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G. H. v. Ethan Allen (July 7, 2006)

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G. H. v. Ethan Allen (July 7, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
G. H. Opinion No. 30-06WC
By: Margaret A. Mangan
v. Hearing Officer
Ethan Allen For: Thomas W. Douse
Acting Commissioner
State File No. M-22405
RULING ON MOTION FOR AN ORDER OF COSTS
On May 25, 2006, Claimant, by and through its attorney, Robert Halpert, Esq., filed a motion to award full costs pursuant to 21 V.S.A. § 678(a). On May 31, 2005, Defendant’s attorney, Andrew Boxer, opposed this motion. This motion follows Claimant’s partial success at hearing. See G.H. v Ethan Allen, Op. No. 01-06WC (January 19, 2006).
The issues at hearing were: 1) whether Claimant’s shoulder condition was work-related, if so what degree of permanent total disability was due; 2) whether Claimant suffered from a work-related physical-mental condition, if so what degree of permanent total disability was due? The Department found that the shoulder and physical-mental conditions were compensable, yet permanent total disability was not owed to Claimant. The Department also denied Claimant’s request for fees and costs since he did not prevail on permanency, a major part of the case.
In a post judgment ruling, the Department awarded Claimant attorney’s fees and necessary costs. See Op. No. 01R-06WC (April 21, 2006). Thereafter, Claimant specified his request. Defendant now disputes the necessity of those costs.
As evidenced by the language contained within 21 V.S.A. § 678(a), an award for necessary costs is mandatory, as a matter of law, if Claimant prevails in a Workers’ Compensation proceeding. Jean Ratta-Roberts v Benchmark Assisted Living, Opinion No. 46-05WC (2005). Pederzani v. The Putney School, Opinion No. 57-98WC (Oct. 6, 1998); Fredriksen v. Georgia-Pacific Corp., Opinion No. 28-97WC (Oct. 17, 1997).
Claimant prevailed on the compensability of his shoulder and mental conditions. Accordingly, he is entitled to receive necessary costs as a matter of law. 21 V.S.A. §678(a).
Claimant requests specific costs associated with expert opinions and testimony, including Dr. Bucksbaum’s fee. Because he had to hire Dr. Bucksbaum to establish compensability of his shoulder injury, this cost was necessary. Therefore, he is awarded the cost of $1,047.40.
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Claimant also argues that he incurred necessary costs associated with the need to prove a casual link between the work-related injury and the mental condition. Thus, he was forced to hire an expert witness, Dr. Phillip Kinsler, to testify and support his claim. Arguing that this cost was necessary to Claimant’s success of the physical-mental claim, he asks that costs, which total $7,838.33, be awarded. Claimant asserts that although he did not prevail on the third issue of permanent total disability, he had to depose the defense’s expert, Dr. Genarro. Claimant requests a deposition fee of $1,208.30. He also requests interest on the costs beginning from the August 21, 2006 decision until payment by Defendant.
Defendant challenges Claimant’s request for costs. First, Defendant relies on the Department’s acceptance of Dr. Mann’s, not Dr. Kinsler’s, permanency rating for the physical-mental claim. Therefore, Defendant asks that no award be made for costs of Dr. Kinsler’s work. Also, Defendant contends that Dr. Gennaro’s deposition cost is not necessary since Claimant did not prevail on his permanency claim.
I conclude that Dr. Kinsler’s opinion on behalf of Claimant was a necessary cost, though one entry does lack specificity. The claims for compensability and permanency share the same set of facts and required the same review. Dr. Kinsler’s opinion was relevant to the whole claim, both the rating and compensability of the mental condition, and he relied on the common facts to formulate his opinion. That his permanency rating was not accepted does not negate the importance of his opinion on the issue of compensability. Dr. Kinsler’s opinion was dedicated to the entire physical-mental claim. His time spent on both issues cannot be separated. Thus, Claimant’s request for Dr. Kinsler’s costs is granted. However, Claimant failed to specify one of the costs. The entry of “disbursement to Philip J. Kinsler” for $2,145.00 is not sufficient. The Department has no basis on which to determine if this cost is necessary. Claimant’s award, therefore, is reduced from $7,838.33 to $5,693.33.
In contrast, Dr. Genarro’s deposition fee is not a necessary cost. Dr. Gennaro opined that Claimant should not be entitled to permanent total disability. Instead, Dr. Gennaro found that Claimant was capable of sedentary to light-duty work. The Department accepted Dr. Gennaro’s opinion. Claimant is not awarded the cost of deposing Dr. Genarro since Claimant did not prevail on the issue of permanent total disability.
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Finally, Claimant is awarded interest on the costs, retroactive from the April 21, 2006 decision. 21 V.S.A. § 664.
Accordingly, based on the foregoing reasons,
1. Defendant is hereby ORDERED to pay to Claimant $1,047.40 associated with Dr. Bucksbaum’s costs
2. Defendant is hereby ORDERED to pay Claimant $5,693.33 associated with Dr. Kinsler’s costs
3. Claimant’s request for costs associated with Dr. Gennaro’s depositions is hereby DENIED
4. Defendant is hereby ORDERED to pay Claimant interest, retroactive from April 21, 2006 until awarded costs are paid.
Dated at Montpelier, Vermont this 7th day of July 2006.
________________________________
Thomas W. Douse
Acting Commissioner
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G. H. v. Ethan Allen (August 4, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 30A-05WC
G. H.
By: Margaret A. Mangan
v. Hearing Officer
Ethan Allen For: Thomas W. Douse
Acting Commissioner
State File No. M-22405
RULING ON UNOPPOSED MOTION TO AMEND JUDGMENT FOR COSTS
On July 14, 2006, Claimant, by and through his attorney, Robert Halpert, Esq., requested the Department to amend its judgment of his July 7, 2006 Order, which granted in part Claimant’s reimbursement for necessary costs. See G.H. v Ethan Allen, Op. No. 30-06WC (July 7, 2006). Defendant’s attorney, Andrew Boxer, Esq., has not opposed this motion.
In the July Order, the Department denied a portion of Claimant’s necessary costs. Claimant had labeled the costs as “disbursement to Philip J. Kinsler” for $2,145.00. This entry was insufficient given its lack of specificity. Now Claimant calls upon the Department to amend its judgment and award these additional costs.
In seeking to amend, Claimant has submitted documentation that supports the amount of $2,145.00. Given that Claimant has provided ample support for this request, the Department awards Dr. Kinsler’s necessary costs of $2,145.00. 21 V.S.A. § 678(a).
ORDER:
Accordingly, based on the foregoing reasons,
Claimant’s request for Dr. Kinsler’s costs of $2,145.00 is hereby GRANTED.
Dated at Montpelier, Vermont this 4th day of August 2006.
________________________________
Thomas W. Douse
Acting Commissioner
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G. H. v. Ethan Allen (September 21, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 30S-06WC
G. H.
By: Margaret A. Mangan
v. Hearing Officer
Ethan Allen For: Patricia Moulton Powden
Commissioner
State File No. M-22405
RULINGS ON CLAIMANT’S MOTION TO AWARD FEES
AND
DEFENDANT’S MOTION TO STAY AWARD OF COSTS
Claimant requests attorney’s fees associated with post-judgment work. This request follows Claimant’s partial success at hearing, where the Department first denied attorney’s fees and costs. See G.H. v Ethan Allen, Op. No. 01-06WC (January 19, 2006). Claimant then submitted a motion for reconsideration of the Department’s denial of fees and costs. Thereafter, the Department awarded Claimant attorney’s fees and necessary costs in part. See G.H. v. Ethan Allen, Op. No. 01R-06WC (April 21, 2006); G.H. v Ethan Allen, Op. No. 30-06WC (July 7, 2006); G.H. v. Ethan Allen, Op. No. 30A-05WC (August 4, 2006). Now, Claimant asks the Department to award additional attorney’s fees for filing the motion for reconsideration and subsequent work. The defense has opposed this motion for fees. Defendant has also filed a motion to stay the award of costs.
Claimant’s Motion for Attorney’s Fees
Claimant requests fees for his successful motion for reconsideration and the additional work to recover costs and fees.
A prevailing claimant is entitled to reasonable attorney’s fees as a matter of discretion when the claim is supported by a fee agreement and details of work performed. 21. V.S.A. §678(a); WC Rule 10.000. It is not necessary to prevail on all claims in order to be a prevailing claimant entitled to award of attorney’s fees; the question is whether the claimant has substantially prevailed. Hodgeman v. Jard Co., 157 Vt. 461, 465 (1991); Lyons v American Flatbread, Op. No 36-03WC (2003).
Defendant argues that Claimant is not entitled to attorney’s fees. The defense relies on Rule 10.1300, which provides: “In most instances awards will only be considered in proceedings involving formal hearing resolution procedures. In limited instances an award may be made in a proceeding not requiring a formal hearing…” Thus, according to the defense, an award does not extend to post judgment filings. In the alternative, the defense contends that a fee award should be proportional to Claimant’s success.
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Claimant correctly argues that he is entitled to attorney’s fees for his post-judgment work. I am unconvinced by Defendant’s arguments. Claimant’s motion for reconsideration was directly related to the formal hearing process. The filings were integral to the main issues decided at hearing. As such, Claimant’s post-judgment work was related to the hearing process.
Finally, Claimant is granted his entire fee request, even though Claimant did not prevail on one issue in the post-judgment rulings (Dr. Gennaro’s deposition cost). All issues addressed by Clamant arose out of a common core of facts that cannot be reduced proportional to time spent on the successful aspects. See, The Electric Man, Inc. v. Charos, 2006 VT 16, ¶ 9.
Moreover, Claimant substantially prevailed on his post-judgment requests. The success was due to the efforts of his attorney who needed to spend 43.73 hours because of the issues presented. Since Claimant substantially prevailed and has submitted sufficient proof of time expended, he is entitled to reasonable attorney’s fees as a matter of discretion under 21 V.S.A. §678(a).
Defendant’s Motion to Stay
Pending its appeal to the Superior Court pursuant to 21 V.S.A. § 670, Defendant has moved for a stay of the Order dated July 7, 2006, awarding necessary costs in part to Claimant.
Defendant has requested a motion for stay pursuant to V.R.C.P 74(c). To prevail on a motion for stay, Defendant must demonstrate: (1) a strong likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3) the stay will not substantially harm other parties; and (4) the stay will serve the best interests of the public. In re Insurance Servs. Office, Inc., 148 Vt. 634, 635, (1987). The Department has the discretionary power to grant a full or partial stay of judgment. 21 V.S.A. §675(b); Austin v Vermont Dowel and Square Co., Op. No. 05S-97WC (1997).
Defendant fails to meet any of the four prongs required to justify a stay for benefits and attorney fees. Defendant does not demonstrate the likelihood of success on the merits on its appeal. The awarded costs were necessary to Claimant’s success on the conpensability of his shoulder and mental conditions. As this department implied in Dubuque v. Grand Union Company, Op. No. 34S-02WC (2002), the most important of the four criteria in the workers’ compensation context is the second, whether Claimant would suffer irreparable harm if the stay were granted. Kraby v Vermont Telephone Company, Op. No. 06S-04WC (2004). In this case, there will be irreparable injury to Claimant if the stay for attorney fees is granted. The stay of attorney fees and costs would cause substantial harm to Claimant given the number of these issues and the money spent to litigate them. Finally, it would be outside the best interests of the public if the Department further delayed costs that Claimant is legally entitled to receive.
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Defendant’s request for a stay is denied.
ORDER:
Accordingly, based on the foregoing reasons,
1. Claimant’s request for attorney’s fees associated with post-judgment motions are hereby GRANTED.
2. Defendant’s request for a motion to stay is hereby DENIED.
Dated at Montpelier, Vermont this _____ day of September 2006.
________________________________
Patricia Moulton Powden
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

James Hoyt v. Chittenden South Supervisory Union (May 13, 2014)

