Modification? Not really.

Shine bright like a diamond.

Diamond v. Burlington Free Press

2017 VT 93

I’ve unearthed this gem from the depths of the archives. 

Workers’ compensation is its own strange animal within our legal system. In Vermont it’s done primarily at the administrative level. It’s got its own language and its own rules and its own forms. It’s also a little bit misunderstood, so I will do my best to make this as clear as possible.

The point of workers’ compensation (or “comp,” as we shall call it) is to compensate people when they are injured at work and are unable to do their jobs normally. Employers carry special insurance for this, and it’s the insurance company that pays the injured employee while he or she is unable to work due to the injury. The insurance also helps cover medical treatment related to the injury. It’s generally the goal of the comp system to get injured workers healed and to get them back to work. Sometimes they can go back to their normal jobs; sometimes they get different jobs, depending on the impact of the injury.

Here, Ms. Diamond worked for the Burlington Free Press delivering newspapers. While working in 2001 she was in a vehicle accident, which aggravated a prior wrist injury and part of her cervical spine. This required treatment, and as a result of all this, she was out of work for some time. About 2 years later she had some complications in her neck and needed a second surgery.

From my reading of this, to this point the employer willingly paid for these treatments. Ms. Diamond saw an independent medical examiner, who gave her a partial permanent disability (PPD) rating based on the injuries. The examiner also noted there was a possibility she could have some future complications.

The parties – the Burlington Free Press and Ms. Diamond – settled her then-pending workers’ comp claim in the summer of 2004. It’s important to know that workers’ comp settlements have to be approved by the Commissioner of Labor, and this kind of settlement has to be supported by appropriate documentation. Here, the parties appended the independent examiner’s report and noted they were settling the PPD claim for “…the following injury: right carpal tunnel and cervical spine.” The parties specifically noted that the amount of the settlement was based on the independent medical examiner’s findings.

It would be great if this was the end of this, but it’s not.

In or around 2012 Ms. Diamond started to develop neck and arm pain. She went to the doctor, and lo and behold – she had some problems with discs in her cervical spine area adjacent to where she had previously had surgery. This was consistent with the early 2000s opinion from the independent medical examiner who said she may have some future complications. Ms. Diamond notified her employer of the problem. She had surgery in 2012, which unfortunately, did not heal properly so she needed another surgery in 2014.  This was all paid for by the employer voluntarily.

In 2015 she had a second independent medical examination with a different doctor. This doctor gave her a new partial permanent disability rating, now factoring in issues from the 2012 and 2014 surgeries. The rating was higher than before. Ms. Diamond filed a claim for PPD benefits based on the new rating.

This is where the employer objects. The employer filed a motion for summary judgment and Ms. Diamond cross-filed for summary judgment. The Department of Labor granted the employer’s motion, and Ms. Diamond appealed. SCOV reversed.

Here’s the legal deal. The employer characterized Ms. Diamond’s second PPD claim as a modification of the settlement the parties reached in 2004. There’s a part of the workers’ comp law that allows modifications but only within 6 years, and in limited circumstances. SCOV finds that although the injuries were a related constellation of things, that this was not a modification and that the request for a claim was properly made.

The 2004 settlement was supported by documentation from the first independent medical examiner and was for specified injuries. It put the parties on notice that it was settling certain express claims. Although the settlement itself said “cervical spine” it also incorporated the examiner’s report, which talked about specific parts of the spine. The parties also knew from that report there could be some future problems near the surgical site.

Ms. Diamond’s 2012 injury was also to her cervical spine, but to a different part of it than was injured in 2004 and covered by that settlement. The employer tried to argue that the claim for benefits relative to the new injury was an attempt to modify her prior settlement, and that she was beyond the 6-year statute of limitations to do that. SCOV disagrees, and said this is actually a new injury, because it was to a part of her body that was outside the 2004 settlement.

Lest you think this seems unfair, Ms. Diamond still has the burden of proving that 2012 issue is causally related to her workplace injury. This isn’t an easy burden to overcome. And even if she does overcome it, none of this should be a surprise to the employer. People aren’t machines, and we don’t heal perfectly. Sometimes there’s an injury and sometimes it heals and sometimes it doesn’t. This is part of the reality of workers’ comp claims; sometimes they go on for a very long time.

This doesn’t mean that Ms. Diamond automatically got an award. It just means that SCOV reversed so that she could pursue her claim. This got sent back to the Department of Labor for further proceedings.