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Franjo Baric v. Velan Valve Corporation (August 5, 2010)

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Franjo Baric v. Velan Valve Corporation (August 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Franjo Baric Opinion No. 21S-10WC
By: Sal Spinosa
v. Hearing Officer
Velan Valve Corporation For: Valerie Rickert
Acting Commissioner
State File No. Y-58658
RULING ON DEFENDANT’S MOTION FOR STAY
On Cross Motions for Partial Summary Judgment, Claimant prevailed. He argued successfully that the Agreement for Temporary Total Disability Compensation (Form 21) executed by both parties and approved by the Department failed to include his wages from concurrent employment. The Commissioner deemed this to be a mutual mistake of fact and consequently invalidated the average weekly wage as stated on the approved Form 21.
Pursuant to 21 V.S.A. §675(b), Defendant moves to stay the Commissioner’s June 23, 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(b), “[a]ny award or order of the commissioner 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 the 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., supra.
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. Most notably, in arguing that it is likely to succeed on the merits Defendant recites the same arguments it proposed in the original cross motions. Those arguments are no more convincing today than they were when first offered.
Both parties agree that Claimant had concurrent employment at the time the Form 21 was signed and that his concurrent wages should have been included in the average weekly wage calculation. Both parties therefore agree, at least impliedly, that because his concurrent
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employment wages were omitted Claimant was denied benefits to which he was entitled. This is the error at the core of the Form 21 and one that both parties relied upon and endorsed.
As it did originally, Defendant blames Claimant for not divulging his concurrent employment in a more timely fashion. It proposes to sanction him by urging adherence to an agreement fashioned around incorrect information. While Rule 17.0000 strongly upholds the finality of compensation agreements, it does not support adherence to an agreement where, as here, a mutual mistake occupies the heart of the agreement.
Having failed to satisfy even the first prong of the Insurance Services test, it is not necessary to consider the remaining factors. Defendant’s motion for Stay is DENIED.
Finally, I must reject Claimant’s characterization of Defendant’s appeal as an interlocutory one. The ruling from which Defendant now appeals was a final determination as to how Claimant’s weekly benefit amount should have been calculated. This issue exists totally separate and apart from the issues still pending before me and is not determinative of them in any way. As such, Defendant’s direct appeal is properly taken. 21 V.S.A. §672; 3 V.S.A. §815(a).
DATED at Montpelier, Vermont this 5th day of August 2010.
___________________________
Valerie Rickert
Acting Commissioner