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

James Hoyt v. Chittenden South Supervisory Union (May 13, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
James Hoyt Opinion No. 09-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Chittenden South Supervisory Union
For: Anne M. Noonan
Commissioner
State File No. EE-59582
AMENDED RULING ON CLAIMANT’S PETITION FOR AWARD OF COSTS AND
ATTORNEY FEES
Procedural Background:
Claimant seeks an award of costs and attorney fees incurred in pursuing his claim for workers’
compensation benefits at the informal dispute resolution level. Acting as the Commissioner’s
designee, the Hearing Officer initially denied the petition by letter dated February 20, 2014. In
doing so, the Hearing Officer relied in part on factual allegations contained in Defendant’s email
response to the petition. Subsequently it became apparent that because Defendant’s attorney had
inadvertently used an outdated email address, Claimant’s attorney had not received a copy of
Defendant’s response. In order to give Claimant an opportunity to address the factual issues
Defendant had raised, the Hearing Officer agreed to reopen the record and reconsider Claimant’s
motion in light of the additional evidence he proffered.
Factual Background:
Claimant has worked for Defendant as a bus driver and fleet mechanic for approximately 18
years. Allegedly, on December 10, 2012 he injured his left wrist while attempting to loosen a
rusty bolt from a bus. At one point, he banged his wrist on the bus frame when the wrench he
was using slipped. At another point, he hit his wrist with a hammer while trying to loosen the
bolt with a chisel. Claimant was unsure which of these two events actually caused the injury.
As he was well accustomed to the bumps and bruises that typically accompany a mechanic’s job
duties, initially Claimant did not seek medical treatment. One week later, on December 17, 2012
he presented to the Fletcher Allen Health Care walk-in clinic, complaining that his wrist was
swollen and painful if he flexed it. In early January, he was referred to Dr. Frenzen, an
orthopedic surgeon, who ultimately diagnosed a tendon tear. Claimant underwent surgical repair
on January 31, 2013.
Although he had advised his treatment providers that he had injured his wrist at work, all but one
of Claimant’s medical bills were submitted to, and paid by, his group health insurer. And
although Claimant recalled telling his supervisor of his injury shortly after it occurred, no First
Report of Injury was filed until February 8, 2013. Thereafter, Defendant’s workers’
compensation insurance adjuster corresponded with Claimant, requesting that he sign a medical
authorization so that it could retrieve and review his medical records. Despite two requests,
Claimant failed to sign and return the authorization. As a consequence, on February 19, 2013
Defendant submitted its Denial of Workers’ Compensation Benefits (Form 2) to the Department,
citing the lack of any medical documentation causally relating the injury to work as grounds.
Notwithstanding the instructions printed at the bottom of the denial form, Claimant did not notify
the Department that he wished to appeal this determination.
Defendant was able to procure Claimant’s medical records in the ensuing weeks. All of the
records reported the injury as having occurred at work on or about December 10, 2012. There
was some variation as to the specific mechanism of injury, however. One provider reported that
Claimant had “banged” the back of his hand when it slipped, while another reported that he had
hurt it while “lifting something;” both of these versions conflicted with the description on the
First Report of Injury, which stated that Claimant had hit the top of his hand with a hammer. It
does not appear that Defendant took any steps to reconcile these discrepancies, such as, for
example, by interviewing Claimant.
In May 2013 Claimant retained Attorney McVeigh to represent him. In July Defendant retained
Attorney Callahan to defend its claim denial. On September 30, 2013 Attorney McVeigh
corresponded with Attorney Callahan, requesting that Defendant accept the claim as
compensable on the basis of the medical records that both parties now possessed. In that
correspondence, Attorney McVeigh represented that Claimant was owed approximately two
months of temporary disability compensation, unspecified medical benefits and as yet
undetermined permanency compensation. Concurrently with that correspondence, Attorney
McVeigh filed a Notice and Application for Hearing (Form 6) with the Department.
Over the course of the next month, the parties engaged in a flurry of email correspondence, both
among themselves and with the Department’s workers’ compensation specialist. Attorney
McVeigh asserted repeatedly that because Defendant had failed to produce any medical evidence
to sustain its denial, an interim order to pay benefits was appropriate. Attorney Callahan argued
repeatedly in response that because the existing records documented three different versions of
how the injury had occurred, thus putting Claimant’s credibility at issue, an interim order was
not justified.
On October 30, 2013 Attorney Callahan advised both the Department’s specialist and Attorney
McVeigh that Defendant was amenable to settling the claim, as doing so likely would be more
cost effective than continuing to litigate it. For reasons that are unclear, Attorney Callahan
understood that Claimant had missed only four days of work as a result of his injury. This would
have entitled him to only one day of temporary total disability compensation, which Defendant
was willing to pay. In addition, as Claimant’s medical bills already had been submitted to, and
paid by, his group health insurer, Defendant offered to reimburse his co-payments and other outof-
pocket medical expenses. Last, Attorney Callahan represented that Defendant likely would
pay whatever permanency was determined to be due.
With some prodding from the Department’s specialist, Attorney McVeigh agreed to convey
Defendant’s settlement proposal to his client, but stated that he would not recommend that his
client accept it. His counter-proposal was that Defendant “simply accept the claim with no
conditions.” Notably, however, despite repeated requests from Attorney Callahan to clarify the
duration of his client’s time out of work and the extent of his out-of-pocket medical expenses,
Attorney McVeigh was not forthcoming with this information.
On December 6, 2013 Attorney Callahan took Claimant’s deposition. In it, Claimant credibly
explained away the discrepancies between his varying accounts of how the injury had occurred,
whether as a consequence of banging his wrist against the bus frame or as a result of hitting it
with a hammer. Claimant also related that he had missed “a couple of months” of work after his
surgery. During that time, he received a biweekly payroll check from his employer.
Following a series of status inquiries from Attorney McVeigh in early December 2013, on
December 17, 2013 the Department’s specialist indicated that she had completed her decision
regarding Claimant’s request for an interim order and would be issuing it within the next few
days. Prior to her doing so, on December 19, 2013 Attorney Callahan notified both her and
Attorney McVeigh that Defendant was accepting the claim without prejudice.
On January 13, 2014 Attorney McVeigh filed the pending Petition for Award of Attorney Fees
and Costs. In it, he seeks a total of $52.75 in costs and attorney fees for 20.4 hours billed, which
at the approved hourly rate of $145.00 totals $2,958.00.
Discussion:
The commissioner has discretion to award costs and fees in claims that are resolved short of
formal hearing. The statute, 21 V.S.A. §678(d) provides as follows:
In cases for which a formal hearing is requested and the case is resolved prior to
formal hearing, the commissioner may award reasonable attorney fees if the
claimant retained an attorney in response to an actual or effective denial of a
claim and thereafter payments were made to the claimant as a result of the
attorney’s efforts.
Workers’ Compensation Rule 10.1300 provides further guidance:
Awards to prevailing claimants are discretionary. In most instances awards will
only be considered in proceedings involving formal hearing resolution
procedures. In limited instances an award may be made in a proceeding not
requiring a formal hearing where the claimant is able to demonstrate that:
10.1310 the employer or insurance carrier is responsible for undue delay in
adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in misconduct or
neglect, and
10.1340 that legal representation to resolve the issues was necessary, and
10.1350 the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has been
responsible for any unreasonable delay in resolving the issues.
In a slightly different context, the Vermont Supreme Court recently has addressed a workers’
compensation claimant’s right to collect attorney fees when he or she prevails by settlement in an
action brought under 21 V.S.A. §675(a). That section authorizes “any court of law having
jurisdiction of the amount involved” to enforce a prior award of benefits by the commissioner,
including one issued by way of an approved agreement between the parties, when an employer or
insurance carrier has failed to comply. If the claimant prevails, “reasonable attorney fees and
costs shall be allowed.”
In Bonanno v. Verizon, 2014 VT 24, the Court adopted the so-called “catalyst theory” as “a
possible route to attorneys’ fees” under §675(a). Id. at ¶21. To prevail under that theory, “a
party must demonstrate: (1) that the filing of the lawsuit was a ‘necessary and important factor in
achieving’ the other party’s change in conduct, and (2) a ‘colorable or reasonable likelihood of
success on the merits.’” Id. at ¶22, quoting Kirchner v. Giebink, 155 Vt. 351, 353 (1990); see
also, Merriam v. AIG Claims Services, Inc., 2008 VT 8. As the Court explained in Kirchner, to
meet the first requirement a plaintiff need not have prevailed by direct judicial action, so long as
its lawsuit, and its attorney’s efforts, were the catalyst for the relief ultimately obtained.
Kirchner, supra at 352, 354. To meet the second requirement, a plaintiff must show that its
claims were not frivolous, unreasonable or groundless as a matter of law. Id. at 354.
That the Supreme Court endorsed the catalyst theory in Bonanno is instructive, but not
necessarily determinative in the pending claim. Public policy strongly favors full and free access
to the court system when an employer or insurance carrier flaunts a lawfully issued order or
approved agreement to pay benefits, as occurred in that case. Were the rule otherwise, an
aggrieved injured worker would suffer a financial penalty for enforcing his or her rights, not to
mention an unconscionable delay in receiving benefits. This would directly contravene the
stated purpose of Vermont’s workers’ compensation system – to provide prompt and timely
compensation without necessitating complex and expensive court action. Workers’
Compensation Rule 7.1000; Morrisseau v. Legac, 123 Vt. 70, 76 (1962).
The commissioner’s authority under §678(a) to award attorney fees to a claimant who prevails at
the informal dispute resolution level stands on a somewhat different footing. Disputes at this
level are often resolved with guidance from the Department’s workers’ compensation specialists,
who emphasize information sharing over adversarial posturing. Attorney fee awards at this level
are the exception, not the rule. See Workers’ Compensation Rule 10.1300; Morrisseau v.
Hannaford Brothers, Opinion No. 21A-12WC (August 9, 2012). Thus, while the catalyst theory
is reflected to some degree in the language of §678(a), the commissioner’s discretion to apply it
is tempered by the factors listed in Rule 10.1300. Zahirovic v. Super Thin Saws, Inc., Opinion
No. 38-11WC (November 18, 2011).
Considering those factors in light of what transpired in this claim, I conclude that Defendant’s
conduct justifies an award of fees. I acknowledge that its initial denial, which was based on its
inability to gain prompt access to Claimant’s medical records, was appropriate. It received the
records within a reasonable time thereafter, however. At that point, it owed a duty to investigate
in order to determine whether substantive grounds still existed to deny. Its failure to do so
caused undue delay in adjusting the claim. It thus put itself at risk for an award of fees under
Rule 10.1310.
The proper exercise of discretion under Rule 10.1300 requires that I examine the conduct of
Claimant’s attorney as well. His failure to provide clarifying information as to the specific
benefits owed impeded Defendant’s ability to evaluate its exposure, and thus unnecessarily
delayed its acceptance of the claim. Under Rule 10.1360, I consider this a proper basis for
reducing the amount of fees awarded. See Bonanno, supra at ¶25 (affirming that trial court
properly exercised its discretion to reduce plaintiff’s fee award in light of his attorney’s
unnecessary delay in providing discovery).
There is fault to be shared on both sides for the untidy manner in which this claim was resolved,
therefore. I conclude that it is appropriate to award Claimant costs totaling $52.75. As for
attorney fees, I conclude that it is appropriate to award only a portion of the $2,958.00 requested.
Thus, with the exception of the fees incurred for attending Claimant’s deposition, I have
deducted the fees incurred after November 11, 2013, the date on which Defendant clearly
requested the clarifying information referred to above. The remaining fees, totaling $1,682.00,
are hereby awarded.
ORDER:
Claimant’s Petition for Costs and Attorney Fees is hereby GRANTED IN PART. Defendant is
hereby ORDERED to pay:
· Costs totaling $52.75; and
2. Attorney fees totaling $1,682.00.
DATED at Montpelier, Vermont this 13th day of May 2014.
_______________________
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.

