanent and total disability. Defendant raised the SOL as a defense.

Holding: The ALJ held that the SOL did not bar the claim because of equitable estoppel. As to the element of equitable estoppel: 1) did the employer have knowledge of the work injury? Yes, the employer was informed of the injury on October 1, 2007 when the employee reported it to his boss. 2) Did the employer intent that the employee take actions to his detriment? Yes, the employer helped the employee fill out the STD claim and withheld a physician’s statement saying it was a work injury. 3) Was the employee ignorant of the consequences of the actions? Yes, although the claimant was not ignorant of the work-related nature of the injury, he was ignorant of the ramifications of filing for STD benefits rather than WC benefits. 4) Was the employee’s reliance on the employer reasonable? Yes, the employee’s reliance was found to be reasonable. As to the underlying PTD claim, the ALJ found it compensable under the odd lot doctrine.

Vermont Supreme Court Case Summaries 2015 – Workers’ Compensation

Gauthier v. Keurig Green Mt. Inc. 2015 VT 108 (Aug. 14, 2015). Facts: the plaintiff alleged that his employer for firing him in retaliation of having brought a workers’ compensation claim. The superior court granted SJ for the defendant. The plaintiff had made a prima facie case of discrimination. The parties agreed that plaintiff had engaged in a protected activity, the employer was aware of the activity, and the plaintiff suffered an adverse employment decision. They disagreed on causation between the protected activity and adverse decision. The employer argued that the investigation leading to termination had begun prior to plaintiff filing the WC claim. However, the plaintiff was not fired until after the WC had been filed. The proximity of the protected action to the adverse decision was sufficient in that case to make a prima facie case for discrimination. However, the employer showed evidence of a non-discriminatory reason. Plaintiff had two prior disciplinary actions taken against him, including one for violation of the company’s internet use policy. The employer also presented evidence of a further violation of the internet policy one month prior to the WC claim being filed. The plaintiff tried to argue that this was pretext.

Holding: With respect to pretext, the court adopted the “honest belief” rule adopted by the 7th Circuit (rejecting the 6th Circuit’s “honest belief” rule). That rule states that there is no pretext if the employer honestly believed in the proffered reasons, even if those reasons were foolish, trivial, or baseless. It does not require that the employer show that its reliance of the particularized fact was reasonable (as the 6th Cir. Rule does). The plaintiff failed to show any evidence that the employer did not believe its reason for termination. SJ was upheld.

Marshall v. State of Vermont, 2015 VT 47A: (May 8, 2015). Facts: The claimant had several back injuries with a WC injury in 2002. A doctor rated him in 2004 under DRE category II as 8% and referred 6% to a prior injury. The claimant entered into a Form 22 agreement for the 8% that was approved by VTDOL. In 2008, claimant was seen by Dr. Banerjee who said that the claimant’s 2002 injury should have been rated as a DRE category III injury with a 13%. He then revised the opinion to say that the proper method of rating was ROM and that this resulted in a 25% rating. After apportionment for the prior 8% paid, this resulted in 17% PPD that had not been paid. The state sent claimant to Dr. Boucher. He said that the proper rating method should have been ROM. Current ROM rating was 20%. He speculated that likely ROM prior to the 2002 injury would likely have resulting in 18% preexisting PPD, and that claimant was therefore only entitled to an additional 2% impairment above what had originally been paid. The claimant sought to reopen the form 22 because of a mutual mistake of fact since the parties relied on a rating derived from the DRE method rather than the ROM method.

Holding: The claimant had not shown a mutual mistake of fact under the particular facts of that case. An impairment rating is not just based on data, but also involves a degree of clinical judgment on the physician’s part. When the decision to enter into the Form 22 relied on clinical judgment, there is no mutual mistake of fact.

Smiley v. State of Vermont, 2015 VT 42 (March 6, 2015). Facts: The claimant injured her ankle in January 1996 while working for the State. In May of 1996, VTDOL adopted Rule 18(a) stating that the employer shall take action to determine whether the employee suffered permanent impairment once the employee reached medical end result. In July 1996, the treating orthopedic surgeon returned the employee to work, stating that it generally takes one year for a patient to recover from the injury that the claimant had suffered. The claimant then took no action until 2010, when he asked the WC adjuster to set up an appointment to evaluated permanent impairment. The carrier scheduled an appointment with one doctor who found 1% permanency. The employee scheduled a second appointment with a second doctor who also found 1% permanency. In May 2011, the State denied the claim, relying on a statute of limitations defense. VTDOL granted summary judgement for the State concluding 1) that the state had not waived its SOL defense by scheduling an impairment rating, 2) Rule 18 did not have retroactive application in this case, and 3) the PPD claim was barred by the SOL.

Holding: The State did not waive its SOL defense. A waiver must be unequivocal and was not in this case. The SCOVT disagreed with the VTDOL on the application of Rule 18. It found that the rule was procedural and did not affect the substantive rights of the parties. Therefore, it had retroactive effect. However, the retroactive application of Rule 18 does not change the effect of the Longe decision. The VTDOL created Rule 18 as an equitable tolling rule. However, the WC Act has no equitable tolling provision, and the Commissioner acted beyond her power by creating one. SOL was six years and claim is time-barred. In addition, defense of latches applies also barring the claim as a matter of law. Dissent: J. Robinson would not have barred the claim because of the SOL. She reasoned that the SOL starts to runs once the medical end result is established and the employer has an affirmative duty to establish MER. Since no medical opinion that the claimant had reached MER had occurred until 2010, the SOL should not have started to run until then.