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R. V. v. Magtown Ventures LLC/The Hartford (July 29, 2008)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , Author:

R. V. v. Magtown Ventures LLC/The Hartford (July 29, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. V. Opinion No. 33-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Magtown Ventures, LLC. For: Patricia Moulton Powden
The Hartford Commissioner
State File No. W-07853
OPINION AND ORDER
ATTORNEYS:
Christopher McVeigh, Esq. for the Claimant
Eric Johnson, Esq for Magtown Ventures/The Hartford
ISSUES:
Motion for Stay filed by Defendant
Motion for Attorneys’ Fees filed by Claimant’s Attorney
Motion for Clarification regarding the controlling date for application of Guides for PPD, and
whether the Department acted within its discretion and jurisdiction applying the AMA Guides to
the instant case.
DECISION
A decision, however brief, was issued in this case granting summary judgment to the
Claimant based on the fact that the Department, in its discretion and under its jurisdiction, found
that the AMA Guides for the Evaluation of Permanent Impairment, 6th Edition were never in
effect and this remains true. This is based on a finding that the corrected edition of a 6th Edition
is yet to be approved by the AMA. (See attached e-mail from Brigham and Associates)
The Motion to Stay is DENIED. The Defendant has failed to prevail on demonstrating
that there is a strong likelihood of success on the merits of the case, that it will suffer irreparable
harm if the decision is not stayed, that the Claimant will not be irreparably harmed and that a
stay is in the best interest of the public. The Claimant has argued many of these points effectively
and this hearing officer agrees that not all of the factors can be met.
The appropriate time for using a particular Edition of the AMA Guides is controlled by
statutes, decisions by the Vermont Supreme Court, Decisions issued by the Department of Labor,
Department Rules and the interpretation of all of them. In the instant case, we find both the date
of injury and the date of medical end result fall within the period where the Fifth Edition of the
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AMA Guides was in effect. Thus, it is not even necessary to argue or decide this point of law.
The determination of partial permanency must be under the Fifth Edition of the AMA Guides.
The Department has jurisdiction to determine which AMA Guideline is in effect. 21
V.S.A. §§ 603,606,709 provide for the Commissioner’s discretion to make decisions interpreting
law when applied to workers’ compensation cases. The AMA Guides, 6th edition, has not yet
been approved fully by the A.M.A., although some states do use it. Both the Department of
Labor and Vermont’s legislature have chosen not to use this edition.
Since the Claimant has prevailed, attorneys’ fees are awarded in the amount of 8.6 hours
of attorney hours paid at the rate of $90.00 per hour.
ORDER:
Defendant’s Motion to Stay Denied.
Claimant’s Request for Clarification is found moot.
Claimant’s Award for Attorney’s Fees is granted as stated above.
DATED at Montpelier, Vermont this 29th day of July 2008.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§ 670, 672.

J. B. v. Steven Betit (September 26, 2008)

Categories: Workers' Compensation Hearing DecisionTags: , , Author:

J. B. v. Steven Betit (September 26, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. B. Opinion No. 32S-08WC
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Steven Betit
For: Patricia Moulton Powden
Commissioner
State File No. Y-51024
RULING ON DEFENDANT’S MOTION FOR STAY
Defendant moves to stay the Commissioner’s July 21, 2008 Order, as amended on August 7, 2008, in three respects. First, Defendant argues that the Commissioner’s reliance on Dr. Gennaro’s impairment rating rather than Dr. Boucher’s was unsupported by the objective evidence. Second, Defendant argues that the Commissioner should not have awarded penalties and interest. Last, Defendant argues that the Commissioner should not have granted Claimant’s request for payment of permanency benefits in a lump sum, and therefore should not have included the Social Security offset language required by 21 V.S.A. §652(c) in her amended Order.
According to 21 V.S.A. §675, an award or order issued after a formal hearing “shall be of full effect from issuance unless stayed by the commissioner, any appeal notwithstanding.” To prevail on a request for a stay, the moving party must demonstrate all of the following:
1. That it is likely to succeed on the merits;
2. That it will suffer irreparable injury if a stay is not granted;
3. That issuing a stay will not substantially harm the other party; and
4. That the best interests of the public will be served by issuing a stay.
In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).
As to Defendant’s request for a stay of the award of permanency benefits in accordance with Dr. Gennaro’s impairment rating, I find that it has failed to establish that it is likely to succeed on the merits in its appeal. Dr. Gennaro’s expert testimony reflected a credible interpretation of the applicable sections of the AMA Guides, one that I must believe will be sustained on appeal. Defendant’s request for a stay of this portion of the award is DENIED.
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Defendant’s request for a stay of the award of penalties and interest is more problematic. As the opinion in this matter reflects, in making this award the Commissioner took judicial notice of the forms and correspondence contained in the Department’s file at the time of the hearing. Unfortunately, the hearing officer was not aware of additional correspondence between the parties that had been received prior to the record closing date but had not been incorporated into the Department’s file. It appears from that correspondence that Defendant did in fact advance permanency benefits in accordance with Dr. Boucher’s impairment rating as it was required to do under Workers’ Compensation Rule 3.1200. If that is the case, then the award of penalties and interest may have been improper. With that in mind, I find that Defendant has met the requirements for a stay as to this portion of the award, and it is therefore GRANTED.
Last, Defendant requests a stay of the award of Claimant’s permanency benefits in a lump sum. I find that a lump sum payment is in Claimant’s best interests and that given the social security offset ramifications Claimant will be substantially harmed if this portion of the award is stayed. For that reason, Defendant’s request for a stay of this portion of the award is DENIED.
DATED at Montpelier, Vermont this 26th day of September 2008.
____________________________
Patricia Moulton Powden
Commissioner

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