Tag Archive for: MOTION TO AMEND

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

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Jeffrey Marshall v. State of Vermont, Vermont State Hospital (March 25, 2011)
Jeffrey Marshall Opinion No. 01R-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont,
Vermont State Hospital For: Anne M. Noonan
State File No. S-22038
The Commissioner previously decided this claim on January 25, 2011. In her opinion, she rejected Claimant’s claim for additional permanent partial disability and/or medical benefits causally related to his June 2002 compensable work injury.
Claimant now seeks reconsideration because of “significant errors” in the Commissioner’s decision. Essentially, Claimant argues that various findings of fact are unsubstantiated by the evidence adduced at formal hearing and that therefore the Commissioner’s conclusions must fail.
Claimant asserts that the Commissioner misstated the evidence by finding that in the opinion of Defendant’s medical expert, Dr. Boucher, “[M]ore likely than not the June 2002 injury is no longer contributing significantly to Claimant’s ongoing complaints.” Marshall v. State of Vermont, Opinion No. 01-11WC (January 25, 2011) at Finding of Fact No. 36.
The basis for this finding was Dr. Boucher’s March 8, 2010 independent medical evaluation report. On page 9 (Joint Medical Exhibit at p. 272), in the section labeled, “Causation,” the report states:
[The June 6, 2002] incident was a simple lumbosacral strain, not resulting in any change in radiculopathy or new structural injury. Given the examinee’s very significant prior history including three low back surgeries, I must state that more likely than not, the June 6, 2002 incident does not continue to significantly contribute to the examinee’s low back complaints.
It is true that Dr. Boucher gave somewhat conflicting testimony in his deposition, primarily in the context of explaining the basis for his permanent impairment rating. Nothing compels the fact-finder to accept that testimony as a more credible statement of the doctor’s opinion than what he wrote in his report, however. Indeed, one might argue that the opinions stated in a written report are likely to be more thoughtfully considered and expressed than those that are elicited upon cross-examination in a deposition. With that in mind, I conclude that there
is ample support in the record for Finding of Fact No. 36, and therefore I see no basis for amending or reconsidering it.
Claimant next argues that there is no support for the Commissioner’s determination that his L4-5 disc herniation is responsible for his current condition. Yet in his July 16, 2008 report (Joint Medical Exhibit at p. 256) Claimant’s own medical expert, Dr. Banerjee, stated:
His previous disc herniations were at L5-S1 level on the left side, and his current problem is related to right L4-5 disc herniation resulting from work injury in June 2002.
The Commissioner rejected Dr. Banerjee’s conclusion that the L4-5 disc herniation resulted from the June 2002 work injury, and on those grounds determined that Claimant had failed to sustain his burden of proving a causal connection between his current condition and his compensable injury. Marshall, supra at Conclusion of Law No. 6. The facts adequately support this conclusion and therefore there is no basis for amending or reconsidering them.
Last, Claimant argues that there was no basis for the Commissioner to have upheld the validity of the 2004 permanency agreement. Claimant asserts that because both Dr. Boucher and Dr. Banerjee testified that Dr. Cyr’s permanent impairment rating was calculated incorrectly, (a) it must necessarily be so; and (b) the Form 22 must be invalidated on mutual mistake of fact grounds.
Neither of these assertions is correct. I am not compelled, first of all, to accept either Dr. Boucher’s or Dr. Banerjee’s expert opinions as correct, even if their testimony was undisputed. Goode v. State, 150 Vt. 651, 652 (1988) (mem.), citing Shortle v. Central Vermont Public Service Corp., 134 Vt. 486, 489 (1976). To the contrary, I remain convinced that considering both the medical record and the relevant portions of the AMA Guides, there was sufficient evidence from which to find that Dr. Cyr’s rating may well have been appropriate at the time that it was rendered.
As stated in my earlier opinion, furthermore, even if Dr. Cyr’s interpretation of the Guides was incorrect, the result was a mistaken opinion, not a mistaken fact. Were I to rule otherwise, no permanency agreement would ever be safe from reappraisal by experts retained even years after the fact. The result would be impractical and unfair to injured workers and employers alike.
I conclude that there is no basis for amending or reconsidering the findings or conclusions stated in my earlier opinion. Claimant’s Motion to Amend is DENIED.
DATED at Montpelier, Vermont this 25th day of March 2011.
Anne M. Noonan

