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Heller v. Bast & Rood Architects

Supreme Court of Vermont

March 28, 2014

Catherine Heller
Bast and Rood Architects

Editorial Note:

This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic 2nd Reporter

APPEALED FROM: Comm'r of Labor. DOCKET NO. T-12409.

Paul L. Reiber, Chief Justice, John A. Dooley, Associate Justice, Beth Robinson, Associate Justice.



[¶ 1] In the above-entitled cause, the Clerk will enter:

[¶ 2] Claimant in this workers' compensation dispute appeals from a decision of the Commissioner of the Department of Labor. She contends the Commissioner erred in: (1) denying her claim for additional partial permanent disability benefits after her degenerative spine condition worsened; and (2) awarding her only a portion of the cost of a medical examination. Employer Bast & Rood Architects has cross-appealed from the decision, claiming that the Commissioner erred in awarding any payment for the medical examination. We affirm.

[¶ 3] As found by the Commissioner, the facts relating to the claim for additional benefits may be summarized as follows. In January 2003, claimant slipped and fell on the ice while leaving work. Prior to the 2003 slip on the ice, claimant had a history of treatment for lower back pain following motor vehicle accidents in 1986 and 2001. Nevertheless, the employer accepted as compensable the complaints referable to her lower back. In 2007, the Department approved the parties' Agreement for Permanent Partial Disability Compensation (Form 22) based on a ten percent whole person impairment rating rendered by Dr. Thomas Grace in August 2005.[1]

[¶ 4] In 2010, following a determination by the Commissioner as to the reasonableness of certain treatments, claimant resumed treatment for her compensable lower-back condition. She underwent a series of spinal injections, but the pain persisted. In February 2012, claimant was examined by Dr. Keith Harvie, a board-certified osteopath and orthopedic surgeon. In his subsequent report, Dr. Harvie rated claimant's current whole person impairment referable to her lumbar spine at sixteen percent; the increase from the prior rating of ten percent was attributable to claimant's reduced ability to extend backwards. Dr. Grace also conducted an additional evaluation, in April 2012, concluding that claimant's whole person impairment to the lumbar spine had increased to fifteen percent. Claimant sought additional permanent partial disability benefits on the basis of Dr. Harvie's rating.

[¶ 5] In evaluating the claim, the Commissioner acknowledged that Vermont law allows for an award of workers' compensation benefits to be modified at any time within six years from the date of the original award, " upon the ground of a change in the conditions." 21 V.S.A. § 668. She explained that because permanent partial disability benefits are not due until an injured worker " is as far restored as the permanent character of [the] injuries will permit," generally an injured claimant is not expected to become more disabled after reaching an end medical result. The concept of " end medical result" is based on a picture of an ever-improving condition, rather than one that is worsening. The statute allowing modification of permanent partial disability awards encompasses the alternate possibility that a claimant's condition might continue to deteriorate even after an end medical result is declared. However, the Commissioner also noted that any change in an injured worker's condition that results in an increased permanent impairment must be shown to have been caused by the work injury rather than non-work-related factors.

[¶ 6] With respect to this causation question, the Commissioner noted that Dr. Harvie and Dr. Grace agreed that the degeneration in claimant's lumbar spine had worsened, causing decreased range of motion, but differed " as to the role, if any, that [c]laimant's 2003 work injury has played in the process." According to Dr. Harvie, the work-related fall had a " 'profound' impact on the rate at which the preexisting degenerative disease in her lumbar spine has progressed." He acknowledged, however, " that weight gain, lack of exercise and core strength, family history and the aging process in general all have probably contributed," and could not specifically quantify the increase in permanent impairment attributable to the fall and that attributable to the other causes.

[¶ 7] The Commissioner acknowledged that Dr. Grace agreed that multiple factors had caused the degeneration in claimant's lumbar spine to worsen over time, including body mass, age, and genetics, and that Dr. Grace had further acknowledged that the 2003 fall had " likely played a role in the process." However, he " disagreed that trauma from the fall reasonably can be held accountable at this point for whatever ongoing degeneration has occurred." Instead, Dr. Grace identified the aging process " as the most likely causal factor," leading to increased arthritic degeneration, joint stiffness, and decreased range of motion. In Dr. Grace's opinion, the Commissioner noted, it was " difficult to speculate whether [c]laimant would have exactly the same range of motion in her lumbar spine now even if she had not suffered her 2003 work injury."

[¶ 8] In assessing the conflicting expert opinions, the Commissioner noted that Dr. Harvie had examined claimant only once, some nine years after the work-related injury, while Dr. Grace had the benefit of examining her multiple times since that time, lending added credibility to his opinion on how claimant's condition had " evolved over time." In addition, the Commissioner noted that Dr. Harvie could not quantify the impact of the work-related injury on the continuing degeneration in claimant's lumbar spine, and he acknowledged that claimant could slow the rate of degeneration through diet and exercise. In the Commissioner's view, this lent additional support to the inference " that such non-work-related factors are more likely driving [c]laimant's current circumstance." The Commissioner thus accepted Dr. Grace's opinion that " the natural aging process was the most likely cause of [claimant's] increased permanent impairment," and concluded that claimant had failed to prove that the work-related injury had caused her permanent impairment to increase since the initial award.

[¶ 9] The Commissioner noted that when the employer accepted claimant's claim on account of the 2003 fall it was not accepting responsibility for the entire course of claimant's degenerative lumbar spine condition. That condition preceded the 2003 fall. What the employer accepted was the compensability of " the acceleration or aggravation of that condition" as a result of the fall. The permanency benefits claimant previously received compensated her for that compensable consequence. The Commissioner concluded, " [a]t some point, the causal relationship between her work ...

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