R. C. v. Consolidated Memorials (February 21, 2007)

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R. C. v. Consolidated Memorials (February 21, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. C. Opinion No. 54S-06WC
By: George K. Belcher
v. Hearing Officer
Consolidated Memorials, Inc. For: Patricia Moutlon Powden
Commissioner
State File No. W-03620
APPEARANCES:
Heidi S. Groff, Esq., for the Claimant
Marion T. Ferguson, Esq., for the Defendant
RULING ON DEFENDANT’S MOTION FOR STAY AND THE CLAIMANT’S MOTION TO AMEND THE DECISION
Defendant moves the Department to grant a stay pursuant to 21 V. S. A. Section 675 concerning the Department’s decision dated January 2, 2007. The Claimant opposes the stay and asks that the decision be amended to include costs.
The basic decision in this case determined that the Claimant was entitled to Medical Benefits, TTD benefits, and PTD benefits for at least 330 weeks as a lump sum; the decision also awarded interest and attorneys fees. 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 case was decided in favor of the Claimant, in large measure, because the expert opinions presented in favor of the Claimant were more credible than the opposing evidence. The Defendant argues, “Given the overall uncertainty of the record, the Claimant’s (sic) likelihood of prevailing on appeal appears strong.” (See Defendant’s memorandum in support of stay.)
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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. Likewise, the defendant argues that it would suffer irreparable injury if it is 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 by an insurance carrier on appeal with irreparable harm. Durand v. Okemo Mountain, Opinion No. 41S-98WC (September 1, 1998); Fredericksen v. Georgia Pacific Corp., Opinion No. 62S-96WC (1996). Since the Defendant must meet all the criteria to justify a stay it is clear that, as to the benefits which are past due under the decision, the criteria to grant a stay are not met.
The decision in this case approved an award of lump sum benefits for payments which were both past due and which would become due in the future. In order to justify a lump sum payment under 21 V.S.A. Sec. 652(b), the Commissioner may order a lump sum if it is found to be in the best interests of the employee or the employee’s dependants. Under Workers’ Compensation Rule 19.5010, however, a lump sum payment shall not be approved if the “award is based upon a hearing decision for which an appeal has been filed and the employer or the insurer objects to the payment of the lump sum.” In this case the Defendant has filed a notice of appeal with the Department and with the Washington Superior Court. By the rules of the Department, the lump sum award for benefits, which are not yet due, should be stayed because the Defendant has met the four criteria concerning benefits which are not yet due. The most important of the four criteria is whether the Claimant would suffer irreparable harm if the stay were granted Kirby v. Vermont Telephone Co., Opinion No. 06S-04 WC (January 31, 2004). There has been no showing of irreparable harm to the Claimant if the stay were granted as to benefits which are not yet due. Imposing the stay as to benefits which are not yet due, is consistent with the application of Rule 19.5010. The Commissioner has the discretionary power to grant, deny or modify a request for a stay. 21 VSA Sec. 675(b); Austin v. Vermont Dowell and Square Co., Opinion No. 05S-97 WC (May 29, 1997).
The decision of the Commissioner found that the Claimant had proven litigation costs totaling $5,762.54. See Finding No. 29. When the Claimant prevails, necessary costs of the proceeding are to be assessed against the Defendant. 21 VSA Sec. 678. Morrisseau v. Legac, 123 Vt. 70 (1962). The omission of these costs from the Commissioner’s order was an oversight.
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ORDER:
(1) THEREFORE, based upon the above, the Order of the Commissioner in this matter dated January 2007 is amended to add a paragraph 6 to the existing order, to include costs in the amount of $5,762.54.
(2) The Motion for Stay is DENIED as to all benefits which have become due or which will come due as time passes during the appeal, and all interest and attorneys fees which were awarded. The Motion for Stay is GRANTED as to all disability benefits which are not yet due. It is intended that the Defendant shall continue to pay such benefits as they become due pending the appeal.
Dated at Montpelier, Vermont this 21st day of February 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.

Loren Ingalls v. Hearthstone Quality Home Heating Products Inc. (December 20, 2011)

