Heaney v. S.W. VT Medical Center (Apr. 29, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Mary Heaney File #: D-15794
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Southwestern Vermont Commissioner
Medical Center
Opinion #: 22-96WC
Record closed on April 5, 1996.
APPEARANCES
John W. Valente, Esq., for St. Paul Insurance Company
Andrew C. Boxer, Esq., for Travelers Insurance Company
ISSUE
1. Whether St. Paul Insurance Company is entitled to reimbursement for payment of permanency that was chargeable to a prior work related injury and not paid.
2. Whether Travelers is entitled to reimbursement for advancing permanency to St. Paul, which it claims is not due.
STIPULATIONS
1. Mary Heaney is a resident of Cambridge, New York.
2. On January 28, 1977, Travelers was the workers' compensation insurer for Putnam Hospital.
3. On January 28, 1977, Mary Heaney suffered an injury at work while in the employ of Putnam Hospital.
4. As a result of that work-related injury, she underwent removal of a herniated disc, that surgery was performed by Dr. Fabricius. (sic)
5. The claimant suffered a subsequent work injury while working for Southwestern Vermont Medical Center on or around December 12, 1990.
6. The claimant's injury at Southwestern Vermont Medical Center was a new injury for purposes of the Workers' Compensation Act.
7. On December 12, 1990, St. Paul was the workers' compensation insurer for Southwestern Vermont Medical Center.
8. Claimant underwent surgery for her new injury. This surgery was performed by Dr. Block in April 1993. Following the surgery, Dr. Block assessed the claimant's permanent impairment to the spine at 29.25%. St. Paul Insurance paid claimant PPD benefits according to 29.25% of spine.
9. St. Paul demanded that Travelers Insurance reimburse it for 10% permanency at the current compensation rate. In an effort to settle the dispute with St. Paul, Travelers Insurance paid St. Paul $5,791.51 after St. Paul filed a Form 6 with the Department. That figure was equivalent to 33 weeks at the rate of $175.51 per week.
10. St. Paul has made a clear record that this was considered only to be partial payment. Travelers made the payment without prejudice and intended the payment to be a complete settlement of the dispute with St. Paul.
The parties further agree that St. Paul Insurance Company is seeking reimbursement from Travelers for 10% out of the 29.5% permanency it paid claimant, while Travelers is seeking reimbursement for the $5,791.51 it has paid to St. Paul.
EXHIBITS
Defendant's Exhibit 1: Affidavit of Mary Heaney
Defendant's Exhibit 2: Letter of JoAnne Montgomery to Joni Stallings, dated September 16, 1994
Defendant's Exhibit 3: Letter of Dr. Block to JoAnne Montgomery, dated October 5, 1993
Defendant's Exhibit 4: Medical records of Mary Heaney
FINDINGS OF FACT
1. The above stipulations are accepted as true. Notice is taken of all forms filed with the Department in this matter. The exhibits are admitted into evidence.
2. The claimant suffered an injury sufficiently severe in 1977 to require surgery, a laminotomy with excision of disc L4-5 on the left and L5-S1 on the right. At that time Travelers was the insurer for her then employer, and paid compensation for that injury.
3. Travelers did not pay the claimant any permanency at that time. Travelers did not advise the claimant of her entitlement to permanency, and did not request of her physician any report reflecting a permanency evaluation. Travelers did not ask the claimant to be seen by any other physician for a permanency evaluation.
4. On December 20, 1990, the claimant suffered a second injury to her spine, while in the employ of Southwestern Vermont Medical Center. St. Paul adjusted the claim properly and determined, after appropriate treatment and evaluation, that the claimant suffered a 29.5% permanent impairment to her spine.
5. The claimant was treated by Dr. Richard N. Fabricius from the time of her first injury until 1991. At that time, when it became apparent that the claimant would need further surgery, Dr. Fabricius referred the claimant to his partner Dr. Robert S. Block for further treatment. It was Dr. Block who evaluated the claimant's impairment at 29.5%.
6. Based on an inquiry from an adjuster for St. Paul, Dr. Block referred the issue of the prior impairment back to Dr. Fabricius. This was practical, as Dr. Fabricius was the most familiar with the claimant's condition from the time of the first injury up to and including the time of the second injury. Dr. Fabricius, in a handwritten note, indicated that "I feel she had a 10% pre-existing disability." He made this determination while in possession of the claimant's chart, and presumably all of his notes of his treatment of her.
7. I find that the claimant had a preexisting 10% permanent impairment to her spine attributable to the first injury at the time of her evaluation for the second injury. I find that the claimant received more compensation from St. Paul than she would have from Travelers, even if Travelers paid interest from the date of the original injury to the date of the end medical result from the second injury.
