Archive

Tag Archive for: attorneys fees

Christine Erickson v. Kennedy Brothers Inc (March 25, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Christine Erickson v. Kennedy Brothers Inc (March 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christine Erickson Opinion No. 36A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kennedy Brothers, Inc.
For: Anne M. Noonan
Commissioner
State File No. S-09163
RULING ON CLAIMANT’S REQUEST FOR AWARD OF ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on December 14, 2010. The disputed issues were (1) whether Claimant’s L4-5 disc herniation was causally related to her November 2001 compensable work injury; and (2) if yes, to what workers’ compensation benefits was Claimant entitled.
The Commissioner ruled in Claimant’s favor on the first issue. As to the second issue, the Commissioner ruled that Claimant was entitled to medical benefits causally related to her injury, but denied her claim for temporary disability and/or mileage benefits. The Commissioner also ruled that as Claimant had “substantially prevailed,” she was entitled to an award of costs and attorney fees “commensurate with the extent of her success.” 21 V.S.A. §678; Hatin v. Our Lady of Providence, Opinion No. 21S-03WC (October 22, 2003).
Claimant now has submitted a request for an award of costs totaling $7,212.64 and attorney fees totaling $21,648.00. Defendant has raised various objections, each of which is considered below. Fees Commensurate with the Extent of Claimant’s Success
Defendant argues that any award of fees and costs should be reduced substantially in recognition of the fact that the claims on which Claimant failed to prevail – temporary total disability and mileage reimbursement – are the ones that would have netted her an immediate monetary recovery. In contrast, the claims upon which she prevailed – compensability and medical benefits – resulted primarily in reimbursement to her medical providers, with no immediate monetary recovery to her.
Defendant’s argument misses the mark. Although they would have resulted in a small, albeit immediate, monetary award, the claims upon which Claimant failed to prevail were relatively minor. Of far greater import in the long run was the determination that her disc herniation is compensable. With that determination, Claimant may well become entitled to additional benefits in the future. This possibility alone is enough to justify awarding a significant portion of the attorney fees incurred.
2
Updated Attorney Fee Reimbursement Rate
Defendant next argues that whatever attorney fees are awarded must be based on the reimbursement rate in effect as of the date of her injury, November 23, 2001. Workers’ Compensation Rule 10.1210 provided for a rate of $90.00 per hour at that time. Effective June 15, 2010 the rule was amended, and the rate increased to $145.00 per hour. Claimant incorporated the change into her fee request, and seeks an award at the updated rate for all legal services provided after June 15, 2010. Defendant argues that because the rule change was substantive rather than procedural, it cannot be applied retroactively, and therefore the old rate must apply throughout.
Workers’ Compensation Rule 46.1000 provides: “Procedures under these rules, not affecting the substantive rights of a party, shall apply to pending and future claims and cases.” Had the amendment at issue here created a new right to attorney fees where one had not existed before, this might indeed constitute a substantive change. But where the change merely alters the rate at which such fees are to be awarded, the amendment is properly categorized as procedural. Estabrook v. New England Precision, Opinion No. 10-00WC (May 16, 2000). It is appropriate, therefore, to apply the amended rate to new charges incurred after its effective date.
Recoverable Costs
Last, Defendant argues that various fax and copying charges should not be allowed as costs because Claimant has not established that they were “actually incurred.” I am satisfied that the costs are legitimate, reasonable and well within the spirit of Rule 10.3000.
Conclusion
I conclude that Claimant is entitled to an award of her costs as submitted, totaling $7,212.64.
As for attorney fees, as noted above the Commissioner typically exercises the discretion granted by 21 V.S.A. §678 to award only those attorney fees that are commensurate with the extent of the claimant’s success. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003). In addition, the Commissioner also considers such factors as whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Id., and cases cited therein. Considering those factors in the context of the current claim, I conclude that it is appropriate to award Claimant 90% of the fees requested, or $19,483.20.
3
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $7,212.64; and
2. Attorney fees totaling $19,483.20.
DATED at Montpelier, Vermont this 25th day of March 2011.
__________________
Anne M. Noonan
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.

Arnold Griggs v. New Generation Communication (December 29, 2010)

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

Arnold Griggs v. New Generation Communication (December 29, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arnold Griggs Opinion No. 30A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
New Generation Communication
For: Valerie Rickert
Acting Commissioner
State File No. P-15250
RULING ON CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on October 1, 2010. Among the issues presented were Claimant’s entitlement to temporary total disability benefits for a three-month period following his February 2006 fusion surgery, the extent of the workers’ compensation “holiday” Defendant enjoyed following Claimant’s settlement of two third-party actions, and Claimant’s entitlement to penalties and interest.
The Commissioner ruled in Claimant’s favor on the issues relating to the extent of Defendant’s workers’ compensation “holiday.” She awarded him temporary disability benefits for one-half of the period he had sought, and declined to award either penalties or interest.
In accordance with 21 V.S.A. §678(e), Claimant now has submitted his petition for costs totaling $3,112.01 and attorney fees totaling $20,481.50.1
According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs “shall be assessed” against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well.
The Supreme Court has held that a claimant does not automatically forfeit entitlement to costs and fees under §678(a) merely because he or she did not prevail as to every issue litigated at formal hearing. Hodgeman v. Jard, 157 Vt. 461, 465 (1991). With that in mind, where the claimant only partially prevails, the Commissioner typically endeavors to award only those costs that relate directly to the successful claims. See, e.g., Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
It is not always possible to separate out the costs that are attributable to a successful claim as opposed to an unsuccessful one, however. Here, for example, the costs incurred in pursuing Claimant’s claim for three months’ worth of temporary disability benefits were no more or less than they would have been had he only sought the six weeks’ worth that he was awarded. The same is true of Claimant’s unsuccessful claim for penalties and interest. Under these
1 Since filing his original petition, Claimant has acknowledged that certain costs and fees relate to matters other than those litigated at the formal hearing, and therefore should not have been included. The amounts stated above incorporate those deductions.
2
circumstances, it is appropriate to award Claimant all of the costs he has requested, totaling $3,112.01.
As for attorney fees, the Commissioner typically exercises the discretion granted by the statute to award only those attorney fees that are commensurate with the extent of the claimant’s success. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003). In addition, the Commissioner also considers such factors as whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Id., and cases cited therein.
Here, the issue upon which both parties concentrated most of their efforts, and the one on which Claimant prevailed, was the extent of Defendant’s workers’ compensation “holiday.” The issues upon which Claimant failed to prevail represented a far less significant investment of skill, time and effort. Under these circumstances, I find it appropriate to award Claimant ninety percent of the fees he has requested, or $18,433.35.
I acknowledge Claimant’s argument that because all of the issues he litigated involved a “common core of facts,” there should be no reduction of his fees at all. Claimant cites to the Supreme Court’s ruling in The Electric Man v. Charos, 2006 VT 16, as support. In that case, the Supreme Court admonished the trial court against viewing a lawsuit between a contractor and a homeowner as “a series of discrete claims” in fashioning an award of attorney fees to the “substantially prevailing party” under 9 V.S.A. §4007(c), the so-called “prompt payment act.” Id. at ¶10, citing L’Esperance v. Benware, 2003 VT 43. Given that in such lawsuits “virtually all of the evidence is relevant to all of the claims,” the court reasoned that it was too difficult to allocate or apportion the attorney hours expended on a claim-by-claim basis. Id.
Litigation in the workers’ compensation arena, however, typically does involve exactly the type of separate and distinct claims, for separate and distinct statutory benefits, that the Court could not discern in The Electric Man. Thus, for example, although the determination of an injured worker’s entitlement to one benefit may share the same “common core of facts” relevant to the initial work-related accident as his or her claim for another benefit, each is likely nevertheless to stand or fall based on its own distinct factual and/or legal analysis.
I find that to be the case here. Here, Claimant’s claim for temporary total disability benefits was determined based on factual evidence as to when he first returned to work following his February 2003 fusion surgery. His claim as to how Defendant’s workers’ compensation “holiday” should have been calculated was determined based on an entirely separate and distinguishable set of facts relating to the manner in which his various third-party actions were settled. Yet a third set of facts, relating in large part to events that occurred after the current litigation commenced, determined his entitlement to penalties and interest.
With that in mind, and given the particular circumstances of this case, I conclude that it is a proper exercise of the discretion granted by §678(a) to apportion Claimant’s entitlement to attorney fees with reference to the extent of his success on the various claims he litigated.
3
ORDER:
Defendant is hereby ORDERED to pay:
1. Costs totaling $3,112.01; and
2. Attorney fees totaling $18,433.35.
DATED at Montpelier, Vermont this 29th day of December 2010.
______________________
Valerie Rickert
Acting 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.

George Plante v. Vermont Agency of Transportation (January 18, 2012)

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

George Plante v. Vermont Agency of Transportation (January 18, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
George Plante Opinion No. 26A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Vermont Agency of Transportation
For: Anne M. Noonan
Commissioner
State File Nos. X-04039 and BB-00900
AMENDED ORDER
Claimant successfully appealed the Commissioner’s August 5, 2010 Opinion and Order to the Franklin Superior Court Civil Division. Under 21 V.S.A. §671, the commissioner is obligated to enter a new order consistent with the Court’s certified findings. Because he now has prevailed on his claim, Claimant also requests an award of costs and attorney fees referable to the prior proceedings before the commissioner. 21 V.S.A. §678(a); Sargent v. Town of Randolph, 2007 VT 56.
Claimant seeks reimbursement of $1,715.11 in costs referable to the formal hearing before the commissioner. Included in these charges is Dr. Barnham’s deposition fee of $750.00, which exceeds the amount allowable under Workers’ Compensation Rule 40.111 by $450.00. Deducting this amount, the remaining $1,265.11 in costs are recoverable under §678(a) and therefore are awarded.
Claimant also seeks reimbursement of an additional $2,500.00 in costs referable to his superior court appeal. Fees and costs incurred in this context are governed by §678(b). That section allows the court to award reasonable attorney fees related to the proceedings before it, but unlike §678(a), it does not make specific provision for an award of costs.
Claimant asserts that the commissioner retains the power to award such costs under §678(a). The Supreme Court addressed this issue in Perez v. Travelers Insurance, 2006 VT 123, and determined otherwise:
There is no basis in the statutory language for awarding costs in superior courts or in the Supreme Court beyond those normally allowed under V.R.C.P. 54(d). While §678(a), which applies to the administrative level of workers’ compensation proceedings, provides that “necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails,” there is no similar statement in §678(b), the provision applicable to proceedings before the superior court.
Id. at ¶18.
2
Applying the Supreme Court’s analysis to the current claim, I conclude that Claimant is not entitled to an award of the costs incurred in the context of his superior court appeal.
As for attorney fees, Claimant seeks an award of $7,146.00. Defendant argues that because Claimant’s success on appeal was based on evidence that differed from what had been offered at formal hearing, it would be unfair to award him his fees. Specifically, Defendant asserts that the reason Claimant prevailed in the Superior Court proceeding was because he underwent further diagnostic testing after the formal hearing, the results of which strengthened his expert medical witnesses’ opinions.
This may be true, but the substance of the witnesses’ opinions did not change significantly from one forum to the next. Even if it did, I question whether that fact alone would justify denying a request for attorney fees. The Supreme Court has determined that a claimant’s success on appeal translates to success at formal hearing. Sargent, supra at ¶13. Given the de novo nature of a superior court appeal, Pitts v. Howe Scale Co., 110 Vt. 27, 35 (1938), it is to be expected that the evidence produced in that forum might diverge somewhat from what was presented to the commissioner. I can find no basis in §678(a) for penalizing a claimant on those grounds.
I conclude that it is appropriate to award Claimant the attorney fees he incurred in the prior proceedings before me, totaling $7,146.00.
AMENDED ORDER:
Claimant having sustained his burden of proving that his cervical condition was caused and/or aggravated by his employment for Defendant, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant establishes his entitlement as a consequence of his compensable cervical condition; and
2. Costs totaling $1,265.11 and attorney fees totaling $7,146.00.
DATED at Montpelier, Vermont this 18th day of January 2012.
_______________________
Anne M. Noonan
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.

