06-11WC. Violet Ploof v. Heritage Motors.

• Court: Vermont

Vermont Workers Compensation 2011. 06-11WC. Violet Ploof v. Heritage Motors Violet Ploof v. Heritage Motors(March 25, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 06-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File Nos. S-21982 and U-10296RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ATTORNEYS:Richard Goldsborough, Esq., for Claimant John Valente, Esq., for DefendantISSUE PRESENTED:

Did the Workers' Compensation Specialist err as a matter of law by issuing an order that Defendant pay permanency benefits in accordance with Dr. Fenton's impairment rating as opposed to Dr. Kirkpatrick's rating?

FINDINGS OF FACT: The following facts are undisputed: 1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont's Workers' Compensation Act. 2. On June 10, 2002 Claimant injured her right shoulder and lower back in a work-related incident. 3. Between October 2003 and December 2005 Claimant underwent numerous independent medical evaluations. Ultimately the parties were able to resolve the issues relating to Claimant's right shoulder injury. They could not agree, however, as to (a) whether Claimant's ongoing low back complaints were causally related to her work injury; and (b) if so, whether spinal fusion surgery was a reasonable and necessary treatment. 4. Both of these issues were determined in Claimant's favor following a formal hearing in 2007. V.P. v. Heritage Ford, Opinion No. 26-07WC (September 28, 2007). Defendant was ordered to pay workers' compensation benefits associated with the proposed fusion surgery, "including payment of medical bills and both temporary and/or permanent disability benefits, as proven following the procedure." Id. On appeal, the Chittenden Superior Court affirmed following a jury trial in June 2008. 5. Claimant underwent lumbar spinal fusion surgery in January 2009. Thereafter, she underwent two independent medical evaluations for the purpose of determining the extent of her permanent impairment. The first was with Dr. Kirkpatrick in January 2010, the second with Dr. Fenton in July 2010. 6. There are two versions of Dr. Kirkpatrick's report, both dated January 8, 2010. In one report, Dr. Kirkpatrick calculates the impairment referable to Claimant's lumbar spine at 28% whole person...