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George Plante v. State of Vermont, Agency of Transportation (September 14, 2012)

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George Plante v. State of Vermont, Agency of Transportation (September 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
George Plante Opinion No. 24-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
State of Vermont
Agency of Transportation For: Anne M. Noonan Commissioner
State File Nos. X-4039 and BB-0900 OPINION AND ORDER
Claim submitted on stipulated facts, exhibits, issues and briefs without an evidentiary hearing.
Record closed on July 16, 2012
APPEARANCES:
Frank Talbott, Esq., for Claimant
Keith Kasper, Esq., for Defendant
STIPULATED ISSUES:
1. What is the proper determination of the date of Claimant’s cervical injury?
2. What is the appropriate average weekly wage and compensation rate for the purposes of calculating the indemnity benefits referable to Claimant’s cervical injury?
STIPULATED EXHIBITS:
Joint Exhibit 1: Medical records
Joint Exhibit 2: Franklin Superior Court trial transcript, November 8-9, 2011
Joint Exhibit 3: Photographs (19)
Joint Exhibit 4: Illustration of median and ulnar nerves
Joint Exhibit 5: Various wage statements and compensation agreements
Claimant’s Exhibit 1: Letter from Attorney Talbott, October 13, 2009
Claimant’s Exhibit 2: Letter from Workers’ Compensation Specialist, October 19, 2009
Claimant’s Exhibit 3: Notice of Injury and Claim for Compensation (Form 5), received October 14, 2009
Claimant’s Exhibit 4: Claimant’s proposed findings of fact and conclusions of law, June 1, 2010
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
The parties stipulated to the following facts and I accept them as true:
1. At all relevant times, Claimant has been an employee and Defendant an employer within the meaning of Vermont’s Workers’ Compensation Act.
2. In 2005 Claimant asserted a workers’ compensation claim for bilateral upper extremity pain that he alleged was caused by progressive injury due to his work for Defendant.
3. Defendant accepted Claimant’s claim for bilateral wrist injuries as compensable, with a date of injury of July 1, 2005. This claim was assigned State File No. X-4039.
4. Claimant was originally diagnosed with bilateral carpal tunnel syndrome.
5. A Wage Statement (Form 25) was prepared and filed for the twelve weeks prior to July 1, 2005, which showed an average weekly wage of $640.48. However, no Form 25 was obtained from the concurrent employer for this period until May 25, 2006. At that point, Claimant’s average weekly wage for the twelve weeks prior to July 1, 2005 was recalculated to be $817.47.
6. Claimant did not lose any time from work as a result of his July 1, 2005 injury until March 22, 2006. On that date he underwent a right-sided carpal tunnel release.
7. During the twelve weeks prior to March 22, 2006 Claimant was employed by a concurrent employer, the Air National Guard. Wage statements were obtained from both employers, which documented a combined average weekly wage of $1,269.54. This yields a compensation rate of $846.36.
8. An Agreement for Temporary Total Disability Benefits (Form 21) was entered into and approved by the Department, providing that beginning March 25, 2006 Defendant would pay temporary total disability benefits at the rate of $846.36 weekly.
9. Claimant returned to work on May 15, 2006 and continued to work until December 2, 2008.
10. On December 2, 2008 Claimant underwent a repeat right-sided carpal tunnel release.
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11. A Wage Statement was filed that documented an average weekly wage for the 26 weeks prior to this period of disability of $788.46.1
12. On or about October 13, 2009 Claimant, through his counsel, filed an Employee’s Notice of Injury and Claim for Compensation (Form 5), in which he alleged “cervical degenerative disk disease aggravated by heavy work; disk herniation caused/aggravated by heavy work” and a “progressive” date of injury.
13. This Form 5 was given a new State File No. BB-0900.
14. On December 23, 2009 Claimant underwent cervical disc surgery.2
15. On April 22, 2010 the commissioner held a formal hearing on the disputed issue of whether Claimant’s cervical disc surgery was causally related to an injury arising out of and in the course of his employment for Defendant.
16. By a written decision issued on August 5, 2010 the commissioner concluded that Claimant’s cervical condition was neither caused nor aggravated by his employment for Defendant.
17. Claimant appealed the commissioner’s decision to the Superior Court, Franklin County Unit.
18. Claimant was successful in his appeal. In November 2011 the Superior Court jury responded “yes” to the certified question “whether the Claimant’s cervical condition was caused and/or aggravated by his employment for the Defendant.”
19. On January 18, 2012 the commissioner entered an Amended Order stating that pursuant to the Superior Court jury verdict Defendant was obligated to pay “all workers’ compensation benefits to which Claimant establishes his entitlement.”
Based upon the record evidence presented, the following additional facts are found:
20. Claimant initially experienced improvement in his right upper extremity after his first carpal tunnel release in March 2006. However, within months of that surgery he again complained of right upper extremity pain, numbness and tingling. A second right carpal tunnel release in December 2008 provided no relief.
1 The 26-week calculation period was in keeping with legislative amendments to 21 V.S.A. §650(a), effective July 1, 2008.
2 Though incorrectly stated in their Stipulation of Facts, the parties agree that this is the correct date of Claimant’s cervical surgery.
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21. In January 2009 Claimant continued to complain of pain. He was referred to Dr. Rinehart, who evaluated him in early April 2009. Dr. Rinehart described Claimant’s problem as severe numbness and pain in the right upper extremity. He noted that there had been noticeable improvement documented on EMG and nerve conduction tests in May 2008 and March 2009, but that this improvement “did not mirror his clinical picture which continues to present with severe numbness and pain in his right upper extremity.”
21. Based on these findings, Dr. Rinehart concluded that Claimant’s symptoms were more likely related to cervical pathology rather than to any carpal tunnel problem. As a result, he recommended that Claimant undergo cervical surgery.
22. In October 2009 Claimant sought treatment with Dr. Barnum, a board certified spine surgeon. His complaints at that time included bilateral arm pain with numbness and tingling in his hands. Dr. Barnum found evidence of what he believed to be nerve impingement in Claimant’s neck. Considering that finding together with Claimant’s other symptoms, he diagnosed a so-called “double crush syndrome.”
23. Double crush syndrome is a condition that occurs when a single nerve becomes pinched in two distinct areas. In Claimant’s case the nerve was pinched in his wrist and also in his neck. The preferred course of treatment in this type of situation is to release the nerve first at the wrist, as that is the least invasive procedure. In some circumstances doing so will correct the impingement in the neck as well, and the more invasive cervical surgery can be avoided.
24. Unfortunately, Claimant had continued to have symptoms after his carpal tunnel releases, such that cervical surgery was now necessary. Dr. Barnum performed that surgery on December 23, 2009. Claimant recuperated for approximately six weeks thereafter. He returned to work full time on February 1, 2010.
25. Claimant credibly described the symptoms in his right arm as 80 percent improved following his cervical surgery. The pain in his left arm he described as 100 percent resolved.
26. As a consequence of Claimant’s compensable cervical injury, I find that Defendant is obligated to pay temporary total disability benefits for the period from December 23, 2009 to February 1, 2010 as well as permanency benefits specifically referable to that condition.
27. Claimant’s average weekly wage for the 26 weeks prior to December 23, 2009 was $814.41. This yields a compensation rate of $542.96.
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CONCLUSIONS OF LAW:
1. The principal disputed issue in this case concerns the appropriate average weekly wage and compensation rate for indemnity benefits payable as a consequence of Claimant’s December 2009 cervical surgery. Resolving this dispute requires a determination as to when the “injury” necessitating that surgery occurred.
2. Vermont’s workers’ compensation statute provides that an injured worker’s average weekly wages “shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 26 weeks preceding an injury . . .” 21 V.S.A. §650(a). Elsewhere, in the context of its notice and statute of limitations provisions the statute states, “The date of injury . . . shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.” 21 V.S.A. §656. Workers’ Compensation Rule 3.0540 reiterates this language, and the Vermont Supreme Court has consistently applied it in cases involving notice and statute of limitations disputes. Longe v. Boise Cascade Corp., 171 Vt. 214, 219 (2000); Hartman v. Ouellette, 146 Vt. 443, 447 1985).
3. Aside from notice and statute of limitations issues, neither the statute nor the Supreme Court has delineated what constitutes the “date of injury” for the purposes of determining the rate at which temporary disability benefits should be paid. In prior decisions, the commissioner has at times held that the “date of injury” in this context is not the date upon which the injury itself occurred, but rather the date upon which it became disabling. See, e.g., V.S. v. Kenametal, Inc., Opinion No. 19-07WC (August 2, 2007); Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC (May 24, 1995). In other cases, the average weekly wage calculation has been based solely on the date when the injury and its relationship to the employment became reasonably discoverable and apparent, regardless of when it first became disabling. See, e.g., Hepburn v. Concrete Professionals, Inc., Opinion No. 16-03WC (May 14, 2003); Groman v. Peck Auto and Glass and Middlebury College, Opinion No. 3-95WC (March 13, 1995). In all cases, the commissioner has applied the analysis that best incorporates the statute’s intent with respect to indemnity benefits – to replace wages lost as a direct result of a compensable injury. Orvis v. Hutchins, 123 Vt. 18 (1962).
4. Turning to the current claim, I conclude that the date of Claimant’s cervical injury was July 1, 2005. This was the date assigned to his complaints of bilateral upper extremity pain, which Defendant accepted as compensable. The Superior Court jury since has determined that Claimant’s cervical complaints were also causally related. Having now been diagnosed as a double crush syndrome, the medical evidence establishes that both complaints likely resulted from the same primary injury.
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5. Defendant argues that Claimant’s cervical injury, and particularly its relationship to his employment, did not become reasonably discoverable and apparent until April 2009, when Dr. Rinehart first posited that his ongoing symptoms were originating in his neck rather than in his wrists. I disagree. That the complaints referable to Claimant’s July 1, 2005 compensable injury were initially misdiagnosed as involving solely carpal tunnel syndrome rather than a double crush syndrome as well does not change the date of their occurrence. An injury claim begins with a symptom or complaint, not a diagnosis.
6. I conclude, therefore, that the date of Claimant’s compensable injury, which includes both his upper extremity and his neck complaints, was July 1, 2005.
7. Establishing the date of Claimant’s injury does not resolve the dispute as to how to calculate his average weekly wage and compensation rate, however. This is because Claimant has endured three separate periods of disability – the first following his March 2006 carpal tunnel surgery, the second following his December 2008 carpal tunnel surgery, and the third following his December 2009 cervical surgery. According to the statute, 21 V.S.A. §650(c), in circumstances such as this the rate at which benefits must be paid may be subject to change.
8. Section 650(c) states, “When temporary disability . . . does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, compensation shall be adjusted for each recurrence of disability to reflect any increases in wages or benefits prevailing at that time.” According to Claimant, this means that whichever date yields the highest average weekly wage – in this case, March 22, 2006 – is the one that must control his current compensation rate.
9. Historically the Department has interpreted the language of §650(c) to mandate that a claimant’s compensation rate can only be adjusted upward, that is, when his or her wages have increased since a prior period of disability, but never downward, that is, to reflect a decrease in wages during the intervening period. See, e.g., Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
10. As the commissioner previously has observed, this interpretation makes sense when the work injury itself accounts for the reduction in earnings. Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). In this case, for example, Claimant should not be penalized if at some point after March 22, 2006 the functional restrictions imposed as a result of his work injury precluded him from maintaining his concurrent employment for the Air National Guard. If that is in fact what happened, then his compensation rate thereafter should reflect the loss of those wages. This would be in keeping with the spirit of workers’ compensation – to provide wage replacement benefits that compensate fully for an injured worker’s diminished earning capacity. Orvis, supra at 22.
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11. Fairness also requires, however, that Claimant not receive a windfall should the evidence establish that his reduction in earnings was due to circumstances completely unrelated to his work injury, such as a personal decision not to continue his concurrent employment. See, e.g., D.P. v. GE Transportation, Opinion No. 03-08WC (January 17, 2008). To hold otherwise would amount to wage enhancement, not wage replacement. Griggs, supra.
12. The parties have not submitted any evidence as to why Claimant’s average weekly wage was lower in both December 2008 and December 2009 than it had been in March 2006. Without such evidence, I cannot determine which date is most compatible with the statute’s intent – to replace rather than supplement lost wages.
13. Under these circumstances, rather than making a determination based on incomplete information, it makes better sense to allow the parties an opportunity to present additional evidence, whether by stipulation, affidavit or formal hearing.
ORDER:
Based on the foregoing findings of fact and conclusions of law, the date of injury referable to Claimant’s cervical condition is determined to be July 1, 2005. The parties shall have 30 days from the date of this decision within which to present additional evidence and/or to request an evidentiary hearing as to the issues raised in Conclusion of Law No. 12 above.
DATED at Montpelier, Vermont this 14th day of September 2012.
_______________________
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.

Franjo Baric v. Velan Valve Corporation (October 1, 2010)

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Franjo Baric v. Velan Valve Corporation (October 1, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Franjo Baric Opinion No. 21R-10WC
By: Sal Spinosa
v. Hearing Officer
Velan Valve Corp. For: Valerie Rickert
Acting Commissioner
State File No. Y-58658
RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION
Defendant moves for reconsideration of the Commissioner’s August 5, 2010 denial of its motion to stay her previous ruling granting partial summary judgment to Claimant.
In granting partial summary judgment to Claimant, the Commissioner assumed that the question whether he was concurrently employed at the time of his work-related injury was not genuinely disputed. With that in mind, the Commissioner concluded that the parties’ failure to include Claimant’s wages from concurrent employment in their average weekly wage calculation constituted a mutual mistake of fact. Therefore, the Commissioner held that the previously approved Agreement for Temporary Total Disability Compensation (Form 21) was not binding. She ordered Defendant to recalculate Claimant’s average weekly wage, taking the concurrent earnings into account, and to make whatever retroactive payments were necessary.
In reality, as is clear from a closer examination of its prior pleadings, Defendant has never admitted the truth of Claimant’s contention that he was concurrently employed. To the contrary, that fact has been, and is now, genuinely disputed. As that fact formed the basis for the Commissioner’s previous ruling, conceivably it was inappropriate to have disposed of it on summary judgment. Rather, fairness requires that both parties be afforded a more complete opportunity to present evidence on the issue.
Defendant’s Motion for Reconsideration is GRANTED. The Commissioner’s previous ruling granting summary judgment in Claimant’s favor is hereby stayed. The issue whether Claimant was concurrently employed at the time of his work injury shall be adjudicated at formal hearing.
DATED at Montpelier, Vermont this 1st day of October 2010.
______________________
Valerie Rickert
Acting Commissioner

Franjo Baric v. Velan Valve Corporation (August 5, 2010)

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Franjo Baric v. Velan Valve Corporation (August 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Franjo Baric Opinion No. 21S-10WC
By: Sal Spinosa
v. Hearing Officer
Velan Valve Corporation For: Valerie Rickert
Acting Commissioner
State File No. Y-58658
RULING ON DEFENDANT’S MOTION FOR STAY
On Cross Motions for Partial Summary Judgment, Claimant prevailed. He argued successfully that the Agreement for Temporary Total Disability Compensation (Form 21) executed by both parties and approved by the Department failed to include his wages from concurrent employment. The Commissioner deemed this to be a mutual mistake of fact and consequently invalidated the average weekly wage as stated on the approved Form 21.
Pursuant to 21 V.S.A. §675(b), Defendant moves to stay the Commissioner’s June 23, 2010 Order on the grounds that it has met the requirements for granting a stay as established by the Vermont Supreme Court in In re Insurance Services Office, Inc., 148 Vt. 634, 635 (1987).
According to 21 V.S.A. §675(b), “[a]ny award or order of the commissioner shall be of full effect from issuance unless stayed by the commissioner, any appeal notwithstanding…” To prevail on a request for a stay, the moving party must demonstrate all of the following:
1. That it is likely to succeed on the merits;
2. That it will suffer irreparable injury if a stay is not granted;
3. That issuing the stay will not substantially harm the other party; and
4. That the best interests of the public will be served by issuing a stay.
In re Insurance Services Office, Inc., supra.
As contemplated by the legislature, the granting of a stay must be the exception, not the rule. Bodwell v. Webster Corp., Opinion No. 62S-96WC (December 10, 1996). Applying this stringent standard, I find that Defendant has failed to establish its right to a stay. Most notably, in arguing that it is likely to succeed on the merits Defendant recites the same arguments it proposed in the original cross motions. Those arguments are no more convincing today than they were when first offered.
Both parties agree that Claimant had concurrent employment at the time the Form 21 was signed and that his concurrent wages should have been included in the average weekly wage calculation. Both parties therefore agree, at least impliedly, that because his concurrent
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employment wages were omitted Claimant was denied benefits to which he was entitled. This is the error at the core of the Form 21 and one that both parties relied upon and endorsed.
As it did originally, Defendant blames Claimant for not divulging his concurrent employment in a more timely fashion. It proposes to sanction him by urging adherence to an agreement fashioned around incorrect information. While Rule 17.0000 strongly upholds the finality of compensation agreements, it does not support adherence to an agreement where, as here, a mutual mistake occupies the heart of the agreement.
Having failed to satisfy even the first prong of the Insurance Services test, it is not necessary to consider the remaining factors. Defendant’s motion for Stay is DENIED.
Finally, I must reject Claimant’s characterization of Defendant’s appeal as an interlocutory one. The ruling from which Defendant now appeals was a final determination as to how Claimant’s weekly benefit amount should have been calculated. This issue exists totally separate and apart from the issues still pending before me and is not determinative of them in any way. As such, Defendant’s direct appeal is properly taken. 21 V.S.A. §672; 3 V.S.A. §815(a).
DATED at Montpelier, Vermont this 5th day of August 2010.
___________________________
Valerie Rickert
Acting Commissioner

Franjo Baric v. Velan Valve Corportion (June 23, 2010)