 J. B. v. Steven Betit (September 26, 2008)

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J. B. v. Steven Betit (September 26, 2008)
J. B. Opinion No. 32V-08WC
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Steven Betit
For: Patricia Moulton Powden
State File No. Y-51024
Defendant moves to vacate the Commissioner’s Amended Order, in which Claimant was awarded benefits in a lump sum with the appropriate social security offset language required by 21 V.S.A. §652(c). Defendant contends that it was not served properly with Claimant’s Motion to Amend, that the issue was not tried at the formal hearing and that no evidence was presented upon which to base the amended Order.
In response to Defendant’s motion, Claimant has submitted his attorney’s affidavit documenting that the Motion to Amend was in fact properly served on Defendant. Claimant also notes that he included a request for payment in a lump sum in his original proposed findings, and referred to the social security offset issue as the basis for concluding that a lump sum payment was in his and his family’s best interests.
According to 21 V.S.A. §652(b), upon application of the employee the commissioner may authorize payment of permanency benefits in a lump sum if she finds it to be in the best interest of the employee or the employee’s dependents to do so. Notably, the statute does not give the employer any voice in this matter.
I find that it was proper to accept Claimant’s proposed findings as to the basis for his lump sum request. I further find that Claimant’s Motion to Amend was properly served on Defendant. Defendant’s Motion to Vacate is DENIED.
DATED at Montpelier, Vermont this 26th day of September 2008.
Patricia Moulton Powden

Paul Hill v. CV Oil Co, Inc. (August 7, 2009)