Stacey Colson v. Town of Randolph (June 4, 2010)

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

Stacey Colson v. Town of Randolph (June 4, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Stacey Colson Opinion No. 20-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Town of Randolph
For: Patricia Moulton Powden
Commissioner
State File No. U-09762
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ATTORNEYS:
Jill Jourdan, Esq., for Claimant
John Leddy, Esq., for Defendant
ISSUE PRESENTED:
Should Defendant’s workers’ compensation insurance carrier be held responsible for failing to withhold from its lump sum payment of compensation benefits the fees due Claimant’s attorney in accordance with her approved lien against such compensation?
FINDINGS OF FACT:
Considering the facts in the light most favorable to the non-moving party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. Claimant suffered a work-related injury on December 16, 2003. On June 8, 2005 he entered into a fee agreement by which he retained Attorney Jourdan to represent him in his pending workers’ compensation claim.
2. On April 8, 2005 the Vermont Office of Child Support (OCS) issued two “Summons to Trustee for Administrative Trustee Process” to the Vermont League of Cities and Towns (VLCT), Defendant’s workers’ compensation insurance carrier. Together, the summons informed VLCT of Claimant’s child support obligations in two pending Family Court proceedings, one totaling $8,662.91 and the other totaling $11,222.66. In accordance with 15 V.S.A. §799, the summons notified VLCT of its obligation “to secure and hold [Claimant’s] assets in its possession” up to the amounts specified in each and, if the trustee process was uncontested, to tender the assets to OCS. VLCT received both summons on April 12, 2005.
2
3. On June 12, 2006 VLCT sent Attorney Jourdan a proposed Agreement for Permanent Partial Disability Compensation (Form 22) for her client’s review and signature. The proposed agreement provided for permanent partial disability benefits totaling $9,784.63.
4. In its June 12, 2006 mailing, VLCT also suggested that if Claimant wished to receive his permanency benefits in a lump sum Attorney Jourdan should make a written request to that effect, which VLCT’s adjuster indicated she would support and ask the Department to approve.
5. On October 12, 2006 OCS notified Attorney Jourdan that in April 2005 it had “filed liens with regard to [Claimant’s] two child support cases” with VLCT. There is no evidence that Claimant had ever contested OCS’ right to trustee process against his workers’ compensation benefits in either case.
6. On December 18, 2006 Attorney Jourdan corresponded with the Department as follows:
I write to enclose a copy of my fee agreement with Stacey Colson and put the Department on notice that the Office of Child Support has perfected a lien on any settlement due Mr. Colson. Accordingly, I have been instructed by OCS to file my fee agreement with the Department so that my attorney’s fees may be paid before distribution of the settlement with OCS.
Attorney Jourdan did not copy VLCT on this letter.
7. The Department construed Attorney Jourdan’s letter as a request for an attorney’s lien under 21 V.S.A. §682. By letter dated January 4, 2007 it granted the lien. The letter also advised Attorney Jourdan that in order to enforce the lien she would have to submit an itemized statement of her work and billings, in accordance with Workers’ Compensation Rule 10.5000. This Attorney Jourdan did on January 20, 2007.
8. VLCT was copied on the Department’s January 4, 2007 correspondence, in which Attorney Jourdan’s lien was approved, but not on Attorney Jourdan’s January 20, 2007 response.
9. On April 13, 2007 Claimant executed the Form 22 and mailed it to VLCT for its signature. In her cover letter, Attorney Jourdan advised that she had requested a lump sum payment and asked VLCT to inform the Department that it did not object.
3
10. Also on April 13, 2007 Attorney Jourdan corresponded with the Department, with a copy to VLCT’s adjuster, as follows:
I am writing to request that Mr. Colson’s permanent partial settlement be distributed in a lump sum.
In my request for lump sum distribution, pursuant to Rule 19, I suggest the following as support for my request:
1) The settlement is going to be distributed to the Office of Child Support toward Mr. Colson’s child support arrearage.
2) If the Department determines that a lump sum is not appropriate, we request that you distribute 20% of the lump sum payment for payment of Mr. Colson’s attorney’s fees as he cannot pay these fees otherwise.
11. On April 17, 2007 VLCT executed the Form 22 and submitted it to the Department for approval along with a letter that stated in part:
Ms. Jourdan is requesting a lump sum payment and asking that the check be made to the Office of Child Support. I am in agreement with a lump sum payment and ask that you please approve this lump sum payment under [Mr. Colson’s] workers compensation claim.”
VLCT did not copy Attorney Jourdan on this letter.
12. On April 30, 2007 the Department approved both the Form 22 and Claimant’s request for a lump sum payment of the permanency benefits due him. Both Attorney Jourdan and VLCT were copied on this correspondence.
13. In May 2007 VLCT paid the entire amount of Claimant’s lump sum settlement to OCS, without withholding anything to satisfy Attorney Jourdan’s approved attorney’s lien. In doing so, it apparently interpreted Attorney Jourdan’s April 13, 2007 letter as evidencing her intent to enforce her attorney’s lien only if the Department determined that a lump sum distribution to OCS would not be appropriate.
14. Attorney Jourdan did not learn of VLCT’s action until June or July 2007. Subsequently she requested that the Department enter an order against VLCT to enforce her attorney’s lien. The Department denied this request, first informally and later in the context of the Commissioner’s ruling on the parties’ cross motions for summary judgment.1 In both instances the Department construed Attorney Jourdan’s April 13, 2007 letter as a constructive waiver of her claim for attorney fees in the event that the lump sum distribution to OCS was approved, which it was.
1 Colson v. Town of Randolph, Opinion No. 34-08WC (August 7, 2008).
4
15. On appeal under 21 V.S.A. §670, the Washington Superior Court reversed the Commissioner’s determination on the grounds that Attorney Jourdan’s April 13, 2007 letter did not amount to either an express or implied waiver of her attorney’s lien. Stacey Colson v. Town of Randolph, Docket No. 594-9-08 Wncv (August 27, 2009). The Court remanded the action to the Department to address VLCT’s other defenses. These defenses relate primarily to the question whether, at the time that VLCT tendered payment of Claimant’s workers’ compensation benefits, OCS’ claim had priority over Attorney Jourdan’s lien, such that VLCT was legally bound to direct full payment of those funds to OCS. The current cross motions for summary judgment followed.
16. According to the affidavit of Michael Rowley, an attorney for OCS, as a matter of course when attaching a workers’ compensation settlement attorney’s liens are routinely given priority and honored prior to distribution of the settlement by the workers’ compensation carrier.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. The Washington Superior Court having disposed of VLCT’s waiver argument on appeal, the principal issue before me now is whether Attorney Jourdan’s lien deserves priority over OCS’ trustee process or vice versa.
3. With reference to Attorney Rowley’s affidavit, Attorney Jourdan argues that OCS routinely recognizes the priority of an attorney’s lien over its own child support attachments. To do so, she asserts, is in keeping with strong public policy. It encourages a process by which workers’ compensation claimants can gain access to legal representation that they otherwise might not be able to afford.
4. In contrast, VLCT argues that according to both the plain language of Vermont’s child support enforcement statute and the common law, OCS’ trustee process takes priority over Attorney Jourdan’s lien. Were VLCT to have paid any portion of Claimant’s lump sum settlement to Attorney Jourdan rather than to OCS, it asserts, it would have subjected itself to fines and civil penalties. Thus, it argues, it acted appropriately by paying OCS’ lien first.
5
Attorney Jourdan’s Lien
5. Under Vermont’s workers’ compensation statute an attorney who provides legal services in prosecuting an injured worker’s claim for benefits can claim a lien against the benefits ultimately awarded. 21 V.S.A. §682. Workers’ Compensation Rule 10.5000 governs the process by which such liens are approved and enforced.
6. I find that Attorney Jourdan satisfied the requirements of both the statute and the rule. Her attorney’s lien was approved on January 4, 2007 and became enforceable on January 20, 2007.
OCS’ Right to Trustee Process
7. OCS’ right to trustee process against Claimant’s workers’ compensation benefits arises from Vermont’s child support enforcement statute, 15 V.S.A. §§780 et seq. That statute defines “wages” to include workers’ compensation payments, 15 V.S.A. §780(9), and provides for trustee process as one of a variety of mechanisms available to recoup delinquent child support payments. 15 V.S.A. §799.
8. I find that VLCT was properly notified of OCS’ claim against Claimant’s workers’ compensation benefits at least by April 12, 2005, the date it received OCS’ Summons for Administrative Trustee Process. There being no evidence that Claimant ever contested either OCS’ right to trustee process or its calculation of the amounts due, VLCT became obligated as of that date to tender any monies that otherwise would have been payable to Claimant to OCS instead.
Determining Priority
9. Trustee process becomes enforceable against a third party in whose hands a debtor’s property lies when the monies sought are “due absolutely and without contingency” at the time the third party is served. Sullivan v. R.E. Bean Construction Co., Inc., 147 Vt. 310, 312-13 (1986). That occurred in this case on April 12, 2005, nearly two years before Attorney Jourdan’s lien was approved. As of that date, and until the amounts stated in the trustee process summons were satisfied, VLCT was obligated to put OCS’ trustee process-derived claim against the funds it held on Claimant’s behalf first, ahead of any claim it received susbsequently, including Attorney Jourdan’s.
10. I do not doubt, as Attorney Rowley testified in his affidavit, that OCS routinely honors a claimant’s attorney’s lien prior to attaching workers’ compensation benefits. There is nothing in the statute that requires OCS to do so, however.2 That being the case, it was incumbent on Attorney Jourdan to take the appropriate steps, not simply to ensure that OCS would honor her lien in this case, but more importantly to ensure that VLCT was aware of the fact. This she failed to do. That as it turned out VLCT was not aware of OCS’ custom is her responsibility, not theirs.
2 To the contrary, the child support enforcement statute specifically provides that “a wage withholding order under this chapter shall have priority over other legal process against the same wages . . .” 15 V.S.A. §789(b) (emphasis added).
6
11. I conclude as a matter of law that VLCT acted appropriately in paying over the entire proceeds of Claimant’s workers’ compensation award in accordance with OCS’ trustee process summons. As the amount of the award was insufficient to cover the amount owed OCS, VLCT had no monies remaining with which to satisfy Attorney Jourdan’s lien, and therefore no obligation to do so.
ORDER:
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED. Claimant’s Motion for Summary Judgment is DENIED.
DATED at Montpelier, Vermont this 4th day of June 2010.
_________________________________
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.

