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Diamond v. Burlington Free Press

Supreme Court of Vermont

October 6, 2017

Lydia Diamond
v.
Burlington Free Press

         On Appeal from Commissioner of Labor

          Anne M. Noonan, Commissioner

          William B. Skiff, Burlington, for Plaintiff-Appellant.

          J. Justin Sluka and Alycia M. Sanders of Ellis Boxer & Blake PLLC, Springfield, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. This case requires us to determine whether a workers' compensation award of permanent partial disability (PPD) benefits based on damage to the C4-6 levels of claimant's cervical spine precludes a subsequent award of PPD benefits, more than six years later, for damage to the C3-4 levels of claimant's spine that arose, over time, from the same work injury. Claimant Lydia Diamond appeals the summary judgment decision of the Commissioner of the Department of Labor denying her claim for PPD benefits associated with the C3-4 levels of her spine. The Commissioner determined that claimant's request for the additional PPD benefits amounted to a request to modify the prior PPD award and was time-barred. We conclude, based on the specific language of the initial PPD award, that it did not purport to encompass injury to other levels of claimant's cervical spine beyond the C4-6 levels. Accordingly, claimant is not seeking to modify the prior PPD award but, rather, seeks PPD benefits for physical damage not encompassed within a previous PPD award. Her claim is therefore timely, and we reverse and remand.

         ¶ 2. The following facts are undisputed in the summary judgment record. In April 2001, claimant was injured in a motor vehicle collision while delivering newspapers for employer. The crash exacerbated claimant's preexisting right carpal tunnel syndrome. She underwent right carpal tunnel release surgery in February 2002, and had a surgical release of her left carpal tunnel in January 2003.[1] After the surgeries, it became clear that claimant had unresolved neck pain relating to the work accident. Her doctor diagnosed disc herniations in her cervical spine and in September 2003 performed discectomies at the C5-6 and C6-7 levels of her cervical spine and a two-level cervical fusion at C4-C6.[2]

         ¶ 3. In March 2004, Dr. Verne Backus conducted an independent medical examination. He diagnosed claimant with "[t]wo-level severe cervical spondylosis with spinal stenosis and myelopathy status post two-level fusion" at discs C4-5 and C6, as well as bilateral carpal tunnel syndrome. Dr. Backus determined that claimant had reached maximum medical improvement insofar as her symptoms were stable and manageable from the neck surgery and there was currently no additional treatment that would substantially change her condition. He described her overall prognosis to be fair but noted that "[t]wo-level fusion does have some risk for future complications of cervical spine above or below this level or a pseudoarthrosis." He evaluated her permanent impairment according to the American Medical Association Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides). Dr. Backus used the range-of-motion method to estimate claimant's impairment because claimant's surgery affected multiple levels of her cervical spine. He determined that she had a whole-person impairment rating of 22% for the spine injury, and an additional 1% impairment for the left upper extremity. He did not include claimant's right carpal tunnel syndrome in his impairment rating because permanent partial disability for that injury had already been awarded.

         ¶ 4. In August 2004, claimant and employer entered into an Agreement for Permanent Partial Disability Compensation, also known as a "Form 22" agreement. The parties agreed that claimant suffered an accident while working for employer and that claimant "sustained the following injury: right carpal tunnel and cervical spine." The agreement explicitly stated that the PPD award was based on Dr. Backus' report and impairment ratings of 22% and 1%. The Commissioner approved the agreement.

         ¶ 5. Several years later, claimant developed neck and arm pain that grew worse over time. A 2012 MRI revealed progressive cervical myelopathy with a large disc herniation at level C3-4, adjacent to the C4-6 fusion that had been performed in 2003. This was one of the areas Dr. Backus identified as having some risk for future complications. Claimant underwent surgery in April 2012 to repair the damage at C3-4.

         ¶ 6. In November 2012, claimant notified employer of her continuing symptoms and the recent surgery. In March 2013, claimant filed a notice and application for a hearing before the Commissioner to determine whether the damage at C3-4 and the surgery to repair it was causally related to the 2001 work injury. Her surgeon opined that her progressive disease at level C3-4 was related to the previous fusion surgery she had in 2003.

         ¶ 7. Meanwhile, claimant's 2012 surgery did not heal properly, and she underwent another surgery in November 2014. The surgeon performed a bilateral C3-4 laminotomy and fusion of those discs. Employer voluntarily paid for this surgery.

         ¶ 8. In June 2015, Dr. George White conducted an independent medical examination of claimant and found that she had again reached end medical result. He evaluated claimant's impairment using a combination of the diagnosis-related-estimate method and the range-of-motion method pursuant to the AMA Guidelines. He determined that under either method, claimant had a 35% whole-person ...


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