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Patricia Alexander v. General Electric (March 30, 2010)

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Patricia Alexander v. General Electric (March 30, 2010)

STATE OF VERMONT

DEPARTMENT OF LABOR

Patricia Alexander Opinion No. 08S-10WC

v. By: Sal Spinosa, Esq.

Hearing Officer

General Electric

For: Patricia Moulton Powden

Commissioner

State File No. Z-53175

RULING ON DEFENDANT’S MOTION FOR STAY

Pursuant to 21 V.S.A. §675, Defendant moves to stay the Commissioner’s February 19, 2010 Order on the grounds that it has met the requirements for granting a stay as established by the Vermont Supreme Court in In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).

According to 21 V.S.A. §675, an award or order issued after a formal hearing “shall be of full effect from issuance unless stayed by the commissioner, any appeal notwithstanding.” To prevail on a request for a stay, the moving party must demonstrate all of the following:

 

1. That it is likely to succeed on the merits;

2. That it will suffer irreparable injury if a stay is not granted;

3. That issuing a stay will not substantially harm the other party; and

4. That the best interests of the public will be served by issuing a stay.

 

In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).

As contemplated by the legislature, the granting of a stay must be the exception, not the rule. Bodwell v. Webster Corp., Opinion No. 62S-96WC (December 10, 1996). Applying this stringent standard, I find that Defendant has failed to establish its right to a stay.

Defendant’s assertion that it is likely to succeed on the merits is unconvincing. While Defendant correctly identifies the expert medical testimony as the most salient feature in this case, its motion offers nothing beyond what was presented at hearing. Defendant’s expert testimony is as unconvincing now as it was at hearing.

Dr. Rosenburg, Defendant’s principal expert, has considerable experience in the field of pulmonary disorders, including chronic beryllium disease (CBD). While Dr. Rosenburg did not support a diagnosis of CBD, he also could not rule it out. Dr. Rosenburg’s testimony was further weakened by his support of numerous medical journal articles that Claimant‘s expert, Dr. Redlich, effectively distinguished. 2

In testifying for Defendant, Dr. Smith initially found Claimant’s condition to be consistent with the symptoms of CBD but later diagnosed sarcoidosis instead. In doing so he relied on a study that again, Dr. Redlich convincingly distinguished. Dr. Smith admitted that he had no expertise in CBD. He testified that he used the AMA Guides to determine Claimant’s permanent impairment, but admitted that in doing so he did not follow the standard protocols. In whole, Dr. Smith did not credibly advance Defendant’s interests in this case.

Claimant’s principal medical expert, Dr. Redlich, was particularly convincing. She has well established credentials in the field of immune mediated lung diseases, with a unique concentration on CBD. She was able to distinguish the medical literature upon which Defendant’s experts relied. Her diagnosis of CBD was supported by two of Claimant’s other providers. Last, as a periodic reviewer of the pulmonary provisions of the AMA Guides, she was well-equipped to apply them appropriately in determining Claimant’s permanency rating.

Given this evidentiary analysis, I find that Defendant has not shown that it is likely to succeed on the merits in its appeal. Having failed to satisfy even the first element of the Insurance Services test, it is not necessary to consider the other factors. Defendant’s Motion for Stay is DENIED.

DATED at Montpelier, Vermont this 30th day of March 2010.

____________________________

Patricia Moulton Powden

Commissioner

 

