Forms For July 1 COLA Adjustment Available

The Vermont Department of Labor has posted the form for Notice in Change of Compensation Rate for fiscal year 2016 on its website.  Compensation shall be adjusted on July 1, 2016 for any worker who has received wage replacement benefits for 26 weeks as of that date.

The statute requires that with regards to the computation of the average weekly wage, “[c]ompensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of injury. Temporary total or temporary partial compensation shall first be adjusted on the first July 1 following the receipt of 26 weeks of benefits.” 21 V.S.A. § 650(d).

An exception to the COLA increase exists.  If a worker is not receiving disability benefits on July 1, the worker is not entitled to a cost of living adjustment for that year when such benefits subsequently are reinstated.  Birchmore v. The McKernon Grp., Op. No. 40-11WC (2011); Bollhardt, Op. No. 51-04WC (2004); V.S. v. Kennametal, Op. No. 19-07WC (2007).

The 2016 Form is located on line at:

http://labor.vermont.gov/forms/#comp

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)).  

Mileage To/From Work Deducted From Travel To/From Medical Appointments

The Vermont Department of Labor has reiterated that an employer/carrier is entitled to deduct mileage for the normal commute distance from the mileage to and from physician visits. Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014).

A worker who travels to receive medical treatment is entitled to mileage reimbursement for "mileage beyond the distance normally traveled to the workplace."  Id., (citing Workers' Compensation Rule, 12.21).  Such a rule denies reimbursement for regular commuting expenses but serves to "make the worker whole by providing compensation that he or she would not have incurred but for the work injury." Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014)(citing, Fosher v. Fletcher Allen Health Care, Op. No. 11-11 WC (May 5, 2011).  The deduction of mileage for the commute occurs whether the injured worker is employed or receiving temporary benefits at the time of the medical service.

Employer Not Required to Pay for Services Provided By Unlicensed Provider

The Vermont Department of Labor has ruled an employer/carrier is not responsible for paying for treatment provided by an unlicensed or uncertified provider if Vermont law requires that only a licensed or certified practitioner can provide a particular type of medical service.  Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014).

The workers' compensation statute requires the employer to pay for reasonable medical services caused by a work injury, provided they were "lawfully delivered medical services."  Id. (citing 21 V.S.A. §640). If a practitioner is not required to be licensed or certified to provide treatment under Vermont law, then the employer may be responsible for paying a charge for service.  V.O. Windsor Hospital, Op. No. 12-08 WC (March 27, 2008)(citing 21 V.S.A. §640(a)).

Additionally, the decision reaffirms that an employer is not obligated to to pay charges of a provider who fails to maintain treatment records or submit appropriately documented medical bills.  Myrick v. Ormond Bushey and Sons, Op. No. 07-14 WC (April 25, 2014).

Lent Employee Doctrine Revisited

The lent employee doctrine occurs when one employer, the general employer, lends an employee to another employer, the special employer. The presumption is that employment continues under the general employer and the general employer remains liable for injuries suffered by the employee. See Thorn v. Albany Ladder, Op. No. 17-02WC (Apr. 2, 2002) (citing 3 Larson’s Workers’ Compensation Law §67.03). This presumption may be overcome if there is “a clear demonstration that a new temporary employer has been substituted for the old.” Id. In order for the special employer to become liable: “[T]here must be a contract of hire, express or implied between the special employer and employee. . . . This involves an informed consent by the employee before the employment-relation can be said to exist. This requirement being met, there remains the necessity of showing that the work being done is essentially that of the special employer and lastly that such special employer has the right to control the details of the work.” Mercier v. Holmes, 119 Vt. 368, 375 (1956).

Insurer Not Responsible For Paying Wages When Employee Misses Work to Attend Medical Appointment

The Department of Labor has ruled that a workers’ compensation insurance carrier has no obligation to pay wages to an employee when that employee misses work to attend a medical appointment for treatment of a work injury.  Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).  The Act states that, “an employer shall not withhold wages from an employee for an employee’s absence from work for treatment of a work injury, or to attend a medical examination related to a work injury.” 21 V.S.A. § 640(c).  The Department has concluded that the term “employer” in this context does not include the insurance carrier as the statute confers on the carrier an obligation to pay “compensation,” or “benefits” and those terms are not synonymous with “wages”. Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).

