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Jeffrey Marshall v. State of Vermont, Vermont State Hospital (January 25, 2011)

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Jeffrey Marshall v. State of Vermont, Vermont State Hospital (January 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeffrey Marshall Opinion No. 01-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont,
Vermont State Hospital For: Anne M. Noonan
Commissioner
State File No. S-22038
OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 6, 2010
Record closed on November 12, 2010
APPEARANCES:
Patricia Turley, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional permanent partial disability and/or medical benefits referable to his June 2002 compensable work injury?
2. Did Defendant fail to give Claimant proper notice of its denial of various medical bills, and if yes, is Defendant thereby obligated to pay?
3. Is Defendant entitled to apportionment of any permanent partial impairment on account of Claimant’s 1989 and/or 1997 injuries?
4. Is Claimant barred by the statute of limitations from seeking additional permanent partial disability benefits referable to his 2002 injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Letter from Tim Vincent, August 7, 2003
Claimant’s Exhibit 2: Vocational Rehabilitation Progress Report, March 31, 2004
Claimant’s Exhibit 3: Letter from Susan Drapp, RN, March 28, 2005
Claimant’s Exhibit 4: Letter from Bruce Chenail (with attachments), August 1, 2005
Claimant’s Exhibit 5: Letter to Department (with attachments), September 6, 2005
Claimant’s Exhibit 6: Curriculum vitae, Sikhar Banerjee, M.D.
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Defendant’s Exhibit A: Form 22 approved February 3, 2004
Defendant’s Exhibit B: Form 22 approved December 28, 1993
Defendant’s Exhibit C: Deposition of Dr. William Boucher, September 29, 2010
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
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. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (hereinafter the “AMA Guides”).
3. Claimant was employed by Defendant as a ward aide. On June 6, 2002 he was assisting a co-employee to restrain a self-abusive patient. At one point the patient lifted both legs off the floor, requiring Claimant and the co-employee to support his entire weight. Claimant felt the immediate onset of low back pain, with sciatic pain radiating down both legs.
Claimant’s Prior Low Back Injuries
4. At the time of this injury Claimant already had suffered three previous work-related low back injuries. The first one occurred in 1987. While working for a prior employer, Claimant experienced low back pain and radicular symptoms down his left leg as a result of a forklift accident. He was diagnosed with a significant left-sided L5-S1 disc herniation, for which he underwent surgery in 1989. The surgery went well, and aside from some minor residual numbness in his left foot Claimant’s symptoms completely resolved. He resumed his regular activities without restriction, both at work and recreationally. The latter included hunting, fishing, working on his land and other outdoor pursuits.
5. Claimant was not rated for his permanent impairment following the 1987 injury and subsequent surgery. He did not seek, and was not paid, any permanent partial disability benefits as a result.
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6. The second injury occurred in 1992, when Claimant lifted a heavy patient while at work for Defendant. He experienced the same symptoms he had suffered as a result of the 1987 injury – low back pain and radicular symptoms down his left leg – and was diagnosed with a recurrent disc herniation at L5-S1, the same disc that had ruptured previously. Again Claimant underwent disc surgery, and again his symptoms almost completely resolved, allowing him to resume both recreational and work activities without restriction.
7. Having reached an end medical result for his 1992 injury, in November 1993 Claimant’s treating surgeon rated him with a 10% permanent impairment of the spine. Defendant accepted this rating and paid permanent partial disability benefits accordingly. In doing so it made no attempt to determine whether some portion of Claimant’s permanent impairment should have been allocated back to his 1987 injury.
8. Claimant injured his back for the third time in June 1997, again while working with a patient in the course of his employment for Defendant. As before, his symptoms included low back pain and radicular symptoms down his left leg. Once again, Claimant was diagnosed with a recurrent disc herniation at L5-S1, for which he underwent surgery and then successfully recovered.
9. Claimant was not rated for his permanent impairment after the 1997 injury, and was not paid any permanent partial disability benefits referable to it.
Claimant’s Medical Course Following the June 2002 Low Back Injury
10. Claimant’s symptoms following the June 2002 injury were different from those he had experienced after any of his three previous injuries. Whereas the predominant symptoms after his prior injuries were radicular pain, numbness and tingling down his left lower extremity, this time Claimant’s low back pain was predominant, and his radicular symptoms were both left- and right-sided.
11. Claimant treated with Dr. Cyr, a chiropractor, following his 2002 injury. Diagnostic x-rays taken shortly after the event showed mild degenerative changes at L4, L5 and S1. A July 2002 MRI study revealed a small recurrent left-sided disc herniation at L5-S1, but did not note abnormalities at any other level. Specifically, the study did not mention any findings whatsoever at the L4-5 level.
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12. Claimant opted not to treat surgically for his 2002 injury. Dr. Tranmer, a spine surgeon with whom he consulted in August 2002, remarked that as he was managing “reasonably well” with exercises and chiropractic care, surgery to remove the recurrent disc herniation likely was not necessary. Dr. Krag, the surgeon who had treated Claimant following his 1997 injury, concurred with this assessment. In his opinion, it was unlikely that Claimant’s symptoms were associated with the July 2002 MRI findings. It was more likely that the June 2002 incident caused a muscle strain or ligament injury, and that Claimant’s current symptoms were attributable to resulting back spasms, perhaps also with a component of disc degeneration. Rather than surgery, therefore, as treatment Dr. Krag recommended physical therapy and home exercises aimed at strengthening Claimant’s back.
13. Given Claimant’s extensive history of low back injuries and surgeries, Dr. Tranmer, Dr. Krag and Dr. Cyr all recommended as well that Claimant not return to his prior job and that instead he seek less physically demanding work. The results of a January 2003 functional capacities evaluation indicated likewise.
14. Claimant treated regularly with Dr. Cyr throughout the fall and winter of 2002, and also underwent a course of physical therapy. On February 24, 2003 Dr. Cyr determined that Claimant had reached the point of maximum medical improvement, or end medical result. As discussed further infra, using the fifth edition of the AMA Guides Dr. Cyr rated Claimant with an 8% whole person impairment referable to the spine.
15. Unlike his course following his previous injuries, after reaching an end medical result for his 2002 injury Claimant still experienced lingering low back pain and radiculopathy. Having been advised not to return to his prior job, he was frustrated in his efforts to find suitable alternative work. He also was frustrated by his inability to resume the recreational activities he had enjoyed in the past.
16. Claimant voiced his frustration to Dr. Curchin, his primary care physician, at various times in 2004. At Dr. Curchin’s referral, he underwent an MRI study in November 2004 and then consulted with Dr. Grzyb, a spine specialist, in March 2005. The MRI revealed chronic changes at L5-S1, the site of Claimant’s previous disc injuries and surgeries. It also showed a disc protrusion at L4-5, possibly affecting the right L5 nerve root. This was a new finding, one that had not been evident at the time of Claimant’s July 2002 MRI. Notably, the possibility of right L5 nerve root irritation is consistent with Claimant’s right-sided radicular symptoms.
17. At Dr. Grzyb’s referral, in April 2005 Claimant underwent an evaluation with Dr. Borrello, a pain management specialist. Dr. Borrello suggested injection therapy, but Claimant was not interested, such treatments having proved ineffective in conjunction with one of his prior low back injuries. Instead he opted for medication as his primary pain management tool.
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18. Claimant continues to use prescribed medications for pain relief. Other than that, the medical records do not reflect that he has treated actively for his ongoing symptoms since 2005. His pain significantly limits his activities, and has continued to worsen in the years since Dr. Cyr declared him at end medical result. Claimant still has not returned to work.
The February 2004 Permanency Agreement
19. As noted above, Finding of Fact No. 14 supra, after determining that Claimant had reached an end medical result for his June 2002 injury, in February 2003 his treating physician, Dr. Cyr, rated him with an 8% whole person impairment referable to the spine. Both Claimant and Defendant accepted this permanency rating and entered into an Agreement for Permanent Partial Disability Compensation (Form 22) in accordance with it. As part of the agreement, the parties acknowledged that Claimant previously had been compensated for a 10% impairment of the spine in conjunction with his 1992 injury, see Finding of Fact No. 7 supra. That impairment having been calculated according to an earlier version of the AMA Guides, it was converted under the current version to a 6% whole person impairment. As mandated by statute, 21 V.S.A. §648(d), the parties then agreed to subtract that amount from the 8% that Dr. Cyr had rated, leaving 2% still owed as attributable to the June 2002 injury.
20. The Department approved the parties’ Form 22, and thus awarded Claimant permanency benefits equating to a 2% whole person impairment on February 3, 2004. Defendant timely paid these benefits.
21. At no time during the process of rating or paying the permanency due Claimant on account of his 2002 injury did Defendant raise the issue whether it was entitled to further apportionment of Dr. Cyr’s 8% rating on account of any permanency that might have been attributable to Claimant’s 1987 and/or 1997 injuries. Nor did Claimant investigate whether in fact he might have been owed additional permanency as a consequence of those injuries.
Defendant’s Denial of Payment for Drs. Grzyb and Borrello Evaluations
22. As noted above, Findings of Fact Nos. 16 and 17 supra, in March and April 2005 Claimant underwent evaluations with Dr. Grzyb, a spine specialist, and Dr. Borrello, a pain management specialist. The reason for these evaluations was to determine what, if any, additional treatments might prove effective at managing Claimant’s back pain and associated symptoms. Defendant denied payment of both bills on the grounds that the evaluations were not causally related to the June 2002 injury, but rather were for the purpose of supporting Claimant’s application for social security disability benefits. I find that although this issue may have been discussed, it was not the primary purpose of either doctor’s evaluation.
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23. Defendant’s denials, which were dated in August and September 2005 respectively, were issued well outside the 30-day time limit for either accepting or denying workers’ compensation-related medical bills under Workers’ Compensation Rule 40.021(C). In addition, Defendant mistakenly addressed both denials. As a result, Claimant did not receive either of them and therefore was not seasonably apprised of Defendant’s action. I find that Defendant had Claimant’s correct mailing address in its possession, and particularly when one of the denials was returned stamped “unable to forward,” it should have realized its mistake and acted to correct it. By its failure to do so, I find that Claimant was prejudiced in his ability to appeal Defendant’s determination.
24. It is unclear from the record whether these bills were paid by other insurance, whether Claimant himself paid them, or whether they remain unpaid to date.
Expert Opinions as to Claimant’s Permanent Impairment
25. Claimant has undergone three evaluations directed at assessing the extent of his permanent impairment following the June 2002 injury. As noted above, Finding of Fact No. 14 supra, Dr. Cyr rated Claimant’s permanent impairment in February 2003, after determining that he had reached an end medical result for the 2002 injury. At his attorney’s referral in July 2008, and as revised in August 2010, Dr. Banerjee rendered a second impairment rating. Last, at Defendant’s referral Dr. Boucher issued a third permanency rating in March 2010. In deriving their ratings, each doctor reviewed Claimant’s medical history, conducted his own evaluation and applied his findings in accordance with his particular interpretation of the AMA Guides.
(a) General Rating Principles under the AMA Guides
26. The AMA Guides provide two alternative methods for calculating permanent impairment referable to the lumbar spine. Under the “Diagnosis-Related Estimates” (DRE) method, the permanency rating is derived by assigning an individual to one of five categories of impairment based on his or her symptoms, signs and diagnostic test results. AMA Guides §15.3 at p. 381 and §15.4 at p. 384. Under the “Range of Motion” (ROM) method, in addition to considering the individual’s diagnosis, both range of motion deficits and nerve root impairment are factored in as well. Id. at §15.8 et seq. Particularly with respect to quantifying an individual’s range of motion, the Guides give specific instructions so as to ensure that all of the measurements used are valid and reproducible. This includes allowing the patient adequate opportunity to warm up prior to taking any measurements, requiring that measurements be discarded if they change substantially with repeated efforts, and taking care that the measurement device is properly positioned on the spine. Id. at §§15.8a and 15.8b.
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27. The AMA Guides direct evaluators to use the DRE method as the “principal methodology” for rating impairment due to a distinct injury. Id. at §15.2, p. 379. In some situations, however, the ROM method is preferable. For example, where there is multilevel involvement in the same spinal region (such as multiple lumbar disc herniations), or where there is recurrent radiculopathy caused by a recurrent disc herniation or injury, the Guides direct that the ROM method be used. Id. at p. 380. Last, recognizing that there exist some instances in which either method might be appropriate, the Guides direct the evaluator to use whichever one will yield the higher rating. Id.
28. As for apportioning impairment between a current and a prior injury, the Guides first acknowledge that “most states have their own customized methods for calculating apportionment.” Id. at §1.6b, p. 12. An examiner must therefore defer to the “jurisdiction practices” that will apply given the particular context in which an impairment rating is to be considered. Id. at §15.2a, p. 381. Within that framework, the Guides instruct as follows:
If requested, apportion findings to the current or prior condition, following jurisdiction practices and assuming adequate information is available on the prior condition. In some instances, to apportion ratings, the percent impairment due to previous findings can simply be subtracted from the percent based on the current findings. Ideally, use the same method to compare the individual’s prior and present conditions. If the ROM method has been used previously, it must be used again. If the previous evaluation was based on the DRE method and the individual now is evaluated with the ROM method, and prior ROM measurements do not exist to calculate a ROM impairment rating, the previous DRE percent can be subtracted from the ROM ratings. Because there are two methods and complete data may not exist on an earlier assessment, the apportionment calculation may be a less than ideal estimate.
Id.
(b) Dr. Cyr’s Impairment Rating
29. Dr. Cyr specifically referenced the DRE method as the basis for the 8% impairment rating he calculated in February 2003. Notably, at the time of Dr. Cyr’s rating there was not yet any indication that Claimant’s L4-5 disc was in any way contributing to his symptoms, and therefore presumably no basis yet existed for discarding the DRE method due to multilevel disc involvement. AMA Guides at p. 380, see Finding of Fact No. 27 supra. Similarly, although Dr. Cyr was well aware at the time that Claimant previously had suffered recurrent disc herniations at the L5-S1 level, there was no mention in his report of recurrent radiculopathy. Id. With this in mind, it is by no means clear from the evidence presented that Dr. Cyr was wrong to have used the DRE method given Claimant’s symptoms, signs and diagnostic test results as of February 2003.
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30. Dr. Cyr did not also calculate Claimant’s impairment using the ROM method, and therefore there is no way to know whether that method would have yielded a higher or lower rating than the 8% he calculated according to the DRE method.
(c) Dr. Banerjee’s Impairment Rating
31. Dr. Banerjee first evaluated Claimant in July 2008, more than six years after his injury. Dr. Banerjee is board certified in physical and rehabilitation medicine. He reviewed Claimant’s medical records and conducted his own physical examination. From that, he concluded that Claimant’s current symptoms were related to a right L4-5 disc herniation resulting from the June 2002 work injury. In reaching this conclusion, Dr. Banerjee relied primarily on the fact that Claimant’s current complaints had begun with the June 2002 injury and had remained consistent thereafter.
32. In formulating his opinion, Dr. Banerjee failed to explain why, if the June 2002 injury had caused an L4-5 disc herniation, this would not have been apparent on the July 2002 MRI study. As he did not personally review the study, he could only speculate that perhaps the finding had been missed. Dr. Banerjee also did not explain why in his opinion the L4-5 disc herniation was more likely due to injury-associated trauma as opposed to either age-related degeneration or some other cause. Disc herniations are very common in people of Claimant’s age, and although certainly they can be triggered by injury-related trauma, they often occur for no apparent reason at all.
33. Because he believed that Claimant’s current symptoms were entirely attributable to a different disc level (L4-5) from the one involved in his earlier injuries (L5-S1), initially Dr. Banerjee interpreted the AMA Guides as allowing a DRE-based impairment rating. Using this method, he calculated a 13% whole person impairment referable to the June 2002 injury. The difference between this rating and Dr. Cyr’s earlier 8% rating lies at least partially in the extent of the radicular signs that each doctor observed. Whereas Dr. Cyr did not mention radicular complaints at all as a basis for his DRE rating, Dr. Banerjee’s rating depended in part on them. I find from this evidence that Claimant’s radicular symptoms likely worsened in the years between Dr. Cyr’s evaluation and Dr. Banerjee’s.
34. Dr. Banerjee later determined that his interpretation of the AMA Guides had been incorrect, and that because Claimant had suffered lumbar disc herniations at multiple levels, it was more appropriate to rate impairment using the ROM method rather than the DRE method. Using the ROM method, Dr. Banerjee calculated Claimant’s current impairment at 25% whole person. He then apportioned away the 8% previously rated and paid in accordance with Dr. Cyr’s 2003 DRE-based evaluation, leaving 17% additional whole person impairment attributable to the June 2002 injury.
(d) Dr. Boucher’s Impairment Rating
35. Dr. Boucher evaluated Claimant in March 2010, at Defendant’s request. Dr. Boucher is board certified in occupational medicine. He is experienced at rating permanency under the AMA Guides, and was a contributor to the most recent edition.
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36. Based both on his review of Claimant’s medical records and on his physical examination findings, Dr. Boucher concluded that the June 2002 work injury consisted of a lumbosacral strain, which aggravated some pre-existing degenerative changes in his lumbar spine but did not in any way cause the L4-5 disc herniation. In Dr. Boucher’s opinion, more likely than not the June 2002 injury is no longer contributing significantly to Claimant’s ongoing complaints.
37. As Dr. Banerjee had, Dr. Boucher used the ROM method to calculate the extent of Claimant’s current impairment, which he rated at 20% whole person. The difference between this rating and Dr. Banerjee’s 25% rating is attributable to two factors. First, Claimant exhibited less severe range of motion deficits on Dr. Boucher’s examination than he had at the time of Dr. Banerjee’s evaluation. Second, having determined that the L4-5 disc herniation was not contributing in any way to Claimant’s current complaints, Dr. Boucher did not factor it into his rating, while Dr. Banerjee did.
38. Where Dr. Boucher’s opinion diverged most sharply from Dr. Banerjee’s was as to how best to apportion Claimant’s permanency between the current impairment and whatever impairment was – or should have been – rated previously. As noted above, Finding of Fact No. 34 supra, Dr. Banerjee did so simply by subtracting from his own 25% rating the 8% previously rated and paid in accordance with Dr. Cyr’s 2003 evaluation. As Dr. Banerjee’s rating was based on the ROM method, and Dr. Cyr’s on the DRE method, apportioning in this way may have led to what the AMA Guides acknowledge is “a less than ideal estimate.” AMA Guides §15.2a at p. 381; see Finding of Fact No. 28 supra. Nonetheless, it is what the Guides recommend where, as here, prior ROM measurements are not available. Id.
