Christopher Harrington v. John A. Russell Corp. (August 30, 2010)

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Christopher Harrington v. John A. Russell Corp. (August 30, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christopher Harrington Opinion No. 29-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
John A. Russell Corp.
For: Valerie Rickert
Acting Commissioner
State File No. X-15430
OPINION AND ORDER
Hearing held in Montpelier, Vermont on June 28, 2010
Record closed on July 28, 2010
APPEARANCES:
William McCarty, Jr., Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s left hip condition causally related to his January 29, 1986 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Dr. Czajka, June 16, 2010
Defendant’s Exhibit A: Vermont Department of Agriculture records
CLAIM:
Workers’ compensation benefits causally related to Claimant’s left hip condition
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as an equipment operator and construction laborer. On January 29, 1986 he injured his low back and right hip when he slipped and fell at work. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
Dr. Belmonte’s Independent Medical Examinations
4. At Defendant’s request, in October 1988 Claimant underwent an independent medical examination with Dr. Belmonte.1 According to his letterhead, Dr. Belmonte is engaged in the practice of occupational medicine.
5. Dr. Belmonte reported that Claimant had undergone a prolonged course of conservative treatment since his 1986 fall, but that his right hip pain persisted. X-rays revealed advanced degenerative changes in Claimant’s right hip, and some degenerative disease in his left hip as well, though considerably less advanced. Consistent with these findings, Claimant exhibited significantly restricted range of motion in his right hip. Claimant also demonstrated restricted range of motion in his left hip, but again, to a lesser extent than on the right. According to Dr. Belmonte, Claimant denied any left hip symptoms.
6. With these findings in mind, Dr. Belmonte remarked that the question whether Claimant’s right hip condition was causally related to his 1986 fall was “clouded” by the bilateral nature of his degenerative disease, as according to him Claimant admitted that the fall had not involved his left hip at all. Nevertheless, Dr. Belmonte concluded that it was “not unreasonable” to assume that the fall could have aggravated Claimant’s right hip condition. In that sense, therefore, it was work-related.
7. Dr. Belmonte performed a second independent medical examination in October 1991. He reported that Claimant had undergone right total hip replacement surgery in February 1989 and had done well immediately thereafter. Over time, however he had once more developed pain in his right hip. According to Dr. Belmonte, Claimant also complained of some pain and demonstrated mild deficits in range of motion in his left hip, but again these symptoms were not as severe as his right-sided symptoms were.
1 Dr. Belmonte’s various independent medical examination reports provide the only documentation of Claimant’s medical course in the years immediately following his injury. The paper files maintained by Claimant’s treating orthopedic surgeon, the employer’s workers’ compensation insurance carrier and the Department have long since been destroyed.
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8. Dr. Belmonte next evaluated Claimant in December 1992. He reported that Claimant continued to complain of general soreness and intermittent pain in his right hip, and walked with a right-sided limp. Dr. Belmonte concluded that Claimant had reached an end medical result for his work-related right hip injury. He rated Claimant’s permanent impairment at 46% of the right lower extremity and determined that he was fit for light sedentary work on a full-time basis.
9. In the course of his December 1992 evaluation Dr. Belmonte also reported that Claimant had “recently noted” some gradual and progressive left hip symptoms. Dr. Belmonte described these symptoms, which he attributed to arthritis, as “chronic and mild.” Noting that Claimant had denied any trauma to his left hip in the 1986 fall, Dr. Belmonte concluded that Claimant’s left hip condition represented unrelated pathology that was developmental in nature and therefore neither caused nor aggravated by the work injury.
10. Dr. Belmonte reiterated this conclusion in September 1993, in response to a contrary opinion apparently expressed by Dr. Czajka, the orthopedic surgeon who had performed Claimant’s right total hip replacement surgery in 1989. Dr. Czajka is board certified in orthopedic surgery and also has completed fellowship training in hip and knee reconstructive surgery.
11. Dr. Belmonte reported that Dr. Czajka had remarked in his July 1993 medical record that Claimant had injured “his back and both hips” in the 1986 fall. In August 1993 Dr. Czajka had reported his assessment that Claimant ultimately would need a left total hip replacement.2 While not disputing that Claimant very well might some day require surgery on his left hip to address his ongoing symptoms, Dr. Belmonte continued to maintain that this was necessitated solely by the progressive nature of his degenerative disease. In Dr. Belmonte’s opinion, any such surgical intervention would not be causally related to the 1986 injury.