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STATE OF VERMONT
DEPARTMENT OF LABOR
Franjo Baric Opinion No. 21-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Velan Valve Corp.
For: Patricia Moulton Powden
Commissioner
State File No. Y-58658
RULING ON CROSS MOTIONS FOR PARTIAL SUMMARY JUDGMENT
ATTORNEYS:
Joseph O’Hara, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant precluded as a matter of law from asserting his right to a higher average weekly wage and compensation rate than the one stated in a previously signed and approved Agreement for Temporary Total Disability Compensation?
FINDINGS OF FACT:
The following facts are undisputed:
1. On January 23, 2007 Claimant suffered a work-related injury to his right hand and wrist. Defendant accepted the claim and paid workers’ compensation benefits accordingly.
2. On February 13, 2007 Defendant’s investigator interviewed Claimant as to the facts surrounding his injury. According to the investigator’s affidavit, among the questions he asked was whether Claimant was concurrently employed at the time of his injury. Claimant replied that he was not.
3. Thereafter, Defendant prepared an Agreement for Temporary Total Disability Compensation (Form 21) for Claimant’s review and signature. Claimant, who was unrepresented at the time, signed the Form 21 on February 22, 2007. The Department approved the form on March 12, 2007.
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4. According to the Form 21, Claimant’s average weekly wage at the time of his injury was $1,099.13. This yielded a weekly compensation rate (including one dependent) of $742.75. Both of these amounts were calculated solely on the basis of Claimant’s wages from Defendant.
5. Late in 2009 Claimant revealed for the first time that on the date of his injury he had been concurrently employed by another employer, Loso Professional Janitorial Services, Inc. (hereinafter “Loso”). Claimant testified in his deposition that he had been confused at the time of his injury as to why his Loso employment would have had any bearing on an injury he suffered while in Defendant’s employ; presumably this is why he did not advise Defendant’s investigator of it initially.
6. According to Loso’s payroll summary, Claimant’s average weekly wage for the twelve weeks prior to his January 24, 2007 injury was $420.00. Had this amount been added to his average weekly wage from Defendant’s employment, the total would have been $1,519.13. This would have yielded an initial compensation rate (including one dependent) of $1,022.80, a difference of $280.05 weekly.
7. Claimant received weekly temporary total disability payments from January 24, 2007 until November 16, 2008 when the Department approved Defendant’s discontinuance on end medical result grounds.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. The issue here is whether Claimant is precluded as a matter of law from modifying a duly signed and approved Form 21. Claimant asserts that the average weekly wage and compensation rate stated in the Form 21 did not include his wages from concurrent employment and therefore were calculated incorrectly. Defendant concedes that this is true, but argues that Claimant is bound by the terms of the Form 21 nevertheless.
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3. According to 21 V.S.A. §650(a),
If the injured employee is employed in the concurrent service of more than one insured employer . . . the total earnings from the several insured employers . . . shall be combined in determining the employee’s average weekly wages . . .
4. There is no question but that had Claimant informed Defendant’s investigator in February 2007 that he was concurrently employed, Defendant would have been obligated, in accordance with §650(a), to include those wages in its average weekly wage calculation.
5. The issue, then, is whether Defendant should be relieved of what is a clearly stated statutory obligation to include concurrent employment wages by virtue of the fact that the parties executed, and the Department approved, a Form 21 that did not account for them. According to Workers’ Compensation Rule 17.0000, which applies to various compensation agreements, including the Form 21,
Once executed by the parties and approved by the Division, these forms shall become binding agreements and absent evidence of fraud or material mistake of fact the parties shall be deemed to have waived their right to contest the material portions thereof.
6. There is no evidence of, nor does either party argue, fraud. There is, however, evidence of a material mistake of fact.
7. Defendant claims that there was no mistake of fact here sufficient to undermine the Form 21, because clearly Claimant could not have been mistaken about the fact of his own concurrent employment. Applying basic contract law, “For such a mistake to exist, it must be mutual.” Lushima v. Cathedral Square Corp, Op. No. 38-09WC (September 29, 2009), citing Maglin v. Tschannerl, 174 Vt. 39 (2002). Defendant argues that as it was the only one misinformed about the facts, the mistake was unilateral, not mutual.
8. Defendant’s analysis focuses on the wrong fact, however. The “material portions” of the Form 21 at issue here were the dollar amounts representing Claimant’s statutorily determined average weekly wage and compensation rate. Though at the time they executed the Form 21 both parties believed these amounts had been accurately calculated, as it turns out both parties were mistaken. This, therefore, was their mutual mistake of fact.
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9. It is true, as Defendant points out, that compensation agreements ordinarily should be given the binding effect to which all duly executed contracts are entitled. Finality is a necessary component of any bargained-for agreement, including those that arise in the workers’ compensation context. Where, as here, the parties’ mutual mistake of fact strikes at the heart of the agreement, however, equity requires that it be undone. To do otherwise would deny Claimant the right to a clearly defined statutory benefit and provide Defendant with an unjustified windfall.
ORDER:
Defendant’s Motion for Partial Summary Judgment is DENIED. Claimant’s Motion for Partial Summary Judgment is GRANTED. Defendant is hereby ORDERED to recalculate Claimant’s average weekly wage and compensation rate to include his wages from concurrent employment and to make whatever retroactive payments are necessary in accordance therewith.
DATED at Montpelier, Vermont this _____ day of June 2010.
____________________________
Patricia Moulton Powden
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.