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Loren Ingalls v. Hearthstone Quality Home Heating Products Inc. (December 20, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Loren Ingalls Opinion No. 42-11WC
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Hearthstone Quality Home
Heating Products, Inc. For: Anne M. Noonan
Commissioner
State File No. X-51064
RULING ON DEFENDANT’S MOTION TO STAY INTERIM ORDER
Procedural Background
Claimant suffered a work-related lower back injury on July 25, 2005. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly. Specifically, it paid temporary total disability benefits on account of a “lower back strain”1 from July 25, 2005 to March 28, 2008. Claimant having reached an end medical result by that point, thereafter Defendant paid permanent partial disability benefits for a 12% whole person permanent impairment referable to a “herniated disk/low back.”2 The medical opinion upon which this permanency agreement was based specifically apportioned the ratable impairment to Claimant’s lower back, totaling 22% whole person, between the 12% attributable to the compensable injury and 10% attributable to a pre-existing, non-work-related injury that Claimant had sustained in 1997.
On February 2, 2010 Claimant filed a Notice and Application for Hearing (Form 6) in which he claimed entitlement to permanent total disability benefits on account of his July 25, 2005 work injury. Subsequently, the parties entered into a Form 14 Settlement Agreement by the terms of which Defendant agreed to pay $250,000.00 in full and final settlement of all claims (excluding those for medical benefits) arising out of that injury. The Department approved the settlement agreement on March 28, 2011.
On May 13, 2011 Claimant’s treating physician corresponded with Defendant’s adjuster, requesting preauthorization for permanent implantation of a spinal cord stimulator. In response, Defendant exercised its right, under 21 V.S.A. §640b(a)(3), to obtain a medical records review and opinion from its own expert, Dr. Backus, as to whether the proposed treatment was reasonable, necessary and causally related to Claimant’s compensable injury.
1 Agreement for Temporary Total Disability Compensation (Form 21), approved November 1, 2005.
2 Agreement for Permanent Partial Disability Compensation (Form 22), approved May 12, 2008.
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From his review, Dr. Backus concluded that Claimant’s current low back condition was not causally related to his July 25, 2005 work injury in any way:
The work [Claimant] did on 7/25/2005 is not judged to have led to an objective change or increase in the underlying well established intermittent and progressive chronic low back condition. Instead the pain at work that day was simply increased symptoms that would be expected if he tried to work during the acute exacerbation that was caused by cutting firewood over the [prior] weekend.
Because he found Claimant’s current condition to be unrelated to his compensable injury, Dr. Backus also found the proposed permanent spinal cord stimulator implantation to be unrelated as well:
[This treatment] is not in this examiner’s opinion necessary as related to [Claimant’s] activities at work on 7/25/2005 as those activities constituted only a temporary symptom flare and not an aggravation . . . . The permanent placement of this spinal cord stimulator or any further treatment for his low back condition is not related to the alleged injury on 7/25/2005.
With Dr. Backus’ opinion as support, on September 23, 2011 Defendant denied Claimant’s request for preauthorization on the grounds that it was not causally related to the compensable injury.3 Claimant appealed the denial, and submitted recent medical records in support. These records addressed the question whether the proposed procedure was medically reasonable and necessary, but did not discuss how it was causally related to the compensable injury.
Following an informal conference, on October 19, 2011 the Department’s Workers’ Compensation Specialist issued an interim order in which she required Defendant to preauthorize the proposed procedure. In doing so, she rejected Dr. Backus’ opinion that the procedure was not causally related:
As this is an accepted claim, Dr. Backus should have started with the premise that there was a work injury and then offered his opinion addressing whether the requested permanent implantation of the spinal cord stimulator is reasonable, necessary and related treatment for the accepted work injury. Dr. Backus instead attacked causation, not the issue in dispute.
Defendant’s Motion to Stay followed.
3 Defendant concedes that from a purely medical standpoint the treatment constitutes reasonable and necessary care.
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Discussion
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.
(1) Likelihood of Success on the Merits.
Defendant argues that the medical evidence it intends to offer at formal hearing, including not only Dr. Backus’ testimony but also that of Dr. Rogers, Claimant’s treating physician, likely will establish that there no longer is a causal connection between the injury it accepted as compensable and Claimant’s current symptoms. To the contrary, Defendant asserts, the evidence likely will establish that Claimant’s current need for treatment is being driven by his chronic, underlying lower back condition, and not by the “temporary exacerbation” caused by his work activities on July 25, 2005.
