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Lorianne Lewia v. Stowe Motel (July 25, 2011)

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Lorianne Lewia v. Stowe Motel (July 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Lorieann Lewia Opinion No. 19-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Stowe Motel
For: Anne M. Noonan
Commissioner
State File No. BB-55471
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 17, 2011
Record closed on April 5, 2011
APPEARANCES:
Vincent Illuzzi, Esq., for Claimant
Jason Ferreira, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to temporary total disability benefits for the period from June 18, 2010 through August 6, 2010?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Various work capabilities forms
Claimant’s Exhibit 2: Letter from Scott Ward, April 2, 2010
Claimant’s Exhibit 3: Curriculum vitae, W. Thomas Turek, D.C.
Defendant’s Exhibit 1: Curriculum vitae, Verne Backus, M.D.
Defendant’s Exhibit 2: Letter from Scott Ward, May 27, 2010
Defendant’s Exhibit 3: Letter from Attorney Illuzzi, June 2, 2010
Defendant’s Exhibit 4: Letter from Scott Ward, June 8, 2010
Defendant’s Exhibit 5: Form 27, approved June 18, 2010
Defendant’s Exhibit 6: Letter from Anne Coutermarsh, August 30, 2010
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her 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 worked for Defendant as a housekeeper. On November 5, 2009 she was moving lawn furniture as part of the fall cleanup process. As she bent down to pick up a heavy hammock, she felt a pop in her left shoulder, and then a stabbing, burning pain. Claimant stopped working and immediately sought medical treatment.
4. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
Claimant’s Prior Medical History
5. Claimant’s prior medical history includes a left upper extremity injury sustained in 1998 while working for a different employer. Claimant underwent two elbow surgeries, but continued to complain of disabling pain for years thereafter. The medical records reflect that during this period Claimant demonstrated anger towards her surgeon and poor insight into her condition. She held her arm in a significantly guarded position and was unwilling to participate in treatment options that were likely to increase her pain temporarily, such as functional restoration.
6. Claimant did not return to work after her 1998 injury until September 2004. At that point her primary care physician cleared her to work with a restriction against lifting in excess of 20 pounds with her left arm. Claimant worked for a time as a licensed nursing assistant. Later she went to work for Defendant.
7. Although originally left-handed, Claimant testified that the restriction against lifting with her left arm was not problematic. She taught herself to do more things with her right hand and now considers herself to be right-handed. Claimant described her right arm as being “pretty strong and rugged” now. I find this testimony to be credible.
Claimant’s Medical Course Since November 2009
8. After her November 2009 injury Claimant treated conservatively, first with Dr. James, and later with both Maria Calderwood, a family nurse practitioner, and Dr. Carr, an orthopedic surgeon. Her response to treatment has been poor, and in many respects it mirrors her experience following her 1998 injury. Claimant complains of exquisite pain throughout her shoulder joint, in any motion, in any position and at all times. She holds her left arm in an immobile position, with her left shoulder elevated, her neck flexed and her arm folded close across her body. She manages her pain with narcotic medicines.
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9. Both Dr. Carr and Dr. Shafritz, another orthopedic surgeon with whom Claimant consulted, have determined that there is no surgical remedy for her injury. The etiology of her current symptoms is unclear. As with her 1998 injury, there likely is a myofascial pain component, which is complicated by Claimant’s high pain perception and tendency for pain magnification. Diagnostic testing has ruled out adhesive capsulitis.
Claimant’s Work Capacity
10. Claimant has not returned to work since her November 2009 injury. In a January 25, 2010 “To Whom It May Concern” letter, Dr. Carr stated that she would be unable to work as a housekeeper indefinitely. Dr. Carr has reiterated this opinion on three occasions since then, most recently in August 2010. He has done so, however, merely by checking the appropriate box for “no work capability” on standardized workers’ compensation medical forms. Without further explanation as to the basis for his opinions, I find these determinations to be of little value.1
11. At Defendant’s request, Claimant underwent two independent medical evaluations with Dr. Backus, the first in March 2010 and the second in January 2011. Dr. Backus is board certified in occupational medicine. He is experienced at treating patients with chronic pain, particularly with respect to return to work issues.
12. Based both on his physical exam findings and his review of Claimant’s medical records, Dr. Backus concluded that Claimant is capable of performing full-time sedentary to light duty work. In reaching this conclusion, Dr. Backus specifically noted that after her 1998 injury Claimant suffered from chronic pain to much the same extent that she does now, but still was able to return to work so long as she limited the use of her left arm. Dr. Backus recommended that Claimant abide by the same restriction now.
