Blog

STATE OF VERMONT

DEPARTMENT OF LABOR

Lydia Diamond v.Burlington Free Press Opinion No. 21-16WC

1. By: Beth A. DeBernardi, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. R-19764

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

APPEARANCES:

William B. Skiff, Esq., for Claimant

1. Justin Sluka, Esq., for Defendant

ISSUE PRESENTED:

Is Claimant entitled to additional permanent partial disability benefits after having received a

permanent partial disability award for the same injury in 2004?

EXHIBITS:

Claimant’s Statement of Undisputed Material Facts

Defendant’s Statement of Undisputed Material Facts

Defendant’s Response to Claimant’s Statement of Undisputed Material Facts

Defendant’s Exhibit A: First Report of Injury (Form 1)

Defendant’s Exhibit B: Medical report of George Connelly, PA-C, April 24, 2001

Defendant’s Exhibit C: Operative report on right carpal tunnel release, February 7, 2002

Defendant’s Exhibit D: Operative report on left carpal tunnel release, January 16, 2003

Defendant’s Exhibit E: Operative report on disc fusion surgery, September 15, 2003

Defendant’s Exhibit F: Full duty work release from Dr. Horgan, January 20, 2004

Defendant’s Exhibit G: IME report from Dr. Backus, March 10, 2004

Defendant’s Exhibit H: Agreement for Permanent Partial Disability Compensation (Form

22) approved August 20, 2004

Defendant’s Exhibit I: Operative report on disc fusion surgery, April 19, 2012

Defendant’s Exhibit J: Claimant’s filing of Agreement for Permanent Partial Disability

Compensation (Form 22), Agreement for Temporary Total

Disability Compensation (Form 21), and IME with impairment

rating by Dr. Backus

Defendant’s Exhibit K: Claimant’s filing of Notice and Application for Hearing (Form 6)

concerning entitlement to medical benefits, March 15, 2013

2

Defendant’s Exhibit L: Dr. Horgan’s letter dated April 1, 2013

Defendant’s Exhibit M: Dr. Horgan’s letter dated April 11, 2014

Defendant’s Exhibit N: Operative reports on fusion (2012) and revision (2014) surgeries

Defendant’s Exhibit O: IME report from Dr. White, June 1, 2015

Defendant’s Exhibit P: Claimant’s request for retroactive permanency benefits, September

24, 2015

Defendant’s Exhibit Q: IME report from Dr. White, December 7, 2015

FINDINGS OF FACT:

The following facts are undisputed:

1. Claimant is an employee and Defendant is an employer within the meaning of the Vermont

Workers’ Compensation Act.

2. Judicial notice is taken of all forms and correspondence in the Department’s file relating to

this claim.

3. On April 2, 2001 Claimant was rear-ended in a three-car accident arising out of and in the

course of her employment delivering newspapers for the Burlington Free Press.

4. As a result of the work accident, Claimant suffered an exacerbation of her pre-existing right

carpal tunnel syndrome. She underwent surgical release of her right carpal tunnel in

February 2002. Unrelated to this claim, she underwent surgical release of her left carpal

tunnel in January 2003.

5. After the carpal tunnel surgeries, it became clear that Claimant had unresolved neck pain

dating back to the work-related accident in 2001. Her doctor diagnosed disc herniations in

her cervical spine, and she underwent cervical fusion at C5-6 and C6-7 in September 2003.

6. Claimant recovered well from the surgery, with full range of motion. Her doctor released her

to return to work in January 2004.

7. At her attorney’s request, in March 2004 Claimant underwent an independent medical

examination with Dr. Backus, an occupational medicine specialist. He determined that she

had reached an end medical result and assigned a 22 percent whole person permanent

impairment relating to her cervical spine injury.1 In his report, Dr. Backus cautioned that a

two-level fusion carries some risk for future cervical spine complications above or below the

level of fusion.

1 The exacerbation of Claimant’s pre-existing carpal tunnel syndrome resulted in a one percent whole person

impairment relating to her left upper extremity. Her carpal tunnel syndrome is not at issue in the pending cross

motions for summary judgment.

3

8. Based on Dr. Backus’ independent medical examination, the parties entered into an

Agreement for Permanent Partial Disability Compensation (Form 22), which included

compensation for the 22 percent permanent impairment attributable to the spine injury. The

Department approved the agreement in August 2004.

9. Eight years later, in April 2012, Claimant underwent surgical removal of an anterior cervical

locking plate, discectomy, and additional fusion at C3-4. Claimant’s attorney notified

Defendant of this surgery in November 2012. Defendant did not voluntarily pay for the

surgery.

10. In March 2013 Claimant filed a Notice and Application for Hearing (Form 6) as to whether

her April 2012 fusion surgery was causally related to her 2001 work injury. In April 2013

her treating neurosurgeon, Dr. Michael Horgan, opined by letter that the April 2012 fusion

surgery was necessitated by adjacent segment syndrome stemming from Claimant’s workrelated

fusion surgery in 2003.

