Appeal from Commissioner of Labor
M. Noonan, Commissioner
William B. Skiff, Burlington, for Plaintiff-Appellant.
Justin Sluka and Alycia M. Sanders of Ellis Boxer & Blake
PLLC, Springfield, for Defendant-Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
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
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. 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.
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