13. According to Dr. Backus, aside from the limitation involving her left arm there are no other medical barriers that preclude Claimant from working. She has full use of her right arm and no functional restrictions involving either her back or her lower extremities. She is not restricted from driving and has not complained of any disabling side effects related to her use of pain medications. Indeed, in Dr. Backus’ opinion, for Claimant to return to work likely would be quite beneficial. In his experience, chronic pain patients usually get better once they do so. I find this testimony to be credible.
14. Dr. Backus acknowledged that Claimant has never undergone a functional capacity evaluation. He testified that although such testing is helpful, it is not always necessary. In this case, Dr. Backus felt confident in his ability to gauge Claimant’s work capacity without it. I find this testimony to be credible.
15. At her attorney’s referral, Claimant underwent an evaluation with Dr. Turek, a chiropractor, in February 2011. Dr. Turek is a diplomate in chiropractic orthopedics, a designation akin to board certification for medical doctors. His practice primarily involves treating orthopedic problems and musculoskeletal disorders.
1 Dr. Fanciullo, a pain management specialist to whom Claimant was referred for a consultation in May 2010, completed a similar form and checked the same box after his evaluation. This determination also came with no explanation, and therefore I find its value as limited as Dr. Carr’s.
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16. Based on his review of Claimant’s medical records, Dr. Turek concluded that Claimant had been totally disabled from working during the summer of 2010. Given how restricted the range of motion in Claimant’s left arm was during that period, in Dr. Turek’s opinion Claimant would have risked developing an overuse problem in her right arm had she attempted to return to work.
17. Dr. Turek acknowledged that his opinion as to Claimant’s work capacity during the summer of 2010 was based solely on his review of her medical records, as he did not have occasion to examine her until some eight months later. Dr. Turek also admitted that Claimant has not complained of any right arm symptoms, despite the fact that she uses her left arm only sparingly. Last, Dr. Turek was unaware of the fact that following her 1998 injury Claimant had been released to return to work with only limited use of her left arm and had managed successfully to do so. I find that Dr. Turek’s opinion is weakened as a result of these factors.
Defendant’s Termination of Temporary Disability Benefits
18. With Dr. Backus’ work capacity opinion as support, on May 27, 2010 Defendant notified Claimant’s attorney that Claimant had been released to return to work. Defendant demanded that Claimant begin searching for suitable work immediately and submit at least five job contacts weekly beginning June 4, 2010. Should she fail to do so, Defendant advised, it would seek to discontinue her temporary total disability benefits.
19. Claimant’s attorney objected to Defendant’s work search requirement. In correspondence to the Department, he argued: (1) that Claimant’s treating physicians had not yet released her to work; (2) that to expect Claimant to make five job contacts per week was unreasonable given both the rural nature of her labor market area and her physical limitations; and (3) that there was insufficient time for Claimant to comply with Defendant’s June 4th deadline for completing the first weekly work search.
20. Between June 2, 2010 (the date when Claimant’s attorney received Defendant’s work search notice) and June 8, 2010 Claimant failed to submit evidence of any job contacts to Defendant. Consequently, on June 8th Defendant submitted its Notice of Intention to Discontinue Payments (Form 27) to the Department, in which it sought to discontinue Claimant’s temporary total disability benefits for failure to conduct a good faith search for suitable work. The Department approved the discontinuance effective June 18, 2010.
21. Claimant did not make any job search efforts between June 18, 2010 and August 6, 2010. She did not receive any temporary total disability benefits during this period. Following an informal conference on July 28, 2010 the parties agreed that she would commence a job search and would submit evidence to Defendant of at least two contacts weekly. Claimant did so beginning on August 7, 2010 and Defendant reinstated her temporary total disability benefits accordingly.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The issue here is whether Defendant properly discontinued Claimant’s temporary total disability benefits from June 18, 2010 through August 6, 2010 on the grounds that she had failed to conduct a good faith search for suitable work once released to do so. See Workers’ Compensation Rule 13.0000. Having initially accepted Claimant’s injury as compensable, the burden is on Defendant to establish that its discontinuance was proper. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
3. The test for determining entitlement to temporary total disability benefits “is not whether the injured employee is totally incapacitated from performing the same type of labor as he was performing at the time of his injury but whether he is capable of performing any kind of available work.” Sivret v. Knight, 118 Vt. 343, 346 (1954), cited with approval in Hotaling v. St. Johnsbury Trucking Co., 153 Vt. 581, 584 (1990).