V. S. v. Kenametal, Inc. (August 2, 2007)

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V. S. v. Kenametal, Inc. (August 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. S. Opinion No. 19-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
Kennametal, Inc. For: Patricia Moulton Powden,
Commissioner
State File No. W-03690
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 11, 2007.
Record closed on May 14, 2007.
APPEARANCES:
Claimant, pro se
Corina Schaffner-Fegard, Esq. for Defendant
ISSUES:
1. What date of injury should be used to calculate Claimant’s average weekly wage?
2. What is the appropriate average weekly wage and compensation rate for each of Claimant’s periods of temporary disability?
3. Is Claimant entitled to further mileage reimbursement?
4. Are there any unpaid medical bills for which the Carrier is responsible?
EXHIBITS:
Joint Exhibits:
Joint Exhibit 1: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit 1: Reimbursement Form for 100 miles
Claimant’s Exhibit 2: Reimbursement Form for 120 miles
Claimant’s Exhibit 3: Reimbursement Form for 135 miles
Claimant’s Exhibit 4: 12/30/04 Dr. Kraus note
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Claimant’s Exhibit 5: 1/6/05 Dr. Kraus note
Defendant’s Exhibits:
Defendant’s Exhibit 1: 9/21/06 Letter from Adjuster Russo
Defendant’s Exhibit 2: 2004 ShopVue Absence Calendar
Defendant’s Exhibit 3: 2005 ShopVue Absence Calendar
Defendant’s Exhibit 4: 5/29/06 – 12/19/06 Off Duty Report
Defendant’s Exhibit 5: 1/2/06 – 5/25/06 ShopVue Absence Calendar
Defendant’s Exhibit 6: 4/3/07 Pay History from Adjuster Coco
Defendant’s Exhibit 7: 4/10/07 Payment Information from Adjuster Coco
Defendant’s Exhibit A: Form 25 for 7/25/05 – 10/17/04
Defendant’s Exhibit B: Form 25 for 10/8/04 – 12/17/04
Defendant’s Exhibit C: Form 25 for 11/7/04 – 1/23/05
Defendant’s Exhibit D: Form 25 for 4/17/05 – 7/17/05
Defendant’s Exhibit E: Form 25 for 4/23/06 – 7/9/06
Defendant’s Exhibit F: Form 25 for 8/13/06 – 10/29/06
FINDINGS OF FACT:
1. Claimant is an employee within the meaning of the Vermont Workers’ Compensation Act (the “Act”). Claimant has worked for Defendant since 1989.
2. Defendant is an employer within the meaning of the Act.
3. In June of 2004, Claimant experienced right arm pain while participating in a company 5S program, which involved cleaning, upgrading, and performing maintenance on her work area. Claimant contends she hit her shoulder while cleaning her machine. After this event, Claimant did not see any doctors and continued to work. There is no evidence of an accident report from the summer of 2004.
4. Claimant asserts that she experienced swelling, redness, and increased pain in her right arm in October of 2004. Claimant was out of work October 18-20 for her right arm pain. She visited Dr. Ajamie on October 20. He diagnosed her with tennis elbow and probable mild carpal tunnel syndrome and gave her a cortisone injection. Dr. Ajamie noted that Claimant’s condition did not arise out of her employment. He returned Claimant to work with no restrictions on October 21.
5. Claimant was out of work December 23, 2004 for a visit with Dr. Kraus. Dr. Kraus diagnosed Claimant with some shoulder impingement as well as the previously diagnosed tennis elbow. Dr. Kraus did not relate Claimant’s right arm problems to her employment. Dr. Kraus provided Claimant with an out of work note for the December 23 appointment.
6. An accident report for Claimant’s right shoulder and elbow pain was completed on December 27, 2004. The report stated that it had not been determined whether Claimant’s right arm pain was work related.
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7. Claimant went out of work for shoulder pain December 29-30, 2004. She saw Dr. Kraus on December 30. Dr. Kraus again put Claimant back to work but restricted her to light duty.
8. A January 4, 2005 x-ray of Claimant’s right shoulder revealed no abnormalities.
9. Dr. Kraus clarified her December 30, 2004 note on January 6, 2005 to state that the company should check with Claimant’s physical therapist, Ben McCormack, regarding Claimant’s specific work restrictions. The January note also excused Claimant from work for the December 29-30, 2004 absences.
10. Claimant saw Dr. Haas on January 6, 2005 for an independent evaluation requested by the company. Dr. Haas found several aspects of Claimant’s presentation to be inconsistent with a finding that Claimant’s shoulder pain was caused by her job, but he reserved his final report on causation until an analysis of Claimant’s workstation was performed.
11. On January 21, 2005, Defendant filed a Form 25 for Claimant’s December 23, 2004 right shoulder and elbow pain. The Form 25 cited December 23, 2004 as the only date on which Claimant missed work for right shoulder and elbow pain and December 27, 2004 as the first date on which Claimant reported her right arm pain to her supervisor.
12. An ergonomic job site evaluation was performed by physical therapist Ben McCormack on January 25, 2005. Mr. McCormack indicated that while Claimant’s job does not lend itself to elevated risk at the shoulders, he did note elevated risk at both elbows. Specifically, Mr. McCormack found elevated risk at the right elbow due to certain of Claimant’s job duties, including sustained poor grasping of a micrometer as well as forceful gripping of a T-handled wrench. Mr. McCormack concluded that Claimant’s tennis elbow was more likely than not related to her work.
13. Claimant saw Dr. Gagnon on January 25, 2005. Dr. Gagnon ordered an MRI, which was taken on February 3, 2005 and showed a right rotator cuff tear. On February 9, 2005 Dr. Gagnon indicated that Claimant needed surgery to repair the tear. Dr. Gagnon put Claimant out of work until after the surgery scheduled for March 2, 2005. However, on February 15, 2005 Dr. Gagnon indicated that he did not feel Claimant’s rotator cuff tear was related to her job activities.
14. Defendant filed a Form 2 on February 24, 2005. Defendant asserted that neither the right shoulder rotator cuff tear nor the right tennis elbow were causally related to Claimant’s work. Defendant cited Dr. Gagnon’s notes and the January 25, 2005 ergonomic study to support its denial.
15. Claimant testified that Dr. Gagnon would not perform the scheduled rotator cuff surgery because of the Form 2 denial filed by the Carrier and Claimant’s lack of insurance coverage. Thus, Claimant attempted to return to work March 3, 2005, but the company sent her home pending further evaluation.
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16. On March 9, 2005, after having reviewed Ben McCormack’s ergonomic evaluation, Dr. Haas supplemented his January 6, 2005 evaluation and concluded that Claimant’s shoulder problems were not caused by her employment but that her tennis elbow likely was.
17. A March 15, 2005 Sickness and Accident form filled out by Dr. Gagnon for Claimant restated his belief that the rotator cuff tear did not arise out of Claimant’s employment.
18. At Claimant’s request, Dr. Gagnon returned her to work March 28, 2005 with no restrictions.
19. On March 31, 2005 the company sent a letter to Dr. McArthur requesting that he evaluate Claimant’s fitness for duty.
20. On April 6, 2005, Dr. Howard performed an evaluation of Claimant and determined that her shoulder problems were related to both a previous work injury and the repetitive nature of her work. Dr. Howard returned Claimant to work April 7, 2005 with restrictions and a requirement that she be able to rest her right arm.
21. In response to the company’s March 31 letter, Dr. McArthur returned Claimant to work full duty on April 11, 2005.
22. Claimant was out of work from January 26, 2005 through April 11, 2005. Claimant returned to work April 12, 2005.
23. Claimant was out of work again from July 15, 2005 through August 1, 2005 (on which date she worked a half day). There are three doctor’s notes from St. Johnsbury Family Health Center between July 14 and 26, 2005. First, there is an undated note stating that Claimant was off work from July 14 through August 1 for her torn rotator cuff. Next, there is a July 15 note returning Claimant to work July 25. Finally, there is a note dated July 26 returning Claimant to work August 1. There is also an August 2 note from Cathleen Besch, RNCS, which put Claimant out of work until further notice.
24. On September 26, 2005, Dr. Gagnon indicated that, as a result of further examination of Claimant’s records, including review of Dr. Howard’s evaluation and a description of Claimant’s job, his medical opinion was that her shoulder injury more likely than not occurred as a result of her job duties.
25. A note from Dr. Ajamie dated October 20, 2005 returned Claimant to work October 24, and she worked from October 24 to October 28. Claimant was back out of work beginning October 31. Claimant saw Dr. Ajamie for her right shoulder on November 2. Dr. Ajamie returned Claimant to work December 1 if light duty work was available.
26. A November 4, 2005 letter to the parties from Workers’ Compensation Specialist Julie Heath indicates that Defendant’s attorney advised Defendant to voluntarily accept liability for the shoulder injury, including the recommended shoulder surgery and related indemnity. Specialist Heath also indicated that she found the elbow condition to be work-related so that the Defendant should pay all medicals related to the elbow.
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27. On November 16, 2005, Defendant filed a Form 25 for Claimant’s period of disability beginning January 26, 2005 related to her right rotator cuff tear.
28. Dr. Gagnon performed a rotator cuff tear repair surgery on November 21, 2005.
29. Dr. Gagnon returned Claimant to work with restrictions March 21, 2006, with full duty work appropriate by May 21, 2006. However, on May 8, 2006 Dr. Gagnon placed Claimant at medical end result and released her to full duty work with no restrictions.
30. On May 25, 2006, Defendant submitted two Form 25s for Claimant’s October 2004 period of disability related to her tennis elbow and her July 2005 period of disability related to her right rotator cuff tear. On May 26, 2006, Defendant submitted another Form 25 for Claimant’s period of disability beginning January 26, 2005 related to her right rotator cuff tear. On June 19, 2006, Defendant submitted a revised Form 25 for Claimant’s period of disability beginning January 26, 2005.
31. Claimant was out of work again July 10 to July 17, 2006 for her right elbow. A July 11 doctor’s note excused Claimant from work July 10 through July 18 and stated that she could return to work if she could avoid repetitive motion with her right arm for one month. Claimant returned to work July 18, 2006.
32. Claimant took a vacation day August 1, 2006 and returned to the doctor, requesting that she be released to full duty work without restrictions. An August 1 doctor’s note allowed Claimant to return to work with no restrictions.
33. On August 12, 2006, Defendant filed another Form 25 for Claimant’s July 2006 period of disability related to her right elbow condition.
34. On October 11, 2006, Defendant again filed Form 25s for Claimant’s October 2004 and July 2005 periods of disability.
35. Claimant saw Dr. Ajamie November 2, 2006. Dr. Ajamie placed Claimant out of work from November 2 to November 30. Dr. Ajamie’s note did not explain whether he was placing Claimant out of work for her right shoulder or her right elbow.
36. Claimant had excused absences from November 20 to November 22, 2006. A November 22 note from Dr. Howard allowed Claimant to return to work November 22 but stated that she must be able to rest her right arm.
37. Defendant filed a second Form 2 on November 28, 2006. Defendant denied Claimant’s shoulder injury because it had not received clarification or medical reports from Dr. Ajamie as to the nature and extent of Claimant’s shoulder injury. Defendant noted that Dr. Ajamie’s November 2 out of work note did not discuss the cause of Claimant’s injury or whether it was work related.
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38. On December 19, 2006, Dr. Ajamie clarified his November 2 note to explain that he had excused Claimant from work November 2 through November 28 for her right elbow. Dr. Ajamie returned Claimant to light duty work November 29.
39. Claimant was out December 4 because the company had no light duty work available.
40. Claimant was only out for two days in January of 2007. A January 10 note from Dr. Howard indicated that Claimant could return to work January 11 but must be able to rest her right arm.
41. A Functional Capacity Evaluation was performed on January 31, 2007. The therapist concluded that the Claimant’s physical capabilities were compatible with her job.
42. On February 9, 2007, Dr. Howard released Claimant back to work February 12 with no restrictions. He also indicated that Claimant had reached maximum medical improvement.
43. Claimant returned to full duty work after the FCE and has been working ever since.
44. On April 10, 2007, Defendant submitted a Form 25 for Claimant’s November 2006 period of disability related to her right elbow. On April 18, 2007, Defendant submitted revised Form 25s for Claimant’s July 2006 and November 2006 periods of disability.
45. From October 2003 through September 2004, Claimant’s hourly wage was $14.41; from October 2004 through September 2005, Claimant’s hourly wage was $14.81; from October 2005 through September 2006, Claimant’s hourly wage was $15.33; and beginning October 2006, Claimant’s hourly wage was $15.79.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to supporting the claim. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant must establish with 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). The Claimant must create 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 injury, and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
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Date of Injury
2. 21 V.S.A. § 656 (b) states that “[t]he date of injury [or] . . . injurious exposure shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.” Similarly, Workers’ Compensation Rule 3.0540 establishes that “[t]he date of injury, recurrence or aggravation shall be the point in time when the injury, recurrence or aggravation and its relationship to the employment is reasonably discoverable and apparent.” Further, in Hartman v. Ouellette, 146 Vt. 443, 447 (1985), the Vermont Supreme Court set forth that “the ‘date of injury’ for purposes of giving notice and filing a claim pursuant to 21 V.S.A. § 656 . . . is the point in time when an injury becomes reasonably discoverable and apparent.” Finally, in Longe v. Boise Cascade Corp., 171 Vt. 214, 219 (2000) (citing Hartman, 146 Vt. at 447), the Court reiterated that “for purposes of the notice and claim provisions of § 656, and for purposes of the . . . statute of limitations, the date of injury ‘is the point in time when an injury becomes reasonably discoverable and apparent.’”
3. However, the above rules are not controlling here, as the issue in this case has to do with determining the date of injury for purposes of calculating average weekly wage and temporary total disability and not for purposes of tolling the statute of limitations.
4. While there is no codified rule regarding determining the date of injury for purposes of calculating average weekly wage and temporary total disability, the Department has addressed the issue in its case law. In Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC, the Department stated that, in cases concerning computation of temporary total disability benefits, it “interprets the date of injury as the date on which the injury becomes disabling.” In Plante, the Department determined such date to be the date on which the Claimant had surgery. In Hepburn v. Concrete Professionals, Inc., Opinion No. 16-03WC, the Department reiterated its holding in Plante that “the twelve-week period [used to calculate average weekly wage] should [be] from the date of the injury or ‘the date upon which the injury became disabling.’”
5. Claimant argues that her date of injury was October 20, 2004. However, when Claimant visited Dr. Ajamie on October 20 he found no associated injury and explicitly noted that Claimant’s right arm pain did not arise out of her employment. Moreover, Claimant returned to work on October 21 and there is no evidence of a related accident report. Therefore, although Claimant was out of work from October 18 to October 20, 2004, her return to work October 21 and her failure to complete an accident report indicate that her right arm pain was not disabling at that time. Therefore, October 20, 2004 was not the date on which Claimant’s injury became disabling.
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6. The next possible date of injury is in December of 2004, which Defendant argues as an alternative to a January 26, 2005 date of injury. Claimant was out of work December 23, 2004 for a visit with Dr. Kraus, who did not relate Claimant’s right arm problems to her employment and returned her to work with no restrictions that same day. However, the following Monday, December 27, 2004, an accident report was completed. Claimant saw Dr. Kraus again December 30 and Dr. Kraus still did not link Claimant’s condition with her employment; however, Dr. Kraus did restrict Claimant to light duty work. The December 27, 2004 accident report and the fact that Claimant was restricted to light duty work after December 30, 2004 support a finding that her injury was disabling as of December 30, 2004. Even though Dr. Kraus did not relate Claimant’s right arm pain to her work as of December 30, 2004, and even though Claimant was able to return to work thereafter, the fact that Claimant was unable to perform certain of her work duties means that as of December 30, 2004 Claimant’s injury was disabling. Hence, December 30, 2004 shall be used as Claimant’s date of injury for purposes of calculating average weekly wage and temporary total disability.
7. However, because Claimant was not absent for more than three consecutive days, she was not eligible for temporary total disability compensation as of December 30, 2004. See 21 V.S.A. § 642 (“Where the injury causes total disability for work, during such disability, but not including the first three days, the day of the accident to be counted as the first day, unless the employee received full wages for that day, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the employee’s average weekly wages, but not more than the maximum nor less than the minimum weekly compensation”) (emphasis supplied).
8. Since Claimant’s date of injury for purposes of calculating her average weekly wage was December 30, 2004, the Department will not address Defendant’s argument that Claimant’s date of injury was January 26, 2005, except to note that the fact that Claimant was out of work after January 26, 2005 until April 11, 2005 would mandate a finding that by January 26, 2005 Claimant’s injury was disabling.
Average Weekly Wage
9. 21 V.S.A. § 650 (a) states that “[a]verage weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 12 weeks preceding an injury.” However, § 650 (b) says that “[i]f during the period of 12 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee’s average weekly wage.” Also, § 650 (c) states that “[w]hen temporary disability . . . does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, compensation shall be adjusted for each recurrence of disability to reflect any increases in wages or benefits prevailing at that time.” Finally, § 650 (d) states that “[c]ompensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of the injury.”
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10. Workers’ Compensation Rule 15.2000 states that the compensation rate for temporary total disability is “2/3rds of [the claimant’s] average weekly wage.” Rule 15.4000 explains that in order “[t]o determine the claimant’s average weekly wage . . . the total gross wages, as reported by the employer on the Wage Statement (Form 25), is divided by the number of weeks used to determine the total gross wages.” Rule 15.4110 mandates the inclusion of overtime earnings in the Form 25. However, Rule 15.4200 excludes from consideration “any week(s) during which the claimant worked and/or was paid for fewer than one-half of his or her normally scheduled hours” and “any week(s) during which the claimant did not work at all, regardless of whether or not he or she was paid for this time off.” Finally, Rule 16.2000 states that “annually on or before July 1 the [C]ommissioner shall announce the annual change in compensation rate and new minimum and maximum rates for the coming fiscal year” and that “[a]ny claimant receiving temporary . . . disability compensation on July 1 shall be entitled to an increase in his or her compensation rate in accordance therewith, PROVIDED THAT in no event may a claimant’s compensation rate for temporary total disability exceed his or her average weekly wage or his or her weekly net income.”
11. Claimant has not presented evidence or made an argument regarding what average weekly wage and compensation rate she is entitled to for each of her periods of disability. Moreover, she has capitulated to Defendant’s Form 25s.
12. Defendant has not made an argument regarding what average weekly wage and compensation rate Claimant is entitled to for her period of disability beginning January 26, 2005 if December 30, 2004 is used as the date of injury. Defendant argues that Claimant’s average weekly wage and compensation rate for the period of disability beginning July 15, 2005 should be $608.92 and $405.95 respectively. Defendant calculates Claimant’s average weekly wage and compensation rate for the period of disability beginning July 10, 2006 to be $755.24 and $503.49 respectively. Finally, Defendant argues that for the period of disability beginning November 2, 2006 Claimant’s average weekly wage and compensation rate would be $692.26 and $461.51 respectively; however, since the $461.51 compensation rate is lower than the previous $503.49 compensation rate, Defendant admits that Claimant’s compensation rate for the November 2006 period of disability should be the same as for the July 2006 period of disability.
13. According to § 650 (c), “a compensation rate adjustment is to be made with separate periods of disability only when there is an increase in wages. . . . [N]o adjustment for a diminution in wages can be made.” Bollhardt v. Mace Security International, Opinion No. 51-04WC. Therefore, Defendant was correct when it adjusted Claimant’s average weekly wage and compensation rate based on her yearly October 1 raises. Similarly, Defendant was correct when it maintained Claimant’s July 2006 compensation rate for her November 2006 period of disability because the November 2006 compensation rate would have been lower than the July 2006 compensation rate.
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14. Moreover, according to § 650 (d) and Rule 16.2000, “July 1 adjustments apply to those ‘receiving temporary [disability] compensation’” on July 1 of the year in question. Bollhardt v. Mace Security International, Opinion No. 51-04WC (emphasis in original). Since none of Claimant’s periods of disability covered July 1 of 2005 or 2006, Claimant’s compensation is not subject to COLA adjustments.
15. Having reviewed the Form 25s submitted by the Defendant, the Department finds the following to be Claimant’s average weekly wages and compensation rates (as well as explanations therefor) for the periods of disability in question:
Period of Disability: 1/26/05 – 4/11/05
Hourly Rate: $14.81
Overtime Rate: $22.22
Week Ending
Hours Worked
Gross Wages
12/26/04
24
$355.44
12/19/04
40
$592.40
12/12/04
32
$473.92
12/5/04
40
$592.40
11/28/04
24
$355.44
11/21/04
30.5
$451.71
Week Ending
Hours Worked
Gross Wages
11/14/04
33.45
$495.39
11/7/04
40
$592.40
10/31/04
To Be Determined
To Be Determined
10/24/04
To Be Determined
To Be Determined
10/17/04
40
$592.40
10/10/04
40
$592.40
Average Weekly Wage: To Be Determined
Compensation Rate: To Be Determined
Defendant has not submitted a proper Form 25 or calculations of Claimant’s average weekly wage and compensation rate using a December 30, 2004 date of injury. Defendant’s Exhibit C is based on a January 26, 2005 date of injury and only goes back to November 7, 2004. Defendant’s Exhibit A is based on an October 20, 2004 date of injury and provides the hours worked and gross wages for the weeks ending October 17, 2004 and October 10, 2004. Defendant’s Exhibit B appears to be based on a December 23, 2004 date of injury but uses biweekly figures for Claimant’s hours worked and gross wages, so that the Department cannot glean Claimant’s hours worked and gross wages for the weeks ending October 31, 2004 and October 24, 2004. The parties need to agree on Claimant’s hours worked and gross wages for these weeks in order to properly calculate Claimant’s average weekly wage and compensation rate for her period of disability beginning January 26, 2005.
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Periods of Disability: 7/15/05 – 8/1/05; 8/2/05 – 10/24/05; 10/31/05 – 5/8/06
Hourly Rate: $14.81
Overtime Rate: $22.22
Week Ending
Hours Worked
Gross Wages
7/10/05
0 (8 holiday; 32 vacation)
N/A
7/3/05
37.7
$558.34
6/26/05
40
$592.40
6/19/05
41.2
$619.06
6/12/05
36
$533.16
6/5/05
16 (8 holiday; 16 vacation)
N/A
5/29/05
52
$859.04
5/22/05
40
$592.40
5/15/05
40
$592.40
5/8/05
40
$592.40
5/1/05
48
$770.16
4/24/05
40.1
$594.62
Average Weekly Wage: $630.40
Compensation Rate: $420.27
The Department has declined to adjust Claimant’s average weekly wage and compensation rate for her October 31, 2005 through May 9, 2006 period of disability based on her October 1, 2005 $.52 wage increase, as the time between the August 2, 2005 to October 24, 2005 and the October 31, 2005 through May 9, 2006 periods of disability was ephemeral.
Period of Disability: 7/10/06 – 7/17/06
Hourly Rate: $15.33
Overtime Rate: 23.00
Week Ending
Hours Worked
Gross Wages
7/9/06
40.3 + 8 holiday
$742.74
7/2/06
40
$613.20
6/25/06
16.73 (16 vacation)
N/A
6/18/06
24 + 16 vacation
$613.20
6/11/06
24.1 + 8 personal
$492.09
6/4/06
43.45 + 8 holiday
$815.19
5/28/06
26 + 8 personal + 8 vacation
$643.86
5/21/06
45.9 + 8 vacation
$871.54
5/14/06
40.4
$622.40
5/7/06
0 (40 workers’ comp)
N/A
4/30/06
0 (40 workers’ comp)
N/A
4/23/06
0 (40 workers’ comp)
N/A
Average Weekly Wage: $676.78
Compensation Rate: $451.18
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Period of Disability: 11/2/06 forward
Hourly Rate: $15.33 through 10/1/06; $15.79 after 10/1/06
Overtime Rate: $23.00 through 10/1/06; $23.69 after 10/1/06
Week Ending
Hours Worked
Gross Wages
10/29/06
37.98
$599.70
10/22/06
28 + 4 personal
$505.28
10/15/06
0 (40 sick)
N/A
10/8/06
1.27 (32 sick)
N/A
10/1/06
43.73
$698.99
9/24/06
35.77 + 8 vacation
$670.99
9/17/06
8 (32 vacation)
N/A
9/10/06
20 + 12 vacation + 8 holiday
$613.20
9/3/06
32 + 8 vacation
$613.20
8/27/06
20 + 20 vacation
$613.20
8/20/06
40
$613.20
8/13/06
24 + 16 vacation
$613.20
Average Weekly Wage: $615.66
Compensation Rate: $410.44
But since lower than last period of disability, compensation rate = $451.18
Mileage
16. Workers’ Compensation Rule 12.2100 indicates that an injured worker required to travel for treatment shall be paid “[m]ileage beyond the distance normally traveled to the workplace, at the current rate in effect for classified employees of the State of Vermont.”
17. As noted above, Claimant has the burden of establishing all facts essential to supporting her claim. Goodwin, 123 Vt. at 166.
18. In Dain v. AIHRS, Opinion No. 85-95WC, the claimant was denied mileage reimbursement for failure to provide a reasonable explanation for the amount of mileage claimed. Similarly, in Frederick v. Metromail Corporation, Opinion No. 25-97WC, the claimant was denied mileage reimbursement because she had not demonstrated that her travel was reasonable and necessary.
19. Claimant has introduced three mileage reimbursement forms and has indicated the dates on which the doctors in question were visited; however, her calculations are imprecise and abstruse. Therefore, Claimant has not met her burden with regard to further mileage reimbursement.
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Medical Bills
20. Claimant has also failed to prove that there are any unpaid medical bills. As Defendant noted, the Carrier testified that there are no pending medical bills. Moreover, Defendant explained that the 2004 MRI for which Claimant was seeking payment was paid on May 14, 2007.
ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s date of injury was December 30, 2005.
2. Claimant’s average weekly wage and compensation rate for the January 26, 2005 to April 11, 2005 period of disability is to be determined by the parties based on the above date of injury. Claimant’s average weekly wage and compensation rate for the July 15, 2005 through May 8, 2006 periods of disability are $630.40 and $420.27 respectively; Claimant’s average weekly wage and compensation rate for the July 10, 2006 to July 17, 2006 period of disability are $676.78 and $451.18 respectively; and Claimant’s compensation rate for her periods of disability from November 2, 2006 forward is $451.18.
3. The Carrier is ordered to adjust the claim in accordance with the above.
DATED at Montpelier, Vermont this 2nd day of August 2007.
Patricia Moulton Powden
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.

Anthony Pelissier v. Hannaford Brothers (September 9, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , , , , , Author:

Anthony Pelissier v. Hannaford Brothers (September 9, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Anthony Pelissier Opinion No. 26-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. AA-3847
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 8, 2010 and April 15, 2011
Record closed on May 26, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s May 2010 fusion surgery reasonable, necessary and causally related to his May 15, 2009 work injury?
2. Should Defendant’s contribution to Claimant’s group health insurance premium be included in his average weekly wage and compensation rate calculation?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Additional medical records
Claimant’s Exhibit 1: Health insurance premium contributions, 2008-2010
Claimant’s Exhibit 2: Letter to Claimant, 1/1/2010
Defendant’s Exhibit A: Deposition of James Forbes, M.D., April 1, 2011
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642, recalculated after February 27, 2010 to include the value of Defendant’s contribution to Claimant’s group health insurance premium;
All workers’ compensation benefits to which Claimant is deemed entitled as a consequence of his May 2010 fusion surgery;
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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 and correspondence contained in the Department’s file relating to this claim.
3. Claimant began working for Defendant in 2004, first as a night crew associate and later as a frozen foods supervisor. His primary duty was stocking shelves. This involved breaking down pallets of merchandise, loading cases of product onto carts, pushing and pulling the carts to the appropriate aisle, and then unloading the product onto the shelves. The work was physically demanding, and entailed a significant amount of lifting, bending, walking and kneeling.
Claimant’s Prior Medical History
4. Claimant’s medical history includes treatment for two episodes of low back pain prior to May 15, 2009. The first incident occurred in September 2006, when he strained his back while boxing. His symptoms were not disabling, and resolved quickly with ibuprofen and stretching.
5. Claimant treated again for low back pain, with symptoms radiating primarily into his right hip, beginning in October 2008. There was no inciting event or trauma, work-related or otherwise. A December 2008 MRI revealed some degenerative disc disease, and also an old pars defect, or stress fracture, in his L5 lumbar vertebra. Fractures of this type render unstable a specific segment of the spine. The condition, also known as spondylolysis, is not uncommon. Most cases are thought to be congenital in origin, and many never become symptomatic at all unless exacerbated, either by specific trauma or by age-related degeneration.
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6. It is unclear from the medical records whether the symptoms Claimant experienced in October 2008 were causally related to his pre-existing pars defect. Although he later alleged that they were either caused or aggravated by his work activities, he never reported them to Defendant as such. Nor does the medical evidence establish any work-related connection. In any event, after a course of physical therapy and injections, Claimant’s symptoms resolved. By February 2009 he had resumed his regular activities, both recreationally and at work.
Claimant’s May 2009 Work Injury and Subsequent Course
7. On May 15, 2009 Claimant was breaking down a pallet of merchandise. He bent over to pick up a case of cat litter weighing thirty to forty pounds and immediately felt a tearing sensation in his left lower back. The pain dropped him to the floor, and it was a few minutes before he could stand. It radiated down his left leg and caused numbness and tingling into his left foot. Claimant reported the injury to his supervisor, and then drove home. His wife took him to the hospital emergency room for treatment.
8. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
9. Claimant treated conservatively for his injury, which initially was diagnosed as a lumbar strain. Unfortunately, he failed to improve with physical therapy, and was unable to complete a multidisciplinary work hardening program due to his ongoing pain complaints. A course of injections also proved unsuccessful. Claimant experienced some symptom relief with narcotic pain medications, but was understandably fearful of becoming addicted.
10. Throughout his course of conservative treatment Claimant’s primary complaint was low back pain, and to a lesser extent left leg pain and numbness. Claimant credibly testified, and the medical records corroborate, that these symptoms were both qualitatively and quantitatively different from the episodes of low back pain he had experienced prior to May 15, 2009. Most notably, his prior episodes of low back pain always had resolved to the point where he was able to resume full activity. After the May 2009 incident, however, he was unable to do so.
11. In July 2009 Claimant’s primary treatment provider referred him to Dr. Barnum, a board-certified orthopedic surgeon, for evaluation. Dr. Barnum’s clinical practice focuses almost exclusively on treating spine injuries and disorders. He estimates that he has performed more than 300 fusion surgeries in the past two years.
12. According to Dr. Barnum, the mechanism of Claimant’s May 2009 work injury caused his pre-existing pars defect to become symptomatic. Though the event itself – bending and lifting a case of cat litter – was not dramatic, the resulting inflammatory process in the area of the defect caused persistent pain that did not abate with conservative treatment. Rather than allow Claimant to become dependent on narcotic medications for long-term pain relief, Dr. Barnum determined that the better treatment course was lumbar fusion surgery.
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13. Claimant underwent a two-level (L4-S1) surgical fusion on May 26, 2010. Since then his pain complaints have lessened significantly. He no longer requires narcotic medications for pain relief. As of the formal hearing he had not yet undergone a functional capacity evaluation, nor had Dr. Barnum yet determined that he was at end medical result.
Defendant’s Expert Medical Opinions
14. At Defendant’s request, Claimant underwent two independent medical examinations with Dr. Forbes, the first in July 2009 and then again in May 2010. Dr. Forbes is an orthopedic surgeon. Although earlier in his career he routinely performed and/or assisted at spine surgeries, his current practice is a mix of non-surgical clinical work and independent medical examinations.
15. Dr. Forbes’ opinion as to the causal link between Claimant’s ongoing symptoms and his May 2009 work injury is somewhat variable. Specifically:
• In the context of his July 2009 examination, Dr. Forbes determined that Claimant had suffered an acute lumbosacral strain as a result of the May 2009 lifting incident, which likely exacerbated the symptoms of his underlying degenerative disc disease.
• Subsequently, in a March 2010 letter to Defendant’s attorney, Dr. Forbes asserted that the symptoms attributable to the May 2009 work injury had resolved, and that Claimant’s ongoing need for treatment was related instead to the preexisting condition for which he had been treating from October 2008 until February 2009.
• Upon reexamining Claimant in May 2010, Dr. Forbes stated that Claimant’s current condition appeared to be a continuation of his May 2009 injury, and did not appear to be related to the symptoms he had exhibited in October 2008.
• In his April 2011 preservation deposition, Dr. Forbes testified that Claimant’s condition was causally related either to his preexisting degenerative disc disease and/or to his preexisting spondylolysis, neither of which had been exacerbated in any way by his May 2009 work injury.
16. In his deposition testimony, Dr. Forbes denied that a lifting incident such as the one Claimant described in May 2009 could cause spondylolysis. Instead, he thought that Claimant’s boxing activities were the most likely cause. According to Dr. Forbes, boxers and figure skaters are among the groups with a higher incidence of spondylolysis, due to the repetitive extension of the spine that such activities entail.
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17. Claimant credibly testified that he has not engaged in boxing activities since approximately 2006. With this time frame in mind, even were I to accept Dr. Forbes’ theory as to the initial cause of Claimant’s pars defect, this still would not eliminate the May 2009 lifting incident as an exacerbating event. For this reason, I find Dr. Forbes’ opinion denying a causal link between Claimant’s ongoing symptoms and his May 2009 work injury to be somewhat incomplete.
18. In Dr. Forbes’ opinion, the fusion surgery that Claimant underwent in May 2010 was neither reasonable and necessary nor causally related to his May 2009 work injury. Having observed what he considered to be significant pain behavior during his examinations, Dr. Forbes did not think that Claimant was an appropriate surgical candidate. Even if he was, the purpose of the surgery was to repair Claimant’s spondylolysis, a preexisting condition that in Dr. Forbes’ view had not been worsened in any way by the May 2009 lifting incident.
Defendant’s Contribution to Claimant’s Group Health Insurance Premium
19. Claimant has been disabled from performing his regular job duties for Defendant since his May 15, 2009 injury. He briefly returned to work in a modified-duty capacity during the summer of 2009, but after August 2009 Defendant could no longer accommodate his restrictions. Claimant’s treating physician subsequently determined that he was unable to work at all, following which the Department ordered Defendant to pay temporary total disability benefits.
20. As a full-time employee, Claimant had been receiving group health insurance coverage through Defendant since July 2004. Defendant paid a portion of the premium. In 2009, Defendant’s share of the total premium cost was 55% ($109.57 weekly); in 2010 its share increased to 68% ($114.96 weekly).
21. In January 2010 Defendant notified Claimant that because of his extended absence from work, and in compliance with its leave of absence policy, it was terminating its contribution to his group health insurance premium effective February 27, 2010.
22. At the time of Claimant’s May 15, 2009 work injury, his average weekly wage was $561.41, which yielded a weekly compensation rate of $374.29. Had Defendant’s contribution to Claimant’s group health insurance premium been factored in, his average weekly wage would have increased to $670.98, which would have yielded a weekly compensation rate of $447.34.
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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).
Compensability of Fusion Surgery
2. The first disputed issue presented here is whether Claimant’s May 2010 fusion surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §§618, 640(a); Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). The Commissioner has discretion to determine what constitutes reasonable medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Id.; Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. Conflicting medical testimony was offered as to both the reasonableness of Claimant’s fusion surgery and its causal relationship to the May 2009 work injury.1 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 (September 17, 2003).
4. Here I conclude that Dr. Barnum’s opinion was more credible than Dr. Forbes’. As the treating orthopedic surgeon, he was better positioned to evaluate Claimant’s pain behaviors, his potential for narcotic addiction and his readiness, both psychological and physical, for surgical intervention. With a current practice that focuses primarily on spine surgeries, furthermore, his relevant experience outweighs that of Dr. Forbes. Considering these factors, I conclude that his opinion as to the medical necessity of Claimant’s fusion surgery is the most credible.
1 No medical evidence was introduced to establish any connection between Claimant’s need for fusion surgery and his work activities in October 2008. Without competent expert medical testimony to support a causal link, any claim for workers’ compensation benefits arising out of Claimant’s work during this period must fail. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964).
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5. I also conclude that Dr. Barnum’s opinion as to the causal link between Claimant’s May 2009 work injury and his need for fusion surgery is more persuasive than Dr. Forbes’. Dr. Barnum’s opinion was clearly stated and thorough. It adequately explained how Claimant’s work injury likely exacerbated his preexisting pars defect, rendering symptomatic a condition that previously had not been so. In contrast, Dr. Forbes’ opinion was inconsistently stated and incomplete.
6. I conclude that Claimant’s May 2010 fusion surgery was both medically necessary and causally related to his compensable work injury. It therefore constitutes reasonable medical treatment, for which Defendant is obligated to pay all associated medical and indemnity benefits.
Defendant’s Contributions to Claimant’s Group Health Insurance Premium as Includable in Average Weekly Wage and Compensation Rate Calculation
7. Claimant argues that the value of Defendant’s contributions to his group health insurance premium should be included in his average weekly wage and compensation rate calculation. In keeping with the U.S. Supreme Court’s holding in Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624 (1983), this Department consistently has rejected such arguments in the past. T.K. v. Green Mountain Steel Erectors, Opinion No. 29-08WC (July 3, 2008); P.M. v. L.F. Hurtubise, Opinion No. 15-07WC (June 12, 2007); Pickens v. NSA Industries, Opinion No. 36-98WC (June 24, 1998); Antilla v. Edlund Co., Inc., Opinion No. 7-90WC (September 19, 1990).
8. In Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624 (1983), the U.S. Supreme Court considered whether employer contributions to union trust funds for health and welfare, pensions and training should be included in calculating an injured worker’s average weekly wage and compensation rate under the Longshoremen’s & Harbor Workers’ Compensation Act, 33 U.S.C. §901 et seq. That statute defined “wages” as “the money rate at which the service rendered is recompensed . . . including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer . . .” 33 U.S.C. §902(13) (emphasis added).
9. Faced with this statutory language, the Court declined to reinterpret the term “wages” to include the employer’s contributions. Although it recognized the economic value of such benefits to employees, it also acknowledged that to change the compensation rate calculation in this way would “dramatically alter[] the cost factors upon which employers and their insurers have relied in ordering their affairs.” Id. at 636. The workers’ compensation act being “not a simple remedial statute intended for the benefit of workers,” but rather one designed to strike a balance between the concerns of both employers and employees, the Court concluded that it was up to Congress to decide whether or not to effect such a change.2 Id. at 636.
2 In fact, after Morrison-Knudsen Congress did consider the issue. In 1984 it amended the Longshoremen’s Act to clarify that the term “wages” does not include such fringe benefits as employer-paid contributions to an employee’s health insurance plan. Pub.L. No. 98-426 §2(13), 98 Stat. 1639 (1984).
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10. Claimant argues that the definition of “wages” in Vermont’s workers’ compensation act is sufficiently different from the one discussed in Morrison-Knudsen as to justify a different result. Our statute defines wages as including “bonuses and the market value of board, lodging, fuel and other advantages which can be estimated in money and which the employee receives from the employer as a part of his or her remuneration.” 21 V.S.A. §601(13) (emphasis added). Claimant asserts that by its reference to “other advantages” rather than to “similar advantages,” Vermont’s statute is intended to be more inclusive than the federal statute.
11. This same argument was well considered, discussed and rejected in Pickens, supra. As the commissioner concluded there, I do not discern from the language of §601(13) any legislative intent to include an employer’s health care premium contribution in the same class of “other advantages” as bonuses, board, lodging or fuel so as to mandate its incorporation into an employee’s average weekly wage calculation.
12. Most courts that have considered the issue have declined to order that the value of an employer’s health insurance premium contribution be included in an injured worker’s compensation rate calculation. See, e.g., Lazarus v. Industrial Commission of Arizona, 947 P.2d 875, 877 n.2 (Ariz.App. 1997) and cases cited therein; 5 Lex K. Larson, Larson’s Workers’ Compensation §93.01[2][b] at p. 93-22 (Matthew Bender, Rev. Ed.) and cases cited therein. Many have done so on the grounds that the proper branch of government to consider such a change is the legislature, not the judiciary. See, e.g., Lazarus, supra at 879; Theuer v. Labor & Industry Review Commission, 624 N.W.2d 110, 116 (Wisc. 2001); Groover v. Johnson Controls World Serv., 527 S.E.2d 639, 641 (Ga.App. 2000); Borofsky’s Case, 582 N.E.2d 538, 539 (Mass. 1991); Gajan v. Bradlick Co., 355 S.E.2d 899, 902 (Va.App. 1987).
13. Vermont’s workers’ compensation act is to be liberally construed to achieve the humane purpose for which it was passed, but a liberal construction does not mean an unreasonable or unwarranted construction. Herbert v. Layman, 125 Vt. 481 (1966). If a statute seems unfair or unjust, the appropriate remedy lies with the legislature; it cannot be furnished by judicial action under the guise of interpretation. Quinn v. Pate, 124 Vt. 121, 127 (1964).
14. The change for which Claimant advocates could dramatically impact the delicate balance that the workers’ compensation act seeks to maintain between employers and employees. It has the potential to increase significantly an employer’s workers’ compensation insurance premium, which might act as a disincentive for offering any employer-paid group health insurance coverage at all. At the same time, it might complicate the wage calculation process to the point where the injured worker’s right to timely benefits is compromised. Considerations of this magnitude are best debated and decided in the legislature, not here.
15. I conclude that Claimant’s average weekly wage and compensation rate were calculated properly under §601(13) as currently written, without including the value of any employer-paid contributions to his group health insurance premium.
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16. As Claimant has prevailed on his claim for benefits causally related to his May 2010 fusion surgery, he is entitled to an award of those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of his allowable costs and attorney fees.
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 as causally related to his May 2010 fusion surgery; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 9th day of September 2011.
_____________________
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.

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , , , , , Author:

Josef Knoff v. Josef Knoff Illuminating (October 15, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Josef Knoff Opinion No. 25-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Josef Knoff Illuminating
For: Anne M. Noonan
Commissioner
State File No. P-16619
OPINION AND ORDER
Hearing held in Montpelier on August 17, 2012
Record closed on September 19, 2012
APPEARANCES:
Josef Knoff, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Are Claimant’s current complaints causally related to his February 2000 compensable work injury?
2. If yes, is Claimant entitled to reinstatement of temporary total disability benefits retroactive to December 17, 2010?
3. If yes, what is the appropriate average weekly wage and compensation rate at which such benefits should be paid?
4. Is Claimant’s claim for mileage reimbursement for treatment-related travel barred in whole or in part by the applicable statute of limitations?
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EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Medical statement in support of Social Security Disability, June 15, 2005
Claimant’s Exhibit 2: Physical therapy progress notes, 5/4/11-6/6/11
Defendant’s Exhibit A: Exhibit 2 to Claimant’s deposition, April 20, 2005
Defendant’s Exhibit C: Curriculum vitae, Fran Plaisted, M.A.
Defendant’s Exhibit D: Vocational Assessment of Earning Capacity, June 4, 2012
Defendant’s Exhibit E: Wage records, 5/21/10-12/17/10
Defendant’s Exhibit F: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
Temporary total disability benefits retroactive to December 17, 2010 pursuant to 21 V.S.A. §642
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2100
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 and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the commissioner’s previous decisions in J.K. v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005), J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006), and Josef Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), and of the Vermont Supreme Court’s entry order in Josef Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term 2011).
3. Claimant was the self-employed owner and manager of Defendant’s business for fifteen years prior to February 2000. Operating under the trade name Illuminating Consulting Service and Supply, the business marketed, designed and installed energy efficient lighting systems in commercial, industrial and institutional settings. It was a successful enterprise that generated significant annual revenues.
4. Claimant was in all respects a hands-on owner. He worked both in the office and in the field. The latter duties were physically challenging, often requiring sustained overhead work on ladders or high staging with his neck in a hyper-extended position.
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Claimant’s 2000 Injury and Subsequent Medical Treatment
5. On February 1, 2000 Claimant was finishing up an installation at a large health care facility in New Hampshire when he suffered the onset of severe neck pain. Diagnostic imaging studies revealed degenerative disc disease at C4-5 and C5-6, a right-sided disc herniation at C5-6 and a small left-sided herniation at C6-7. These findings correlated with Claimant’s symptoms, which included pain, stiffness and reduced range of motion in his neck, as well as pain and paresthesias in his arms bilaterally.
6. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
7. Claimant treated his symptoms conservatively, with passive physical therapy modalities and anti-inflammatories. As early as June 2000 his consulting neurosurgeon, Dr. Penar, determined that he was an appropriate candidate for surgical disc excision and fusion at the C5-6 level. Some months later, in December 2000 Dr. Wepsic, another consulting neurosurgeon, also recommended surgery, to include decompressing the nerve roots at both C5-6 and C6-7.
8. Claimant chose not to pursue either of these surgical treatment options. Instead, from November 2000 through January 2001 he underwent a multidisciplinary functional restoration program overseen by Dr. Johansson, an osteopath. Dr. Johansson diagnosed Claimant with cervical disc syndrome and myofascial pain. The program he recommended to address these conditions encompassed both physical and psychological components, and included treatments specifically directed at behavioral medicine and pain management.
9. Claimant successfully completed Dr. Johansson’s program. Although his pain was not completely eliminated, his range of motion improved and he reported that he was better able to control and manage his symptoms than he had been previously.
10. In February 2001 Dr. Johansson determined that Claimant had reached an end medical result. Noting both clinical findings and diagnostic imaging studies indicative of a C5-6 disc herniation with radiculopathy, he rated Claimant with a 15 percent whole person permanent impairment referable to his compensable cervical injury. The Department approved the parties’ subsequent agreement to pay permanency benefits in accordance with this rating.
11. As for functional restrictions, Dr. Johansson determined that Claimant had a light to medium work capacity and was capable of full-time sedentary work. He endorsed Claimant’s plan to return to work in a computer-oriented office setting, so long as his work station was ergonomically designed and he was able to take frequent stretch breaks.
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Medical Treatment from 2003 through 2006
12. As expected with a cervical disc injury such as Claimant’s, even after reaching an end medical result he continued to experience periods of waxing and waning symptoms. He did not seek additional focused treatment, however, until May 2003. By that time, his symptoms had worsened to such an extent that they interfered significantly with his functional abilities.
13. In March and April 2005 Claimant participated again in a functional restoration program supervised by Dr. Johansson. When his symptoms failed to improve, Dr. Johansson recommended another surgical consult.
14. In July 2005 Claimant underwent an evaluation with Dr. Phillips, a neurosurgeon. When compared with the MRI taken shortly after his 2000 injury, a new MRI study revealed that the disc herniation previously noted at C5-6 had resolved, but that bone spurs both at that level and at C6-7 had worsened. Given the correlation between these findings and Claimant’s worsening symptoms, Dr. Phillips recommended surgery at the C7 level.
15. Defendant disputed its responsibility for Dr. Phillips’ proposed surgery on the grounds that it was not causally related to Claimant’s compensable injury. As medical support for its position, Defendant offered the opinion of Dr. Levy, a neurologist. According to Dr. Levy’s analysis, Claimant’s ongoing symptoms were due solely to the natural progression of degenerative disc disease, and were not work related at all.
16. Dr. Phillips disagreed with this analysis. According to his theory of causation, Claimant’s work activities in February 2000 had precipitated the left-sided disc herniation at C6-7. The bone spurs that subsequently developed at that level represented the body’s natural attempt to prohibit movement and achieve some stability in the area. In that sense, the extent of disc degeneration at C6-7 came about as a direct consequence of the work injury.
17. Following a formal hearing, in a decision dated July 7, 2006 the commissioner rejected Dr. Levy’s causation analysis and accepted Dr. Phillips’ opinion instead.1 As a consequence, Defendant was ordered to pay the medical and rehabilitation costs associated with the C7 surgery that Dr. Phillips had recommended.
18. Ironically, after having prevailed on his claim that Dr. Phillips’ proposed surgery was causally related to his work injury, Claimant again decided against that treatment option. His symptoms had improved somewhat, and while they still limited his activity he no longer viewed surgery as inevitable. Instead he opted to take a “wait and see” approach, in the hopes that over time his symptoms might abate even more.
1 J.K. v. Joe Knoff Illuminating, Opinion No. 28-06WC (July 7, 2006).
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19. Between October 2006 and December 2010 Claimant continued to experience ongoing neck pain and radicular symptoms that significantly limited his activity level. Aside from routine exercises and anti-inflammatories, however, he did not actively treat for his cervical condition.
Medical Treatment since 2010
20. On December 17, 2010 Claimant reported to Dr. Manchester, his primary care physician, that his neck pain and radicular symptoms had worsened. There followed a series of therapies, specialist consults and diagnostic evaluations aimed at addressing this latest downturn. These included:
• Evaluations in early 2011 with Dr. Barnum, an orthopedic surgeon, who concluded that a C5-6 and C6-7 discectomy and fusion likely would alleviate Claimant’s symptoms and improve his function;
• MRI studies in March and October 2011, which showed herniated discs at both C5-6 and C6-7, with further calcification at those levels and progression of degenerative disease at the adjacent levels as well;
• Electrodiagnostic studies in April 2011, which documented chronic left C7 radiculopathy but no new radicular deficits;
• An unsuccessful course of physical therapy from April through May 2011;
• An October 2011 evaluation with Dr. Bono, another orthopedic surgeon, who concluded that notwithstanding his MRI findings Claimant likely would not benefit from surgery, and would best be helped by a more structured, physiatrist-directed trial of non-operative care; and
• A December 2011 evaluation with Dr. Flimlin, a physiatrist, followed by a referral to Dr. Naylor, a psychiatrist and specialist in chronic pain management.
21. From mid-April through mid-June 2012 Claimant participated in an 11-week pain management program offered by Dr. Naylor’s Mind-Body Clinic. The focus of this program is to teach copings skills for managing chronic pain through cognitive restructuring, relaxation training, visual imagery, education and group discussion. I find it likely that Claimant previously learned at least some of these skills in the context of Dr. Johansson’s November 2000 multidisciplinary rehabilitation program.
22. In conjunction with the Mind-Body Clinic program, Dr. Naylor also suggested that Claimant participate in a “physician-managed graded exercise program” to help him improve his overall physical conditioning. She recommended that he re-enroll in Dr. Johansson’s functional restoration program for this purpose.
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23. At the time of the formal hearing, Claimant had completed Dr. Naylor’s Mind-Body Clinic program, and was two-thirds of the way through Dr. Johansson’s program. I find from Claimant’s own testimony that the benefits he has reaped from these programs are essentially the same as those he reported the first time he underwent multidisciplinary rehabilitation, namely, an improved ability to manage and control his chronic pain symptoms and somewhat increased cervical range of motion. His radicular symptoms remain unchanged.
Claimant’s Vocational Rehabilitation Efforts and Subsequent Employment Efforts
24. Claimant’s functional restrictions following his February 2000 injury precluded him from returning to his pre-injury job. He subsequently was found entitled to vocational rehabilitation services, and a counselor was assigned to assist him in formulating an appropriate return to work plan. As Claimant had been a very high wage earner, the particular vocational rehabilitation challenge he faced was to identify a path to re-employment that would approximate his pre-injury wages, which averaged almost $3,800.00 per week.
25. After some research, Claimant and his counselor determined that the two avenues most likely to lead to suitable re-employment were either to enroll in a master’s level college program or to undertake another self-employed business venture. Claimant was concerned that pursuing a master’s degree would take several years, and in the meantime it would be difficult for him to support his family financially. For that reason, and also considering his successful track record as the owner and manager of Defendant’s business, he favored the second option.
26. Claimant’s vocational rehabilitation counselor estimated the cost of a master’s level degree program to be in the $15,000-$20,000 range at the University of Vermont, and in the $30,000-$50,000 range elsewhere.
27. After much research, Claimant developed a self-employment business plan that he estimated would generate personal income at or near his pre-injury wages within three years. The plan involved designing and developing a website to market natural foods, personal care products and other “environmentally friendly” goods directly to consumers. Claimant estimated the start-up costs to adequately finance this e-commerce venture at approximately $200,000. According to his business plan, most of these monies ($170,000) would be used to outsource custom website development and on-line marketing to a company with experience in hosting natural products websites.
28. Claimant’s vocational rehabilitation counselor supported his self-employment plan, despite the potential risks associated with any such venture. However, Defendant refused to sign off on the proposal, for reasons that are not clear from the record. Thereafter, Defendant agreed to pay $100,000 in return for a full and final settlement of its obligation to provide further vocational rehabilitation services. Claimant accepted this offer, and in May 2001 the Department approved the settlement.
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29. Notwithstanding that the vocational rehabilitation settlement left his business plan 50 percent underfunded, Claimant opted to proceed anyway. Subsequent decisions placed the start-up in an even more precarious financial position. First, Claimant diverted a sizeable portion of the settlement monies to personal expenses, including his child’s college tuition, his mortgage and car payments. Later, he lost some funds to what he described as a “well-orchestrated scam.” Claimant was able to raise some capital on his own, including a $25,000-$30,000 investment from his primary care physician, Dr. Manchester. He also modified his business plan on the expense side, by identifying less costly ways to market and deliver the products he intended to distribute.
30. Despite his best efforts, Claimant’s e-commerce business never approached the level of success he had envisioned for it. After years in development, the website was operational for a brief period of time in 2005-2006, but made only minimal sales. By 2007 it was defunct.
31. Claimant attributed at least part of the business’ demise to his inability, as a result of his neck pain and radicular symptoms, to spend as much of his own time working on the project as he originally had anticipated. His business plan called for him to devote ten to twelve hours daily on the venture, but as time went on he was able to spend only one or two hours per day on it. Claimant asserted that had he been able to work more closely on designing and fine tuning the website, his outsourcing expenses would have been lower, with the result that it would have been easier for the business to become profitable.
32. Claimant’s assertion is belied by his own business plan, however. As noted above, Finding of Fact No. 27 supra, from the beginning the outsourcing expenses anticipated in that plan were substantial. They accounted for 85 percent of Claimant’s original funding request, and perhaps more importantly, they exceeded the start-up monies he actually received by 70 percent, see Finding of Fact No. 28 supra. With those facts in mind, I find it likely that Claimant’s e-commerce venture failed not because he was physically unable to devote sufficient time to it, but rather because for the duration of its existence it was significantly undercapitalized.
33. Between 2006 and 2009 Claimant neither sought nor engaged in remunerative employment. In 2005 he applied for and was granted social security disability benefits, retroactive to April 2003. In 2009 he passed the licensing exam to become an automobile damage appraiser, but soon realized that the work was too challenging physically for him to sustain.
34. In early 2010 Claimant began working as a substitute teacher for the Enosburgh Town School District, where he resides. His wife had worked as a substitute teacher in the same school district, and within a year had been offered full-time employment. Claimant hoped his employment would progress similarly. He expected that teaching would accommodate his physical restrictions well in terms of maintaining his neck in a neutral posture and being able to move around as necessary.
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35. Claimant was paid on a per diem basis for his substitute teaching assignments, at the initial rate of $70.00 per day. Notwithstanding Defendant’s assertion to the contrary, it is clear from the paystubs admitted into evidence that payroll taxes, including both FICA and Medicare, were deducted. In addition, Claimant testified that the school district issued him a W-2 earnings statement covering these wages at the end of the year, an assertion I have no reason to doubt. Considering this evidence, I find that Claimant was at all relevant times a school district employee, not an independent contractor.2
36. Claimant’s paystubs document substitute teacher earnings from April 19, 2010 through May 27, 2010, a total of $280.00 in gross wages for four full-time equivalent days. During the ensuing school summer vacation, from July 9, 2010 through September 16, 2010 Claimant worked as a security guard at a summer camping area. For the most part, his duties involved canvassing the property in a golf cart, for which he was paid at the rate of $8.25 hourly. Claimant’s gross wages in this employment totaled $1,023.00. Thereafter, Claimant returned to substitute teaching assignments for the Enosburgh Town School District, this time at a per diem rate of $80.00 per day. From September 8, 2010 through December 9, 2010 he earned a total of $1,080.00 in gross wages for 13.5 full-time equivalent days.
37. Claimant has not worked since December 9, 2010. As noted above, Finding of Fact No. 20 supra, on December 17, 2010 he resumed treatment for his neck pain and radicular symptoms with Dr. Manchester, who determined that he was totally disabled from working.
38. Claimant has been minimally active in the years since Dr. Manchester took him out of work. He testified that on a typical day, he drives his wife to work, returns home, feeds the dog, eats breakfast, spends 30 to 45 minutes on the computer, and then naps for one to two hours. He estimated that he might spend another 30 to 45 minutes on the computer in the afternoon before driving to pick up his wife. Occasionally he attends his daughter’s sporting events. He sleeps approximately six hours nightly, but wakes up frequently in pain.
39. While I do not doubt that Claimant is minimally active physically, I find that he likely has underestimated the amount of time he spends at his computer. Considering just the manner in which he has represented himself through the various legal proceedings associated with his workers’ compensation claim, which have encompassed three formal hearing decisions and one Supreme Court appeal in addition to the pending dispute, it is apparent that he is able to focus on complex issues, compose legal memoranda and respond promptly and at length to emails and other correspondence. These activities are at odds with a person who is unable to work at a computer for more than one and a half hours daily.
2 Given what I presume to be the nature of the school district’s business, which is the true test of employee status, see In re Chatham Woods Holdings, LLC, 2008 VT 70 ¶10 (May 16, 2008), it is unlikely that I would have classified Claimant as an independent contractor even had the school district not withheld his payroll taxes appropriately.
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Expert Opinions
40. The parties each presented expert evidence as to (a) the causal relationship between Claimant’s current cervical complaints and his compensable February 2000 work injury; (b) whether his treatment since December 2010 has been curative or palliative; and (c) to what extent, if any, he has been capable of working since that time. In addition, Defendant presented expert testimony as to the impact that Claimant’s past vocational choices has had on his current earning capacity.
(a) Causal Relationship
41. As to the causal relationship between Claimant’s current cervical condition and his February 2000 injury, the expert opinions that each party offered were essentially the same as those presented in the context of Claimant’s 2006 formal hearing, see Finding of Fact Nos. 15-17 supra. Briefly, Claimant’s primary care provider, Dr. Manchester, concurred with Dr. Phillips’ causation analysis – that the February 2000 work injury precipitated a left-sided disc herniation at C6-7, which in turn accelerated the growth of bone spurs and degenerative disease at adjacent levels as well. Thus, according to Dr. Manchester the same work-related injury process that accounted for Claimant’s worsening symptoms and need for treatment in 2003 likewise accounts for his current symptoms and need for treatment.
42. In contrast, Defendant’s expert, Dr. Backus, acknowledged that his causation opinion was in many respects the same as that offered by Dr. Levy in 2003 – that Claimant’s worsening symptoms, both in 2003 and in 2010, were not causally related to his work injury in any respect, but rather represented the natural progression of degenerative disc disease in his cervical spine. That disease process probably had already begun as of the time of Claimant’s February 2000 work injury. According to Dr. Backus’ analysis, while the injury likely resulted in a soft tissue strain and inflammatory response in the area, it did not cause or accelerate any changes to the underlying structures themselves. Thus, in his opinion, at least by 2003 and certainly by 2010 any worsening symptoms were likely due solely to the ongoing progression of the disc disease itself.
(b) Curative versus Palliative Treatment
43. Claimant offered expert opinion evidence from Drs. Manchester, Bono, Naylor and Johansson to the effect that the treatments he has undergone since December 2010 have been curative rather than palliative in nature. In particular, according to these providers, both Dr. Naylor’s Mind-Body Clinic program and Dr. Johansson’s functional restoration program offer treatments that are reasonably likely to result in significant further improvement in his ability to manage his symptoms and return to the level of function he enjoyed previously.
44. Upon careful review, I find that none of Claimant’s providers have adequately explained why the specific treatments Drs. Naylor and Johansson have offered recently are likely to result in lasting improvement when what appear to be very similar programs failed to do so in the past. For that reason, I find the objective support for their opinions lacking.
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45. Dr. Backus acknowledged that Dr. Naylor’s program represented a reasonable treatment, one that likely would increase Claimant’s ability to manage his chronic pain independently. He also supported as reasonable Claimant’s participation in a limited graded exercise program supervised by Dr. Johansson, as a means of guiding him back to an effective home exercise regimen. According to Dr. Backus, however, because Claimant suffers from a chronic, progressively deteriorating condition, neither of these programs is curative; the most either can offer is palliative symptom relief. I accept this reasoning as persuasive.
(c) Claimant’s Work Capacity Since December 2010
46. As noted above, Finding of Fact No. 11 supra, upon completing Dr. Johansson’s functional restoration program in 2001 Claimant had a light to medium work capacity and was capable of full-time sedentary work in a computer-oriented office setting.
47. The medical statement that Dr. Manchester filed in conjunction with Claimant’s 2005 application for social security disability benefits described a far more limited work capacity. As of June 2005 Dr. Manchester estimated that Claimant could neither sit nor stand for more than two hours daily, and was incapable of full-time employment.
48. Notwithstanding this assessment, Claimant was able to resume at least part-time employment in 2010. Although his work as a substitute teacher was sporadic, when he was called in he was able to complete a full day. Similarly, Claimant demonstrated the ability to work regular part-time hours at his summer security guard job. Claimant did not present any credible evidence establishing that prior to December 17, 2010 his inability to work more hours at either job was due to any injury-related disability. It is equally possible that his hours were limited simply because his employers had no more to offer.
49. As noted above, Finding of Fact No. 37 supra, when Claimant’s symptoms worsened in December 2010 Dr. Manchester determined that he was totally disabled from working, an opinion he reiterated shortly before the formal hearing.
50. The evidence does not reveal the specific basis for Dr. Manchester’s opinion as to Claimant’s work capacity, either in 2005, 2010 or currently. It is largely at odds with the capacity he himself demonstrated in the months prior to December 2010. Claimant has not undergone any formal functional capacity testing since completing Dr. Johansson’s program in 2001, more than ten years ago. Lacking objective data as support, I must question Dr. Manchester’s conclusions.
51. Based both on his January 2012 independent medical examination and on Claimant’s description of his daily living activities, Dr. Backus determined that he is capable of sustaining full-time sedentary to light work. As with Dr. Manchester’s opinion, I would have more confidence in Dr. Backus’ conclusions were they supported by formal functional capacity testing. Nevertheless, based both on Dr. Backus’ analysis and on my own observations of Claimant as a pro se litigant, I find it likely that he currently has at least a part-time sedentary work capacity.
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(d) Claimant’s Earning Capacity
52. Fran Plaisted, a certified vocational rehabilitation counselor, offered her expert opinion as to Claimant’s earning capacity in the years since his February 2000 work injury. Ms. Plaisted is a fellow of the American Board of Vocational Experts. In formulating her opinion, she interviewed Claimant and reviewed his medical and vocational history.
53. Ms. Plaisted’s analysis focused primarily on what Claimant’s vocational rehabilitation options might have been had he not chosen to pursue self-employment. Generally, she explored two alternative paths – one using his existing skills, training and experience, the other assuming some level of academic retraining. In both instances, she assumed a full-time sedentary to light work capacity, in accordance with Dr. Backus’ opinion.
54. In Ms. Plaisted’s opinion, as a successful business owner for more than 15 years prior to his injury, Claimant has extensive experience in sales and management. These transferable skills qualify him for employment as a sales representative or manager, with an average annual salary in northern Vermont in the $55,000 to $75,000 range.
55. Alternatively, Claimant could have combined his undergraduate focus on engineering with his extensive experience in electrical installation to seek either a bachelor’s or master’s degree in electrical engineering. The costs associated with this plan would have been largely covered by the $100,000 vocational rehabilitation settlement he received, and would have yielded a current earning capacity ranging from $71,000 to $95,000 annually.
56. With these vocational alternatives in mind, Ms. Plaisted concluded that neither of the jobs Claimant held in 2010 accurately reflected his actual earning capacity. Notwithstanding his injury-related physical limitations, in her opinion Claimant was underemployed as both a substitute teacher and as a summer security guard. Even assuming that Claimant might be capable of only part-time as opposed to full-time sedentary work, I find this analysis credible.
Mileage Reimbursement
57. By letter dated January 12, 2012 Claimant provided a detailed accounting of his claim for mileage reimbursement to both the Department and to Defendant. For travel to and from doctor’s appointments and in accordance with Workers’ Compensation Rule 12.2100, Claimant claimed a total of $464.92 in mileage charges incurred between March and September 2005, a total of $159.76 in charges incurred between August 29, 2006 and October 17, 2006, and a total of $402.14 in charges incurred from December 17, 2010 through December 14, 2011.
58. Defendant has objected to the 2005 and 2006 charges on the grounds that they are barred by the applicable statute of limitations.
CONCLUSIONS OF LAW:
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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).
Causal Relationship
2. The first disputed issue in this claim is whether Claimant’s cervical symptoms and need for treatment since December 2010 are causally related to his compensable February 2000 work injury. This is a medical question, upon which the parties presented conflicting expert opinions. In such situations, 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 (September 17, 2003).
3. I conclude here that Dr. Manchester’s opinion as to the causal relationship between Claimant’s original injury and the ongoing disc degeneration in his cervical spine is more credible than Dr. Backus’. As his primary care provider for many years, Dr. Manchester has been well positioned to observe the progression of Claimant’s cervical condition over time. His causation theory – that the work injury caused a C6-7 disc herniation, which in turn accelerated the growth of bone spurs and degeneration at adjacent levels – is essentially the same one that Dr. Phillips previously espoused as the explanation for Claimant’s worsening symptoms in 2003. For the same reasons that led the commissioner to accept Dr. Phillips’ analysis as objectively supported and credible in 2006, I accept Dr. Manchester’s opinion as persuasive here.
4. Had Dr. Backus propounded a causation theory that effectively distinguished Claimant’s current condition without denying either the injury Defendant accepted in 2001 or the one the commissioner found compensable in 2006, I might view his opinion more favorably. Instead, his analysis relies at its core on the assumption that Claimant’s February 2000 work injury was a soft tissue strain that neither caused nor accelerated any disc herniation or disease. This assumption is at odds with Defendant’s own conduct dating back at least to 2001, when it paid permanency benefits for what Dr. Johansson diagnosed as a work-related cervical disc herniation. It also is at odds with the commissioner’s determination in 2006 that the work injury had accelerated Claimant’s degenerative disc disease. The time has long since passed for Defendant to proffer an entirely new explanation for what is now a twelve-year-old injury. See, e.g., Coronis v. Granger Northern, Inc., Opinion No. 16-10WC (April 27, 2010). For that reason, I reject Dr. Backus’ opinion as unpersuasive.
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5. I conclude that Claimant has sustained his burden of proving that, as was the case in 2003, his worsened cervical condition in 2010 was caused or accelerated at least in part by his February 2000 work injury and is therefore compensable.
Temporary Total Disability
6. Having concluded that Claimant’s worsened cervical symptoms since December 17, 2010 are causally related to his original injury, I next consider his claim for temporary total disability benefits.
7. Temporary disability benefits are only payable for so long as the medical recovery process is ongoing. Bishop v. Town of Barre, 140 Vt. 564, 571 (1982). Once an injured worker reaches an end medical result, his or her entitlement to temporary disability benefits ends, and the focus shifts instead to consideration of permanent disability. Id.
8. End medical result is defined as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. The fact that some treatments, such as pain medications, physical therapy or chiropractic manipulations, may continue to provide palliative symptom relief does not negate a finding of end medical result so long as the underlying condition itself remains unlikely to improve. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). This is particularly true in cases involving chronic pain, where the injury itself has become stable even though the pain it precipitates may continue to wax and wane over time. See 4 Lex K. Larson, Larson’s Workers’ Compensation §80.03[3] (Matthew Bender, Rev. Ed.), cited with approval in Coburn, supra; see also Workers’ Compensation Rule 2.1310 (defining palliative care). Were the rule otherwise, an end medical result might never be possible in such cases.
9. Considering these concepts in the context of the current claim, the question is whether the treatment Claimant has received since December 2010 is properly characterized as palliative or curative. If the latter, then he cannot be deemed to be at end medical result until he completes his current course of treatment, and in the meantime temporary disability benefits must be reinstated. If the former, then he remains at end medical result and is therefore not entitled to additional temporary disability benefits. Coburn, supra at 532.
10. Aside from a brief course of physical therapy, the goal of the treatments at issue here were first, to re-evaluate Claimant’s surgical options, and second, to restore some degree of lost function through multidisciplinary rehabilitation. As to the first, I conclude that for two new surgeons to essentially reiterate the same risk-benefit analysis that numerous equally qualified surgeons had stated before does not rise to the level of curative treatment necessary to negate end medical result.
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11. As for multidisciplinary rehabilitation, I am aware of other cases in which treatments directed at improving a claimant’s function have been held to negate a finding of end medical result, even though the underlying medical condition itself may have become stable. See, e.g., Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009). Were this Claimant’s first course of such treatment, I might view his situation in the same light. But the fact is Claimant has traveled this road before, and realized only temporarily increased function as a result. Under these particular circumstances, I conclude that for him to undergo another course of functional restoration-type treatment represents palliative, not curative, care.
12. I conclude that notwithstanding the treatments he has undergone since December 17, 2010 Claimant has remained at end medical result. Therefore, he is not entitled to temporary disability benefits for any period of time since that date.
Average Weekly Wage for Subsequent Periods of Disability
13. It is possible that Claimant might become entitled to temporary total disability benefits at some future date, for example, if ultimately he elects to undergo surgery necessitated by his original injury. For that reason, I next consider how his average weekly wage for a subsequent period of disability should be calculated.
14. According to 21 V.S.A. §650(c), when an injured worker’s temporary disability occurs in separate intervals rather than as one continuous period, the applicable compensation rate must be adjusted “to reflect any increases in wages or benefits prevailing at that time.” Historically the Department has interpreted this language to mandate that a claimant’s compensation rate can only be adjusted upward, that is, when his or her wages have increased since a prior period of disability, but never downward, that is, to reflect a decrease in wages during the intervening period. See, e.g., Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
15. More recently, the commissioner has differentiated between situations where a claimant’s decreased wages are shown to have resulted from his or her work injury and those where they are due instead to personal choices or economic factors. See, e.g., Plante v. State of Vermont Agency of Transportation, Opinion No. 24-12WC (September 14, 2012); Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). Where the work injury itself accounts for a subsequent reduction in earnings, the average weekly wage for a subsequent period of disability should reflect the earlier, higher wages. Id. This is in keeping with the spirit of workers’ compensation – to provide wage replacement benefits that compensate fully for an injured worker’s diminished earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962). But where the reduced earnings are due to other, unrelated circumstances, using the earlier wages would amount to wage enhancement, not wage replacement, and a windfall not envisioned by the statute.
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16. I acknowledge here that as a result of his original injury Claimant was unable to resume his prior work activities, for which he had been highly compensated. He asserts that it is because of his injury-related functional limitations that he has been unable to find and maintain similarly lucrative employment since then. I disagree. Claimant himself chose the career path upon which he embarked following his injury, one that his treating physician declared him physically capable of performing. That the e-commerce venture he pursued ultimately failed was a consequence of business and financial limitations, not physical or functional ones. Thus, I conclude that the diminution in Claimant’s wages during the time that he was pursuing his e-commerce business was due to non-injury-related factors.
17. It is mostly pointless to engage in a game of “what might have been” had Claimant either availed himself of different vocational rehabilitation resources or applied his settlement monies differently. Suffice it to say, by taking the path that he did, from an average weekly wage perspective I conclude that Claimant has severed the causal link between his current earning capacity and his work injury, such that his pre-injury wages are no longer relevant to his average weekly wage calculation.
Mileage Reimbursement
18. Last, I consider Claimant’s claim for mileage reimbursement. At the time of Claimant’s injury, the applicable statute of limitations was six years. 21 V.S.A. §660(a).3 As Claimant first specified his mileage reimbursement claim on January 12, 2012, any mileage expenses that were incurred more than six years prior to that date are now time barred.
19. I conclude that the mileage expenses Claimant incurred in 2005 are now time barred. Those incurred in 2006 and 2010, totaling $561.90, should be applied against the credit Defendant previously was awarded in Knoff v. Josef Knoff Illuminating, Opinion No. 13-11WC (June 2, 2011), affirmed, Knoff v. Josef Knoff Illuminating, Supreme Court Docket No. 2011-239 (December Term, 2011).
3 The statute was amended in 2004 to reduce the limitations period to three years. As a substantive amendment, the new limitations period cannot be applied to already pending injury claims. Myott v. Myott, 149 Vt. 573, 575-76 (1988). Beyond that, by its own terms the amended statute mandated that the shorter limitations period “not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim.” For these reasons, I conclude that the limitations period applicable to Claimant’s mileage claim is six years, as dictated by the pre-amendment statute.
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ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s claim for temporary total disability benefits retroactive to December 17, 2010 is hereby DENIED;
2. Defendant is hereby ORDERED to offset its previously awarded credit by a total of $561.90 in mileage expenses incurred through December 14, 2011.
DATED at Montpelier, Vermont this 15th day of October 2012.
_________________________
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.

