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Marshall v. State

Supreme Court of Vermont

March 6, 2015

Jeffrey Marshall
v.
State of Vermont, Vermont State Hospital

Page 436

On Appeal from Superior Court, Washington Unit, Civil Division. Helen M. Toor, J.

Patricia K. Turley and Stephen L. Cusick of Zalinger Cameron & Lambek, P.C., Montpelier, for Plaintiff-Appellee.

Stephen D. Ellis and William J. Blake, IV of Ellis Boxer & Blake PLLC, Springfield, for Defendant-Appellant.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Durkin, Supr. J., Specially Assigned

OPINION

Page 437

Reiber, C.J.

[¶1] This appeal follows a dispute over an order based on a workers' compensation agreement. Claimant injured his back in 2002. Claimant received an 8% whole-person impairment rating, with 6% of that rating referable to a previous injury. Based on this rating, claimant executed an Agreement for Permanent Partial Disability Compensation (Form 22) with his employer, the State, which the Commissioner of the Department of Labor then approved. Six years after the commissioner ordered the award, claimant underwent two more permanency evaluations with different doctors who both used a method that the first doctor had not used. Each of the subsequent evaluations resulted in higher whole-person impairment ratings before consideration of the portion attributable to any pre-existing impairment. Based on the higher ratings, claimant made a claim for additional benefits related to the 2002 injury. Claimant asserted that the award should be modified because his medical condition had worsened, or, alternatively, that the parties had based their Form 22 agreement upon a material mistake of fact. The commissioner ruled in the State's favor. Claimant then appealed to the superior court, which reversed the decision of the commissioner and awarded claimant additional benefits after a bench trial. We vacate the decision of the superior court as to the issues on appeal.

I.

[¶2] The following facts were found by the commissioner and the superior court and are undisputed, unless noted otherwise. Claimant worked at the Vermont State Hospital as a psychiatric technician and ward aide. His duties involved lifting and dealing with patients who could be combative. Claimant suffered work-related injuries on three separate occasions in 1987, 1992, and 1997. All of these claims related to low back pain in the L5-S1

Page 438

region of his spine, with radicular symptoms down claimant's left leg. Claimant underwent surgery after each of these injuries and returned to work. After the 1992 injury, claimant's surgeon rated him with a 10% permanent impairment to his spine, and the State began paying permanent partial disability benefits. There was no new rating for the 1997 injury.

[¶3] In June 2002, claimant assisted a coworker in restraining a self-abusive patient. At one point, the patient lifted both legs off the floor, putting his entire weight on claimant and his coworker. Claimant immediately experienced low back pain, with sciatic pain radiating down both legs. Claimant's symptoms after the 2002 injury differed from the previous three injuries in that low back pain predominated over radicular pain, and he experienced radicular symptoms on both sides rather than just his left side. Following the 2002 injury, claimant did not have surgery and did not return to his job at the hospital and was evaluated for a new work-related injury claim.

[¶4] In a report issued in 2003, Dr. Maurice Cyr, claimant's treating chiropractor, concluded that claimant had reached a medical end result and assigned a whole-person impairment rating of 5-8% for claimant's lumbar spine injury. On the basis of this report, the parties entered into a Form 22 settlement agreement that identified claimant's lumbar spine impairment as 8% whole person, from which was apportioned 6% on account of claimant's permanent partial disability award for his 1992 injury.[1] See 21 V.S.A. § 648(d) (" An impairment rating determined pursuant to this section shall be reduced by any previously determined permanent impairment for which compensation has been ...


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