Were I to agree that the injury Defendant accepted as compensable was nothing more than the “temporary symptom flare” that Dr. Backus described, I might find Defendant’s predicted success on the merits to be more plausible. However, this characterization is patently inconsistent with the “herniated disc/low back” injury for which Defendant paid benefits in accordance with the parties’ approved permanency agreement. It is even more at odds with Defendant’s decision to pay $250,000.00 to settle Claimant’s subsequent claim for permanent total disability.
No matter how Defendant might try to construe it, the clear import of Dr. Backus’ opinion is that whatever injury Claimant suffered at work on July 25, 2005 was both temporary and of little, if any, consequence. The Department having approved three prior compensation agreements indicating otherwise, the time has long since passed for Defendant to question the extent of Claimant’s injury in this manner. Coronis v. Granger Northern, Inc., Opinion No. 16-10WC (April 27, 2010). For this reason, I conclude that Defendant is unlikely to succeed on the merits at formal hearing.
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(2) Irreparable Injury to Defendant if Stay is not Granted.
Defendant asserts irreparable financial injury if it is required to pay for Claimant’s spinal cord stimulator pending a final determination as to whether the procedure is reasonable, necessary and causally related. When considering requests for stay pending the appeal of a formal hearing determination, the commissioner consistently has refused to accept this as an adequate basis for establishing irreparable harm. See, e.g., Badger v. City of Burlington, Opinion No. 05S-11WC (June 2, 2011) and cases cited therein.
I acknowledge that the current request for stay stands on somewhat different footing. No formal hearing has yet been held, and therefore there has been no opportunity either to develop the evidence fully or to weigh its credibility first-hand. Under these circumstances, the financial harm that will result from requiring an insurer to incur costs that likely will be unrecoverable should it prevail at formal hearing merits closer scrutiny.
The extent of the financial harm Defendant likely will suffer depends on the amount of money at stake, however. Without information as to the anticipated cost of the proposed procedure, I cannot fairly weigh this factor either for or against Defendant.
(3) Lack of Substantial Harm to Claimant if Stay is Granted.
Defendant’s assertion that Claimant will not be substantially harmed if a stay is granted is belied by the medical records submitted to support his preauthorization request. These document severe chronic pain that has significantly affected his ability to function. Defendant’s attempt to dismiss the consequences of further delay is unconvincing.
(4) Best Interests of Public.
Defendant’s final argument begins with the premise that the Workers’ Compensation Specialist was precluded under §640b from issuing an interim order so long as “a preponderance of the credible medical evidence specifically addressing the proposed treatment” supported Defendant’s denial. 21 V.S.A. §640b(a)(2)(B). By going beyond that evidence and instead reviewing Claimant’s entire medical record, Defendant asserts, the Specialist misinterpreted and misapplied the statute. The best interests of the public will be served, it argues, and the Specialist’s error corrected, by staying the interim order.
I agree that Defendant has correctly identified the appropriate standard of review when a preauthorization request is denied. It is reasonable to assume that a certain immediacy attaches to many, if not most, preauthorization requests. With that in mind, the statute envisions that the parties to a preauthorization dispute will endeavor to focus both their analysis and their evidence on the specific issue at hand rather than merely referring to a voluminous medical record in support of their respective positions.
I disagree, however, that the statute requires the Department to review the evidence submitted in a vacuum. Context matters. Medical evidence that appears credible standing alone easily may become unpersuasive when viewed in light of a claim’s medical and/or procedural history.
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The current claim presents a striking example. Considered on its own, Dr. Backus’ characterization of Claimant’s July 25, 2005 work injury as a “temporary symptom flare” seems a credible enough description of what might have occurred, particularly given Claimant’s prior medical history. It is, however, completely inconsistent with the injury Defendant accepted – a “herniated disc” for which it paid both temporary total and permanent partial disability benefits, and on account of which it later paid $250,000.00 to settle Claimant’s claim for permanent total disability benefits. Viewed in the appropriate procedural and medical context, Dr. Backus’ characterization loses its persuasive character.
Whether at the informal dispute resolution level or at formal hearing, the best interests of the public are served when the commissioner, and her designees, are granted sufficient discretion to review the appropriate evidence so that they can arrive at the appropriate result. I see nothing in the plain language of the preauthorization statute that precluded the Specialist from considering the context of the claim as a whole at the same time that she reviewed the specific evidence Defendant had submitted. I cannot agree, therefore, that the best interests of the public will be served by staying her interim order.
ORDER:
Defendant having failed to meet the stringent standard required in order to justify a stay, its Motion to Stay Interim Order is hereby DENIED.
DATED at Montpelier, Vermont this 20th day of December 2011.
_______________________
Anne M. Noonan
Commissioner

