Kraby v. Vermont Telephone Co.

Kraby v. Vermont Telephone Co. (2004-004); 177 Vt. 614; 868 A.2d 689

2004 VT 120

[Filed 14-Dec-2004]

                                 ENTRY ORDER

                                 2004 VT 120

                      SUPREME COURT DOCKET NO. 2004-004

                             OCTOBER TERM, 2004

  Paul Kraby                    }     APPEALED FROM:
                                }
                                }
       v.                       }     Commissioner of Labor and Industry
                                }     
  Vermont Telephone Company     }
                                }     DOCKET NO. 44-03 WC

       In the above-entitled cause, the Clerk will enter:

       ¶  1.     Employer Vermont Telephone Company appeals from a ruling of 
  the Commissioner of the Department of Labor and Industry that the statute
  of limitations does not bar claimant Paul Kraby from seeking partial
  permanent disability benefits for his work related injury.  Employer
  contends the Commissioner erred in finding that, for purposes of triggering
  the six-year statute of limitations, claimant's date of injury was the date
  of his medical end result.  We affirm.

       ¶  2.     The undisputed material facts may be briefly summarized.  On
  May 12, 1995, claimant injured his knee while climbing a telephone pole in
  the course of his employment.  Claimant underwent surgery on June 27, 1995,
  and had post-operative visits with the surgeon in July and August of that
  year.  He filed a timely workers' compensation claim, and received
  temporary disability benefits until July 10, 1995. 

        
       ¶  3.     On August 8, 2001, claimant filed a notice and application
  for permanent disability benefits for injuries arising from the accident. 
  Employer's workers' compensation carrier denied the claim on the ground
  that it was filed more than six years after the date of injury, and was
  therefore untimely under 21 V.S.A. § 660(a), which provides that
  "[p]roceedings to initiate a claim for benefits under this chapter may not
  be commenced after six years from the date of injury."(FN1)  The
  Commissioner rejected the statute-of-limitations defense, noting that the
  "date of injury" for workers' compensation purposes is statutorily defined
  as "the point in time when the injury . . .  is reasonably discoverable and
  apparent."  Id. § 656(b).  The Commissioner found that the permanent injury
  was not reasonably discoverable and apparent until the medical end point in
  claimant's recovery from the surgery, between August 8 and 22, 1995 (six to
  eight weeks after surgery).  This finding was based on claimant's affidavit
  stating that he did not have his knee evaluated for permanent injury until
  August 2001, and the affidavit of claimant's orthopedic surgeon, stating
  that "a reasonable period of time for [claimant] to have reached a medical
  end point following such surgery, and for him to have known whether he
  suffered any permanent impairment to his knee, is between six and eight
  weeks."  Measured from this time frame, claimant's application was within
  the six year limitations period.  Accordingly, the Commissioner ruled that
  claimant was entitled to seek permanent disability benefits.  This appeal
  followed. 

       ¶  4.     Our review in this matter is limited to questions of law
  certified by the Commissioner,  21 V.S.A. § 672, and "tempered by the
  considerable deference we must accord [the Commissioner's] ruling." Laumann
  v. Dept. of Pub. Safety, 2004 VT 60, ¶ 7, 857 A.2d 309.  "The Commissioner's
  decision is presumed valid, to be overturned only if there is a clear
  showing to the contrary." Id. (internal citation omitted).  The question
  certified by the Commissioner is whether the "claim for permanent partial
  disability benefits was barred by the statute of limitations." Employer
  maintains that the Commissioner erred in measuring the six-year limitations
  period from the date of medical end result.  Employer asserts, rather, that
  claimant's right to permanent disability benefits was reasonably
  discoverable and apparent either on the date of injury in May 1995, or the
  date of surgery on June 27, 1995, and therefore that the claim for
  permanent disability benefits, filed in August 2001, was untimely. 
  Employer submitted no evidence on this point, however, and thus the only
  record evidence was claimant's affidavit stating that he was unaware of the
  permanent injury until much later, and the surgeon's affidavit indicating
  that a reasonable time for claimant to have known that he suffered a
  permanent impairment was the period commencing in August 1995. 
  Accordingly, there is no evidentiary basis to support employer's claim, or
  to disturb the Commissioner's findings.  See Grather v. Gables Inn. Ltd.,
  170 Vt. 377, 383, 751 A.2d 762, 767 (2000) (this Court will not overturn
  factual findings of commissioner unless they have no factual support in the
  record). 