4. Conflicting medical evidence was produced as to whether Claimant meets this standard. According to Drs. Carr and Turek, she does. According to Dr. Backus, she does not.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Notwithstanding his status as Claimant’s treating physician, Dr. Carr’s opinion as to work capacity was never stated in sufficient detail for me even to consider it. Checking a box on a form may be a useful way for an adjuster to quickly monitor an injured worker’s status as his or her recovery progresses, but this method of stating an opinion has little value otherwise.
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7. Neither Dr. Turek nor Dr. Backus was a treating physician, and both were qualified to express opinions as to Claimant’s work capacity during the summer of 2010. Both examined pertinent records. Both conducted comprehensive evaluations, though the fact that Dr. Backus’ exam occurred shortly before the period in question while Dr. Turek’s did not occur until some eight months later makes the former more persuasive.
8. Aside from stating his fear that Claimant might develop an overuse injury in her right arm if she returned to work, Dr. Turek provided no basis for his conclusion that she was precluded from performing any work at all. He was unaware that Claimant had returned to work successfully after her 1998 injury, in part by teaching herself to perform most tasks right-handed. In these respects, his opinion lacked objective support and was not sufficiently thorough for me to accept it.
9. Dr. Backus’ opinion was better supported by the available evidence. The fact is, Claimant has full use of her other extremities and does not suffer from any other limiting impairments, either physical or psychological. She was able to return to work following her 1998 injury despite having only limited use of her left arm. There is no reason to believe that she cannot do so again now.
10. I conclude that Dr. Backus’ opinion as to Claimant’s work capacity is more persuasive than Dr. Turek’s.
11. Having concluded that Claimant had a work capacity during the summer of 2010, I also conclude that Defendant appropriately notified her of her obligation to search for suitable work, and appropriately terminated her temporary disability benefits when she failed to do so.
12. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for temporary total disability benefits for the period from June 18, 2010 through August 6, 2010 is hereby DENIED.
DATED at Montpelier, Vermont this 25th day of July 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.

Joanna McNally v. State of VT, Dept. for Children and Families

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

Joanna McNally v. State of VT, Dept. for Children and Families
STATE OF VERMONT
DEPARTMENT OF LABOR
Joanna McNally Opinion No. 31-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont, Department
for Children and Families For: Anne M. Noonan
Commissioner
State File No. BB-57803
OPINION AND ORDER
Hearing held in Montpelier, Vermont on July 14, 2011
Record closed on August 12, 2011
APPEARANCES:
Stephen Cusick, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant entitled to temporary total disability benefits for the period from May 10, 2010 through August 9, 2010?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: First Report of Injury, 12/1/2009
Claimant’s Exhibit 2: Letter from Danielle Lewis, June 3, 2010
Claimant’s Exhibit 3: Workplace Safety Ergonomic Evaluation, 12/15/2009
Claimant’s Exhibit 4: Claim Questionnaire
Claimant’s Exhibit 5: Letter from Paul Madden, January 6, 2010
Claimant’s Exhibit 6: Request for Reasonable Accommodation, 1/12/10
Claimant’s Exhibit 7: Reasonable Accommodation Policy
Defendant’s Exhibit A: Physical therapy progress note, 8/6/10
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her 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 medical records admitted into evidence at the formal hearing in McNally v. State of Vermont, Department of PATH, State File No. Z-4152.
3. Claimant began working as a Call Center Benefit Program Specialist in Defendant’s Department for Children and Families in October 2009. Her duties included fielding telephone inquiries from benefit recipients, researching their cases and logging her activity, all electronically. The work required constant use of her computer mouse and keyboard for such functions as scrolling through multiple programs, typing and even answering the phone.
Claimant’s December 2009 Work Injury
4. Shortly after starting at the call center, in late November or early December 2009 Claimant moved to a different office. She quickly realized that her new workstation was not ergonomically correct, as it required her to reach too far with her right arm for her computer mouse. As a result, Claimant began to experience burning pain in her right shoulder, arm, wrist and hand.
5. Claimant reported her symptoms to Defendant as work-related, alleging an injury date of December 1, 2009. In addition, she voiced her workstation concerns to her supervisor, who arranged for an ergonomic evaluation. At the evaluator’s recommendation, Claimant’s computer was outfitted with a tray so that she could position her mouse over the number keys, thus reducing the stress on her right arm.
6. Claimant was particularly attuned to her need for an ergonomically correct workstation given her prior medical history. In 2008, while employed by another department within state government, she had been diagnosed with bilateral enthesopathy, or tendon damage, in her wrist, carpus and elbow. Although Defendant disputed Claimant’s claim that this condition was causally related to overuse from typing and data entry work,1 it endeavored nonetheless to adjust her workstation correctly so as to enable her to manage her symptoms effectively.