George Plante v. State of Vermont, Agency of Transportation (September 14, 2012)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , Author:

George Plante v. State of Vermont, Agency of Transportation (September 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
George Plante Opinion No. 24-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
State of Vermont
Agency of Transportation For: Anne M. Noonan Commissioner
State File Nos. X-4039 and BB-0900 OPINION AND ORDER
Claim submitted on stipulated facts, exhibits, issues and briefs without an evidentiary hearing.
Record closed on July 16, 2012
APPEARANCES:
Frank Talbott, Esq., for Claimant
Keith Kasper, Esq., for Defendant
STIPULATED ISSUES:
1. What is the proper determination of the date of Claimant’s cervical injury?
2. What is the appropriate average weekly wage and compensation rate for the purposes of calculating the indemnity benefits referable to Claimant’s cervical injury?
STIPULATED EXHIBITS:
Joint Exhibit 1: Medical records
Joint Exhibit 2: Franklin Superior Court trial transcript, November 8-9, 2011
Joint Exhibit 3: Photographs (19)
Joint Exhibit 4: Illustration of median and ulnar nerves
Joint Exhibit 5: Various wage statements and compensation agreements
Claimant’s Exhibit 1: Letter from Attorney Talbott, October 13, 2009
Claimant’s Exhibit 2: Letter from Workers’ Compensation Specialist, October 19, 2009
Claimant’s Exhibit 3: Notice of Injury and Claim for Compensation (Form 5), received October 14, 2009
Claimant’s Exhibit 4: Claimant’s proposed findings of fact and conclusions of law, June 1, 2010
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
The parties stipulated to the following facts and I accept them as true:
1. At all relevant times, Claimant has been an employee and Defendant an employer within the meaning of Vermont’s Workers’ Compensation Act.
2. In 2005 Claimant asserted a workers’ compensation claim for bilateral upper extremity pain that he alleged was caused by progressive injury due to his work for Defendant.
3. Defendant accepted Claimant’s claim for bilateral wrist injuries as compensable, with a date of injury of July 1, 2005. This claim was assigned State File No. X-4039.
4. Claimant was originally diagnosed with bilateral carpal tunnel syndrome.
5. A Wage Statement (Form 25) was prepared and filed for the twelve weeks prior to July 1, 2005, which showed an average weekly wage of $640.48. However, no Form 25 was obtained from the concurrent employer for this period until May 25, 2006. At that point, Claimant’s average weekly wage for the twelve weeks prior to July 1, 2005 was recalculated to be $817.47.
6. Claimant did not lose any time from work as a result of his July 1, 2005 injury until March 22, 2006. On that date he underwent a right-sided carpal tunnel release.
7. During the twelve weeks prior to March 22, 2006 Claimant was employed by a concurrent employer, the Air National Guard. Wage statements were obtained from both employers, which documented a combined average weekly wage of $1,269.54. This yields a compensation rate of $846.36.
8. An Agreement for Temporary Total Disability Benefits (Form 21) was entered into and approved by the Department, providing that beginning March 25, 2006 Defendant would pay temporary total disability benefits at the rate of $846.36 weekly.
9. Claimant returned to work on May 15, 2006 and continued to work until December 2, 2008.
10. On December 2, 2008 Claimant underwent a repeat right-sided carpal tunnel release.
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11. A Wage Statement was filed that documented an average weekly wage for the 26 weeks prior to this period of disability of $788.46.1
12. On or about October 13, 2009 Claimant, through his counsel, filed an Employee’s Notice of Injury and Claim for Compensation (Form 5), in which he alleged “cervical degenerative disk disease aggravated by heavy work; disk herniation caused/aggravated by heavy work” and a “progressive” date of injury.
13. This Form 5 was given a new State File No. BB-0900.
14. On December 23, 2009 Claimant underwent cervical disc surgery.2
15. On April 22, 2010 the commissioner held a formal hearing on the disputed issue of whether Claimant’s cervical disc surgery was causally related to an injury arising out of and in the course of his employment for Defendant.
16. By a written decision issued on August 5, 2010 the commissioner concluded that Claimant’s cervical condition was neither caused nor aggravated by his employment for Defendant.
17. Claimant appealed the commissioner’s decision to the Superior Court, Franklin County Unit.
18. Claimant was successful in his appeal. In November 2011 the Superior Court jury responded “yes” to the certified question “whether the Claimant’s cervical condition was caused and/or aggravated by his employment for the Defendant.”
19. On January 18, 2012 the commissioner entered an Amended Order stating that pursuant to the Superior Court jury verdict Defendant was obligated to pay “all workers’ compensation benefits to which Claimant establishes his entitlement.”
Based upon the record evidence presented, the following additional facts are found:
20. Claimant initially experienced improvement in his right upper extremity after his first carpal tunnel release in March 2006. However, within months of that surgery he again complained of right upper extremity pain, numbness and tingling. A second right carpal tunnel release in December 2008 provided no relief.
1 The 26-week calculation period was in keeping with legislative amendments to 21 V.S.A. §650(a), effective July 1, 2008.
2 Though incorrectly stated in their Stipulation of Facts, the parties agree that this is the correct date of Claimant’s cervical surgery.
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21. In January 2009 Claimant continued to complain of pain. He was referred to Dr. Rinehart, who evaluated him in early April 2009. Dr. Rinehart described Claimant’s problem as severe numbness and pain in the right upper extremity. He noted that there had been noticeable improvement documented on EMG and nerve conduction tests in May 2008 and March 2009, but that this improvement “did not mirror his clinical picture which continues to present with severe numbness and pain in his right upper extremity.”
21. Based on these findings, Dr. Rinehart concluded that Claimant’s symptoms were more likely related to cervical pathology rather than to any carpal tunnel problem. As a result, he recommended that Claimant undergo cervical surgery.
22. In October 2009 Claimant sought treatment with Dr. Barnum, a board certified spine surgeon. His complaints at that time included bilateral arm pain with numbness and tingling in his hands. Dr. Barnum found evidence of what he believed to be nerve impingement in Claimant’s neck. Considering that finding together with Claimant’s other symptoms, he diagnosed a so-called “double crush syndrome.”
23. Double crush syndrome is a condition that occurs when a single nerve becomes pinched in two distinct areas. In Claimant’s case the nerve was pinched in his wrist and also in his neck. The preferred course of treatment in this type of situation is to release the nerve first at the wrist, as that is the least invasive procedure. In some circumstances doing so will correct the impingement in the neck as well, and the more invasive cervical surgery can be avoided.
24. Unfortunately, Claimant had continued to have symptoms after his carpal tunnel releases, such that cervical surgery was now necessary. Dr. Barnum performed that surgery on December 23, 2009. Claimant recuperated for approximately six weeks thereafter. He returned to work full time on February 1, 2010.
25. Claimant credibly described the symptoms in his right arm as 80 percent improved following his cervical surgery. The pain in his left arm he described as 100 percent resolved.
26. As a consequence of Claimant’s compensable cervical injury, I find that Defendant is obligated to pay temporary total disability benefits for the period from December 23, 2009 to February 1, 2010 as well as permanency benefits specifically referable to that condition.
27. Claimant’s average weekly wage for the 26 weeks prior to December 23, 2009 was $814.41. This yields a compensation rate of $542.96.
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CONCLUSIONS OF LAW:
1. The principal disputed issue in this case concerns the appropriate average weekly wage and compensation rate for indemnity benefits payable as a consequence of Claimant’s December 2009 cervical surgery. Resolving this dispute requires a determination as to when the “injury” necessitating that surgery occurred.
2. Vermont’s workers’ compensation statute provides that an injured worker’s average weekly wages “shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 26 weeks preceding an injury . . .” 21 V.S.A. §650(a). Elsewhere, in the context of its notice and statute of limitations provisions the statute states, “The date of injury . . . shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.” 21 V.S.A. §656. Workers’ Compensation Rule 3.0540 reiterates this language, and the Vermont Supreme Court has consistently applied it in cases involving notice and statute of limitations disputes. Longe v. Boise Cascade Corp., 171 Vt. 214, 219 (2000); Hartman v. Ouellette, 146 Vt. 443, 447 1985).
3. Aside from notice and statute of limitations issues, neither the statute nor the Supreme Court has delineated what constitutes the “date of injury” for the purposes of determining the rate at which temporary disability benefits should be paid. In prior decisions, the commissioner has at times held that the “date of injury” in this context is not the date upon which the injury itself occurred, but rather the date upon which it became disabling. See, e.g., V.S. v. Kenametal, Inc., Opinion No. 19-07WC (August 2, 2007); Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC (May 24, 1995). In other cases, the average weekly wage calculation has been based solely on the date when the injury and its relationship to the employment became reasonably discoverable and apparent, regardless of when it first became disabling. See, e.g., Hepburn v. Concrete Professionals, Inc., Opinion No. 16-03WC (May 14, 2003); Groman v. Peck Auto and Glass and Middlebury College, Opinion No. 3-95WC (March 13, 1995). In all cases, the commissioner has applied the analysis that best incorporates the statute’s intent with respect to indemnity benefits – to replace wages lost as a direct result of a compensable injury. Orvis v. Hutchins, 123 Vt. 18 (1962).
4. Turning to the current claim, I conclude that the date of Claimant’s cervical injury was July 1, 2005. This was the date assigned to his complaints of bilateral upper extremity pain, which Defendant accepted as compensable. The Superior Court jury since has determined that Claimant’s cervical complaints were also causally related. Having now been diagnosed as a double crush syndrome, the medical evidence establishes that both complaints likely resulted from the same primary injury.
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5. Defendant argues that Claimant’s cervical injury, and particularly its relationship to his employment, did not become reasonably discoverable and apparent until April 2009, when Dr. Rinehart first posited that his ongoing symptoms were originating in his neck rather than in his wrists. I disagree. That the complaints referable to Claimant’s July 1, 2005 compensable injury were initially misdiagnosed as involving solely carpal tunnel syndrome rather than a double crush syndrome as well does not change the date of their occurrence. An injury claim begins with a symptom or complaint, not a diagnosis.
6. I conclude, therefore, that the date of Claimant’s compensable injury, which includes both his upper extremity and his neck complaints, was July 1, 2005.
7. Establishing the date of Claimant’s injury does not resolve the dispute as to how to calculate his average weekly wage and compensation rate, however. This is because Claimant has endured three separate periods of disability – the first following his March 2006 carpal tunnel surgery, the second following his December 2008 carpal tunnel surgery, and the third following his December 2009 cervical surgery. According to the statute, 21 V.S.A. §650(c), in circumstances such as this the rate at which benefits must be paid may be subject to change.
8. Section 650(c) states, “When temporary disability . . . does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, compensation shall be adjusted for each recurrence of disability to reflect any increases in wages or benefits prevailing at that time.” According to Claimant, this means that whichever date yields the highest average weekly wage – in this case, March 22, 2006 – is the one that must control his current compensation rate.
9. Historically the Department has interpreted the language of §650(c) to mandate that a claimant’s compensation rate can only be adjusted upward, that is, when his or her wages have increased since a prior period of disability, but never downward, that is, to reflect a decrease in wages during the intervening period. See, e.g., Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
10. As the commissioner previously has observed, this interpretation makes sense when the work injury itself accounts for the reduction in earnings. Griggs v. New Generation Communications, Opinion No. 30-10WC (October 1, 2010). In this case, for example, Claimant should not be penalized if at some point after March 22, 2006 the functional restrictions imposed as a result of his work injury precluded him from maintaining his concurrent employment for the Air National Guard. If that is in fact what happened, then his compensation rate thereafter should reflect the loss of those wages. This would be in keeping with the spirit of workers’ compensation – to provide wage replacement benefits that compensate fully for an injured worker’s diminished earning capacity. Orvis, supra at 22.
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11. Fairness also requires, however, that Claimant not receive a windfall should the evidence establish that his reduction in earnings was due to circumstances completely unrelated to his work injury, such as a personal decision not to continue his concurrent employment. See, e.g., D.P. v. GE Transportation, Opinion No. 03-08WC (January 17, 2008). To hold otherwise would amount to wage enhancement, not wage replacement. Griggs, supra.
12. The parties have not submitted any evidence as to why Claimant’s average weekly wage was lower in both December 2008 and December 2009 than it had been in March 2006. Without such evidence, I cannot determine which date is most compatible with the statute’s intent – to replace rather than supplement lost wages.
13. Under these circumstances, rather than making a determination based on incomplete information, it makes better sense to allow the parties an opportunity to present additional evidence, whether by stipulation, affidavit or formal hearing.
ORDER:
Based on the foregoing findings of fact and conclusions of law, the date of injury referable to Claimant’s cervical condition is determined to be July 1, 2005. The parties shall have 30 days from the date of this decision within which to present additional evidence and/or to request an evidentiary hearing as to the issues raised in Conclusion of Law No. 12 above.
DATED at Montpelier, Vermont this 14th day of September 2012.
_______________________
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.

