12-12WC. Curtis Smiley v. State of Vermont.

• Court: Vermont

Vermont Workers Compensation 2012. 12-12WC. Curtis Smiley v. State of Vermont Curtis Smiley v. State of Vermont(April 15, 2012)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 12-12WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. J-l5114RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENTAPPEARANCES:Christopher McVeigh, Esq., for Claimant William Blake, Esq., for Defendant ISSUE PRESENTED:Did Defendant waive its right to deny Claimant's claim for permanent partial disability benefits on statute of limitations grounds by scheduling an independent medical examination for the purpose of obtaining a permanent impairment rating?EXHIBITS: Defendant's Exhibit A: First Report of Injury Defendant's Exhibit B: Dr. Thatcher medical record, July 8, 1996 Defendant's Exhibit C: Correspondence from Attorney McVeigh, October 21, 2010 Defendant's Exhibit D: Correspondence from Attorney McVeigh, November 23, 2010 Defendant's Exhibit E: Correspondence from Lori Clark, December 23, 2010 and January 4, 2011 Defendant's Exhibit F: Correspondence from Attorney McVeigh, March 10, 2011 Defendant's Exhibit G: Denial of Workers' Compensation Benefits (Form 2), with attached correspondence from Ms. Clark, May 16, 2011 Defendant's Exhibit H: Notice and Application for Hearing (Form 6), with attached correspondence from Attorney McVeigh, June 3, 2011 Defendant's Exhibit I: Correspondence from Mary Sarazin, September 2, 2011 Defendant's Exhibit J: Correspondence from Attorney Blake, September 7, 2011 Defendant's Exhibit K: Correspondence from Attorney McVeigh, October 18, 2011 Defendant's Exhibit L: Email from Rebecca Smith, October 27, 2011 Defendant's Exhibit M: Email from Attorney Blake, October 31, 2011 Defendant's Exhibit N: Email from Rebecca Smith, November 1, 2011 Claimant's Exhibit 1: Email from Attorney McVeigh, November 1, 2011 Claimant's Exhibit 2: Correspondence from Ms. Clark, December 23, 2010 Claimant's Exhibit 3: Statement of Curtis Smiley, January 3, 2012 Claimant's Exhibit 4: Deposition of Lori Clark, January 31, 2012 FINDINGS OF FACT: Considering the facts in the light most favorable to the non-moving party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following: 1. Claimant suffered a work-related left ankle fracture on January 20, 1996. Defendant accepted the injury as compensable and paid workers' compensation benefits accordingly. 2. Following a course of medical treatment with Dr. Thatcher, by July 8, 1996 Claimant had returned to work and overall appeared to be doing quite well. He declined physical therapy for his lingering symptoms. Dr. Thatcher anticipated that these would continue to improve over time, and therefore advised him to return for treatment only as needed. 3. There was no further activity on Claimant's claim for a period of approximately fourteen years, until October 21, 2010. On that date, Claimant's counsel entered his appearance on Claimant's behalf with Lori...