1 The Commissioner initially decided this claim in Defendant’s favor, McNally v. State of Vermont, Department of PATH, Opinion No. 43-09WC (November 3, 2009). Claimant appealed to the Vermont Supreme Court, which reversed and remanded the case back to the Commissioner for further clarification. McNally v. Department of PATH, 2010 VT 99. A decision on remand has not yet been issued.
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7. This time as well, after a brief period of reduced work hours, and once her workstation was modified to make it more ergonomically appropriate, Claimant was able to obtain reasonable relief of her symptoms. By mid-February 2010 she had resumed her regular work activities and schedule. Although she continued to complain of some right shoulder pain, by early March 2010 her primary care provider, Dr. Kiely, noted that her “more distal arm issues from work are quieter.”
8. Defendant initially denied Claimant’s claim for workers’ compensation benefits on the grounds that her symptoms were not causally related to her work activities. Thereafter, at Defendant’s request, in mid-March 2010 Claimant underwent an independent medical evaluation with Dr. Backus, an occupational medicine specialist. As Dr. Kiely had, Dr. Backus diagnosed Claimant with enthesopathy of the right wrist and carpus. As he described it, Claimant had a pre-existing propensity for this condition, which had been well controlled until her move to a new workstation caused a temporary exacerbation. In his opinion, therefore, Claimant’s complaints were in fact work-related. I find this analysis persuasive.
9. In consideration of Dr. Backus’ analysis, Defendant reversed its denial and accepted Claimant’s claim for medical benefits causally related to her December 1, 2009 injury as compensable.
10. As noted above, by the time of Dr. Backus’ March 2010 evaluation Claimant’s workstation already had been modified so as to make it more ergonomically appropriate, and as a result her wrist and hand symptoms had resolved back to their pre-December 2009 baseline. With that in mind, Dr. Backus determined that Claimant had reached an end medical result for her December 1, 2009 work injury. Nevertheless, he stressed the importance of maximizing the ergonomic design of Claimant’s workstation in order to prevent further work-related exacerbations.
Claimant’s May 2010 Disability
11. Unfortunately, in early April 2010 Claimant moved to yet another workstation, one with a computer mouse that was ill-positioned for her ergonomically. Once again, Claimant’s enthesopathy symptoms flared, specifically, swelling in her right hand and pain radiating up her arms and into her shoulders. As she had in the past, Claimant requested that her supervisor arrange an ergonomic assessment. This time, for reasons that are not clear from the record, the supervisor failed to do so.
12. By early May 2010 Claimant’s symptoms had worsened to the point where they interfered with her ability to do her job. When she learned that the ergonomic assessment she had been anticipating had not even been requested, she decided she could no longer remain at work. Thereafter, Claimant sought and was granted FMLA leave, effective May 10, 2010.
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13. Dr. Kiely supported Claimant’s request for FMLA leave, in the hopes that a combination of time away from her job duties and physical therapy would help her symptoms abate. This did not occur, however. Instead, in his August 9, 2010 evaluation Dr. Kiely noted that Claimant was complaining of more generalized pain and was increasingly sensitive to palpation, not just in her arms but throughout her body. A more focused clinical examination revealed that she was suffering from fibromyalgia.
14. Fibromyalgia is a syndrome characterized by chronic pain and hypersensitivity throughout the body. Its cause is not well understood. Patients with fibromyalgia tend to perceive tissues as being more painful than what otherwise would be expected based solely on the trauma to which they have been exposed.
15. Fibromyalgia and enthesopathy are not mutually exclusive diagnoses. Because people who suffer from fibromyalgia have a heightened perception of soft tissue pain, it may take longer for them to recover from an inflammatory condition such as tendinitis or enthesopathy than it would for a person who does not suffer from the more generalized pain syndrome.
Expert Opinions as to Causation
16. Both Dr. Kiely and Dr. Backus agree that from December 2009 until mid-March 2010 Claimant’s right wrist and hand symptoms likely were caused primarily by work-related enthesopathy. Where the experts diverge is as to the cause of her condition thereafter.
17. According to Dr. Kiely, Claimant’s complaints in May 2010 most likely were attributable to her work activities. At least one of the symptoms she reported at that point – swelling in her right hand – was consistent with enthesopathy, but would not have been indicative of fibromyalgia. By the time of Dr. Kiely’s August 9, 2010 evaluation, however, Claimant’s soft tissue pain still had failed to abate despite extended time away from work. In addition, she was exhibiting signs of more generalized pain and sensitivity. From these facts Dr. Kiely concluded that Claimant’s symptoms likely now were being driven by fibromyalgia, not by work-related enthesopathy. Any further improvement would come from treating the former condition, not the latter. With that in mind, Dr. Kiely determined that Claimant had reached an end medical result for her work-related injury.