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

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S. C. v. Barre Supervisory Union School (July 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. C. Opinion No. 18-07WC
v. By: Rebecca L. Smith
Staff Attorney
Barre Supervisory Union School For: Patricia Moulton Powden
Commissioner
State File No. T-11595
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION AND/OR STAY OF FINAL DECISION AND CLAIMANT’S MOTION TO RECONSIDER REGARDING ATTORNEY’S FEES, COSTS, INTEREST AND IMPAIRMENT RATING
The Defendant moves that the Department reconsider and modify, or in the alternative stay pending appeal, the final decision, Opinion No. 53-06WC, issued on January 2, 2007 after formal hearing in this workers’ compensation matter. Specifically, the Defendant disputes the Department’s finding of permanent partial impairment in Conclusion of Law 8, which states that Dr. Farrell’s is the only permanency opinion on record. The Defendant asserts that Dr. Hebben’s assessment of no permanent impairment is the correct one.
The Claimant requests several actions in her motion: 1) award of attorney’s fees and costs on the basis that the Claimant partially prevailed at hearing, 2) clarification of the specific percentage of impairment awarded, 3) an award of interest on all outstanding benefits ordered, and 4) an order directing payment of the permanent partial disability benefits in a lump sum pursuant to §652.
The initial opinion denied permanent total disability and awarded permanent partial impairment as assessed by Dr. Farrell, who provided a rating in the form of a range of 26-32%. It did not address attorney’s fees and costs or interest.
Permanent Partial Impairment
The Defendant argues that the Department erred in awarding permanent partial disability because that conclusion was not based on the facts found. Specifically, the Defendant disputes the statement in Conclusion of Law 8 that Dr. Farrell’s was the only permanency rating advanced, noting that Dr. Hebben assessed no impairment associated with the work injury.
2
Dr. Hebben’s opinion is founded on her conclusion that the Claimant suffered no psychiatric or cognitive injury as a result of the January 2003 accident. However, Dr. Hebben did find a somatoform disorder, which had not previously been diagnosed. Dr. Hebben describes that the mild head injury provided the Claimant with “a shelf to place [her preexisting psychological conditions] on.” Further, Dr. Hebben questioned the diagnosis of concussion and post concussion syndrome, while it is well established by both the Claimant’s treatment providers and by independent examiners hired by the Defendant that the Claimant experienced mild grade 1 concussion, followed by post concussion syndrome with persistent effects. Both Dr. Preis and the Claimant testified that a series of pre-injury conditions, essentially controlled and not significantly interfering with the Claimant’s teaching career, markedly worsened subsequent to the injury. Dr. Preis describes the post-injury symptoms as becoming chronic rather than episodic.
Therefore, upon review and reconsideration, the original finding that the lingering effects of the work injury combined with the pre-existing conditions to produce disability are the most probable hypothesis. This conclusion is additionally supported by Dr. Peyser, who opined that “the incident may have spawned a psychological reaction which may be impacting the results of some of her testing,” and recommended that the Claimant work with a vocational rehabilitation psychologist to “map out compensatory and recovery strategies along with pain management skills.”
Percentage of Impairment
In June 2005, Dr. Farrell found a psychological impairment directly attributable to the work injury of 26-32 % based on the Colorado Department of Labor and Employment guidelines. The AMA Guides to the Evaluation of Permanent Impairment assess impairment due to mental and behavioral disorders, but do not assign numerical impairment ratings as they do for other injuries. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002). Close comparison of Dr. Farrell’s findings with Table 13-8 of the Guides (Criteria for Rating Impairment due to Emotional or Behavioral Disorders) and the corresponding examples indicates correlation with high end Class 2 (moderate limitation of some activities of daily living, 15-29%) to low end Class 3 (severe limitation in performing most activities of daily living, 30-69%) impairment. Consequently, I find the Claimant’s whole person impairment rating to be 30%.
3
Attorney’s Fees and Costs
By oversight, the initial opinion neglected to address attorney’s fees and costs. The Claimant has submitted an accounting of $19,719.00 in fees and $6,826.34 in costs.
The Claimant sought to establish work-related permanent total disability, or, in the alternative, work-related permanent partial disability; the Defendant disputed any permanent disability attributed to the work injury. Awarding of attorney’s fees is discretionary pursuant to 21 V.S.A. §678. The Claimant has prevailed in part, and is thereby entitled to of a portion of the fees and costs sought. An award in the amount of 50% of the fees sought, or $9,859.50, is appropriate to the degree of the Claimant’s success, in consideration of the extent to which the necessary preparations for the alternative positions overlapped.
Necessary costs are mandatory when a claimant prevails. Having prevailed in part, the Claimant is entitled to an award of costs, however the costs sought in this matter far exceed the norm for claims of this type. Payments to one individual alone, Dr. Paul R. Solomon, exceed four thousand dollars. Dr. Solomon’s role in preparing the case is not clear, and without further elaboration cannot be deemed necessary. Accordingly, $2,776.34 in costs is awarded.
Interest
Pursuant to 21 V.S.A. §664, an award shall include the date on which the Defendant’s obligation to pay compensation began, and shall include interest at the statutory rate computed from that date. Defendant’s obligation to pay temporary partial disability compensation began at the termination of the period of temporary total disability, which the parties have stipulated occurred on April 26, 2005. Interest on the benefits due shall be paid from that date.
Lump Sum
The Claimant requests an order requiring that the permanent partial disability benefits be paid in a lump sum in accordance with 21 V.S.A. §652 in order to protect her Social Security benefits from offset. Section 652 was amended in May 2006 to require that, in the absence of a claimant’s request to the contrary, any order for a lump sum payment of permanent partial disability benefits shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security Benefits. The Department relies upon party counsel to provide such an accounting for review and approval, and cannot approve lump sum payment in its absence.
Stay
To prevail on its request for stay of the award of permanent partial disability benefits, the Defendant must demonstrate 1) that it is likely to succeed on the merits of the appeal; 2) that it would suffer irreparable harm if the stay were not granted,; 3) that a stay would not substantially harm the other party; and 4) that the best interests of the public would be served by the issuance of the stay. In re Insurance Services Offices, Inc. 148 Vt. 634, 635 (1987).
4
The Defendant argues that it will likely prevail on appeal because the Department’s conclusions were not based upon the facts as presented at hearing. Specifically, the Defendant notes that Conclusion of Law 8 conflicts with the facts found in Finding 38. The Defendant’s arguments regarding the other three stay factors are similarly based. Those concerns are addressed above in the discussion regarding the reconsideration of the award of permanent partial disability benefits. The defendant has failed to sufficiently demonstrate that another forum, after interpreting all submitted evidence, would reach a different conclusion. See, e.g. Carter v. Portland Glass, Opinion No.8RS-98WC (April 3, 1998 and Feb. 6, 1998). Without this essential prong of the four-part test under In re Insurance Services Offices, Inc., the Defendant’s arguments regarding the other three prongs are diminished, and lead to the conclusions that the required factors are not demonstrated. Accordingly, the motion for a stay must be denied.
ORDER:
Therefore, based upon the forgoing:
1. The award of permanent partial disability is upheld after reconsideration;
2. PPD shall be at the rate of 30% whole person disability;
3. Interest is awarded as though the PPD payments had commenced on April 26, 2005;
4. Claimant is awarded attorney’s fees and costs in the amount of $10,625.00;
5. Claimant’s request for a lump sum payment of benefits is denied.
Dated at Montpelier, Vermont this 9th day of July 2007.
______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

