STATE OF VERMONT
DEPARTMENT OF LABOR
Lydia Diamond v.Burlington Free Press Opinion No. 21-16WC
- By: Beth A. DeBernardi, Esq.
Administrative Law Judge
For: Anne M. Noonan
State File No. R-19764
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
William B. Skiff, Esq., for Claimant
- Justin Sluka, Esq., for Defendant
Is Claimant entitled to additional permanent partial disability benefits after having received a
permanent partial disability award for the same injury in 2004?
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
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
Defendant’s Exhibit Q: IME report from Dr. White, December 7, 2015
FINDINGS OF FACT:
The following facts are undisputed:
- Claimant is an employee and Defendant is an employer within the meaning of the Vermont
Workers’ Compensation Act.
- Judicial notice is taken of all forms and correspondence in the Department’s file relating to
- 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.
- 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.
- 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.
- Claimant recovered well from the surgery, with full range of motion. Her doctor released her
to return to work in January 2004.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- In September 2015 Claimant made a demand for additional permanent partial disability
benefits based on Dr. White’s impairment rating.
- In December 2015 Dr. White re-examined Claimant and confirmed his whole-person
impairment rating of 35 percent relative to the cervical spine.
- In March 2016 the Department issued an interim order that Defendant pay for the April 2012
fusion surgery at C3-C4.
CONCLUSIONS OF LAW:
- 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).
- 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.
- 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.”
- 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).
- 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
- 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.
- 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.
- Section 668 of the Workers’ Compensation Act, entitled “Modification of Awards,” provides
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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
- 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
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
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.