18. Dr. Backus disagreed with this analysis. As noted above, he first evaluated Claimant in mid-March 2010. At that time, he concluded that as a result of working at an ergonomically inappropriate workstation Claimant’s enthesopathy had been temporarily exacerbated. It was on the basis of this opinion that Defendant accepted Claimant’s December 2009 injury as compensable.
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19. Dr. Backus re-evaluated Claimant in December 2010. At that point, he differentiated between the symptoms she had reported in December 2009, which he recalled as being focused primarily in her right wrist and hand, and those that she reported in April 2010 and thereafter, which seemed to emanate from her shoulder. Although he continued to attribute the earlier symptoms to work-related enthesopathy, the latter symptoms he now attributed solely to fibromyalgia, a condition that was neither caused nor aggravated by work.
20. Contrary to Dr. Backus’ assertion, I find that the medical records do document varying complaints of hand, wrist, arm, shoulder and/or shoulder girdle pain, both at the time of Claimant’s December 2009 injury, which Dr. Backus ascribed to work-related enthesopathy, and at the time of her May 2010 injury, which he ascribed to non-work-related fibromyalgia.
21. Dr. Backus did not discuss, in either his December 2010 independent medical evaluation report or in his formal hearing testimony, the causal relationship, if any, between Claimant’s move to another ergonomically inappropriate workstation in April 2010 and her worsened symptoms thereafter. As he had in the context of his March 2010 evaluation, he acknowledged in his testimony that were Claimant required to work in a setting that was not ergonomically correct for her, this could cause her enthesopathy to flare. With that in mind, Dr. Backus’ failure to address Claimant’s move to yet another incorrect workstation between the time of his first evaluation in March and his second one in December is confusing.
Claimant’s Non-Work-Related Activities
22. In addition to asserting that Claimant’s disability after May 10, 2010 was due to her fibromyalgia rather than her work, Defendant also points to various non-work-related activities as likely intervening events. This assertion comes from a single physical therapy notation, dated April 5, 2010: “Very sore today. Putting roof on house and busy weekend with Easter.”
23. At the formal hearing, Claimant clarified that it was her husband and son who did the roofing work referenced in the physical therapist’s note. Claimant’s participation was limited to occasionally picking up small scraps of wood or discarded nails and serving refreshments. Claimant’s son fully corroborated this testimony, and I find it credible in all respects.
24. Claimant also acknowledged that scrubbing the Easter dinner pots and pans caused her pain to spike for about a week thereafter. I find this testimony credible as well.
25. Neither Dr. Backus nor Dr. Kiely established any credible connection, to the required degree of medical certainty, between Claimant’s non-work-related activities in early April 2010 and her disability after May 10, 2010.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. 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).
3. With specific reference to the first and third factors, I conclude here that Dr. Kiely’s opinion is the most credible. As the treating physician, he had occasion to see and examine Claimant on a much more regular basis than Dr. Backus did. Notably, Dr. Kiely evaluated Claimant in early May 2010, when her right shoulder, arm, wrist and hand symptoms were flaring again, and then monthly through early August 2010, when he determined that her pain syndrome had become more generalized and that her ongoing symptoms were now due to fibromyalgia, not enthesopathy.
4. In contrast, Dr. Backus only examined Claimant twice – once in March 2010, before her move to another ergonomically incorrect workstation, and then not again until December 2010, many months after she had stopped working. Dr. Backus had no opportunity to evaluate Claimant’s condition during the crucial period at issue here, therefore, whereas Dr. Kiely did.
5. Beyond that, I am hard pressed to understand the basis for Dr. Backus’ opinion that work at an ergonomically inappropriate workstation likely caused Claimant’s enthesopathy to flare in December 2009, but not in May 2010. Given that Dr. Backus himself had acknowledged the risk that Claimant’s symptoms might recur were she required to work in a less than optimal ergonomic setting, his conclusion in this regard is perplexing.
6. Dr. Kiely’s opinion is more easily understood. It reasonably differentiates between the point at which Claimant’s symptoms were attributable primarily to her enthesopathy and the point at which her fibromyalgia began to predominate. In this respect, Dr. Kiely’s opinion is clearer, more thorough and better supported by the facts than Dr. Backus’ is.