Paul Phillips v. Orange North Supervisory Union (March 21, 2014)

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

Paul Phillips v. Orange North Supervisory Union (March 21, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Paul Phillips Opinion No. 05-14WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Orange North Supervisory Union
For: Anne M. Noonan
Commissioner
State File No. CC-57109
OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 4, 2013
Record closed on January 6, 2014
APPEARANCES:
Heidi Groff, Esq., for Claimant
Justin Sluka, Esq., for Defendant
ISSUE PRESENTED:
What is the appropriate permanent impairment rating referable to Claimant’s January 13,
2011 cervical injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, George White, Jr., M.D.
Claimant’s Exhibit 2: AMA Guides to the Evaluation of Permanent Impairment (5th ed.),
p. 392
Claimant’s Exhibit 3: AMA Guides to the Evaluation of Permanent Impairment (5th ed.),
p. 393
Claimant’s Exhibit 4: Department of Labor Forms 1, 24, 10/10s and 25
Claimant’s Exhibit 5: Department of Labor Form 27, February 6, 2013
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
Defendant’s Exhibit B: AMA Guides to the Evaluation of Permanent Impairment (5th ed.),
Chapter 15, pp. 373-431
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
2
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to
this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the
Evaluation of Permanent Impairment (5th ed.) (hereinafter the “AMA Guides”).
Claimant’s Work Injury and Subsequent Medical Course
3. Claimant worked for Defendant as a second shift janitor. His duties included vacuuming,
mopping and waxing the school floors. In addition, he gathered all of the trash from the
various rooms and carried the bags outside for disposal.
4. On January 13, 2011 Claimant was vacuuming the staff room when the power cord
became entangled around a chair. He bent down to release the cord when a noise from
behind startled him. He turned his head sharply to the left and felt a stabbing pain in his
neck and shoulders.
5. Claimant saw Dr. Williams, his primary care physician, the next day. Dr. Williams
diagnosed Claimant with a left trapezius strain. He recommended treatment with heat
and a reduced work schedule for two weeks. Claimant was completely out of work for
one week, until January 20, 2011. Then he returned to work part-time (four to five hours
per day) with restrictions.
6. Claimant did not improve, so Dr. Williams referred him to physical therapy. He attended
and participated, but did not enjoy much progress or relief.
7. Dr. Williams next referred Claimant to Dr. Aros, an orthopedic surgeon. Upon
examination Dr. Aros noted that he was tender over his trapezius and also that he had
diffuse muscle atrophy with left scapular winging. Dr. Aros diagnosed Claimant with
cervical muscle pain and ordered an x-ray. The x-ray revealed mild left foraminal
narrowing at C4-5 and some osteophytes.
8. For the next seven months Claimant did not enjoy any relief from his trapezius and neck
pain. Due to his prolonged symptoms and concern that he might be suffering from a
more serious condition, in July 2011 Defendant referred him for an independent medical
examination with Dr. McLellan, an occupational medicine specialist. Dr. McLellan
diagnosed Claimant with persistent left neck, trapezius and scapular pain. He determined
that Claimant was not yet at end medical result, and that he was able to work full time
with restrictions.
3
9. In December 2011 Claimant underwent nerve conduction studies. The results showed
mild carpal tunnel syndrome and mild ulnar nerve entrapment of the left upper extremity.
Comparing these results to Claimant’s cervical spine x-ray, Dr. Krantz, a neurologist,
believed his condition to be consistent with a left C5 radiculopathy. A subsequent MRI
showed diffuse annular bulging of the C4-5 disc on the left side, causing a moderate
narrowing of the left C4-5 neural foramen.
10. Claimant again tried physical therapy and an epidural injection, but neither treatment
provided him any significant pain relief. He continued to work four or five hours per day
with a 20 pound lifting restriction.
Permanent Impairment Ratings Referable to Claimant’s Cervical Condition
11. Claimant underwent two independent medical examinations – one with Dr. White, at his
own attorney’s referral, and one with Dr. Binter, at Defendant’s request. Both experts
placed him at end medical result and then evaluated him for any permanent impairment
referable to his cervical condition. To do so, both used the Diagnosis-Related Estimates
(DRE) methodology suggested by the AMA Guides. Under this methodology, an
individual is assigned to the correct impairment category based on symptoms, signs and
appropriate diagnostic test results, as follows:
· Category I – the individual has subjective complaints, but no significant clinical
findings or documentable neurologic impairment; 0 percent impairment;
· Category II – the individual may have significant muscle guarding (voluntarily
limited motion due to muscular pain) or spasms observed at the time of
examination, asymmetric loss of range of motion or radicular complaints, such as
pain or weakness in a nerve root distribution, but with no objective verification by
electrodiagnostic findings; 5-8 percent impairment;
· Category III – there are both significant signs of radiculopathy and objective
electrodiagnostic verification; 15-18 percent impairment.
AMA Guides §15.3 at pp. 381, 383 and Box 15-1, §15.6a at p. 392, Table 15-5.
(a) Dr. Binter
12. Dr. Binter is a board certified neurosurgeon. She has been performing independent
medical examinations since her retirement from private practice in early 2011. While in
active practice, she performed approximately 4,000 surgeries, one-third of which
involved the cervical spine. For any of her surgical patients who were involved with the
workers’ compensation system, she performed an impairment rating. Dr. Binter is now
certified as an independent medical examiner, having attended a several-day seminar to
achieve that designation.
4
13. Dr. Binter examined Claimant in June 2012 and updated her report after a records review
in November 2012. She reviewed all of the pertinent medical records, as well as
Claimant’s cervical MRI.
14. Dr. Binter diagnosed Claimant with a chronic left trapezius strain causally related to his
work injury. In her opinion, Claimant did not suffer any permanent impairment as a
result of this injury. Dr. Binter based her opinion on the observations she made of
Claimant during her examination, including:
· No muscle guarding;
· No significant neurological impairment; and
· No loss of range of motion or any other indicator of impairment.
15. Based on these findings, Dr. Binter determined that Claimant had reached an end medical
result for his work injury, and placed him in DRE Cervical Category I, with a zero
percent impairment referable to his cervical spine.
16. In arriving at this result, Dr. Binter was mindful of Claimant’s intermittent complaints of
tingling and numbness across his left trapezius, halfway down his left upper arm and at
times into his left hand and fingers. However, in her opinion, these complaints did not
constitute objective evidence of cervical radiculopathy referable to the C5 nerve root,
because they did not appear in the appropriate dermatomal distribution. For that reason,
Dr. Binter concluded that Claimant did not merit an impairment rating under Cervical
Category II.
17. Dr. Binter also concluded that Claimant was fit and strong, and that his symptoms should
have resolved in a matter of weeks or months. She found no objective evidence to justify
restricting his work to only five hours per day. Rather, in her opinion, Claimant could
return to work full time, albeit with overhead lifting restrictions.
18. With Dr. Binter’s opinion as support, with the Department’s approval Defendant
discontinued Claimant’s temporary partial disability benefits effective February 15, 2013
on the grounds that he had reached an end medical result.
(b) Dr. White
19. Dr. White is board certified in occupational medicine. As part of his residency training,
he began performing permanency ratings using the AMA Guides in 1989 and has done
them ever since. He regularly attends training in the AMA Guides, especially when a new
edition is published. He has performed thousands of impairment ratings under the fifth
edition, the currently mandated version in Vermont. Dr. White performed an
independent medical examination, and reviewed all pertinent records, in March 2013.
5
20. Dr. White placed Claimant in DRE Cervical Category II, with a five percent permanent
impairment referable to his 2012 work injury. He based his rating on two significant
findings. First, according to his observation, Claimant exhibited pain and voluntary
muscle guarding when he turned his neck to the left and when he extended his neck
backwards away from his chest. Second, Claimant complained of intermittent radicular
symptoms in the “shawl” area of his neck and left shoulder. This is the nerve root
distribution of the C5 dermatome. As corroboration for this finding, Dr. White noted that
the radiologist who interpreted Claimant’s cervical MRI reported annular bulging at C5,
with narrowing of the C4-5 channel where the nerve exits.
21. Dr. White agreed that Claimant’s complaints were subjective, and had not been
objectively verified by electrodiagnostic studies, such as an EMG. However, he credibly
explained that Claimant still qualified for an impairment rating under Cervical Category
II because for inclusion, only one criterion needed to be met – either muscle guarding,
asymmetric loss of motion or radicular complaints. Having observed muscle guarding
during his examination, Dr. White thus determined that it was appropriate to rate
Claimant’s impairment under Category II.
22. Dr. White acknowledged that Dr. Binter had not observed any muscle guarding during
her examination of Claimant. However, it is possible for two examiners to observe
different signs on different days. Dr. White credibly reported that when he conducted his
examination, Claimant’s muscle guarding was very obvious. Otherwise, he would have
measured Claimant’s range of motion with an inclinometer. As it was, in Dr. White’s
assessment the muscle guarding “was not a close call.” I find this testimony credible.
Claimant’s Compensation Rate
23. At the time of his work injury, Claimant’s average weekly wage was $555.07, which
entitled him to the minimum compensation rate, $373.00 weekly. As of February 15,
2013, when his temporary partial disability benefits were discontinued, the minimum
compensation rate was $382.00 weekly.
CONCLUSIONS OF LAW:
1. The issue raised by this claim concerns Claimant’s entitlement to permanency benefits
for his work-related cervical injury. Claimant seeks benefits in accordance with Dr.
White’s five percent whole person impairment rating. Defendant instead argues that
benefits should be denied in accordance with Dr. Binter’s zero percent rating. Claimant
bears the burden of proof on this issue. King v. Snide, 144 Vt. 395, 399 (1984).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a
five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of
treatment and the length of time there has been a patient-provider relationship; (2)
whether the expert examined all pertinent records; (3) the clarity, thoroughness and
objective support underlying the opinion; (4) the comprehensiveness of the evaluation;
and (5) the qualifications of the experts, including training and experience. Geiger v.
Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6
3. With particular reliance on the third and fifth factors, I conclude here that Dr. White’s
opinion is the most persuasive. Dr. White has been performing impairment ratings using
the AMA Guides for more than 20 years, since 1989. His level of confidence as to
whether Claimant did or did not exhibit muscle guarding during his examination was
credible, as was his explanation regarding why Claimant may not have exhibited similar
signs during Dr. Binter’s examination. Dr. White also credibly attributed the shawl
distribution of Claimant’s radicular complaints as corresponding to the C5 dermatome,
which provided an additional basis for placing him in Cervical Category II. Dr. White
therefore had two bases for rating Claimant in Category II rather than Category I. I
accept his analysis as convincing.
4. While Dr. Binter’s credentials as a neurosurgeon are impressive, she has far less
experience than Dr. White as to rating impairment under the AMA Guides. In addition,
while she agreed that Claimant exhibited radicular symptoms in a shawl distribution, she
failed to specifically address whether they corresponded to the C5 dermatome or not. For
these reasons, I conclude that her opinion is less persuasive.
5. I conclude that Claimant has sustained his burden of proving that he suffered a five
percent whole person impairment referable to his cervical spine as a consequence of his
January 2011 compensable work injury.
Claimant’s Compensation Rate
6. Pursuant to 21 V.S.A. §648(a), “at the termination of total disability, the employer shall
pay to the injured employee 66-2/3 percent of the average weekly wage . . . subject to the
maximum and minimum compensation rates.” As Claimant’s total disability here
terminated on January 20, 2011, this is the date on which his entitlement to permanent
partial disability benefits accrued. Laumann v. State of Vermont, 2004 VT 60.
7. Per Laumann, permanency benefits are payable at the initial rate of $373.00 weekly,
which was Claimant’s compensation rate at the time his temporary total disability
benefits terminated. A five percent impairment rating entitles him to a total of 27.5
weeks of benefits, 21 V.S.A. §648 and Workers’ Compensation Rule 11.2300. As these
weeks extended beyond July 1, 2011 he was entitled to a cost of living adjustment, 21
V.S.A. §650(d); thus, his compensation rate for the remaining weeks due was $382.00.
7
8. Claimant also is due interest, computed from “the date on which the employer’s
obligation to pay compensation under this chapter began.” 21 V.S.A. §664. As just
discussed, under Laumann, for the purposes of calculating the appropriate compensation
rate the right to permanency is deemed to accrue at the termination of total disability.
Where, as here, total disability terminates before the claimant reaches an end medical
result, it would be both unfair and illogical to apply the same rule to calculating interest,
however. The purpose of interest is to compensate a claimant for the time value of
money in situations where the employer has failed to make payment when due. But an
employer cannot be faulted for failing to pay benefits on account of a permanent
impairment that may or may not exist, and until the claimant reaches an end medical
result, this fact cannot be determined. See, e.g., Hoisington v. Ingersoll Electric, Opinion
No. 52-09WC (December 28, 2009) (holding that, for statute of limitations purposes,
cause of action for permanency benefits cannot accrue until the claimant reaches end
medical result); see also, Hill v. CV Oil Co., Opinion No. 15A-09WC (August 7, 2009)
(interest on permanency runs from date of end medical result).
9. I conclude that Defendant’s obligation to pay interest thus began on February 15, 2013,
the date upon which it terminated Claimant’s indemnity benefits on end medical result
grounds.
10. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs
and attorney fees in accordance with 21 V.S.A. §678(e). Claimant submitted an itemized
claim for costs totaling $929.95 and attorney fees based on a contingent fee of 20 percent
of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation
Rule 10.1220. His costs are awarded, as these are mandatory under the statute.
11. An award of attorney fees is discretionary under the statute. I find that the contingent fee
requested is appropriate and therefore these are awarded as well.
8
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Permanent partial disability benefits pursuant to 21 V.S.A. §648, calculated in
accordance with a five percent impairment referable to the cervical spine at an
initial compensation rate of $373.00 and updated as of July 1, 2011 to $382.00;
2. Interest on the above amounts beginning on February 15, 2013 pursuant to 21
V.S.A. §664;
3. Costs in the amount of $929.95; and
4. Attorney fees totaling 20 percent of the total award, or $9000.00, whichever is
less.
DATED at Montpelier, Vermont this 21st day of March 2014.
______________________
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.

