The Vermont Department of Labor published 16 decisions to
the database in 2014. The decisions
involve a number of topics ranging from jurisdiction and arising out of and in
the course of employment, to what benefits are owed, to the often litigated, disputes between medical professionals. This summary highlights parts of
some of those rulings.
The Department kept jurisdiction of a case where the alleged
employee was hired to work on a Vermont job site by a company that was based in
another state, noting, “The evidence establishing that the claimant was injured
in Vermont, while engaged in work activities on behalf of a covered employer,”
gives the Department jurisdiction. Flores-Diaz v. Joel Letourneau Drywall, LLC.,
Op. No. 10-14WC (July 25, 2014). The
Department focused on the public policy of affording protection to workers who
are injured when hired to work on Vermont job sites. Supra.
Arising Out Of And In The Course of Employment
A Claimant’s injury arose out of and in the course of
employment when she was injured at home after tripping while trying to catch
her dog, because she went home to retrieve work materials. Lopez
v. The Howard Center, Op. No. 12-14WC (August 7, 2014). The Department concluded that the trip to
retrieve the materials was a special errand establishing a work related
component to the trip home and further finding that attempting to catch her
dog that had escaped was not a sufficient deviation to deny benefits. Supra. The Commissioner found that while the
deviation contributed to the injury, the deviation was “temporally brief, geographically short and reasonable
under the circumstances.” Supra.
When calculating average weekly wage, a Claimant is not
entitled to include only wages earned from one portion of his job. Pawley v. Booska Movers, Op. No. 02-14WC
(February 19, 2014) (Claimant’s argument
that only his wages while working in his “primary position” as a long-haul driver,
not the hourly wages attributable to his local delivery work, should be
included in computing his average wage was denied). The Department concluded that, “Wages are wages, no matter how earned.” Supra.
With regard to temporary partial benefits, they are not capped at a weekly rate
like temporary total benefits. However, to be compensable, reduced earnings must
result from an injury-related disability and not from a personal choice. Supra.
Mileage Reimbursement
The insurer is not responsible for reimbursing mileage for
treatment with an unlicensed provider. Myrick v. Ormond Bushey & Sons, Op.
No. 07-14WC (April 24, 2014).
Wage Reimbursement For Medical Treatment
A Defendant’s
workers’ compensation insurance carrier is not obligated
to reimburse Claimant for wages withheld by his current employer when a
claimant attends a medical appointment for a work related injury. Hathaway v. ST Griswold, Op. No. 04-14 (March 14, 2014); 21 V.S.A. §640(c). The obligation for reimbursing a Claimant's claim for wages in this
circumstance lies, if at all, against his current employer. Supra.
Attorney's Fees
Two Departmental
decisions focused on what must be proved for a Claimant to collect attorney’s fees after an
award of benefits at the informal level.
A portion of the requested attorney’s fees were awarded when after
receiving new information upon which to determine whether the grounds for
denial still exist: the Defendant delayed in investigating the matter; the
claimant obtained an attorney who filed documentation to support the claim; and
the claim was ultimately ordered at the informal level and accepted without
prejudice. Hoyt v. Chittenden South
Supervisory Union, Op. No. 9-14WC (May 15, 2014). However, no attorney’s
fees were awarded following an interim order when the insurance
carrier did not unreasonably deny the claim, or otherwise engaged in
misconduct, neglect or undue delay. Ploof v. Franklin County Sherriff’s
Department, Op. No. 13-14WC (August 7, 2014).
Vocational Benefits
The vocational
rules do not require that a Claimant be returned to a specific job or
preferable job, just a suitable one. Hathaway v. ST Griswold, Op. No. 04-14
(March 14, 2014). The Commissioner noted, “The goal of vocational
rehabilitation is to restore earning skills, not necessarily to procure a
particular job.” A Claimant’s
“successful return to suitable employment for at least 60 days is itself
sufficient proof of employability as to justify terminating vocational
rehabilitation services.” Supra.
Estoppel
The doctrine of equitable estoppel may be raised by a party
when that party, in good faith, changed
his or her position in reliance upon earlier representations. Bohannon
v. Town of Stowe, Op. No. 03-14WC (February 26, 2014) (Claimant allegedly
reported a work injury to the employer and will be afforded an opportunity at
trial to out forth his belief he had taken all of the steps necessary to assert
his rights under the workers’ compensation statute based on the employer’s
actions).
Competing Medical Opinions/Credibility of Experts
A number of cases involved the Commissioner deciding which
of two competing medical opinions was more persuasive. See, Meau
v. The Howard Center, Inc., Op. No. 1-14WC (January 24, 2014); Phillips
v. Orange North Supervisory Union, Op. No. 5-14 (March 21, 2014); Brodeur v. Energizer Battery Manufacturing
Inc., Op. No. 06-14WC (April 2, 2014); Dobson
v. Ethan Allen Interiors, Inc., Op. No. 11-14WC (July 25, 2014). The Department has continued to utilize a five
part test to determine which
expert’s opinion is the most persuasive: (1) the nature of treatment and the
length of time there has been a patient-provider relationship; (2) whether the
expert examined all pertinent records; (3) the clarity, thoroughness and
objective support underlying the opinion; (4) the comprehensiveness of the
evaluation; and (5) the qualifications of the experts, including training and
experience. Meau v. The Howard Center, Inc., Op. No. 1-14WC (January 24, 2014) (citing Geiger v. Hawk Mountain Inn,
Opinion No. 37-03WC (September 17, 2003)).
