Kenneth Lamont v. Agri-Mark, Inc Opinion No. 16-16WC

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STATE OF VERMONT

DEPARTMENT OF LABOR

Kenneth Lamont v.Agri-Mark, Inc. Opinion No. 16-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. GG-00980

OPINION AND ORDER

Hearing held in Montpelier on December 16, 2015, 2016

Record closed on January 21, 2016

APPEARANCES:

Daniel McCabe, Esq., for Claimant

Keith Kasper, Esq., for Defendant

ISSUE PRESENTED:

  1. Did Claimant suffer an overuse injury to his left shoulder causally related to his work

for Defendant?

  1. If yes, to what workers’ compensation benefits is he entitled?

EXHIBITS:

Joint Exhibit I: Medical records

Joint Exhibit II: Stipulation

Claimant’s Exhibit 1: Job descriptions, Crew Member Cut & Wrap and Cheddar

Box/Tower Operator

Claimant’s Exhibit 2: Pictures and video

Defendant’s Exhibit A: Video

Defendant’s Exhibit B: Curriculum vitae, William Boucher, M.D.

Defendant’s Exhibit C: Time detail, April 2014

CLAIM:

All workers’ compensation benefits to which Claimant proves his entitlement as causally related

to his alleged left shoulder injury

Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 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.

  1. Judicial notice is taken of all relevant forms and correspondence contained in the

Department’s file relating to this claim.

  1. Claimant worked for Defendant as a cheese table operator for more than ten years. He

worked second shift in the “cheddar room,” at a job with varied responsibilities. Many of

his duties were physically strenuous, and barring equipment breakdowns, on most nights

there was little down time. Claimant credibly testified that he frequently worked

overtime; the time detail for a twenty-day period in April 2014 documents an average of

9.2 hours nightly.

  1. As of September 3, 2014 Claimant’s average weekly wage was $766.36, which yielded a

weekly compensation rate of $512.91. Claimant has no dependent children.

Detailed Description of Claimant’s Job Duties

  1. One of Claimant’s primary duties was salting vats of cheddar cheese. This was a multistep

process, which, alternating with a co-employee, he did at least every other night.

First, he removed 50-pound bags of salt from a stack in the storeroom, opened them and

poured the contents into a wheeled cart. Then he wheeled the cart back to the cheddar

room and scooped the salt into a bucket, which sat on a scale. When the bucket was

filled to the appropriate weight (between 42 and 45 pounds), he began the salting process

itself. Holding his right arm around the bucket, he walked up and down alongside one of

three “tables,” or vats of cheese, and used his left (dominant) arm to throw the salt across

the table as he went, in a motion he credibly described as “like feeding chickens.”

  1. In an eight-hour shift, Claimant likely salted six to eight vats of cheese. Each vat

required three buckets of salt, plus other flavorings as well depending on what kind of

cheese was being processed. Thus, over the course of an evening he likely would fill and

spread 18 to 24 buckets. In addition, each wheeled cart held approximately 300 pounds

of salt, meaning that he would have to return to the storeroom and refill the cart three or

four times per shift.

  1. Many aspects of the salting process involved bending, reaching and repetitive

movements. For example, filling a bucket with salt required reaching down into the cart,

which was 36 inches deep, to fill the scoop, and then emptying it into the bucket, which

was at approximately chest height. From the video evidence admitted at hearing, I find

that Claimant reached repetitively with his left shoulder engaged and his arm outstretched

while performing these activities. Throwing the salt across the vats was also repetitive,

though this action involved more left elbow than shoulder movement.

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  1. Apart from the salting process itself, Claimant regularly performed other duties as well

that involved reaching at or above chest level. Twenty-two times each night, he and a coworker

would have to switch out one of two automated devices – either a 20-pound

agitator or a wide metal shovel weighing 50 pounds – that traveled back and forth above

each of the three cheese tables. This task required reaching out across the table to a

distance of approximately 24 inches, and then up approximately five feet overhead in

order to disconnect one device and reconnect the other.

  1. Six to eight times per shift (once for each vat of cheese), Claimant and his co-worker

would have to rake and shovel the curds in from the end of the table, so that the

automated agitator could reach them. Claimant typically did the shoveling, using a

motion akin to shoveling wet snow. The shovel weighed approximately 20 pounds when

full, and the task typically took about five minutes of forceful and repetitive left shoulder

and arm motions to complete.

  1. When not directly engaged in the salting process (typically mid-way through his shift),

Claimant would remove 38-pound wheels of cheese from their bands and stack them on

racks to dry. This task required some repetitive lifting from approximately waist to

shoulder height.