Robert Ryan v. Dale Martin, Ronald Martin and Martin Brothers Trucking (June 3, 2009)

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Robert Ryan v. Dale Martin, Ronald Martin and Martin Brothers Trucking (June 3, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Ryan Opinion No. 13S-09WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Dale Martin, Ronald Martin
and Martin Brothers Trucking For: Patricia Moulton Powden
Commissioner
State File No. X-04332
RULING ON DEFENDANTS’ MOTION FOR STAY
Ruling on Claimant’s Motion for Summary Judgment issued April 29, 2009
Motion for Stay filed May 27, 2009
Claimant’s Opposition to Motion for Stay filed June 1, 2009
Defendants’ Response to Claimant’s Opposition filed June 1, 2009
APPEARANCES:
Tom Nuovo, Esq. for Claimant
Frank Talbott, Esq. for Defendants
ISSUE:
Should the Commissioner’s Ruling on Claimant’s Motion for Summary Judgment, in which she found that Defendants were Claimant’s employers at the time of his injury, be stayed prior to a final hearing to determine what, if any, benefits are due Claimant?
DISCUSSION:
Claimant prevailed on his Motion for Summary Judgment that Defendants Dale Martin and Martin Brothers Trucking are precluded from raising the defense that they were not Claimant’s employers on the date of his injury.
A hearing is scheduled for June 5, 2009 regarding what benefits may be due Claimant from Defendants. Defendants have asked for a stay of this hearing. They have filed an appeal to the Vermont Supreme Court on the legal question of whether the Commissioner’s decision finding Defendants were Claimant’s employers at the time of the injury was correct under Vermont law.
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Claimant disagrees that a stay or an appeal is appropriate and argues that no final award has been made and thus, no stay or appeal is permissible. Claimant states that an “award” may be appealed and or stayed but that an “award” includes the final determination of compensation due the Claimant. See 21 V.S.A. §669. In the instant case there was only a decision by the Commissioner that Defendants were Claimant’s employers at the time of the injury, nothing more.
Essentially, Claimant is arguing that because the Commissioner’s decision was limited in scope, such that there has been no hearing on the merits of the claim, an appeal to the Vermont Supreme Court is not yet timely. No decision has been issued regarding what, if any, benefits may be awarded. This type of appeal to the Vermont Supreme Court is not favored and usually requires permission of the original decision-maker in order to proceed. Typically, the Commissioner grants such a request only under special circumstances, understanding that the Supreme Court should not be involved in deciding cases on a piecemeal basis. Castle v. Sherburne Corp., 141 Vt. 157 (1982).
Further, under 21 V.S.A. §675(b), in order to prevail on a request for a stay when there is an “award,” the party requesting the stay must demonstrate four factors: 1) that he is likely to prevail on the merits; 2) that there would be 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 stay. N.K. v. State of Vermont, Opinion No. 36S-08WC (October 8, 2008).
There will be no irreparable harm or prejudice to Defendants if a stay is not granted. No award of benefits has been made. If a decision is issued that requires Defendants to pay benefits, not only will they have the right to request a stay of that order but the decision will be final and ripe for appeal. Claimant will be prejudiced if a stay is granted in that he already has waited years for a hearing on the merits of his case, during which time Defendants have managed to avoid litigation. It also is noteworthy that none of the parties would be facing this situation had Defendants complied with their statutory obligation to secure and maintain workers’ compensation insurance coverage. In this context, to allow Defendants to delay the process further would not serve the public’s best interests in any way.
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As Defendants have failed to satisfy the criteria for granting a stay, and also because there has been no final “award” yet, Defendants’ arguments for a stay are found lacking.
ORDER:
Defendants’ Motion for Stay is DENIED.
DATED at Montpelier, Vermont this 3rd of June 2009. _____________________________
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.

N. B. v. Verizon (September 24, 2008)

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N. B. v. Verizon (September 24, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24R-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moulton Powden
Commissioner
State File No. J-13315
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
RULING ON CLAIMANT’S MOTION FOR ATTORNEY FEES
The Claimant prevailed in a contested, expedited hearing concerning the reasonableness and necessity of a specific surgery upon his back. Bonnano v. Verizon, Opinion No. 24-08 WC (June 12, 2008). Thereafter the Defendant sought a stay of the decision. That motion was denied on July 30, 2008. Bonnano v. Verizon, Opinion No. 24S-08 WC (July 30, 2008). Thereafter, the Claimant sought attorney’s fees for work in defending the Motion for Stay. The request for attorney’s fees has been vigorously opposed with several rounds of arguments filed by the parties.
The Claimant sought attorney’s fees in the first instance for 9.2 hours in opposing the Motion for Stay.1 As authority for such an award he cited the case of Menard v. Vermont Castings, Opinion No. 17S-00WC (August 24, 2000). In opposing the request for attorney’s fees, the Defendant has made the following arguments. First, the Defendant argues that the Menard case is a “singular ruling” that has not been followed and that contained no real analysis of the rules and law concerning this issue. Second, the Defendant argues that Workers’ Compensation Rule 10.1300 would not justify an award of attorney’s fees because the Motion for Stay was not a proceeding requiring a formal hearing, and there was no showing of misconduct, neglect or undue delay. Finally, the Defendant argues that attorney’s fees at this stage of the proceedings can only be decided after the appellate court rules upon the appeal. The Defendant cites Sargent v. Town of Randolph, 2007 VT 56, as authority for this last proposition.
1 Claimant’s counsel ultimately claimed 10.7 hours concerning the work around the issue of the stay and the attorney’s fees. Thus, a portion of the bill related to attorney’s fees being billed for arguing over the attorney’s fees.
2
The Sargent case actually supports the Claimant’s position. In that case the Vermont Supreme Court held that the Commissioner was empowered to rule upon attorney’s fees for matters before her, even though her earlier ruling for the Defendant at the administrative level was superceded by a successful de novo appeal. The court gave wide deference to the Commissioner and stated, “Attorney’s fees for the work at the administrative level, [however], should be determined in the first instance, by the Commissioner.” Quoting Jackson v. True Temper, Corp., 156 Vt. 247 (1991). Likewise the court pointed out that the appellate court under Vermont law could not determine a request for attorney’s fees for services rendered at the Department level, citing Coleman v. United Parcel Serv., 155 Vt. 646 (1990). The court stated several times in the Sargent decision that the Commissioner had discretion to award attorney’s fees for work done at the Department level and that great deference was given to her discretion. Nothing in the Sargent case can reasonably be construed to prevent the Commissioner from awarding attorney’s fees in this case pursuant to 21 V.S.A. §678(a), whether an appeal is taken or not.
The Defendant’s second argument is that Workers’ Compensation Rule 10.1300 does not authorize the award. That rule states in part:
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 proceedings not requiring a formal hearing where the claimant is able to demonstrate [unreasonable delay, denial of a claim without reasonable basis, etc.] (emphasis added).
A motion for stay of a contested decision is part of the formal hearing resolution procedure. The granting of a stay will postpone benefits during the appeal and will deny the prevailing party the benefit of the decision. The stay is part of the formal hearing procedure also in the sense that it must be acted upon by the Commissioner. 21 V.S.A. §675(b). Thus, it logically follows that issues concerning attorney’s fees arising from such a motion should be decided by the Commissioner as part of the formal hearing process.
Finally, the case of Menard v. Vermont Castings, supra, was not a “singular ruling.” The heart of the ruling was followed in G. H. v. Ethan Allen, Opinion No. 30-06WC (September 21, 2006) (allowing attorney fees for post-judgment work where the work was “integral to the main issues decided at the hearing”) and Gisele Roberts v. Vermont State Hospital, Opinion No. 36R-07WC (March 31, 2008).
I find that 9.2 hours of attorney time surrounding the issue of the stay is reasonable. The Claimant may recover from the Defendant for 9.2 hours of attorney time calculated at the rate of $90.00 per hour. The additional time billed by the Claimant’s attorney is not awarded.
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ORDER:
The award granted to the Claimant shall include $828.00 for attorney’s fees associated with the Motion for Stay.
Dated at Montpelier, Vermont this 4th 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.

