53R-05WC. J. H. v. Therrien Foundations.

• Court: Vermont

Vermont Workers Compensation 2005. 53R-05WC. J. H. v. Therrien Foundations J. H. v. Therrien FoundationsSTATE OF VERMONT DEPARTMENT OF LABOR Opinion No. 53R-05WCBy: Margaret A. Mangan Hearing Officer For: Patricia A. McDonald Commissioner State File No. M-12928 RULINGS ON CLAIMANT'S MOTION FOR RECONSIDERATION AND CLARIFICATION AND FOR ADDITUR DEFENDANT'S MOTION FOR RECONSIDERATION OF AWARD OF FEES AND COSTS APPEARANCES: Dennis O. Shillen, Esq., for the Claimant Wesley M. Lawrence, Esq., for the DefendantClaimant's Motion for Reconsideration and Clarification and for Additur Claimant argues that the Department erred in denying his claim for temporary total disability (TTD) benefits and seeks additional costs in light of a statement received after the record closed. Because the Commissioner found that claimant's kyphosis had progressed, claimant argues that she must also find that claimant is entitled to the resumption of TTD until after he recovers from the approved surgery. However, the claimant reads the decision too narrowly. When an injury causes total disability for work, a claimant is entitled to temporary total disability compensation until reaching medical end result or successfully returning to work. 21 V.S.A. § 642; Coburn v. Frank Dodge and Sons, 165 Vt. 529 (1996); Orvis v. Hutchins, 123 Vt.18 (1962). This is a claimant who terminated vocational rehabilitation services for reasons unrelated to his work related injury. Dr. Fenton had placed him at medical end result in 2000. Dr. Fanciullo placed him at medical end result in 2002. He had a work capacity despite the kyphosis. Termination of TTD was appropriate. The surgery approved by this Department, while reasonable, is also elective. A decision to have surgery does not negate the MER finding. And, one is not entitled to TTD postoperatively when he had no wages before the surgery because no wages were lost. Plante v. Slalom Skiwear, Op. No. 19-95 (1995). Therefore, the claimant's motion to reverse the conclusion regarding temporary total disability benefits is DENIED. Next, claimant seeks an additional cost of $5,875,00 for Dr. Grottkau's testimony and record review, billed at $1,000 for the first hour, $500 for each additional hour and $750 per hour...