The Department has mandated that the current employer of a worker who has suffered a work injury not withhold the employee’s wages while attending a medical appointment for treatment of a work related injury.  Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).  This is true whether the worker was injured at the current place of work, or at an earlier workplace.  The Department found a distinction in the Act between the use of the term “an employer” versus the term “the employer” concluding that the, “indefinite article “a” connotes a more general reference.” Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014); See, e.g., State Farm Fire & Casualty Co. v. Old Republic Insurance Co., 644 N.W. 2d 715,718 n.5 (Mich. 2002).  The Commissioner concluded the specific language was a choice by the Legislature of an intent to broaden the prohibition against wage withholding to encompass not only the employer where the injury occurred but any future employer. Hathaway v. Griswold, Op. No. 04-14WC (March 17, 2014).

DOL Rules the Claimant's Expert Fails to Provide Credible Evidence

The Vermont Department of Labor has affirmed its prior holdings that a claimant must provide a persuasive medical opinion to meet its burden of proof on medical causation.  Meau v. The Howard Center, Op. No. 1-14WC (January 24, 2014). 

The Department's opinion held that an expert, "merely stating a conclusion to a reasonable degree of medical certainty does not make it so." Meau v. The Howard Center, Op. No. 1-14WC (January 24, 2014), citing Seymour v. Genesis Health Care Corp., Op. No. 53-08WC (December 29, 2008). Even if the analysis of the Defendant's expert has weaknesses, the claimant's expert must still provide an opinion strong enough on its own to persuade the Commissioner.  Specifically, when a medical provider claims medical literature supports the opinion proffered, there must be sufficient specificity for the finder of fact to evaluate the strength of the assertion.  See, Meau v. The Howard Center, Op. No. 1-14WC (January 24, 2014).

DOL Rules Temporary Partial Benefits are Not Capped By Maximum Weekly Compensation

The Department of Labor has found that temporary partial disability benefits are not subject to the maximum weekly cap set forth in 21 V.S.A. §642.  Pawley v. Booska Movers, Op. No. 2-14WC (February 19, 2014). 

In the decision the Department noted the language differences in the statute.  While the temporary total disability section of the statute includes specific language limiting temporary total benefits to "not more than the maximum nor less than the minimum weekly compensation," the temporary partial disability section of the statute has no such corresponding language.  See,  21 V.S.A. §642; 21 V.S.A. §646.  The decision notes, "Where the Legislature includes particular language in one section of a statute, but omits it in another section of the same act, it is generally presumed that the Legislature did so advisedly."  Pawley, supra., citing In re Munson Earth Moving Corp., 169 VT 455, 465 (1999); see also, Archer v. Department of Employment Security, 133 VT 279, 281 (1975).

The plain language requires a finding that temporary total benefits are capped while temporary partial benefits are not. Pawley v. Booska Movers, Op. No. 2-14WC (February 19, 2014). 

Department of Labor Bars PTD Claim Based on Statute of Limitations

The Vermont Department of Labor has granted summary judgment to an employer and denied a permanent total disability claim as being time barred by the statute of limitations. Labbe v. Lunenburg Fire District #2, Op. No. 25-13WC (November 26, 2013)

In Vermont a permanent total disability claim cannot accrue until "it becomes reasonably apparent, both medically and vocationally, that as a result of his or her work injury a claimant will most likely never be able to return to gainful employment." Labbe v. Lunenburg Fire District #2, Op. No. 25-13WC (November 26, 2013) (citing  Hoisington v. Ingersoll Electric, Op. No. 52-09WC (December 28, 2009)). In this instance over ten years had passed between the date three doctors opined that the claimant was "100 percent disabled", "essentially unemployable and 100 percent disabled" and "totally disabled" with "no functional work capacity" and the filing of the PTD claim.  Id. The Department concluded that the cumulative effect of those three opinions should have made it reasonably apparent that the worker will most likely never be able to return to gainful employment and "should have triggered her to take action to protect her rights." Id.

Department Reiterates Worsening of Preexsting Condition Compensable

Where a pre-existing condition is worsened by any degree because of a work injury or condition of work, resulting medical treatment is compensable.  Goodwin v. AmeriGas Propone, Op. No. 21-13WC (September 10, 2013). When considering a progressively degenerative disease, where "the disease, if left to itself, and apart from any  injury, would, in time, have inevitably caused a complete disability," the causation test becomes whether, due to a work injury or the work environment, "the disability came upon the claimant earlier than otherwise would have occurred." Stannard v. Stannard, 2003 VT 52 ¶11 (May 29, 2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989) (internal quotations and citations omitted).