39. Dr. Boucher approached the problem differently. In his opinion, given Claimant’s multiple injuries and surgeries it would be inappropriate to use a DRE-based impairment rating for any part of the apportionment calculation. Instead, Dr. Boucher made a number of assumptions as to the range of motion deficits that he thought Claimant would have suffered after his 1997 surgery, and from those he attempted to recreate what he estimated Claimant’s ROM-based impairment would have been just prior to the June 2002 injury.
40. Using this methodology, Dr. Boucher determined that Claimant’s prior impairment would have been 18% whole person. Subtracting that amount from the 20% impairment Dr. Boucher rated at the time of his evaluation left an impairment of only 2% referable to the June 2002 injury. This is exactly the amount that was paid in accordance with the parties’ February 2004 permanency agreement. According to Dr. Boucher’s calculations, therefore, Claimant is not due any additional permanency relative to his June 2002 injury.
41. Given the care with which the AMA Guides instruct practitioners to measure range of motion deficits, see Finding of Fact No. 26 supra, the methodology Dr. Boucher employed seems particularly imprecise. For that reason, I find that Dr. Banerjee’s apportionment methodology comports more closely with the Guides’ directives.
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CONCLUSIONS OF LAW:
1. At issue in this case is Claimant’s claim to additional medical and permanency benefits causally related to his June 2002 work injury. Claimant alleges that his current low back pain and radicular symptoms are directly attributable to that injury. He bears the burden of proof, Egbert v. The Book Press, 144 Vt. 367 (1984), and as the issues presented are beyond a layperson’s expertise, he must establish his claim by way of credible expert testimony. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964).
2. Here, Claimant offered Dr. Banerjee’s testimony in support of his claims, while Defendant countered with that of Dr. Boucher. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
Claimant’s Entitlement to Additional Permanency Benefits
3. Claimant has presented two alternative grounds in support of his claim for additional permanency benefits. On the one hand, he asserts that his condition has worsened appreciably since his original permanency award in February 2004. On those grounds, he argues, the award should be modified and additional benefits paid in accordance with Dr. Banerjee’s 2008 evaluation and subsequent ROM-based impairment rating. See 21 V.S.A. §668.
4. Alternatively, Claimant asserts that because the parties were mutually mistaken as to the extent of Claimant’s permanent impairment as rated by Dr. Cyr in 2003, their prior Form 22 permanency agreement should be invalidated and Dr. Banerjee’s rating substituted instead. The basis for this assertion is that Dr. Cyr improperly interpreted the AMA Guides by deriving Claimant’s impairment using DRE-based rather than ROM methodology.
(a) Modification of Award on Grounds of Change in Condition
5. I cannot accept Claimant’s first argument. It is true that Claimant’s condition has worsened since Dr. Cyr first rated his impairment in 2003. This much is clear simply by comparing his 8% rating to Dr. Banerjee’s 13% DRE-based rating in 2008. Dr. Banerjee’s rating was based on his opinion that Claimant’s ongoing symptoms were attributable to an L4-5 disc herniation, which he believed occurred as a result of the June 2002 work injury even though it was not diagnosed until 2004.
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6. Dr. Banerjee’s opinion is deficient in two important respects, however. First, he failed adequately to explain why, if the June 2002 injury in fact caused the L4-5 disc herniation, this finding would not have been noted at the time of the July 2002 MRI. Second, he failed adequately to explain the basis for his conclusion that the herniation resulted from injury-related trauma as opposed to some other cause, such as, for example, age-related degeneration. Given these omissions, I find that Dr. Banerjee’s opinion lacks clarity, thoroughness and objective support.
7. In contrast, Dr. Boucher’s causation opinion – that the June 2002 work injury did not cause Claimant’s L4-5 disc herniation and is not responsible for his current condition – adequately accounts for the differences between the 2002 and 2004 MRI findings.
8. Considering the weaknesses in Dr. Banerjee’s analysis, I cannot accept his opinion as more credible than Dr. Boucher’s. As Claimant bears the burden of proof on this issue, I cannot conclude, therefore, that the June 2002 injury was responsible either for his worsened condition or for his increased permanent impairment in 2008.
(b) Material Mistake of Fact as Basis for Re-Opening Prior Permanency Award
9. As an alternative argument in support of his claim for additional permanency, Claimant asserts that the parties’ prior Form 22 permanency agreement is subject to reopening on the grounds that it was based on a material mistake of fact. I disagree.
10. It is generally accepted that once the parties to a workers’ compensation claim execute a Form 22 or other form agreement, and the Commissioner (or her designee) approves it, it becomes a binding and enforceable contract. Workers’ Compensation Rule 17.0000; Lushima v. Cathedral Square Corporation, Opinion No. 38-09WC (September 29, 2009). Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions of the form, and the Department will consider it to represent a final determination of any dispute as to its contents. Id.
11. It is important to note, first of all, that the “material portion” of the Form 22 at issue here concerns only the impairment rating to which the parties agreed – 8% whole person – not the methodology used to derive it. No evidence was introduced as to what that impairment rating would have been had Dr. Cyr calculated it according to the ROM method, as Claimant alleges he should have, rather than according to the DRE method. It is impossible to know, therefore, whether the 8% permanency to which the parties ultimately agreed would have been higher, or lower, or perhaps just the same.
12. Even if Dr. Cyr’s interpretation of the AMA Guides was mistaken, furthermore, I still cannot categorize the outcome as a mistake of fact. As the Guides acknowledge, rating impairment is both an “art” and a “science.” AMA Guides §1.5 at p. 11. The process combines objective, scientifically based data with a physician’s clinical judgment to produce an estimate that reflects the severity of an individual’s medical condition. Id. §1.2a at p. 4 and §1.5. The result is an opinion, not a fact.
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13. I conclude that there is no basis for awarding Claimant additional permanency benefits on the grounds that his prior award was based on a mutual mistake of fact.1
Defendant’s Responsibility for Medical Charges Denied in 2005
14. As a final issue, Claimant asserts that Defendant should be deemed responsible for the medical charges it denied in 2005, on the grounds that it failed to notify Claimant seasonably of its denial. I agree.
15. The workers’ compensation rules require prompt written notification to a claimant whenever an employer seeks to deny benefits. Workers’ Compensation Rule 3.0900. Where the employer fails to comply, the Commissioner has discretion to order that benefits be paid. Workers’ Compensation Rule 3.1300.
16. It is appropriate to exercise that discretion here. Defendant’s mistake was avoidable, and Claimant was prejudiced as a result. I conclude that Defendant is obligated to pay the medical charges associated with Dr. Grzyb’s and Dr. Borrello’s March and April 2005 evaluations, with interest from the date payment should have been made under Workers’ Compensation Rule 40.021(C). If either of these bills has already been paid, Defendant shall reimburse the payor, with interest.
17. Having already concluded that Claimant has failed to sustain his burden of proving that his current condition is causally related to his June 2002 work injury, his claim for ongoing medical benefits (aside from those denied in 2005) must fail as well.
Costs and Attorney Fees
18. Claimant having failed to substantially prevail on his claim, he is not entitled to an award of costs or attorney fees.
1 Having determined that Claimant is not entitled to additional permanency on either of the grounds he asserted, I need not decide the merits of Defendant’s statute of limitations defense. Nor is it necessary to consider Defendant’s claim that it is entitled to apportionment as a consequence of Claimant’s 1987 and/or 1997 injuries.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional permanent partial disability and/or ongoing medical benefits causally related to his June 6, 2002 work-related injury is hereby DENIED. Defendant is hereby ORDERED to pay:
1. Medical benefits in accordance with Conclusion of Law No. 16 above, with interest as required by 21 V.S.A. §664.
DATED at Montpelier, Vermont this 25th day of January 2011.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , , , , , Author:

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Josef Knoff Opinion No. 25-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Josef Knoff Illuminating
For: Anne M. Noonan
Commissioner
State File No. P-16619
OPINION AND ORDER
Hearing held in Montpelier on August 17, 2012
Record closed on September 19, 2012
APPEARANCES:
Josef Knoff, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Are Claimant’s current complaints causally related to his February 2000 compensable work injury?
2. If yes, is Claimant entitled to reinstatement of temporary total disability benefits retroactive to December 17, 2010?
3. If yes, what is the appropriate average weekly wage and compensation rate at which such benefits should be paid?
4. Is Claimant’s claim for mileage reimbursement for treatment-related travel barred in whole or in part by the applicable statute of limitations?
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EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Medical statement in support of Social Security Disability, June 15, 2005
Claimant’s Exhibit 2: Physical therapy progress notes, 5/4/11-6/6/11
Defendant’s Exhibit A: Exhibit 2 to Claimant’s deposition, April 20, 2005
Defendant’s Exhibit C: Curriculum vitae, Fran Plaisted, M.A.
Defendant’s Exhibit D: Vocational Assessment of Earning Capacity, June 4, 2012
Defendant’s Exhibit E: Wage records, 5/21/10-12/17/10
Defendant’s Exhibit F: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
Temporary total disability benefits retroactive to December 17, 2010 pursuant to 21 V.S.A. §642
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2100
FINDINGS OF FACT:
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. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the commissioner’s previous decisions in J.K. v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005), J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006), and Josef Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), and of the Vermont Supreme Court’s entry order in Josef Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term 2011).
3. Claimant was the self-employed owner and manager of Defendant’s business for fifteen years prior to February 2000. Operating under the trade name Illuminating Consulting Service and Supply, the business marketed, designed and installed energy efficient lighting systems in commercial, industrial and institutional settings. It was a successful enterprise that generated significant annual revenues.
4. Claimant was in all respects a hands-on owner. He worked both in the office and in the field. The latter duties were physically challenging, often requiring sustained overhead work on ladders or high staging with his neck in a hyper-extended position.
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Claimant’s 2000 Injury and Subsequent Medical Treatment
5. On February 1, 2000 Claimant was finishing up an installation at a large health care facility in New Hampshire when he suffered the onset of severe neck pain. Diagnostic imaging studies revealed degenerative disc disease at C4-5 and C5-6, a right-sided disc herniation at C5-6 and a small left-sided herniation at C6-7. These findings correlated with Claimant’s symptoms, which included pain, stiffness and reduced range of motion in his neck, as well as pain and paresthesias in his arms bilaterally.
6. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
7. Claimant treated his symptoms conservatively, with passive physical therapy modalities and anti-inflammatories. As early as June 2000 his consulting neurosurgeon, Dr. Penar, determined that he was an appropriate candidate for surgical disc excision and fusion at the C5-6 level. Some months later, in December 2000 Dr. Wepsic, another consulting neurosurgeon, also recommended surgery, to include decompressing the nerve roots at both C5-6 and C6-7.
8. Claimant chose not to pursue either of these surgical treatment options. Instead, from November 2000 through January 2001 he underwent a multidisciplinary functional restoration program overseen by Dr. Johansson, an osteopath. Dr. Johansson diagnosed Claimant with cervical disc syndrome and myofascial pain. The program he recommended to address these conditions encompassed both physical and psychological components, and included treatments specifically directed at behavioral medicine and pain management.
9. Claimant successfully completed Dr. Johansson’s program. Although his pain was not completely eliminated, his range of motion improved and he reported that he was better able to control and manage his symptoms than he had been previously.
10. In February 2001 Dr. Johansson determined that Claimant had reached an end medical result. Noting both clinical findings and diagnostic imaging studies indicative of a C5-6 disc herniation with radiculopathy, he rated Claimant with a 15 percent whole person permanent impairment referable to his compensable cervical injury. The Department approved the parties’ subsequent agreement to pay permanency benefits in accordance with this rating.
11. As for functional restrictions, Dr. Johansson determined that Claimant had a light to medium work capacity and was capable of full-time sedentary work. He endorsed Claimant’s plan to return to work in a computer-oriented office setting, so long as his work station was ergonomically designed and he was able to take frequent stretch breaks.
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Medical Treatment from 2003 through 2006
12. As expected with a cervical disc injury such as Claimant’s, even after reaching an end medical result he continued to experience periods of waxing and waning symptoms. He did not seek additional focused treatment, however, until May 2003. By that time, his symptoms had worsened to such an extent that they interfered significantly with his functional abilities.
13. In March and April 2005 Claimant participated again in a functional restoration program supervised by Dr. Johansson. When his symptoms failed to improve, Dr. Johansson recommended another surgical consult.
14. In July 2005 Claimant underwent an evaluation with Dr. Phillips, a neurosurgeon. When compared with the MRI taken shortly after his 2000 injury, a new MRI study revealed that the disc herniation previously noted at C5-6 had resolved, but that bone spurs both at that level and at C6-7 had worsened. Given the correlation between these findings and Claimant’s worsening symptoms, Dr. Phillips recommended surgery at the C7 level.
15. Defendant disputed its responsibility for Dr. Phillips’ proposed surgery on the grounds that it was not causally related to Claimant’s compensable injury. As medical support for its position, Defendant offered the opinion of Dr. Levy, a neurologist. According to Dr. Levy’s analysis, Claimant’s ongoing symptoms were due solely to the natural progression of degenerative disc disease, and were not work related at all.
16. Dr. Phillips disagreed with this analysis. According to his theory of causation, Claimant’s work activities in February 2000 had precipitated the left-sided disc herniation at C6-7. The bone spurs that subsequently developed at that level represented the body’s natural attempt to prohibit movement and achieve some stability in the area. In that sense, the extent of disc degeneration at C6-7 came about as a direct consequence of the work injury.
17. Following a formal hearing, in a decision dated July 7, 2006 the commissioner rejected Dr. Levy’s causation analysis and accepted Dr. Phillips’ opinion instead.1 As a consequence, Defendant was ordered to pay the medical and rehabilitation costs associated with the C7 surgery that Dr. Phillips had recommended.
18. Ironically, after having prevailed on his claim that Dr. Phillips’ proposed surgery was causally related to his work injury, Claimant again decided against that treatment option. His symptoms had improved somewhat, and while they still limited his activity he no longer viewed surgery as inevitable. Instead he opted to take a “wait and see” approach, in the hopes that over time his symptoms might abate even more.
1 J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006).
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19. Between October 2006 and December 2010 Claimant continued to experience ongoing neck pain and radicular symptoms that significantly limited his activity level. Aside from routine exercises and anti-inflammatories, however, he did not actively treat for his cervical condition.
Medical Treatment since 2010
20. On December 17, 2010 Claimant reported to Dr. Manchester, his primary care physician, that his neck pain and radicular symptoms had worsened. There followed a series of therapies, specialist consults and diagnostic evaluations aimed at addressing this latest downturn. These included:
• Evaluations in early 2011 with Dr. Barnum, an orthopedic surgeon, who concluded that a C5-6 and C6-7 discectomy and fusion likely would alleviate Claimant’s symptoms and improve his function;
• MRI studies in March and October 2011, which showed herniated discs at both C5-6 and C6-7, with further calcification at those levels and progression of degenerative disease at the adjacent levels as well;
• Electrodiagnostic studies in April 2011, which documented chronic left C7 radiculopathy but no new radicular deficits;
• An unsuccessful course of physical therapy from April through May 2011;
• An October 2011 evaluation with Dr. Bono, another orthopedic surgeon, who concluded that notwithstanding his MRI findings Claimant likely would not benefit from surgery, and would best be helped by a more structured, physiatrist-directed trial of non-operative care; and
• A December 2011 evaluation with Dr. Flimlin, a physiatrist, followed by a referral to Dr. Naylor, a psychiatrist and specialist in chronic pain management.
21. From mid-April through mid-June 2012 Claimant participated in an 11-week pain management program offered by Dr. Naylor’s Mind-Body Clinic. The focus of this program is to teach copings skills for managing chronic pain through cognitive restructuring, relaxation training, visual imagery, education and group discussion. I find it likely that Claimant previously learned at least some of these skills in the context of Dr. Johansson’s November 2000 multidisciplinary rehabilitation program.
22. In conjunction with the Mind-Body Clinic program, Dr. Naylor also suggested that Claimant participate in a “physician-managed graded exercise program” to help him improve his overall physical conditioning. She recommended that he re-enroll in Dr. Johansson’s functional restoration program for this purpose.
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23. At the time of the formal hearing, Claimant had completed Dr. Naylor’s Mind-Body Clinic program, and was two-thirds of the way through Dr. Johansson’s program. I find from Claimant’s own testimony that the benefits he has reaped from these programs are essentially the same as those he reported the first time he underwent multidisciplinary rehabilitation, namely, an improved ability to manage and control his chronic pain symptoms and somewhat increased cervical range of motion. His radicular symptoms remain unchanged.
Claimant’s Vocational Rehabilitation Efforts and Subsequent Employment Efforts
24. Claimant’s functional restrictions following his February 2000 injury precluded him from returning to his pre-injury job. He subsequently was found entitled to vocational rehabilitation services, and a counselor was assigned to assist him in formulating an appropriate return to work plan. As Claimant had been a very high wage earner, the particular vocational rehabilitation challenge he faced was to identify a path to re-employment that would approximate his pre-injury wages, which averaged almost $3,800.00 per week.
25. After some research, Claimant and his counselor determined that the two avenues most likely to lead to suitable re-employment were either to enroll in a master’s level college program or to undertake another self-employed business venture. Claimant was concerned that pursuing a master’s degree would take several years, and in the meantime it would be difficult for him to support his family financially. For that reason, and also considering his successful track record as the owner and manager of Defendant’s business, he favored the second option.
26. Claimant’s vocational rehabilitation counselor estimated the cost of a master’s level degree program to be in the $15,000-$20,000 range at the University of Vermont, and in the $30,000-$50,000 range elsewhere.
27. After much research, Claimant developed a self-employment business plan that he estimated would generate personal income at or near his pre-injury wages within three years. The plan involved designing and developing a website to market natural foods, personal care products and other “environmentally friendly” goods directly to consumers. Claimant estimated the start-up costs to adequately finance this e-commerce venture at approximately $200,000. According to his business plan, most of these monies ($170,000) would be used to outsource custom website development and on-line marketing to a company with experience in hosting natural products websites.
28. Claimant’s vocational rehabilitation counselor supported his self-employment plan, despite the potential risks associated with any such venture. However, Defendant refused to sign off on the proposal, for reasons that are not clear from the record. Thereafter, Defendant agreed to pay $100,000 in return for a full and final settlement of its obligation to provide further vocational rehabilitation services. Claimant accepted this offer, and in May 2001 the Department approved the settlement.