11. In April 2014 Dr. Horgan determined that the second fusion surgery at C3-4 had not healed

properly, and recommended revision surgery. In November 2014 Dr. Horgan performed a

bilateral C3-4 laminotomy and posterior cervical fusion with mass instrumentation.

Defendant voluntarily paid for this surgery.

12. At her attorney’s request, in June 2005 Claimant underwent an independent medical

examination with Dr. White, an occupational medicine specialist. Dr. White determined that

she was at a medical end result and assigned a whole person permanent impairment rating of

35 percent. Of this amount, he attributed twelve percent to Claimant’s 2012 and 2014

surgeries, both of which post-dated Dr. Backus’ 22 percent impairment rating.

13. In September 2015 Claimant made a demand for additional permanent partial disability

benefits based on Dr. White’s impairment rating.

14. In December 2015 Dr. White re-examined Claimant and confirmed his whole-person

impairment rating of 35 percent relative to the cervical spine.

15. In March 2016 the Department issued an interim order that Defendant pay for the April 2012

fusion surgery at C3-C4.

4

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 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. Heritage Realty of Vermont, 137 Vt.

425, 428 (1979).

2. The parties here each claim that they are entitled to judgment in their favor as a matter of law

on the question of Claimant’s entitlement to additional permanent partial disability

compensation. Claimant asserts that her claim is timely under 21 V.S.A. § 660(a) and that

she is entitled to the additional benefits as a matter of law. Defendant asserts that Claimant’s

request for additional compensation is time-barred under 21 V.S.A. § 668.

3. Section 660(a) of the Vermont Workers’ Compensation Act sets forth the general statute of

limitations applicable to workers’ compensation claims. It provides: “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.”

4. Section 660(a) does not specify a time limit on a claimant’s subsequent claims for specific

benefits stemming from a timely filed claim, but Workers’ Compensation Rule 3.1700

imposes such a limit. Rule 3.1700 provides:

Statute of limitations. Proceedings to initiate a claim for a work-related injury

may not be commenced after three years from the date of injury. 21 V.S.A. §

660(a). This provision shall not be construed to limit a subsequent claim for

benefits stemming from a timely filed work-related injury claim; such claims shall

be filed within six years of the date on which they accrue. 2

2 Rule 3.1700 became effective on August 1, 2015. Prior to that date, the limitations period derived from the

limitations period for contract actions generally. Smiley v. State, 2015 VT 42; Hoisington v. Ingersoll Electric,

Opinion No. 52-09WC (December 28, 2009) (six-year contract statute of limitations applies), citing Fitch v. Parks

& Woolson Machine Co., 109 Vt. 92, 98 (1937).

5

5. Neither § 660(a) nor Rule 3.1700 bar Claimant’s claim for additional permanent partial

disability compensation. Claimant complied with § 660(a) by initiating a claim for her workrelated

injury in 2001, the year in which the work-related accident occurred.3 She complied

with Rule 3.1700 by filing her subsequent claim for additional permanent partial disability

compensation on September 24, 2015, less than four months after her claim for additional

compensation arguably accrued by becoming reasonably discoverable and apparent. See,

e.g., Longe v. Boise Cascade Corp., 171 Vt. 214, 219 (2000) (statute of limitations begins to

run from “the point in time when an injury becomes reasonably discoverable and apparent”),

citing Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 447 (1985); see also

Kraby v. Vermont Telephone Co., 2004 VT 120 (claim for permanent partial disability

benefits not reasonably discoverable and apparent until claimant reaches an end medical

result).

6. If § 660(a) and Rule 3.1700 were the only time limits applicable to her claim for additional

compensation, as Claimant suggests in her motion, then her claim might go forward.

However, Claimant is not just seeking additional benefits; she is seeking to modify an award

of compensation that has already been approved. Accordingly, her request is governed by a

different provision of the statute than the one she cites in her motion.

7. Section 662(a) of the Workers’ Compensation Act provides that if the commissioner

approves an agreement for compensation entered into between an employer and an

employee, the agreement “shall be enforceable and subject to modification as provided by

sections 668 and 675 of this title.” Claimant and Defendant here entered into an Agreement

for Permanent Partial Disability Compensation (Form 22), and the Department approved

their agreement on August 20, 2004. That duly executed and approved agreement constitutes

a binding and enforceable contract, subject to modification only as provided in the statute.

8. Section 668 of the Workers’ Compensation Act, entitled “Modification of Awards,” provides

in part:

Upon the commissioner’s own motion or upon the application of any party in

interest upon the ground of a change in the conditions, or whenever doubts have

arisen as to the jurisdiction of the commissioner at the time the petition was

presented, the commissioner may at any time within six years of the date of award

review any award by giving at least six days’ notice thereof to the parties

personally, or to the attorneys appearing in the cause. On such review, the

commissioner may make an order ending, diminishing or increasing the

compensation previously awarded, subject to the maximum or minimum provided

in this chapter.

3 In 2001, § 660(a) provided a six-year statute of limitations. In 2003, the legislature amended § 660(a), by reducing

the limitations period from six years to three years. Claimant here initiated her claim less than one year following

her injury.