 

The Department of Labor decision can be found here:

http://www.labor.vt.gov/portals/0/WC/GoodwinDecision.pdf

 

 

Department Rules No Wage Replacement When No Wages are Earned Prior to TTD Period

If an injured worker has not earned any wages at all during the weeks preceding a period of total disability, then unless the failure to earn wages was the result of an injury-related consequence rather than a personal choice, in most cases no benefits will be due. Duffy v. Sisler Builders, Op. No. 20-13WC (August 28, 2013), (citing See, e.g., Bacon v. Gerald E. Morrissey, Inc., Opinion No. 32-11WC (October 12, 2011); Giacobbe v. Verizon, Opinion No. 72-05WC (December 30, 2005); Knoff v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005); see also, Plante v. State of Vermont Agency of Transportation, Opinion No. 19-13WC (August 22, 2013) (applying same analysis to compensation rate computation for successive period of disability); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010) (same)). There are exceptions as noted in Machia v. Comet Confectionary, Op. No, 32-07WC (December 4, 2007).

 

The Duffy decision can be found at the Department of Labor Website:

 

http://www.labor.vt.gov/portals/0/WC/DuffyDecision.pdf

 

 

Employer Ordered to Pay for Medications

The worker suffered a low back injury at work.  The parties subsequently agreed to a settlement that allowed the claimant to continue to receive medically reasonable and necessary treatment that was related to the work injury.  The employer filed for discontinuance of medications based on a records review that concluded the medications were not necessary for treatment of a work-related injury but rather for other personal medical conditions.  The doctor also questioned whether the use of some of the medications, which were being used in “an off-label context,” was medically appropriate.  Perry v. State of Vermont, Op. No. 13-13WC (2013).

The Department of Labor concluded that the employer is responsible only for those medical treatments that are reasonable and causally related to the injury.  Perry v. State of Vermont, Op. No. 13-13WC (2013) (citing 21 V.S.A. §640(a); Baraw v. F.R. Lafayette, Inc., Op. No. 01-10WC (2010); MacAskill v. Kelley Servs., Op. No. 04-09WC (2009)).  Utilizing the commonly cited five factor test, the Department concluded that the claimant’s treating doctor’s opinions as to causality and necessity were more credible than the employer’s doctor’s opinions. Perry v. State of Vermont, Op. No. 13-13WC (2013) (citing Geiger v. Hawk Mountain Inn, Op. No. 37-03 (2003)).  Specifically, the Department cited the fact that the claimant’s expert was a treating physician and that relationship allowed him to: differentiate between the work-related injury symptoms and the symptoms that resulted from personal medical issues; and use trial and error to create a successful pharmacology regime evidence by better pain control, fewer drugs and lower dosages.  Perry v. State of Vermont, Op. No. 13-13WC (2013).  The Department further concluded that the employer’s expert opinion was based on an assumption, rejected by the Department, that the claimant’s personal medical diagnosis excluded all other possible causes for the worker’s pain complaints.  Such reliance rendered his opinion unpersuasive.  Perry v. State of Vermont, Op. No. 13-13WC (2013).

Employer Ordered to Pay for Cervical Myelopathy

The worker, a short haul freight driver, hit his head while in the employ of the defendant when moving out from underneath a trailer.  He was dazed and suffered a cut to his head but completed his route that day.  He continued to work his regular shifts, “without incident” until he began experiencing symptoms in his lower extremities a number of days later.  Then while at the bank preparing for vacation, he described upper extremity symptoms.  His arms felt heavy and weak.  His hands were numb and unresponsive.  On his vacation, the claimant traveled via motorcycle to South Dakota.  While in South Dakota, his symptoms worsened, his balance was off, he could not walk well and he was unable to return on his motorcycle.  A neurosurgeon at Fletcher Allen Health Care diagnosed him with a disc herniation that was pressing on the spinal cord rather than a nerve root (cervical spondylotic myelopathy) and performed a disc excision and fusion.  He opined the claimant suffered a disc herniation when he hit his head on the underside of the trailer and over the subsequent three weeks he developed the progressive cervical myelopathy.  The employer denied the surgery utilizing a medical opinion that the disc herniation was the result of a natural degenerative process in the claimant’s cervical spine.  The employer’s expert relied on the radiographs of the claimant’s cervical spine taken on the date of the injury which showed an advanced degenerative process, in support of his position.  He also opined that the motorcycle trip was a more likely cause of an aggravation of the pre-existing condition due to the relationship between the trip and the worsening of symptoms. Cain v. New Penn Motor Express, Inc., Op. No. 12-13WC (2013).