George Plante v State of Vermont, Agency of Transportation (August 22, 2013)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , , Author:

George Plante v State of Vermont, Agency of Transportation (August 22, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
George Plante Opinion No. 19-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
State of Vermont For: Anne M. Noonan
Agency of Transportation Commissioner
State File Nos. X-4039 and BB-0900
OPINION AND ORDER
Hearing held in Montpelier on March 25, 2013
Record closed on May 28, 2013
APPEARANCES:
Frank Talbott, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. What is the appropriate compensation rate for the indemnity benefits due
Claimant as a consequence of his December 2009 cervical disc fusion surgery?
2. Were Claimant’s staph bacteremia infection and its sequelae causally related to
his February 14, 2011 work-related neck strain?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Veterans’ Administration medical records
Claimant’s Exhibit 5: Curriculum vitae, Philip Carling, M.D.
Claimant’s Exhibit 6: Army National Guard 2004 Physical Profile
Claimant’s Exhibit 7: Army National Guard correspondence and memorandum, May 11,
2006
Claimant’s Exhibit 8: Final Discharge Notice, October 22, 2007
Defendant’s Exhibit A: Department of Veterans’ Affairs Rating Decision, September 13,
2005
Defendant’s Exhibit B: Correspondence from Kristie Farnham, February 17, 2009 and
January 26, 2009
Defendant’s Exhibit C: Curriculum vitae, Marjorie Eskay-Auerbach, M.D., J.D.
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. § 648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
Procedural History
This is the third time that issues related to Claimant’s July 1, 2005 compensable work injury
have come before the Commissioner. In Plante v. Vermont Agency of Transportation (Plante I),
Opinion No. 26-10WC (August 5, 2010), the Commissioner considered whether Claimant’s
cervical condition had been caused or aggravated by his work for Defendant, and concluded that
it had not. In doing so, the Commissioner rejected evidence from Claimant’s treating orthopedic
surgeon to the effect that the July 2005 injury, which Defendant had accepted in its initial
presentation as bilateral carpal tunnel syndrome, actually consisted of a “double crush
syndrome,” involving pinched nerves in both the neck and the wrists.
Claimant successfully appealed the Commissioner’s determination in Plante I to the Franklin
Superior Court Civil Division, where a jury concluded that his cervical condition had in fact been
“caused and/or aggravated by his employment for Defendant.” Thereafter, the Commissioner
entered an Amended Order requiring Defendant to pay “all workers’ compensation benefits to
which Claimant establishes his entitlement as a consequence of his compensable cervical
condition.” Plante v. Vermont Agency of Transportation, Opinion No. 26A-10WC (January 18,
2012).
In Plante v. State of Vermont Agency of Transportation (Plante II), Opinion No. 24-12WC
(September 14, 2012), the Commissioner was asked to determine the date of Claimant’s cervical
injury, so that the average weekly wage and compensation rate for subsequent periods of
disability could be calculated appropriately. The Commissioner assigned the same date of injury
– July 1, 2005 – to that condition as had been assigned to Claimant’s original bilateral carpal
tunnel complaints.
Left unresolved in Plante II was whether Claimant’s wages from a concurrent employer, the
Vermont Army National Guard, should be included in calculating his average weekly wage and
compensation rate for indemnity benefits due as a consequence of his December 2009 cervical
disc fusion surgery. That issue is now ripe for consideration. Also to be decided in the current
action is whether the staph bacteremia infection with which Claimant was diagnosed in March
2011 was causally related to a separate compensable injury, consisting of a neck strain suffered
at work on February 14, 2011.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant has been an employee and Defendant
has been his employer as those terms are defined in Vermont’s Workers’ Compensation
Act.
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2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim. Judicial notice also is taken of the
Commissioner’s Opinion and Order in Plante v. State of Vermont Agency of
Transportation (Plante II), Opinion No. 24-12WC (September 14, 2012).
Claimant’s National Guard Employment and Average Weekly Wage Calculation
3. At the time of his July 2005 work injury, Claimant was a member of the Vermont Army
National Guard. During his tenure there he suffered a low back injury in 2003, as a result
of which he was rated as 20 percent disabled. Later, following a medical evaluation in
2004, his Guard-related physical profile indicated that he suffered from neck pain and
depression.
4. In 2006 Claimant’s unit was deployed to Iraq. His neck pain precluded him from
wearing a helmet or other required protective gear, which weighed 70 pounds. For that
reason, he was deemed a medical “hard no go.” As a result of that determination, the
Guard initiated medical discharge proceedings against him. The discharge decision was
issued in May 2006, and following his unsuccessful appeal, Claimant was discharged in
January 2008. I find from Claimant’s credible testimony that had he not been discharged
for medical reasons his intention would have been to remain in the Guard until his
retirement age.
5. In February 2009 Claimant signed a document prepared by Defendant’s adjuster
indicating that his discharge from the Guard was not related to his July 2005 work injury.
At the time, Claimant had not yet been diagnosed with double crush syndrome, and
therefore did not understand that his cervical condition was in any way related to his
work injury. I find from his credible testimony that he executed the document because he
believed that his work injury consisted solely of bilateral carpal tunnel syndrome, which
he expected would eventually heal.
6. Claimant endured three separate periods of disability causally related to his July 2005
work injury – the first following carpal tunnel surgery in March 2006, the second
following repeat carpal tunnel surgery in December 2008, and the third following
cervical disc fusion surgery in December 2009. His combined average weekly wage
(including wages received from both Defendant and the Guard) prior to the first period of
disability was $1,269.54. By the time of his 2008 and 2009 surgeries, he was no longer
employed by the Guard, and therefore his average weekly wage for those periods of
disability was significantly lower – $788.46 for the weeks prior to December 2008, and
$814.41 for the weeks prior to December 2009.
7. As a result of his December 2009 cervical disc fusion surgery, Claimant was totally
disabled from December 23, 2009 until February 1, 2010.
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Claimant’s February 2011 Work Injury and Subsequent Staph Bacteremia Infection
8. On February 14, 2011 Claimant was at work for Defendant, shoveling at a roadside site
in Addison County. During the course of this activity, he felt a popping in his neck that
“hurt like heck.” He finished his shift and went home. That evening, he had to curtail a
Valentine’s Day dinner with his wife due to increasing, severe neck pain.
9. The next day Claimant reported his injury, remained home from work and sought
treatment with his primary care provider, who diagnosed a neck strain. In the ensuing
days, his symptoms worsened dramatically. His neck was red and swollen and he had a
high fever. He made several emergency department visits for unbearable, intractable
pain.
10. On March 10, 2011 Claimant was taken to the hospital after collapsing at home.
Ultimately, he was diagnosed with a staph infection, specifically staph bacteremia, which
had developed into an epidural abscess at the site of his December 2009 cervical fusion.
Now critically ill, Claimant underwent emergency laminectomies at C2, C3 and C4 and
drainage of the abscess at C1-2 and C3-4. After an intense rehabilitation, he returned to
work in May 2011.
Expert Medical Opinions
11. The parties presented conflicting expert opinions as to the causal relationship, if any,
between Claimant’s 2011 work injury and his staph bacteremia infection.
(a) Dr. Carling
12. Dr. Carling, an epidemiologist, is board certified in infectious diseases. His primary
clinical duties involve consultations in infectious disease cases. He also has published
many articles on the subject. At Claimant’s request, he reviewed the relevant medical
records in this case.
13. As Dr. Carling credibly explained, staph bacteremia is a well-recognized cause of
infection, especially epidural abscesses. Many of us carry staph bacteria in our bodies,
but in most cases infections do not result. For that to occur, the staph bacteria must break
out of the bloodstream and become affixed to a site or nesting place, known as a nidus. A
miniscule weakness in a vessel wall may be sufficient to allow this to occur. If the vessel
wall breaks, bleeding occurs. Blood is the best nutrient for staph bacteria; even in minute
amounts, blood fosters the infection to develop and multiply rapidly. Symptoms caused
by the infection usually appear within four to ten days, and typically include intense pain,
fever, and redness and swelling at the nidus.
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14. According to Dr. Carling, in Claimant’s case the cervical strain he suffered at work on
February 14, 2011 was the likely cause of his staph bacteremia infection. Even a small
strain causes the muscles and tendons in the area to tear, which in turn causes the vessel
walls to break and bleed. Thus, when Claimant strained his neck while shoveling, the
mechanism was thereby provided for the staph bacteria to break out of the bloodstream. I
find this analysis credible.
15. As for how the epidural abscess in Claimant’s cervical spine occurred, according to Dr.
Carling the surgical hardware at the site of his December 2009 fusion surgery made that
area a likely target for a staph infection to develop. The number of staph cells necessary
to cause an infection decreases by a thousand fold when the nidus is a foreign body. In
addition, the human body will not kill infectious cells associated with the metal or plastic
that comprises the hardware.
16. As Dr. Carling correctly observed, the timeframe during which the symptoms indicative
of staph bacteremia occurred in Claimant’s case – four to ten days after his February
2011 neck strain – point to that event as the inciting factor that allowed the infection to
break out of the bloodstream. Having left the bloodstream, the most likely nidus for the
infection was at the site of his prior cervical fusion, a surgery necessitated by his July
2005 work injury. For these reasons, in Dr. Carling’s opinion, to a high degree of
medical certainty Claimant’s staph bacteremia and subsequent epidural abscess were both
work-related. I find this analysis extremely persuasive.
17. Dr. Carling acknowledged that the original source of the staph cells in Claimant’s body
may never be known. As noted above, it is possible for a person to carry the bacteria in
the body without ever developing a staph bacteremia infection.
(b) Dr. Eskay-Auerbach
18. Dr. Eskay-Auerbach is a board certified orthopedic surgeon and spine specialist. She has
not conducted any clinical research regarding staph infections and has not published on
the subject. At Defendant’s request, she reviewed Claimant’s relevant medical records.
19. In Dr. Eskay-Auerbach’s opinion, Claimant’s staph bacteremia infection was not causally
related in any way to his February 14, 2011 work injury. According to her analysis, the
“popping” sensation that Claimant experienced while shoveling on that day evidenced
that his infection was already existent. The onset of his pain and pattern of his
subsequent symptoms were consistent with an infection, but the medical records provide
no objective evidence that his neck strain resulted in either external or internal bleeding.
20. Contrary to Dr. Carling’s analysis, Dr. Eskay-Auerbach denied that a muscle strain
typically causes even a small pinprick of blood to escape from a blood vessel or muscle
tissue. She testified that in her twenty five years of experience, she has never observed a
muscle or tendon strain that bled. While I accept that she was earnest in her opinion,
nevertheless I find Dr. Carling’s testimony and analysis more convincing on this point.
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21. In her testimony, Dr. Eskay-Auerbach identified what she considered another reasonable
explanation for the development of staph bacteremia in Claimant’s case – a subcutaneous
cyst on his hand that was removed in 2010. However, Dr. Carling credibly refuted this
theory in his testimony, noting that there was no indication in the medical records that the
cyst had been infected and that it appeared to have healed without complications. Had
the cyst been the genesis of the staph bacteremia infection, furthermore, one would have
expected the epidural abscess at the site of Claimant’s cervical fusion to have developed
within the seven-to-ten-day progression in symptoms typically associated with the
condition, not some two months later. For these reasons, I find Dr. Carling’s analysis
more persuasive than Dr. Eskay-Auerbach’s on this issue.
22. Both Dr. Eskay-Auerbach and Dr. Carling agreed on the following points:
• Claimant suffered a cervical strain on February 14, 2011;
• It is impossible to determine the origin of the staph cells in Claimant’s body; and
• A foreign body can be the nidus of a staph infection, and likely was in this case.
Where the two experts diverge is on the question whether the February 2011 cervical
strain was the precipitating factor that allowed the staph cells to develop into bacteremia.
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. This case presents two distinct issues. First, should Claimant’s average weekly wage and
compensation rate for the indemnity benefits due him as a consequence of his December
2009 cervical fusion surgery include his Vermont Army National Guard wages?
Claimant argues that his Guard wages should be included, because it was at least in part
because of his July 2005 work injury that he was medically discharged from that
concurrent employment.
3. The second issue is whether Claimant’s staph bacteremia infection was causally related to
his February 2011 compensable work injury. Claimant asserts that the cervical strain was
what precipitated the infection, and therefore the necessary causal link is established.
Defendant contends otherwise.
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Average Weekly Wage and Compensation Rate
4. At the time of Claimant’s 2005 work injury, Vermont’s workers’ compensation statute
stated: “Average weekly wages shall be computed in such manner as is best calculated to
give the average weekly earnings of the worker during the 12 weeks preceding an
injury.”1 21 V.S.A. §650(a). As to subsequent periods of disability arising from the
same compensable injury, §650(c) states: “When temporary disability . . . does not occur
in a continuous period but occurs in separate intervals each resulting from the original
injury, compensation shall be adjusted for each recurrence of disability to reflect any
increases in wages or benefits prevailing at that time.”
5. The rationale underlying §650(c) is to prevent an injured worker from being penalized in
situations where more recent wages – those immediately preceding a subsequent period
of disability – have been diminished as a consequence of work restrictions imposed
following the original injury and earlier period of disability. Griggs v. New Generation
Communications, Opinion No. 30-10WC (October 1, 2010). By the same token,
however, an injured worker should not receive a windfall when a reduction in earnings is
due to circumstances completely unrelated to the work injury. Id.
6. In this case, I conclude from the credible evidence that because Claimant’s July 2005
work injury precluded him from maintaining his concurrent employment for the Vermont
Army National Guard, the wages he received prior to his December 2009 disability were
accordingly diminished. Under §650(c), his compensation rate should have been based
on the earlier, higher average wages he had been able to earn prior to his original period
of disability.
7. Defendant points to the document Claimant signed in February 2009 as evidence that
even he did not consider his medical discharge from the Guard to have been causally
related in any way to his work injury. However, Defendant fails to acknowledge that at
the time that document was executed the diagnosis of double crush syndrome, which
effectively tied Claimant’s cervical condition back to his July 2005 work injury, had not
yet been made. Under those circumstances, I conclude that the document carries no
value. The connection that mattered was the one supplied by medical experts based on
credible theories of medical causation, not the one Claimant misinterpreted based on his
understanding as a lay person.
8. As for Defendant’s argument that the medical records do not support a finding that
Claimant’s discharge from the Guard was due at least in part to his compensable neck
injury, I disagree. It is true that Claimant may have suffered from other conditions
unrelated to his employment for Defendant, such as low back pain. Taken as a whole, the
evidence is sufficient to justify a conclusion that his work-related cervical injury
contributed as well, however. Indeed, it was his neck pain that precluded him from
wearing a helmet in 2006, with the result that he was disqualified from deploying with his
unit to Iraq.
1 The statute was amended in 2008 to increase the computation period from 12 to 26 weeks.
8
9. I conclude that the indemnity benefits to which Claimant is entitled as a consequence of
his December 2009 cervical fusion surgery should be based on the wages he earned prior
to his original injury in July 2005, and thus should include both his wages from
Defendant and those from the Guard. Those wages yield an average weekly wage of
$1,269.54, and a corresponding weekly compensation rate of $846.36.
Compensability of Staph Bacteremia Infection
10. The parties presented conflicting expert opinions as to whether Claimant’s staph
bacteremia infection was causally related to his February 2011 compensable cervical
strain. In such cases, 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 (September 17, 2003).
11. I conclude that Dr. Carling’s opinion was more persuasive than Dr. Eskay-Auerbach’s.
His expertise in the area of infectious diseases was particularly relevant to understanding
how the staph cells in Claimant’s body developed first into a staph bacteremia infection
and then caused an epidural abscess at the site of the surgical hardware left from his prior
cervical fusion. Dr. Carling based his opinion on the objective signs with which
Claimant presented – a soft tissue injury followed by a steady progression of symptoms
including fever, severe pain and redness and swelling in his neck. Considering all of
these factors, Dr. Carling’s analysis was clearer, more thorough and better supported
objectively than Dr. Eskay-Auerbach’s opinion.
Costs and Attorney Fees
12. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs
and attorney fees. 21 V.S.A. §678(a). Claimant has submitted a request for costs totaling
$5,186.55, and attorney fees totaling $14,280.00. Defendant did not object to these
requests. I conclude that both the costs and fees are reasonable and they are thereby
awarded.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Temporary total disability benefits in accordance with 21 V.S.A. §642 from
December 23, 2009 through January 31, 2010 at a compensation rate of $846.36
weekly, with interest on any unpaid amounts in accordance with 21 V.S.A. §664;
2. Permanent partial disability benefits in accordance with 21 V.S.A. §648 for the
ratable impairment referable to Claimant’s cervical condition and fusion surgery,
to be paid at an initial compensation rate of $846.36 weekly, with interest on any
unpaid amounts in accordance with 21 V.S.A. §664;
3. Temporary total disability benefits in accordance with 21 V.S.A. §642 covering
the period during which Claimant was disabled from working as a consequence of
his staph bacteremia infection, such benefits to be paid at a compensation rate
based on Claimant’s average weekly wage for the 26 weeks prior to February 14,
2011 and with interest on any unpaid amounts in accordance with 21 V.S.A.
§664;
4. Medical benefits covering reasonable treatment and supplies for Claimant’s staph
bacteremia infection and its sequelae, in accordance with 21 V.S.A. §640(a); and
5. Litigation costs totaling $5,186.55 and attorney fees totaling $14,280.00, in
accordance with 21 V.S.A. §678(a).
DATED at Montpelier, Vermont this 22nd day of August 2013.
_______________________
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.

