01R-11WC. Jeffrey Marshall v. State of Vermont, Vermont State Hospital.

• Court: Vermont

Vermont Workers Compensation 2011. 01R-11WC. Jeffrey Marshall v. State of Vermont, Vermont State Hospital Jeffrey Marshall v. State of Vermont, Vermont State Hospital (March 25, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 01R-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. S-22038RULING ON CLAIMANT'S MOTION TO AMEND The Commissioner previously decided this claim on January 25, 2011. In her opinion, she rejected Claimant's claim for additional permanent partial disability and/or medical benefits causally related to his June 2002 compensable work injury. Claimant now seeks reconsideration because of "significant errors" in the Commissioner's decision. Essentially, Claimant argues that various findings of fact are unsubstantiated by the evidence adduced at formal hearing and that therefore the Commissioner's conclusions must fail. Claimant asserts that the Commissioner misstated the evidence by finding that in the opinion of Defendant's medical expert, Dr. Boucher, "[M]ore likely than not the June 2002 injury is no longer contributing significantly to Claimant's ongoing complaints." Marshall v. State of Vermont, Opinion No. 01-11WC (January 25, 2011) at Finding of Fact No. 36. The basis for this finding was Dr. Boucher's March 8, 2010 independent medical evaluation report. On page 9 (Joint Medical Exhibit at p. 272), in the section labeled, "Causation," the report states:

[The June 6, 2002] incident was a simple lumbosacral strain, not resulting in any change in radiculopathy or new structural injury. Given the examinee's very significant prior history including three low back surgeries, I must state that more likely than not, the June 6, 2002 incident does not continue to significantly contribute to the examinee's low back complaints.

It is true that Dr. Boucher gave somewhat conflicting testimony in his deposition, primarily in the context of explaining the basis for his permanent impairment rating. Nothing compels the fact-finder to accept that testimony as a more credible statement of the doctor's opinion than what he wrote in his report, however. Indeed, one might argue that the opinions stated in a written report are likely to be more thoughtfully considered and expressed than those that are elicited upon cross-examination in a deposition. With that in...