Robert Bruno v. Directech Holding Co. (August 5, 2010)

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

Robert Bruno v. Directech Holding Co. (August 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Bruno Opinion No. 18A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Directech Holding Co.
For: Valerie Rickert
Acting Commissioner
State File No. Y-50514
RULING ON CLAIMANT’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on May 19, 2010. Two issues were presented: first, whether Claimant had reached an end medical result for his work-related injury, and if so, when that occurred; and second, what the appropriate permanent impairment rating referable to Claimant’s injury was.
The Commissioner ruled in Claimant’s favor on the first issue, finding that he was entitled to an additional 66 weeks of temporary disability benefits. As to the second issue, however, the Commissioner ruled that Defendant’s expert opinion was more credible. Had the Commissioner accepted Claimant’s expert opinion, he would have been awarded an additional 44.55 weeks of permanency benefits over and above what he received in accordance with Defendant’s proffered rating.
According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary litigation costs “shall be assessed” against the employer. The commissioner has discretion to award attorney fees to a prevailing claimant as well.
Here, Claimant prevailed only on his claim for temporary disability benefits, but not on his claim for additional permanency benefits. In such cases, the commissioner routinely awards only those costs that relate directly to the successful claim. As for attorney fees, the award typically is reduced to be commensurate with the extent of the claimant’s success. See, e.g., Hill v. CV Oil Co., Opinion No. 15-09WC (May 26, 2009); Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
Citing to Electric Man v. Charos, 179 Vt. 351 (2006), Claimant asserts that because both of the issues he litigated involved the same core of primary facts, there should be no apportionment of his costs and attorney fees between the claim he won and the claim he lost. I disagree. In contrast to the situation that the Supreme Court considered in Electric Man, the claims that Claimant litigated here were for separate and distinct statutory benefits that required separate and distinct proof. Under these circumstances, it is appropriate to fashion an award of costs and fees that compensates Claimant only to the extent that he prevailed.
2
With that standard in mind, I find that Claimant’s allowable costs should be reduced by those relating to Dr. Zweber’s testimony, which was directed primarily towards the permanency issue. This reduction totals $3,000.00. Subtracting that amount from the total requested, $5,860.61, leaves a balance of allowable costs totaling $2,860.61.
As for attorney fees, Claimant has requested an award of $11,844.00. I acknowledge how difficult it is to separate out the extent to which Claimant’s attorney’s efforts were devoted to the successful claim versus the unsuccessful one. I find it appropriate to award 75 percent of that amount, or $8,883.00.
In accordance with the above, Defendant is hereby ORDERED to pay costs totaling $2,860.61 and attorney fees totaling $8,883.00.
DATED at Montpelier, Vermont this 5th day of August 2010.
______________________
Valerie Rickert
Acting Commissioner

