Vermont Department of Labor Case Summaries 2016 – Workers’ Compensation

Farr v. Rite Aid Corp., Op. No. 24-16WC: The claimant had had two back surgeries in 2006. In 2014 he went to his surgeon who agreed to do another surgery. The defense’s IME doctor testified that the chances of the third surgery helping was “extremely low” and was therefore not necessary. He also testified that it was not related. However, he did admit that the surgery was not beyond the standard of care. The treating surgeon opined that the surgery was related because prior surgeries had weakened the area on which he had operated. He did not offer any testimony on the likelihood of surgery helping. Ultimately there was some improvement, but it was short-lived.

Holding: the surgery was related, but it was not necessary. The analysis of necessity must be made prospectively and not in hind-sight. The ALJ did not believe that the evidence showed that the surgery was “likely to improve Claimant’s condition to any appreciable extent.”


Moulton V. Peter and Gertrude Davis, Op. No. 22-16WC: The defendant alleged fraud because the claimant had received TTD benefits while engaging in work as an independent contractor for a different company. The Defendant filed for summary judgement. Summary judgement was denied because the claimant’s state of mind was in dispute.


Diamond v. Burlington Free Press, Op. No. 21-16WC: Claimant received a PPD award in 2004 in an approved Form 22 agreement. She then had surgery in 2012. She reached MER for the surgery in 2014 and brought a new claim for additional PPD in 2015.

Holding: Under § 668, modification to awards must be brought within 6 years of the date of the award. Claimant could not modify the award as the SOL for doing so had lapsed.


Nelson v. Federal Express Freight, Op. No. 19-16WC: A pro se claimant won the issues in dispute. The injury was found to be a recurrence. Continued chiropractic care after MER was reasonable. 15 percent PPD awarded for the spine from conflicting medical opinions.


Houle v. Valley Crane Services, Inc., Op. No. 18-16WC: The claimant’s attorney sought attorney fees in connection to negotiating a Form 22 settlement of PPD. The claimant was late in requesting fees, as he did not request it within 30 days of the award. More importantly, no hearing had been requested. Therefore, there was no basis under the WC statute or the WC rules.


Weston v. Velan Valve Corp., Op. No. 17-16WC: The defendant was ordered to pay for a compound ketamine cream for treatment of CRPS. This was a medical expert dispute with treating physician recommending the treatment and Dr. Ensalada saying it was not reasonable. The ALJ emphasized that “evidence based medicine” is not only based on the best scientific research, but also relies on “the proficiency and judgement that individual clinicians acquire through clinical experience and clinical practice.”


Lamont v. Agri-Mark, Inc., Op. No. 16-16WC: the claimant awarded benefits for a repetitive use shoulder injury. Claimant’s medical expert was found to be more persuasive than the defendant’s.


Chartrand v. G.E. Aviation, Op. No. 15-16WC: the claimant awarded benefits on SJ motion after the defendant’s expert admitted to probably relation of CTS to work in a deposition.


Haller v. Champlain College Corp. Op. No. 14-16WC: Claimant sought to have the value of tuition-free college credits included in her AWW calculation.

Holding: The department held that the tuition-free college credits were “other advantage” under the WC statute and that their value should be included in the calculation of AWW. The ALJ did not find the Lydy case controlling or persuasive on the issue.


Clayton v. J.C. Penney Corporation, Op. No. 13-16WC: In cross-motions for summary judgement the defendant argued that language in a settlement agreement approved on September 24, 2014 barred WC benefits for a claim brought on March 10, 2015.

Holding: Overboard language in a release that attempts to release a defendant from liability in matters beyond the scope of disputed matters is against public policy. The ALJ found that the provision in the earlier WC settlement purporting to release the defendant from all WC claims regardless of date was overly broad, against public policy, and therefore void. The defendant’s SJ motion was denied. The claimant’s SJ motion was also denied because of factual disputes in the underlying action.