N. B. v. Verizon (July 30, 2008)

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N. B. v. Verizon (July 30, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24S-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moutlon Powden
Commissioner
State File No. J-13315
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, 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 June 12, 2008. 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 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 issue in this case is the reasonableness and necessity of a particular operation on the Claimant’s back. The Defendant argues that it will prevail on appeal because a single disc replacement would be sufficient treatment rather than the multi-level disc surgery, which was approved in the decision. Dr. Delamarter’s testimony at the hearing was quite clear and persuasive that the Claimant has multi-level disc problems and that a comprehensive, multi-disc replacement surgery is the better approach. While the defendant may disagree with the evidence or the conclusion of the Department, this does not equate to a strong likelihood of success on appeal.
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Next, the Defendant argues that the Commissioner’s decision is advisory, premature, and unripe. In appropriate cases, the Department has made rulings concerning the reasonableness of proposed treatments. See Conclusion of Law No. 4 in the basic decision. Such decisions are not precluded as being advisory or “unripe” under the Workers’ Compensation Statute, particularly where an employer has refused in advance to pay for a treatment which is recommended by a treating physician. See Bebon v. Safety-Kleen/Sedgwick, State File No. T-19416, Denial of Motion for Summary Judgment, August 21, 2007 and Bebon v. Safety-Kleen/Sedgwick, CMS, Chittenden Superior Court Docket No. 1286-05, Entry Order Dated January 9, 2007. Since this argument has not prevailed previously at either the Department or the Superior Court level, the likelihood of success is weak rather than strong.
The Defendant argues that it will suffer irreparable harm if the stay is not granted since it will have been denied its ability to contest the medical bills generated by the surgery. This argument is spurious since the issues involved in this case were the reasonableness and necessity of the surgery. The charges for the surgery were not litigated and have not been acted upon. Thus, if there is an issue concerning unreasonable charges for the surgery, those issues may still be litigated. On the other hand, irreparable harm would likely arise to the Claimant if the stay were granted. The Claimant was scheduled to have the proposed surgery in January of 2008. The surgery did not happen at that time in order for the Defendant’s medical expert to examine and evaluate the Claimant. The Claimant participated in this exercise, but disagreed with the conclusion of this expert. The matter was then submitted for decision to the Department. We are now some seven months after the Claimant would have had his surgery but for the consideration of the Defendant’s evidence and arguments. The Claimant has pursued conservative treatment for back pain for many years before pursuing this surgery. A stay would cause irreparable harm to the Claimant in the form of a delay of a reasonable and necessary treatment.
Finally, the Defendant argues that the public interest requires that “the judiciary heed its own rules regarding the impropriety of advisory opinions” and that employers should not be “forced to pay for surgery that, while recommended, never in fact occurs.” The order in this case only ordered the Defendant to pay for the surgery if it were performed. The ability of employers and claimants to determine the necessity and reasonableness of a particular treatment in an appropriate case is consistent with the requirement that Workers’ Compensation process and procedure be “as summary and simple as reasonably may be,” particularly where an Employer is refusing to pay for a procedure in advance of it being done. 21 V.S.A. 602. A stay of the decision in this case would not be in the public interest.
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ORDER:
(1) The Motion for Stay is DENIED.
Dated at Montpelier, Vermont this 30th 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. Sec. 670, 672.