J. D. v. Employer R. (September 12, 2007)

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J. D. v. Employer R. (September 12, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. D. Opinion No. 22S-07WC
By: George K. Belcher
v. Hearing Officer
Employer R For: Patricia Moutlon Powden
Commissioner
State File No. X-00111
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
William B. Skiff, II, Esq., for the Defendant
RULING ON DEFENDANT’S MOTION FOR STAY
Defendant moves the Department to grant a stay pursuant to 21 V. S. A. Section 675 concerning the Department’s decision dated August 2, 2007. The Claimant opposes the requested stay.
The Defendant seeks a stay arguing that the four criteria set forth in In re Insurance Services Offices, Inc., 148 Vt. 634, 635 (1987) are met. Those criteria are (1) that the Defendant has a strong likelihood of success on appeal; (2) that there will be irreparable injury to the Defendant if the stay is not granted; (3) that a stay will not substantially harm the other party; and (4) that the stay will serve the best interests of the public. Id. The Defendant argues that the Defendant is a small, family run business without significant financial resources. Because the Defendant is uninsured, the Defendant argues that denial of the stay would have a devastating effect upon the Defendant and possibly cause the Defendant to seek “protection under Chapter 13 bankruptcy.” (See Defendant’s memorandum in support of stay.)
The Commissioner has ruled that the granting of a stay should be the exception, not the rule. Bodwell v. Webster Corporation, Opinion No. 62S-96 WC (Dec. 10, 1996). A simple factual dispute is not a sufficient basis upon which to grant a stay. Id. The Defendant argues that the case is one of credibility between experts. The Defendant understandably believes that its non-treating experts are more credible than the treating medical experts, but this belief does not create a strong likelihood of success.
2
Likewise, the defendant argues that it would suffer irreparable injury if it were forced to pay disability and medical benefits, which might not be due if the appeal is successful. In the past the Department has not equated the payment to irreparable harm. Durand v. Okemo Mountain, Opinion No. 41S-98WC (September 1, 1998); Fredericksen v. Georgia Pacific Corp., Opinion No. 62S-96WC (1996). Defendant argues that any payment it may make would not be subject to recoupment if it were successful on appeal. This assertion is factually questionable since the Defendant is also arguing that the Claimant is now receiving health insurance benefits and Social Security Disability benefits.
Finally, the Defendant argues that the public interest requires that “neither party be unfairly burdened while a final adjudication is pending.” The consequences of payment by the Defendant are particularly dire in this case because the Defendant failed to maintain its Workers’ Compensation insurance. (See Finding 11 of decision of August 2, 2007.) It would seem “unfair”, however, to allow this fact (which was purely within the control of the Defendant) to require the Claimant to continue to wait for her benefits.
ORDER:
The Motion for Stay is DENIED.
Dated at Montpelier, Vermont this 12th day of September 2007.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. Sec. 670, 672.