Hilliker v. Synergy Solar, Inc. Op. No. 12-16WC: The claimant lived in Vermont. She was hired by an employer in Massachusetts to install solar panels. She would be paid an hourly rate plus a per diem and wages for travel to job sites from her home. The claimant was injured at a jobsite in Mass. A claim was filled in Mass, and the claimant received WC benefits under Mass law for nine months. The claimant then brought a claim in Vermont for a supplemental award of benefits under Vermont law. The defendant argued that the claimant was not hired in Vermont and asserted defenses of full faith and credit, comity, waiver and estoppel.

Holding: the ALJ held that the claimant was hired in Vermont because she was in Vermont during the initial hiring conversation and when the paperwork for employment were filled out. Therefore, Vermont had jurisdiction. The ALJ relied on the plurality decision in Thomas v. Washington Gas Light Co. 448 U.S. 261 (1980) to conclude that the full faith and credit clause did not prevent the awarding of a supplemental award when two states have jurisdiction and benefits had already been awarded under one state’s WC statute. For the comity defense, a distinction was made between a case for which final judgment had been rendered and one that was currently in suit. There was no final judgment for the Mass suit, thus the more lenient rule of comity applied. The factors to consider are 1) whether the first suit has been proceeding normally and without delay; and 2) whether there is a danger that the parties may be subjected to multiple or inconsistent judgments if a second suit is allowed. Since there were no issues in dispute in Mass, there was no risk of the parties being subjected to inconsistent judgments. The defendant would be subject to no more liability than if the case had been brought in Vermont alone. With respect to the waiver and estoppel claims, the evidence of waiver must be unequivocal. There was no evidence that the claimant intended to waive her right to seek a supplemental award under Vermont law by first accepting benefits under Mass law. With respect to the estoppel claim, there was no detrimental reliance. The defendant was in the same position as if the claim had been brought in Vermont from the onset.


Meunier v. the Lodge at Shelburne Bay Real Estate, LLC, Op. No. 11-16WC: The claimant fell in the course of employment and was knocked unconscious. She had no memory of what happened or how it happened.

Holding: This case involved the distinction between falls from an unknown cause and falls from an idiopathic cause. Idiopathic falls are not compensable [unless a condition of work makes the injury from the fall worse than it would have been otherwise], whereas falls from an unknown cause are compensable. This result is consistent with the positional risk doctrine, in which the injury is compensable if the work put the claimant into a position to be injured even by a neutral force. The defendant presented no evidence of an idiopathic cause. Therefore, at best the cause is unknown and the injury is compensable.


Hall v. Safelite Group, Op. No. 10-16WC: Claimant suffered an elbow injury and developed CRPS. His doctors recommended a nerve block. However, claimant developed a dental infection that was unrelated to the work injury and needed treatment before the block could be performed. To cure the infection, the claimant underwent antibiotic treatment and eventually extraction of 14 teeth. He was also fitted for dentures. The Claimant sought to have the dental treatment covered by WC.

Holding: The Department adopted the ancillary treatment rule that has been adopted by many jurisdictions. If effective treatment of a compensable injury requires ancillary treatment for an otherwise non-work-related condition, in appropriate circumstances, the injured worker may be entitled to benefits covering the entire course of treatment. The extraction was needed before treatment of the CRPS could be done. The dentures were covered too because they were needed to chew and digest food and to improve the likely success of VR services.


Flood v. Feed Commodities, Inc. Op. No. 09-16WC: Discovery issue: the defendant claimed that the claimant’s claim was fraudulent and that family members had aided in the fraud. The claimant had retained counsel with respect to the claim, and his family members had retained counsel with respect to any claims of fraud. The defendant then tried to depose the family members about conversations with counsel, and the family members asserted an attorney-client privilege.

Discovery ruling: Because the defendant was asserting fraud on the part of the family members, who could face possible criminal and civil liability if proven true, and because the family members had retained counsel, the privilege applies.

Holding: In the underlying case, the claimant said that he fell at work and thought that he had reinjured his knee that was subject to a different WC claim. He drove home, where he lived near his sister and parents. The he got home, he needed assistance from his family. His sister called 911 and said that he had broken his leg while walking to his house. At the hospital, the claimant said that he had fallen at work. A few days later he told his boss that he had fallen at work. The defendant also employed a doctor to say that the claimant could not possibly have driven home with a broken leg. The ALJ accepted the claimant’s version as credible.