James Pawley v. Booska Movers/Zurich North America and York Risk Services Group (March 5, 2014)

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James Pawley v. Booska Movers/Zurich North America and York Risk Services Group (March 5, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
James Pawley Opinion No. 02R-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Booska Movers/Zurich North
America and York Risk Services For: Anne M. Noonan
Group Commissioner
State File Nos. CC-52769 and DD-576
RULING ON CLAIMANT’S MOTION FOR RECONSIDERATION
The Commissioner’s Opinion and Order in the above claim issued on February 19, 2014. In it, the
Commissioner denied Claimant’s claims for temporary partial disability benefits referable to either of the
periods for which he sought them. Having thus failed to prevail, the Commissioner determined that
Claimant was not entitled to an award of costs or attorney fees under 21 V.S.A. §678.
Because the Commissioner already had determined that the facts did not support an award of temporary
partial disability benefits, it was not essential to address the legal issue the parties had disputed – whether,
if proven, any such benefits would have been subject to a maximum weekly compensation cap, as is the
case with temporary total disability benefits. Nevertheless, so as to clarify the Department’s position in
the event Claimant prevailed on appeal, the Commissioner offered additional guidance, and in effect
adopted Claimant’s stance on the question. Claimant now asserts that because he “prevailed” on this
issue, the Commissioner should “invite” him to submit a request for an award of costs and attorney fees.
Claimant cites to the Supreme Court’s ruling in McNally v. Department of PATH, 2011 VT 93, as support
for his position. The Court in that case had reversed the commissioner’s prior ruling against the claimant
and remanded the claim for further proceedings. In upholding the claimant’s subsequent claim for an
award of costs and attorney fees even though the proceedings on remand had not yet concluded, the Court
relied on the legislative intent behind §678, that is, to allow an award of attorney fees “to claimants who
prevail in appellate proceedings, even in the absence of a final judgment on the underlying claim.” Id. at
¶13.
In this case, should Claimant successfully appeal the Commissioner’s denial of benefits, consistent with
the Court’s holding in McNally he will be entitled to an award of costs and attorney fees. That the
Commissioner accepted as convincing his position on a broader legal issue does not change the fact that,
at least for now, he has left this forum empty-handed. Unless and until that outcome changes, he has not
prevailed and therefore is not entitled to attorney fees.
Claimant’s Motion for Reconsideration is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of March 2014.
______________________
Anne M. Noonan
Commissioner

Tina Ploof v. Franklin County Sheriff’s Department and (August 8, 2014)

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Tina Ploof v. Franklin County Sheriff’s Department and (August 8, 2014)
Trident/Massamont
STATE OF VERMONT
DEPARTMENT OF LABOR
Tina Ploof Opinion No. 13-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Franklin County
Sheriff’s Department and For: Anne M. Noonan
Trident/Massamont Commissioner
State File No. EE-58445
RULING ON CLAIMANT’S PETITION FOR ATTORNEY FEES AND COSTS
Claimant seeks an award of attorney fees totaling $11,599.09 and costs totaling $500.51 after
successfully convincing the Department to issue an interim order for workers’ compensation
benefits during the informal dispute resolution process.
The underlying facts in this case are somewhat complicated. Claimant suffered a low back
injury as a result of a work-related motor vehicle accident in 2004. In 2005 she underwent
surgical fusion at the L5-S1 level. As the workers’ compensation insurance carrier on the risk at
the time, Defendant Trident/Massamont (“Trident”) paid benefits accordingly. In 2006 she
reached a settlement with the third party who was at fault for her accident. After deducting its
share of the expenses of recovery, 21 V.S.A. §624(f), Trident was credited with a workers’
compensation “holiday” totaling $135,538.45, in accordance with 21 V.S.A. §624(e).
Claimant resumed treatment for low back pain in January 2013. In April 2013 she underwent a
second fusion surgery, this time at the L4-5 level. Her treating surgeon, Dr. Barnum, diagnosed
adjacent segment disease, which he attributed to her original work injury in 2004 and subsequent
L5-S1 fusion. Claimant suffered complications from the second fusion surgery, necessitating
two additional surgeries thereafter as well as ongoing temporary total disability.
In July 2013 Claimant’s then-counsel, Attorney Lynn, corresponded with Trident’s attorney
regarding her recently submitted claim for workers’ compensation benefits causally related to her
renewed treatment and disability. Notwithstanding Dr. Barnum’s causation opinion, Attorney
Lynn asserted that Claimant’s condition was causally related not to her original 2004 injury, but
rather to her work activities in late 2012 and thereafter. This constituted a new injury, he
claimed. The legal consequence of this characterization, according to Attorney Lynn, was that
Trident would not be entitled to claim any §624(e) “holiday” referable to Claimant’s 2006 third
party settlement.
In October 2013 Attorney Lynn’s partner, Attorney Blackman, filed a Notice of Injury and Claim
for Compensation (Form 5) on Claimant’s behalf with the Department. Trident denied
responsibility on the grounds that Claimant had suffered a new injury or aggravation, for which
2
her employer’s current insurance carrier was responsible. Attorney Blackman responded by
filing a Notice and Application for Hearing (Form 6) in November 2013.
Also in November 2013, at Trident’s request Claimant underwent an independent medical
examination with Dr. Backus. Dr. Backus agreed with Dr. Barnum’s assessment that Claimant
suffered from adjacent segment disease at the L4-5 level as a consequence of the L5-S1 fusion
surgery she had undergone in 2005. However, his ultimate conclusion, which he stated to a
reasonable degree of medical certainty, was that her work activities in late 2012 and early 2013
had further worsened the deterioration at that level, and thus amounted to an aggravation.
In December 2013 Attorney Blackman requested that Trident’s attorney put the employer’s
current carrier on notice of its potential liability for Claimant’s claim. Trident’s attorney
conveyed this message to the Department, which promptly notified the current carrier, Acadia.
Acadia responded in January 2014, denying responsibility on the grounds that there had been no
aggravation or new injury, and that Trident remained responsible for whatever benefits were
owed.
In early February 2014 Attorney Blackman was granted leave to withdraw as Claimant’s counsel
on conflict of interest grounds, and Claimant’s current counsel, Attorney McVeigh, entered his
appearance in her place. Following an informal conference, in late February 2014 the
Department’s workers’ compensation specialist concluded that Claimant had suffered a
recurrence rather than an aggravation, for which Trident remained on the risk. Based on medical
bills Claimant’s current counsel had submitted, the specialist further determined that the
workers’ compensation “holiday” attributable to Claimant’s 2006 third party settlement had been
exhausted. The specialist therefore issued an interim order against Trident for retroactive and
ongoing temporary total disability and medical benefits. Trident’s motion to stay was denied,
and it commenced payment as ordered thereafter. The claim is now pending on the formal
hearing docket, where the disputed issues include both aggravation/recurrence and the proper
calculation of any applicable workers’ compensation “holiday.”
In support of her petition for attorney fees and costs, Claimant cites to 21 V.S.A. §678(d), which
states as follows:
In cases for which a formal hearing is requested and the case is resolved
prior to formal hearing, the commissioner may award reasonable attorney
fees if the claimant retained an attorney in response to an actual or
effective denial of a claim and thereafter payments were made to the
claimant as a result of the attorney’s efforts.
In exercising the discretion granted by §678(d) to award fees at the informal dispute resolution
level the commissioner typically has relied on Workers’ Compensation Rule 10.1300 for further
guidance:1
1 The parties dispute whether §678(d), which was added to the statute in 2008, some years after Claimant’s original
injury, is even applicable to this claim. The Commissioner has held that the new section amounts to a procedural
amendment rather than a substantive one, and therefore that it can be applied retroactively. Yustin, supra at p. 6
(interpreting the Supreme Court’s reference to §678(d) in Yustin v. State of Vermont, 2011 VT 20 at ¶14 and n.2). In
either event, both before and after the amendment, the statute has vested the Commissioner with discretion whether
3
Awards to prevailing claimants are discretionary. In most instances
awards will only be considered in proceedings involving formal hearing
resolution procedures. In limited instances an award may be made in a
proceeding not requiring a formal hearing where the claimant is able to
demonstrate that:
10.1310 the employer or insurance carrier is responsible for undue
delay in adjusting the claim, or
10.1320 that the claim was denied without reasonable basis, or
10.1330 that the employer or insurance carrier engaged in
misconduct or neglect, and
10.1340 that legal representation to resolve the issues was
necessary, and
10.1350 the representation provided was reasonable, and
10.1360 that neither the claimant nor the claimant’s attorney has
been responsible for any unreasonable delay in resolving
the issues.
Compare Pawley v. Booska Movers, Opinion No. 04-13WC (February 5, 2013) (petition for prehearing
costs and attorney fees granted), with Yustin v. State of Vermont, Department of Public
Safety, Opinion No. 08-12WC (March 20, 2012) (petition denied); Zahirovic v. Super Thin Saws,
Inc., Opinion No. 38-11WC (November 18, 2011) (same).
The discretion granted by §678(d) to award fees in cases that are resolved prior to formal hearing
is broad. Zahirovic, supra. Rule 10.1300 directs that this discretion is to be exercised only in
limited circumstances, and only when specific requirements are met. Id. One such requirement,
embodied in Rules 10.1310 through 10.1330, is that the employer or insurance carrier be shown
to have behaved unreasonably in crafting its defense against a claim for benefits. Dudley v.
South Burlington Supervisory Union, Opinion No. 23-13WC (October 16, 2013).
Claimant’s current counsel here asserts that because Trident failed either to advance disability
benefits and/or to calculate the extent of its workers’ compensation “holiday,” it
“unconscionably delayed” adjusting her claim. Counsel further asserts that at least until
November 2013, when Dr. Backus issued his causation opinion, Trident had no reasonable basis
for denying the claim, as Dr. Barnum already had attributed her renewed symptoms to her
original injury. Claimant argues that these omissions are sufficient to justify an award of fees
under Rule 10.1300.
to award fees at the informal level, and the factors listed in Rule 10.1300, which dictate how that discretion is to be
exercised, have remained unchanged as well. See, e.g., Reed v. Leblanc, Opinion No. 08-05WC (January 19, 2005).
4
I disagree with both assertions. The fact is, from July 2013, when Attorneys Lynn and Blackman
first notified Trident of Claimant’s claim for additional benefits, until late January 2014, when
they withdrew their representation, the factual and legal posture they assumed on her behalf was
that her renewed disability and need for treatment were not related to her original 2004 injury,
but rather indicated a new injury, one to which the “holiday” did not apply. As Trident’s
coverage had long since expired, there would have been no basis for it to advance benefits, nor
any reason for it to attempt to calculate the extent of its remaining credit.2 There also would
have been no reason for Trident to seek its own expert medical opinion on causation. Claimant’s
assertion that she had suffered a new injury, at a time when it was no longer on the risk, provided
ample basis in itself for denying the claim.
I acknowledge that upon her review, the Department’s workers’ compensation specialist
concluded that the record as a whole favored a finding of recurrence rather than new injury, and
therefore ordered Trident to assume responsibility for the claim pending formal resolution of the
issue. That she thus rejected the basis for Trident’s denial does not automatically render it so
unreasonable as to justify an award of attorney fees, however. I do not necessarily equate the
requisite finding for issuing an interim order under 21 V.S.A. §662(b) – that the employer’s
denial lacks “reasonable support” based on the record as a whole, see 21 V.S.A. §601(24) – with
the finding required for an award of attorney fees under Rule 10.1320 – that at the time it denied
the claim the employer had no “reasonable basis” for doing so. Yustin, supra at p. 7.
I conclude that neither of the grounds Claimant has asserted in support of her petition for
attorney fees is sufficient to establish that Trident unreasonably denied her claim, or otherwise
engaged in misconduct, neglect or undue delay. For that reason, I must reject her petition for an
award of attorney fees and costs.
2 Claimant’s counsel apparently assumes that the burden rested on Trident to calculate the extent of any remaining
“holiday,” and therefore that it acted unreasonably by failing to do so promptly. However, it is Claimant who
presumably would have had the best access to the information required to do so, including medical treatment
charges and/or lost wages incurred in the years since her third party settlement. That being the case, it may be more
appropriate in such cases to assign the injured worker with responsibility for monitoring the extent to which he or
she has spent down a credit, not the carrier.
5
ORDER:
Based on the foregoing, Claimant’s Petition for Award of Attorney Fees and Costs is hereby
DENIED.
DATED at Montpelier, Vermont this ____ day of August 2014.
____________________
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.