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7. On the basis of Dr. Kiely’s opinion, I conclude that as a consequence of her work-related enthesopathy Claimant was disabled from working for the period from May 10, 2010 through August 9, 2010. Claimant is entitled to temporary total disability benefits covering that period. Having reached an end medical result for her work injury on the latter date, her disability thereafter was no longer work-related, and her entitlement to temporary disability benefits therefore terminated.
8. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $645.71 and attorney fees totaling $12,613.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
9. As for attorney fees, these lie within the Commissioner’s discretion. Defendant argues that no fees should be awarded for any work performed prior to July 29, 2010, the date when Claimant’s attorney formally entered his appearance on her behalf before the Department. Defendant does not cite to any legal authority in support of its position. Having reviewed the specific billing entries, I find that they are sufficiently related to the claim at issue here to be recoverable. I therefore award Claimant her attorney fees as presented, with no reduction for work performed prior to July 29, 2010.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits for the period from May 10, 2010 through August 9, 2010 in accordance with 21 V.S.A. §642;
2. Interest on the above amounts calculated in accordance with 21 V.S.A. §664; and
3. Costs totaling $645.71 and attorney fees totaling $12,613.50 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 12th day of October 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.

Pamela McGinness v. OWL International (April 4, 2012)

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

Pamela McGinness v. OWL International (April 4, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Pamela McGinness Opinion No. 11-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
OWL International
For: Anne M. Noonan
Commissioner
State File No. Y-02436
RULING ON DEFENDANT’S MOTION FOR CREDIT/OFFSET
Defendant seeks a credit or offset pursuant to 21 V.S.A. §651 against future indemnity benefits payable to Claimant on account of various temporary disability benefit overpayments. Claimant opposes the motion on the grounds that to the extent any overpayments occurred (which she disputes at least in part), the circumstances do not justify an offset.
The facts are substantially undisputed. Claimant suffered a work-related injury on January 21, 2005, which Defendant accepted as compensable. Some two years later, on May 31, 2007 Claimant became disabled from working, and Defendant commenced paying temporary total disability benefits accordingly.
Aside from a brief gap between August 12, 2007 and August 28, 2007, from May 31, 2007 through January 22, 2008 Defendant paid Claimant weekly temporary total disability benefits. The amount it paid was based on (a) Claimant’s Wage Statement (Form 25), which documented her entitlement to the minimum compensation rate (initially $325.00 weekly, updated to $338.00 weekly as of July 1, 2007); plus (b) an additional $20.00 weekly as compensation for two dependents. In listing these dependents on her Certificate of Dependency (Form 10/10S), Claimant specifically noted their relationship to her as her grandchildren.
By letter dated January 11, 2008 Claimant’s attorney informed Defendant’s workers’ compensation insurance adjuster that Claimant’s two dependents had moved out of her home and were no longer dependent upon her for support. The attorney thus advised that Claimant’s weekly compensation rate needed to be adjusted downward by $20.00, to $338.00. Defendant did so, effective January 22, 2008.
From January 22, 2008 through June 30, 2010 Defendant paid Claimant weekly temporary total disability benefits at the minimum compensation rate (as adjusted annually), without adding any amount for dependency benefits. For the benefit years beginning on July 1, 2008 and July 1, 2009 the Notices of Change in Compensation Rate (Form 28’s) that Defendant filed with the Department correctly omitted any additional compensation for dependents.
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For reasons that are not apparent, for the July 1, 2010 benefit year Defendant once again began adding $20.00 in dependency benefits to Claimant’s weekly compensation rate. This was reflected on the Form 28 that the Department approved on July 30, 2010.1 Thereafter, from July 1, 2010 through April 5, 2011, Defendant’s weekly temporary total disability payments to Claimant included $20.00 weekly in dependency benefits.
On March 28, 2011 the Department approved Defendant’s Notice of Intention to Discontinue Payments (Form 27), terminating Claimant’s temporary total disability benefits effective March 12, 2011. Notwithstanding its approved discontinuance, however, Defendant continued to pay temporary total disability benefits through April 5, 2011.
Defendant now seeks an offset or credit against future indemnity benefits based on two alleged overpayments. First, it asserts that it mistakenly paid dependency benefits on behalf of Claimant’s grandchildren when according to its reading of the workers’ compensation statute no such benefits were due. Defendant calculates the total amount of this overpayment to be $1,477.00. Second, it asserts that it mistakenly paid temporary total disability benefits beyond the effective date of the Department’s approved discontinuance. Defendant calculates this overpayment (not including dependency benefits) to be $1,332.14. The total amount of the credit Defendant seeks, therefore, is $2,809.14.