F. B. v. VNA (August 4, 2006)

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

F. B. v. VNA (August 4, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. B. Opinion No. 29S-06WC
By: Margaret A. Mangan
v. Hearing Officer
Visiting Nurses Association/ For: Thomas W. Douse
Liberty Mutual Insurance Group Acting Commissioner
State File No. W-57205
RULING ON COSTS
Claimant, by and through her attorney, Christopher McVeigh, Esq., requests necessary costs for her success at hearing. See Frances Bean v Visiting Nurses Association/Liberty Mutual, Op. No. 29-06WC (July 7, 2006). Defendant’s attorney, Eric Johnson, Esq., opposes the request.
At hearing, Claimant requested costs pursuant to 21 V.S.A §678(a). However, due to the lack of specificity, the Department was unable to determine if the costs were necessary to Claimant’s success. The issue was deferred until the Department received a more detailed report or until agreement by the parties. Since the hearing, Claimant submitted an additional cost report as requested. In this filing she explained the entries for “postage” and “copies.” She also listed expert witness costs. The defense argues that the postage and copy costs are excessive.
Claimant’s costs were not exorbitant. Instead, I accept Claimant’s postage and copy costs as necessary to her success. The Department makes this determination after review of her detailed report. As such, Claimant is awarded total costs of $1,199.60.
ORDER:
Accordingly, based on the foregoing reasons,
Claimant’s request for costs of $1,199.60 is hereby GRANTED.
Dated at Montpelier, Vermont this 4th day of August 2006.
________________________________
Thomas W. Douse
Acting Commissioner
F. B. v. Visiting Nurses Association (September 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. B. Opinion No. 29MS-06WC
By: Margaret A. Mangan
v. Hearing Officer
Visiting Nurses Association For: Patricia Moulton Powden
Liberty Mutual Insurance Group Commissioner
State File No. W-57205
RULING ON DEFENSE MOTION FOR STAY
Defendant, by and through its attorney, Eric A. Johnson, Esq., moves for stay of the order in favor of Claimant, Op. No. 29-06WC. Claimant, by and through her attorney, Christopher McVeigh, Esq., opposes the motion.
Defendant argues that it should have prevailed in its position that recommended fusion surgery for the Claimant was not related to her work related injury because Claimant had radicular problems that preexisted the work related injury. Accordingly, it argues that the order should be stayed.
Claimant argues that the judgment must stand because Claimant’s preexisting problems did not limit her ability to work and did not lead to the need for surgery. Only after the work related injury did the symptoms escalate and surgery become necessary.
Although an appeal has been filed, the order of the Commissioner shall be of full effect from issuance unless stayed by the Commissioner. 21 V.S.A. § 675. To prevail on its request in the instant matter, Defendant must demonstrate: “(1) a strong likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3) a stay will not substantially harm the other party; and (4) the stay will serve the best interests of the public.” Gilbert v. Gilbert, 163 Vt. 549, 560 (1995) citing In re Insurance Services Offices, Inc., 148 Vt. 634, 635 (1987) (mem); In re Allied Power & Light Co., 132 Vt. 554 (1974). The Commissioner has the discretionary power to grant, deny or modify a request for a stay. 21 V.S.A.§ 675(b); Austin v. Vermont Dowell & Square Co., Opinion No. 05S-97WC (1997) (citing Newell v. Moffatt, Opinion No. 2A-88 (1988)). The granting of a stay should be the exception, not the rule. Bodwell v.Webster Corporation, Opinion No. 62S-96WC ( 1996).
Defendant has not demonstrated that it is likely to succeed on the merits. Although its expert Dr. Backus presented a strong opinion, the Claimant’s support was more persuasive at this Department. It is likely to be the same in court. Next, payment of surgery does not constitute irreparable harm to the defense. See Frederick v. Georgia-Pacific Corp., Op. No. 28S-97WC (1997). On the contrary, were the decision stayed, Claimant would incur the hardship of additional costs. Finally the best interests of the public are best served by adhering to the speedy resolution of workers’ compensation claims and ordering prompt payment.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the motion for stay is hereby DENIED.
Dated at Montpelier, Vermont this 21st day of September 2006
________________________________
Patricia Moulton Powden
Commissioner
F. B. v. Visiting Nurses Association (July 7, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. B. Opinion No. 29-06WC
By: Margaret A. Mangan
v. Hearing Officer
Visiting Nurses Association/ For: Thomas W. Douse
Liberty Mutual Insurance Group Acting Commissioner
State File No. W-57205
Hearing held in Montpelier on February 28, 2006
Record closed on May 15, 2006
APPEARANCES:
Christopher J. McVeigh, Esq., for Claimant
Eric A. Johnson, Esq., for Defendant
ISSUES:
1. The nature of the review for a Form 27 Employer’s Notice of Intention to Discontinue Benefits when an employer/carrier has accepted a claim.
2. Whether Claimant has a compensable work-related injury.
3. If so, whether the fusion surgery Dr. Monsey performed on October 21, 2005 is a reasonable medical treatment.
4. Whether Claimant is entitled to attorney’s fees and costs in connection with this claim.
EXHIBITS:
Joint: Medical Records
Claimant 1: Deposition of Dr. Monsey
Claimant 2: Deposition of Dr. Mahoney
FINDINGS OF FACT:
1. Claimant worked for the Visiting Nurses Association at the Vermont Respite House in Williston, Vermont from May of 2001 until January of 2005.
2. At all relevant times, Claimant was an employee and Visiting Nurses Association her employer, within the meaning of the Vermont Workers’ Compensation Act.
3. Claimant’s work duties as a caregiver while at the Vermont Respite House included lifting, moving, and feeding patients.
4. Before January of 2005, Claimant lost no time from work for any back or leg condition, although she had treated with a chiropractor on a monthly basis for some time.
5. Claimant’s chiropractor, Dr. Sean Mahoney, primarily treated Claimant’s cervical and thoracic spine, although he provided some treatment to her lumbar spine before January 30, 2005. Dr. Mahoney has had a treating relationship with Claimant for approximately eight years.
6. On January 30, 2005 while working at the Vermont Respite House on the night shift, Claimant was helping to turn a heavy patient when she felt pain in her low back. The pain also radiated down her left leg. This was unlike any pain she ever had before.
7. Claimant finished her shift. Before she left for home in the morning, she reported the incident to her supervisor.
8. A Physician’s Assistant, Ms. Anderson, treated Claimant later that day at Occupational Health and Rehabilitation, Inc. The diagnosis was acute lumbar strain. Ms. Anderson noted Claimant’s prior chiropractic care and that Claimant “was repositioning a resident with another house manager when she started developing gradual onset of left-sided lower back pain with left thigh pain as well. She states this as more gradual onset.”[See Medical Records at 204].
9. Claimant has not worked since January 30, 2005. The claim was filed on February 7, 2005 and received by the Department on March 24, 2005.
10. At a visit with Ms. Anderson on February 3, 2005, it was noted that Claimant walked with an antalgic gait. Ms. Anderson then referred Claimant to see her chiropractor, Dr. Mahoney, for treatment.
11. Dr. Mahoney continued to treat Claimant. His treatment began to focus more on her legs and the lumbar region of her back instead of her cervical and thoracic spine. The frequency of the visits to Dr. Mahoney increased from bimonthly visits to seventy-seven times between February and September of 2005. Claimant’s relief from the back and leg pain was temporary.
12. Dr. Karen Burke, Claimant’s primary care physician, was aware that Claimant had back pain prior to the 2005 injury. She noted that Claimant had “back pain, probably due to arthritis.” [See Medical records at 226]. After the 2005 injury, Dr. Burke was concerned for Claimant’s back and bilateral leg pain and her difficulty with walking. She referred Claimant to Dr. Tramner.
13. The parties entered into a Form 21 Agreement for Temporary Total Disability Compensation for an injury to the back, an agreement approved by this Department on April 24, 2005.
14. Dr. Bruce Tramner, a neurosurgeon at Fletcher Allen Health Care, treated Claimant on May 3, 2005. According to a July 5, 2005 letter, Dr. Tranmer wrote that Claimant continued to complain of back pain with additional pain that traveled down the backs of her legs bilaterally, into her feet, and then into the medial toes. After reviewing the MRI scan, Dr. Tramner noted the presence of multilevel degenerative disc disease and osteoarthritis. He was unable to state the cause of Claimant’s pain. He then referred her to Dr. Monsey. Dr. Tramner also referred Claimant to Dr. Tandan to determine if Claimant had a muscular disease.
15. On July 15, 2005, Dr. Verne Backus, Occupational Health Specialist, performed an independent medical examination (IME) on Claimant at the request of Liberty Mutual, the carrier at risk for Visiting Nurses Association. Dr. Backus concluded that Claimant’s diagnosis of spinal degeneration is not causally related to the injury she sustained at work.
16. Defendant relied on the results of the IME by Dr. Backus that Claimant had reached medical end result and that work did not cause her current condition. Defendant then filed a Form 27 Employers Notice of Intention to Discontinue on August 25, 2005. The Form 27 became effective on September 1, 2005.
17. Also, on August 25, 2005, the carrier denied the claim for back/leg sprain as unrelated to an occupational injury.
18. Even though benefits were no longer available, Claimant sought treatment from Dr. Robert Monsey, an Orthopedic Spinal Surgeon, on August 29, 2005.
19. Dr. Monsey reviewed Claimant’s history, medical records, and MRI’s. Claimant did not disclose that she had back pain before the 2005 injury. Instead, Dr. Monsey received this information from Claimant’s intake form and her permanent problem list.
20. Dr. Monsey noted that the MRI’s revealed spinal degeneration, but he found that Claimant had suffered from injury to her disc. This injury, not the spinal degeneration,
was the cause of her current back and leg pain. He concluded that Claimant should undergo fusion surgery in order to alleviate the pain.
21. On August 30, 2005, Dr Rup Tandan, a neurologist, concluded that Claimant did not have a muscular disease. He noted that she did have muscle weakness in her legs that caused difficulty with walking.
22. In October of 2005, Dr. Monsey performed fusion surgery of her spine at the L3-4, L4-5 disc levels.
23. Subjectively, Claimant’s lower back pain has improved after fusion surgery, thus allowing her to engage in activities of daily living such as driving and grocery shopping.
Medical Opinions
24. Dr. Sean Mahoney, Chiropractic Physician and Claimant’s treating chiropractor of eight years, testified that Claimant had received bimonthly treatment for her lower back before the 2005 injury. Prior to this point, she was fully capable of performing her work duties as a caregiver and was able to engage in her ordinary routines. However, the frequency of Claimant’s visits rapidly increased after the 2005 work-related incident. Her symptoms were much more severe than before and her ability to physically function was impaired. She was unable to return to work. Claimant also experienced difficulty with performing many ordinary activities. Because of this dramatic change in her condition, he suspected lumbar disc involvement as the cause of her pain.
25. Dr. Verne Backus, Occupational Health Specialist, conducted the independent medical examination of Claimant on July 15, 2005. Dr. Backus noted that the diagnosis was “multi-level lumbar spondylosis and degenerative disc disease with left leg radiculopathy.” [See Medical Records 19]. He concluded, to a reasonable degree of medical certainty, that this diagnosis was not causally related to Claimant’s work injury for several reasons. First, he noted that the description of Claimant’s injury varied. Dr. Anderson wrote that the pain was a gradual onset, whereas Dr. Mahoney and other providers noted a sudden onset of pain. An injury of sudden onset, rather than one of gradual onset, would be more likely to support a finding of causation. Dr. Backus also found that Claimant was hesitant to disclose that she had back pain prior to the 2005 injury. Furthermore, Dr. Backus read that the MRI’s revealed a chronic condition, such as degenerative disc disease. If Claimant did have any symptoms from work it was temporary and did not change the course of her progressive disease. Thus, taking all of these factors into consideration, Dr. Backus concluded that it was within a reasonable degree of medical certainty that her injury was not work-related and that she did not aggravate a preexisting condition. He also found that she only had a part-time work capacity that did not involve the moving or transferring of patients.