A. P. v. Personnel Department, Inc. (October 1, 2008)

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A. P. v. Personnel Department, Inc. (October 1, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. P. Opinion No. 38-08WC
By: Phyllis G. Phillips, Esq.
v. Hearing Officer
Personnel Department, Inc. For: Patricia Moulton Powden
Commissioner
State File No. Y-53713
RULING ON DEFENDANT’S MOTION TO DISMISS
At issue in this claim is whether Defendant should be obligated to pay attorney’s fees to Claimant’s attorney. Claimant’s attorney alleges that Defendant was notified of its attorney’s lien at the time Defendant issued payment of indemnity benefits directly to Claimant, contrary to Claimant’s attorney’s directive and in contravention of the terms of the approved lien. Defendant counters that Claimant’s attorney’s lien was never perfected as required by Workers’ Compensation Rule 10.5000 and that therefore it bears no responsibility for the unpaid fees.
The relevant facts are not disputed. In April 2007 Claimant retained the law firm of Biggam, Fox & Skinner to pursue workers’ compensation benefits on her behalf relating to a right knee injury that occurred on September 22, 2006. Pursuant to Workers’ Compensation Rule 10.5000, her attorney filed a request for an attorney’s lien with the Department. The Department granted the lien on April 25, 2007. In doing so, the Department advised Claimant’s attorney that, “In the event you wish to enforce this lien you must present the department with an itemized statement detailing both the work performed and the hours billed in this matter, pursuant to Rule 10.5000.” (Emphasis in original).
On August 6, 2007 the Department issued an interim order in which it directed Defendant to pay certain indemnity benefits to Claimant. Upon receipt of the interim order, Claimant’s attorney corresponded with Defendant’s attorney and requested that payment of the indemnity benefits due be forwarded “to our office in Claimant’s name.” Defendant failed to do so and instead, in early September 2007 it forwarded payment directly to Claimant.
Upon learning that Defendant had sent payment directly to Claimant, Claimant’s attorney made several attempts to contact Claimant, but to no avail. As a result, Claimant’s attorney remained unpaid for the services it had rendered in pursuit of the benefits paid to Claimant.
In November 2007, more than two months after Defendant had issued payment, Claimant’s attorney corresponded with the Department, requesting that it issue an order directing Defendant to pay attorney’s fees “pursuant to our approved attorney lien.” Appended to the request was a spreadsheet detailing the work performed and the hours billed. The Department declined to issue the requested order and instead referred the matter to the formal hearing docket. Defendant’s motion to dismiss followed.
2
Discussion
Vermont’s Workers’ Compensation Act states that attorney’s lien requests “shall be approved by the commissioner,” and that “when so approved they may be enforced against compensation awards in such manner as the commissioner may direct.” 21 V.S.A. §682. Workers’ Compensation Rule 10.5000 details the manner in which the commissioner has directed such liens be enforced, as follows:
A request for a lien must be made to the Director in writing, with a copy to the claimant, and must include a copy of the written fee agreement executed by the claimant and an itemized statement detailing both the work performed and the hours billed. (Emphasis added).
The Department notified Claimant’s attorney of the requirement that an itemized statement be filed before an approved lien could be enforced in its April 2007 correspondence. Claimant’s attorney failed to comply with this requirement, however, until some two months already had passed from the date the interim order had issued. Notably, Defendant was obligated to issue payment pursuant to the interim order within 21 days, or else risk the imposition of penalties and interest against it pursuant to 21 V.S.A. §650(e). Under these circumstances, Claimant’s attorney must bear ultimate responsibility for the fact that its lien was not satisfied, not Defendant.
It is true that Claimant’s attorney probably would have been able to secure payment for its services had Defendant complied with its request that the indemnity benefits due Claimant be forwarded to the attorney’s office rather than mailed directly to Claimant. Professional courtesy might dictate that Defendant be more cognizant of such requests. The fact remains, however, that Claimant’s attorney’s lien was not perfected until it was too late for Defendant lawfully to comply. As a result, there is no basis for legal liability to attach.
Defendant’s Motion to Dismiss is GRANTED.1
DATED at Montpelier, Vermont this 1st day of October 2008.
_________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
1 Having dismissed Claimant’s claim for attorney’s fees, there is no need to reach Defendant’s alternative motions.

