33S-11WC. Robert Gadwah v. Ethan Allen.

CourtVermont
Vermont Workers Compensation 2011. 33S-11WC. Robert Gadwah v. Ethan Allen Robert Gadwah v. Ethan Allen(December 20, 2011)STATE OF VERMONT DEPARTMENT OF LABORRobert Gadwah v. Ethan AllenOpinion No. 33S-11WCBy: Phyllis G. Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. P-09814RULING ON DEFENDANT'S MOTION FOR STAY Defendant moves to stay the Commissioner's October 20, 2011 Order pursuant to 21 V.S.A. §675. 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. As to the first criterion, Defendant recites the same evidence upon which it relied both at formal hearing and in its recently denied Motion for Reconsideration. It argues that Claimant's evidence was not credible, but the Commissioner specifically found that it was. There is no reason to believe that a trial judge or jury will conclude otherwise. As to the second criterion, Defendant asserts that because the Commissioner's Order created uncertainty as to what benefits are due, both parties will suffer irreparable injury if a stay is not granted. Yet this was not the issue litigated at formal hearing. The narrow issue presented was simply whether Claimant's compensable 1999 injury caused the need for surgical revision of his failed L4-5 fusion. The Commissioner...

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