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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. 05R-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
BWP Distributors, Inc.
and Maynard’s Auto Supply, Inc. For: Anne M. Noonan
Commissioner
State File Nos. AA-62692 and U-15282
RULING ON DEFENDANT BWP’S MOTION TO RECONSIDER AND CLARIFY
Defendant BWP moves for reconsideration of various aspects of the March 25, 2011 Opinion and Order in this claim.1
Recoupment of Overpaid Unemployment Compensation
Defendant requests that it be permitted “to directly repay unemployment benefits paid during any period of awarded temporary total disability,” rather than relying on Claimant to do so himself. Defendant asserts that because the Commissioner of Labor has jurisdiction over both workers’ compensation and unemployment compensation, it is within my authority to issue such an order in the context of these proceedings.
It is true that this Department administers both the unemployment compensation and workers’ compensation programs. This does not mean, however, that a claimant’s right to unemployment compensation can be adjudicated in the context of a workers’ compensation proceeding, or vice versa. The unemployment compensation statute sets out the appropriate procedure for recouping overpayments from benefit recipients. 21 V.S.A. §1347. It does not authorize the remedy Defendant suggests.
Permanent Partial Disability Award
The March 25, 2011 Opinion and Order awarded Claimant permanency benefits as compensation for a 9 percent whole person impairment referable to the lumbar spine. This amount represents Claimant’s current 15 percent impairment, less the 6 percent that was rated and paid in conjunction with his 2004 injury. Defendant argues that Claimant’s permanency award should have been reduced as well by the 5 percent impairment rated in conjunction with his 1997 injury.
1 Defendant correctly notes that Claimant’s Memorandum in Opposition to its Motion to Reconsider was not timely filed. It is within my discretion to consider Claimant’s arguments nonetheless, however, and in the interest of both justice and efficiency I have elected to do so.
2
According to 21 V.S.A. §648(d), a permanent impairment rating “shall be reduced by any previously determined permanent impairment for which compensation has been paid.” To claim the reduction, therefore, Defendant must show not only that an impairment was previously rated, but also that it was paid.
Here, the evidence establishes only that Claimant settled his 1997 claim, which alleged injuries to his wrists, neck, low back, leg and psyche, and in which Claimant sought benefits for both temporary and permanent total disability, on a full and final (Form 15) basis for $70,000.00. The settlement agreement did not allocate that amount to any particular injury, nor to any particular benefit. Without such allocation, there is no way to determine if in fact Claimant was paid compensation for a 5 percent impairment referable to his lumbar spine or not. Thus, there is no basis for reducing his current award beyond what already has been allowed.
Application of Amended Rule 10 to Current Claim
Workers’ Compensation Rule 10.1210, which establishes the rate at which an award of attorney fees to a prevailing claimant is to be calculated, was amended effective June 15, 2010. The amended rule raises the reimbursement rate from $90.00 per hour to $145.00 per hour. Defendant argues that because the amendment is substantive, not procedural, it should not have been applied to any of the fees incurred in the current claim, which arose well before the amendment’s effective date.
This issue is amply discussed in Erickson v. Kennedy Brothers, Opinion No. 36A-10WC (March 25, 2011). The amended rule does not create a new right to attorney fees where one did not exist before; it merely changes the rate at which such fees are to be awarded. It is properly characterized as procedural, therefore. Estabrook v. New England Precision, Opinion No. 10-00WC (May 16, 2000). The attorney fee award stands.
Claimant’s Itemization of Attorney/Paralegal Time
Defendant argues that Claimant’s itemized billing improperly utilizes minimum quarter-hour billing units, and therefore is not sufficiently precise to merit an award of fees. I am satisfied that quarter-hour billing was not used as a minimum and that, where appropriate, tenth-hour billing was applied.
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Medical Expert Fees
Defendant asserts that there is insufficient information from which to determine the extent to which Dr. Bucksbaum’s fees comply with the Workers’ Compensation Medical Fee Schedule. I agree that Claimant is only entitled to reimbursement of those fees that do not exceed the maximum allowed under Workers’ Compensation Rule 40. Specifically:
• For Dr. Bucksbaum’s independent medical evaluation (CPT code 99456), the maximum allowable charge is $44.00 per unit. Rule 40.021 and Appendix I. For the 22 units charged, therefore, reimbursement is limited to $968.00, a reduction of $132.00 from the amount previously awarded.
• For Dr. Bucksbaum’s hearing testimony, the maximum allowable charge is $300.00 per hour. Rule 40.111.
It is unclear from the billing submitted how much time Dr. Bucksbaum allocated to his formal hearing testimony, and therefore, I cannot determine the appropriate reimbursement. Claimant shall have 30 days from the date of this ruling within which to supply additional information so that I might do so.
Telephone Charges
To the extent that the telephone charges included in Claimant’s reimbursement request reflect office overhead rather than actual long-distance calling charges, they do not qualify as reimbursable litigation costs. These charges, which total $27.00, are disallowed.
Mileage and Travel Time
I am satisfied that the charges Defendant has questioned are properly reimbursable.
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ORDER:
Defendant’s Motion to Reconsider and Clarify is DENIED in all respects, except as to the award of litigation costs to Claimant. As to these, the March 25, 2011 Order is amended to provide for reimbursable costs totaling $2,138.20. This represents the amount previously awarded less: (a) a reduction of $132.00 for Dr. Bucksbaum’s excess independent medical evaluation charges; (b) a reduction of $1,100.00 for Dr. Bucksbaum’s hearing testimony charges;2 and (c) a reduction of $27.00 for non-reimbursable telephone charges.
DATED at Montpelier, Vermont this 2nd day of June 2011.
_____________________
Anne M. Noonan
Commissioner
2 As noted above, Claimant shall have 30 days from the date of this ruling within which to submit additional information, following which some or all of Dr. Bucksbaum’s hearing testimony charges may be allowed.