  1. Over the course of his shift, Claimant performed other routine tasks that did not involve

any repetitive or forceful use of his left shoulder. These included breaking up cheese

balls with his fingers as he walked up and down the cheese tables, operating a forklift and

occasionally reaching above shoulder height to access a computer touch screen.

  1. Claimant credibly testified that of all the job duties he performed during the course of a

normal shift, the most physically taxing one was the process of filling and weighing the

salt buckets so many times during the night.

  1. Claimant’s supervisor, Fred Hart, corroborated Claimant’s testimony regarding the fast

pace at which the cheese table operators worked. Mr. Hart credibly testified that while

the job was not among the most physically demanding ones at the facility, it required

constant movement from one task to the next, with only limited break times.

  1. Mr. Hart credibly described Claimant as a good employee who worked independently.

Prior to filing the pending workers’ compensation claim, he had never complained about

the physical demands of his job, nor had he ever reported that the job caused him to

suffer shoulder pain.

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  1. Susan Murray, Defendant’s regional safety coordinator, has worked for Defendant for 25

years. She credibly testified that neither state safety inspectors nor workers’

compensation insurance consultants have ever raised concerns regarding the repetitive

nature of Defendant’s cheese operation. Nevertheless, as an example of Defendant’s

ongoing commitment to injury prevention, Ms. Murray described its practice of

scheduling “micro breaks” throughout each shift whereby, upon hearing a musical cue

played over the intercom, employees are encouraged to stop and stretch for a few

minutes. However, she acknowledged that if Claimant and his co-worker were in the

midst of salting when the cue was played, they would not be able to stop and stretch at

that moment. The evidence does not establish whether and to what extent Claimant

availed himself of these mini-stretch breaks.

Claimant’s Prior Medical History of Right and Left Shoulder Pain

  1. Claimant has a history of right shoulder and neck pain dating back to 2009, following a

non-work-related incident involving heavy lifting. He was diagnosed with right rotator

cuff and biceps tendon tears, for which he underwent arthroscopic surgery in November

  1. Dr. Chen, his treating orthopedic surgeon, also noted degenerative changes in his

acromioclavicular joint at the time.

  1. Claimant recovered well from surgery. In March 2010 he was released to return to full

time, full duty work. Thereafter, he continued to report pain with overhead lifting and

heavy weights, but these symptoms were not disabling.

  1. Claimant first complained of pain with movement in his left shoulder in July 2011. His

primary care provider, Christopher Laurent, a family nurse practitioner, reported the

following history:

Patient denies history of injury but reports that he lifts 45-pound buckets at

work several times a day. He uses both arms. He states that the shoulder

mostly hurts with movement, but is very uncomfortable at night. Patient

recently had right shoulder rotator cuff repaired and states that this feels

“the same.”

  1. Mr. Laurent’s assessment was non-specific “left shoulder pain.” As treatment, he

prescribed medications for joint pain and advised Claimant to limit lifting to ten pounds

with both arms. It does not appear that Claimant informed Defendant of this restriction

or made any attempt to abide by it himself.

  1. Claimant did not treat again for left shoulder pain until the following year. In July 2012

he returned to Mr. Laurent with complaints of worsening pain and episodic weakness in

his left arm. As before, Mr. Laurent reported that he “works in a job that requires

repetitive lifting with both arms of about 45 pounds.” X-rays were “essentially normal,”

and again Mr. Laurent’s diagnosis was non-specific.

5

  1. Claimant treated again with Mr. Laurent for complaints of left shoulder pain in April and

November 2013. As before, Mr. Laurent noted his history of repetitive use at a job that

required lifting up to 50 pounds. Treatment was conservative, and consisted of pain

medications and an injection. Throughout, Claimant continued to work full time without

restrictions, notwithstanding ongoing pain and limited range of motion.

Claimant’s May 2014 Work Injury

  1. While lifting a bucket of salt during his shift on May 22, 2014 Claimant felt a sharp,

intense pain across his left chest and radiating into his left arm. He immediately fell to

the floor. Soon after, he was transported by ambulance to the hospital emergency room.

  1. Initially, Claimant suspected that he had suffered a heart attack. Cardiac tests were

negative, however, and later he was diagnosed with a costochondral chest strain.

Defendant accepted this injury as compensable and began paying workers’ compensation

benefits accordingly.

  1. Claimant missed approximately two weeks of work following this injury, during which

Defendant paid both medical and temporary disability benefits. In early June he returned

to work in a modified duty position, with a restriction against lifting more than 20 pounds

with either arm.