6

9. Prior to 1993, § 668 allowed for an award to be modified without referencing a statute

of limitations. In 1993 the legislature amended the section, by inserting the words

“within six years of the date of award” preceding the words “review any award” in

the first sentence. By doing so, the legislature manifested its specific intent to limit

the time frame for seeking modification of an award to six years.

10. The Department approved Claimant’s permanency award on August 20, 2004. She had six

years from that date within which to seek modification upon the ground of a change in

conditions. That deadline passed on August 19, 2010.

11. Claimant requested modification of her permanent partial disability award on September 24,

2015, on the grounds that her 2012 and 2014 surgeries resulted in a higher permanent

impairment rating than the one on which her 2004 permanency award had been based.

However, her request came eleven years after her initial award was approved, and therefore

five years beyond the statutory time limit.

12. The Department considered the same issue in Greenia v. Marriott Corp., Opinion No. 46-

01WC (January 29, 2002). The claimant in Greenia suffered a work-related back injury in

1989 and received an award pursuant to an Agreement for Permanent Partial Disability

Compensation that the Department approved in June 1990. The claimant’s condition

worsened over time, and she sought modification of her award based on two new

permanency evaluations. The commissioner wrote: “Section 668 allows for modification of

awards on the ground of a change in condition, if brought within six years of the date of the

award. In this case, that exception does not apply because the action was brought well

beyond six years.” Id.

13. Three years later, the Department partially overruled Greenia, on grounds that do not apply

to the instant case. See K.T. v. Specialty Paperboard, Opinion No. 33-05WC (June 24,

2005). The claimant in that case entered into an Agreement for Permanent Partial Disability

Compensation, which the Department approved. More than six years later, he sought

permanent total disability benefits arising out of the same work-related injury. The defendant

argued that he was time-barred from receiving the additional benefits under § 668 because

more than six years had elapsed since the original award. The commissioner held that § 668

did not apply to the claim for permanent total disability because the original award was for

permanent partial disability, which was not the same benefit. Accordingly, considering an

award of permanent total disability benefits would not require modifying the original award

of permanent partial disability benefits for purposes of the statute.

14. Claimant cites several cases in her motion, but none of them govern the result here.

In Hoisington v. Ingersoll Electric, Opinion No. 52-09WC (December 28, 2009), the

claimant received permanent partial disability benefits for a shoulder injury. Later,

she sought to add a claim for benefits related to a cervical spine injury. The

applicable statute of limitations for the new injury was three years, as provided for in

21 V.S.A. § 660, not the six-year limitations period for modifying a permanency

award set forth in § 668.

7

15. Claimant also cites Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443,

447 (1985) for the proposition that the statute of limitations would begin to run on her

claim for additional permanent partial disability compensation only when she reached

an end medical result. Hartman was decided in 1985, eight years before the

legislature amended 21 V.S.A. § 668 to add a six-year statute of limitations for

modifying an existing award. Thus Claimant’s reliance on Hartman is misplaced.

16. The statute of limitations set forth in § 668 is narrow in scope, applying only to requests to

modify an existing award. If a claimant is seeking a benefit that was not already the subject

of an award, including a benefit stemming from a new injury or aggravation, then 21 V.S.A.

• 660(a) and Rule 3.1700 govern. Only if the claimant is seeking to modify a previously

approved award under § 668 must the request to do so be made within six years thereafter.

The statutory language is clear, and unless and until the legislature acts to revise it, I am

bound to enforce it as written.

17. The Vermont Supreme Court has specifically approved this interpretation of the statute. In

Marshall v. State, Vermont State Hospital, 2015 VT 47A, the Court cited with approval the

Department’s decision in Catani v. A.J. Eckert Co., Opinion No. 28-95WC (May 17, 1995).

The Court wrote that permitting parties to challenge the finality of an approved award for

permanent partial disability compensation would open the floodgates of litigation and result

in a chaotic loss of certainty. Marshall, supra, ¶ 16. These findings emphasize that

agreements for permanent partial disability compensation are intended to be permanent and

that modifying such agreements must be closely scrutinized. Heller v. Bast & Rood

Architects, Opinion No. 14-13WC (May 9, 2013).

18. The purpose of the Vermont Workers’ Compensation Act is to provide employees a remedy

which is both expeditious and independent of proof of fault, and to provide employers a

liability which is limited and determinate. Kittell v. Vermont Weatherboard, Inc., 138 Vt.

439, 441 (1980). In order to strike a balance between these interests, the legislature has

approved the concept that unless modified under § 668, an award of the commissioner is

final.

19. I conclude that Claimant has missed the statute of limitations for seeking to modify her

permanent partial disability award under § 668. I am therefore without authority to review or

modify it.

8

ORDER:

Based on the foregoing, Defendant’s motion for summary judgment is hereby GRANTED.

Claimant’s cross motion for summary judgment is hereby DENIED and her claim for additional

permanent partial disability benefits related to her April 2001 compensable cervical spine injury

is hereby DISMISSED.

DATED at Montpelier, Vermont, this 7th day of November 2016.

__________________________

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.