DISCUSSION:
With the commissioner’s approval, Vermont’s workers’ compensation statute authorizes a credit or offset against future indemnity benefits in situations where an employer has made payments that “by the provisions of this chapter, were not due and payable when made.” 21 V.S.A. §651. With respect to Defendant’s claim as to overpaid dependency benefits, therefore, the first question I must consider is whether Vermont’s workers’ compensation statute requires such payments to be made or not.
The statute mandates that a claimant’s compensation rate for temporary total disability must include an additional $10.00 per week “for each dependent child who is unmarried and under the age of 21 years. . . .” 21 V.S.A. §642.
1 Claimant has attached to his memorandum in opposition a second Form 28 for the July 1, 2010 benefit year that does not list any additional dependency benefits. The form was signed by Defendant’s adjuster, but never approved by the Department. In fact, from reviewing the Department’s file there is no evidence that the Department ever received it.
3
The statute’s general definitions section contains separate definitions for both “child” and “grandchild,” as follows:
§601. Definitions
Unless the context otherwise requires, words and phrases used in this chapter shall be construed as follows:
(2) “Child” includes a stepchild, adopted child, posthumous child and an acknowledged illegitimate child, but does not include a married child unless dependent.
. . .
(5) “Grandchild” includes a child of an adopted child and a child of a stepchild, but does not include a stepchild of a child, a stepchild of a stepchild, a stepchild of an adopted child, or a married grandchild unless dependent.
21 V.S.A. §601 (emphasis added).
Defendant correctly observes that while the statute specifically identifies grandchildren as potential recipients of death benefits under §§634 and 635, it makes no such reference to grandchildren with respect to the dependency benefits mandated under §642. Relying on the general rule of statutory construction by which the legislature is presumed to act “advisedly” when it includes particular language in one section of a statute but omits it in another, In re Munson Earth Moving Corp., 169 Vt. 455, 465 (1999), Defendant asserts that here, the legislature must have intended only for children to qualify for dependency benefits under §642, not grandchildren.
Canons of statutory construction such as the one to which Defendant refers – that “the expression of one thing is the exclusion of another”2 – “are routinely discarded when they do not further a statute’s remedial purposes.” Clymer v. Webster, 156 Vt. 614, 625 (1991). Such maxims are aids to construction, not hard rules. In re Appeal of Electronic Industries Alliance, 2005 VT 111, ¶9. In interpreting the language of a statute, the better approach is to give effect to the Legislature’s intent, by considering “the whole statute, its effects and consequences, and the reason and spirit of the law.” Laumann v. Department of Public Safety, 2004 VT 60, ¶7.
Considered from this perspective, the language of §642 evidences the legislature’s primary intention, which is to assist an injured worker to continue caring for his or her dependents during a period of temporary total disability. The context in which the term “dependent child” is used, therefore, requires greater emphasis on the first word, and less on the second. Such an interpretation is more in keeping with the statute’s remedial nature and liberal construction. Montgomery v. Brinver Corp., 142 Vt. 461 (1983), citing Herbert v. Layman, 125 Vt. 481 (1966).
2 In Latin, “expressio unis est exclusio alterius.”
4
I conclude that considered in context, the language of §642 includes dependent grandchildren as an appropriate basis for calculating an injured worker’s entitlement to dependency benefits. I therefore conclude that Defendant did not overpay Claimant by including her dependent grandchildren in its temporary total disability payments.
By recommencing its payment of dependency benefits long after having been notified that Claimant’s dependents no longer lived with her, beginning on July 1, 2010 Defendant did overpay Claimant, however. Its decision to do so defies explanation and evidences a degree of careless and negligent claims handling that I cannot condone. See, e.g., Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999). I will not approve any offset or credit on account of these overpayments, therefore.
I will allow Defendant to take an offset or credit on account of its overpayment from March 12, 2011 through April 5, 2011. This overpayment encompassed a period of three weeks and four days after Defendant’s discontinuance of benefits became effective. Measured from the date upon which the Department’s approval was issued, however, it extended for only eight days. I presume that even claimants would consider it preferable for a workers’ compensation insurance carrier to assume the risk of issuing a small overpayment if the alternative is to risk terminating benefits prematurely. That it be given an opportunity under §651 to recoup such an overpayment is a fair trade-off, one that adequately protects both parties’ interests.
Including dependency benefits, I calculate the amount of Defendant’s overpayment from March 12, 2011 through April 5, 2011 to be $1,403.57. I conclude that Defendant is entitled to a credit or offset in that amount against future workers’ compensation indemnity benefits payable on account of Claimant’s January 21, 2005 work-related injury.
