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Attorney J. Norman O'Connor Prevails at the Vermont Supreme Court

A majority of the Vermont Supreme Court agreed with the arguments of Attorney J. O'Connor and held that while the American Medical Association Guides to the Evaluation of Impairment (5th Edition) ("AMA Guides 5th") must be used to rate a permanent impairment under the Vermont Workers' Compensation statutes, it is not the sole source for the diagnosis of a particular condition.

In Brown v. W.T. Martin Plumbing & Heating, the claimant suffered a shoulder injury during the course of his employment as a master plumber. The claimant underwent surgery to repair his rotator cuff, but his recovery was complicated by adhesive capsulitis and the development of Complex Regional Pain Syndrome (CRPS). CRPS is a rare condition marked by: severe chronic pain; sensitivity to touch; swelling; changes in skin temperature of the affected area; change in the color and texture of the skin in the affected area; joint stiffness; muscle spasms and loss of range of motion. CRPS typically develops following an injury, surgery, stroke or heart attack. A hallmark of CRPS is that the pain is out of proportion to the severity of the initial injury. The cause of CRPS is not clearly understood.

The diagnosis of CRPS was made by the claimant's treating physician based upon the diagnostic criteria from the International Association for the Study of Pain. The treating physician opined that the CRPS was causally related to the claimant's work injury. After the claimant reached maximum medical improvement, he was referred to another physician for an impairment rating. The claimant's impairment, including his CRPS, was rated using the AMA Guides 5th and the result was a 46% whole person impairment.

The insurer requested an impairment rating from it's own physician. While the insurer's physician concurred with the diagnosis of CRPS, he only assigned a 3% whole person impairment based upon the claimant's range of motion limitations and his "generalized pain." The insurer's physician did not use the AMA Guides 5th rating process for CRPS because, in his opinion, the clainant did not satisfy the diagnostic criteria for CRPS set forth in the AMA Guides 5th.

Both the Vermont Department of Labor and the Vermont Superior Court (Bennington) held that 21 V.S.A. §648(b) required that the AMA Guides 5th be utilized to both diagnose and rate an permanent impairment under the workers' compensation scheme. Both the Department of Labor and the Superior Court opined that the claimant clearly suffered from CRPS, but stated that, based upon the wording of the statue, they believed there was no discretion to accept the impairment rating of put forth by the claimant.

The claimant appealed to the Vermont Supreme Court. Following a hearing, the Vermont Supreme Court ruled that §648(b) does not require a fact finder to disallow a permanent impairment rating associated with CRPS where the diagnosis of the condition is not consistent with the diagnostic standards of the AMA Guides 5th. According to the holding, while the AMA Guides 5th are determinative of the existence and degree of any permanent partial impairment associated with a work injury, §648(b) does not state that the AMA Guides 5th are the exclusive mechanism for diagnosing a compensable work injury; e.g. the AMA Guides 5th "do not necessarily contain the exclusive authoritative standard for diagnosing the condition." The majority noted that "the Guides are a tool to promote the Legislature's goal of ensuring that individuals who suffer permanent impairment as a result of work-related injuries receive appropriate [permanent partial disability] benefits...[and] no bona fide impairment should go uncompensated . . . ."

The full text of the Vermont Supreme Court decision can be found at: http://info.libraries.vermont.gov/supct/current/op2011-270.html

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