Highlights of VDOL Cases 2014

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.

Jurisdiction

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.

Average Weekly Wage Calculation

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)).  

Attorney Lien Rules Of Note

Attorneys who represent injured workers sometimes file liens with the Department of Labor. This has prompted questions about what effect such a filing has on the employer/carrier.

Attorneys may request for acknowledgement of a lien to the commissioner at any time after the representation commences, if the following steps are taken:  (1) it must be in writing; (2) copied to the claimant; and (3) it must be accompanied by a copy of the written fee agreement executed by the claimant. Vermont Workers’ Compensation Rules, Rule 10.4010.  The Commissioner will acknowledge the lien and mail notice of the claim against future benefits to the employer/carrier and to the claimant.  Vermont Workers’ Compensation Rules, Rule 10.4011.

Once an employer/carrier has been provided notice by the commissioner of an acknowledged attorney’s lien, the carrier must reserve $15,000.00 or 20% of the amount of any permanent disability compensation due, and/or any lump sum payment of retroactive temporary total disability benefits, whichever is less.  Vermont Workers’ Compensation Rules, Rule 10.4012.  The carrier must also notify the claimant’s attorney prior to issuing payment to the claimant. Vermont Workers’ Compensation Rules, Rule 10.4012.  Failure to reserve the amounts from permanent disability compensation due, and/or any lump sum payment of retroactive temporary total disability benefits “shall make the employer/carrier liable, in the commissioner’s discretion, for payment to the attorney of the amount of an acknowledged lien.”  Vermont Workers’ Compensation Rules, Rule 10.4012. 

An attorney representing an injured worker may request enforcement of a lien but it must made prior to the date the benefits subject to the lien are due and payable, and it must be done in a timely fashion so as not to impede disbursement of benefits payments to the injured worker.  Vermont Workers’ Compensation Rules, Rule 10.4020, Rule 10.4021.  The request for enforcement should be in writing and include:  a copy of the fee agreement executed by the claimant; and an itemized statement detailing both the work performed and the hours billed. Vermont Workers’ Compensation Rules, Rule 10.4020. If approved, “the commissioner shall direct the employer/carrier to deduct the amount approved and advance it to the attorney against the end of any permanent disability compensation due, and/or against any lump sum payment of retroactive temporary disability benefits.”  Vermont Workers’ Compensation Rules, Rule 10.4030.

Legislative Changes Include Changes in Third Party Recovery, Recoverable Costs, Investigation of Fraud, Access to Workplace Safety Records and Promulgation of Rules

The economic development bill that was recently passed by the Vermont Legislature contains a number of provisions that will change certain aspects of workers’ compensation claims administration.  A summary of those changes is located at: http://vtcompbulletin.blogspot.com/2014/05/new-laws-place-limits-on-ime-increase.html.

However, there are other changes as well. They include: Reimbursement to the employer/carrier from the claimant’s third party recovery; Recoverable costs at hearing or trial; Investigation of Fraud; Employee access to workplace safety records; and The Commissioner must adopt rules for prescription of opiods and for promoting cost effective, early, return to work programs.  Assuming the Governor signs the legislation, these changes will be effective July 1, 2014.

Reimbursement from Third Party Recovery:

The legislature has changed the way an employer and workers’ compensation insurance carrier is reimbursed for benefits paid under the Workers’ Compensation Act.  If, after deducting expenses of recovery, the recovery is less than the full value of the claim, the reimbursement to the employer shall be limited to that portion of the recovery allocated for damages covered by the Act.  If the Court has not allocated the recovery or the parties have not agreed to an allocation, then either party may request that the Commissioner make an administrative decision as to the allocation. When a request is made, mediation shall be ordered and, if unsuccessful, the Commissioner may make a determination or order arbitration on the matter.  See 21 VSA §624(e).

Recoverable Costs:

The legislature has now included deposition fees, subpoena fees and expert witness fees as recoverable costs for prevailing claimants.  See 21 VSA §678(a). 

Investigation of Fraud:

The statute contains a provision requiring that any claim of fraud first be investigated by the employer, or carrier and shall then be submitted in a written report to the Department.  Once received by the Department the worker shall have 30 days to respond in person or in writing.  The Department shall issue a determination on the allegation to which any party may appeal.  See 21 VSA §663b(a). An employee found to have committed fraud in order to receive workers’ compensation shall be ordered to repay the compensation fraudulently received in addition to any other penalties.  See 21 VSA §663b(b).  The Department has been mandated to study and report by January 2015 on the best practices to detect and deter workers’ compensation fraud.

Employee and Commissioner Access to Workplace Safety Records:

It has been mandated that an employer shall post a notice advising employees of where they may review the employer’s record of workplace safety in accordance with rules to be adopted by the Commissioner.  These records shall be reviewable by the employees and the Commissioner but shall not otherwise be publicly available.  See 21 VSA §691a.

Rules for Prescribing Opiods:

The Legislature, intending to protect employees from the dangers of prescription drug abuse, and the Commissioner, in consultation with other state departments, agencies and boards, has been charged with adopting rules consistent with best practices for prescribing opiods to employees who have suffered work related injuries. The rules will include patient screening, drug screening and claims adjudication.   See 21 VSA §640c(a)(b).

Rules for Cost Effective, Early, Return to Work Programs:

In an attempt to return an injured employee to work as soon as possible within any limitations, the Commissioner shall adopt rules promoting the implementation and development of cost effective, early, return to work programs.  See 21 VSA §641.

Making Settlement Payments Payable to Claimant's Attorneys

Common practice in Vermont has been that a lump sum payment for benefits is made payable to the claimant and sent to the claimant's attorney with Department approval.  It appears that, due to IOLTA (Interest on Lawyer's Trust Accounts) trust account requirements, attorney's representing injured workers have recently requested that drafts be made payable jointly to the injured worker and the attorney. 

The Vermont Workers' Compensation Rules provide that, "a check for a claimant's workers' compensation benefits may not be made payable either solely or jointly to the claimant's attorney unless approved, in writing, by the commissioner." Vermont Workers' Compensation Rules, Rule 10.5  Carriers may consider incorporating language into the settlement documents that allows the settlement draft to be made payable to the injured worker and the injured worker's attorney.  This can be done in addition to the language allowing for the settlement draft to be sent to the injured worker's attorney.