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29. Notwithstanding that the vocational rehabilitation settlement left his business plan 50 percent underfunded, Claimant opted to proceed anyway. Subsequent decisions placed the start-up in an even more precarious financial position. First, Claimant diverted a sizeable portion of the settlement monies to personal expenses, including his child’s college tuition, his mortgage and car payments. Later, he lost some funds to what he described as a “well-orchestrated scam.” Claimant was able to raise some capital on his own, including a $25,000-$30,000 investment from his primary care physician, Dr. Manchester. He also modified his business plan on the expense side, by identifying less costly ways to market and deliver the products he intended to distribute.
30. Despite his best efforts, Claimant’s e-commerce business never approached the level of success he had envisioned for it. After years in development, the website was operational for a brief period of time in 2005-2006, but made only minimal sales. By 2007 it was defunct.
31. Claimant attributed at least part of the business’ demise to his inability, as a result of his neck pain and radicular symptoms, to spend as much of his own time working on the project as he originally had anticipated. His business plan called for him to devote ten to twelve hours daily on the venture, but as time went on he was able to spend only one or two hours per day on it. Claimant asserted that had he been able to work more closely on designing and fine tuning the website, his outsourcing expenses would have been lower, with the result that it would have been easier for the business to become profitable.
32. Claimant’s assertion is belied by his own business plan, however. As noted above, Finding of Fact No. 27 supra, from the beginning the outsourcing expenses anticipated in that plan were substantial. They accounted for 85 percent of Claimant’s original funding request, and perhaps more importantly, they exceeded the start-up monies he actually received by 70 percent, see Finding of Fact No. 28 supra. With those facts in mind, I find it likely that Claimant’s e-commerce venture failed not because he was physically unable to devote sufficient time to it, but rather because for the duration of its existence it was significantly undercapitalized.
33. Between 2006 and 2009 Claimant neither sought nor engaged in remunerative employment. In 2005 he applied for and was granted social security disability benefits, retroactive to April 2003. In 2009 he passed the licensing exam to become an automobile damage appraiser, but soon realized that the work was too challenging physically for him to sustain.
34. In early 2010 Claimant began working as a substitute teacher for the Enosburgh Town School District, where he resides. His wife had worked as a substitute teacher in the same school district, and within a year had been offered full-time employment. Claimant hoped his employment would progress similarly. He expected that teaching would accommodate his physical restrictions well in terms of maintaining his neck in a neutral posture and being able to move around as necessary.
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35. Claimant was paid on a per diem basis for his substitute teaching assignments, at the initial rate of $70.00 per day. Notwithstanding Defendant’s assertion to the contrary, it is clear from the paystubs admitted into evidence that payroll taxes, including both FICA and Medicare, were deducted. In addition, Claimant testified that the school district issued him a W-2 earnings statement covering these wages at the end of the year, an assertion I have no reason to doubt. Considering this evidence, I find that Claimant was at all relevant times a school district employee, not an independent contractor.2
36. Claimant’s paystubs document substitute teacher earnings from April 19, 2010 through May 27, 2010, a total of $280.00 in gross wages for four full-time equivalent days. During the ensuing school summer vacation, from July 9, 2010 through September 16, 2010 Claimant worked as a security guard at a summer camping area. For the most part, his duties involved canvassing the property in a golf cart, for which he was paid at the rate of $8.25 hourly. Claimant’s gross wages in this employment totaled $1,023.00. Thereafter, Claimant returned to substitute teaching assignments for the Enosburgh Town School District, this time at a per diem rate of $80.00 per day. From September 8, 2010 through December 9, 2010 he earned a total of $1,080.00 in gross wages for 13.5 full-time equivalent days.
37. Claimant has not worked since December 9, 2010. As noted above, Finding of Fact No. 20 supra, on December 17, 2010 he resumed treatment for his neck pain and radicular symptoms with Dr. Manchester, who determined that he was totally disabled from working.
38. Claimant has been minimally active in the years since Dr. Manchester took him out of work. He testified that on a typical day, he drives his wife to work, returns home, feeds the dog, eats breakfast, spends 30 to 45 minutes on the computer, and then naps for one to two hours. He estimated that he might spend another 30 to 45 minutes on the computer in the afternoon before driving to pick up his wife. Occasionally he attends his daughter’s sporting events. He sleeps approximately six hours nightly, but wakes up frequently in pain.
39. While I do not doubt that Claimant is minimally active physically, I find that he likely has underestimated the amount of time he spends at his computer. Considering just the manner in which he has represented himself through the various legal proceedings associated with his workers’ compensation claim, which have encompassed three formal hearing decisions and one Supreme Court appeal in addition to the pending dispute, it is apparent that he is able to focus on complex issues, compose legal memoranda and respond promptly and at length to emails and other correspondence. These activities are at odds with a person who is unable to work at a computer for more than one and a half hours daily.
2 Given what I presume to be the nature of the school district’s business, which is the true test of employee status, see In re Chatham Woods Holdings, LLC, 2008 VT 70 ¶10 (May 16, 2008), it is unlikely that I would have classified Claimant as an independent contractor even had the school district not withheld his payroll taxes appropriately.
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Expert Opinions
40. The parties each presented expert evidence as to (a) the causal relationship between Claimant’s current cervical complaints and his compensable February 2000 work injury; (b) whether his treatment since December 2010 has been curative or palliative; and (c) to what extent, if any, he has been capable of working since that time. In addition, Defendant presented expert testimony as to the impact that Claimant’s past vocational choices has had on his current earning capacity.
(a) Causal Relationship
41. As to the causal relationship between Claimant’s current cervical condition and his February 2000 injury, the expert opinions that each party offered were essentially the same as those presented in the context of Claimant’s 2006 formal hearing, see Finding of Fact Nos. 15-17 supra. Briefly, Claimant’s primary care provider, Dr. Manchester, concurred with Dr. Phillips’ causation analysis – that the February 2000 work injury precipitated a left-sided disc herniation at C6-7, which in turn accelerated the growth of bone spurs and degenerative disease at adjacent levels as well. Thus, according to Dr. Manchester the same work-related injury process that accounted for Claimant’s worsening symptoms and need for treatment in 2003 likewise accounts for his current symptoms and need for treatment.
42. In contrast, Defendant’s expert, Dr. Backus, acknowledged that his causation opinion was in many respects the same as that offered by Dr. Levy in 2003 – that Claimant’s worsening symptoms, both in 2003 and in 2010, were not causally related to his work injury in any respect, but rather represented the natural progression of degenerative disc disease in his cervical spine. That disease process probably had already begun as of the time of Claimant’s February 2000 work injury. According to Dr. Backus’ analysis, while the injury likely resulted in a soft tissue strain and inflammatory response in the area, it did not cause or accelerate any changes to the underlying structures themselves. Thus, in his opinion, at least by 2003 and certainly by 2010 any worsening symptoms were likely due solely to the ongoing progression of the disc disease itself.
(b) Curative versus Palliative Treatment
43. Claimant offered expert opinion evidence from Drs. Manchester, Bono, Naylor and Johansson to the effect that the treatments he has undergone since December 2010 have been curative rather than palliative in nature. In particular, according to these providers, both Dr. Naylor’s Mind-Body Clinic program and Dr. Johansson’s functional restoration program offer treatments that are reasonably likely to result in significant further improvement in his ability to manage his symptoms and return to the level of function he enjoyed previously.
44. Upon careful review, I find that none of Claimant’s providers have adequately explained why the specific treatments Drs. Naylor and Johansson have offered recently are likely to result in lasting improvement when what appear to be very similar programs failed to do so in the past. For that reason, I find the objective support for their opinions lacking.
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45. Dr. Backus acknowledged that Dr. Naylor’s program represented a reasonable treatment, one that likely would increase Claimant’s ability to manage his chronic pain independently. He also supported as reasonable Claimant’s participation in a limited graded exercise program supervised by Dr. Johansson, as a means of guiding him back to an effective home exercise regimen. According to Dr. Backus, however, because Claimant suffers from a chronic, progressively deteriorating condition, neither of these programs is curative; the most either can offer is palliative symptom relief. I accept this reasoning as persuasive.
(c) Claimant’s Work Capacity Since December 2010
46. As noted above, Finding of Fact No. 11 supra, upon completing Dr. Johansson’s functional restoration program in 2001 Claimant had a light to medium work capacity and was capable of full-time sedentary work in a computer-oriented office setting.
47. The medical statement that Dr. Manchester filed in conjunction with Claimant’s 2005 application for social security disability benefits described a far more limited work capacity. As of June 2005 Dr. Manchester estimated that Claimant could neither sit nor stand for more than two hours daily, and was incapable of full-time employment.
48. Notwithstanding this assessment, Claimant was able to resume at least part-time employment in 2010. Although his work as a substitute teacher was sporadic, when he was called in he was able to complete a full day. Similarly, Claimant demonstrated the ability to work regular part-time hours at his summer security guard job. Claimant did not present any credible evidence establishing that prior to December 17, 2010 his inability to work more hours at either job was due to any injury-related disability. It is equally possible that his hours were limited simply because his employers had no more to offer.
49. As noted above, Finding of Fact No. 37 supra, when Claimant’s symptoms worsened in December 2010 Dr. Manchester determined that he was totally disabled from working, an opinion he reiterated shortly before the formal hearing.
50. The evidence does not reveal the specific basis for Dr. Manchester’s opinion as to Claimant’s work capacity, either in 2005, 2010 or currently. It is largely at odds with the capacity he himself demonstrated in the months prior to December 2010. Claimant has not undergone any formal functional capacity testing since completing Dr. Johansson’s program in 2001, more than ten years ago. Lacking objective data as support, I must question Dr. Manchester’s conclusions.
51. Based both on his January 2012 independent medical examination and on Claimant’s description of his daily living activities, Dr. Backus determined that he is capable of sustaining full-time sedentary to light work. As with Dr. Manchester’s opinion, I would have more confidence in Dr. Backus’ conclusions were they supported by formal functional capacity testing. Nevertheless, based both on Dr. Backus’ analysis and on my own observations of Claimant as a pro se litigant, I find it likely that he currently has at least a part-time sedentary work capacity.
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(d) Claimant’s Earning Capacity
52. Fran Plaisted, a certified vocational rehabilitation counselor, offered her expert opinion as to Claimant’s earning capacity in the years since his February 2000 work injury. Ms. Plaisted is a fellow of the American Board of Vocational Experts. In formulating her opinion, she interviewed Claimant and reviewed his medical and vocational history.
53. Ms. Plaisted’s analysis focused primarily on what Claimant’s vocational rehabilitation options might have been had he not chosen to pursue self-employment. Generally, she explored two alternative paths – one using his existing skills, training and experience, the other assuming some level of academic retraining. In both instances, she assumed a full-time sedentary to light work capacity, in accordance with Dr. Backus’ opinion.
54. In Ms. Plaisted’s opinion, as a successful business owner for more than 15 years prior to his injury, Claimant has extensive experience in sales and management. These transferable skills qualify him for employment as a sales representative or manager, with an average annual salary in northern Vermont in the $55,000 to $75,000 range.
55. Alternatively, Claimant could have combined his undergraduate focus on engineering with his extensive experience in electrical installation to seek either a bachelor’s or master’s degree in electrical engineering. The costs associated with this plan would have been largely covered by the $100,000 vocational rehabilitation settlement he received, and would have yielded a current earning capacity ranging from $71,000 to $95,000 annually.
56. With these vocational alternatives in mind, Ms. Plaisted concluded that neither of the jobs Claimant held in 2010 accurately reflected his actual earning capacity. Notwithstanding his injury-related physical limitations, in her opinion Claimant was underemployed as both a substitute teacher and as a summer security guard. Even assuming that Claimant might be capable of only part-time as opposed to full-time sedentary work, I find this analysis credible.
Mileage Reimbursement
57. By letter dated January 12, 2012 Claimant provided a detailed accounting of his claim for mileage reimbursement to both the Department and to Defendant. For travel to and from doctor’s appointments and in accordance with Workers’ Compensation Rule 12.2100, Claimant claimed a total of $464.92 in mileage charges incurred between March and September 2005, a total of $159.76 in charges incurred between August 29, 2006 and October 17, 2006, and a total of $402.14 in charges incurred from December 17, 2010 through December 14, 2011.
58. Defendant has objected to the 2005 and 2006 charges on the grounds that they are barred by the applicable statute of limitations.
CONCLUSIONS OF LAW:
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1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
Causal Relationship
2. The first disputed issue in this claim is whether Claimant’s cervical symptoms and need for treatment since December 2010 are causally related to his compensable February 2000 work injury. This is a medical question, upon which the parties presented conflicting expert opinions. In such situations, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. I conclude here that Dr. Manchester’s opinion as to the causal relationship between Claimant’s original injury and the ongoing disc degeneration in his cervical spine is more credible than Dr. Backus’. As his primary care provider for many years, Dr. Manchester has been well positioned to observe the progression of Claimant’s cervical condition over time. His causation theory – that the work injury caused a C6-7 disc herniation, which in turn accelerated the growth of bone spurs and degeneration at adjacent levels – is essentially the same one that Dr. Phillips previously espoused as the explanation for Claimant’s worsening symptoms in 2003. For the same reasons that led the commissioner to accept Dr. Phillips’ analysis as objectively supported and credible in 2006, I accept Dr. Manchester’s opinion as persuasive here.
4. Had Dr. Backus propounded a causation theory that effectively distinguished Claimant’s current condition without denying either the injury Defendant accepted in 2001 or the one the commissioner found compensable in 2006, I might view his opinion more favorably. Instead, his analysis relies at its core on the assumption that Claimant’s February 2000 work injury was a soft tissue strain that neither caused nor accelerated any disc herniation or disease. This assumption is at odds with Defendant’s own conduct dating back at least to 2001, when it paid permanency benefits for what Dr. Johansson diagnosed as a work-related cervical disc herniation. It also is at odds with the commissioner’s determination in 2006 that the work injury had accelerated Claimant’s degenerative disc disease. The time has long since passed for Defendant to proffer an entirely new explanation for what is now a twelve-year-old injury. See, e.g., Coronis v. Granger Northern, Inc., Opinion No. 16-10WC (April 27, 2010). For that reason, I reject Dr. Backus’ opinion as unpersuasive.
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5. I conclude that Claimant has sustained his burden of proving that, as was the case in 2003, his worsened cervical condition in 2010 was caused or accelerated at least in part by his February 2000 work injury and is therefore compensable.
Temporary Total Disability
6. Having concluded that Claimant’s worsened cervical symptoms since December 17, 2010 are causally related to his original injury, I next consider his claim for temporary total disability benefits.
7. Temporary disability benefits are only payable for so long as the medical recovery process is ongoing. Bishop v. Town of Barre, 140 Vt. 564, 571 (1982). Once an injured worker reaches an end medical result, his or her entitlement to temporary disability benefits ends, and the focus shifts instead to consideration of permanent disability. Id.
8. End medical result is defined as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. The fact that some treatments, such as pain medications, physical therapy or chiropractic manipulations, may continue to provide palliative symptom relief does not negate a finding of end medical result so long as the underlying condition itself remains unlikely to improve. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). This is particularly true in cases involving chronic pain, where the injury itself has become stable even though the pain it precipitates may continue to wax and wane over time. See 4 Lex K. Larson, Larson’s Workers’ Compensation §80.03[3] (Matthew Bender, Rev. Ed.), cited with approval in Coburn, supra; see also Workers’ Compensation Rule 2.1310 (defining palliative care). Were the rule otherwise, an end medical result might never be possible in such cases.
9. Considering these concepts in the context of the current claim, the question is whether the treatment Claimant has received since December 2010 is properly characterized as palliative or curative. If the latter, then he cannot be deemed to be at end medical result until he completes his current course of treatment, and in the meantime temporary disability benefits must be reinstated. If the former, then he remains at end medical result and is therefore not entitled to additional temporary disability benefits. Coburn, supra at 532.
10. Aside from a brief course of physical therapy, the goal of the treatments at issue here were first, to re-evaluate Claimant’s surgical options, and second, to restore some degree of lost function through multidisciplinary rehabilitation. As to the first, I conclude that for two new surgeons to essentially reiterate the same risk-benefit analysis that numerous equally qualified surgeons had stated before does not rise to the level of curative treatment necessary to negate end medical result.
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11. As for multidisciplinary rehabilitation, I am aware of other cases in which treatments directed at improving a claimant’s function have been held to negate a finding of end medical result, even though the underlying medical condition itself may have become stable. See, e.g., Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009). Were this Claimant’s first course of such treatment, I might view his situation in the same light. But the fact is Claimant has traveled this road before, and realized only temporarily increased function as a result. Under these particular circumstances, I conclude that for him to undergo another course of functional restoration-type treatment represents palliative, not curative, care.
12. I conclude that notwithstanding the treatments he has undergone since December 17, 2010 Claimant has remained at end medical result. Therefore, he is not entitled to temporary disability benefits for any period of time since that date.
Average Weekly Wage for Subsequent Periods of Disability
13. It is possible that Claimant might become entitled to temporary total disability benefits at some future date, for example, if ultimately he elects to undergo surgery necessitated by his original injury. For that reason, I next consider how his average weekly wage for a subsequent period of disability should be calculated.
14. According to 21 V.S.A. §650(c), when an injured worker’s temporary disability occurs in separate intervals rather than as one continuous period, the applicable compensation rate must be adjusted “to reflect any increases in wages or benefits prevailing at that time.” Historically the Department has interpreted this language to mandate that a claimant’s compensation rate can only be adjusted upward, that is, when his or her wages have increased since a prior period of disability, but never downward, that is, to reflect a decrease in wages during the intervening period. See, e.g., Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
15. More recently, the commissioner has differentiated between situations where a claimant’s decreased wages are shown to have resulted from his or her work injury and those where they are due instead to personal choices or economic factors. See, e.g., Plante v. State of Vermont Agency of Transportation, Opinion No. 24-12WC (September 14, 2012); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). Where the work injury itself accounts for a subsequent reduction in earnings, the average weekly wage for a subsequent period of disability should reflect the earlier, higher wages. Id. This is in keeping with the spirit of workers’ compensation – to provide wage replacement benefits that compensate fully for an injured worker’s diminished earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962). But where the reduced earnings are due to other, unrelated circumstances, using the earlier wages would amount to wage enhancement, not wage replacement, and a windfall not envisioned by the statute.
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16. I acknowledge here that as a result of his original injury Claimant was unable to resume his prior work activities, for which he had been highly compensated. He asserts that it is because of his injury-related functional limitations that he has been unable to find and maintain similarly lucrative employment since then. I disagree. Claimant himself chose the career path upon which he embarked following his injury, one that his treating physician declared him physically capable of performing. That the e-commerce venture he pursued ultimately failed was a consequence of business and financial limitations, not physical or functional ones. Thus, I conclude that the diminution in Claimant’s wages during the time that he was pursuing his e-commerce business was due to non-injury-related factors.