Larry Sweetser v. Vermont Country Camper (September 24, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , , Author:

Larry Sweetser v. Vermont Country Camper (September 24, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Larry Sweetser Opinion No. 36-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Vermont Country Camper
For: Patricia Moulton Powden
Commissioner
State File No. U-07763
OPINION AND ORDER
Hearing held in Montpelier on April 25, 2008
Record closed on July 8, 2008
APPEARANCES:
Kelly Massicotte, Esq. for Claimant
John Valente, Esq. for Defendant
ISSUES:
1. Is Claimant’s March 2003 hernia causally related to his compensable September 2000 work injury?
2. If yes, to what workers’ compensation benefits is he entitled?
3. What is the appropriate average weekly wage for determining Claimant’s compensation rate?
4. Should cost of living adjustments be applied to Claimant’s compensation rate and if so, for what years?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Commissions spreadsheet
Joint Exhibit III: Excerpted portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.)
Claimant’s Exhibit A: Curriculum vitae, Dr. Mark Bucksbaum
2
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, attorney fees and costs pursuant to 21 V.S.A. §§664 and 678(a)
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 and correspondence contained in the Department’s file relating to this case. Judicial notice also is taken of the AMA Guides to Evaluation of Permanent Impairment, 5th Ed. (the “AMA Guides”).
Claimant’s 2000 Work Injury and 2003 Hernia
3. On September 27, 2000 Claimant injured his lower back while working in the course and scope of his employment as a salesperson for Defendant. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. Claimant treated conservatively for his injury. As part of the recommended treatment he enrolled in a multi-disciplinary rehabilitation program at the Vermont Center for Occupational Rehabilitation (VCOR) in January 2003. Claimant attended this program three times per week for several weeks. He received various treatments, including massage, osteopathic manipulation, physical therapy and work simulation exercises, each provided by different therapists. Dr. Johansson, the program director, examined him regularly to assess his progress.
5. Among the treatment providers with whom Claimant worked at VCOR was a physical therapist named Cheryl. Claimant testified that during one stretching exercise, Cheryl was particularly rough with him. She unexpectedly forced his leg down quickly, which stretched his psoas muscle and caused him to feel pain in his groin.
6. The psoas muscle helps keep the body upright, by stabilizing the base of the spine and rotating the hips. Throughout the VCOR program, Claimant’s therapists had noted that he had a tight psoas muscle. This caused him to walk a bit hunched over. When Claimant used the treadmill, he walked at a steeper incline so that the activity would not stretch his psoas muscle as much.
7. Claimant clearly remembered the incident with Cheryl and the pain he experienced when she stretched his leg. His recollections may have been off by a day or two, but the events in question took place more than five years ago, so some minor inconsistencies between his memory and the medical records is to be expected.
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8. After the incident with Cheryl, Claimant requested that he not be assigned to work with her again. On March 20, 2003, a Thursday, another physical therapist performed a mechanical release of Claimant’s psoas muscle. The record from this session includes a pain diagram indicating that Claimant was experiencing pain in the area of his lower abdomen and groin. When Claimant had visited with Dr. Johansson earlier on that same day, he had not complained of any pain in that area. As will be seen below, however, later a hernia was discovered there.
9. While showering over the following weekend Claimant noticed a bulge in his groin area, again in the same location where his hernia ultimately was discovered. When he next returned to VCOR, on Monday, March 24th, one of his therapists asked Dr. Johansson to see him because of his increased groin pain.
10. Dr. Johansson concluded that Claimant had suffered a minor abdominal strain. He did not note the existence of any hernia. Dr. Johansson referred Claimant to his primary care provider for further treatment. Two days later, on March 26, 2003 Claimant saw his primary care provider, Dr. Blish, who suspected he had suffered a left inguinal hernia and referred him to Dr. Smale, a surgeon.
11. Dr. Smale evaluated Claimant on April 1, 2003. He confirmed Dr. Blish’s diagnosis of left inguinal hernia.
12. Also in April 2003 Claimant concluded the VCOR program and was discharged. Dr. Johansson declared him to be at end medical result for his compensable low back injury, and on those grounds Defendant discontinued Claimant’s temporary disability benefits effective May 15, 2003.
13. Dr. Smale surgically repaired Claimant’s hernia on January 15, 2004. Unfortunately, Claimant has continued to experience discomfort at the surgical site while engaging in daily activities. He also has an ascending testicle and experiences pain during sexual activity.
Medical Opinions as to Causation of Hernia
14. Drs. Bucksbaum, Peterson and Johansson all have stated their opinions as to whether Claimant’s hernia was caused by his participation in the VCOR program. Both Dr. Bucksbaum and Dr. Peterson concluded that the hernia probably was causally related. Dr. Johansson did not offer an opinion to the required degree of medical certainty.
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15. Dr. Bucksbaum noted in particular that the mechanical release that the VCOR therapist performed on Claimant’s psoas muscle on March 20, 2003 would have required a fair amount of intra-abdominal pressure, which likely would have caused the hernia to bulge. According to Dr. Bucksbaum, this would explain why Claimant was asymptomatic on the morning of March 20th, when Dr. Johansson checked in with him, and did not complain of pain in his lower abdomen and groin until after his physical therapy session. Dr. Bucksbaum noted other activities in which Claimant engaged at VCOR, such as leg lifts and lifting and bending exercises, which also probably contributed to cause the hernia to develop. Last, Dr. Bucksbaum noted that there was no evidence of any congenital defect, pre-existing condition or alternative cause that might explain why the hernia developed, other than Claimant’s VCOR activities.
16. For his part, Dr. Johansson noted only that on his examinations of Claimant he did not observe any bulge in his groin area. Dr. Johansson admitted that he did not believe that Claimant’s complaints of pain were somatic or not organically caused.
17. All three doctors agreed that the treatment Claimant received for his hernia injury was reasonable and necessary. Defendant does not dispute its responsibility for such medical treatment should the injury be determined to have been caused by Claimant’s participation in the VCOR program. Claimant submitted evidence establishing that according to the Workers’ Compensation Medical Fee Schedule, the value of the treatment Claimant received causally related to his hernia totaled $7,384.51.
18. As for temporary total disability, Dr. Bucksbaum testified that in his opinion ten to fifteen days was an appropriate period of time during which Claimant would have been unable to work following his January 2004 hernia repair surgery.
Extent of Permanent Impairment Referable to Hernia
19. Both Claimant and Defendant retained medical experts to render their opinions as to the extent of any permanent impairment referable to Claimant’s hernia – Dr. Peterson on Claimant’s behalf and Dr. Davignon on Defendant’s behalf.
20. The relevant section of the AMA Guides, Table 6-9, lists the criteria for rating a Class 1 permanent impairment due to herniation, for which the rating range is 0-9% whole person, as follows:
Palpable defect in supporting structures of abdominal wall
and
slight protrusion at site of defect with increased abdominal pressure; readily reducible
or
occasional mild discomfort at site of defect but not precluding most activities of daily living. (Emphasis in original).
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21. Dr. Peterson performed an independent medical evaluation of Claimant on August 22, 2005. He observed that Claimant had a palpable defect with a slight protrusion. Dr. Peterson also noted that Claimant experienced ongoing discomfort at the surgical site during mundane daily activities such as leaning on a counter and additional discomfort with sexual activity. From these observations Dr. Peterson concluded that Claimant’s permanent impairment ranked at the highest level allowed for a Class 1 hernia, or 9%.
22. Dr. Davignon conducted his independent medical evaluation on April 23, 2008. He reported that Claimant was still “mildly uncomfortable” even four years after his hernia repair, complaining of numbness in his left groin, an ascended testicle, pain with sexual activity and a “picking” sensation at times at the surgical site. Dr. Davignon could find no palpable defect or protrusion, however. As under his interpretation of the AMA Guides, such a finding was necessary for any impairment to be rated, Dr. Davignon concluded that Claimant had a 0% permanent impairment.
Claimant’s Average Weekly Wage
23. Rather than paying Claimant a fixed wage, Defendant compensated him solely on the basis of the sales commissions he earned. After Claimant completed a sale, Defendant credited him with the commission he had earned thereby in a ledger account. Whenever he wished to, Claimant could draw from this account, in whatever amount he desired. There were no regular disbursements, and Defendant simply noted debits to Claimant’s account on its ledger as they were paid out. It was, in effect, a private savings account.
24. During the twelve weeks preceding his 2000 work injury, the period from July 2, 2000 through September 23, 2000, Claimant earned a total of $11,584.65 in sales commissions. During this same twelve-week period, Claimant received disbursements from his commission account totaling $10,100.00.
25. It is apparent from reviewing Defendant’s ledger that Claimant routinely drew less from his account than what he had earned, and thus Defendant routinely carried a credit balance on his behalf. Defendant’s ledger indicates that the last time Claimant had zeroed out his account – meaning that he had drawn out all of the commissions he had earned – was in April 2000, nearly five months before the date of injury. As of September 23, 2000, the week preceding his original injury, Claimant had a credit balance in his account totaling $6,531.79.
26. Using the sales commissions Claimant earned during the twelve weeks preceding his injury, his initial compensation rate would have been $643.92. With cost of living adjustments in 2001 and 2002, his compensation rate at the time temporary disability benefits were discontinued in May 2003 would have been $704.52. As of January 2004, during the two weeks Claimant was recuperating from hernia surgery, the rate would have been $721.43. As of August 2005, when Dr. Peterson placed him at end medical result and rated his permanent impairment, it would have been $774.31.
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27. Using the disbursements Claimant took during the twelve weeks preceding his injury, his initial compensation rate would have been $561.39. This would have been updated to $614.22 as of May 2003, $628.96 as of January 2004, and $675.05 as of August 2005.
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).
Causation
2. Here, Claimant alleges that his hernia resulted from his participation in the VCOR program, which in turn was necessitated by his compensable September 2000 work injury. Certainly, if the medical evidence establishes this causal link, then Claimant is entitled to workers’ compensation benefits referable to the hernia, as that injury counts as a direct and natural consequence of the original compensable injury. 1 Larson’s Workers’ Compensation Law, §10.09.
3. 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).
4. I find Dr. Bucksbaum’s opinion to be the most credible. He adequately explained how Claimant’s VCOR activities, and particularly the mechanical release of his psoas muscle, most likely caused his hernia to develop. Dr. Peterson concurred with this analysis. Given that Dr. Johansson did not offer any contrary opinion to the required degree of medical certainty, I conclude that Claimant has sustained his burden of proof on the issue. The hernia was causally related to the work injury and is therefore compensable.
5. I also find credible Dr. Bucksbaum’s opinion as to the extent of Claimant’s temporary total disability following his hernia repair surgery. Thus I conclude that Claimant was entitled to temporary total disability benefits beginning on January 15, 2004 and ending fifteen days later, on January 30, 2004.
6. There being no dispute as to the reasonable necessity of the medical treatment Claimant received for his hernia, I conclude that according to the Workers’ Compensation Medical Fee Schedule the value of such treatment totaled $7,384.51.
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Extent of Permanent Impairment
7. As for the permanent impairment referable to Claimant’s hernia injury, Dr. Peterson’s interpretation of the AMA Guides most closely follows that adopted by previous opinions. Abare v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008); Estabrook v. New England Precision, Opinion No. 10-00WC (May 16, 2000); Knapp-Bowen v. Equinox Terrace, Opinion No. 4-98WC (January 19, 1998). I accept his impairment rating over Dr. Davignon’s, therefore, and conclude that Claimant has suffered a 9% whole person impairment referable to his compensable hernia injury.
Average Weekly Wage, Compensation Rate and Cost of Living Adjustments
8. What remains is to determine the appropriate average weekly wage and compensation rate for paying the benefits to which Claimant is entitled, both for his original September 2000 back injury and for his January 2004 hernia repair. Two issues are subsumed under this question: first, whether Claimant’s initial compensation rate should be based on the commissions he earned during the twelve weeks prior to his injury or on the commissions he was paid; and second, whether he is entitled to cost of living adjustments and if so, for what years.
9. Vermont’s workers’ compensation statute provides that a claimant’s average weekly wage “shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding the injury.” 21 V.S.A. §650(a).
10. Here, the amount Claimant earned was clearly calculated and based entirely on the sales he had completed during each week. Defendant did not pay him a regular salary, as typically happens in a draw against commission situation; rather, it merely held the money in Claimant’s account and disbursed it to him in whatever amount he requested, at his sole discretion. Claimant could have dipped into his previous savings and drawn far more than what he had earned in a week, or he could save more aside and take something less.
11. Thus, the amount Claimant was paid every week bore no real relationship at all to the amount he earned. It does not in any way represent Claimant’s “average weekly earnings,” which is what the statute directs should be the basis for his compensation rate.
12. Claimant’s situation is markedly different from the one considered in Bebon v. Safety-Kleen, Opinion No. 64-05WC (November 4, 2005). The claimant there earned a base salary plus monthly bonus commissions, all paid out on a biweekly basis. Thus, the first biweekly check he received in the twelve weeks preceding his injury included commissions that had been earned previously, while the last one omitted commissions that had been earned during the period but were not due to be paid until later. The claimant argued that both commission checks should have been included in his average weekly wage calculation. The Commissioner concluded otherwise, and selected the commissions paid out as the as the amount most representative of the claimant’s weekly earnings. For the reasons stated above, however, in this case the commissions Claimant earned are more representative.
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13. I conclude, therefore, that Claimant’s average weekly wage should have been based on the commissions he earned during the twelve weeks preceding his injury, a total of $11,584.65, which yields an initial compensation rate of $643.92. With the appropriate cost of living adjustments for 2001, 2002 and 2003, following Claimant’s hernia repair in January 2004 Defendant should have paid Claimant temporary total disability benefits at the rate of $721.43 per week.
14. The compensation rate at which the permanency benefits for Claimant’s hernia should have been paid must be determined as of the date his temporary disability ended, not as of the date he reached end medical result. Laumann v. Department of Public Safety, 177 Vt. 52 (2004). The Supreme Court reached this conclusion by interpreting the plain language of 21 V.S.A. §§648 and 650; its holding is as applicable to the current claim as it was to the claim at issue there.
15. The relevant date for calculating the benefits due Claimant on account of Dr. Peterson’s 9% impairment rating, therefore, a total of 36.45 weeks, is January 30, 2004, the date on which his temporary total disability ended. Claimant’s compensation rate as of that date was $721.43. The first 21.5 weeks of permanency benefits should have been paid at that rate. As of July 1, 2004 the rate would have been updated to $745.96; the remaining 14.95 weeks should have been paid at the new rate.
16. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,177.55 and attorney fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits totaling $7,384.51;
2. Temporary total disability benefits commencing on January 15, 2004 and ending on January 30, 2004 payable at the rate of $721.43 per week;
3. Permanent partial disability benefits in accordance with a 9% whole person impairment rating; a total of 36.45 weeks, the first 21.5 weeks payable at the rate of $721.43 per week and the remaining 14.95 weeks payable at the rate of $745.96 per week;
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs and attorney fees in accordance with Conclusion of Law No. 16 above.
DATED at Montpelier, Vermont this 24th day of September 2009.
Patricia Moulton Powden
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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