40-11WC. Timothy Birchmore v. The McKernon Group.

• Court: Vermont

Vermont Workers Compensation 2011. 40-11WC. Timothy Birchmore v. The McKernon Group Timothy Birchmore v. The McKernon Group(November 28, 2011)STATE OF VERMONT DEPARTMENT OF LABORTimothy Birchmore v. The McKernon GroupOpinion No. 40-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. Y-62516RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENTAPPEARANCES:Timothy Birchmore, pro se Keith Kasper, Esq., for Defendant ISSUE PRESENTED: Is Claimant entitled to a July 1, 2010 cost of living adjustment for temporary total disability benefits that were reinstated effective January 6, 2011? FINDINGS OF FACT: The following facts are undisputed:

1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont's Workers' Compensation Act.

2. As a result of a compensable work-related accident that occurred on or about March 15, 2007 Claimant suffered a collapsed lung, fractured ribs and fractured vertebra.

3. As a consequence of Claimant's injuries, Defendant paid medical, temporary total and/or temporary partial disability benefits from March 15, 2007 through January 30, 2010.

4. On February 23, 2010 Defendant paid Claimant permanent partial disability benefits referable to his compensable injuries in a lump sum.

5. Claimant had returned to work and was not receiving workers' compensation disability benefits as of July 1, 2010.

6. On January 6, 2011 Claimant again began receiving temporary total disability benefits causally related to his compensable 2007 injury.

7. Defendant did not apply the July 1, 2010 cost of living adjustment to the temporary total disability benefits it began paying on January 6, 2011 on the grounds that Claimant had not been out of work on July 1, 2010.

8. Following an informal conference on August 11, 2011 the Department's Workers' Compensation Specialist advised that Defendant must apply the July 1, 2010 cost of living adjustment to Claimant's reinstated temporary total disability benefits.

9. Claimant since has advised the Department that he does not wish to participate actively in the formal hearing process, and instead will await the Commissioner's final determination on the issue.

DISCUSSION: 1. Defendant presents a purely legal issue for determination - whether a worker who...