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Marshall v. State

Supreme Court of Vermont

May 8, 2015

Jeffrey Marshall,
v.
State of Vermont, Vermont State Hospital

On Appeal from Superior Court, Washington Unit, Civil Division Docket No. 253-4-11 Wncv, 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.

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

In response to appellant’s March 19, 2015 motion for reargument, we withdraw our original opinion issued on March 6, 2015 and issue in its place an amended opinion with the following public domain citation: 2015 VT 47A. The amended opinion differs from the original opinion only in ¶ 21 and the mandate.

Concurring: John A. Dooley, Associate Justice, Marilyn S. Skoglund, Associate Justice, Beth Robinson, Associate Justice, Thomas S. Durkin, Superior Judge, Specially Assigned.

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

The superior court’s order entitling claimant to additional permanent partial disability benefits is vacated and the matter is remanded to the superior court for entry of judgment in favor of the State on this issue. Insofar as claimant prevailed on the unappealed issue, the matter is remanded for the superior court to reassess its attorney’s fee award in light of this Court’s opinion and claimant’s partial success.

REIBER, C.J.

¶ 1. This appeal follows a dispute over an order based on a worker’s 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. ...


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