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Lowell v. Rutland Area Visiting Nurses5/2/2000
nts in January and February of 1997.
9. Prior to late January or early February 1997, on the numerous occasions when claimant was examined and treated by her primary caregivers, Dr. Peter Diercksen and Dr. Michael Bell, a conservative course of medical treatment was continually recommended and pursued.
10. In late January or early February of 1997, while attempting to rearrange her work schedule in an effort to attend physical therapy sessions, the claimant conversed with Ms. Colvin, her supervisor, about the automobile accident. During the course of this conversation, claimant informed Ms. Colvin that her back injury was sustained while travelling between the homes of clients.
11. Acting upon this information, Ms. Colvin directed claimant to complete an incident report and file a workers' compensation claim. In the ensuing days, claimant followed Ms. Colvin's instructions and a First Report of Injury was filed with the Department in February 1997. This was the first time claimant learned that her automobile accident injury was covered under workers' compensation.
12. Claimant's medical treatment continued. Specifically, she received additional chiropractic treatment in April, May, and August of 1997. In addition, claimant's primary caregiver recommended, in June 1998, that a diagnostic study be performed on claimant's back. This study, an MRI, was eventually performed in May 1999. As stipulated by the parties, the diagnostic study was not performed until May 1999, approximately a year after it was recommended, because no insurance carrier agreed to pay for the cost of such a study.
13. Presently, after interpreting the results of the MRI, one of the claimant's treating physicians determined that claimant is not an appropriate candidate for surgery. A conservative course of care was recommended as treatment for claimant's back pain. In particular, the doctor prescribed Medrol Dose Packs and he suggested a course of steroid injections.
14. Claimant testified that, in comparison to her back condition six months to a year after the automobile accident, her back pain is actually worse now.
15. Following the automobile accident, claimant filed a civil action against the driver who struck her automobile from behind. This matter is presently scheduled for trial in the fall of this year.
CONCLUSIONS OF LAW:
1. In this case, defendant maintains that the instant workers' compensation claim should be dismissed for lack of timely notice, based upon 21 V.S.A. § 656, which mandates a specific time period for providing notice of an injury and for filing a claim for compensation.
TIMELY NOTICE AND FILING
2. Specifically, the timely notice statute provides, in part:
A proceeding under this chapter for compensation shall not be maintained unless a notice of the injury has been given to the employer as soon as reasonably practicable after the injury occurred, and unless a claim for compensation with respect to an injury has been made within six months after the date of injury. 21 V.S.A. § 656.
3. The statute defines the date of injury as "the point in time when the injury and its relationship to the employment is reasonably discoverable and apparent." Id.
4. In resolving this case, it is necessary to properly interpret the phrase "discovery of the injury and its relationship to the employment." Particularly at issue in the present case is whether this provision encompasses not only a claimant's discovery of an actual physical and/or emotional injury and its cause, but also the discovery of the existence of a workers' compensation claim.
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