02A-11WC. Gloria Crowe v. The Fonda Group, Inc.

• Court: Vermont

Vermont Workers Compensation 2011. 02A-11WC. Gloria Crowe v. The Fonda Group, Inc Gloria Crowe v. The Fonda Group, Inc.(May 2, 2011)STATE OF VERMONT DEPARTMENT OF LABOR Opinion No. 02A-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. S-13358RULING ON CLAIMANT'S MOTION FOR ATTORNEY FEES AND COSTSThe Commissioner previously decided this claim on January 25, 2011. Two issues were presented: first, whether Claimant was entitled to permanency benefits in accordance with Dr. Backus' 18% whole person rating or Dr. Johansson's 5% rating; and second, whether Defendant was obligated to sign a treatment authorization form that it felt was overly broad and therefore objectionable. As to the first issue, the Commissioner ruled that Dr. Backus had applied a more appropriate analysis to determining Claimant's impairment than Dr. Johansson had, but that his rating still was deficient because it relied on outdated electrodiagnostic test results. As an alternative to awarding benefits, the Commissioner ordered Defendant to pay for repeat electrodiagnostic testing so that her permanent impairment could be rated more accurately. As to the second issue, the Commissioner ruled in Defendant's favor. The Commissioner also ruled that Claimant had at least partially prevailed on her claims and therefore was entitled to an award of costs and attorney fees commensurate with the extent of her success. In accordance with that ruling, Claimant now seeks an award of costs totaling $536.83 and attorney fees totaling $8,885.50.(fn1) Defendant objects to any award of costs or fees. It argues that because the Commissioner did not grant the relief Claimant sought - permanency benefits based on Dr. Backus' 18% impairment rating - Claimant cannot be said to have prevailed at all. Defendant ignores an important component of the Commissioner's Opinion. The Commissioner did find that Dr. Backus' analysis was more credible than Dr. Johansson's, and in that sense Claimant did prevail. The Commissioner also found that Defendant's failure to pay for repeat diagnostic testing when Dr. Backus first requested it was improper. Had Defendant chosen otherwise, possibly a formal hearing on the permanency issue could have been avoided. From this perspective as well, it is appropriate to consider an award of costs and fees. Defendant is...