Claimant’s Course from 1993 until 2007
12. Claimant did not treat with Dr. Czajka from 1993 until 2007. During that period, Claimant trained himself as a butcher and opened his own meat cutting shop. He processed deer, beef, pork and lamb. Claimant’s shop was equipped with an overhead rail from which a carcass would be suspended, such that he could process cuts of meat directly onto a table without having to lift the entire animal. Even so, the work was physical and required prolonged standing. Although the workload varied depending on the season, Claimant testified that he averaged 30 to 40 hours weekly at this business from 1993 until the mid-2000’s. Business dropped off at that point, due to both economic factors and to changes in the state’s meat processing rules. As a result, Claimant’s hours dropped as well, down to approximately 18 to 20 weekly.
2 As noted previously, Dr. Czajka’s medical records from this period are no longer available. Therefore, it is impossible to evaluate fully the context in which the remarks quoted by Dr. Belmonte might have occurred.
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13. A heavy-set man to begin with, Claimant also gained between 20 and 40 pounds during this period.
14. It is difficult to piece together the progression of Claimant’s hip pain during the years from 1993 until 2007. Claimant testified that he continued to favor his right side even after his 1989 hip replacement, with the result that his left hip ached constantly. His wife testified that Claimant always had hip pain, and to her mind the question was simply “which one was worse on what day.”
15. Contemporaneous medical records corroborate both Claimant’s and his wife’s testimony. Specifically, Dean Measeck, an orthopedic physician’s assistant who evaluated Claimant for left hip discomfort in December 2000, remarked that Claimant walked with an antalgic gait, or limp, on the right. Favoring one’s right side in this way puts additional weight, and thereby stress, on the left side.
16. X-rays taken at the time of Mr. Measeck’s evaluation were indicative of advancing osteoarthritic changes in the left hip. Notably, x-rays also revealed that the replacement socket in Claimant’s right hip had rotated, an indication that his right total hip replacement had failed. Mr. Measeck urged Claimant to contact Dr. Czajka “sooner rather than later” about this finding, as it might signal the need for further surgical intervention. Claimant did not immediately do so, however, despite the fact that he continued to experience pain and stiffness in both hips thereafter.
Claimant’s Course since April 2007
17. On the morning of April 30, 2007, as Claimant was getting into his truck, he felt a pop in his right hip. The pain was severe. Claimant went immediately to Dr. Czajka’s office. X-rays revealed that the replacement socket in Claimant’s right hip had loosened and become totally displaced. Claimant was immediately hospitalized, and Dr. Czajka performed revision surgery to replace the loosened component the following day.
18. Claimant was on crutches for at least three months after the revision surgery. Claimant testified that this put even more stress on his left hip, with the result that the pain in that joint continued to worsen. Claimant’s wife testified that after the 2007 surgery, “[the right] hip now becomes the good hip, and the left hip is now the bad hip.”
19. Initially Defendant denied responsibility for Claimant’s 2007 revision surgery. It maintained that intervening factors, including both his meat cutting work and his weight gain, had caused his right hip to fail. Defendant maintained its denial until just days before the formal hearing, at which time it reversed its position and voluntarily accepted responsibility for the 2007 surgery.
20. In the years since his 2007 revision surgery, Claimant has continued to experience pain and stiffness in both hips. X-rays taken in February and December 2009 documented significantly worsening arthritis in his left hip. As treatment, Dr. Czajka has recommended a left total hip replacement.
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21. Both Claimant and his wife testified as to his current limitations. Claimant cannot now stand, sit, recline or walk for any period of time without pain. He ambulates with crutches, requires his wife’s assistance to dress and cannot do household chores. Getting into and out of his car is a struggle. Claimant works only limited hours at his meat cutting shop. He has been receiving Social Security disability benefits since approximately 2003 solely on account of his right hip condition.
Expert Medical Opinions as to Cause of Claimant’s Left Hip Condition
22. In Dr. Czajka’s opinion, Claimant’s work, his body habitus and the multiple surgeries he has undergone on his right hip all have combined to cause his left hip arthritis to worsen more quickly than it otherwise might have. Specifically as to the impact that Claimant’s right hip condition has had on the progression of the degenerative disease in his left hip, Dr. Czajka suggested “a probable 40 to 50% causal relationship of the left hip problem because of the right hip arthritis and injury sustained.”
23. Dr. Czajka testified that Claimant’s left hip “took the brunt of his activities,” particularly during the times following his right hip surgeries when he was on crutches. As a result, in Dr. Czajka’s opinion Claimant’s left hip arthritis was “significantly aggravated” by the problems he has had with his right hip.