Meril Badger v. BWP Distributors, Inc. and Maynard’s Auto Supply, Inc. (June 2, 2011)

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Meril Badger v. BWP Distributors, Inc. and Maynard’s Auto Supply, Inc. (June 2, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Meril Badger Opinion No. 05S-11WC
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
BWP Distributors, Inc.
And Maynard’s Auto Supply, Inc. For: Anne M. Noonan
Commissioner
State File No. AA-62692
RULING ON DEFENDANT’S MOTION FOR STAY
Pursuant to 21 V.S.A. §675, Defendant moves to stay the Commissioner’s March 25, 2011 Order on the grounds that it has met the requirements for granting a stay as established by the Vermont Supreme Court in In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).
According to 21 V.S.A. §675, an award or order issued after a formal hearing “shall be of full effect from issuance unless stayed by the commissioner, any appeal notwithstanding.” To prevail on a request for a stay, the moving party must demonstrate all of the following:
1. That it is likely to succeed on the merits;
2. That it will suffer irreparable injury if a stay is not granted;
3. That issuing a stay will not substantially harm the other party; and
4. That the best interests of the public will be served by issuing a stay.
In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).
As contemplated by the legislature, the granting of a stay must be the exception, not the rule. Bodwell v. Webster Corp., Opinion No. 62S-96WC (December 10, 1996). Applying this stringent standard, I find that Defendant has failed to establish its right to a stay.
As to the first criterion, Defendant recites the same evidence upon which it relied at formal hearing. It argues that Claimant’s evidence was not credible, yet the Commissioner specifically found that it was. There is no reason to believe that a jury will conclude otherwise.
As to the second criterion, Defendant asserts irreparable financial injury if it is required to pay benefits pending appeal. The Commissioner consistently has refused to accept this as an adequate basis for establishing irreparable harm. See, e.g., J.D. v. Employer R, Opinion No. 22S-07WC (September 12, 2007); Liscinsky v. Temporary Payroll Incentives, Inc., Opinion No. 09R-01WC (June 26, 2001); Fredriksen v. Georgia-Pacific Corp., Opinion No. 28S-97WC (December 4, 1997).
2
As to the third criterion, Defendant asserts that granting a stay will not substantially harm Claimant because he is receiving income from other sources. Though this may be true, it does not necessarily follow that Claimant is therefore able to meet his financial obligations, however.
As to the last criterion, Defendant asserts that granting a stay is in the best interest of the public. The public is best served, however, when workers’ compensation claims are resolved expeditiously, as the statute intends. Morrisseau v. Legac, 123 Vt. 70, 76 (1962). As a result of these proceedings, Claimant already has suffered more than a year’s delay in receiving the benefits to which he now has been deemed entitled. It does not serve the public interest to prolong that delay even further.
Defendant having failed to satisfy the stringent requirements of the Insurance Services test, I find no basis for issuing a stay pending appeal.
Defendant’s Motion for Stay is DENIED.
DATED at Montpelier, Vermont this 2nd day of June 2011.
____________________________
Anne M. Noonan
Commissioner

Robert Gadwah v. Ethan Allen (December 20, 2011)

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Robert Gadwah v. Ethan Allen (December 20, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Gadwah Opinion No. 33S-11WC
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Ethan Allen
For: Anne M. Noonan
Commissioner
State File No. P-09814
RULING ON DEFENDANT’S MOTION FOR STAY
Defendant moves to stay the Commissioner’s October 20, 2011 Order pursuant to 21 V.S.A. §675.
To prevail on a request for a stay, the moving party must demonstrate all of the following:
1. That it is likely to succeed on the merits;
2. That it will suffer irreparable injury if a stay is not granted;
3. That issuing a stay will not substantially harm the other party; and
4. That the best interests of the public will be served by issuing a stay.
In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).
As contemplated by the legislature, the granting of a stay must be the exception, not the rule. Bodwell v. Webster Corp., Opinion No. 62S-96WC (December 10, 1996). Applying this stringent standard, I find that Defendant has failed to establish its right to a stay.
As to the first criterion, Defendant recites the same evidence upon which it relied both at formal hearing and in its recently denied Motion for Reconsideration. It argues that Claimant’s evidence was not credible, but the Commissioner specifically found that it was. There is no reason to believe that a trial judge or jury will conclude otherwise.
As to the second criterion, Defendant asserts that because the Commissioner’s Order created uncertainty as to what benefits are due, both parties will suffer irreparable injury if a stay is not granted. Yet this was not the issue litigated at formal hearing. The narrow issue presented was simply whether Claimant’s compensable 1999 injury caused the need for surgical revision of his failed L4-5 fusion. The Commissioner determined that it did. As a result, Claimant now has earned the right to establish to what workers’ compensation benefits, if any, he is entitled as a consequence. If I were to delay this next stage of the parties’ litigation from proceeding by granting a stay of the current Order, this would prolong the uncertainty of which Defendant complains, not alleviate it.
2
As to the third criterion, Defendant asserts that granting a stay will benefit Claimant rather than harm him, because it will allow him to avoid the increased costs associated with proving what benefits Defendant might owe. This argument only makes sense if Defendant prevails on appeal. Otherwise, Claimant is substantially harmed by further delay.
As to the last criterion, Defendant asserts only that the public interest is served by staying enforcement of an “erroneous decision.” Presumably every losing party feels similarly. Defendant serves only its own interests in making this argument, not the public interest.
As noted above, the decision to grant a stay must be the exception, not the rule. Bodwell, supra. Defendant has failed to present even a single credible argument in support of its Motion. I find no basis for issuing a stay pending appeal.
Defendant’s Motion for Stay is DENIED. Claimant is awarded attorney fees totaling $246.50 for his review of and response to the motion, which Defendant is hereby ORDERED to pay.
DATED at Montpelier, Vermont this 20th day of December 2011.
____________________________
Anne M. Noonan
Commissioner