  1. Concurrent with his modified duty work, between May and September 2014 Claimant

also worked at times for Early Bird Cleaners, the janitorial service with whom Defendant

had contracted to clean its facility. Claimant typically worked one hour per night,

running the floor polisher, cleaning toilets and washing windows. He acknowledged that

the latter tasks required some reaching and overhead work.

Claimant’s Medical Course after September 2014

  1. On September 3, 2014 Claimant reported to his primary care provider, Mr. Laurent, that

despite two months of lifting restrictions his left shoulder was “still” stiff and tender, and

that if he tried to lift more than 20 pounds, he would have pain for two or three days

thereafter. Claimant also reported a new complaint of low back pain, which he attributed

as well to repetitive lifting at work. On the basis of these complaints, Mr. Laurent

determined that he was totally disabled from working.

  1. As treatment for Claimant’s left shoulder pain, Mr. Laurent prescribed narcotic

medications, physical therapy and injections. Later, diagnostic imaging studies revealed

both a rotator cuff tear and acromioclavicular degenerative joint disease. Mr. Laurent

attributed these conditions to both the repetitive nature of Claimant’s work and the May

2014 lifting incident. In Mr. Laurent’s opinion, the severe chest discomfort Claimant had

experienced during that event was likely due to inflammation in his left shoulder. I find

this analysis credible.

6

  1. Claimant’s symptoms failed to abate with conservative therapy. In July 2015 he

underwent arthroscopic surgery with Dr. Chen, the same surgeon who had repaired his

right rotator cuff tear in 2009. Initially, he reported that his recovery was progressing

well. As of the formal hearing, his strength remained diminished, however. He had not

been able to afford formal physical therapy, such that his treatment was limited to a home

exercise program.

Expert Medical Opinions

(a) Dr. Spina

  1. At his attorney’s referral, in March 2015 Claimant underwent an independent medical

examination with Dr. Spina, an orthopedic surgeon. Dr. Spina has retired from a surgical

practice focusing primarily on knees and hips, though he has treated hundreds of rotator

cuff injuries as well over the course of his career. He also has experience treating work

injuries in a manufacturing setting, and in that context he toured Defendant’s facility

some twenty years ago to assist his understanding of the cheese making process. Prior to

issuing his report in this claim, Dr. Spina physically examined Claimant and reviewed his

medical records. More recently, he reviewed Defendant’s independent medical

examiner’s report and also viewed the video evidence submitted at hearing.

  1. Dr. Spina diagnosed Claimant with a phenomenon called “dead arm syndrome,” with

findings consistent with rotator cuff degeneration, tearing and possible instability. He

acknowledged that Claimant’s age (59 as of May 2014) and genetic predisposition are

“always” contributing factors in the development of these conditions. However, in his

opinion, to a reasonable degree of medical certainty the primary cause was his work for

Defendant.

  1. Dr. Spina specifically identified having to fill and carry heavy buckets, scooping salt and

reaching overhead to stack cheese wheels as the type of job duties likely to cause rotator

cuff pathology. The tissues in that area are poorly vascularized; as a result, the joint’s

propensity for healing is poor. Having worked for more than ten years at a rigorous job

that required repetitive use of his left shoulder, as well as forceful pulling and prolonged

reaching, Claimant likely caused damage that became chronic. The May 2014 lifting

incident was the event that finally caused the joint to fail – “the straw that broke the

camel’s back,” as it were. I find this analysis credible.

  1. Dr. Spina admitted to having no knowledge of Claimant’s work with Early Bird Cleaners

during the summer of 2014. He acknowledged that washing windows likely required

overhead work of a type that would be conducive to rotator cuff injury. However, given

a documented history of left shoulder complaints that long predated these activities, Dr.

Spina doubted that they were causative. I find this analysis persuasive.

  1. Dr. Spina concurred with Dr. Chen’s ultimate diagnosis, and also with his surgical

treatment plan.

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(b) Dr. Boucher

  1. At Defendant’s request, in April and May 2015 Dr. Boucher reviewed Claimant’s

medical records and three pages of written job descriptions provided him by Defendant.

He also viewed the video evidence submitted at hearing. Dr. Boucher is board certified

in occupational medicine. He did not personally examine Claimant, and has never visited

Defendant’s facility, though he testified to having worked in the past with a similar

employer in Maine.

  1. In Dr. Boucher’s opinion, to a reasonable degree of medical certainty there was no causal

relationship between Claimant’s work for Defendant and his left shoulder pathology.