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Paul Hill v. CV Oil Co, Inc. (August 7, 2009)
Paul Hill Opinion No. 15A-09WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
CV Oil Co., Inc.
For: Patricia Moulton Powden
State File No. S-03322
Defendant moves to amend that portion of the Commissioner’s May 26, 2009 Order relating to interest on the permanent partial disability benefits awarded. Defendant states two grounds for doing so. First, Defendant argues that it should not be assessed interest on the permanency awarded for Claimant’s physical injuries because Claimant previously had refused its tendered payment of the amount ultimately awarded. Second, Defendant argues that interest on the permanency awarded for Claimant’s psychological injury should be assessed only as of the date it was rated, not back to the date of end medical result.
As to the first issue, Claimant counters that he was justified in refusing Defendant’s tender because (a) it was offered as a lump sum and in a way that would not have protected Claimant’s entitlement to SSDI benefits adequately, see 21 V.S.A. §652(c); and (b) it did not account for the full extent of Claimant’s permanency, both physical and psychological. As to the second issue, Claimant argues that the appropriate date for assessing interest is the date of end medical result.
Interest on Physical Permanency Award
The Commissioner’s May 26, 2009 Order awarded permanent partial disability benefits referable to Claimant’s physical injuries in accordance with Dr. White’s 7% whole person impairment rating. Defendant first proposed a Form 22 Agreement for Permanent Partial Disability Compensation in accordance with that rating in August 2004. Claimant did not sign the form and Defendant’s repeated attempts to follow up with his attorney went unanswered.1 Finally, in November 2006 Defendant sent a check for the full amount owed. To this action Claimant’s attorney finally responded, and returned the check uncashed.
1 Appended to Defendant’s Motion are nine letters addressed to Claimant’s attorney, spanning a date range from August 31, 2004 through November 20, 2006. Each one referred to prior correspondence and requested a response as to Defendant’s proposed Form 22. It would have been better had the interest issue been raised, and these letters introduced into evidence, at the formal hearing.
Claimant argues that because Defendant had not offered complete compensation for his injuries (both physical and psychological), he could not sign the proffered Form 22. According to Claimant, furthermore, to accept the tendered check without a signed Form 22 would have jeopardized his right to an offset against his monthly SSDI benefit. For those reasons, Claimant asserts that he was justified in not accepting Claimant’s proffered payment and that therefore it is appropriate to award interest now.
Claimant’s argument is not persuasive. I note, first of all, that had Claimant’s attorney responded in a more timely fashion to Defendant’s repeated attempts to resolve the physical permanency issue, the parties might have sought approval for a partial lump sum permanency payment in accordance with §652(c). Had they done so, the appropriate SSDI offset language could have been included and Claimant’s interests adequately protected. Claimant’s attorney having failed to respond, however, by the time Defendant tendered its check the payments were for past due benefits, and therefore §652(c) was no longer even applicable.
Defendant is not entirely blameless either, however. Had it acted in accordance with Workers’ Compensation Rule 3.1200, it would have notified the Commissioner and begun advancing weekly benefits much sooner than it did.
In the end, although Defendant did not follow the letter of our rules, it at least complied with their spirit – it tendered the amount that it admitted was owed and about which no genuine dispute existed. With that in mind, I find it appropriate to award interest on the physical permanency award from the date payments should have commenced – September 10, 2004, the date on which temporary disability benefits terminated on the basis of end medical result – until the date they were tendered, November 20, 2006.
Interest on Psychological Permanency Award
The Commissioner’s award of permanency benefits referable to Claimant’s psychological injury was based on his expert witness’ impairment rating, which was not issued until August 5, 2007. Defendant contends that interest should run from that date forward rather than from the date of end medical result, September 10, 2004. Defendant argues that it could not be expected to make permanency payments in accordance with an impairment rating that had not yet issued, and that therefore to impose interest from the earlier date forward would be unfair.
Prior formal hearing decisions are conflicting as to the appropriate date from which to compute interest in cases such as the present one. Compare McCrillis v. Vermont Castings, Opinion No. 62-98WC (November 7, 1998) (interest runs from date of end medical result) with Merchant v. A&C Enercom, Opinion No. 27-04WC (July 20, 2004) (interest runs from date of permanent impairment rating). The statute requires that interest be computed from “the date upon which the employer’s obligation to pay compensation under this chapter began.” 21 V.S.A. §664. According to §648(a), the obligation to pay permanent partial disability benefits begins “at the termination of total disability,” which in this case was as of the date of end medical result. The plain language of the statute, therefore, dictates that interest begin to run as of that date.2
Defendant’s Motion to Amend the May 26, 2009 Order is hereby GRANTED IN PART. Paragraph 2 of the Order is amended to read:
2. Interest on the 7% permanent partial impairment referable to Claimant’s physical injuries calculated from September 10, 2004 until November 20, 2006, and on the remaining 16% permanent partial impairment referable to Claimant’s psychological injuries calculated from September 10, 2004 forward, both in accordance with 21 V.S.A. §664.
Claimant’s request for attorney fees incurred in responding to Defendant’s Motion to Amend is hereby DENIED.
DATED at Montpelier, Vermont this 7th day of August 2009.
Patricia Moulton Powden
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.
2 Defendant was on notice as of the date of end medical result that Claimant might be entitled to permanency benefits relating to his psychological injury. A month earlier, in the context of his permanency evaluation Dr. White specifically noted that his impairment rating referred only to Claimant’s physical impairment, and that “there may be permanent impairment related to psychiatric disorders, but that would be in the realm of a psychiatrist to determine.” Defendant also could have mitigated the effect of an interest award by proffering payment in accordance with its own expert’s psychological impairment rating, which was issued in July 2007, but chose not to.

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