Wednesday, April 29, 2015

"Back" to the Future

Marshall v. State, 2015 VT 47

By Andrew Delaney

If you’ve ever injured your back, you probably know that it’s never really the same as it was before the injury. Just twisting the wrong way can mean the better part of a week in bed annoying the hell out of one’s spouse asking for more pillows, the television remote, Tylenol, and food and drink. Or at least for me that’s what it means.

When you get injured at work, you usually qualify for worker’s compensation benefits. Once you’ve reached the end of your treatment, a doctor (or two or three) will assess whether the injury has a permanent effect and if so, to what degree. This analysis results in a so-called whole-person impairment rating.

The short story is that Mr. Marshall, a state employee, injured his back at work back in 2002. He received “an 8% whole-person impairment rating, with 6% of that rating referable to a previous injury.” He settled with his employer and the commissioner of the department of labor approved the settlement. Six years later, he completed “two more permanency evaluations with different doctors who both used a method that the first doctor had not used.” Both resulted in higher ratings. So Mr. Marshall made a claim for additional benefits. The commissioner ruled against him. So Mr. Marshall appealed to the superior court, which found in his favor after a bench trial and awarded additional benefits. 

On appeal, the SCOV vacates the superior court’s decision.

Mr. Marshall worked at the state hospital “as a psychiatric technician and ward aide.” He seems to have hurt his back every five years (’87, ’92, ’97, ’02). He got a 10% permanent rating after the ’92 injury and the State started paying permanent partial disability benefits; there was no adjustment after the ’97 injury. In ’02, he was helping a coworker restrain a self-abusive patient when he really tweaked his lower back. Apparently this one—in the colloquial sense—was a “good one.” He didn’t get surgery or return to work.

Claimant’s treating chiropractor opined that Mr. Marshall had reached medical end and had 8% whole-body impairment, with 6% attributable to prior injuries. So Mr. Marshall settled with his employer for 2% (there’s a whole formula and stuff here but we needn’t get into all that—this part is just 8-6=2). The commissioner approved the settlement.

But Mr. Marshall’s back didn’t get better. He continued to suffer from pain and a late-2004 MRI revealed a herniated disc, though a 2002 MRI hadn’t. So Mr. Marshall got a lawyer and went to see a new doctor. Long story short, new doc ended up at a 17% impairment rating using a different method than old doc.

Employer’s doc, again making a long story short, arrived at 2%, though he used the same method of assessment as new doc. It seems the parties agreed that old doc used the wrong method in this sense. In both cases, the math looks a little fuzzy, but hey—I went to law school not math school so what the hell do I know?

At any rate, based on the discrepancies and different methods, Mr. Marshall asked the commissioner to order more benefits based on his worsened condition. He also argued that there was a mutual mistake (as to the method of assessment) and the prior award should be reformed under the mutual mistake doctrine. The commissioner ruled that Mr. Marshall had failed to connect the dots between his ’02 injury and his worsened condition.

On the mutual mistake thing, the commissioner found that neither party had a time machine so they couldn’t go back to show what Mr. Marshall’s impairment rating woulda been using the other method back when they first settled, so that wasn’t gonna fly. Even if doc one made a mistake, the commissioner wasn’t ready to call that a mistake of fact.

Mr. Marshall appealed to the superior court, and had a little better luck. The superior court—despite finding that the herniated disc wasn’t related to the ’02 injury—ruled that Mr. Marshall was entitled to ongoing medical benefits for his pain. The superior court also ruled in Mr. Marshall’s favor on the permanent partial disability benefits, ultimately concluding that doc one’s use of the wrong method “was a material mistake of fact that justified reforming the . . . agreement.” After analyzing the evidence, the court concluded that Mr. Marshall was entitled to an additional 14% whole-person-impairment award and ordered it. The superior court also ordered attorney’s fees for Mr. Marshall. Though the opinion doesn’t say so explicitly, I’m taking a shot in the dark and guessing the State appealed.

The SCOV notes that it can do whateva it wants with the superior court’s legal conclusions. There’s a case that more or less says so, but you don’t really come here for that sort of thing.

The State’s first argument is that the superior court didn’t have subject matter jurisdiction to mess with the commissioner’s legal conclusion that the old agreement was binding. There’s a provision that says you can only appeal pure questions of law to the SCOV. Here, the SCOV concludes that the legal basis for an award of permanent partial disability benefits is grounded in a factual medical basis, so it’s a mixed question of fact and law and the superior court was right to have a trial.

But the superior court was required to give “traditional deference to the commissioner’s interpretation of workers’ compensation statutes.” The SCOV notes that this particular case presents a “highly specialized subject matter within the commissioner’s expertise.” Additionally, a party seeking to set aside or reform a settlement agreement must “meet a very high burden.” Once an agreement has been executed and approved, in general, it’s “no longer subject to discussion or dispute by either party.”

The SCOV holds that the differences in ratings and methodology “are insufficient to serve as grounds for reopening the original order for compensation.” This is because an impairment rating is an expert opinion derived from the “measurable data taken at a specific point in time, a person’s symptoms at the time of the evaluation, and the medical evaluator’s professional judgment.” Put another way, “Ain’t nobody got no time machine up in here.”

Both new doctors testified that you have to make estimates in impairment ratings and that opinions differ. Nobody was able to say what Mr. Marshall’s rating was or should’ve been in 2003 when the agreement was made.

Thus, the SCOV concludes that “as a matter of law that the claimant in this case has failed to meet his burden of demonstrating a mistake of fact sufficient to require reformation of the” approved agreement. The SCOV limits the holding, however, by declining “to hold that an impairment rating can never be the basis for reforming a[n] . . . agreement under the material-mistake-of-fact doctrine. The SCOV holds “only that the doctrine is not available under these facts,” and doesn’t bother with a statute-of-limitations argument the State apparently had made.

Finally, on the attorney’s fees issue, the SCOV reasons that because Mr. Marshall (at least now) didn’t “prevail” (which is required under the statute), he doesn’t get attorney’s fees.

Worker’s comp can be confusing at times, but the issue in this case boils down to judicial economy: once parties enter a valid and enforceable agreement, the courts are not inclined to reopen that agreement absent something particularly crazy.

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