Citing to the AMA Guides to the Evaluation of Disease and Injury Causation, a

compilation of pertinent medical literature, Dr. Boucher declared that the incidence of

shoulder arthritis and degenerative rotator cuff tears is the same in laborers as it is in the

general population; in either case, the condition becomes increasingly prevalent after age

  1. With that in mind, he concluded that Claimant’s condition was likely due solely to

age-related degeneration.

  1. Dr. Boucher acknowledged that the studies upon which he relied were very general, and

did not specifically examine particular activities similar to the ones Claimant regularly

performed. For that reason, at least he described them I find that the studies have only

limited value.

  1. According to Dr. Boucher’s interpretation of the video evidence, most of the job tasks in

which Claimant engaged, such as salting the vats, stacking cheese wheels, breaking up

cheese balls and occasionally operating the computer, required shoulder movement at or

below chest level, which would put little strain on his rotator cuff. In Dr. Boucher’s

analysis, none of these activities was sufficiently forceful or repetitive to cause or

aggravate his shoulder condition.

  1. Notably, Dr. Boucher failed to address in his testimony the one activity that Claimant

identified as the most bothersome, which was repetitively scooping the salt from the cart

and into the buckets so many times during his shift. As to some of the others, he did not

know important details, for example, how many times per shift Claimant had to switch

out the automated devices suspended over each vat, and how high he had to reach to do

  1. I find these gaps in his analysis troubling.
  2. Dr. Boucher admitted that the written job descriptions upon which his understanding of

Claimant’s job duties was based in fact pertained to two other positions in Defendant’s

facility, not Claimant’s, and therefore did not accurately portray the duties Claimant

actually performed. Nevertheless, Dr. Boucher claimed to have gleaned sufficient

knowledge of Claimant’s job duties from his experience with a “similar employer” in

Maine. Aside from this vague reference, he offered no further information from which I

might determine whether and to what extent the jobs were comparable to Claimant’s.

Again, as a result I have reason to question his analysis.

8

  1. As Dr. Spina had, Dr. Boucher concurred with Dr. Chen’s ultimate diagnosis, and also

agreed that Claimant’s July 2015 surgery was medically reasonable.

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 probably hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);

Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).

  1. The disputed issue in this case is whether Claimant suffered an overuse injury to his left

shoulder causally related to his work for Defendant. The parties presented conflicting

expert medical evidence on this issue. In such cases, the Commissioner traditionally uses

a five-part test to determine which expert’s opinion is the most persuasive, considering

(1) the nature of the treatment and the length of time there has been a patient-provider

relationship; (2) whether the expert examined all of the 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 (September 17, 2003).

  1. With particular reliance on the third factor, I conclude here that Dr. Spina’s opinion was

the most credible. His analysis of the forceful and repetitive nature of Claimant’s various

job tasks, and the manner in which they likely resulted in stress to his left shoulder, was

clear, thorough and objectively supported. His analysis of the relationship between the

damage caused by repetitive stress and the joint’s ultimate failure following the May

2014 lifting incident was equally persuasive.

  1. In contrast, Dr. Boucher’s analysis was based on an inaccurate description of Claimant’s

job duties and failed to account for tasks that were clearly repetitive. Given the other

credible evidence in the record, his reliance on the medical literature to support his

opinion fell far short of the mark, furthermore. The question is not whether Claimant was

equally likely to suffer from a degenerative shoulder condition regardless of his work

activities; it is whether the facts in this case justify the conclusion that the condition was

caused or accelerated in any way by his work. Compare Brace v. Jeffrey Wallace, DDS,

Opinion No. 28-09WC (July 22, 2009) (evidence deemed sufficient to establish workrelated

causation notwithstanding non-occupational risk factors), with Goodwin-Abare v.

State of Vermont Agency of Human Services, Opinion No. 41-11WC (December 14,

2011) (evidence deemed insufficient to establish work-related causation). I conclude that

they do, and for that reason I find Dr. Boucher’s opinion unpersuasive.

9

  1. I conclude that Claimant has sustained his burden of proving that his left shoulder

condition arose out of and in the course of his work for Defendant, and is therefore

compensable.

  1. As Claimant has prevailed on his claim for workers’ compensation benefits, he is entitled

to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant

shall have 30 days from the date of this decision within which to submit his itemized

claim.

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 establishes his entitlement as

causally related to his compensable left shoulder injury; and

  1. Interest, costs and attorney fees, in amounts to be determined, in accordance with 21

V.S.A. §§664 and 678.

DATED at Montpelier, Vermont this ____ day of September 2016.

_______________________

Anne M. Noonan

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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