Cook v. Precis Manufacturing, Op. No. 08-16WC: Claimant proved that he had injured his wrist at work.


Kibbie v. Killington Ltd, Op No 05-16WC: Form 15 closed off all benefits for all compensable injuries, except that it kept medical treatment open for his “head.” The claimant sought to have continued treatment for the neck covered. “Head” and “neck” are distinct body parts and there was no ambiguity in the language of the agreement. To the extent that the claimant believed the neck would continue to be covered, this was a unilateral mistake and not a mutual one. Treatment for the neck was no longer compensable.


Quinones v. State of Vermont, Op No 04-16WC: The defendant was permitted to “rescind” a Form 22 before it was approved by the Department after receiving a supplemental IME report. The parties were left to litigate the issue of PPD.


Quebec v. FCI Federal Inc, Op No 03-16WC: Claimant wins on the issue of whether knee replacement surgery in 2014 is related to a 2001 work-place injury.


Vohnoutka v. Ronnie’s Cycle Sales of Bennington, Op No 01-16WC: SJ was granted for the defendant on TTD, but denied for compensability. That issue was left to litigation. Op No 20-16WC: The claimant (pro se) won on compensability, but lost on claims for TTD/TPD and VR services. The defendant had raised a notice defense. The claimant was injured in February 2013 but did not seek treatment until November 2013. In November 2013, he told his employer that he was going to seek treatment and that it was related to the injury that happened in February. Under company policy, since an accident report had not been filed in February, the claim had to be denied. The ALJ imputed knowledge of the injury to the defendant because the boss had been present in February when the claimant was initially injured. The claimant was awarded benefits.


Wetherby v. Blake; Op No. 02-16WC: Upholding Rule 15.4240’s 4-week sample size for basing AWW on claimant’s own wages instead of a comparable employee. Thus, use of 6 weeks of claimant’s own wages was correct to determine AWW.

Vermont Supreme Court Case Summaries 2016 – Workers’ Compensation

Bindrum v. American Home Assurance Co., Chartis Insur. & NuQuest Bridge Pointe, 2016 VT. Unpub. Lexis 150 (Aug. 19, 2016). Facts: the plaintiff had a workers’ compensation claim, and brought a medical malpractice claim and bad faith claim against the WC carrier. A settlement was reached among parties that said AIG would establish and fund a Medical Set-Aside account to be approved by CMS up to $750,000. AIG hired NuQuest, which negotiated an MSA approved by CMS in the amount of $282,179. The parties entered into a Form 15 which recited that amount and which was approved by VTDOL. Plaintiff sued in superior court alleging that AIG had submitted an undervalued MSA. The superior court grant SJ for the defendant.

Holding: The plaintiff lacked standing to challenge the MSA, as he had no interest in the MSA beyond its approval by CMS. The approval ensured that Medicare would pay for any shortfall.


Conant v. Entergy Corp., 2016 VT 74 (July 8, 2016). Facts: The employer was, for all practical purposes, self-insured for workers’ compensation claims up to $1,000,000 as it had to pay back the carrier (AIG) for benefits paid up to this amount. It also was subject to a collective bargaining agreement that required it to pay short- and long-term disability benefits up to 100 percent of the employee’s wages for both occupational and non-occupational injuries with an off-set for WC benefits for wage replacement. AIG was the third party administer of the WC claim and denied the WC claim. The Employer paid benefits under the STD policy. VTDOL then ordered TTD benefits be paid. Employer sought an offset of the TTD owed because of the STD paid. The Commissioner of VTDOL denied the offset saying that it was not an issue that arose under the WC Act. The employer appealed to the SCOVT.

Holding: 21 V.S.A. § 651 provides for an offset in this situation for, “payments made by an employer or his or her insurer to an injured worker during the period of his or her disability . . . which, by provisions of this chapter, were not due and payable when made, may, subject to approval of the commissioner, be deducted from the amount to be paid as compensation.” Allowing a double payment would be against public policy. The Commissioner of VTDOL has an obligation to determine whether the claimant would be paid twice. Dissent: the dissent did not think that 21 V.S.A. § 651 created a mandatory obligation and would have deferred instead to the VTDOL decision not to invoke such jurisdiction.