V. O. v. Windsor Hospital (September 9, 2009)

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

V. O. v. Windsor Hospital (September 9, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. O. Opinion No. 12A-08WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Windsor Hospital
For: Patricia Moulton Powden
Commissioner
State File No. T-00023
RULING ON CLAIMANT’S MOTION FOR AWARD OF ATTORNEY FEES AND COSTS AND ON DEFENDANT’S MOTION TO DISMISS OR STAY
The Commissioner previously decided this claim on March 27, 2008. Three issues had been presented: first, whether Claimant had reached an end medical result; second, whether her low back condition was causally related to her 2002 work injury; and third, whether massage therapy was a reasonable treatment for the 2002 injury.
The Commissioner ruled in Claimant’s favor on the first issue, but denied her claim for benefits related to the second and third issues. Claimant having only partially prevailed, therefore, the Commissioner exercised the discretion granted by 21 V.S.A. §678(a) to award her only one-half of the attorney fees she had sought. In awarding fees in that amount, the Commissioner noted that Claimant had presented essentially the same body of evidence as to all three of the issues she had pursued. Therefore, the Commissioner reasoned, it was appropriate to award fees “based upon the efforts of counsel to the extent that those efforts may be allocated among the issues.”
Claimant appealed the Commissioner’s decision to the Windsor Superior Court for jury trial. Once again, she was able to garner only a partial victory. As the Commissioner had concluded, the jury found that Claimant’s low back condition was not causally related to her 2002 work injury. Contrary to the Commissioner’s decision, however, the jury concluded that massage therapy was a reasonable treatment.
In all, therefore, between the formal hearing before the Commissioner and the Windsor Superior Court jury trial, Claimant prevailed on only two of the three issues she had pursued. Nevertheless, she now seeks an award of the remaining one-half of the attorney fees she originally sought.
Claimant cites to Electric Man v. Charos, 179 Vt. 351 (2006), for the proposition that an award of attorney fees should not be apportioned when all of the issues litigated involve the same core of primary facts. Claimant also cites to Sargent v. Town of Randolph, 2007 VT 56, for the proposition that when a workers’ compensation claimant does not prevail in proceedings before the Commissioner (and therefore does not merit an award of attorney fees), but later is victorious on appeal, he or she ought to be awarded all of the fees that previously were denied.
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I do not read the cases Claimant cites so expansively. In Electric Man the Supreme Court admonished the trial court against viewing a lawsuit between a contractor and a homeowner as “a series of discrete claims,” but most workers’ compensation actions involve exactly that – a series of separate and distinct claims for separate and distinct statutory benefits. When the same core facts give rise to clearly distinguishable benefit entitlements, as happened here, it is within the discretion granted by §678(a) to fashion an attorney fee award with those results in mind.
Nor does the Supreme Court’s holding in Sargent preclude such a result. Sargent stands only for the proposition that the Commissioner is obligated to exercise the discretion granted by §678(a) in ruling on a request for attorney fees following a successful trial or appeal of a claim that initially had been denied at the formal hearing level. Sargent, 2007 VT 56 at ¶15. By no means does it mandate that that discretion no longer exists.
In exercising that discretion, I cannot ignore the fact that even after her appeal, Claimant still was not successful on all of her claims. I conclude that the fees already awarded remain appropriate.
Having determined that Claimant is not entitled to an additional award of attorney fees, there is no need to reach the issues raised by Defendant’s Motion to Dismiss or Stay.
Claimant’s Motion for Award of Attorney Fees is DENIED.
DATED at Montpelier, Vermont this 9th day of September 2009.
______________________
Patricia Moulton Powden
Commissioner

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