C. F. v. S. D. Ireland Concrete (September 17, 2008)

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C. F. v. S. D. Ireland Concrete (September 17, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 35-08WC
By: Jane Dimotsis
v. Hearing Officer
S.D. Ireland Concrete For: Patricia Moulton Powden
Commissioner
State File No. U-52496
Formal Hearings held in Montpelier on August 28, 2007 and October 31, 2007
Record Closed December 2007
APPEARANCES:
Steven P. Robinson, Esquire, for the Claimant
Keith J. Kasper, Esquire, for the Defendant
ISSUES:
1. When did Claimant reach end medical result?
2. Is Claimant permanently and totally disabled under 21 V.S.A. §644(b)?
3. If not, what is extent of claimant’s permanent partial impairment?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Joint Exhibit II: Supplemental Medical Exhibit
Joint Exhibit III: Louise Lynch Deposition Transcript
Claimant’s Exhibit 1: Bushey Letter
Claimant’s Exhibit 2: Gregory LeRoy’s CV
Defendant’s Exhibit A: Fran Plaisted’s CV
CLAIM:
Temporary total disability benefits through July 24, 2006 pursuant to 21 V.S.A. § 642;
Permanent total disability benefits under 21 V.S.A. § 644(b) or alternatively,
permanent partial disability benefits under 21 V.S.A. 648;
attorney’s fees and costs under 21 V.S.A. § 678.
2
FINDINGS OF FACT:
1. Claimant was an employee within the meaning of the Workers’ Compensation Act and S.D. Ireland was an employer under the Act on the date of Claimant’s injury.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim.
3. Claimant’s injury occurred on April 14, 2004 and caused chronic left shoulder pain and other limitations. Claimant underwent a shoulder arthroscopy subacromial distal clavicle excision and open rotator cuff repair by Dr. Bryan Huber on July 27, 2004. The surgery was not successful. Claimant was left with a significant amount of pain and little to no use of his left arm. This injury was determined compensable by the Department in a decision and order dated July 19, 2005.
4. After Claimant suffered his shoulder injury he was unable to continue working for the Defendant as an equipment operator. Defendant assigned him to work as a flagger for two weeks, and later terminated his employment in June of 2004.
5. The insurer paid benefits in the form of Temporary Total Disability Benefits (TTD) from November 5, 2005 until December 22, 2005. At that time, the Claimant had an average weekly wage of $704.49 resulting in an initial compensation rate of $469.33. Claimant had returned to work for a former employer on a less than full time basis from December 11, 2004 until approximately October 31, 2005 due to financial necessity. This former employer also terminated him due to his inability to use his left arm.
6. Claimant is a 67-year-old male. He had formal schooling through the eighth grade and can read and write. He has the reading ability of a fifth grader and math abilities on a sixth grade level. Claimant rarely reads and relies on his wife to fill out paper work for him. Claimant has had experience in logging, construction, operating heavy equipment and driving trucks. At the time of his injury Claimant was working as an equipment operator for Defendant.
7. Claimant wants to go back to work. He has worked all of his life beginning with farming. He had planned on working until he was 70 years old. However, his left arm is painful and he has loss of sensation in his left hand. He feels numbness from his fingers up his arm into his neck. Most of the time he keeps his arm in his pocket. He has no grip with his left hand. He drives by keeping his left arm under the steering wheel. He can’t drive more than a distance of 10 miles due to the inability to use his left arm. He does not take prescription drugs because he does not want to become addicted to them. He does take Ibuprofen for pain.
3
8. Claimant has received physical therapy and chiropractic care for his injury, but continues to have constant pain and numbness in his left arm, hand and shoulder. In order to alleviate the weight of his arm pulling on his shoulder, he must keep his left hand in his pocket while walking or standing. He has poor tolerance to cold weather, and has difficulty sleeping at night. Additionally, he is unable to do most household chores. He is able to walk eight miles a day.
9. Since the time of the injury, Claimant’s physician, Dr. Huber, has treated Claimant’s condition. This treatment included physical therapy, an EMG, an MRI, cervical x-rays, medications, surgical consults, and injection therapy. Because Dr. Huber believed surgery would only have a 20% chance of being successful, Claimant declined this treatment option.
10. In several of the examinations, Dr. Huber noted a modest improvement in Claimant’s condition, and in other examinations, he did not find any improvement to have occurred. On November 19, 2005 Dr. Huber filled out a form stating that the Claimant could return to work with the following restrictions:
a) no repetitive motion
b) no lifting greater than 10 pounds
c) no overhead use of upper extremity
d) no overhead lifting
e) may need periodic rest
f) may return to desk work only/ no truck driving.
11. On April 4, 2006 Dr. Huber wrote that he believed that Claimant had “basically met maximal medical improvement.” On May 5, 2006 Dr. Huber answered “no” when asked if Claimant could return to the traditional labor force at the present time. Barely a month later, on May 23, 2006, Dr. Huber gave Claimant an injection to help his arm move better. This injection was not effective, and Dr. Huber told Claimant that there was nothing else he could do to treat his condition. On July 24, 2006 Dr. Huber placed Claimant at end medical result with a 13% permanent impairment. In doing so, Dr. Huber recognized that Claimant’s underlying condition would not have changed even if his pain level decreased.
12. Dr. Johansson performed an independent medical examination on October 11, 2005, and reviewed his subsequent medical records. He held that Claimant reached end medical result on December 9, 2005 because his condition did not improve after that date.
13. George Fotinopoulos, a vocational rehabilitation counselor, provided an assessment of whether vocational rehabilitation services would benefit Claimant. He found that due to Claimant’s advanced age, limited residual functional abilities, restricted driving ability, extended time out of work, and computer illiteracy he would not be able to return to the work force with vocational rehabilitation services within a reasonable length of time. He did initially explore limited work options for Claimant, primarily making bird houses. Claimant could not do this work due to his shoulder injury. Mr. Fotinopoulos then recommended closure of vocational rehabilitation services, which the Department approved.
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14. Iris Banks also performed a vocational assessment on Claimant. She found that vocational rehabilitation could be beneficial for placement in several different occupations. However, she also found that Claimant faced several significant barriers preventing him from returning to work, including his high level of pain and limited stamina and the lack of a high school diploma or GED. She found that if he was to work in a stationary situation, he would require an adjustable workstation that would allow for positional adjustment of his hands and arms. She also noted that a vehicle would have to be modified to allow him to drive with his right hand and provide support for his left hand. Also, Claimant most likely would have to be retrained to do sedentary work. She noted he has no computer skills and no GED.
15. Louise Lynch, a physical therapist and certified work capacity evaluator, performed two functional capacity evaluations on Claimant. In the first evaluation on February 26, 2006, she found that Claimant did not have the ability to return to work as an equipment operator or work as a laborer or tandem driver, but did have a LIGHT work capacity for full time work with occasional use of the left upper extremity below chest level. In the second evaluation, eighteen months later, she found that he did not have a sustainable full time work capacity based upon the Dictionary of Occupational Titles. This referred only to his ability to go to work on a day-to-day basis with the use of both of his hands. She found that he had some positional abilities for sitting, standing, and walking for both SEDENTARY and LIGHT work, and that he could use his right dominate hand on a frequent basis at a LIGHT level. She believed that he could have a full time work capacity if accommodations were made for his left arm and hand.
16. Fran Plaisted, a vocational expert, performed an independent vocational evaluation (“IVE”) on Claimant in July 2006 which she updated on October 19, 2007. She found that the Claimant could return to regular gainful employment in the labor market with further vocational rehabilitative services. She noted that his barriers to employment were not unlike those barriers faced by other individuals with disabilities returning to work. She believed that a plan could have been provided to Claimant including a vocational assessment, adult tutoring for his GED, a driving evaluation, tutoring for computer skills, and vocational exploration to determine occupations that existed in his area that can be performed one-handed or could be modified to be done with one hand.
17. Greg LeRoy, also a vocational expert, performed a vocational rehabilitation assessment on Claimant. He found that vocational rehabilitation would not result in the Claimant being able to return to regular gainful work. He disagreed with the suggestions made for employment by some of the other experts, holding that Claimant does not meet the qualifications for the jobs suggested. Mr. LeRoy also noted that in addition to Claimant’s limited type of work experience, skills, education, and difficulty driving, his age and time out of work also would make it too difficult for him to return to work. He determined that the amount of time needed to bring Claimant’s skills up to the necessary level for sedentary work were unrealistic when considering his age of 67. The fact that the Claimant lives in a very rural area of Hyde Park, Vermont also played a small part in his decision.
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18. Attorney’s fees in the amount of $17,514.00 and costs of $6,332.81 were requested by Claimant’s attorney.
CONCLUSIONS OF LAW
1. The main issue in this case is whether further vocational rehabilitation services are available that would make Claimant employable, or whether he is permanently totaled disabled. There is also a disagreement regarding when end medical result occurred.
End Medical Result
2. When evaluating and choosing between conflicting medical opinions, the Department has traditionally considered several factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether 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 included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience. Morrow v. VT Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Sept. 1 & July 20, 1998); Miller v. Cornwall Orchards, Opinion No. 20-97WC (Aug. 4, 1997).
3. The parties each rely on the opinion of one doctor: Dr. Huber, Claimant’s treating physician, an orthopedic surgeon, and Dr. John Johansson, Defendant’s independent medical evaluator, an osteopath.
4. Of the factors used in choosing between the conflicting medical opinions, I find several to be equally persuasive. Each doctor had an opportunity to review Claimant’s medical records and each doctor undertook a comprehensive physical examination of Claimant. However, Dr. Huber his treating physician operated on him.
5. Under Workers’ Compensation Rule 2.1200, end medical result is the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment. The proper test to determine end medical result is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). Here, the doctors disagree about the appropriate date on which Claimant reached end medical result.
6. First, as to the nature of treatment and length of time there has been a patient-provider relationship, it appears that Dr. Huber treated Claimant since the date of his injury, including performing his surgery and treatment. Dr. Johansson has examined Claimant only for the IME. However, Dr. Johansson is much more familiar with the Guides and the IME process. He found the date of end medical result to be December 9, 2005.
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7. Although Dr. Huber noted in his reports that he continued to speak with Claimant regarding different treatment options, there only existed a small percentage of hope that doing another surgery would be helpful. Claimant did not choose to go forward with the surgery due to the low odds of it being helpful. Dr. Huber originally stated that he felt that Claimant may have reached maximal medical improvement on April 4, 2006. As a final alternative Dr. Huber gave Claimant an injection in May 2006. The injection was the type used for palliative care or relief of pain. It did not result in any significant further improvement in his condition.
8. As was the case in Coburn, Dr. Huber’s treatment caused Claimant’s injury to be more stable, but did not improve his underlying condition. With that in mind, I find Claimant reached end medical result on December 9, 2005 as Dr. Johansson determined.
Permanent and Total Disability
9. Under 21 V.S.A. § 644(b) and Workers’ Compensation Rule 11.3100:
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment. A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
10. Regular employment means work that is not casual and sporadic. Gainful employment means that the hiring is not charitable and the person earns wages. Rider v. Orange East Supervisory Union, et. al., Opinion No. 14-03WC (2003).
11. Based on Louise Lynch’s FCE, it appears at best that Claimant can only perform a LIGHT level job that requires the use of only one-hand. The remaining experts disagree on whether Claimant can find regular gainful employment given his barriers to employment. Even if it is possible for Claimant to find employment, it is not likely.
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12. Here, both Iris Banks and Fran Plaisted have suggested possible jobs for Claimant that would accommodate his injury and other employment barriers. However, in his vocational rehabilitation assessment, Greg LeRoy disagreed that Claimant could meet the qualifications for these jobs. Mr. LeRoy offered objective support for his opinion that many of the jobs suggested were not feasible for Claimant and I find his reasoning convincing as to the jobs not discussed in his assessment as well.
13. As Workers’ Compensation Rule 11.3100 establishes, the Odd Lot Doctrine does not require that a Claimant establish his inability to perform any work whatsoever in order to qualify for permanent total disability. The focus is on his or her ability to perform “gainful work” in which a reasonably stable market can be presumed to exist.
14. The expert testimony establishes that Claimant may in fact be able to be retrained so as to perform some work at a LIGHT level and using only his right hand. However, given Claimant’s age, his experience and training in only physical jobs requiring both arms, his limited education, his restricted driving ability and his residual pain, I find that the opportunities for gainful work in the rural area in which he lives are most likely non-existent. To the contrary, Claimant appears to present the very picture of the permanently disabled worker for which the old lot doctrine was enacted.
15. Defendant argues that because of the similarity of this case to Kreuzer v. Ben & Jerry’s Homemade and Royal Sun Insurance, Opinion No. 15-03WC, the Department should require that Claimant exhaust all vocational rehabilitation services before finding permanent total disability. While I agree there are similarities to Kreuzer, I do not find the holding there to be binding here. Odd lot cases are extremely fact-specific by nature, and to generalize from one to another usually ill-advised.
16. Consequently, because the evidence supports that Claimant would not find gainful work even through vocational rehabilitation, I find him to be permanently and totally disabled.
17. The parties stipulated that Claimant’s average weekly wage was $704.49 resulting in an initial compensation rate of $469.33 at the time of the injury. He had no dependents.
18. Claimant has submitted a request for attorney’s fees totaling $17,514.00 and costs totaling $6,332.81. Defendant raises various issues as to both amounts. Defendant is correct that attorney’s fees should only be awarded for the time spent litigating the issues in the current claim, and not for time spent on Claimant’s tort action against the insurer. Nor can Claimant seek attorney’s fees for time spent on the prior litigation of this claim before this Department. Last, Defendant is correct that paralegal time spent should be billed at the appropriate paralegal rate, $60.00 per hour, rather than at the attorney’s rate. Claimant shall have 30 days from the date of this decision to submit an amended bill reflecting only time spent on the current litigation and billed a the appropriate hourly rate.
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19. As for costs, I find that all of the charges submitted are properly connected to litigation of the current claim. However, Mr. LeRoy’s charges are not documented with sufficient capacity to determine their compliance with Workers’ Compensation Rule 40. Claimant shall have 30 days from the date of this decision to submit an amended bill from Mr. LeRoy, showing time spent and rates charged.
ORDER:
Based on the foregoing findings and conclusions, Defendant is hereby ordered to pay:
1. Permanent total disability commencing on December 9, 2005, the date Claimant reached end medical result;
2. Interest at the statutory rate commencing on December 22, 2005;
3. Attorney’s fees and costs in an amount to be determined based on Claimant’s supplemental filing in accordance with Conclusions of Law #s 17 & 18 above.
DATED at Montpelier, Vermont this 17th day of September 2008.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

J. B. v. Steven Betit (August 7, 2008)

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J. B. v. Steven Betit (August 7, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. B. Opinion No. 32-08WC (amended)
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Steven Betit
For: Patricia Moulton Powden
Commissioner
State File No. Y-51024
AMENDED OPINION AND ORDER
The July 22, 2008 Opinion and Order in the above claim is hereby amended as follows:
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Permanent partial disability benefits in accordance with Dr. Gennaro’s 50% whole person impairment rating;
2. A 10% penalty added to the amount payable in accordance with Dr. Boucher’s 23% impairment rating;
3. Accrued interest commencing on November 19, 2007 and computed as of the date each weekly payment became due;
4. Costs of $2,442.59 and attorney’s fees in accordance with Workers’ Compensation Rule 10.1220.
5. The benefits paid under this Order constitute compensation for a permanent impairment that will affect Claimant for the rest of hislife. Therefore, although paid in a lump sum the award shall be prorated over Claimant’s life expectancy. Claimant’s remaining life expectancy as of the date of end medical result (May 16, 2007) was 39.8 years, or 477.6 months. After payment of attorney’s fees Claimant shall be entitled to an award of $73,585.41. This award shall be considered to be $154.07 per month for the remainder of Claimant’s life.
DATED at Montpelier, Vermont this 7th day of August 2008.
__________________________________
Patricia Moulton Powden
Commissioner

