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.
State of Vermont
For: Anne M. Noonan
State File No. J-15114
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Christopher McVeigh, Esq., for Claimant
William Blake, Esq., for Defendant
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
2. If yes, is Defendant barred from asserting the defense?
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
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
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
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
9. On September 7, 2011 Defendant’s counsel filed its answer, which pled the affirmative
defense of statute of limitations.
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
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
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. 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).
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
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.
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
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
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.
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
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
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).
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
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.
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.
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
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)