10-11WC. David Felion v. NSK Corporation.

• Court: Vermont

Vermont Workers Compensation 2011. 10-11WC. David Felion v. NSK Corporation David Felion v. NSK Corporation(April 29, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 10-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. Z-00213RULING ON DEFENDANT'S MOTION FOR CREDIT/OFFSETPursuant to 21 V.S.A. §651, Defendant moves for a credit or offset against future workers' compensation benefits owed to Claimant. The motion stems from Defendant's error in prematurely applying a cost of living increase to Claimant's compensation rate, and then carrying that error forward through subsequent years.(fn1) The resulting overpayment totaled $3,791.12. Defendant now seeks approval to offset the amount it overpaid from any future workers' compensation benefits it might owe. It characterizes its error as "excusable oversight," which even the Department failed to detect and correct. Claimant acknowledges that he was overpaid, but argues that because the error resulted from Defendant's carelessness, it should not be allowed to recoup the loss. Claimant also asserts that he lacks the ability to repay the overpaid benefits, and that requiring him to do so would cause him undeserved financial hardship. The applicable statutory provision, 21 V.S.A. §651, states:

§651. - Voluntary payments

Payments made by an employer or his insurer to an injured worker during the period of his disability ... which, by the provisions of this chapter, were not due and payable when made, may, subject to the approval of the commissioner, be deducted from the amount to be paid as compensation.

Based on the circumstances presented here, I conclude that it is appropriate to allow the offset Defendant seeks. Defendant's error did not evidence such a degree of careless or negligent claims handling practices as to disqualify it from receiving an offset, cf. Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999), particularly in light of the fact that the Department also failed to detect the mistake. Rather, it is the type of error that the statute grants the commissioner discretion to correct. See Bishop v. Town of Barre, 140 Vt. 564, 579 (1982). As for Claimant's claim of financial hardship, I am confident that the...