Workers' Compensation

Vermont: Physician’s Use of AMA Guides’ DRE Method—Rather Than ROM Method—for Determining Impairment Did Not Support Reformation of Settlement Agreement







Where settlement in 2002 (via Vermont’s Form 22) of the PPD segment of a workers’ compensation claim was based upon a physician’s use of the AMA Guides’ Diagnosis Related Estimate (“DRE”) and, six years later, two different physicians indicated that it would have been more appropriate instead to have used the range-of-motion (“ROM”) method, there was nevertheless no mutual mistake of fact that would support a reformation of the settlement agreement in spite of the fact that use of the ROM method originally would likely have produced a greater impairment rating for the claimant, held the Supreme Court of Vermont. The Court also held that the claimant had failed to show that his condition had worsened. The Court added that in spite of the standardized methods set forth in the AMA Guides, a physician’s judgment was still an important component of the impairment decision. Here both physicians acknowledged that different physicians could examine the same person and come to different conclusions as to impairment. The Court said that the selection of a rating method itself was an exercise of clinical judgment rooted more in opinion than objective fact. The Court specifically declined to say that an impairment rating could never be the basis for reforming a Form 22 agreement under the material-mistake-of-fact doctrine. It held only that the doctrine was not available under these facts.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

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See Marshall v. State of VT, 2015 VT 47, 2015 Vt. LEXIS 23 (Mar. 6, 2015) [2015 VT 47, 2015 Vt. LEXIS 23 (Mar. 6, 2015)]

See generally Larson’s Workers’ Compensation Law, § 80.07 [80.07]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.









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