Calvin McKiernan v. Standard Register Co. (December 21, 2009)

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Calvin McKiernan v. Standard Register Co. (December 21, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Calvin McKiernan Opinion No. 47R-09WC
v. By: J. Stephen Monahan, Esq.
Division Director
Standard Register Co.
For: Patricia Moulton Powden
Commissioner
State File Numbers Z-1455 and T-14760
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
David Berman, Esq., for Defendant Liberty Mutual Insurance Company
Justin Sluka, Esq., for Defendant Travelers Insurance Company
RULING ON CLAIMANT’S MOTION TO RECONSIDER
Claimant requests that the Commissioner reconsider a portion of her December 2, 2009 award of benefits. Claimant asserts that the decision misinterpreted the Department’s Worker’s Compensation Rule 18.1100. He claims that ¶20 of the findings “unduly narrows the scope of the Rule limiting the beneficial intent of the Rule which is to impose an affirmative obligation on the employer/carrier to determine whether an injured worker has a permanent partial impairment.”
RECONSIDERATION DENIED
The disputed Paragraph 20 of the decision provides:
Workers’ Compensation Rule 18.1100 provides that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.” Taken in its proper context, the rule contemplates that the trigger for the insurer’s action will be either a medical opinion establishing end medical result or a claim for permanent disability benefits. The rule does not anticipate a circumstance where a claimant would deem him- or herself at end medical result. As that is essentially what happened in this instance, I will not interpret Rule 18.1100 to require the insurer to have sought a permanency opinion before a claim was made or a medical determination rendered. I do note, however, that an insurer certainly could protect itself by seeking a determination of both end medical result and permanency at the time a claimant returns to work.
Claimant attempts to portray the provision as a “gutting” of the Rule, but that is simply not the case. By its express language, the paragraph noted that the Rule did not anticipate the precise
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fact pattern in this case, and the department declined to try and interpret the rule to cover a situation not anticipated.
Furthermore, if we look at all of the language in the Rule in effect at the time of this injury, it reads:
18.1100 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. If the claimant is represented by counsel, a copy of the notice shall also be sent to his or her attorney. The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.
It places an affirmative obligation on a worker’s compensation insurer to determine the existence of any permanent impairment at the point the worker reached medical end result. The Rule places no obligation on the worker’s compensation insurer prior to that medical endpoint determination. In this case that determination was only made by medical professionals retrospectively, at the time a new claim was filed.
Since Claimant’s request for reconsideration is without merit it is DENIED.
DATED at Montpelier, Vermont this 21st day of December 2009.
______________________________
Patricia Moulton Powden
Commissioner

J. H. v. State of Vermont, Agency of Transportation (May 19, 2008)

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J. H. v. State of Vermont, Agency of Transportation (May 19, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. H. Opinion No. 14R-08WC
By: Phyllis Phillips, Esq.
v. Contract Hearing Officer
State of Vermont, Agency For: Patricia Moulton Powden
of Transportation Commissioner
State File No. T-15331
RULING ON DEFENDANT’S MOTION TO RECONSIDER AWARD OF FEES AND COSTS
By motion dated April 22, 2008 Defendant moves to reconsider the Commissioner’s award of fees and costs against it. Defendant argues that the Commissioner’s conclusion that the Claimant “substantially prevailed” is not a sufficient basis for awarding fees and costs given the language of 21 V.S.A. §678(a), which requires that a claimant “prevail” before costs or fees can be awarded. Defendant also argues that an award of fees and costs against it is inappropriate given the specific facts of this claim.
In her initial decision on this claim, the Commissioner determined that Claimant had suffered a non-work-related flare-up resulting in temporarily increased symptoms. Because the flare-up was not work-related, Defendant was determined not to be responsible for the resulting medical treatment. However, because the flare-up was only temporary, the Commissioner determined that Defendant remained responsible for ongoing medical treatment once Claimant’s symptoms returned to their pre-flare-up level.
The Commissioner awarded 100% of Claimant’s costs and attorney’s fees. She determined that although Claimant did not succeed in proving his right to medical benefits for the flare-up, he did establish Defendant’s responsibility for ongoing medical benefits once the flare-up subsided. The Commissioner found that the latter benefits were of far greater import to Claimant than the former. On those grounds she concluded that Claimant had “substantially prevailed” and that an award of fees and costs was justified under 21 V.S.A. §678(a).
The Vermont Supreme Court specifically considered the language of 21 V.S.A. §678(a) in Hodgeman v. Jard, 157, Vt. 461 (1991). It concluded that it is not necessary for a claimant to prevail on all claims in order to be a “prevailing party” as those words are used in the statute. Id. at 465. The Court’s analysis and conclusions apply equally well here. Claimant was a “prevailing party” and therefore the award of costs and fees was proper.
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As for Defendant’s argument that the specific facts of this claim warrant reconsideration of the Commissioner’s award of fees and costs against it, I find this argument to be unavailing as well. I note in this context that Defendant took the position that it would not pay for any future medical treatment notwithstanding its own medical expert’s opinion that once Claimant’s symptoms returned to baseline ongoing treatment would be causally related to the original compensable injury. With that in mind, Defendant is in no position to argue that Claimant brought this litigation on himself.
Defendant’s Motion to Reconsider Award of Fees and Costs is DENIED.
Dated at Montpelier, Vermont this 19th day of May 2008.
_________________________
Patricia Moulton Powden
Commissioner

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