26. Dr. Robert Monsey, Orthopedic Spine Surgeon at Fletcher Allen, opined that the fusion surgery he performed was causally related to Claimant’s work injury of January 30, 2005. He stated that it is not unusual for Claimant to have had back pain prior to her 2005 injury. He testified that eighty percent of the population experiences back pain at some point in their life. Furthermore, the type of pain she experienced after the work injury was a deep low lumbosacral discomfort/pain associated with radiation into her extremity and a radicular distribution. These particular areas can be distinguished from the back spasms and minimal aching in her lower back that she had experienced prior to her work injury. The left knee pain that Claimant had before 2005 was most likely caused by arthritis. Also, the muscle weakness in Claimant’s legs was probably related to the medical treatment of her exposure to an infectious disease. Finally, Dr. Monsey disagreed with Dr. Tranmer’s reading of Claimant’s MRI’s. Dr. Monsey opined that the MRI’s revealed radiographic findings of spinal degeneration as well as radiographic findings of an injury that correlated with Claimant’s symptoms. Accordingly, Dr. Monsey concluded that Claimant had a work-related injury and the fusion surgery would alleviate, or at least lessen, Claimant’s back and leg pain.
CONCLUSIONS OF LAW:
Standard of Review of Form 27
1. Before this issue can be addressed, it is helpful to review the Department’s administrative procedures. There are two levels of process, informal and formal, that may be necessary for a claimant to pursue a workers’ compensation claim.
2. At the outset, the claimant has the burden of establishing all facts essential to the rights asserted in this workers’ compensation case. Goodwin v. Fairbanks, 123 Vt. 161 (1962).
3. Once a claim is filed, by the employer on a Form 1 or employee on a Form 5, the carrier/employer shall have twenty-one days to accept or deny the claimant’s workers’ compensation claim. See WC Rule 3.0900. In this case, a First report of Injury was filed on February 2, 2005. No denial was filed.
4. In fact, the carrier accepted the claim. The Form 21 Agreement for Temporary Total Disability Compensation was signed by Claimant and the insurance adjuster and approved by a specialist in this Department. With that agreement, Claimant met her burden to prove the compensability of a back injury under Goodwin.
5. Generally, if a carrier has accepted a claim or is under an interim order to pay benefits, it must file a Form 27 before terminating those benefits, a form that is reviewed by a specialist at the informal level.
6. The Vermont legislature enacted 21 V.S.A. §643a to address the defendant’s burden of proof at the informal level with regard to the Form 27. This statute provides that the commissioner, upon the initial review of the Form 27, may order a continuance of benefits to Claimant until a hearing is held if the evidence does not “reasonably support” the termination. Id. (emphasis added). ‘“Evidence that reasonably supports an action’ means, for the purposes of section 643a …relevant evidence that a reasonable mind might accept as adequate to support a conclusion that must be based on the record as a whole, and take into account whatever in the record fairly detracts from its weight.” § 601(24).
7. Pursuant to its rule-making authority, the Department promulgated WC Rule 18.1100 to expand on the standard of review for a Form 27 at the informal level: “Unless the claimant has successfully returned to work, temporary disability compensation shall not be terminated until a Notice of Intention to Discontinue Payments (Form 27), adequately supported by evidence, is received by both the commissioner and the claimant.” (emphasis added). The same standard applies to the termination of medical benefits. See WC Rule 18.1200.
8. Acceptance of the Form 27 means that reasonable mind concluded that Dr. Backus’s opinion was the persuasive one, taking into account the other evidence.
9. At formal hearing, Defendant now has the burden of supporting its claim for termination by a preponderance of the evidence, Merrill v University of Vermont, 133 Vt. 101, 105 (1974) (emphasis added), even though the Form 27 was accepted.
10. In sum, when the Department’s specialists initially review the Form 27, Defendant’s evidence must reasonably support its termination of benefits. V.S.A.§ 643a; WC Rule 18.1200. Yet the Department has repeatedly recognized that during a formal hearing, a Defendant’s termination of benefits must be justified by a preponderance of the evidence. See, e.g., Linda Weeks v. N.S.A. Industries, Opinion No. 27-05WC (2005); Joy Alexander v Middlebury College, Opinion No. 16-05WC (2005); Anne Britton v Laidlaw Transit, Opinion No. 47-03WC (2004).
11. Therefore, Defendant must prove that its justification for the termination of benefits was more likely than not true.
Causation
12. In workers’ compensation cases, where the causal connection between an accident and an injury is obscure and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
13. Therefore, Defendant, the party bearing the burden of proof must support its position with medical evidence and prove that its position is the more probable hypothesis.
14. While a reasonable degree of medical certainty might connote some marginally higher standard of proof than a mere preponderance, the modifier “reasonable” returns the standard to the level of preponderance [more likely than not]. Wheeler v. Central Vermont Medical Center, 155 Vt. 85, 94 (1990).
15. To address divergent opposing medical opinions, the Department considers the following criteria: 1) The nature of treatment and length of time there has been a patient-provider relationship; 2) whether all accident, medical, and treatment records were made available to and considered by the examining physician; 3) whether the report or evaluation at issue is clear and thorough and includes objective support for the opinions expressed; 4) the comprehensiveness of the examination; and 5) the qualifications of the experts, including professional training and experience. Wallace v. Velan Valve Corp., Opinion No. 51-02WC (2002); Yee v. IBM, Opinion No. 38-00WC (2000); Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Martin v. Bennington Potters, Opinion No. 42-97WC (1997); see also, Morrow v. VT Financial Services, Opinion No. 50-98WC (1998).
16. Claimant relies on the testimony of a chiropractic physician, Dr. Mahoney, and an orthopedic spine surgeon, Dr. Monsey, to establish a causal connection. Defendant relies on the IME performed by Dr. Backus, an occupational medicine specialist, to support that there is no causal connection.
17. In this case, a thorough analysis reveals that the factors weigh in Claimant’s favor. This would be the case even if Claimant bore the burden of proof.
18. Dr. Mahoney has had a treating relationship as Claimant’s chiropractor for eight years. Dr. Monsey has had a treating relationship as Claimant’s surgeon for almost a year, whereas Dr. Backus has only examined her once. All three experts reviewed the relevant records, took complete histories, and then provided objective opinions. All physicians are well qualified to render opinions in this case, Dr. Mahoney with his expertise as a chiropractor, Dr. Monsey in the area spinal surgery, and Dr. Backus in occupational health. However, Dr. Monsey has an advantage in the area of education as a surgeon. Therefore, the advantage is in favor of the Claimant’s experts by the first criterion and fifth criterion.
19. Not only does the balance tip in favor of Claimant’s experts, but Dr. Backus’s opinion is not convincing. First, he opined that there was no causal connection because Dr. Anderson had noted that Claimant’s injury was a gradual onset, instead of a sudden onset. However, Claimant reported these symptoms the same morning the injury occurred. It appears not that Claimant’s injury was a gradual onset, but that her symptoms had gradually worsened throughout the morning. Also, Dr. Backus concluded that Claimant had failed to disclose her prior back pain to others, including Dr. Monsey. However, Dr. Monsey had this information before surgery from Claimant’s intake form and her permanent problem list. Finally, Dr. Backus read the MRI’s differently than Dr. Monsey. Dr. Backus opined that the MRI’s revealed spinal degeneration as the sole cause. Dr. Monsey read that the MRI’s indicated both spinal degeneration and an injury as a cause. Such differences in opinion are not controlling in this case, especially given the success of Claimant’s surgery by Dr. Monsey.
20. When all the evidence is considered as a whole, the more probable hypothesis is that Claimant’s injury is work-related and compensable. The basis for the Form 27 is therefore rejected.
Reasonableness of Fusion Surgery
21. The Vermont Workers’ Compensation Act requires that the employer/carrier pay for all reasonable medical care and treatment causally related to a work injury. 21 V.S.A. § 640(a).
22. Whether the proposed treatment is reasonable depends, not on the subjective desire of the claimant, but on the likelihood it will improve a work-related condition or symptoms. Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000). It is what is shown by competent expert evidence to be reasonable to relieve a claimant’s symptoms and maintain functional abilities. Britton v. Laidlaw Transit, Opinion No. 47-03WC (2003).
23. Claimant’s surgical procedure was reasonable and causally connected to her work injury at the Respite House.
24. Defendant argues that the surgical procedure should not be compensable because her injury is not causally related to her employment with Visiting Nurses Association.
25. However, as discussed above, Claimant’s injury is work-related, consequently it is compensable. I defer to Dr. Monsey’s opinion, as Claimant’s spinal surgeon, that it was necessary for Claimant to undergo the fusion surgery. It is evident that the surgery was reasonable given the result. In 2005, Claimant experienced a severe decrease in her ability to maintain her active life, both at work and at home. Dr. Monsey recommended and performed surgery. Thereafter, she became more able to engage in ordinary activities, such as driving and grocery shopping. It was a reasonable surgery because it improved the symptoms that flowed from Claimant’s work injury.
26. In conclusion, the proposed surgery is compensable because it is causally connected to Claimant’s work-related injury and is reasonable under 21 V.S.A. § 640(a).
Attorney’s Fees
27. A prevailing claimant, Frances Bean is entitled to reasonable attorney’s fees as a matter of discretion and necessary costs as a matter of law when the claim is supported by a fee agreement and details of costs incurred and work performed. 21. V.S.A. §678(a); WC Rule 10.000.
28. Factors considered in fashioning an award include the necessity of representation, difficulty of issues presented, time and effort expended, clarity of time reports, agreement with the claimant, skill of counsel and whether fees are proportional to the efforts of counsel. See Hojohn v. Howard Johnson’s, Inc., Op. No. 43A-04WC (2004); Estate of Lyons v. American Flatbread, Op. No. 36A-03 (2003).
29. Claimant’s success in this case was due to the efforts of her attorney who needed to spend 102 hours because of the carrier’s denial, difficulty and number of the issues presented, and discovery involved. Claimant has submitted sufficient proof of time expended. Since Claimant has prevailed on all issues, I do not need to address concerns about the appropriate fee with a partial success. Also, the award does extend to time spent in preparation of litigation, such as a phone consultation with an expert. See Antonio Sanz v. Douglas Collins, Op. No. 15R-05WC (2005). Here the attorney’s time in the case preparation and presentation in the amount of 102 hours is reasonable.
30. Claimant is entitled to necessary costs in this case, however she has failed to specify her claimed costs. The entries of “postage” and “copies” are insufficient. The Department has no basis on which to determine if the costs are in fact necessary to this case. Instead, Claimant must explain to what each of the entries relates, i.e., “postage to the Department re proposed findings of fact/conclusions.” Thus, the issue of costs will be deferred for 30 days until Claimant submits a detailed cost report, or until agreement by the parties.
31. I do not accept Defendant’s argument that paper copies are not a legitimate cost. Defendant contends that the copies made by the defense should cancel out the copies made by Claimant’s attorney. If this were true, the costs of deposing expert witnesses would be cancelled out as well.
32. Thus, Claimant is awarded fees of $9,180.00 (102 hours at $ 90.00 per hour). Claimant is also awarded interest on payments from September 1, 2005 until benefits are paid. 21 V.S.A § 664. The issue of costs for $1,190.12 is deferred for 30 days until Claimant submits a more detailed report, or until agreement by the parties.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law,
1. Defendant is hereby ORDERED to pay Claimant’s reasonable and necessary medical expenses related to her compensable injuries, including all costs associated with the surgical procedure.
2. Defendant is hereby ORDERED to pay from September 1, 2005 and to continue paying Claimant temporary total benefits pursuant to 21 V.S.A. § 642, until such compensation may be terminated in accordance with Workers’ Compensation Rule 18.
3. The claim for attorney’s fees of $9,180.00 is hereby GRANTED.
4. The claim for costs of $1,190.12 is hereby DEFERRED for 30 days until Claimant submits a more detailed explanation, or until agreement by the parties.
5. Defendant is hereby ORDERED to pay interest at the statutory rate computed from the date when the payments were terminated, September 1, 2005, and until the date of payment. 21 V.S.A § 664.
Dated at Montpelier, Vermont this 7th day of July 2006
________________________________
Thomas W. Douse
Acting Commissioner

