E-17523. Smith v. Killington Ltd.

• Case Date: April 21, 1995
• Court: Vermont

Vermont Workers Compensation 1995. E-17523. Smith v. Killington Ltd April 21, 1995File Nos. E-17523 and E-14680By: Sheldon A. Keitel Hearing Officer For: Mary S. Hooper Commissioner Opinion No. 16-95WC Alan K. Smith v. Killington Ltd.Heard in Montpelier, Vermont on September 16, 1994 Record closed November 30, 1994 APPEARANCES Cortland T. Corsones, Esq. for the claimant William A. O'Rourke, III, Esq. for the defendant ISSUES 1. Is the employer/insurer liable for additional disability and medical benefits pursuant to the Workers' Compensation Act relating to claimant's back injuries sustained in January and March of 1992 while in defendant's employ? 2. If so, is claimant also entitled to medical benefits pursuant to 21 V.S.A. §640 for psychological counselling through December 10, 1992? 3. If not, is the defendant entitled to reimbursement for benefits previously paid under protest? THE CLAIM 1. Temporary total disability compensation under 21 V.S.A. §642 from May 3, 1993 to the present and continuing. 2. Medical and hospital benefits (past and future) under 21 V.S.A. §640. STIPULATIONS 1. The claimant, Alan K. Smith, was on all relevant dates employed by the defendant, Killington Ltd., of Killington, Vermont as a rescue skier. 2. The defendant was on the dates in question an employer within the meaning of the Workers' Compensation Act. 3. On the dates in question, Legion Insurance Company was the workers' compensation insurer for the defendant and Scott Wetzel Services, Inc. was the third-party claims administrator. 4. On January 25, 1992, the claimant suffered a personal injury to his back and neck while working on the ski slope when another skier collided with him from the rear. The claimant was 33 years old at the time of this injury. 5. On February 25, 1992, the employer filed an Employer's First Report of Injury (Form 1). 6. Claimant received temporary total disability payments pursuant to the Agreement for Temporary Total Disability Compensation (Form 21) approved by the Department on 4/16/92, after which he returned to work for his employer at the same job. 7. On March 14, 1992, while working for defendant as a rescue skier, claimant was escorting an injured skier to the base of the mountain; in the course of supporting and assisting the injured skier, claimant again injured his back. The claimant was 34 years of age at the time of this injury. [The claimant's date of birth was February 12,1958.] 8. On March 28, 1992, the claimant and the defendant entered into an Agreement for Temporary Total Disability Compensation (Form 21) in which the defendant agreed to pay the claimant $198.00 per week beginning on March 18, 1992. 9. On May 3, 1993, the defendant discontinued temporary total disability compensation payments to the claimant on the basis of medical reports which defendant interpreted as disproving the continuing causal connection between the claimant's condition at the time and the injury of March 14, 1992. A Form 27, Notice of Intention to Discontinue Payments, was mailed to the claimant on April 28, 1993. 10. On July 16, 1993, the claimant's attorney filed a Notice and Application for Hearing (Form 6). 11. Judicial notice may be taken of the following documents in the Department's claim files relating to this matter: Forms 1: Employer's First Reports of Injury Form 6: Notice and Application for Hearing Form 25: Wage Statements Forms 27: Notices of Intention to Discontinue Payments 12. The following documents were offered into evidence without objection: Defendant's Exhibit A: IME 6-5-92, Dorothy Ford, M.D. (2 pgs) Defendant's Exhibit B: IME 8-17-92 Valley Orthopaedic (2 pgs) Defendant's Exhibit C: MRI report 8/25/92 (Dr. Tata) Defendant's Exhibit D: Letter dated Oct. 2, 1992 (Kenneth D. Polivy, M.D. - Scott Wetzel) Defendant's Exhibit E: Letter Polivy-Scott Wetzel 10/29/92 Defendant's Exhibit F: Letter Polivy-Scott Wetzel 2/19/93 Defendant's Exhibit G: Letter dated April 12, 1993 (James G. Wepsic, M.D. - Scott Wetzel) Defendant's Exhibit H: Letter Polivy-Scott Wetzel 5/26/93 FINDINGS 1. Stipulations 1...