16-11WC. Edwin Sevene v. Don-Vac, Inc.

• Court: Vermont

Vermont Workers Compensation 2011. 16-11WC. Edwin Sevene v. Don-Vac, Inc Edwin Sevene v. Don-Vac, Inc.(June 23, 2011)STATE OF VERMONT DEPARTMENT OF LAOpinion No. 16-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. H-6839RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENTAPPEARANCES:Jennifer Pacholek, Esq., for Claimant Stephen Ellis, Esq., for DefendantISSUE: Is Claimant's claim for permanent total disability benefits barred as a matter of law on statute of limitations grounds? 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 worked for Defendant as a floor installer. On October 3, 1994 he injured his lower back in the course and scope of his employment. He was diagnosed with a lumbar disc herniation and later underwent L4-5 and L5-S1 disc surgery. 2. Defendant accepted Claimant's injury as compensable and paid workers' compensation benefits accordingly. 3. On two occasions, first in February 1995 and later in March 1997, Claimant was referred for vocational rehabilitation entitlement assessments in accordance with 21 V.S.A. §641. In both instances, medical providers had determined that Claimant had a medium duty work capacity. On each occasion, the assigned vocational rehabilitation counselor concluded that Claimant had sufficient transferable skills to obtain suitable employment at either that level or at a light duty level. On those grounds, Claimant was deemed not entitled to vocational rehabilitation services. 4. In October 1998 Claimant was determined to have reached an end medical result, and was rated with an 8.5% whole person permanent impairment. Defendant paid permanent partial disability benefits in accordance with this rating. 5. At some point thereafter, Claimant returned to work as a self-employed light carpentry, painting and landscaping contractor. During this time he also performed similar work for two other local construction contractors. 6. In October 2001 Claimant advised Dr. Weinberg, his primary care physician, that his back pain had worsened, that he was limiting his hours at work and that he was having difficulty sleeping. Dr. Weinberg determined that Claimant was no longer able to perform light carpentry and painting work, because of the repetitive bending and heavy lifting involved. He concluded that Claimant needed to "change his back-abusing job" and obtain vocational rehabilitation assistance so as to find more suitable employment. Claimant testified at his deposition that he understood the doctor's recommendation to mean that he should "get out of the construction business." 7. At Defendant's request, in April 2002 Claimant underwent an independent medical evaluation with Dr. Lefkoe. Dr. Lefkoe determined that Claimant properly had been placed at end medical result in 1998, and that his lower back condition was both chronic and permanent. Dr. Lefkoe also determined that Claimant had a light duty work capacity with a twenty-pound lifting restriction. 8. Upon reviewing Dr. Lefkoe's report, in May 2002 Dr. Weinberg reiterated his previous recommendation that Claimant be referred for vocational rehabilitation assistance so that he could "get out of the physical labor market altogether." Also in May 2002 Claimant...