17. It is mostly pointless to engage in a game of “what might have been” had Claimant either availed himself of different vocational rehabilitation resources or applied his settlement monies differently. Suffice it to say, by taking the path that he did, from an average weekly wage perspective I conclude that Claimant has severed the causal link between his current earning capacity and his work injury, such that his pre-injury wages are no longer relevant to his average weekly wage calculation.
Mileage Reimbursement
18. Last, I consider Claimant’s claim for mileage reimbursement. At the time of Claimant’s injury, the applicable statute of limitations was six years. 21 V.S.A. §660(a).3 As Claimant first specified his mileage reimbursement claim on January 12, 2012, any mileage expenses that were incurred more than six years prior to that date are now time barred.
19. I conclude that the mileage expenses Claimant incurred in 2005 are now time barred. Those incurred in 2006 and 2010, totaling $561.90, should be applied against the credit Defendant previously was awarded in Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), affirmed, Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term, 2011).
3 The statute was amended in 2004 to reduce the limitations period to three years. As a substantive amendment, the new limitations period cannot be applied to already pending injury claims. Myott v. Myott, 149 Vt. 573, 575-76 (1988). Beyond that, by its own terms the amended statute mandated that the shorter limitations period “not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim.” For these reasons, I conclude that the limitations period applicable to Claimant’s mileage claim is six years, as dictated by the pre-amendment statute.
16
ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s claim for temporary total disability benefits retroactive to December 17, 2010 is hereby DENIED;
2. Defendant is hereby ORDERED to offset its previously awarded credit by a total of $561.90 in mileage expenses incurred through December 14, 2011.
DATED at Montpelier, Vermont this 15th day of October 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Curtis Smiley v. State of Vermont (June 3, 2013)

Categories: Workers' Compensation Hearing DecisionTags: , , , Author:

Curtis Smiley v. State of Vermont (June 3, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Curtis Smiley Opinion No. 15-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
For: Anne M. Noonan
Commissioner
State File No. J-15114
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s claim for permanent partial disability benefits referable to his
January 29, 1996 compensable work injury barred by the applicable statute of
limitations?
2. If yes, is Defendant barred from asserting the defense?
EXHIBITS:
Defendant’s Exhibit A: Dr. Thatcher medical record, July 8, 1996
Defendant’s Exhibit B: Dr. Backus report, January 20, 2011
Defendant’s Exhibit C : Dr. White report, March 24, 2011
Defendant’s Exhibit D: Case note, March 6, 1996
Defendant’s Exhibit E: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 1: Dr. Backus report, January 20, 2011
Claimant’s Exhibit 2: Workers’ Compensation Rule 18 (effective May 15, 1996)
Claimant’s Exhibit 3: Dr. Thatcher medical record, July 8, 1996
2
FINDINGS OF FACT:
The following facts are undisputed:
1. This case arises out of an accepted work injury that occurred on January 29, 1996. See
Smiley v. State of Vermont, Opinion No. 12-12WC (April 15, 2012), and exhibits
admitted therein.
2. Following a course of medical treatment with Dr. Thatcher, by July 8, 1996 Claimant had
returned to work, and overall appeared to be doing quite well. He declined physical
therapy for his lingering symptoms. Dr. Thatcher anticipated that these would continue
to improve over time, and therefore advised him to return for treatment only as needed.
3. There was no further activity on Claimant’s claim file for more than fourteen years, until
October 21, 2010. On that date, Claimant’s attorney entered his appearance.
Subsequently, the attorney advised Defendant that Claimant was pursuing a claim for
permanent partial disability benefits referable to his 1996 work injury.
4. In November and December 2010, Claimant’s attorney requested that Defendant
schedule a permanency evaluation. In response, Defendant scheduled an independent
medical evaluation with Dr. Backus, which Claimant attended on January 20, 2011.
5. Dr. Backus determined that Claimant had suffered a one percent whole person permanent
impairment referable to his 1996 work injury. Following an evaluation in March 2011,
Claimant’s own medical expert, Dr. White, also calculated his ratable impairment at one
percent.
6. Dr. Backus determined that Claimant probably had reached an end medical result for his
work-related injury “back in 1996.” Dr. White as well determined that Claimant had
reached an end medical result, but did not specify a date when this likely occurred.
7. On May 16, 2011 Defendant filed a Denial of Workers’ Compensation Benefits (Form 2),
in which it denied Claimant’s demand that permanency benefits be paid on the grounds
that his claim was time-barred.
8. On June 3, 2011 Claimant filed a Notice and Application for Hearing (Form 6) as to
whether he was entitled to permanent partial disability benefits referable to his 1996 work
injury.
9. On September 7, 2011 Defendant’s counsel filed its answer, which pled the affirmative
defense of statute of limitations.
3
10. Claimant initially argued that Defendant had waived its right to assert a statute of
limitations defense by scheduling Dr. Backus’ January 2011 permanency evaluation. In a
ruling dated April 15, 2012 the Commissioner determined that Defendant’s statute of
limitations defense was still viable. Smiley v. State of Vermont, Opinion No. 12-12WC
(April 15, 2012).
11. The remaining issue is whether Claimant’s claim for permanent partial disability benefits
is in fact time-barred, and if so, whether Defendant should be barred from asserting the
defense.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). Summary judgment is appropriate only when the facts in question are clear,
undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979). That is the case
here.
2. The legal issues raised by this claim are similar to those that the Vermont Supreme Court
has considered in Longe v. Boise Cascade Corp., 171 Vt. 214 (2000), and Sanz v.
Douglas Collins Construction, 2006 VT 102. As in Longe, Defendant argues that
Claimant’s claim for permanency benefits is barred by the applicable statute of
limitations, because he failed to assert it within six years after reaching an end medical
result for his work-related injury.1 Also as in Longe, Claimant argues in response that
Defendant should be barred from asserting the statute of limitations as a defense because
it owed, and breached, a legal duty to investigate whether any permanent impairment had
been suffered. As in Sanz, the question whether such a duty existed depends on whether
an amended rule should be applied retroactively to govern the parties’ rights and
responsibilities in this case.
Statute of Limitations
3. According to Vermont’s workers’ compensation statute, the controlling date for
determining when the applicable statute of limitations begins to run is the “date of
injury.” 21 V.S.A. §660(a). That phrase has long been interpreted to mean “the point in
time when an injury becomes reasonably discoverable and apparent.” Longe, supra at
219, citing Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 447 (1985).
1 The statute of limitations for initiating a claim for workers’ compensation benefits has since been amended, and is
now three years. 21 V.S.A. §660(a).
4
4. Determining when an injury has become “reasonably discoverable and apparent” is a
question of fact that necessarily varies from case to case. Kraby v. Vermont Telephone
Co., 2004 VT 120, ¶6; see also, Lillicrap v. Martin, 156 Vt. 165, 172 (1989) (applying
reasonable discovery rule in medical malpractice context). Notably, a litigant “need not
have an airtight case before the limitations period begins to run,” but merely “should
have obtained information sufficient to put a reasonable person on notice that a particular
defendant may have been liable” for his or her injuries. Rodrigue v. Valco Enterprises,
169 Vt. 539, 540-41 (1999) (applying reasonable discovery rule in dram shop action).
The limitations period itself affords ample opportunity subsequently to flesh out the facts
and pursue available remedies. Id.
5. In the context of a claim for permanent partial disability benefits, the reasonable
discovery rule typically requires that the statute of limitations not begin to run until the
claimant reaches an end medical result. Kraby, supra; Longe, supra. “The claim period
can only begin to run when there is in fact something to claim,” Hartman, supra at 446.
Not every work-related injury justifies permanency compensation. Until treatment
concludes, the ongoing medical recovery process still might yield a full recovery with no
permanent impairment at all. Richardson v. Regular Veteran’s Association Post #514,
Opinion No. 04-11WC (February 16, 2011).
6. Applying these rules to the current claim, and considering the evidence in the light most
favorable to Claimant as the non-moving party, State v. Delaney, 157 Vt. 247, 252
(1991), I conclude as a matter of law that the statute of limitations on Claimant’s claim
for permanent partial disability benefits began to run on or about July 8, 1996. This was
the date on which his treating physician released him from active care, with instructions
to follow up only as needed. By this time Claimant had returned to work and there is no
evidence that he ever considered resuming treatment subsequently. The logical inference
is that both Claimant and his doctor appropriately perceived that treatment for the workrelated
injury had concluded.
7. What expert evidence there is also establishes July 1996 as the most likely end medical
result date. With no record of any subsequent treatment, Dr. Backus’ conclusion that
Claimant probably had reached the point of maximum medical improvement “back in
1996” likely refers to that timeframe. That his opinion necessarily was retrospective in
nature does not in any way disqualify it. See, e.g., Kraby, supra (treating surgeon’s
retrospective declaration of end medical result accepted as determinative).
5
8. Claimant argues that because the determination of end medical result is a medical opinion
requiring expert evidence, and because he is not an expert, he cannot be charged with
knowledge of that event sufficient to trigger the statute of limitations until an expert so
declared it. I disagree. It is true that medical expert testimony is required to establish
those elements of a workers’ compensation claim about which “a layman could have had
no well-grounded opinion,” most notably the causal relationship between an injured
worker’s employment and his or her injury. Lapan v. Berno’s, Inc., 137 Vt. 393, 395
(1979). It does not necessarily follow that a lay person can never be deemed to know
whether he or she has concluded treatment, either with or without lingering deficits or
dysfunction. Such matters are not so far beyond “the untutored understanding of the
average layman” that they are only reasonably discoverable with an expert’s assistance.
See Lillicrap, supra at 174 (noting that recipient of health care services may be aware of
fact of a “disability or dysfunction,” though admittedly not of its cause); see also, Bruno
v. Directech Holding Co., Opinion No. 18-10WC (May 19, 2010) (extension of end
medical result date not justified where claimant had failed to actively treat during period
in question).
9. As the court explained in Hartman, supra at 447, the issue raised by the reasonable
discovery standard is simply “whether the claimant had any reasonable occasion to file a
claim sooner than he did.” Though this is ordinarily a question of fact, the evidence here
is so clear as to render it a matter of law. Claimant probably would not have described
his situation in these terms, but as of July 1996 he knew, or should have known, that he
had reached an end medical result, and that whatever deficits he was left with were likely
permanent in nature. He then had six years within which to investigate and pursue his
legal remedies. Having failed to do so, I conclude that his claim for permanent partial
disability benefits is now time-barred.
Duty to Investigate
10. Notwithstanding that Claimant’s claim for permanency benefits is time-barred, Defendant
still might be precluded from asserting the statute of limitations as a defense if it is shown
to have had, and breached, a duty to investigate the extent of his permanent impairment
in a more seasonable fashion. Such a duty can be imposed either by way of an applicable
statute or rule, or by operation of the doctrines of equitable estoppel or equitable tolling.
Longe, supra at 223.
(a) The 1996 Amendments to Workers’ Compensation Rule 18
11. In 1983, when the injury under consideration in Longe occurred, neither the workers’
compensation statute nor the applicable rules imposed an affirmative duty on an
employer to investigate whether an injured worker had suffered a permanent impairment
as a result of a work-related injury. Longe, supra at 222. Nor was there any duty owed
to notify the worker of his or her right to permanency benefits. Id. at 223.
6
12. Effective May 15, 1996 the Department amended Workers’ Compensation Rule 18 and
imposed upon employers a duty to investigate the extent of an injured worker’s
permanent impairment. As amended, the rule now states:
The employer (insurer) shall take action necessary to determine whether
an employee has any permanent impairment as a result of the work injury
at such time as the employee reaches a medical end result.
. . .
A determination as to whether the claimant has any permanent impairment
shall be made within 45 days of filing the notice of termination [of
temporary disability compensation].
Workers’ Compensation Rules 18.1100 and 18.1200 (formerly Rules 18(a)(1) and
18(a)(2)).
13. Had Claimant’s work injury occurred after May 15, 1996, the effective date of these
amendments, there would be no reason to question their applicability to his pending claim
for permanency benefits. The injury at issue here occurred some five months earlier,
however, in January 1996. Under these circumstances, the question arises whether the
amendments properly should control the parties’ respective rights and responsibilities in
this case.
14. Vermont law provides that the amendment of a statutory provision “shall not affect any
right, privilege, obligation or liability acquired, accrued or incurred” prior to the
amendment’s effective date. 1 V.S.A. §214(b)(2); Myott v. Myott, 149 Vt. 573, 575-76
(1988). Phrased alternatively, this general rule of statutory construction prohibits
legislative amendments that affect substantive rights and responsibilities from being
applied retroactively. In contrast, amendments that are solely procedural can be given
retroactive effect, and therefore can be applied to claims that already are pending at the
time the new statute becomes effective. Id.
15. The Supreme Court has applied these well-established rules specifically to workers’
compensation claims. Citing to 1 V.S.A. §214, in Montgomery v. Brinver Corp., 142 Vt.
461, 463 (1983), the court declared, “The right to compensation for an injury under the
Workmen’s Compensation Act is governed by the law in force at the time of occurrence
of such injury.” The date of an employee’s work-related injury is thus the controlling
date for determining whether a substantive amendment to the statute will apply.
7
16. The court clarified what constitutes the “right to compensation” for the purposes of
determining whether a statutory amendment is substantive or procedural in Sanz, supra at
¶6. A post-injury amendment that “fundamentally changes the right to benefits or the
obligation to pay them” is substantive, and cannot be applied retroactively. An
amendment that does not fundamentally change pre-existing rights and responsibilities is
procedural, and can be applied in a pending action.2 Id.
17. The claimant in Sanz suffered a work-related injury in 1998, for which he reached an end
medical result in 2003. After some dispute regarding the extent of his permanent
impairment, in 2004 the employer accepted his claim for permanent total disability
benefits. However, it refused to honor his request that benefits be paid in a lump sum
rather than weekly. Relying on a 2000 amendment to the statute, which empowered the
commissioner to order payment in a lump sum even without the employer’s consent, the
claimant sought redress, first before the commissioner and then before the Supreme
Court. The issue was whether the amendment to the statute, which was enacted after the
claimant’s injury occurred but before his claim for permanent total disability benefits
accrued, properly governed his case.
18. Claimant premised his assertion that the amended statute applied to his circumstance on
two grounds. First, he argued that because the employer’s obligation to pay permanency
benefits did not arise until he reached an end medical result in 2003, the law in effect as
of that date should control. The court disagreed. Relying on the rule enunciated in
Montgomery, supra, it held that regardless of when a statutorily defined benefit is
required to be paid, the right to receive it – “the right to compensation” – is still acquired
at the time of the injury. Sanz, supra at ¶11. By the same token, the court continued,
“the obligation to pay those benefits is also governed by the law in force at the time of
injury.” Id.
19. Next, the claimant in Sanz argued that because the amendment in question altered only
the method by which an employer might be obligated to pay permanency benefits, but not
the obligation to pay benefits itself, it was procedural rather than substantive in nature,
and therefore could be applied retroactively to his claim. The court rejected this
argument as well. By allowing the commissioner to order an employer to discharge its
payment obligation all at once rather than gradually, it reasoned, the amendment would
“fundamentally alter” the employer’s obligation. Id. at ¶13. Just as significantly, by
awarding claimants the opportunity to use or invest a large up-front payment, the
amendment would “fundamentally change” the benefit owed them. Id. Thus, because
the amendment substantially affected both the claimant’s right to compensation and the
employer’s obligation to pay it, the court concluded that it was substantive in nature. As
a consequence, it could not be applied retroactively to injuries that predated its
enactment. Id.
2 The same substantive-versus-procedural analysis applies to amendments to the administrative rules that govern
workers’ compensation proceedings. Workers’ Compensation Rule 46.1000; see, e.g., Taft v. Central Vermont
Public Service Corp., Opinion No. 03-11WC (January 25, 2011).
8
20. Claimant here makes essentially the same arguments as were asserted in Sanz. First, he
argues that although the amendments to Rule 18 were not enacted until after his work
injury occurred, nevertheless they should govern his claim for permanency benefits
because they became effective before he reached an end medical result. The court
specifically rejected this argument in Sanz, supra at ¶11, and so I do as well.
21. Second, Claimant asserts that the amendments to Rule 18 can be applied retroactively,
because they did not alter any of the parties’ fundamental rights or obligations and
therefore are appropriately characterized as procedural rather than substantive in nature.
Again, I disagree. As the result in Longe demonstrated, both the duty to pay permanency
benefits and the duty to investigate whether such benefits are payable go to the heart of
the responsibilities owed by an employer to an injured worker. By imposing the latter
obligation on employers where clearly, according to the court in Longe, none had existed
before, the amended rule fundamentally altered each party’s respective rights and
responsibilities. As a consequence, the amendments can only be applied prospectively, to
claims involving injuries that occurred after their effective date. That is not the case here.
(b) Equitable Estoppel and Equitable Tolling
22. Having concluded that the duty to investigate imposed by the amended Rule 18 did not
apply to Defendant’s conduct here, the only other basis for excusing Claimant’s failure to
pursue his permanency claim in a timely manner is if the circumstances justify invoking
the doctrines of equitable estoppel or equitable tolling. Longe, supra at 226. The
undisputed facts do not support applying either doctrine.
23. The doctrine of equitable estoppel promotes fair dealing and good faith “by preventing
‘one party from asserting rights which may have existed against another party who in
good faith has changed his or her position in reliance upon earlier representations.’”
Beecher v. Stratton Corp., 170 Vt. 137, 139 (1990), quoting Fisher v. Poole, 142 Vt. 162,
168 (1982). At the doctrine’s core is the concept that through its conduct, the party
against whom estoppel is asserted must have intended that the other party would be
misled to his or her detriment. Id.; Longe, supra at 224.
24. Absent either a promise or some degree of fraudulent misrepresentation or concealment,
generally the doctrine of equitable estoppel will not bar a defendant from asserting the
statute of limitations as a defense to another party’s claim. Beecher, supra. In the
workers’ compensation context, estoppel applies “when the conduct or statements of an
employer or its representatives lull the employee into a false sense of security, thereby
causing the employee to delay the assertion of his or her rights.” Freese v. Carl’s
Service, 375 N.W.2d 484, 487 (Minn. 1985), quoted in Longe, supra at 224.
25. The doctrine of equitable tolling has even more limited application. It is justified only
when either “‘(1) the defendant actively misled the plaintiff or prevented the plaintiff in
some extraordinary way from filing a timely lawsuit; or (2) the plaintiff timely raised the
precise claim in the wrong forum.’” Longe, supra at 224-225, quoting Beecher, supra at
143.
