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William Boyd v. Kennametal Inc. (December 29, 2010

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William Boyd v. Kennametal Inc. (December 29, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
William Boyd Opinion No. 33S-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kennametal, Inc.
For: Valerie Rickert
Acting Commissioner
State File No. S-14574
RULING ON CLAIMANT’S MOTION FOR SUPPLEMENTAL ORDER FOR LUMP SUM PAYMENT
The Commissioner previously decided this claim on November 10, 2010. The opinion determined that Claimant was permanently and totally disabled, and ordered that permanent total disability benefits be paid in accordance with 21 V.S.A. §645 commencing on May 18, 2008 (with credit for any permanent partial disability benefits paid since that date).
Claimant now requests that the minimum amount payable under §645(a) – 330 weeks at the applicable compensation rate – be paid in a lump sum in accordance with 21 V.S.A. §652(b), and prorated in accordance with 21 V.S.A. §652(c). The purpose of the latter section is to protect a claimant’s ongoing entitlement to Social Security benefits by minimizing the offset that otherwise would occur were workers’ compensation permanency benefits not prorated over his or her life expectancy.
In keeping with §652(b), Workers’ Compensation Rule 19.3000 allows the commissioner to approve a claimant’s request for lump sum payment of permanent disability compensation “if it is in the best interests of the claimant.” The rule lists four “positive factors” to be considered in evaluating such a request:
19.3010 The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit;
19.3011 The lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment;
19.3012 The lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation;
19.3013 The claimant presents other evidence that the lump sum award is in their best interests.
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Workers’ Compensation Rule 19.5000 states that a lump sum payment shall not be approved if:
19.5010 The award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or
19.5011 The claimant is best served by receipt of periodic income benefits; or
19.5012 The payment is intended to pay everyday living expenses; or
19.5013 The lump sum payment is intended to pay past debts.
It is notable that while the language of Rule 19.5000 is mandatory, prohibiting a lump sum award if any of the four enumerated circumstances exist, the language of Rule 19.3000 is discretionary, in which the four enumerated circumstances are merely “positive factors” to be considered.
In support of his request here, Claimant asserts that since he began receiving permanency compensation his monthly Social Security Disability Income (SSDI) benefit has been reduced. Claimant’s SSDI benefit represents a regular source of household income under Rule 19.3010, and it is in his best interests to maximize his income from that source. On those grounds, I conclude that there is good reason to approve the payment of the first 330 weeks of Claimant’s permanent total disability award in a lump sum.1
I further conclude that there is no basis under Rule 19.5000 for rejecting Claimant’s request. Defendant has not appealed the formal hearing decision, and the appeal period has now run. Claimant is better served not by the receipt of periodic income benefits from workers’ compensation, but by the maximization of his income from Social Security Disability. Neither party asserts that the proposed lump sum is intended to pay either everyday expenses or past debts.
1 Having concluded that Claimant’s SSDI benefit constitutes a regular source of alternative household income sufficient to satisfy Rule 19.3010, there is no need to consider the factual issues Defendant has raised as to whether Claimant’s spouse is or is not regularly supplying additional household income so as to provide even further support for the request.
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ORDER:
Based on the foregoing, Defendant is hereby ORDERED as follows:
1. Defendant shall pay as a lump sum 330 weeks of permanent total disability benefits in accordance with 21 V.S.A. §645 commencing on May 18, 2008 (with credit for any permanent partial disability benefits paid to date);
2. The award of benefits in this case, totaling $239,085.41, is lump sum compensation for a permanent impairment that will affect Claimant for the rest of his life. Claimant’s remaining life expectancy, based on the National Vital Statistics Reports, Vol. 54, No. 14 (April 19, 2006), is 36.3 years, or 435.6 months. Therefore, even though paid in a lump sum, Claimant’s net benefit is $189,336.68 (after the Commissioner’s award of $13,363.50 for attorney fees and deduction of attorney fees of $63,112.23 from the total award), which shall be considered to be $434.66 per month beginning on May 18, 2008.
DATED at Montpelier, Vermont this 29th day of December 2010.
____________________
Valerie Rickert
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Debra Morrisseau v. Hannaford Brothers (August 9, 2012)

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Debra Morrisseau v. Hannaford Brothers (August 9, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Debra Morrisseau Opinion No. 21A-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. BB-00676
RULING ON CLAIMANT’S PETITION FOR COSTS AND ATTORNEY FEES RELATED TO SETTLEMENT OF CLAIMED PSYCHOLOGICAL INJURY
Claimant seeks an award of costs and attorney fees incurred in reaching a pre-hearing settlement with Defendant regarding coverage for psychological treatment allegedly necessitated by her compensable physical injury.
When a claimant prevails at formal hearing, Vermont’s workers’ compensation statute, 21 V.S.A. §678(a), has long provided for an award of costs and attorney fees as follows:
Necessary costs of proceedings under this chapter shall be assessed by the commissioner against the employer or its workers’ compensation carrier when the claimant prevails. The commissioner may allow the claimant to recover reasonable attorney fees when the claimant prevails. Costs shall not be taxed or allowed either party except as provided in this section.
The commissioner has discretion to award costs and fees in claims that are resolved short of formal hearing as well. As to attorney fees specifically, 21 V.S.A. §678(d) provides:
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.
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As to both costs and attorney fees, 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.
There is no evidence here that Defendant was responsible for undue delay in adjusting Claimant’s psychological injury claim, that it denied the claim without reasonable basis or that it engaged in misconduct or neglect. On that basis alone, I conclude that Claimant has not proven her entitlement to an award of either costs or attorney fees.
Claimant would have me base an award of costs and fees solely on the fact that she retained an attorney to represent her, one whose efforts I agree likely contributed to the successful resolution of her psychological injury. To base an award on that criterion alone, however, would render fee awards in informal dispute resolution proceedings the norm rather than the exception. I do not consider that to be the intent of either §678(d) or Workers’ Compensation Rule 13. See, e.g., Yustin v. State of Vermont, Department of Public Safety, Opinion No. 08-12WC (March 20, 2012). Rather, the discretion granted to the commissioner should be exercised only when the statutory requirements are met. Id; Zahirovic v. Super Thin Saws, Inc., Opinion No. 38-11WC (November 17, 2011). This is not one of those circumstances.
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Claimant’s Petition for Costs and Attorney Fees is hereby DENIED.
DATED at Montpelier, Vermont this 9th day of August 2012.
___________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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