05R-11WC. Meril Badger v. BWP Distributors, Inc.and Maynard's Auto Supply, Inc.

• Court: Vermont

Vermont Workers Compensation 2011. 05R-11WC. Meril Badger v. BWP Distributors, Inc.and Maynard's Auto Supply, Inc Meril Badger v. BWP Distributors, Inc.and Maynard's Auto Supply, Inc.(June 2, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 05R-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File Nos. AA-62692 and U-15282RULING ON DEFENDANT BWP'S MOTION TO RECONSIDER AND CLARIFYDefendant BWP moves for reconsideration of various aspects of the March 25, 2011 Opinion and Order in this claim.(fn1) 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. 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...