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.

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.