K. C. v. Windham Northeast Supervisory Union (November 17, 2006)

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

K. C. v. Windham Northeast Supervisory Union (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
K. C. Opinion No. 45-06WC
By: Margaret A. Mangan
v. Hearing Officer
Windham Northeast Supervisory Union For: Patricia Moulton Powden
Commissioner
State File No. X-01602
Hearing held in Bellows Falls on March 21, 2006
Record closed on June 30, 2006
APPEARANCES:
J. Christopher Callahan, Esq. for the claimant
Keith J. Kasper, Esq. for the defendant
ISSUE:
Did the claimant suffer an injury at work on September 2, 2005?
OFFICIAL DEPARTMENT FORMS:
1. Form 1, Employee’s Claim and Employer First Report of Injury, for September 2, 2005 injury, reported September 6, 2005 and filed on September 8, 2005.
2. Form 2, Denial of Workers’ Compensation benefits by the carrier.
3. Form 6, Claimant filed written Notice and Application of Hearing in the form of a letter filed on September 28, 2005.
EXHIBITS:
Joint I: Medical Records
Defendant’s A: Letter of Resignation
Employment Records
School Schedule
OTHER EXHIBITS:
Claimant’s A: Witness Statements
2
THE CLAIM:
The Claimant seeks Temporary Total Disability Benefits, medical benefits related to her back injury, and attorneys’ fees.
FINDINGS OF FACT:
1. Claimant began working for Defendant as a para-educator on August 29, 2005.
2. As a para-educator, the Claimant worked with a special needs child and was required to assist her in walking short distances and lift the child in and out of a wheelchair.
3. The Claimant’s average weekly wage was $403.98.
4. The Claimant offered a letter of resignation to the school principal on August 31, 2005.
5. Claimant agreed to continue working for the Defendant until a replacement could be found.
6. There were no witnesses to the Claimant’s alleged work-related injury.
7. The school recorded no seizures in the school health records for September 2, 2005.
8. On Friday, September 2, 2005, the school schedule reflected that there were no extracurricular gym activities after lunch.
9. The Claimant worked until the end of the school day on September 2, 2005.
10. On the morning of Tuesday, September 6, 2005, the Claimant called the school to report that she would be taking a sick day. Because this was late notice, the Claimant worked for a brief time that morning until a replacement could be located.
11. After leaving the school, the Claimant was seen at Urgent Care in Bellows Falls where she was diagnosed with lower back strain.
12. The Claimant then returned to the school to fill out workers’ compensation paperwork.
13. The Claimant saw Dr. Peake, her primary care physician, September 9 and again on September 16, 2005. Dr. Peake wrote notes excusing the Claimant from work after each examination.
14. After conservative treatment was unsuccessful at relieving the Claimant’s pain, Dr. Peake referred the Claimant to Dr. Gugliemo at Upper Valley Neurology on September 20, 2005.
15. An MRI taken September 21, 2005 revealed that the Claimant had disk herniation at L4-5 with right L5 nerve root impingement.
3
16. On September 26, 2005, Dr. Guglielmo diagnosed the Claimant with significant right L5 radiculopothy secondary to a herniated right L4-5 disk. Ultimately, the Claimant and Dr. Guglielmo agreed that surgery would best resolve the Claimant’s condition.
17. Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing.
18. Soon after Dr. Guglielmo’s diagnosis, the Claimant learned that she was pregnant. Because the surgery could harm the Claimant’s unborn child, the Claimant’s doctors have recommended that she wait until she is postnatal before having the surgery.
19. The Claimant has not worked since September 6, 2005.
Allegations:
The Claimant alleges that: she injured her back at work on Friday, September 2, 2005 while lifting the special needs child from the floor into her wheelchair. She then wheeled the child into the lunchroom. Next, she exited the building and ate lunch alone in her car. After lunch, she reentered the building and wheeled the child from the lunchroom into the gym. Then, the Claimant wheeled the child into a classroom with other students and teachers until the end of the school day. She then drove herself home. The Claimant also testified that she experienced a very high level of pain as she performed all of the activities mentioned above. The Claimant did not report the alleged injury until the following Tuesday.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. Furthermore, in unwitnessed cases where the claimant does not report the injury for a period of time, “the trier of fact must weigh carefully the credibility of witnesses, the initial medical reports, and explore any inconsistencies and hidden or not-so-hidden motivations.” Fanger v. Village Inn, Opinion No. 5-95WC (1995).
4
4. Several factors discredit the Claimant’s description of events. First, there are no witnesses to the alleged accident. Second, the Claimant testifies here that she injured her back lifting the child into a wheelchair, but Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing. Third, the school schedule shows that there were no gym activities after lunch that day. Fourth, the Claimant spent the latter part of the school day in the company of students and teachers, supposedly in excruciating pain, yet no one noticed any outward manifestation of her discomfort. Fifth, the Claimant waited until the following Tuesday, after a long Labor Day weekend, before notifying the school of the injury or seeking medical attention. Furthermore, the Claimant had given her resignation just a few days prior to this incident.
5. The Claimant’s medical evidence clearly shows that she suffers from a back injury. However, the high number of inconsistencies combined with the fact that the alleged injury was unwitnessed and not reported in a timely fashion cast a high level of doubt on whether that injury was connected to the Claimant’s employment. Consequently, the Claimant has shown no more than a possibility that the injury may have happened in connection with her employment.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the Claimant’s claim for Temporary Total Disability Benefits, medical benefits related to the Claimant’s back injury, and the Claimant’s attorneys’ fees are DENIED.
Dated at Montpelier, Vermont this 17th day of November 2006.
______________________________
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.