9
26. Claimant has failed to assert any facts here from which I might conclude that he was
misled to his detriment as a result of Defendant’s conduct. That he was unaware of his
right to seek permanency benefits is apparent from his own failure to act, but this is not
sufficient to establish estoppel. Longe, supra. What is required is that his failure must
have been induced in some way by Defendant’s intentional conduct. There is no
evidence whatsoever that this is what occurred.
27. Even considering the evidence in the light most favorable to Claimant, I conclude as a
matter of law that neither the doctrine of equitable estoppel nor that of equitable tolling
justifies barring Defendant from asserting the statute of limitations as a defense to
Claimant’s claim for permanency benefits.
Summary
28. “The burden is generally on the party seeking relief to take some affirmative action in
order to protect his or her rights.” Longe, supra at 225. If he or she fails to do so,
thereby letting the statute of limitations expire, then “absent a legal disability or
circumstances sufficient to invoke the doctrines of equitable estoppel or equitable tolling,
he has no right to relief.” Id. at 226. Claimant here did not take action until some years
after the statute of limitations on his claim for permanency benefits had expired. His
failure to do so is not excused by any neglect of duty on Defendant’s part, nor by
circumstances sufficient to justify equitable relief in his favor. As a matter of law, his
claim is time-barred.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for
permanent partial disability benefits referable to his January 29, 1996 work-related injury is
barred by the applicable statute of limitations and is therefore DENIED.
DATED at Montpelier, Vermont this 3rd day of June 2013.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

Dan Wirasnik v. WED Precast, Chester McLellan Trucking and New America Marketing

Categories: Workers' Compensation Hearing DecisionTags: , , Author:

Dan Wirasnik v. WED Precast, Chester McLellan Trucking and New America Marketing
(June 21, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dan Wirasnik Opinion No. 17-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
WED Precast, Chester McLellan For: Anne M. Noonan
Trucking and New America Commissioner
Marketing
State File No. Z-52882
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
James Dingley, Esq., for Claimant
Corina Shaffner-Fegard, Esq., for Defendant ARCH Insurance Co.
Jeffrey Spencer, Esq., for Defendant Cincinnati Insurance Co.
Keith Kasper, Esq., for Defendant New America Marketing, LLC.
ISSUES PRESENTED:
1. Did Defendant Chester McLellan Trucking waive its right to argue that Claimant
suffered a recurrence of his original work injury in May 2007?
2. Does the statute of limitations bar a claim against Defendant New America
Marketing?
EXHIBITS:
Defendant WED Precast’s Exhibit 1: Provencher Affidavit, March 4, 2013
Defendant WED Precast’s Exhibit 2: Dr. Upton Independent Medical Evaluation, January
23, 2008
Defendant WED Precast’s Exhibit 3: Form 2, August 27, 2007
Defendant WED Precast’s Exhibit 4: Interim Order, October 16, 2007
Defendant Wed Precast’s Exhibit 5: Letter from Workers’ Compensation Specialist to
Attorneys Dingley and Shaffner-Fegard, January 7,
2008
Defendant WED Precast’s Exhibit 6: Defendant McLellan Trucking’s Form 27,
December 28, 2007
Defendant WED Precast’s Exhibit 7: Defendant McLellan Trucking’s Form 27, October
2008
2
Defendant WED Precast’s Exhibit 8: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
November 20, 2008
Defendant WED Precast’s Exhibit 9: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
August 9, 2011
Defendant WED Precast’s Exhibit 10: Email from Attorney Shaffner-Fegard to Workers’
Compensation Specialist, August 9, 2011
Defendant WED Precast’s Exhibit 11: Letter from Attorney Dingley to Workers’
Compensation Specialist, July 18, 2012
Defendant WED Precast’s Supplemental
Exhibit 1: Letter from Attorney Spencer to Workers’
Compensation Specialist, April 26, 2011
Defendant WED Precast’s Supplemental
Exhibit 2: Order to Arbitrate, October 10, 2008
Defendant McLellan Trucking’s
Exhibit A: Dr. Wieneke’s report, October 24, 2006
Defendant McLellan Trucking’s
Exhibit B: Defendant WED Precast’s Form 1, May 6, 2005
Defendant McLellan Trucking’s
Exhibit C: Form 22, February 7, 2007
Defendant McLellan Trucking’s
Exhibit D: Taconic Orthopedics’ office note, September 27,
2005
Defendant McLellan Trucking’s
Exhibit E: Defendant WED Precast’s Form 1, October 18,
2006
Defendant McLellan Trucking’s
Exhibit F: Letter from Claims Specialist to Dr. Block, May 26,
2006
Defendant McLellan Trucking’s
Exhibit G: Dr. Wieneke letter to adjuster, April 17, 2007
Defendant McLellan Trucking’s
Exhibit H: Taconic Orthopedics’ office note, July 3, 2007
Defendant McLellan Trucking’s
Exhibit I: Letter from Attorney Dingley to Workers’
Compensation Specialist, September 7, 2007
Defendant McLellan Trucking’s
Exhibit J: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
February 14, 2008
Defendant McLellan Trucking’s
Exhibit K: Letter from Workers’ Compensation Specialist to
Attorneys Dingley, Spencer and Shaffner-Fegard,
November 20, 2008
Defendant McLellan Trucking’s
Exhibit L: Claimant’s deposition, March 27, 2013
3
FINDINGS OF FACT:
For the purposes of these motions, the following facts are not disputed:
1. Claimant suffered a compensable low back injury on May 6, 2005 while working for
Defendant WED Precast. WED Precast accepted liability and paid workers’
compensation benefits accordingly.
2. Claimant’s employment was seasonal, as he was laid off during the winter months. He
did not return to WED Precast in the spring of 2007. In April 2007, Dr. Wieneke stated
that he had reached an end medical result for his May 2005 work injury. Dr. Wieneke
also stated that he could perform light duty work with no heavy truck driving. It is
unclear from the record what, if any, symptoms Claimant was still experiencing at this
point in time.
3. In May 2007 Claimant took a job with Defendant Chester McLellan Trucking (McLellan)
as a heavy truck driver. In August 2007, while driving his truck Claimant suffered
renewed symptoms in his low back.1 He did not file a claim for benefits against
McLellan and it is unclear from the record how WED Precast became aware of his
symptoms. Subsequently, however, WED Precast filed a Form 2 denial of benefits on the
grounds that Claimant had suffered an aggravation of his May 2005 work injury, such
that if any benefits were due McLellan was the employer responsible for paying them.
4. In response to WED Precast’s Form 2, McLellan filed its own denial of benefits in
September 2007, on the grounds that Claimant’s May 2007 episode of back pain was a
recurrence of his 2005 injury for which WED Precast remained responsible. Following
an informal conference, the Department issued an interim order requiring McLellan to
pay benefits, on the grounds that Claimant had suffered an aggravation, not a recurrence.
5. McLellan next filed a motion to reconsider the Department’s interim order, which was
denied. Subsequently, in December 2007 it filed a Form 27 discontinuance on end
medical result grounds. In January 2008 the Department rejected this action as well.
6. At McLellan’s request, in January 2008 Claimant underwent an independent medical
examination with Dr. Upton. Dr. Upton concluded that Claimant had reached an end
medical result for his most recent injury, which he characterized as an aggravation of a
pre-existing condition. Dr. Upton determined that Claimant had not suffered any
additional permanent impairment, and also that he was capable of light duty work. With
this opinion as support, the Department accepted McLellan’s Form 27 discontinuance.
1 Within days of this injury, Claimant voluntarily terminated his employment with McLellan because he could not
physically continue the work.
4
7. At McLellan’s request, in October 2008 the Department issued an order directing
McLellan and WED Precast to arbitration in order to resolve their aggravation/recurrence
dispute. While an arbitrator was chosen, no arbitration ever took place. In an April 2010
letter to both McLellan and WED Precast, the arbitrator closed his file “due to prolonged
inactivity.”
8. In October 2008 Claimant began working for New America Marketing (New America).
His tenure there lasted for only a few months. He left the job because the constant
standing caused significant low back pain.
9. In November 2008 McLellan filed a Form 2 denial of benefits relating to an October 21,
2008 injury. Claimant had not made a claim for benefits; however, he had sought
medical treatment. McLellan argued that any injury he suffered while working for New
America was either a new aggravation or a flare up, for which it was not responsible.
The Department agreed. In a November 2008 letter it directed Claimant to file a Form 5
Notice of Injury and Claim for Compensation with New America if he wished to pursue
benefits. He did not do so.
10. In March 2011 Claimant sought an interim order from the Department to require that one
of his three former employers pay medical benefits on account of his ongoing low back
pain. Following an informal conference, the Department ruled that it could not do so.
Specifically, it found that McLellan’s November 2008 denial remained reasonably
supported, and that the then-current record was insufficient to impose liability on either
WED Precast or New America.
11. In April 2011 McLellan’s attorney wrote a letter to the Department in which he advised
as follows: “As for the issue of arbitration, that should not be read as any waiver or [sic]
our position or somehow that it reverses the Commissioner’s findings in this matter.
[McLellan’s workers’ compensation insurance carrier] could have arbitrated to
potentially receive reimbursement of the benefits paid prior to the Commissioner’s
determination on November 20, 2008, however given the cost benefit it chose not to.”
(Emphasis supplied.)
12. On July 18, 2012 Claimant filed hearing requests against both WED Precast and
McLellan, as well as a Form 5 Notice of Injury and Claim for Compensation against New
America, in which he sought payment of ongoing medical benefits from his former
employers. This marked the first time he had made any formal claim for benefits against
New America.
13. In the course of pre-hearing discovery, Defendants deposed Claimant. Throughout his
deposition, he admitted that his memory for dates was not very accurate. When asked
about his time working for New America, he responded that he thought he had worked
there for three or four months, but used phases such as, “I’m not sure when I started for
them,” and “maybe” it was the spring of 2009 when he finished there.
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14. At one point during his deposition, New America’s attorney asked Claimant to describe
what work injury occurred on August 6, 2009. Claimant responded that that was when he
told his supervisor at New America that he could no longer work there. He finished the
project he was involved with and then left that employment.
15. According to correspondence from the Worker’s’ Compensation Specialist to the
attorneys for Claimant, WED Precast and McLellan, Claimant worked for New America
in October 2008. Assuming that his testimony as to the duration of his employment –
three or four months – was accurate, this would call into question whether the
conversation he recalled having with his supervisor in August 2009 actually occurred on
that date.
16. In August 2010 Claimant began driving a school bus for approximately 26 hours per
week. He continues to hold that position.
DISCUSSION:
1. Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Samplid Enterprises, Inc. v. First
Vermont Bank, 165 Vt. 22, 25 (1996). The nonmoving party is entitled to all reasonable
doubts and inferences. State v. Delaney, 157 Vt. 247, 242 (1991); Toys, Inc. v. F.M.
Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the
facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt.
425 (1979). It is unwarranted where the evidence is subject to conflicting interpretations,
regardless of the comparative plausibility of facts offered by either party or the likelihood
that one party or another might prevail at trial. Provost v. Fletcher Allen Health Care,
Inc., 2005 VT 115 at ¶15.
2. In this claim, both Defendant WED Precast and Defendant New America have moved for
summary judgment. WED Precast argues that summary judgment should be granted in
its favor against Defendant McLellan on the grounds that McLellan has waived its right
to argue that Claimant suffered a recurrence of his original work injury in May 2007.
Defendant New America argues that it is entitled to summary judgment because Claimant
failed to file a claim for benefits against it within the applicable statute of limitations.
Claimant did not file responses to either of these motions.
WED Precast’s Motion for Summary Judgment
3. McLellan argues that it did not waive its right to argue that Claimant suffered a
recurrence of his original work injury in the summer of 2007. It points to the fact that it
continued to copy WED Precast on correspondence over the years, as well as verbal
statements it made during informal conferences (in which WED Precast took part), as
affirmative evidence of its intent that WED Precast continue to be a party to any formal
hearing involving the question of liability for benefits due Claimant.
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4. A waiver is the voluntary relinquishment of a known right. To establish it, “there must
be shown an act or an omission on the part of the one charged with the waiver fairly
evidencing an intention permanently to surrender the right in question.” Holden &
Martin Lumber Co. v. Stuart, 118 Vt. 286, 289 (1954). A waiver can be express or
implied, but if it is the latter, “caution must be exercised both in proof and application.
The facts and circumstances relied upon must be unequivocal in character.” Id.
5. The facts here are unequivocal. As its own correspondence shows, McLellan chose not
to pursue arbitration against WED Precast in 2007 because in its analysis the costs
associated with doing so outweighed the potential benefits. It thus acted in such a way as
to voluntarily relinquish its right to establish that Claimant had suffered a recurrence in
August 2007 rather than an aggravation. Arbitration being the avenue that the
Department, in its discretion, had mandated for resolving that dispute, see 21 V.S.A.
§662(e), once McLellan abandoned that path it waived its right to contest responsibility
as against WED Precast. For that reason, WED Precast is entitled to summary judgment
against McLellan.
New America’s Motion for Summary Judgment
6. McLellan argues that a genuine issue of material fact exists as to the date when
Claimant’s episode of low back pain while employed by New America occurred, and for
that reason New America’s request for summary judgment on statute of limitations
grounds must be denied. Specifically, McLellan points to Claimant’s deposition
testimony, in which he asserted that he told his supervisor about his back pain on August
6, 2009. If true, this would place that event well within the three-year statute of
limitations applicable to a work-related injury claim against New America.
7. Clearly the evidence is somewhat conflicting as to when Claimant actually worked for
New America. Whether Claimant’s assertion that he was still working there on August 6,
2009 will stand up to the rigors of cross-examination at formal hearing is not yet at issue.
Rather, for the purposes of ruling on a motion for summary judgment, “all allegations
made in opposition to summary judgment are regarded as true if supported by affidavits
or other evidence.” Town of Victory v. State of Vermont, 174 Vt. 539, 540 (2002).
8. Thus, I conclude that Claimant’s testimony, for purposes of this motion, places the date
of his claimed injury at New America on August 6, 2009. Thus, when he filed his Form
5 Notice of Injury and Claim for Compensation against New America on July 18, 2012,
that filing was within the three year statute of limitations. Therefore, I conclude that New
America’s motion for summary judgment on statute of limitations grounds must be
denied.
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ORDER:
Defendant WED Precast’s Motion for Summary Judgment against Defendant Chester McLellan
Trucking is hereby GRANTED. Defendant New America Marketing’s Motion for Summary
Judgment is hereby DENIED.
Dated at Montpelier, Vermont, this 21st day of June 2013.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§ 670, 672.

Christa Hoisington v. Ingersoll Electric (December 28, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , , , , Author:

Christa Hoisington v. Ingersoll Electric (December 28, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christa Hoisington Opinion No. 52-09WC
By: Phyllis Phillips, Esq.
v. Hearing Officer
Ingersoll Electric For: Patricia Moulton Powden
Commissioner
State File No. M-22917
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
ATTORNEYS:
Heidi Groff, Esq., for Claimant
John Valente, Esq. and Kelly Smith, Esq., for Defendant
ISSUE:
Defendant moves for summary judgment on the grounds that Claimant’s request for workers’ compensation benefits causally related to the cervical injury she allegedly suffered in the context of her May 13, 1999 work injury is time barred under 21 V.S.A. §660.
FINDINGS OF FACT:
Considering the evidence in the light most favorable to the non-moving party, Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990), and also taking judicial notice of all relevant forms and correspondence in the Department’s claim file, I find the following facts:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. In 1999 Claimant worked as an electrician for Defendant.
3. On May 13, 1999 Claimant fell while climbing over a large pipe. She suffered a right shoulder injury and allegedly injured her neck as well.
4. At the time of her work injury Claimant had a prior medical history of cervical complaints, including radicular symptoms in her right arm and evidence of degenerative disc disease in her cervical spine. Claimant underwent cervical disc surgery in 1988. Following that, she successfully returned to work without restrictions. According to Dr. Turek, there is no record that she treated medically for any cervical complaints between 1989 and 1999.
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5. Defendant accepted Claimant’s right shoulder injury as compensable and began paying workers’ compensation benefits accordingly.
6. Within days of her work injury Claimant was complaining of both right shoulder pain and radiating cervical symptoms as well.
7. Claimant underwent shoulder surgery in September 1999. Her shoulder range of motion subsequently improved, but her right arm numbness continued.
8. In December 1999 the Department approved an Agreement for Temporary Total Disability Compensation (Form 21), which reflected that Claimant had injured her right shoulder as a result of the May 1999 accident at work. The Agreement does not mention any cervical injury causally related to that event.
9. On September 11, 2000 the Department approved a Notice of Intention to Discontinue Payments (Form 27) on the grounds that Claimant had reached an end medical result for her right shoulder injury.
10. On October 31, 2000 the Department approved an Agreement for Permanent Partial Disability Compensation (Form 22) in which the parties agreed that in accordance with Dr. Davignon’s determination Claimant had suffered a 16% whole person impairment referable to her right shoulder injury.
11. Claimant did not return to work, and continued to treat for shoulder instability, cervical pain and radicular symptoms. She underwent two additional shoulder surgeries, the first in January 2001 and the second in February 2002, but still complained of severe shoulder and neck pain. Two of her treating physicians, Drs. Zweber (practicing physical medicine/rehabilitation) and Shafritz (an orthopedic surgeon) commented on the complicated nature of her problem. Her symptoms seemed to implicate both (a) a neurogenic component suggestive of cervical disc disease; and (b) muscular instability in her shoulder.
12. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Backus on August 19, 2002. Her complaints at that time included right shoulder, neck and arm pain, and headaches. According to Dr. Backus, Claimant acknowledged her prior history of cervical pain, but reported that until the May 1999 work injury her neck had been doing well, with no symptoms similar to those she now was experiencing.
13. Dr. Backus’ exam focused on Claimant’s right shoulder and upper extremity. He determined that she had reached an end medical result and rated her with a 17% whole person permanent impairment. With that opinion as support, on October 4, 2002 the Department once again approved Defendant’s termination of temporary disability benefits.
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14. On December 19, 2002 Defendant filed a Denial of Workers’ Compensation Benefits (Form 2) with the Department, in which it denied responsibility for treatment of Claimant’s cervical disc disease as having been neither caused nor aggravated by her work injury. On January 10, 2003 the Department notified Claimant’s attorney1 of the denial and advised him to file a written request for hearing if he wished to appeal it.