24. Dr. Johansson, who conducted a medical records review at Defendant’s request, disagreed with this assessment. Dr. Johansson is an osteopathic physician who specializes in the non-surgical treatment of musculoskeletal injuries.
25. Dr. Johansson found no evidence from which to conclude, to the required degree of medical certainty, that Claimant’s right hip surgeries have played any role in the progression of the arthritis in his left hip. To the contrary, in Dr. Johansson’s view Claimant’s left hip symptoms have progressed exactly as one would expect in a patient with documented evidence of arthritis dating back to 1988.
26. There are many possible causes of osteoarthritis, including excessive weight, work-related stressors, trauma or genetic predisposition. With that in mind, Dr. Johansson expressed no opinion as to the most likely cause of Claimant’s left hip arthritis. According to his review of the medical records, both Claimant’s weight and his meat cutting activities were possible contributing factors.
27. Notably, Dr. Johansson dismissed Claimant’s right hip surgeries as irrelevant to the progression of his left hip disease in part because he found no evidence in the medical records indicating that Claimant walked with an antalgic gait or otherwise experienced any ongoing problems with his right hip. In fact, Dr. Belmonte documented in his December 1992 permanency evaluation that Claimant walked with a right-sided limp. As noted in Finding of Fact No. 15 above, furthermore, a December 2000 medical record documented the same antalgic gait pattern eight years later.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue here is whether the osteoarthritis in Claimant’s left hip was either caused or aggravated by the right hip injury he sustained as a consequence of his 1986 fall at work. Defendant having accepted the compensability of Claimant’s right hip injury, it is responsible as well for all of the natural consequences that flow directly from it. A.B. v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008); see generally, 1 Larson’s Workers’ Compensation Law §10.01. This includes the consequence Claimant alleges in this claim – that as a result of his compensable right hip injury the osteoarthritis in his left hip was aggravated and accelerated. See 1 Larson’s Workers’ Compensation Law §10.03 and cases cited therein.
3. Where, as here, the preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, “due to a work injury or the work environment, ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard v. Stannard Co., Inc., 175 Vt. 549, 552 (2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989).
4. Notably, this test asks only whether a claimant’s work injury contributed to accelerate the underlying condition, not whether other factors may have contributed as well. Medical causation is often multi-factorial, and the pace at which a progressive condition degenerates may be due to a number of contributing circumstances. The causal link back to the work injury is not broken, however, unless the medical evidence clearly establishes some other factor as the superseding cause. Jackson, supra at 597.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
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6. Here, Dr. Czajka identified Claimant’s work-related right hip injury as the reason why his left hip “took the brunt of his activities,” particularly after the 2007 revision surgery. Both Claimant and his wife testified credibly to the same effect. Their testimony was supported by medical records documenting that Claimant had continued to favor his right hip even after his first hip replacement surgery.
7. Those same medical records undermine Dr. Johansson’s opinion that Claimant’s right hip injury played no role whatsoever in the progression of his left hip arthritis. True, the condition probably would have progressed “even if left to itself,” Jackson, supra at 596, but that is not the appropriate standard for measuring compensability. Stannard, supra. Equally plausible, as Dr. Johansson testified, other factors, such as Claimant’s weight or his meat cutting work, may have contributed to accelerate the disease. Notably, however, Dr. Johansson stopped short of identifying those as superseding causes to the required degree of medical certainty.
8. Considered one against the other, I find Dr. Czajka’s opinion more credible than Dr. Johansson’s. I conclude, therefore, that as a natural consequence of Claimant’s work-related right hip injury the underlying arthritis in his left hip was accelerated. Claimant’s left hip condition, therefore, is compensable.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,151.66 and attorney fees totaling $16,877.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
10. As for attorney fees, these lie within the Commissioner’s discretion, subject to the limitations of Workers’ Compensation Rule 10.1210. That rule recently has been amended. An award of attorney fees incurred prior to June 15, 2010, the effective date of the amendment, is limited to a maximum rate of $90.00 per hour. For fees incurred on or after June 15, 2010 the new maximum rate is $145.00 per hour. Claimant’s billing statement encompasses a total of 130.25 hours, all but 47 incurred prior to June 15th. Applying the appropriate maximum billing rates, the total requested is $14,307.50. This amount is awarded.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves his entitlement causally related to his compensable left hip condition;
2. Costs totaling $2,151.66 and attorney fees totaling $14,307.50.
DATED at Montpelier, Vermont this 30th day of August 2010.
____________________
Valerie Rickert
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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