Vermont: Agreement to Arrange for Impairment Rating Medical Visit Does Not Toll Statute of Limitations

The State of Vermont, as employer, did not waive the affirmative defense of statute of limitations when it agreed to claimant’s Fall 2010 request for an impairment rating related to his January 1996 work-related injury. While a lower court did err when it determined that Workers’ Compensation Rule 18(a) requiring employers/insurers to determine, at the time an injured employee reached a medical end result, whether the employee had any permanent impairment was not in effect, that error had no effect on the case’s outcome; the Court held that violation of the regulation did not toll the statute of limitations. Claimant, a game warden, injured his ankle in 1996. He underwent surgery, but took no other action in his workers’ compensation case until 2010. In 2010, at claimant’s request, the employer arranged for a physician to determine the level of any permanent impairment. The physician, and a second physician retained by claimant, both determined that claimant suffered a one percent PPD.

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.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Smiley v. State of Vermont, 2015 VT 42, 2015 Vt. LEXIS 24 (Mar. 6, 2015) [2015 VT 42, 2015 Vt. LEXIS 24 (Mar. 6, 2015)]

See generally Larson’s Workers’ Compensation Law, § 126.13 [126.13]

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

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