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)).  

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).

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).