S. S. v. Consolidated Memorials (January 9, 2007)

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

S. S. v. Consolidated Memorials (January 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. S. Opinion No. 49-06WC
By: Margaret A. Mangan
v. Hearing Officer
Consolidated Memorials For: Patricia Moulton Powden
Commissioner
State File No. U-12011
Hearing held in Montpelier on July 27, 2006
Record closed on August 30, 2006
APPEARANCES:
Heidi Groff, Esq. for the claimant
Corina Schaffner-Fegard, Esq. for the defendant
ISSUES:
1. Are the Claimant’s left knee and hip injuries causally related to his accepted right foot injury which occurred at work on July 16, 2003, or was there a non-work related aggravation?
2. To what benefits is the Claimant entitled?
3. Whether the Claimant’s alleged inability to work more hours was a material misrepresentation of his work capacity sufficient to terminate benefits and or require reimbursement for benefits paid.
EXHIBITS:
Joint I: Medical Records
Claimant’s I: Preservation Testimony and C.V. of Dr. Lynch, MD
Defendant’s I: Surveillance videotape from 2003
Defendant’s II: Surveillance videotape from 2004
Defendant’s III: Surveillance videotape from 2005
2
STIPULATED FACTS:
1. At all relevant times, the Claimant was an employee as defined under the Vermont Statutes.
2. At all relevant times, the Defendant was an employer as defined under the Vermont Statutes.
3. The Claimant suffered a work related fracture to his right foot on July 16, 2003.
FINDINGS OF FACT:
1. During high school, the Claimant had surgery on his left knee as the result of a football injury, but he did not have any further difficulties until after the July 16, 2003 work injury.
2. By July 2003, the Claimant had been employed by Consolidated Memorials as a sawyer for approximately nine years.
3. The job of sawyer includes running granite saws, programming saws, cleaning saws, standing for long periods, climbing ladders, heavy lifting, and other similar tasks. This position also requires that the sawyer be on-call twenty-four hours per day.
4. On July 16, 2003, the Claimant sustained a work related injury to his right foot after tripping on a hose while coming down some stairs and landing on the outside of his right foot. The Claimant continued working until the end of his shift that day.
5. On July 22, 2003, the Claimant saw Dr. Bean at Green Mountain Orthopaedic Surgery. At this visit, the Claimant complained of significant soreness and swelling in his right foot. Dr. Bean noted that both feet showed signs of possible untreated preexisting deformities and degenerative changes in his feet. The Claimant’s feet also showed pseudoarthrosis at the base of the fourth and fifth Metatarsal, along with evidence of an acute fracture at the Claimant’s old fifth nonunion. At this time, the Claimant was fitted with a short-leg fiberglass walking cast.
6. Dr. Bean’s office released the Claimant to light duty office work for two hours per day beginning on July 28, 2003. Then, on July 31, the Claimant was released to work for 8 hours per day on light duty.
3
7. On August 22, 2003, Dr. Bean noted that the Claimant was finding it difficult to work “light duty” and, while the radiographs showed that the Claimant’s foot was beginning to heal, it had not healed to a point where the cast could be removed. At that time, the Claimant was given a walking cast with a toe plate and taken out of work until the next follow-up visit.
8. On September 19, 2003, Dr. Bean performed a follow up examination. After the Claimant’s cast was removed, Dr. Bean noted that the fracture site was remarkably tender and that the Claimant could not tolerate weight bearing on that side at all because of the level of discomfort. The radiograph indicated that while the fracture site had some early bone forming in the gap, the shaft was particularly sclerotic at the slowest healing portion of the bone. This information, combined with the clinical examination, led Dr. Bean to believe that an increase in weight bearing or function would be problematic. The Claimant was then put back in a short-leg cast and given a bone stimulator. The Claimant was again taken out of work until November 1, 2003.
9. On October 8, 2003, the Claimant was observed driving to an auto body shop and stopping at a gas station. There, the Claimant was observed walking with a device on his foot.
10. Around October 21, 2003, the Claimant shot a deer out of his tree stand during archery season. He walked 300 yards without the aid of crutches or other assistance to get to the tree stand. He also climbed twelve feet up, carrying his archery equipment, to access the tree stand.
11. On October 24, 2003, the Claimant again visited Dr. Bean. The motion and pain at the fracture sites continued. The radiographs showed no significant bone healing despite frequent use of the bone stimulator. Dr. Bean ordered more months of bone stimulation and limited weight bearing. He did not release the Claimant back to work at this time.
12. On November 13, the Claimant was observed driving his truck.
13. On the morning of November 14, 2003, the Defendant’s private investigator observed the Claimant shoveling snow from his driveway, driving, and running errands.
4
14. Regardless of this observed activity, on November 21, 2003, Dr. Bean noted marked improvement as a result of increased use of a bone stimulator. The radiograph showed interval healing although the fracture site was still quite visible. Manipulation of the fracture site was still painful and the foot remained very sensitive. Dr. Bean hypothesized that the slow healing was due to the foot’s altered morphology. Dr. Bean then added that the Claimant’s foot should have a complete union in, at most, two months. At this time, Dr. Bean released the Claimant to work on December 1, 2003. This note read, “computer program limit walking.”
15. On December 22, 2003, Dr. Bean noted that the Claimant’s foot might be somewhat less sensitive and, although there was tenderness and percussion over the fracture sites, the Claimant tolerated bending and manipulation of the fracture fairly well. Radiographs showed that the fracture site was improving at a glacial pace. Dr. Bean stated that continued standing was not possible, and the Claimant had no standing work capacity. However, Dr. Bean noted that a fully seated sedentary job would have been appropriate.
16. On February 02, 2004, the Claimant again saw Dr. Bean. At this visit, Dr. Bean found that there had been minimal improvement, the injury should be classified as a “nonunion,” and a change in treatment was required. Dr. Bean surmised that bone grafting and plates would be the appropriate course for treating the Claimant’s foot, but believed that a second opinion was reasonable. Dr. Bean also noted that the Claimant could not stand fulltime because the bones in his foot had not healed.
17. On February 6, 2004, the Claimant saw Dr. Lynch for a second opinion. Dr. Lynch noted that the Claimant had developed nonunions during the six months he had been casting. He also remarked that the Claimant had some ability to mobilize in the cast. Upon physical examination, Dr Lynch noticed the Claimant’s pre-existing foot deformity and found that the Claimant had been “loading hard” on the lateral border of his foot. It was Dr. Lynch’s impression that the use of the bone stimulator had not really improved the condition of the Claimant’s foot. He also surmised that surgery would likely be required.
18. The Claimant next saw Dr. Lynch on February 25, 2004. Dr. Lynch described plans for future surgery on the Claimant’s foot.
19. On March 5, 2004, Dr. Lynch performed surgery on the Claimant’s injured right foot. The surgery consisted of a calcaneal slide and posterior tibial tendon lengthening, an open reduction with bone grafting, as well as plates and screws being added to the foot.
20. During a follow up visit on March 18, 2004, the Claimant reported to Dr. Lynch’s office that he was doing well and having minimal pain. However, he found the need to elevate his foot after being upright after a period of time.
5
21. On March 25, 2004, the Claimant saw Dr. Bean to discuss his left knee and left hip. The Claimant reported that pain, snapping and clicking in his left knee and hip had gotten progressively worse during the prior year. Radiographs revealed a bone spurring and loss of medial joint space. In his assessment, Dr. Bean believed that the left knee and hip problems were caused by osteoarthritis that was exacerbated because of the Claimant’s need to wear a short-leg cast. Dr. Bean recommended that the Claimant treat the above symptoms, and try to delay joint replacements because of the Claimant’s young age.
22. On April 6, 2004, the Claimant saw Dr. Lynch for a post-surgery follow up. At this time, the Claimant reported some trouble sleeping due to the pain in his foot, and also that he felt insecure without the cast. Dr. Lynch replaced the cast that day. The Claimant also complained of increasing stiffness and pain in his left knee and hip. After examining the left hip, Dr. Lynch found that there was almost no rotational motion, and the hip made a creaking catching sound. It was Dr. Lynch’s impression that the Claimant might be able to return to work in 4-6 weeks if the foot was feeling better and the hip was not too troublesome.
23. On April 30, 2004, Dr. Lynch noted that the Claimant’s wounds were healing nicely and there was no sign of infection. Dr. Lynch also noted that the calcaneal slide and posterior tibial tendon lengthening appeared to have been effective. However, the Claimant was experiencing “marked hypersensitivity” in his right foot. Dr. Lynch believed that this hypersensitivity was a result of coming out of the cast. The Claimant was placed in an air cast walker boot. The Claimant was also given a prescription to alleviate the pain in his right foot, left knee, and left hip.
24. On June 30, 2004, Dr. Lynch recorded that the Claimant was able to bear weight on both legs with bilateral air cast walker boots with rocker-bottom soles. However, the Claimant’s hypersensitivity persisted and he was having difficulty putting weight on the right foot without shoes or support.
25. On July 29, 2004, Dr. Lynch noted that the Claimant was still experiencing hypersensitivity and pain. X-rays showed that one nonunion had healed and the other was healing. Dr. Lynch stated that the Claimant needed to continue to desensitize and begin wearing shoes.
26. On September 28, 2004, the Claimant went back to work for the Defendant for seven hours, but found the assigned work intolerable and phoned Dr. Lynch. Dr. Lynch’s office then faxed an out-of-work note to the Defendant. The note stated that the Claimant was not to return to work until November 2, 2004.
6
27. In response to a letter sent from the Claimant dated October 1, 2004, Dr. Bean indicated that there was no causal connection between the symptoms in the Claimant’s left hip and knee and his work injury to the right foot. However, Dr. Bean also stated that he thought that the altered gait resulting from the long casting my have a relationship to the Claimant’s hip and knee symptoms.
28. In response to a letter sent from the Claimant dated October 1, 2004, Dr Lynch stated that he believed that the arthritis was causally related to the Claimant’s original work injury. Dr. Lynch also opined that, while the arthritis may have preexisted, the long casting resulted in an abnormal gait that aggravating the Claimant’s arthritis. In his testimony, Dr. Lynch also added that the Claimant’s prolonged period of deconditioning was a large part of the reason that the preexisting arthritis became symptomatic.
29. On the morning of October 2, 2004, the Defendant’s private investigator observed the Claimant driving in his truck on a rural road. The Claimant saw the investigator and informed the investigator that he was going to be hunting in his nearby tree stand. After exiting the woods, the Claimant drove away in his truck, and made one stop before returning home.
30. On October 8, 2004, Dr. Lynch again released the Claimant to return to light duty work for three-to-four hours per day, three days per week. The Claimant stated that he could spend two to four hours a day on his feet and could walk a couple of hundred yards in reasonable comfort. To strengthen and rehabilitate, Dr. Lynch encouraged the Claimant to walk, hunt or stand.
31. On November 18, 2004, at Dr. Lynch’s request, the Claimant underwent a Functional Capacity Evaluation. The FCE determined that the Claimant had a maximum light level work capacity. The physical therapist that performed the evaluation was concerned about the Claimant’s poor balance skills, need for support when standing, and high pain levels.
32. On December 16, 2004, the Claimant saw Dr. McClellan at the request of his nurse case manager. Dr. McClellan determined that the left hip and knee symptoms most probably stemmed from pre-existing osteoarthritis that was aggravated by the gait disturbance brought on by his work related injury to his right foot. Furthermore, Dr. McClellan found that the Claimant would have substantial difficulty doing any substantive walking or carrying because his gait disturbance would aggravate his pain and underlying hip and knee condition. Dr. McClellan determined that the Claimant had a sedentary and part time work capacity.
33. On January 11, 2005, Dr. Davignon performed an IME on the Claimant. It was Dr. Davignon’s opinion that the lengthy casting could have changed his gait pattern, causing the aggravation in the left hip and knee.
7
34. On February 1, 2005, Dr. Lynch listed that the Claimant had persistent pain consistent with chronic regional pain syndrome, degenerative joint disease of the left hip, degenerative joint disease of the left knee, persistent disability and limitation secondary to all of the above. The Claimant was also now describing symptoms of foraminal encroachment or spinal stenosis. Dr. Lynch noted that the Claimant’s spinal problems and degenerative arthritis were likely related to chronic repetitive stress over time in someone with a propensity for arthritis. The Claimant continued working three days a week during this period.
35. On March 7, 2005, Dr. Lynch noted multiple levels of some degree of spinal stenosis with no clear foraminal encroachment. The Claimant continued to suffer chronic pain in his right foot, and was easily fatigued. Dr. Lynch described the left hip as the major problem. There was some discussion of joint replacement. The Claimant continued to work at light duty three days per week, for four hours each day.
36. In a letter dated March 25, 2005, Dr. Davignon wrote that the radiographic findings of the Claimant’s hip and knees were a pre-existing condition which could have been aggravated by compensatory mechanisms of his gait pattern and could cause the symptoms he was experiencing. Dr. Davignon also noted that the Claimant’s symptoms could progress due mostly to age related findings of osteoarthritis than injury.
37. In a letter dated May 2, 2005, Dr. Davignon stated that he could not say that the radiographic changes in the Claimant’s hip and knee, and the impending joint arthroplasty of the hip and knee, were more likely than not related to the original work injury.
38. On May 20-21, 2005, the private investigator hired by the Defendant observed the Claimant walking at an antalgic gait, driving his truck on various errands, assisting another person carry three, eight-foot tables then place the tables in the bed of his truck, attaching a fishing boat to his truck, putting the fishing boat into the water, and fishing for long periods of time. At this time, the Claimant was still working at light duty three days per week, for four hours each day.
39. On May 25, 2005, the Department entered an Interim Order, ordering the Defendant’s insurance carrier to pay benefits related to the Claimant’s left hip and knee injuries.
40. After reviewing the 2003 and 2005 surveillance, Dr. Davignon noted that the Claimant continued engaging in the filmed activities even though his gait became progressively more pronounced. Dr. Davignon opined that these activities certainly could have aggravated the left hip and knee symptoms. Dr. Davignon also surmised that it would not have been unreasonable for the Claimant to have gradually progressed to a full-time work schedule.
41. On July 13, 2005, Dr. Lynch performed a successful left total hip replacement. On November 2, 2005, Dr. Lynch performed a left total knee replacement. As a result of these procedures, the Claimant has improved functioning, improved range of motion, and decreased pain.
8
42. Dr. Glick, an orthopedic surgeon, stated that hunting and fishing were not non-weight bearing and that he would have advised the Claimant against those activities. Furthermore, Dr. Glick opined that the Claimant’s extracurricular activities were likely to aggravate the left knee and hip symptoms. Dr. Glick did not view the videotapes or the Claimant’s diagnostic films.
43. After viewing most of the tapes, Dr. Lynch stated that he did not see anything in the videos that the Claimant should not have been doing during the time he was treating the Claimant. Dr. Lynch also noted that the later films showed that “his hip was bothering him badly because of his antalgic gait and his tendency to lurch to the left, and the hips are usually more troublesome up and around and walking.” He also noted that when viewing videos taken on consecutive days that the claimant was visibly limping worse the second day. Dr. Lynch also noted that while “walking and moving and doing things were part of any rehab activity,” the first tapes were made during the time before he was treating the Claimant.
44. Neither of the Claimant’s doctors recommended that the Claimant use a cane, crutch or other supportive device.
45. The Claimant is currently receiving treatment for his ongoing back problems; however, the Claimant has reached a medical end result for his right foot, left hip, and left knee.
46. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 25% Fee Agreement with the Claimant and an approved Attorney Lien. The Claimant has included an itemized list of litigation costs totaling $ 1,891.80.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
9
Causation
4. The Workers’ Compensation Act, having benevolent objectives is remedial in nature and must be given liberal construction; no injured employee should be excluded from coverage under the Act unless the law clearly intends such exclusion or termination of benefits. S. H. v. State of Vermont, Opinion No. 19-06WC, (2006) (citing Montgomery v. Brinver Corp., 142 Vt. 461 (1983).
5. An employer takes each employee as is and is responsible under workers’ compensation for an injury which disables one person and not another. Paton v. State of Vermont, Dep’t of Corrections, Opinion No. 47-04WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935); Perkins v. Community Health Plan, Opinion No. 39-98WC (1998); and Winckler v. Travelers & Foley Rail Co., Opinion No. 29-01WC (2001)).
6. “Recurrence” means the return of symptoms following a temporary remission. WC Rule 14.9242.
7. Larson’s Workers’ Compensation Law § 10.syn Synopsis to Chapter 10 provides in the section captioned “Range of Compensable Consequences” as follows:
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. More specifically, the progressive worsening or complication of a work-connected injury remains compensable so long as the worsening is not shown to have been produced by an intervening nonindustrial cause.
J.D. v. Agency of Human Servs., Opinion No. 11-06 WC (2006).
8. The Claimant has shown that his left knee and hip injuries are causally related to the July 16, 2003 work injury, rather than the result of any intervening cause. Although the Defendant has put forth some evidence that the Claimant’s own activities may have caused left hip and knee symptoms, this evidence raises no more than an inference that anything but the work-related foot injury caused the underlying arthritis to worsen.
9. There has been insufficient evidence to show that the Claimant’s own conduct delayed the healing process or prolonged the casting. The Defendant makes much of the seven days, fanned out over a period of roughly three years, where the Claimant was shown to have been hunting, fishing, shoveling snow, driving, or running errands. However, this small amount of documented activity spread over a much longer period is insufficient to amount to a non-industrial, intervening event. Furthermore, even if there were undocumented periods where the Claimant was engaged in similar activities, Claimant had been encouraged by his physicians to participate in his normal activities, none of which rose to the level of a work capacity.
10
10. The expert medical evidence also supports this conclusion. When qualified medical experts disagree, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all the relevant records. J.C. v. Richburg Builders. Opinion No. 37-06WC (2006). (citing Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Gardner v. Grand Union, Opinion No. 24-97WC (1997)).
11. The Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). While all of the medical experts in this case are qualified to give credible medical testimony, Dr. Lynch has treated the Claimant for his foot injury beginning in February 2004, and performed the right foot, left hip and left knee surgeries on the Claimant. As such, Dr. Lynch’s opinion carries the most weight with the Department.
12. While the Defendant’s medical experts believed that the Claimant’s activities were not non-weight bearing and would have advised against them, neither of the Claimant’s treating physicians prohibited these activities. In fact, Dr. Lynch recommended that the Claimant go hunting and spend more time standing to strengthen and rehabilitate. Also, after viewing the surveillance video, Dr. Lynch stated that he did not see any activity that would have been prohibited while the Claimant was under his care. While it seems ill advised for an individual with a sedentary work capacity to engage in some of these activities, it would be unreasonable to penalize a Claimant for following the advice of his physician.
13. Although there were varying medical opinions in this case, not a single medical expert could testify with a reasonable degree of medical certainty that the Claimant’s left hip and knee injuries were caused by the Claimant’s extracurricular activities.
Material Misrepresentation
14. The Defendant has fallen far short of the clear and convincing evidence standard required to prove material misrepresentation. See Harrington v. Department of Employment and Training, 152 Vt. 446, 448-49 (1989). The Claimant’s treating physicians, as well as the Defendant’s medical experts concurred that the Claimant had a sedentary to light, part-time work capacity. Hence, the Claimant did not have a work capacity beyond the sedentary to light capacity represented by the Claimant.
11
Attorney Fees and Costs
Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Defendant is ORDERED to adjust this claim, including payment of:
1. Medical benefits for the Claimant’s left hip and knee injuries;
2. Temporary total disability benefits;
3. Interest from the date each benefit became due;
4. Litigation costs of $1,891.80;
5. Attorney fees of 20% or $9,000.00, whichever is less.
Dated at Montpelier, Vermont this 9th day of January 2007.
______________________________
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.

