Updated Second Edition to the Nutshell Guide to Federal Disability Law Practice in Vermont

Nutshell

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.

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.

What We Do – Article Written for the IBEW Local 2326

While love holds a family together, work is what makes a family go. It puts food on the table. It pays the mortgage. It keeps the electricity running. It sends us to the beach for a week in the summer and lays presents under the Christmas tree. But what happens when you can’t work?

Much of our focus at Jarvis & Modun involves securing compensation or entitlement to benefits for a client who cannot work, either temporarily or permanently, because of an injury or disease. Our society has created several types of laws to address these situations. They include workers’ compensation; tort law; Social Security disability and Supplemental Security Income; and private short-term and long-term disability insurance. For veterans, there are disability benefits for service-connected medical impairments and disability pensions. Except for veterans’ claims, Jarvis & Modun practices in all these areas of law.

Workers’ Compensation is a no-fault system of compensation administered by the states. It was born out of a “grand compromise” between businesses and labor in the early twentieth century. As part of the compromise, business leaders agreed that they would pay certain, well-defined benefits to any worker who was injured in the course of employment. In exchange, workers relinquished their right to sue employers if their injuries were caused by their employer’s negligence. Most states – with some notable exceptions – have a workers’ compensation system with laws and benefits that vary from state to state.  But usually, employers must pay for medical treatment. Employees who cannot work while recovering from an injury are usually entitled to temporary disability benefits. Employees that cannot return to their past employment may be entitled to vocational rehabilitation. Finally, permanently injured employees are usually entitled to compensation for permanent impairment.

Workers’ compensation does not cover intangible damages like pain and suffering, loss of enjoyment, or loss of consortium. These types of damages are the hallmarks of tort law. Tort claims typically revolve around the idea of negligence, and require a person to show that another is at fault for causing an injury. This may occur, for example, when a person causes an automobile collision because he or she texted while driving. It may occur when a business does not build its facilities up to code, thereby resulting in someone’s injury. Or it may even happen when a doctor does not do what a reasonable doctor should have done in treating a patient. Unlike other areas of law, tort law is expansive in what a plaintiff can claim for damages in a recovery. This is because the guiding principle of tort law is to make the plaintiff “whole” again. Thus, a recovery may include payments for medical treatment, lost earnings, lost earning capacity, the value of damaged property, as well as the types of intangible losses mentioned above.

Tort law and Workers’ Compensation are not intended to cover everyone who gets hurt. Sometimes a person is neither hurt at work nor hurt because of someone else’s fault. There are also limits to what these laws can achieve. Even if a person is hurt because of someone else’s fault, the person at fault may not have enough insurance or assets to pay for all the damages. Because of these shortcomings, America has also created a safety net of benefit programs designed to keep people out of poverty if they cannot work. The centerpiece of this safety net is Social Security Disability and Supplemental Security Income.

Social Security Disability is part of the public insurance program that includes retirement and survivor benefits. One becomes eligible to draw disability benefits by earning work credits. People who have earned enough credits before becoming disabled can draw the Social Security Disability Insurance Benefits (or SSDI). If one has not earned enough work credits to qualify for SSDI, then Supplemental Security Income (or SSI) is the back-up program. It pays a fixed benefit subject to limitations of family income and assets. To qualify for either program, a person must meet Social Security’s criteria for disability, which requires that a person be unable to engage in substantial gainful activity for a minimum of twelve months because of mental or physical impairment or a combination of both. Age, education, and vocational history also factor in determining whether a person is disabled.

Workers’ Compensation, tort laws, Social Security Disability Insurance, and Supplemental Security Income apply to everyone. Other disability benefits apply to smaller segments of society, such as veteran disability benefits and disability pensions. The Department of Veterans’ Affairs administers these programs, and a veteran can apply for those benefits through a local VA office.

Another limited area of disability benefits includes short-term and long-term disability policies. Often these benefits are part of an employee benefit program provided by an employer. Sometimes a person will buy this insurance for themselves. If the benefits are part of an employee-benefits program, the administration of the benefits are covered by a federal law known as “ERISA.” No one standard applies for these types of policies. ERISA gives a great deal of deference to businesses and insurance companies to define what these benefits include and the circumstances under which they will be paid. The insurance policy controls what is paid, and so it is vitally important to get a complete copy of the policy when claiming either short-term or long-term disability benefits.

Jarvis & Modun practices in most of the major areas of disability and injury law described above. The one exception is veterans’ claims. We also offer a free consultation to anyone who wants to understand their rights and explore whether they need representation in making a claim. If you would like a consultation, please call us at (802) 540-1030 or toll-free at (844) 299-1011.

Relationship to Work — a Case Study

Recently the Vermont Department of Labor decided an interesting case that explores many of the legal concepts behind what makes an injury work-related. The case is Kelly Moreton v. State of Vermont. Ms. Moreton worked as a benefits programs specialist for the state. She usually worked at an office in Essex. However, in 2013 her employer told her that she had to go to a mandatory 3-day training session in Stowe. The training was to start at 9:00 a.m. each day. The state would start paying her each day at 8:00.  On their own, Ms. Moreton and some of her coworkers decided to carpool. For the first day of training, they agreed to meet early — at 7:30 — at a Starbucks in South Burlington because they wanted to make sure that they would be at the training on time. The forecast called for bad weather, and none of the coworkers were familiar with where they were going. As it happened, it rained the night before, and by morning the ground was covered in ice. Ms. Moreton slipped on ice outside Starbucks as she was walking to meet her coworkers and severely injured her shoulder.

The employer denied Ms. Moreton’s claim for worker’s compensation, arguing that her injury was not related to work. The key concepts in this case are what it means to “arise out of and in the course of employment”. Entitlement to workers’ compensation flows from the relationship to work, and in order for an injury to be work-related, it must both arise out of and in the course of employment. Ultimately Ms. Moreton won her claim.