15. Responding to a January 25, 2003 letter from Claimant’s attorney, her treating orthopedic surgeon, Dr. Monsey, stated on January 30, 2003 that Claimant’s cervical disc disease “has been a slowly progressive condition which was asymptomatic until her fall at work in May of 1999.” Dr. Monsey concluded that Claimant’s work injury “exacerbated a pre-existing condition.”
16. Dr. Monsey performed cervical fusion surgery on February 11, 2003. Unfortunately, complications arose and Claimant had to undergo a second cervical surgery in May 2003. Defendant paid for both surgeries.
17. On May 13, 2003 Claimant’s attorney corresponded with the Department as follows:
In reviewing this file recently, I noted your letter of 10 January 03. The purpose of this letter is simply to advise you that upon closer scrutiny of the medical evidence, the carrier fully accepted the cervical injury and authorized the cervical fusion surgery, which took place on 11 February 03. Implicit in this action, obviously, is the acknowledgment that no end result has as yet been reached.
There are no disputes in this matter, but I felt the Department should be updated as to where the case is at. A second cervical surgery took place last week.
The letter, which was copied to Defendant’s adjuster, also included a brief summary of dependency benefits that still were due for the period from October 10, 2002 (when Defendant previously had terminated temporary disability benefits, see Finding No. 13 above, and began advancing permanency instead) until November 17, 2002 (when Claimant’s dependent child turned twenty-one).
18. At Defendant’s request, in February 2004 Claimant underwent an independent medical evaluation with Dr. Peterson. Dr. Peterson stated that it was “clear from the records that [Claimant] suffered injuries to her right shoulder and her neck” as a result of the May 1999 work injury. Dr. Peterson determined that she had reached an end medical result for both injuries. He rated her with a 14% whole person impairment referable to her shoulder injury and a 32% whole person impairment referable to her neck injury, for a combined total whole person impairment of 42%.
1 In November 2008 Claimant retained new counsel. For the purposes of these findings, references to her attorney are to her prior counsel, not her current one.
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19. At Defendant’s request, Dr. Brigham performed a review of both Dr. Backus’ and Dr. Peterson’s impairment ratings in July 2004. For the purposes of that review Dr. Brigham assumed that Claimant’s cervical condition was in fact causally related to her May 1999 work injury. Dr. Brigham concluded that Dr. Peterson’s impairment rating was essentially correct, but that he should have apportioned away that aspect of the cervical impairment related to Claimant’s 1988 cervical disc surgery. With that in mind, Dr. Brigham reduced the total whole person impairment attributable to Claimant’s May 1999 work injury to 24%.
20. In October 2004 Defendant asked Dr. Brigham to conduct another review of Claimant’s medical records, this time with an eye towards determining whether in his opinion her cervical condition had been caused or aggravated by the May 1999 work injury. Dr. Brigham concluded that the May 1999 event neither caused any new cervical spine injury nor aggravated Claimant’s “significant pre-existing cervical degenerative disease.” Upon reconsidering his prior review of Claimant’s permanent impairment, therefore, Dr. Brigham eliminated entirely the rating referable to her cervical condition. He concluded that Claimant suffered only a 12% whole person impairment, all of it referable to her right shoulder injury.
21. At the request of Claimant’s attorney, Dr. Turek evaluated Claimant on October 19, 2004. Dr. Turek noted that absent any documentation that Claimant had sought medical treatment for cervical complaints between 1989 and 1999, “one can only conclude that [her] previous injury had stabilized after an uncomplicated discectomy.” He further observed that Claimant had been working full time without restrictions at the time of her May 1999 work injury. Following that injury her status “rapidly and severely declined,” resulting in multiple cervical surgeries. From this Dr. Turek concluded that Claimant’s cervical condition was in fact causally related to her May 1999 work injury. Considering both her shoulder injury and her cervical injury, Dr. Turek rated Claimant’s total whole person impairment at 36%.
22. With Dr. Brigham’s opinion as support, in February 2005 Defendant filed a Notice of Intention to Discontinue Benefits (Form 27) as to Claimant’s right shoulder injury on end medical result grounds. Defendant also sought to terminate its responsibility for medical treatment related to Claimant’s cervical condition, stating, “[question] cervical spine being causally related to this case.” In this aspect as well Defendant relied on Dr. Brigham’s opinion as support for its position.
23. Claimant’s attorney responded to the Form 27 by letter to the Department dated February 7, 2005. In it he stated, “[T]here is no dispute that EMR has now been attained and that TTD may be ceased in accordance with that.” Along with the letter Claimant’s attorney also filed with the Department both Dr. Turek’s and Dr. Peterson’s impairment rating reports. As noted above, see Finding Nos. 18 and 21, both of these reports included Claimant’s cervical condition as a ratable component of her work injury.
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24. On February 9, 2005 the Department approved Defendant’s discontinuance. At the same time, it notified Claimant’s attorney of Claimant’s appeal rights, stating, “[I]f you disagree with the discontinuance of treatment related to the cervical spine, you may APPEAL by submitting a WRITTEN request for hearing to this office . . .” (emphasis in original).
25. Claimant has not worked since her May 1999 injury. She applied for social security disability benefits on July 31, 2002 and was found entitled. Notwithstanding that determination, Claimant endeavored to identify suitable alternative employment for which she might be retrained. A functional capacities evaluation completed in February 2004 determined that she had a part-time light work capacity, insufficient for her to return to her previous employment as an electrician. Claimant worked with a vocational rehabilitation counselor from 2002 until 2006, albeit with sustained interruptions due to her various surgeries and her ongoing symptoms. There is no evidence that Claimant’s vocational rehabilitation file was ever formally closed, but no progress reports have been filed with the Department since July 18, 2006.
26. On August 22, 2008 Claimant’s attorney filed a Notice and Application for Hearing (Form 6) with the Department, in which he stated that Claimant “has suffered extensive permanent impairment and has been rendered permanently disabled by her injury and its consequences.” After winding its way unsuccessfully through the Department’s informal dispute resolution process, the claim now has been referred to the formal hearing docket.
CONCLUSIONS OF LAW:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. In the current litigation Claimant seeks permanent total disability benefits causally related to her May 1999 work injury, which she asserts encompassed not only her right shoulder but her cervical spine as well. Alternatively, Claimant seeks additional permanent partial disability benefits for the rated impairment to her cervical spine. Defendant asserts in response that as a matter of law both claims are time-barred under 21 V.S.A. §660(a). On those grounds, it seeks summary judgment.
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3. At the time of Claimant’s original work injury in May 1999, §660(a) read, in pertinent part, as follows:
Proceedings to initiate a claim for benefits pursuant to this chapter may not be commenced after six years from the date of injury.
In May 2004, however, the statute was amended to read instead:
Proceedings to initiate a claim for a work-related injury pursuant to this chapter may not be commenced after three years from the date of injury. This section shall not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim (emphasis supplied).
4. In order to address Defendant’s argument properly, it is necessary first to determine which version of the statute applies. Generally, the statute of limitations that applies to a particular cause of action is the one in effect when the cause of action accrued. Carter v. Fred’s Plumbing & Heating, Inc., 174 Vt. 572 (2002), citing Cavanaugh v. Abbott Labs., 145 Vt. 516, 521 (1985). To apply this rule to the current claim, therefore, I must determine when Claimant’s cause of action for permanent total disability compensation, or alternatively, for additional permanent partial disability compensation, first accrued.
5. An injured worker’s right to compensation itself is acquired at the time he or she suffers a work-related injury. 21 V.S.A. §618; Sanz v. Douglas Collins Construction, 2006 VT 102. The time at which certain benefits may become due, however, whether temporary or permanent, partial or total, depends on such factors as the severity of the injury, the claimant’s medical progress and his or her ability to work. Id. Given these variables, in many workers’ compensation claims a claimant’s entitlement to specific benefit payments does not ripen until some time after his or her right to compensation arises.
6. This concept – that although a claimant’s right to compensation arises at the time of injury, his or her entitlement to benefits often may not accrue until much later – is particularly applicable to permanency benefits. Typically (though not always) a claimant knows that he or she has suffered a work-related injury at the time it occurs. Treatment progresses, and at its conclusion hopefully the claimant has made a full recovery, with no residual impairment, and therefore no permanency, at all.
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7. Unfortunately, this is not always the case. It may be months, even years, before it becomes apparent that despite all reasonable treatment the injury has in fact left a permanent mark. With that in mind, a cause of action for permanent partial disability benefits cannot accrue until a claimant reaches end medical result. Longe v. Boise Cascade Corp., 171 Vt. 214 (2000). Until that point is reached, there is no way to know whether any impairment from which he or she still suffers might yet respond to treatment or whether it now has become permanent. Kraby v. Vermont Telephone Co., 2004 VT 120; see AMA Guides to Evaluation of Permanent Impairment (5th ed.) at §2.4 (advising against performing permanent impairment rating until patient reaches point of maximum medical improvement). And if the impairment is not yet permanent, then logically the claimant cannot yet claim entitlement to permanent partial disability benefits.
8. Similarly, a cause of action for permanent total disability benefits cannot accrue until it becomes reasonably apparent, both medically and vocationally, that as a result of his or her work injury a claimant most likely will never be able to return to regular gainful employment. K.T. v. Specialty Paperboard, Opinion No. 33-05WC (June 24, 2005). Until that point occurs, it would be premature to make a claim for permanent total disability benefits.
9. The implications for evaluating a statute of limitations defense are clear, therefore. A claim period can only begin to run when there is in fact something to claim. Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 446 (1985). Thus, the statute of limitations on a claim for permanent partial disability benefits begins to run when the claimant reaches end medical result. Kraby, supra; Longe, supra. On a claim for permanent total disability benefits, the statute begins to run when it becomes reasonably discoverable and apparent that the claimant is permanently precluded from working. K.T. v. Specialty Paperboard, supra.
10. In the current claim, the parties do not dispute that Claimant reached an end medical result at least as of February 9, 2005 when Defendant’s discontinuance on those grounds became effective. Her cause of action for permanent partial disability benefits related to her cervical condition arose, and the statute of limitations began to run, as of that date.
11. As for Claimant’s permanent total disability claim, Defendant argues that her cause of action accrued in July 2002, when she applied for and was granted social security disability benefits. The standard for evaluating entitlement to these benefits, however, differs from the one that applies in the workers’ compensation context. It is worth noting, furthermore, that Claimant continued to engage in vocational rehabilitation efforts even after she became eligible for social security disability benefits. According to her vocational rehabilitation counselor’s last report, these efforts appear to have continued at least until July 18, 2006. I find that to be the earliest date upon which her cause of action for permanent total disability benefits accrued and the statute of limitations began to run.
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12. As noted above, the statute of limitations that applies to a particular cause of action is the one in effect when the cause of action accrued. Carter, supra. Having found that Claimant’s claims for both permanent partial and permanent total disability benefits arose after May 2004, when the most recent amendment to §660(a) took effect, I conclude that the amended statute applies, not the prior one.
13. The analysis does not end there, however. True, the amendments to §660(a) reduced the statute of limitations applicable to proceedings to initiate a claim for a work-related injury from six years to three years. But in language critical to this claim, by its specific terms the amended statute also mandates that the three-year limitations period “not be construed to limit a subsequent claim for benefits stemming from a timely filed work-related injury claim.”2
14. Interestingly, while repealing the six-year limitations period applicable to benefit claims in favor of a three-year limitations period applicable to work-related injury claims, the amended statute no longer specifies what the time limit is for initiating a subsequent claim for benefits once the initial work-related injury claim itself has been timely filed. When faced with this dilemma – the absence of any limitations period specifically applicable to workers’ compensation claims – under an early incarnation of Vermont’s statute, the Supreme Court determined that a claim for workers’ compensation benefits was essentially an action of contract, and therefore applied the six-year contract statute of limitations. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 98 (1937). I am compelled to take the same path here.
15. I conclude, therefore, that the applicable statute of limitations for the benefit claims at issue in this case is six years from the date each of them accrued. As noted above, Claimant’s claim for permanent partial disability benefits accrued on February 9, 2005; her claim for permanent total disability benefits accrued on July 18, 2006. Claimant’s attorney filed a Notice and Application for Hearing as to both claims on August 22, 2008. This was well within the applicable six-year limitations period. As a matter of law, neither claim is time-barred.
16. As a final matter, Claimant requests a ruling that Defendant be barred from contesting the compensability of her cervical condition on the grounds that it waived its right to do so by virtue of its actions over the past several years. This argument raises factual questions that cannot be resolved on the basis of the record before me now. It is inappropriate to address them here.
2 Notably, the amended statute also repealed the language referencing “proceedings to initiate a claim for benefits pursuant to this chapter,” and replaced it instead with language referencing “proceedings to initiate a claim for a work-related injury pursuant to this chapter” (emphasis supplied). That change as well incorporates the distinction between a claimant’s right to compensation following a work-related injury and his or her subsequent entitlement to specific benefits.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of December 2009.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Melissa Marcum v. State of Vermont, Agency of Human Services (December 15, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , , , Author:

Melissa Marcum v. State of Vermont, Agency of Human Services (December 15, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Melissa Marcum Opinion No. 50-09WC
v. By: Sal Spinosa, Esq.
Hearing Officer
State of Vermont, Agency of
Human Services For: Patricia Moulton Powden
Commissioner
State File No. AA-2088
RULING ON DEFENDANT’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT1
ATTORNEYS:
Charles Powell, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant an employee of Defendant at the time of her June 5, 2007 injury?
2. If yes, is Claimant’s current claim time-barred under the provisions of 21 V.S.A. §§656 and 660(a)?
FINDINGS OF FACT:
Considering the facts in the light most favorable to Claimant as the non-moving party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. On June 5, 2007, while working in the Nelson home in Ryegate, Vermont, Claimant injured her shoulder when she fell while holding the Nelson child, CN. Claimant provided home-based medical care services for CN, who suffers from a congenital disease that affects his ability to breathe involuntarily. This is a life-threatening condition that requires 24-hour monitoring and care.
2. Claimant first met Heather Nelson at Dartmouth Hitchcock Medical Center, where CN was a recurrent patient. Claimant was a licensed practical nurse, and CN came under her care.
1 Although Defendant frames its pleading as a Motion to Dismiss, it is more properly characterized as a Motion for Summary Judgment. See generally V.R.C.P. 12(b)(6) and 56.
2
3. Due to his medical condition CN qualified as a Medicaid beneficiary. As a consequence, he was eligible for a variety of Medicaid-funded services, including in-home personal care attendant services provided in accordance with the Children’s Personal Care Services Program (CPCSP). In Vermont, the CPCSP is administered through the Agency of Human Services’ Department of Disabilities, Aging & Independent Living (DAIL).
4. The goal of the CPCSP is to provide supplemental assistance with self-care and activities of daily living to Medicaid-eligible children with significant disabilities or health conditions. This support is meant to supplement, not replace, parental roles.
5. In order to assist eligible individuals in gaining access to the personal care attendant program, DAIL has contracted with ARIS Solutions, an intermediary payroll service, to process the payroll and billing for personal care attendants hired under the program. ARIS uses Medicaid funds to pay personal care attendants for their work.
6. The state also has contracted with ARIS to procure a single workers’ compensation insurance policy covering all personal care attendants, so that the time and expense of doing so does not fall to each eligible individual him- or herself. In taking this step, however, the statute specifically mandates that personal care attendants “shall not be construed as state employees except for purposes of 21 V.S.A. chapters 9 [dealing with workers’ compensation] and 17 [dealing with unemployment compensation].” 33 V.S.A. §6321(f).2
7. There is another option for parents of Medicaid-eligible dependents to access Medicaid funds for the in-home medical services their children require. Under the Family Managed Nursing Initiative (FMNI), parents assume responsibility for selecting skilled nursing staff (either registered or licensed practical nurses) to provide in-home care. In addition, they must select a nurse coordinator (also a registered or licensed practical nurse) to assist in hiring, training and supervising the nursing staff. Last, the parents are responsible for managing the staff’s work schedules and reviewing their time sheets.
8. The goal of the FMNI program is to secure quality, consistent, cost-effective home care services. It does so by directing less money to home health care agencies in the form of administrative fees, thus making more money available for nursing wages.
2 The statute was amended in 2008, adding subsection (g) to clarify the state’s ability (through its intermediary payroll service) to provide workers’ compensation coverage for personal care attendants in the manner described. In making this amendment, the statute also clarified that “subsections (f) and (g) . . . are intended to permit the state to provide workers’ compensation and unemployment compensation and shall not be considered for any other purposes.” Whether this amendment merely codified the state’s prior intent or added something new is unclear. In either event, Defendant’s reliance on the language of the amendment itself in support of its position is misplaced, as it was not in effect at the time of Claimant’s 2007 injury.
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9. To participate in the FMNI program, parents must use only those nurses who are enrolled as qualified Medicaid providers. Otherwise, the nurses are not eligible to receive payment through the FMNI program. In Vermont, the Agency of Human Services (AHS) has contracted with EDS, a third-party payer, to review, adjust and pay the bills for in-home services provided under the FMNI program. EDS uses Medicaid funds to do so. All told, Medicaid pays for the services of approximately 14,000 approved providers in Vermont, including doctors, nurses and other medical providers.
10. During a meeting at Dartmouth Hitchcock in 2006 Heather Nelson asked Claimant if she would be interested in providing the home care that CN required. Because at that point Claimant was not a qualified Medicaid provider, Ms. Nelson proposed that she work initially as a personal care attendant under the CPCSP. Ms. Nelson further proposed that both she and Claimant would work towards garnering approval to transition into the FMNI program – Ms. Nelson as a qualified FMNI client and Claimant as an approved medical provider. At that point Claimant would be eligible to be paid at a significantly higher rate than what she would receive initially as a personal care attendant.
11. Claimant was amenable to this proposal. In late 2006 she began providing home care services for CN as a personal care attendant. Claimant’s duties included monitoring CN’s ventilator, suctioning him as needed and otherwise tending to his personal care needs. Claimant was paid under the CPCSP, at the rate of $10.00 per hour.
12. Claimant also began the process of qualifying as a provider under the FMNI program. In that context, she received an informational bulletin that described the program. Under the section entitled “Family Managed Nursing Initiative Program Requirements,” the bulletin stated, “Nurses will be self-employed and will be responsible for handling their own tax payments.”
13. On January 27, 2007 Claimant signed her initial provider enrollment contract which allowed her to participate in the FMNI program. She continued to care for CN, but now as a medical provider rather than as a personal care attendant. Although her job duties were essentially the same as they had been as a personal care attendant, Claimant’s responsibilities under the FMNI program recognized her status as a trained and certified licensed practical nurse. As such she could perform some additional services that CN required.