       ¶  5.     Absent such evidence, employer's argument appears to rest
  solely on the premise that a claimant who suffers injury, undergoes
  surgery, and loses time from work must - as a matter of law - be deemed to
  be aware of the possibility of permanent disability at the time of the
  injury, or at the latest at the time of surgery, but in no event at the
  time of medical end result.  Employer has adduced no Vermont authority,
  however, to support the claim, nor have we found any.  Moreover, none of
  the out-of-state cases cited by employer persuasively construe or apply
  closely analogous factual circumstances or statutory schemes.  Employer is
  correct that Longe v. Boise Cascade Corp., 171 Vt. 214, 762 A.2d 1248
  (2000), the case on which the Commissioner here principally relied, does
  not mandate measurement of the date of injury from the date of medical end
  result.  The parties there simply agreed that the claimant's work-related
  injury "became reasonably discoverable and apparent no later than December
  1985, when claimant reached medical end result with regard to his 1983
  injury."  Id. at 219, 762 A.2d  at 1253.  Longe held that even conceding the
  claimant's assertion that his initial claim for temporary disability
  benefits was sufficient to put the employer on notice of his later claim
  for permanent disability benefits, the second claim was untimely because
  nearly eight years had elapsed between the injury (measured from the date
  of medical end result) and the second notice.  Id. at 220, 762 A.2d  at
  1254.   

        
       ¶  6.     While Longe thus does not compel the result here, employer
  cites nothing to suggest that the stipulation on which it was based is
  contrary to law or logic.  On the contrary, as we observed in Hartman v.
  Ouelette Plumbing & Heating Co, 146 Vt. 443, 446, 507 A.2d 952, 953 (1985),
  "[t]he claim period can only begin to run when there is in fact something
  to claim." Medical end result is generally recognized as the point in time
  when further improvement is not expected and the employee, upon proper
  documentation, transitions from temporary benefits to a permanency
  evaluation and eligibility for permanent benefits.  See Pacher v. Fairdale
  Farms, 166 Vt. 626, 629, 699 A.2d 43, 47 (1999) (mem.) (claimant is
  entitled to temporary benefits until reaching medical end result, defined
  by rules as point when "further improvement is not expected") (citation
  omitted); Wroten v. Lamphere, 147 Vt. 606, 610, 523 A.2d 1236, 1238 (1987)
  (eligibility for permanent disability established when injured employee
  reaches medical end result).  Thus, while recognizing that the
  determination of when an injury is reasonably discoverable and apparent
  will necessarily vary from case to case, we discern no basis to conclude,
  on the record before us here, that the Commissioner erred in finding that
  claimant's permanent injury was not reasonably discoverable and apparent
  until the point of medical end result, and that his claim was therefore
  timely. 

       ¶  7.     Employer also asserts that claimant failed to satisfy the
  threshold requirements of 21 V.S.A. § 656(a), which requires notice of an
  injury "as soon as practicable after the injury occurred," and a "claim for
  compensation . . . within six months after the date of injury," and §
  660(a), which provides that the failure to file a timely notice or claim
  "shall not be a bar to proceedings under the provisions of this chapter, if
  it is shown that the employer . . .  had knowledge of the accident or that
  the employer has not been prejudiced by the delay or want of notice."  As
  the employer here unquestionably had timely "knowledge of the accident,"
  the statutory requirement was satisfied.  See Fitch v. Parks & Woolson
  Mach. Co., 109 Vt. 92, 96, 191 A. 920, 921 (1937) (where it is shown by
  claimant that employer had seasonable knowledge of accident, it is
  unnecessary also to show that the employer has not been prejudiced).      
     
       Affirmed.               


  BY THE COURT:

  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice
  
  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Paul L. Reiber, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.),
  Specially Assigned



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                                  Footnotes

FN1.  The Legislature subsequently amended the statute to substitute three
  years for six years as the outside limit for the filing of a claim.  2003, 
  No. 132 (Adj. Sess.), § 6.