An injury occurs in the course of employment if it is linked to work by place, time, and activity. Although Ms. Moreton’s injuries did not occur at her usual place of work, her case was helped out by the rules for special errands and business trips. For someone commuting to his or her usual place of work, injuries occur in the course of employment only if they occur on the employer’s premise. However, if the employee is sent on a special errand or business trip, injuries that occur in the course of that trip are also related to work. The only exception is if the employee’s actions deviate significantly from the business purpose of the trip. Here, Ms. Moreton had been sent on a special business trip for training. Meeting her coworkers at the Starbucks to commute was not a significant deviation from that trip. Her injury was therefore linked to employment by place.

As for the timing of the injury, Ms. Moreton’s injury did not occur while she was on the pay clock. However, the Department of Labor did not find this fact significant. The coworkers had agreed to meet early so that they would not be late because of the weather and their unfamiliarity with Stowe. This choice was reasonable and significantly benefited the employer. The injury was therefore linked to employment by time.

An activity is linked to employment if it provides a benefit to the employer. All the actions of the coworkers related to car-pooling were undertaken in good faith in order to advance the employer’s interest, and were therefore found to be of benefit to the employer. The injury was related to employment by activity as well.

With respect to “arising out of” employment, the Department of Labor applied the positional risk doctrine, which states that an injury arises out of employment if it would not have occurred but for the conditions and obligations of employment having placed the worker in the position where he or she was injured. Because the sole purpose of the meeting at Starbucks was to commute to a work-related training, the obligations of employment had put Ms. Moreton in the position that resulted in her injury, and the circumstances under which the injury occurred were not so attenuated from the conditions of employment as to break this causal relationship.

The Department awarded Ms. Moreton worker’s compensation.

 

Steps Taken to Limit Sheltered Work

In July of 2014, President Obama signed the Workforce Innovation and Opportunity Act intended to tighten the conditions under which people with disabilities could do sheltered work for less than minimum wage. Now Disability Scoop reports that the U.S. Department of Education is promulgating new rules to implement that law. The intent of the rules is to integrate people with disabilities into competitive work through the use of educational and vocational support services.

Rare Victory at the Appeals Council

Jarvis & Modun recently achieved a rare victory at the Appeals Council. The Appeals Council is Social Security’s internal appellate body. It hears all appeals of Administrative Law Judge (ALJ) decisions from around the country. Rarely does the Appeals Council disagree with an ALJ’s decision. It is rarer still for it to disagree so much that it reverses an ALJ’s denial and awards benefits. Usually if the Appeals Council disagrees with the ALJ, it will send the claim back for a new hearing. However, Jarvis & Modun recently achieved a complete reversal from the Appeals Council.

The case involved a young woman who had serious physical and mental impairments. After a hearing, the ALJ denied her claim. He found that her physical impairments were severe, but not severe enough to prevent her from working. He found that her mental impairments were non-severe and had no affect on her ability to work. Jarvis & Modun appealed the mental health findings because all doctors had said that these impairments were, in-fact, severe.

On appeal, the Appeals Council took the rare step of sending the evidence to its own medical expert. This expert was a psychologist who found that not only were the mental impairments severe, they were so severe that the claimant met Social Security’s listings 12.04 and 12.06 for depression and anxiety. The claimant was thus presumptively disabled, and the Appeals Council granted her claims.

New Social Security Rules Compel Claimants and Representatives to Submit All Evidence

On March 25, 2015, the Social Security Administration issued Final Rules that dramatically change a claimant’s duty to produce evidence in connection with his or her disability claim. Before these new rules, a claimant and his or her representative only had to provide medical evidence that established the existence of an impairment and its severity. They were prohibited from redacting evidence, but they did not have to produce evidence that tended to weigh against a finding of disability.

The new rules change that. Now the claimant (or representative) must produce, “all evidence known to you that relates to whether or not you are blind or disabled.” This includes potentially negative evidence. There are only two narrow exceptions. These are for any materials related to the representatives “analysis of your claim.” Although this is somewhat akin to a work product privilege, it is much narrower. Social Security considers this exception to include notes that a representative might take in talking to a witness, but it does not include any reports prepared by a medical expert hired by the representative, even if the representative did not intend to use the expert as part of the claim. The other exception is for materials protected by the traditional attorney-client privilege, such as correspondence between the attorney and client.

During the comment period, many people objected to the new rules on numerous grounds. These objections included fears that the new rules undermined the attorney’s ethical duty to provide zealous representation; that they did not give the claimant or representative the flexibility to withhold evidence that was clearly wrong or biased; and that they would make the claims process more adversarial. By and large Social Security brushed aside all objections, saying that the rules were needed to enhance its ability to reach the right decision in each case.

Clearly by reaching the right decision, Social Security means denying more claims. Over the past ten years it has been making a concerted effort to do just that. In 2006 it implemented a program in New England called “Disability Service Improvement” that was supposed to enhance Social Security’s ability to reach the right decision more quickly by imposing hard deadlines for the submission of evidence, making it harder to reopen prior applications, and appointing a “Federal Reviewing Officer” who could act as an advocate against granting benefits. The Federal Reviewing Officer has been scrapped, but many of the restrictive evidentiary and procedural rules have remained in effect in New England. Meanwhile grant rates have plummeted around the country. From 2000 to 2014, the percentage of applications that were ultimately granted shrunk from 46.72% to 32.16%, even as the number of applications has started to fall since its height during the peek of the Great Recession. See SSA Statistics. While this strategy may succeed in saving money for the Social Security Trust Fund, only time will tell whether it succeeds for America, or whether we will see deeper and prolonged poverty among Americans suffering from disabilities.