14. Claimant’s reimbursement rate under the FMNI program recognized her altered status as well. Depending on the shift differential Claimant’s pay rate ranged from $27.86 to $37.66 hourly, a significant increase from her wage rate as a personal care attendant. Claimant billed EDS directly for her services, and no taxes were deducted. The time sheets she submitted to EDS included the phrase “….private duty (self-employed) nurse for the child named above.”
15. Neither Claimant nor Ms. Nelson understood that the transition from the CPCSP to the FMNI program affected Claimant’s workers’ compensation coverage in any respect. Prior to Claimant’s June 5, 2007 injury the issue was never discussed.
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16. Ms. Nelson was aware of Claimant’s injury on the date it occurred. However, Claimant did not file a notice of injury and claim for compensation with the Department until January 9, 2009. AHS first learned of her injury at around the same time.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. In the current claim, Defendant’s motion for summary judgment is predicated on its assertion that Claimant was not an AHS employee at the time of her injury. Claimant asserts otherwise, and argues that she is thus entitled to workers’ compensation coverage for her injury.
3. Had she been injured when she worked as a personal care attendant under the CPSCP, Claimant would have been entitled to workers’ compensation coverage under 33 V.S.A. §6321(f). This is true not because she was in fact a state employee, but solely because the statute provided such coverage to personal care attendants in the program.
4. Once Claimant made the transition to the FMNI program, however, the coverage provided by §6321(f) no longer applied to her. That Claimant performed the same services after the transition is irrelevant. All that matters is that, for whatever reason, the legislature decided to provide coverage for personal care attendants but not to FMNI providers.
5. Without the coverage mandated by §6321(f), in order to be entitled to workers’ compensation benefits Claimant must establish that she was an AHS employee at the time of her June 5, 2007 injury. To do that, she must either fit herself within the definition of employee provided in 21 V.S.A. §601(14), or establish that the state was her statutory employer under 21 V.S.A. §601(3).
6. Section §601(14) defines an “employee” as “an individual who has entered into the employment of, or works under contract of service or apprenticeship with, an employer.” The definition codifies the common law concept of employee; it presumes on a most basic level a person who performs services for another. See 3 Larson’s Workers’ Compensation Law §60.01.
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7. Claimant’s relationship with AHS does not fit within that definition. Her interaction with AHS was limited to submitting her bills to the agency’s third-party payer for processing and payment under the FMNI program. AHS neither hired Claimant, nor assigned her responsibilities, nor set her schedule, nor assessed her work. Her interaction with the state consisted solely in processing payment for the services she provided to CN. This is insufficient to establish an employer-employee relationship with AHS.
8. Nor does Defendant qualify as Claimant’s “statutory employer” under 21 V.S.A. §601 (3). That provision defines an “employer” to include “the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed.” This definition creates within Vermont’s workers’ compensation law a statutory employer-employee relationship where none existed at common law. In re Chatham Woods Holdings, LLC, 184 Vt. 163, 169 (2008), citing King v. Snide, 144 Vt. 395 (1984).
9. The Vermont Supreme Court has embraced the “nature of the business” test to determine whether a statutory employment relationship exists. This test asks whether the work performed by the putative employee “is a part of, or process in, the trade, business or occupation” of the putative employer. In re Chatham Woods Holdings, supra at 170. The test is to be applied broadly, in keeping with the purposes of Vermont’s workers’ compensation laws. In re Chatham Woods, supra at 168. At the same time, due regard must be given to the facts of each particular situation. King, supra at 401.
10. Applied to the circumstances of the current claim, the critical inquiry, therefore, is whether the type of work that Claimant performed is the type of work that AHS employees themselves could have carried out as part of AHS’ regular course of business. See Frazier v. Preferred Operators, Inc., 177 Vt. 571, 573 (2004).
11. Given AHS’ limited role in administering the FMNI program, the answer is no. AHS is not itself charged with providing medical services to eligible beneficiaries; it merely facilitates payment for them. AHS does not employ a stable of nurses to deliver in-home care, nor does it hire, train, assign work to or otherwise supervise those, like Claimant, who do. Its business is to process payments, not to provide direct services. See Dwinell v. Merchants Bancshares, Inc., Opinion No. 40-09WC (October 14, 2009).
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12. Notwithstanding her failure to qualify as either a common law or a statutory employee, Claimant argues that she should be granted employee status nonetheless by virtue of Defendant’s failure to comply with the requirements of 21 V.S.A. §601(14)(F). That provision carves out an exception to the common law concept of employee for sole proprietors who express clearly their desire to be treated as independent contractors instead. Claimant misreads the intent of this provision, however. Section 601(14)(F) creates an exception, not a rule. Its purpose is not to create an employer-employee relationship where one otherwise would not have existed. Rather, its function is to undo a relationship that the law otherwise might have found.3
13. I find, therefore, that Claimant was not an employee of AHS at the time of her injury. As a matter of law, she did not meet the common law definition of employee as reflected in 21 V.S.A. §601(14), nor did she establish the existence of a statutory employment relationship under 21 V.S.A. §601(3). AHS bears no workers’ compensation responsibility for her June 5, 2007 injury.
14. In view of my determination that AHS was not Claimant’s employer at the time of her injury, it is not necessary to reach Defendant’s notice and statute of limitations argument.
ORDER:
For the foregoing reasons, Defendant’s Motion to Dismiss and/or for Summary Judgment is GRANTED. Claimant’s claim for workers’ compensation benefits arising out of her June 5, 2007 injury is DISMISSED.
DATED at Montpelier, Vermont this 15th day of December 2009.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
3 In the context of her §601(14)(F) argument, Claimant asserts that Defendant did not explicitly notify her that the workers’ compensation coverage she had enjoyed under the CPCSP terminated once she transitioned instead to the FMNI program. Given that the provisions of §601(14)(F) do not apply, Defendant’s alleged failure to do so is irrelevant. In any event, Claimant received sufficient information to alert her to her change in status, but failed adequately to appreciate its significance. See Finding of Fact Nos. 12 and 14 above.

Marjorie Alden v. Fletcher Allen Health Care (August 21, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , Author:

Marjorie Alden v. Fletcher Allen Health Care (August 21, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Marjorie Alden Opinion No. 32-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Fletcher Allen Health Care For: Patricia Moulton Powden
Commissioner
State File No. E-14159
RULING ON DEFENDANT FLETCHER ALLEN HEALTH CARE’S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT
ATTORNEYS:
Richard Cassidy, Esq., for Claimant
Stephen Ellis, Esq., for Defendant Fletcher Allen Health Care
James O’Sullivan, Esq., for Defendant CNA Insurance Company
ISSUES:
1. Is Claimant’s current claim against Fletcher Allen Health Care (FAHC) time-barred under either 21 V.S.A. §656 or 21 V.S.A. §660(a)?
2. Is Defendant CNA Insurance Company (CNA) barred from asserting FAHC’s liability for Claimant’s current claim under either 21 V.S.A. §656, 21 V.S.A. §660(a) and/or the equitable doctrines of waiver, estoppel or laches?
3. Do genuine issues of material fact exist as to whether Claimant’s job responsibilities in 2000 and thereafter caused her to suffer an aggravation and/or new injury?
FINDINGS OF FACT:
Taking the evidence in the light most favorable to the non-moving parties, as is required when considering a motion for summary judgment, Carr v. Peerless Insurance Co., 168 Vt. 465, 476 (1998), I find the following facts:
1. On January 30, 1992 Claimant sustained a work-related low back injury while employed by FAHC.
2. CNA was on the risk at that time and accepted the claim.
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3. Claimant underwent L3-4 disc surgery in November 1992. After she reached an end medical result, Claimant and CNA entered into a Form 22 Agreement for Permanent Partial Disability Compensation, which the Department approved on November 3, 2003.
4. Claimant’s prior medical history includes L5-S1 disc surgery in 1970.
5. In July 1996 FAHC became self-insured for workers’ compensation purposes.
6. In or around September 2000 Claimant transferred from bedside nursing to the Dermatology Clinic. Claimant’s job responsibilities in this position required both sitting – while working on the computer, writing and/or talking on the telephone – and standing – while retrieving supplies, delivering paperwork and, once or twice a week, assisting in surgery.
7. At some point after her transfer Claimant began to experience increased low back and right leg pain. Claimant did not complete any injury or incident report relating to these increased symptoms, but she did inform her supervisor, Deb LeBlanc, that she planned to seek medical treatment. This she did, in February 2001, with Dr. Monsey, an orthopedic surgeon.
8. In March 2001 Erin Fournier, an occupational therapist at FAHC’s Work Enhancement and Rehabilitation Center, evaluated Claimant’s work station in the Dermatology Clinic. The stated reason for the assessment was “low back and right leg pain exacerbated 09/00, about the same time worker started this job.” Ms. Fournier’s report identified risk factors for musculoskeletal strain and recommended various changes to Claimant’s work station, all of which FAHC subsequently implemented. Claimant’s supervisor, Deb LeBlanc, was listed on the report as the contact person. The report indicated that a copy was sent to Jan Lyons, whom Claimant has identified as the “Office Manager for Unit 5.”
9. In November 2003 Dr. Monsey performed L4-5 disc surgery to address Claimant’s ongoing complaints.
10. On December 26, 2003 Attorney Chris McVeigh wrote to Claimant, advising that “Fletcher Allen Health Care/CNA Insurance Company has retained me to investigate your claim for workers’ compensation benefits.” Presumably this letter was prompted by the submission of the bills for Dr. Monsey’s November 2003 surgery for payment in conjunction with Claimant’s 1992 work injury.
11. On March 25, 2004 Attorney McVeigh filed a Form 2 Denial of Workers’ Compensation Benefits with the Department. The form identified CNA as the carrier and FAHC as the employer. The stated reason for the denial was that “the medical evidence does not support the legal causal relationship of [Claimant’s] current claim to her 1992 injury or surgery.”
12. Appended to the Form 2 was a copy of Dr. Monsey’s March 17, 2004 deposition. In it, Attorney McVeigh identified himself as “represent[ing] Fletcher Allen Health Care in [Claimant’s] workers’ compensation claim.”
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13. Dr. Monsey posited in his deposition that Claimant’s most recent symptoms might have been due to epidural scarring caused by the disc surgery she had undergone in 1970 and not by her 1992 injury or surgery. At another point in the deposition, Attorney McVeigh inquired of Dr. Monsey as follows:
Q: Okay. In your note of February 12, 2001, in the subjective portion of that note, it states quote: “Over the past year her work has changed such that she is spending the majority of her time now sitting, which has been associated with worsening symptoms.” Period. “The pain is clearly worse with prolonged sitting or driving.” Period. Close quote. Did I read that accurately?
A: Yes.
Q: Is prolonged sitting a cause of increasing pain for an area that has epidural scarring?
A: For individuals who have back and leg pain related to neuro compression, sitting is a significant risk factor for both the development of those symptoms and the exacerbation of those type of symptoms.
Q: Okay. Why?
A: The theory is that sitting increases the intradiscal pressure more than a variety of other maneuvers such as standing and walking.
Q: If someone is sitting over a prolonged period of time, can the increase in the intradiscal pressure on the nerve cause permanent increased symptoms?
A: The sitting, in and of itself, doesn’t cause permanent symptoms. Individuals who have prolonged neural compression are more likely to have ongoing residual symptoms even with decompression of that root. So the length of time of symptoms is a prognostic factor for resolution after decompression.
14. In addition to appending Dr. Monsey’s deposition to the Form 2, Attorney McVeigh also filed a letter from Dr. Monsey, dated January 19, 2004 and addressed “To Whom It May Concern,” that stated:
[Claimant] has right leg pain. These symptoms have been present since her injury in 1992 secondary to an injury while at work. The symptoms became progressively more severe necessitating her most recent surgical intervention. These current symptoms are an aggravation of an ongoing problem secondary to her injury at Fletcher Allen Health Care in 1992.
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15. Claimant appealed CNA’s denial of benefits in a letter to the Department dated April 20, 2004. In it, Claimant acknowledged that she had continued to have right leg pain, numbness and tingling after her 1992 work injury and surgery. She stated, “I went for further x-rays and cat scans and stopped making claims in 1994, although I am not sure why I did this.”
16. Claimant further stated that she did not believe Dr. Monsey was correct in attributing her epidural scarring to her 1970 surgery. She continued:
I have worked at FAHC for 30 years as a nurse, 27 of those as a bedside nurse. I have moved to the Dermatology Clinic because I felt that I could not do the heavy lifting and bending required to do bedside nursing . . .
Before I went to see Dr. Monsey it had gotten more difficult to sit for any length of time or walk any distance, and I would trip “over a blade of grass.”
I guess, not claiming all those years of treatments on the workers comp was my own stupidity or oversight but I guess I have no excuse. I do wish that you would review my case.
17. In a letter dated April 28, 2004 the Department advised both Claimant and Attorney McVeigh, whom it identified as “legal counsel for Fletcher Allen Health Care/CNA Insurance,” that it was considering Claimant’s April 20, 2004 letter as a request for hearing pursuant to Rule 4.1100.
18. On May 4, 2004 Attorney McVeigh filed a second Form 2, this time denying CNA’s responsibility for the medical charges relating to Dr. Monsey’s November 2003 surgery on the grounds that “the statute of limitations for [Claimant’s] claim has expired.”
19. On August 24, 2004 Claimant notified the Department that she was appealing CNA’s determination that her claim was time-barred. Once again, the Department treated this correspondence as a request for hearing. On October 21, 2004 it held an informal conference with both Claimant and Attorney McVeigh.
20. On June 20, 2005 Claimant’s attorney entered his appearance on Claimant’s behalf.
21. On September 8, 2006 Claimant’s attorney corresponded with Attorney McVeigh. In the letter, Claimant’s attorney asserted that Claimant had “a viable workers’ compensation claim against her employer, Fletcher Allen Health Care,” for benefits causally related to Dr. Monsey’s November 2003 surgery. As to that surgery, Claimant’s attorney further stated:
[Dr. Monsey’s] surgery addressed a site that had not previously been operated on. The precise date of the injury is unclear. However, a record from Fletcher Allen’s Work Enhancement and Rehabilitation Center relates that, in September 2000, [Claimant] experienced exacerbated low back and right leg pain coinciding with her having begun a new job, suggesting that something may have happened then.
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In any event, it is clear that this is a new injury and that a claim was asserted in a timely fashion.
22. On December 8, 2006 Attorney McVeigh deposed Claimant. In introducing himself he indicated, “I’m representing Fletcher Allen Health Care and CNA in your workers’ compensation claim.”
23. On March 2, 2007 Attorney McVeigh corresponded with the Department’s Specialist as follows:
I am writing to inform you that it appears that Liberty Mutual, who was Fletcher Allen Health Care’s insurer in all of 2000, should be put on notice regarding this claim.1 This action involves [Claimant’s] claim that she experienced an aggravation of her low back condition in 2000 while working at Fletcher Allen Health Care.
It is my understanding that CNA Insurance Company’s coverage for Fletcher Allen Health Care ended in 1996.
24. In response to Attorney McVeigh’s letter, the Specialist indicated that the file contained no evidence upon which to base an aggravation claim and that therefore she could not take the action he requested. In response to that, Attorney McVeigh forwarded copies of documents that he asserted indicated that Claimant’s condition worsened as a result of her job change, specifically (a) Dr. Monsey’s February 12, 2001 office note (referenced and quoted in paragraph 13 above); and (b) excerpts from Claimant’s December 2006 deposition transcript. With that information in hand, in June 2007 the Specialist put FAHC on notice of its potential responsibility for Claimant’s current claim.
25. Claimant’s attorney filed a Form 6 Notice and Application for Hearing on February 14, 2008. In it, Claimant’s attorney alleged, “Claimant sustained injury to L4-5 disc after having previously sustained injury to L5-6 (a/k/a L5-S1) in 1972 and to L3-4 in 1992. Employer has persisted in denying claim.”
DISCUSSION:
1. Claimant’s current claim for workers’ compensation benefits posits that the low back and right leg pain that necessitated her 2003 surgery resulted either from the compensable work injury she sustained in 1992 or from the change in her work environment and job responsibilities that occurred when she transferred to the Dermatology Clinic in 2000. If the former, then her condition represents a recurrence, for which CNA is liable. If the latter, then her condition is indicative of an aggravation or new injury, for which FAHC, in its capacity as a self-insured employer, ordinarily would be responsible.
1 Attorney McVeigh was mistaken as to FAHC’s workers’ compensation insurance coverage. As of July 1996 FAHC was self-insured.
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2. FAHC moves to dismiss and/or for summary judgment on three alternative grounds. First, it asserts that any aggravation or new injury claim made by Claimant is time-barred under either 21 V.S.A. §656 and/or 21 V.S.A. §660(a). Alternatively, it asserts that any attempt by CNA to pass responsibility onto it under an aggravation or new injury theory is barred, either under those same statutory provisions and/or under the equitable doctrines of waiver, estoppel and laches. Last, it asserts that the undisputed medical evidence conclusively establishes that Claimant’s job transfer in 2000 caused neither an aggravation nor a new injury and that therefore it is entitled to judgment in its favor as a matter of law.
3. Summary judgment is proper when “there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law, after giving the benefit of all reasonable doubts and inferences to the opposing party.” State v. Delaney, 157 Vt. 247, 252 (1991). To prevail on a motion for summary judgment, the facts must be “clear, undisputed or unrefuted.” State v. Heritage Realty of Vermont, 137 Vt. 425 (1979); A.M. v. Laraway Youth and Family Services, Opinion No. 43-08WC (October 30, 2008).
FAHC’s Argument for Summary Judgment against Claimant
4. As against Claimant, FAHC asserts that her claim is barred because she failed to comply with either the notice provisions of 21 V.S.A. §656 or the statute of limitations provided in 21 V.S.A. §660(a). According to FAHC’s characterization of the evidence, Claimant has admitted that she knew shortly after transferring to the Dermatology Clinic in September 2000 that her new job responsibilities were causing new and/or aggravated symptoms in her low back. Therefore, FAHC argues, under §656 Claimant was obligated to put it on notice of any claim for compensation within six months of that date, or by March 2001, and under §660(a) she should have initiated her claim for benefits within six years, or by September 2006.
5. Section 656 provides in relevant part as follows:
(a) A proceeding under the provisions of this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as practicable after the injury occurred, and unless a claim for compensation with respect to an injury has been made within six months after the date of the injury;
(b) The date of injury . . . shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.