T. K. v. Green Mountain Steel Erectors (July 3, 2008)

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T. K. v. Green Mountain Steel Erectors (July 3, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
T. K. Opinion No. 29-08WC
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Green Mountain
Steel Erectors For: Patricia Moulton Powden
Commissioner
State File No. U-12876
OPINION AND ORDER
Hearing held in Montpelier on March 28th and April 15th, 2008
APPEARANCES:
Gregg Meyer, Esq., for Claimant
Nathaniel Seeley, Esq., for Defendant
ISSUE PRESENTED:
1. Whether Defendant was justified in discontinuing Claimant’s workers’ compensation benefits on the grounds that he had refused recommended treatment for his February 12, 2004 work injury;
2. Whether Claimant has reached an end medical result and if so, whether he is entitled to permanent total disability benefits; and
3. Whether the value of Defendant’s contributions to Claimant’s health insurance premiums and/or retirement savings should be included in Claimant’s average weekly wage.
EXHIBITS:
Joint Medical Exhibit
Claimant’s Exhibits:
Claimant’s Exhibit 1: Lara Boutaugh-Commoss, RN, Nurse Case Manager file notes
Claimant’s Exhibit 2: Jean Perrigo, claim file notes (redacted)
Claimant’s Exhibit 3: Letter from Jean Perrigo to Claimant, 05/10/2005
Claimant’s Exhibit 4: Memorandum from Shirley to Jean/Travelers, 8/8/06
Claimant’s Exhibit 5: Photographs (4)
Claimant’s Exhibit 6: Letter from Roger Bouchard, January 29, 2008
Claimant’s Exhibit 7: John Krawchenko, MD office note, 4/18/08 (admitted post-hearing)
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Defendant’s Exhibits:
Defendant’s Exhibit A: Letter from Jean Perrigo to Dr. Stewart, 05/10/2005
Defendant’s Exhibit B: Letter from Jean Perrigo to Claimant with Form 27 attached, 05/24/2005
Defendant’s Exhibit C: Letter from Jean Perrigo to Claimant with Form 22 attached,
05/24/2005
Defendant’s Exhibit D: Curriculum Vitae, William A. Stewart, MD
CLAIM:
Temporary total disability benefits under 21 V.S.A. §642 retroactive from discontinuance and ongoing;
Medical benefits under 21 V.S.A. §640, including reimbursement for travel and meals under Workers’ Compensation Rule 12.2000;
Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was Defendant’s employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Defendant is a Vermont company engaged in the business of erecting steel buildings, some as high as eight stories tall. Claimant has worked for Defendant as a steel erector since 1999.
3. On February 12, 2004 Claimant was working as a ground man on a crane at a job site in Massachusetts. As he bent over to attach a choker cable around a steel beam he felt a pop in his lower back. Over the next few hours the pain increased to the point where he could not straighten up.
4. Claimant reported his injury as work-related. Notwithstanding that the injury occurred in Massachusetts and that Claimant was (and continues to be) a New York resident, Defendant opted to file the First Report of Injury in Vermont, jurisdiction here having attached because Claimant had been hired in Vermont. Thereafter, Defendant accepted the claim as compensable and paid benefits in accordance with Vermont’s Workers’ Compensation Act.
5. Claimant treated for his injury with his primary care provider, David Vigeant, a physician’s assistant. His symptoms included low back pain radiating to his buttocks and lower extremities, primarily on the left. Mr. Vigeant determined that Claimant was temporarily totally disabled. After an MRI performed on February 25, 2004 revealed a paracentral disc herniation at L5-S1, Mr. Vigeant referred Claimant to Dr. Krawchenko, a neurosurgeon, for further evaluation and treatment. Dr. Krawchenko concurred with Mr. Vigeant’s assessment that Claimant was totally disabled from working and remains of that opinion today. Claimant has not worked since the February 12, 2004 accident.
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6. Initially Dr. Krawchenko prescribed conservative treatment, including passive-modality physical therapy and lumbar epidural steroid injections. When Claimant’s symptoms failed to abate with these measures, Dr. Krawchenko recommended surgery. Claimant underwent L5-S1 disc surgery on June 17, 2004.
7. Claimant’s symptoms persisted post-surgery and in fact appeared to worsen. He experienced pain, burning and numbness radiating from his left buttocks down his left leg and into his left foot. He had difficulty ambulating, walked with a severe limp and could not sit on his left buttock. Notwithstanding these worsening symptoms, a repeat MRI performed in July 2004 revealed no new disc herniations.
8. In October 2004 Physician’s Assistant Vigeant referred Claimant to Dr. Fayyazi for a second neurosurgical opinion. Dr. Fayyazi concurred with Dr. Krawchenko’s assessment that there was no new disc herniation and instead believed that the majority of Claimant’s ongoing symptoms represented early signs of reflex sympathetic dystrophy. For treatment of these symptoms Dr. Fayyazi recommended a more aggressive, active physical therapy program.
9. The physical therapy records document significant improvement with this more active program. By February 2005 Claimant had fewer pain complaints, better mobility, increased flexibility and an “essentially normal” gait pattern. Claimant was discharged from physical therapy in late February, all of the recommended visits having been completed.
10. At Dr. Krawchenko’s referral, in March 2005 Claimant underwent a functional capacities evaluation in which he demonstrated a sedentary work capacity, much less than what would be required for a successful return to work at his pre-injury job. Significantly, the functional capacities evaluator also noted that Claimant scored very high on a depression index, an indication that he was severely depressed and possibly suicidal. Upon learning this, Dr. Krawchenko referred Claimant to Dr. Littell, a psychologist, for evaluation and treatment.
11. Claimant attended one one-hour session with Dr. Littell. Dr. Littell diagnosed Claimant with a major depressive disorder. He noted various stressors in Claimant’s life, some related to his injury and some personal. As treatment he offered either ongoing therapy and/or anti-depressant medications, both of which Claimant declined.
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12. By April 2005 Claimant again was favoring his left leg and walking with a limp, and seemed to have regressed from the significant gains he had realized in physical therapy. At Defendant’s request, in late April he underwent an independent medical evaluation with Dr. Stewart, a neurosurgeon. Dr. Stewart reported that Claimant suffered from constant low back pain and pain, numbness and weakness in his left leg and foot. He walked with a marked limp and appeared to be in marked distress. Dr. Stewart concluded that Claimant continued to be totally disabled as a result of his work injury. As to ongoing treatment, Dr. Stewart stated:
His present treatment is not reasonable. I say this for these reasons, he is not being properly treated for his depression. Depression magnifies pain ten times and until the depression is addressed he is not going to make any significant progress in his complaints of pain and disability.
13. Dr. Stewart predicted that Claimant would reach an end medical result for his work injury “after successful treatment of his depression and further exercise and therapy for his back.” As to work capacity, Dr. Stewart predicted that following successful treatment of his depression Claimant would be able to return to work with a “moderate disability” – something more than the sedentary work capacity he had been given following his functional capacities evaluation, but probably not great enough to allow him to return to work in his pre-injury steel worker position.
14. Upon learning of Dr. Stewart’s conclusions and treatment recommendations, the claims adjuster and nurse case manager assigned to Claimant’s claim by Defendant’s workers’ compensation insurance carrier conferred as to the appropriate next steps. They agreed that the nurse case manager would contact Claimant to discuss his possible enrollment in the multidisciplinary program offered at the Vermont Center for Occupational Rehabilitation (VCOR) in Essex Junction, Vermont. The nurse case manager’s computer claim file notes reflect that if Claimant declined to participate in that program, she would research the availability of similar multidisciplinary programs in New York, closer to Claimant’s residence. There is no evidence that she did so, however, despite the fact that Claimant did in fact decline to participate in the VCOR program.
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15. On May 6, 2005 the nurse case manager spoke with Claimant by phone. They discussed the VCOR program at length and the nurse case manager advised that she would send Claimant a brochure so that he could learn more about it. As to Claimant’s willingness to participate in the program, the nurse case manager’s computer claim file notes state:
IW [Injured Worker] had no significant comment re: participating in this program. He stated wants all of this treatment done. I explained that none of his NY treating providers have documented that he’s at medical end result.1
. . .
Explained that in speaking with [the claims adjuster], this carrier would arrange transportation for him to & from VT for his consultation & participation in program, as well providing & paying for lodging.
IW stated he’d review the brochure and contact me the middle of next week.
1 According to the nurse case manager’s computer claim file notes, this was not the first time she had discussed the concept of end medical result with Claimant. Previously, on February 25, 2005 (the date on which Claimant was discharged from physical therapy after having completed all scheduled visits), she returned a phone call from Claimant in which he asked “what he would need to do to settle his workers’ compensation claim.” She responded by explaining both end medical result and permanency rating as the necessary first steps to doing so.
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16. On May 10, 2005 the claims adjuster spoke with Claimant. Her computer claim file notes document the conversation as follows:
I spoke with the injured worker this morning. He said he received the copy of the IME results. The injured worker said that he does not wish to pursue any further medical treatment for the work-related injury. He received the brochure which was sent by the nurse with regard to attending VCOR. He does not wish to pursue this treatment. He does not want to be involved with any therapy.
The injured worker said he just wants to put it all behind him and move on with his life. He does not want to attend any further medical appointments. He does not want vocational rehabilitation. He wants a settlement. The injured worker was asked if he has thought this through and that he realizes the consequences of not following through with recommendations for treatment. He was adamant that he does not want any further treatment.
A letter will be written to Dr. Stewart requesting that given the fact that the injured worker does not wish to pursue any further treatment recommendations, will he place him at medical end result and provide an impairment rating.
A letter will also be sent to the injured worker requesting that he sign and return the letter with regard to his wishes not to pursue any further treatment recommendations.
17. At the formal hearing Claimant recalled the telephone conversation with the claims adjuster, and acknowledged that it was not a “friendly” discussion. He testified that he did not object to the VCOR program per se, but was concerned because he had been told that he would have to take a bus to Vermont and would be accommodated there without either his wife or his mother for support. In Claimant’s opinion, that arrangement was “not acceptable.” He testified that he would have been more receptive to a similar program in New York, closer to home. It is unclear to what extent Claimant conveyed this sentiment to the claims adjuster. In summing up the gist of his conversation Claimant testified that when he said that he was “refusing treatment,” he was not referring to the medical treatment that had been proposed, but rather to the treatment he had received from the claims adjuster. Ultimately, Claimant hung up on the adjuster.
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18. Following her conversation with Claimant, the claims adjuster corresponded with Dr. Stewart. She advised him as follows:
Given . . . the fact that Mr. Kirby does not wish to pursue any further medical treatment, he is basically placing himself at maximum medical improvement. Please advise whether you are able to state that he has reached maximum medical improvement as defined by the Vermont Workers’ Compensation Rules. Additionally, we would request that you address what percentage of whole person impairment Mr. Kirby has sustained based upon the 5th Edition of the AMA Guidelines.
19. The claims adjuster also corresponded with Claimant. She reiterated her understanding that Claimant did not wish to pursue the treatment recommended by Dr. Stewart and asked that he sign, date and return the letter to her to verify that this was in fact the case. If her understanding was incorrect, she asked that Claimant contact her immediately to discuss the matter further. Claimant did not take either action.
20. On May 12, 2005 Dr. Stewart responded to the claims adjuster’s letter with a brief addendum in which he declared Claimant to be at end medical result with a 20% whole person permanent impairment. Dr. Stewart did not conduct any further examination of Claimant prior to issuing this addendum. He based his end medical result determination solely on the claims adjuster’s assertion that Claimant was refusing further treatment and his permanency rating solely on the notes from his prior evaluation of Claimant.
21. On May 24, 2005 the claims adjuster filed a Form 27 Notice of Intention to Discontinue Payments with the Department in which it sought to discontinue workers’ compensation benefits on the grounds that Claimant had reached an end medical result in accordance with Dr. Stewart’s May 12, 2005 addendum. A copy of the Form 27 was mailed to Claimant. The Department approved the discontinuance effective June 2, 2005.
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22. Also on May 24, 2005 the claims adjuster mailed Claimant a proposed Form 22 Agreement for Permanent Partial Disability Compensation in accordance with Dr. Stewart’s 20% whole person impairment rating. She asked that Claimant sign the form and return it to her for filing with the Department. Claimant did not do so. Instead, on June 6, 2005 he telephoned the claims adjuster and advised that he would not sign the form because he disagreed with Dr. Stewart’s impairment rating. The claims adjuster’s computer claim file notes further report:
The injured worker said he saw Dr. Krawchenko on 5/26/05 and Dr. Krawchenko said he is 100%. I advised the injured worker that if he was 100% he would be in a wheelchair. The injured worker said he just wants to be done with the whole thing. He does not want any further treatment, vocational rehabilitation, etc. He wants to settle this and have enough money so that he can buy a house with a pool and a hot tub and live comfortably. The injured worker said he would be willing to compromise at 50%. I advised the injured worker that I would not be willing to compromise anything at this time. I advised him I wanted to see what Dr. Krawchenko has to say in his report. I also advised the injured worker that Dr. Krawchenko may not be familiar with Vermont workers’ compensation and how to go about assessing for permanent impairment.
The injured worker was encouraged to call the Vermont Department of Labor and Industry to obtain their opinions and suggestions. The number was provided to him.
23. Claimant testified that he did not follow up with the Department of Labor & Industry, and instead sought legal advice. Claimant retained an attorney in June 2007.
24. Although Claimant never signed the proposed Form 22, Defendant advanced permanency benefits in accordance with Dr. Stewart’s 20% impairment rating until they were fully paid. Twice during this period Claimant requested and was granted partial lump sum payments, once to assist with a down payment on a house and once to purchase exercise equipment.
25. Notwithstanding the discontinuance of his workers’ compensation benefits, Claimant has continued to treat regularly with both Physician’s Assistant Vigeant and Dr. Krawchenko. Mr. Vigeant’s treatment has consisted primarily of monitoring Claimant’s symptoms, which have continued unabated over time. Claimant testified that since the 2004 injury and subsequent surgery he has fallen more than a dozen times because of the weakness in his left lower extremity. Claimant testified that as a result of one such fall, in October 2006, he injured his left shoulder and neck. At the formal hearing, Claimant walked with a pronounced limp and needed physical assistance to negotiate even the short distance from one end of the room to the other. While seated, he changed positions frequently and appeared to be in marked distress throughout the day.
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26. Dr. Krawchenko has continued to monitor Claimant’s care as well. In terms of treatment, he has approved Claimant’s strategy of heat, ice, anti-inflammatories and gentle exercises. While these measures provide some temporary relief of symptoms, none of them have resulted in any significant long-term improvement. On various occasions Dr. Krawchenko has suggested that Claimant might consider another course of epidural steroid injections. Initially he reported that Claimant did not wish to pursue that treatment option; more recently he reported that Claimant advised he could not do so because he could not afford it. Dr. Krawchenko also has recommended further diagnostic work-up for Claimant’s left shoulder complaints.
27. As for Claimant’s disability status, Dr. Krawchenko maintains that Claimant is permanently totally disabled as a result of his work injury. Dr. Krawchenko has not rated the extent of Claimant’s permanent impairment in accordance with the AMA Guides. Nor has there been any formal assessment of Claimant’s transferable vocational skills.
28. In February 2008 Claimant underwent an independent medical evaluation with Dr. Bucksbaum, a specialist in physical medicine, rehabilitation and pain management. Dr. Bucksbaum opined that Claimant remains temporarily totally disabled as a result of his work injury, that his condition has not yet stabilized and that he requires further treatment causally related to his work injury. Specifically, Dr. Bucksbaum believes that Claimant is a candidate for a course of intensive outpatient rehabilitation and chronic pain management. He also needs further diagnostic work-up and treatment for his cervical, left shoulder and left hip complaints, at least some of which Dr. Bucksbaum related to the falls Claimant has suffered as a result of the weakness in his left leg. According to Dr. Bucksbaum, Claimant will not reach end medical result until these next diagnostic and treatment recommendations are pursued.
29. At the formal hearing, Claimant testified that he would like to follow up on all of Dr. Bucksbaum’s treatment recommendations.
30. Dr. Stewart also testified at the formal hearing. Having developed a better understanding of the concept of end medical result under Vermont’s workers’ compensation law, Dr. Stewart rescinded his prior determination that because Claimant purportedly had refused further treatment in May 2005 it was appropriate to deem him to be at end medical result. To the contrary, Dr. Stewart testified that because Claimant’s condition is not stabilized and because he requires further evaluation and treatment, he is not at end medical result. Dr. Stewart believes that Claimant now needs a thorough neuropsychological evaluation to determine the extent of his chronic pain problem and the psychological factors, including depression, which might impact both diagnosis and course of further treatment.
31. Dr. Krawchenko’s position as to Dr. Bucksbaum’s and Dr. Stewart’s treatment recommendations is unclear. In his January 19, 2007 office note Dr. Krawchenko suggested that Claimant “may need psychological help” for the depression associated with his chronic pain, but he did not make any specific referral. Beyond that, Dr. Krawchenko’s office notes do not discuss the potential effectiveness of either Dr. Bucksbaum’s or Dr. Stewart’s proposed treatment paths.
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32. At the time of his injury, Claimant’s compensation package from Defendant included payments towards his health, dental and life insurance premiums as well as annual contributions to his 401(k) pension plan. Defendant contributed a total of $2,686.04 towards these benefits in 2003.
CONCLUSIONS OF LAW:
1. At issue in this claim is the extent to which a claimant can refuse to follow an independent medical examiner’s treatment recommendations, and the lawful consequences an employer can impose when this situation occurs.
2. Vermont’s workers’ compensation law has been interpreted to impose upon claimants the obligation to participate actively in their medical care, and precludes them from refusing unreasonably to pursue recommended treatment designed to improve their condition. Hall v. Maple Grove Farms, Inc., Opinion No. 33-95 (August 8, 1995); Hoyt v. Vermont State Hospital, Opinion No. 3-94WC (February 22, 1994); Luther v. General Electric, Opinion No. 9-93WC (July 29, 1993). A claimant who chooses unreasonably to refuse treatment risks temporary suspension of his or her workers’ compensation benefits. Hoyt, supra. Benefits remain suspended until the basis for their suspension disappears, either because the claimant opts to undergo the treatment at issue or because circumstances change so as to negate the treatment’s anticipated efficacy. Luther, supra.
3. In determining whether the facts of a particular claim warrant that a claimant’s benefits be suspended, the key issue is whether the decision to refuse treatment is reasonable. In this context, reasonableness requires weighing the treatment’s potential risk against its likely success in significantly reducing the claimant’s disability. 1 Larson, Workers’ Compensation Law §10.10[2]. After having been viewed through such a risk-reward prism, only those treatment refusals that are “clearly unreasonable” can justify a suspension of benefits. Hall, supra.
4. Applying that test to the current claim, I find that Dr. Stewart’s recommendation that Claimant undergo psychological treatment for depression as an integral part of his ongoing rehabilitation program involved only limited risk and the potential for significant reward. I further find that Claimant refused to undergo such treatment, and that his refusal was clearly unreasonable. Defendant’s decision to suspend benefits on those grounds, therefore, was appropriate.
5. As to the duration of the suspension, once Claimant was notified that Defendant had discontinued benefits on the grounds that he had refused treatment, and once the Department approved the action, it became incumbent upon Claimant to give some affirmative indication that he had changed his mind. I find that Claimant did not do so until the formal hearing, when he testified that he was willing to pursue Dr. Bucksbaum’s treatment recommendations. Assuming that Claimant is willing as well to undergo the neuropsychological evaluation recommended by Dr. Stewart his benefit suspension should end as of that date.2
2 Claimant did not address his willingness to undergo a neuropsychological evaluation at the formal hearing as Dr. Stewart did not make this recommendation known until his own formal hearing testimony, which came after Claimant already had testified.
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6. Because Claimant requires additional treatment that if successful, will result in significant further improvement, he is not yet at an end medical result as that term is defined in Workers’ Compensation Rule 2.1200. Until Claimant reaches that point, it is premature to determine the extent of his permanent impairment, either total or partial. For that reason, I cannot credit Dr. Krawchenko’s opinion that Claimant is permanently totally disabled.
7. Having concluded that Claimant’s refusal of treatment ended as of the formal hearing, Defendant is obligated to reinstate both temporary disability and medical benefits as of that date, provided of course that Claimant in fact complies with the treatment recommendations that Drs. Bucksbaum and Stewart have proposed. What remains is to determine the appropriate average weekly wage and compensation rate at which temporary disability benefits should be paid.
8. Claimant argues that the value of Defendant’s contributions to his health insurance premiums and retirement savings should be included in his average weekly wage and compensation rate calculation. In keeping with the U.S. Supreme Court’s holding in Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624 (1983), this Department consistently has rejected such arguments in the past. P.M. v. L.F. Hurtubise, Opinion No. 15-07WC (June 15, 2007) and cases cited therein. Claimant has provided no new reason to justify a different result here. His average weekly wage and compensation rate were calculated properly without including the value of any employer-paid contributions to health plans or retirement savings.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $5,536.14 and attorney’s fees totaling $16,672.50. An award of costs to a prevailing claimant is mandatory under the statute. As for attorney’s fees, these lie within the Commissioner’s discretion. Factors to be considered in fashioning an award of attorney’s fees 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 counsel’s efforts. L.W. v. NSA Industries, Inc., Opinion No. 27A-05WC (April 27, 2005). When a claimant partially prevails, the Commissioner often exercises the discretion granted by the statute to award only partial fees, in an amount commensurate with the extent of the claimant’s success. Estate of Lyons v. American Flatbread, Opinion No. 36A-03 (October 24, 2003).
10. Claimant’s statement of the costs for which he seeks reimbursement includes various summary invoices from Dr. Bucksbaum. None of these invoices is itemized with sufficient specificity to determine whether the charges comply with Workers’ Compensation Rule 40.110. It also is impossible to determine whether any of Dr. Bucksbaum’s charges reflect time that he spent conferring with Claimant’s attorney and preparing his testimony. These charges are not recoverable under 21 V.S.A. §678. Hatin v. Our Lady of Providence, Opinion No. 21S-03WC (October 22, 2003).
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11. Claimant’s statement of costs also includes a $455 charge for videotaping Dr. Stewart’s deposition. Defendant argues that because Claimant’s attorney deposed Dr. Stewart for discovery rather than preservation purposes videotaping was unnecessary and therefore the charge should not be allowed as a reimbursable cost. I do not find Claimant’s decision to videotape the deposition to be so obviously unnecessary as to warrant disqualification. This charge is allowed.
12. Claimant is awarded costs of $3,051.14, the total amount submitted less Dr. Bucksbaum’s charges. Claimant shall have 30 days from the date of this decision to submit Dr. Bucksbaum’s detailed itemization of charges for further consideration.
13. As for attorney’s fees, Defendant argues that because Claimant’s attorney agreed to represent Claimant on a contingent fee basis, he cannot now request an award based on an hourly fee instead. Workers’ Compensation Rule 10.1200 specifically gives the Commissioner discretion to award fees on either an hourly or a contingent fee basis. The Commissioner has exercised this discretion in the past to award fees on an hourly basis in circumstances where the nature of the award does not translate easily into a contingent fee. McMillan v. Bertek, Inc., Opinion No. 95-95WC (January 29, 1996). I find that to be the case here. True, Claimant did not succeed in proving his entitlement to retroactive temporary total disability benefits, a claim that would have netted a significant cash award. But he did succeed in proving his entitlement to benefits going forward, including coverage for medical treatment that might significantly improve his condition and allow him one day to return to work. Success in this regard is difficult to quantify in money terms. For that reason, reimbursement of attorney’s fees on an hourly rather than a contingent fee basis is appropriate.
14. Given that Claimant did not prevail on his claim for retroactive temporary disability benefits but only on his claim for benefits going forward, his attorney’s fees award must be reduced to more accurately reflect the extent of his success. I find it appropriate to award sixty percent of the total fees requested. Prior to calculating the amount due, however, Claimant must submit an itemization that reflects billing in tenth-hour increments rather than quarter-hour increments. The Commissioner previously has found the latter impermissible. Bertrand v. McKernon Group, Opinion No. 20-03WC (April 16, 2003). Claimant shall have 30 days from the date of this decision to submit a revised billing statement.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary disability benefits in accordance with 21 V.S.A. §642 commencing as of the date of the formal hearing, March 28, 2008, and ongoing until a statutory basis for their discontinuance occurs; such benefits to be calculated in accordance with Conclusion of Law No. 8 above;
2. Medical benefits in accordance with 21 V.S.A. §640 and consistent with Conclusion of Law No. 7 above; and
3. Costs and attorney’s fees in accordance with Conclusions of Law Nos. 12 and 14 above, in amounts to be determined based on more detailed invoices and revised billing statements to be submitted.
DATED at Montpelier, Vermont this 3rd day of July 2008.
______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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