S. C. v. Barre Supervisory Union School (July 9, 2007)

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

S. C. v. Barre Supervisory Union School (July 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 18-07WC
v. By: Rebecca L. Smith
Staff Attorney
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION AND/OR STAY OF FINAL DECISION AND CLAIMANT’S MOTION TO RECONSIDER REGARDING ATTORNEY’S FEES, COSTS, INTEREST AND IMPAIRMENT RATING
The Defendant moves that the Department reconsider and modify, or in the alternative stay pending appeal, the final decision, Opinion No. 53-06WC, issued on January 2, 2007 after formal hearing in this workers’ compensation matter. Specifically, the Defendant disputes the Department’s finding of permanent partial impairment in Conclusion of Law 8, which states that Dr. Farrell’s is the only permanency opinion on record. The Defendant asserts that Dr. Hebben’s assessment of no permanent impairment is the correct one.
The Claimant requests several actions in her motion: 1) award of attorney’s fees and costs on the basis that the Claimant partially prevailed at hearing, 2) clarification of the specific percentage of impairment awarded, 3) an award of interest on all outstanding benefits ordered, and 4) an order directing payment of the permanent partial disability benefits in a lump sum pursuant to §652.
The initial opinion denied permanent total disability and awarded permanent partial impairment as assessed by Dr. Farrell, who provided a rating in the form of a range of 26-32%. It did not address attorney’s fees and costs or interest.
Permanent Partial Impairment
The Defendant argues that the Department erred in awarding permanent partial disability because that conclusion was not based on the facts found. Specifically, the Defendant disputes the statement in Conclusion of Law 8 that Dr. Farrell’s was the only permanency rating advanced, noting that Dr. Hebben assessed no impairment associated with the work injury.
2
Dr. Hebben’s opinion is founded on her conclusion that the Claimant suffered no psychiatric or cognitive injury as a result of the January 2003 accident. However, Dr. Hebben did find a somatoform disorder, which had not previously been diagnosed. Dr. Hebben describes that the mild head injury provided the Claimant with “a shelf to place [her preexisting psychological conditions] on.” Further, Dr. Hebben questioned the diagnosis of concussion and post concussion syndrome, while it is well established by both the Claimant’s treatment providers and by independent examiners hired by the Defendant that the Claimant experienced mild grade 1 concussion, followed by post concussion syndrome with persistent effects. Both Dr. Preis and the Claimant testified that a series of pre-injury conditions, essentially controlled and not significantly interfering with the Claimant’s teaching career, markedly worsened subsequent to the injury. Dr. Preis describes the post-injury symptoms as becoming chronic rather than episodic.
Therefore, upon review and reconsideration, the original finding that the lingering effects of the work injury combined with the pre-existing conditions to produce disability are the most probable hypothesis. This conclusion is additionally supported by Dr. Peyser, who opined that “the incident may have spawned a psychological reaction which may be impacting the results of some of her testing,” and recommended that the Claimant work with a vocational rehabilitation psychologist to “map out compensatory and recovery strategies along with pain management skills.”
Percentage of Impairment
In June 2005, Dr. Farrell found a psychological impairment directly attributable to the work injury of 26-32 % based on the Colorado Department of Labor and Employment guidelines. The AMA Guides to the Evaluation of Permanent Impairment assess impairment due to mental and behavioral disorders, but do not assign numerical impairment ratings as they do for other injuries. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002). Close comparison of Dr. Farrell’s findings with Table 13-8 of the Guides (Criteria for Rating Impairment due to Emotional or Behavioral Disorders) and the corresponding examples indicates correlation with high end Class 2 (moderate limitation of some activities of daily living, 15-29%) to low end Class 3 (severe limitation in performing most activities of daily living, 30-69%) impairment. Consequently, I find the Claimant’s whole person impairment rating to be 30%.
3
Attorney’s Fees and Costs
By oversight, the initial opinion neglected to address attorney’s fees and costs. The Claimant has submitted an accounting of $19,719.00 in fees and $6,826.34 in costs.
The Claimant sought to establish work-related permanent total disability, or, in the alternative, work-related permanent partial disability; the Defendant disputed any permanent disability attributed to the work injury. Awarding of attorney’s fees is discretionary pursuant to 21 V.S.A. §678. The Claimant has prevailed in part, and is thereby entitled to of a portion of the fees and costs sought. An award in the amount of 50% of the fees sought, or $9,859.50, is appropriate to the degree of the Claimant’s success, in consideration of the extent to which the necessary preparations for the alternative positions overlapped.
Necessary costs are mandatory when a claimant prevails. Having prevailed in part, the Claimant is entitled to an award of costs, however the costs sought in this matter far exceed the norm for claims of this type. Payments to one individual alone, Dr. Paul R. Solomon, exceed four thousand dollars. Dr. Solomon’s role in preparing the case is not clear, and without further elaboration cannot be deemed necessary. Accordingly, $2,776.34 in costs is awarded.
Interest
Pursuant to 21 V.S.A. §664, an award shall include the date on which the Defendant’s obligation to pay compensation began, and shall include interest at the statutory rate computed from that date. Defendant’s obligation to pay temporary partial disability compensation began at the termination of the period of temporary total disability, which the parties have stipulated occurred on April 26, 2005. Interest on the benefits due shall be paid from that date.
Lump Sum
The Claimant requests an order requiring that the permanent partial disability benefits be paid in a lump sum in accordance with 21 V.S.A. §652 in order to protect her Social Security benefits from offset. Section 652 was amended in May 2006 to require that, in the absence of a claimant’s request to the contrary, any order for a lump sum payment of permanent partial disability benefits shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security Benefits. The Department relies upon party counsel to provide such an accounting for review and approval, and cannot approve lump sum payment in its absence.
Stay
To prevail on its request for stay of the award of permanent partial disability benefits, the Defendant must demonstrate 1) that it is likely to succeed on the merits of the appeal; 2) that it would suffer irreparable harm if the stay were not granted,; 3) that a stay would not substantially harm the other party; and 4) that the best interests of the public would be served by the issuance of the stay. In re Insurance Services Offices, Inc. 148 Vt. 634, 635 (1987).
4
The Defendant argues that it will likely prevail on appeal because the Department’s conclusions were not based upon the facts as presented at hearing. Specifically, the Defendant notes that Conclusion of Law 8 conflicts with the facts found in Finding 38. The Defendant’s arguments regarding the other three stay factors are similarly based. Those concerns are addressed above in the discussion regarding the reconsideration of the award of permanent partial disability benefits. The defendant has failed to sufficiently demonstrate that another forum, after interpreting all submitted evidence, would reach a different conclusion. See, e.g. Carter v. Portland Glass, Opinion No.8RS-98WC (April 3, 1998 and Feb. 6, 1998). Without this essential prong of the four-part test under In re Insurance Services Offices, Inc., the Defendant’s arguments regarding the other three prongs are diminished, and lead to the conclusions that the required factors are not demonstrated. Accordingly, the motion for a stay must be denied.
ORDER:
Therefore, based upon the forgoing:
1. The award of permanent partial disability is upheld after reconsideration;
2. PPD shall be at the rate of 30% whole person disability;
3. Interest is awarded as though the PPD payments had commenced on April 26, 2005;
4. Claimant is awarded attorney’s fees and costs in the amount of $10,625.00;
5. Claimant’s request for a lump sum payment of benefits is denied.
Dated at Montpelier, Vermont this 9th day of July 2007.
______________________________
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.

Robert Gadwah v. Ethan Allen (January 11, 2012)

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

Robert Gadwah v. Ethan Allen (January 11, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Gadwah Opinion No. 33A-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Ethan Allen For: Anne M. Noonan
Commissioner
State File No. P-09814
RULING ON CLAIMANT’S PETITION FOR COSTS AND ATTORNEY FEES
Having prevailed at formal hearing, Gadwah v. Ethan Allen, Opinion No. 33-11WC (October 20, 2011), Claimant now seeks an award of costs and attorney fees pursuant to 21 V.S.A. §678. Defendant objects on various grounds, discussed below.
Attorney Fees for Work by Prior Counsel
Claimant seeks costs totaling $930.00 and attorney fees totaling $3,080.50 for work performed by his prior counsel, who provided representation in this claim from June 29, 2007 through March 24, 2009. Defendant asserts that because prior counsel’s representation ceased while the claim was still at the informal dispute resolution level, these fees should be disallowed in their entirety.
I disagree. So long as the representation provided at the informal level is related to the issues addressed at formal hearing, a claimant who prevails in the latter forum routinely is awarded costs and attorney fees relating back to the earlier proceedings as well. I see no reason automatically to disqualify a claimant from recovering these fees merely because the work was split between two attorneys rather than provided start-to-finish solely by one.
Attorney Fees for Work Spent by Prior Counsel on Issues Unrelated to Those Addressed at Formal Hearing
Defendant objects to Claimant’s request for an award of fees incurred by his prior counsel relating to whether the claim properly could be captioned to reflect a direct action against Defendant’s workers’ compensation insurance carrier. This issue was resolved in Claimant’s favor at the informal level, but apparently abandoned thereafter. It was not raised at the formal hearing.
Having prevailed on this issue at the informal level, Claimant’s remedy would have been to seek an award of attorney fees under Workers’ Compensation Rule 10.1300. As he did not do so, and as the issue was not litigated to formal hearing, I agree that the charges relating to it, totaling $414.00 (4.6 hours at $90.00 per hour) should be disallowed.
2
Defendant also objects to an award of fees relating to the recommendation by Claimant’s counsel that he file a workers’ compensation claim in New Hampshire. The correspondence to which Defendant refers, however, also discussed issues relevant to Claimant’s Vermont claim. I will not disallow the billing entries related to this correspondence.
“CaseMap”-Related Charges
Defendant objects to two billing entries, totaling 2.4 hours, during which Claimant’s prior counsel used “CaseMap,” a software tool used to organize knowledge about a case, to manage medical records and other information about Claimant’s pending claim. Although Defendant describes these charges as non-recoverable overhead expenses, I am convinced that the entries represent time spent organizing and analyzing information. This is a legitimate and necessary function for any attorney to undertake, no matter by what means. It is fully recoverable, therefore.
Other Unexplained Charges
Defendant objects to the December 10, 2007 billing entry, totaling 3.6 hours, for file review and a telephone conference with Claimant’s wife. Although the purpose of this activity was initially unclear, Claimant’s prior counsel since has clarified that it was undertaken in anticipation of filing a Notice and Application for Hearing. This charge is recoverable.
Defendant also objects to the July 21, 2008 billing entry, totaling 3.5 hours, during which Claimant’s prior counsel undertook e-mail and/or telephone conferences with a doctor and an attorney who were not involved in the claim. Without further explanation from Claimant’s prior counsel, I cannot determine if these charges are appropriately recoverable. Although the billing entry reflects other activities as well, again, without further explanation from Claimant’s prior counsel, I cannot differentiate between that part of the billing entry that might be allowable and that part that is not. This charge, totaling $315.00, is therefore disallowed in its entirety.
Fees Associated with Substitution of Counsel
Defendant objects to 1.4 hours of time billed by Claimant’s prior counsel related to effectuating the transition from him to Claimant’s current counsel and then subsequently withdrawing from the claim.
While it certainly was Claimant’s prerogative to change counsel, I agree that Defendant should not be required to bear the transactional expense related to doing so. These charges, totaling $126.00, are disallowed.
Various Litigation Costs
Claimant’s prior counsel paid a total of $930.00 to Littleton Regional Hospital for Dr. Forrest’s reports. Although Dr. Forrest did not testify at formal hearing, his reports were introduced into evidence and were relied on as a basis for deciding the claim in Claimant’s favor. These charges are allowable.
3
Claimant’s current counsel paid a total of $540.00 to Littleton Regional Hospital. The billing entries for these payments correspond by date to two supplemental reports that Dr. Forrest issued. These charges are allowable.
Claimant’s current counsel paid a total of $791.16 to Hummel Consultation Services, apparently in conjunction with a lien search and possible Medicare Set-Aside agreement. These charges are disallowed.
“File Opening Fee” and Copying Charges
Claimant’s current counsel now acknowledges that the $95.00 “file opening fee” for which he initially sought reimbursement was not specific, and therefore he has withdrawn it.
Claimant’s counsel has supplemented his original reimbursement request to include $309.60 in copying charges (1,721 copies at $0.18 per page) for multiple sets of medical and social security records. I agree that one extra set of such records, either to present to the hearing officer and/or to share with one’s client, is reasonable. I therefore will allow reimbursement totaling $168.48 (936 copies at $0.18 per page).
Post-Hearing Charges
Defendant objects to billing entries totaling .5 hours for services rendered by Claimant’s counsel after the formal hearing concluded and the parties’ proposed findings were submitted. One of the entries was for updating Claimant as to case status. Although this occurred after the record closed, I consider it to be part and parcel of the litigation services provided by Claimant’s attorney. This charge is allowable. However, without additional clarification I cannot allow the subsequent billing entry. This charge, totaling $43.50, is disallowed.
Defendant objects to billing entries totaling 2.7 hours for time spent by Claimant’s counsel responding to Defendant’s Motion to Reconsider. This charge is allowed.
Fees Incurred in Responding to Defendant’s Objections to Fee Requests
Last, Defendant objects to 4.3 hours charged by Claimant’s prior counsel in responding to the various objections Defendant has raised to his fee petition. So long as such charges are not incurred because of faulty or deficient record-keeping, they are allowable. Vermont Human Rights Commission v. LaBrie, Inc., 164 Vt. 237, 252 (1995). I will allow them here.
Summary
To summarize the above, the attorney fees requested by Claimant’s prior counsel are reduced by $855.00; the total allowed is therefore $2,225.50. The requested costs, totaling $930.00, are allowed in their entirety.
The attorney fees requested by Claimant’s current counsel are reduced by $43.50; the total allowed is therefore $9,149.00. The requested costs are reduced by $717.68; the total allowed is therefore $1,723.95.
4
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. To Claimant’s prior counsel, Ronald Fox, Esq., costs totaling $930.00 and attorney fees totaling $2,225.50; and
2. To Claimant’s current counsel, William Skiff, Esq., costs totaling $1,723.95 and attorney fees totaling $9,149.00.
DATED at Montpelier, Vermont this 11th day of January 2012.
_________________________
Anne M. Noonan
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.

© Copyright - -