CONCLUSIONS
1. Travelers has filed its proposed findings and rulings by facsimile, a procedure not approved by the Department for the filing of formal documents in a claim. The practice of using facsimiles for speedy transmission of important data, while generally accepted for matters of business, has not yet, to my knowledge, been accepted by any court in this state. The parties to formal hearings are specifically advised that proposed findings and rulings are due on a date certain, and that a postmark will not suffice as evidence of filing. Using a facsimile in an effort to avoid the consequences of this edict reflects a lack of appreciation for the spirit of the instruction. Rule 11 of the Vermont Rules of Civil Procedure requires that all pleadings, summonses, writs, motions and other papers must be signed by the attorney of record for the party, and that any document not so signed shall be stricken. While courts wrestle with the issue of the legality of signatures transmitted by facsimile, this Department will not prejudge the issue by accepting such signatures as valid for purposes of the rules of civil procedure. While Travelers' filing will be accepted in this case, it and all parties are hereby notified that filing by facsimile of proposed findings and rulings in the future will be grounds for their rejection at least until the courts of the State of Vermont affirm the acceptability of the practice for court filings.
2. Travelers argues that the burden of proof is on St. Paul, citing to 21 V.S.A. §662(c). This is based on a misperception of the facts of the case and the standards to be invoked. Travelers, in citing the burden of proof language from §662, "the employer or insurer at the time of the most recent personal injury...shall be presumed to be the liable employer or insurer and shall have the burden of proving another employer's or insurer's liability," misreads the pertinent language in §662. In giving the Commissioner the authority to issue an interim order in such a dispute, the statute requires first "notice to interested parties and a review of the claim." The burden of proof expressed in §662 is expressly "for purposes of this review," that is, in the argument about the issuance of an interim order. Moreover, §662 is applicable only when "payment of a compensable claim is refused on the basis that another employer or insurer is liable." There has been no such refusal here, and §662 is therefore not the appropriate authority for the resolution of this dispute.
3. There is no question that Travelers owed the claimant some permanency from her first injury, and that Travelers failed to adjust this claim in accordance with the standards established by this Department. Travelers therefore enters this case with "unclean hands," and has the burden to establish that its failure was irrelevant in the handling of the later case.
4. Specifically, I can imagine no case in which an otherwise healthy claimant has to have back surgery with the excision of two discs and does not suffer permanency. The AMA Guides to the Evaluation of Permanent Impairment from the earliest editions suggest that a surgically corrected lesion in the lumbar spine results in permanency. Travelers was responsible for ensuring that all appropriate compensation was paid, and its failure to do so at the time the permanency was due bars it from arguing now about the inadequacy of the evidence of its obligation. See, e.g., Goslant v. Cody Chevrolet, Opinion No. 41-95WC.
5. Characterization of the issue in this case as one of apportionment misstates the nature of the case. While it is true that the "statutory scheme does not require the Commissioner to make such a determination of the relative contributions of the accident at issue and a prior disease to the end result," Stamper v. University Apartments, Inc., 149 Vt. 552, 554 (1986), nothing in the statute prohibits the Commissioner's correction of a prior adjusting error. This is simply not an apportionment case. The Commissioner has frequently taken the position that past due permanency can be evaluated, even at a great remove from the date of end medical result. See, e.g., Lippard v. T. Copeland & Sons, Opinion No. 7-96WC.
6. Moreover, in this case, the permanency evaluation was done by the doctor who treated the claimant at the time of the original injury, based on his notes of her treatment. This is not a case where doctors after the fact are trying to establish by guesswork and hypothesis what a prior doctor would have said. Nor is it a case where the prior injury had never been evaluated because there was no such requirement for evaluation, such as in an illness
or non-work-related accident. Had there been no second injury, had it only been that the claimant had, rather late in the day, discovered the improper adjusting of her claim, the result should not and would not be different.
7. In fact, the factor that makes this case so clear cut is that Travelers was handling the prior claim as a workers' compensation claim, with all the obligations inherent in that system. Included in those obligations was the need to determine expeditiously the permanent impairment attributable to the claimant's work injury, whether by inquiring of her own physician or obtaining the services of its own physician to evaluate the claimant. Its
failure to do its job at the appropriate time neither allows it to cry foul now when the treating doctor gives his opinion, nor relieves it of its duty to pay the amount owed to the claimant in 1977 at the time of the original surgery.
8. Therefore, the only remaining question is what the measure is of the repayment owed to St. Paul by Travelers. Travelers has paid the sum of $5,791.83, which is the payment of 33 weeks, or 10%, at the claimant's compensation rate in 1977. Even assuming that this was the correct amount in 1977, at the very least the carrier is responsible for interest since that time until the benefits were paid. However, in order that the new employer is not penalized by Travelers' failure to adjust this claim properly, the true measure of Travelers' liability ought to be the amount paid by St. Paul on Travelers' behalf.
9. The amount paid by St. Paul on Travelers' behalf is the last 33 weeks of benefits paid by St. Paul. But for Travelers' failure to pay the 33 weeks of benefits when they were due, St. Paul would not have paid the final 33 weeks of benefits it paid, since it would have completed its payments after paying benefits for a 19.5% impairment to the lumbar spine. Therefore, Travelers owes the amount represented by 4.2 weeks at a rate of $580.91, and 28.8 weeks at the rate of $574.49, for a total of $18,985.13. Travelers is to be given credit for the $5,791.83 it has already paid, resulting in a payment to St. Paul of $13,193.30.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, Travelers Insurance Company is ordered to reimburse St. Paul Insurance Company in the amount of $13,193.30 for payments made to Mary Heaney on Travelers' behalf.
DATED at Montpelier, Vermont this 29th day of April 1996.
_________________________
Mary S. Hooper
Commissioner