The Department of Labor concluded that the treating doctor’s opinion was more credible than the employer’s expert, relying heavily on the “clarity, thoroughness and objective support underlying the opinion.” See Geiger v. Hawk Mountain Inn, Op. No. 37-03 (2003) (citing the five-part test for assessing physician credibility: (1) the nature of the treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all the pertinent medical records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the expert’s qualifications). The claimant’s doctor adequately explained how the progression of symptoms, though intermittent, explained the worsening of the myelopathy subsequent to the injury.  The defendant’s expert did not adequately address how the motorcycle trip was the cause of the injury when the symptoms began prior to the trip and could not explain what specific elements of the trip were responsible for the causal relationship.  Cain v. New Penn Motor Express, Inc., Op. No. 12-13WC (2013).

Is An Injury At the Company Picnic Compensable?

The leading commentator on workers’ compensation law has concluded that "Even if the employer is the sponsor of a regular annual company picnic, the employment connection may be inadequate if there is nothing more--no compulsion of any kind to attend, no pep talks or other business, no transportation, no wearing of uniforms." 1A Larson, at § 22.23(a).  For a company picnic to be compensable the facts must support that the event was sufficiently related to the claimant's employment.  Factors to consider are: whether the picnic took place on company time; whether the participants are paid for their attendance; whether people who do not attend the picnic are required to work; whether a percentage of the employees not participate; and whether  the company uses the occasion for any politicking amongst its employees. Delorme v. Johnson Printing Co., Opinion No. 4-90WC (1990); Michael Riley v. Norrell Services Opinion No. 20-95WC (1995).  There must be a correlation between obligations of work and the activity.

Employer’s Contribution to Health Insurance Premium Is Not Included In Calculation of Average Weekly Wage

Today the Vermont Supreme Court ruled in a 3-2 decision that employer-paid health insurance premiums are not wages as defined by the Vermont Workers’ Compensation Act.  Lydy v. Trustaff, Inc./Wausau Insurance Company, 2013 VT 44 (3–2)

The injured worker argued the Department of Labor's long held interpretation that the employer’s contributions to health insurance premiums are not to be included in the calculation of average weekly wage was incorrect as a matter of law.  Today's decision upheld the Commissioner's interpretation of the statute as expressed in this case and cited favorably the earlier DOL decision,  Pelissier v. Hannaford Bros., No. 26-11WC (Sept. 9, 2011).  Justice Skoglund, writing for the majority noted that, “The costs [of health insurance premiums] are not tied to the employee’s labors and instead are based on factors unconnected to the employee.  The existence of the insurance and the calculation of the employer’s contribution to it does not equate to a measurement of the benefit to the employee.”  Lydy v. Trustaff, Inc./Wausau Insurance Company, 2013 VT 44 ¶ 14.  In Vermont the employers’ contributions to health insurance “do not reflect the employee’s labors or compensation as defined through wages.” The amounts paid by the employer for health insurance premiums are not included in the calculation of average weekly wage.

CRPS Impairment Allowed Despite The Diagnosis' Failure to Meet AMA Guides Criteria

 

The Vermont Supreme Court has ruled by a 3-2 majority that the Commissioner of Labor may determine a permanent impairment rating for Complex Regional Pain Syndrome (CRPS) under the AMA guides even though claimant was not diagnosed with CRPS under the criteria listed in the AMA Guides. The Court's decision rejected the rulings by the superior court and the Commissioner. Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38 (June 21, 2013).  The statute provides: “Any determination of the existence and degree of permanent partial impairment shall be made only in accordance with the whole person determination as set out in the fifth edition of the [AMA Guides].” 21 V.S.A. §648(b). The Claimant's expert in this case diagnosed the injured worker as suffering from CRPS but did not use the AMA Guides criteria as the basis for the diagnosis.  The Vermont Supreme Court has held that the statute requires that the Guides be used for the determination of percentage of impairment, not the diagnosis of a condition.

Awaiting Decision on Employer’s Contributions to Group Health Insurance Premium

On February 8, 2012, the Vermont Department of Labor, citing Pellisser v. Hannaford Brothers, Op. No. 26-11 WC (2011), affirmed its longstanding ruling that the employer’s contributions to a claimant’s group health insurance premium should not be included in average weekly wage and compensation rate calculations.  The case, Lydy v. Trustaff, Inc., Op. No. 05-12 WC (2012), was appealed to the Vermont Supreme Court.  The matter was briefed to the Court and oral arguments were held on September 12, 2012. A decision is expected shortly.