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.