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6. Prior to its amendment in 2004, section 660(a) provided in relevant part as follows:
(a) . . . Want of or delay in giving notice, or in making a claim, shall not be a bar to proceedings under the provisions of this chapter, if it is shown that the employer, the employer’s agent or representative, had knowledge of the accident . . . Proceedings to initiate a claim for benefits pursuant to this chapter may not be commenced after six years from the date of injury.2
7. Notably, these statutory provisions require only that an injured worker notify his or her employer, not that he or she also discern the employer’s workers’ compensation insurance status and notify the appropriate adjuster or third party administrator as well. This is, obviously, as it should be. That information is readily available to the employer, but rarely so to its employees.
8. Here, Claimant has testified by affidavit that at least by the time she began treating with Dr. Monsey in February 2001 her supervisor knew that she was experiencing increased low back pain possibly related to having transferred from bedside nursing to the Dermatology Clinic at some point in September 2000. There also is evidence that FAHC arranged for a work site assessment in March 2001 and thereafter implemented the recommendations suggested as a result. At a minimum, this evidence is sufficient to raise genuine questions of material fact as to whether FAHC had timely “notice of the injury” under §656(a), and/or whether it had “knowledge of the accident” under §660(a). Until those factual issues are resolved, summary judgment against Claimant is inappropriate.
9. The evidence also establishes that Claimant “initiated a claim for benefits” as early as December 2003, when the medical bills relating to her November 2003 surgery were submitted for payment as work-related. Even assuming that Claimant’s injury occurred immediately after her job transfer in September 2000, this still was well within the six-year limitations period mandated by §660(a).
10. FAHC makes much of the fact that Claimant’s claim for benefits arising out of her November 2003 surgery initially was directed to CNA, its insurer at the time of Claimant’s 1992 injury, and that neither Claimant nor CNA made any claim specifically against it, in its status as self-insured employer, until June 2007, after the statute of limitations for a September 2000 date of injury would have passed. It is not necessary at this juncture to reach the legal merits of FAHC’s argument. For now, it is enough to note the factual questions germane to it that remain unresolved – to what extent Claimant’s supervisor was aware of Claimant’s increased symptoms and their possible connection to her new job, why no new incident or injury report was filed in conjunction with the medical treatment Claimant sought in February 2001, how the medical bills for Claimant’s November 2003 surgery found their way to CNA. These are genuine issues of material fact that cannot be resolved in the context of a motion for summary judgment.
2 In 2004 the limitations period for initiating a new injury claim was reduced from six to three years. The current claim arises under the old statute of limitations.
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11. Because genuine issues of material fact exist as to FAHC’s claimed defenses under either §656 or §660(a), its motion to dismiss and/or for summary judgment against Claimant must fail.
FAHC’s Argument for Summary Judgment against CNA
12. As against CNA, FAHC argues that it is entitled to summary judgment because CNA’s attempt to shift responsibility for Claimant’s workers’ compensation benefits is time barred, either under the statutory provisions cited above or under the equitable doctrines of waiver, estoppel and/or laches.
13. I cannot discern from the language of §656 any legislative intention to apply the six-month notice requirement to actions between insurance carriers (or in this case, between a carrier and a self-insured employer) in the same manner as it applies as between an injured worker and his or her employer. In fact, the statutory references to “claimant” and “employee” strongly suggest otherwise.
14. As applied to the facts of this claim, furthermore, the six-year statute of limitations provided for in §660 could not have begun to run against CNA at least until late 2003, when it first received notice of Claimant’s claim for workers’ compensation benefits related to her November 2003 surgery. That defense is unavailing to FAHC as well, therefore.
15. What remains are FAHC’s equitable arguments against CNA – waiver, estoppel and laches. FAHC asserts that these defenses are available to it as a result of Attorney McVeigh’s acts and omissions, most notably his failure to notify FAHC of its own potential exposure for Claimant’s claim, separate and apart from CNA’s exposure, in a more timely fashion than he did.
16. These defenses might well prove successful in a third-party action against CNA. Under the circumstances, however, I cannot grant them in this forum. Should the evidence ultimately establish that Claimant did in fact suffer an aggravation or new injury causally related to her job transfer in 2000, under our workers’ compensation law her right to recover will be against FAHC, not CNA. To dismiss FAHC from the claim for reasons that have nothing at all to do with Claimant’s actions would leave her with an entitlement to workers’ compensation benefits, but no responsible employer or carrier from which to collect them. This would be manifestly unfair and I cannot allow it.
17. I conclude, therefore, that there is no statutory basis upon which to grant FAHC summary judgment against CNA. Nor do the circumstances of this claim permit me to do so on equitable grounds.
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FAHC’s Argument for Summary Judgment against Both Claimant and CNA
18. Last, FAHC asserts that it is entitled to summary judgment as against both Claimant and CNA on the grounds that the undisputed facts establish, as a matter of law, that Claimant’s job responsibilities after her job transfer in 2000 did not cause any aggravation or new injury. As support for this argument, FAHC cites to Dr. Monsey’s deposition testimony, quoted in Finding of Fact No. 13 above, in which he states that the sitting Claimant may have done in the context of her Dermatology Clinic job would not, “in and of itself cause permanent symptoms.”
19. Questions of recurrence, aggravation, flare-up or new injury are inherently fact-specific. Expert testimony on the issue is often complex, contradictory and confusing. Such is the case here. While Dr. Monsey did indicate in the context of his deposition that prolonged sitting alone did not cause an aggravation, in his January 19, 2004 “To Whom It May Concern” letter (referred to in Finding of Fact No. 14 above), he stated that the symptoms that necessitated his November 2003 surgery were “an aggravation of an ongoing problem” secondary to her 1992 work injury. Taken together, Dr. Monsey’s statements do not make a conclusive case either for or against aggravation. Summary judgment is, therefore, improper.
ORDER:
For the foregoing reasons, Defendant FAHC’s Motion to Dismiss and/or for Summary Judgment is DENIED, both as to Claimant and as to Defendant CNA.
DATED at Montpelier, Vermont this 21st day of August 2009.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Larry Bohannon v. Town of Stowe February 26, 2014

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Larry Bohannon v. Town of Stowe (February 26, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Larry Bohannon Opinion No. 03-14WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Town of Stowe
For: Anne M. Noonan
Commissioner
State File No. CC-02061
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
John Leddy, Esq., for Defendant
ISSUE PRESENTED:
Does the statute of limitations bar Claimant as a matter of law from asserting a claim for
workers’ compensation benefits against Defendant?
EXHIBITS:
Claimant’s Exhibit 1: Bonneau deposition excerpts, October 11, 2012
Claimant’s Exhibit 2: Claimant deposition excerpts, November 16, 2011
Claimant’s Exhibit 3: Wells deposition excerpts, October 11, 2012
Claimant’s Exhibit 4: Weather Source, official weather for Stowe,
Vermont on October 1, 2007
Claimant’s Exhibit 5: Dr. Keith office notes, October 4, 2007
Claimant’s Exhibit 6: Short term disability forms, October 29, 2007
Claimant’s Exhibit 7: Email from Specialist, September 29, 2010
Claimant’s Exhibit 8: Darcie Bohannon deposition excerpts, May15, 2012
Claimant’s Exhibit 9: Boyle deposition excerpts, July 25, 2013
Defendant’s Exhibit A: Darcie Bohannon deposition excerpts, May 15,
2012
Defendant’s Exhibit B: Dr. Keith deposition excerpts, May 22, 2013
Defendant’s Exhibit C: Claimant deposition excerpts, November 16, 2011
Defendant’s Exhibit D: Bonneau affidavit, February 6, 2012
Defendant’s Exhibit E: First Report of Injury, February 5, 2007
Defendant’s Exhibit F: Boyle letter to Claimant, February 13, 2007
Defendant’s Exhibit G: Gann deposition excerpts, November 16, 2011
Defendant’s Exhibit H: Boyle deposition excerpts, July 25, 2013
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Defendant’s Exhibit I: Out of work notes, October 4 and 11, 2007
Defendant’s Exhibit J: Request to use sick leave bank, October
30, 2007
Defendant’s Exhibit K: Short term disability forms, October 29, 2007
Defendant’s Exhibit L: Resignation letter, November 4, 2007
Defendant’s Exhibit M: Notice and Application for Hearing, October 8,
2010
Defendant’s Exhibit N: Notice and Application for Hearing, December 7,
2010
Defendant’s Exhibit O: Denial of Workers’ Compensation Benefits, January
7, 2011
Defendant’s Exhibit P: Claimant deposition excerpts, November 16, 2011
FINDINGS OF FACT:
Considering the facts in the light most favorable to Claimant as the non-moving party, State v.
Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. Claimant has a pre-existing history of back problems. Following a snowmobile accident
in 1984, he underwent spinal surgery. For the past ten years he has suffered constant
back pain and has walked with a limp.
2. Claimant worked on Defendant’s road crew from approximately 2001 to 2007. In
January 2007 he strained his lower back while pulling an air compressor with two other
employees. He did not lose any time from work and did not require medical attention.
Susanne Gann, Defendant’s human resources coordinator, filed a First Report of Injury
with the Department. Defendant’s insurer kept a record of the claim as well.
3. On October 1, 2007 Claimant was working on North Hill Road with five co-workers.
Claimant drove the grader to spread the gravel that the other five workers hauled to the
site. While the others went to get more gravel, Claimant got off his grader and started
shoveling the gravel. As he shoveled, he twisted and felt a sharp pain down his left leg
that caused him to drop to his knees.
4. Claimant told Melvin Wells, a co-worker, that he had injured his back. Mr. Wells
recalled the conversation as occurring in October 2007. Claimant also informed Steve
Bonneau, his supervisor, that he was injured. Mr. Bonneau asked him to fill out some
forms about the injury. Claimant complied, in the town garage after work that same day,
while Mr. Bonneau waited.
5. Both Mr. Bonneau and Ms. Gann confirmed that Defendant’s standard work injury
protocol was for an injured worker to fill out a report of injury within 72 hours and give it
to his or her supervisor. The supervisor then would give the form to Ms. Gann, who
would file a First Report of Injury with the Department.
6. Mr. Bonneau did not recall if Claimant informed him of a work injury in October 2007.
He had no memory of Claimant filling out an injury report form. Ms. Gann also had no
3
record of any claimed October 1, 2007 work injury, and did not file a First Report of
Injury with the Department.
7. Claimant sought treatment from Dr. Keith on October 4, 2007. In his office note Dr.
Keith recounted that Claimant’s symptoms began on October 1, 2007 after he shoveled
some gravel at work. Dr. Keith advised Claimant to apply for long-term disability, as he
had been struggling with pain for several years with no new treatment options. Dr. Keith
also instructed Claimant not to work until further notice for medical reasons.
8. On October 30, 2007 Claimant went to Defendant’s office and completed an application
for short-term disability benefits. The parties presented two different copies of the form;
one indicated that Claimant had suffered a work injury and on the other, the “work
injury” box was unchecked. It is unclear why the two forms were inconsistent.
However, on the physician’s statement accompanying the application, Dr. Keith indicated
that Claimant’s injury was work-related.
9. Claimant’s wife accompanied him on this visit to Defendant’s office. She specifically
remembered asking Ms. Gann if Claimant should file for workers’ compensation
benefits. Ms. Gann did not respond to the question.
10. Also at this meeting Claimant presented Defendant with a letter in which he requested
time from Defendant’s leave bank. His reason for doing so was so that he would have
income to cover his living expenses until Defendant’s insurer acted upon his application
for short-term disability.
11. On November 4, 2007 Claimant submitted his letter of resignation to Defendant. In the
letter he explained he could no longer perform his job duties. Thereafter, he received
short-term disability benefits. In addition, Defendant paid him wages until January 2008,
using accumulated time from its leave bank.
12. The next significant event in this case occurred on September 28, 2010 when Claimant
entered into a conversation with his neighbor, one of the Department’s workers’
compensation specialists, about his October 2007 work injury. The specialist asked
Claimant if his claim was pending with the Department, and gave him a Notice and
Application for Hearing to fill out. Claimant’s wife completed the form, but erroneously
used October 4, 2007 as the date of injury rather than October 1, 2007. The form was
dated October 8, 2010 and was received and filed with the Department on the same day.
13. Claimant’s attorney filed a second Notice and Application for Hearing on December 7,
2010. The attorney used the wrong date of injury, October 4, 2007, on that form as well.
14. Defendant’s adjustor denied the claim on January 7, 2011. The reason for the denial was,
“Form 1 not timely filed and filing is over 3 years from loss date.”
4
DISCUSSION:
1. Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Samplid Enterprises, Inc. v. First
Vermont Bank, 165 Vt. 22, 25 (1996). The nonmoving party is entitled to all reasonable
doubts and inferences. State v. Delaney, 157 Vt. 247, 242 (1991); Toys, Inc. v. F.M.
Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the
facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt.
425 (1979).
2. With reference to the three-year limitations period provided for in 21 V.S.A. §660,
Defendant here asserts that the statute of limitations on Claimant’s October 1, 2007 injury
expired on October 1, 2010. Because Claimant did not file his claim for workers’
compensation benefits until October 8, 2010, it argues, as a matter of law the claim is
now time-barred. In response, Claimant asserts that he took the steps necessary to report
his injury on the day it occurred, by informing his supervisor and completing an injury
report, thus satisfying the notice requirement of 21 V.S.A. §656. In addition, he argues
that genuine issues of material fact exist as to whether the doctrine of equitable estoppel
should preclude Defendant from raising the statute of limitations as a defense. For these
reasons, he claims, summary judgment is inappropriate.
3. The Vermont Supreme Court has directly addressed the two statutes of limitations
applicable to workers’ compensation claims, referencing the relevant sections of the
workers’ compensation act as follows:
First, under 21 V.S.A. 656, a claimant (1) must file a notice of injury with
the employer “as soon as practicable” after he or she sustains an injury,
and (2) must file a claim “within six months after the date of the injury.”
However, 21 V.S.A. §660 excuses the failure to timely give notice or
make a claim “if it is shown that the employer, his agent or representative,
had knowledge of the accident or that the employer has not been
prejudiced by such delay or want of notice.” 21 V.S.A. §660. Second, a
claimant must file a notice of hearing with the Department “within six
years1 from the date of injury.” Longe v. Boise Cascade Corp., 171 Vt.
214, 216 (2000) (internal citations omitted).
(a) Notice of Injury under §656
4. Taking the evidence in the light most favorable to Claimant as the nonmoving party,
State v. Delaney, supra, for the purposes of this summary judgment motion I find that on
the day of the injury he both informed his supervisor of the accident and, in the
supervisor’s presence, completed an injury report. Pursuant to §§656 and 660, with these
actions he is deemed to have satisfied the six-month notice requirement.
1 Section 660 was amended in 2004 to reduce the statute of limitations from six years to three years. Claimant’s
injury having occurred in 2007, it is governed by the latter limitations period.
5
(b) Statute of Limitations under §660
5. Proceedings to initiate a workers’ compensation claim under §660(a) must be
commenced within three years of the “date of injury.” That phrase has long been
interpreted to mean “the point in time when an injury becomes reasonably discoverable
and apparent.” Longe v. Boise Cascade, supra at 219, citing Hartman v. Ouellette
Plumbing & Heating Corp., 146 Vt. 443, 447 (1985).
6. Applying the law to the facts of this case, the controlling date when the statute of
limitations began to run is October 1, 2007. This is the date reflected in Dr. Keith’s
October 4, 2007 office note, which is the most contemporaneous record that exists of the
event. Although no First Report of Injury was ever filed, Dr. Keith’s office note
corroborates Claimant’s version of events, and thus establishes October 1, 2007 as the
date of injury.
7. Since the statute began to run on October 1, 2007, Claimant had until October 1, 2010 to
file a claim for benefits with the Department. He did not accomplish that requirement.
The undisputed evidence reveals that his Notice and Application for Hearing was not
filed with the Department until October 8, 2010, seven days after the limitations period
expired.
(c) The Doctrine of Equitable Estoppel
8. Having concluded that Claimant failed to file a timely claim for benefits does not end the
inquiry. Claimant’s conduct may be excused if the circumstances justify invoking the
doctrine of equitable estoppel. Longe, supra at 226.
9. The doctrine of equitable estoppel promotes fair dealing and good faith “by preventing
‘one party from asserting rights which may have existed against another party who in
good faith has changed his or her position in reliance upon earlier representations.’”
Beecher v. Stratton Corp., 170 Vt. 137, 139 (1990), quoting Fisher v. Poole, 142 Vt. 162,
168 (1982). At the doctrine’s core is the concept that through its conduct, the party
against whom estoppel is asserted must have intended that the other party would be
misled to his or her detriment. Id.; Longe, supra at 224.
10. Absent either a promise or some degree of fraudulent misrepresentation or concealment,
generally the doctrine of equitable estoppel will not bar a defendant from asserting the
statute of limitations as a defense to another party’s claim. Beecher, supra. In the
workers’ compensation context, estoppel applies “when the conduct or statements of an
employer or its representatives lull the employee into a false sense of security, thereby
causing the employee to delay the assertion of his or her rights.” Freese v. Carl’s
Service, 375 N.W.2d 484, 487 (Minn. 1985), quoted in Longe, supra at 224.
6
11. I conclude here that a genuine issue of material fact exists regarding whether Defendant
should be precluded from asserting the statute of limitations as a defense to Claimant’s
claim. According to Claimant’s version of events, at Mr. Bonneau’s direction he
completed an injury report in a timely fashion. Consistent with Defendant’s standard
protocol (as evidenced in the context of its handling of his injury some nine months
earlier), Claimant reasonably might have believed he had taken all of the steps necessary
to assert his rights under the workers’ compensation statute. If adequately proven at trial,
these facts conceivably establish that he was lulled into a false sense of security, and thus
form the basis for a claim of equitable estoppel sufficient to bar Defendant’s statute of
limitations defense.
12. Genuine issues of material fact also exist as to whether and why Defendant directed
Claimant to file an application for short-term disability benefits following his October 1,
2007 injury instead of taking the steps necessary to pursue his claim for workers’
compensation benefits. The fact that two versions of the application exist, one denoting a
work-related injury and the other not, is relevant to the equitable estoppel issue and
therefore merits further explanation.
13. The sole purpose of summary judgment review is to determine if a genuine issue of
material fact exists. If such an issue does exist, it cannot be adjudicated in the summary
judgment context, no matter how unlikely it seems that the party opposing the motion
will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973); Southworth v. State of Vermont
Agency of Transportation, Opinion No. 45-08WC (November 12, 2008). However
tenuous or unlikely the evidence in support of Claimant’s equitable estoppel argument is,
he is entitled nonetheless to present his case and litigate the question. Therefore,
summary judgment against him is not appropriate.
ORDER:
Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 26th day of February 2014.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

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