Trevor Foley v. Smugglers’ Notch Management (August 9, 2013)

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Trevor Foley v. Smugglers’ Notch Management (August 9, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Trevor Foley Opinion No.16S-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Smugglers’ Notch Management
For: Anne M. Noonan
Commissioner
State File No. EE-51048
RULING ON DEFENDANT’S MOTION FOR STAY
Defendant moves to stay the Commissioner’s June 3, 2013 Order pursuant to 21 V.S.A.
§675.
To prevail on a request for a stay, the moving party must demonstrate all of the
following:
1. That it is likely to succeed on the merits;
2. That it will suffer irreparable injury if a stay is not granted;
3. That issuing a stay will not substantially harm the other party; and
4. That the best interests of the public will be served by issuing a stay.
In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).
As contemplated by the legislature, the granting of a stay must be the exception, not the
rule. Bodwell v. Webster Corp., Opinion No. 62S-96WC (December 10, 1996). Applying this
stringent standard, I find that Defendant has failed to establish its right to a stay.
As to the first criterion, Defendant argues that Claimant’s entire case rested on his own
testimony, which in its estimation was not credible. However, the Commissioner specifically
found otherwise, and on those grounds concluded that Claimant had met his burden of proof.
There is no reason to believe that a trial judge or jury will conclude otherwise.
As to the second criterion, Defendant asserts that it will be irreparably harmed by having
to pay disability and medical benefits if a stay is not granted and Claimant later is determined not
to have sustained his burden of proving that his injuries arose out of and in the course of his
employment. Again, the Commissioner specifically rejected this argument in her Opinion and
Order. Beyond that, the Commissioner consistently has refused to accept this as an adequate
basis for establishing irreparable harm. See, e.g., J.D. v. Employer R, Opinion No. 22S-07WC
(September 12, 2007); Liscinsky v. Temporary Payroll Incentives, Inc., Opinion No. 09R-01WC
(June 26, 2001); Fredriksen v. Georgia-Pacific Corp., Opinion No. 28S-97WC (December 4,
1997). There is nothing to compel me to decide otherwise.
2
As to the third criterion, Defendant asserts that granting a stay will not harm Claimant
because he is currently working and his medical expenses have been paid. Claimant is not able
to work full-time. In fact, he testified that he is only able to work one hour per week.
Therefore, he will be significantly harmed if a stay is granted.
As to the last criterion, Defendant asserts that to require it to pay benefits in a claim it
believes was wrongly decided will both unjustly enrich Claimant and contribute to the rising cost
of workers’ compensation insurance that Vermont employers must bear. To avoid that result, it
argues, the public interest will be served if it is relieved of responsibility to pay pending appeal.
Presumably every losing party feels similarly. Defendant serves only its own interests in making
this argument, not the public interest.
As noted above, the decision to grant a stay must be the exception, not the rule. Bodwell,
supra. Defendant has failed to carry its burden in the current claim. I find no basis for issuing a
stay pending appeal.
Defendant’s Motion for Stay is DENIED. Claimant is awarded attorney fees totaling
$580.00 for his review of and response to the motion, which Defendant is hereby ORDERED to
pay.
DATED at Montpelier, Vermont this 9th day of August 2013.
____________________________
Anne M. Noonan
Commissioner

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

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

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