ORDER:
Defendant’s Motion for Credit/Offset is hereby GRANTED in part and DENIED in part. Defendant is awarded a credit or offset totaling $1,403.57 against future workers’ compensation indemnity benefits payable on account of Claimant’s January 21, 2005 work-related injury.
DATED at Montpelier, Vermont this 4th day of April 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.
2
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.
3
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.
4
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.
5
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.
6
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.
7
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.
9
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.

James Pawley v. Booska Movers/Zurich North America (February 19, 2014)

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

James Pawley v. Booska Movers/Zurich North America (February 19, 2014)
And York Risk Services Group
STATE OF VERMONT
DEPARTMENT OF LABOR
James Pawley Opinion No. 02-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Booska Movers/Zurich North
America and York Risk Services For: Anne M. Noonan
Group Commissioner
State File Nos. CC-52769 and DD-00576
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 13, 2013
Record closed on December 16, 2013
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
David Berman, Esq., for Defendant Zurich North America
Erin Gilmore, Esq., for Defendant York Risk Services Group
ISSUES PRESENTED:
1. What is the appropriate average weekly wage upon which to base an award of
indemnity benefits to Claimant, either on account of his August 30, 2010 work
injury and/or on account of his August 5, 2011 work injury?
2. To what temporary partial disability benefits, if any, is Claimant entitled on
account of his August 30, 2010 work injury?
3. To what temporary partial disability benefits, if any, is Claimant entitled on
account of his August 5, 2011 work injury?
4. Does the maximum weekly compensation cap on temporary total disability
benefits apply as well to temporary partial disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Transactions by Payroll Item, August 30, 2010 through November
30, 2012
Claimant’s Exhibit 1: Wage statement (Form 25), 4/23/12
2
CLAIM:
Temporary partial disability benefits from February 6, 2011 through April 10, 2011 and from
December 18, 2011 through February 12, 2012, pursuant to 21 V.S.A. §646
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 has worked for Defendant Booska Movers (Booska) since 2003. He began as a
laborer, then graduated successively to local driver, straight truck interstate driver and,
since 2008, tractor-trailer interstate driver.
4. Even as an interstate tractor-trailer driver, Claimant’s duties include both long-haul trips
and local, in-state deliveries. A long-haul trip typically consists of numerous individual
jobs, and to complete all of them the driver might be on the road for as long as two or
three weeks. Long-haul trips are assigned to interstate drivers according to a senioritybased
rotation. Compensation is commission-based, with the driver receiving a
percentage of the line haul upon completion of each job.
5. If no long-haul jobs are available, and/or if Booska’s business needs require it, interstate
drivers may be assigned local moves instead. They are compensated for this work on an
hourly basis, and as a consequence these jobs are far less lucrative than long-haul
assignments. In Claimant’s case, at an hourly rate of between $16.00 and $17.00, the
difference in pay between long-haul and local work is substantial. For this reason,
though he acknowledged that his regular job duties include both types of assignments, he
much prefers long-haul assignments.
6. Booska pays its drivers on a weekly basis. The pay period runs from Wednesday to
Tuesday. Paychecks are issued every Friday, and include all wages earned, for both
completed long-haul jobs and local deliveries, during the most recent pay period.
Claimant’s August 2010 Work-Related Injury
7. On August 30, 2010 Claimant was in the midst of a long-haul trip when he began to
experience pain and swelling in his left calf. Upon his return to Vermont, he sought
treatment and was diagnosed with a deep vein thrombosis (DVT), or blood clot, in his
lower leg. Defendant Zurich North America (Zurich) was Booska’s workers’
compensation insurance carrier at the time; it accepted Claimant’s injury as compensable
and paid workers’ compensation benefits accordingly.
3
8. As treatment for his DVT, Claimant was placed on a six-month regimen of warfarin, an
anticoagulant, or blood thinning, medication. The goal of such treatment is both to stop
existing clots from growing larger and to prevent new ones from forming. Without such
treatment, the risk is that a clot will move to the lungs and cause a pulmonary embolism,
which can be life-threatening.
9. In addition to prescribing warfarin, in order to further reduce his risk of future DVTs,
Claimant’s treating providers (primarily Steven Rolleri, a nurse practitioner, and later Dr.
Zakai, both at the Fletcher Allen Health Care thrombosis clinic) strongly encouraged him
to wear compression stockings during the day and, while truck driving, to stop every two
hours and walk around for approximately ten minutes. Aside from these
recommendations, Claimant’s providers did not restrict him in any way from continuing
to work as a truck driver, on either long-haul or local assignments.
10. Claimant credibly testified that between August 30, 2010 and early February 2011,
treatment for his work-related DVT did not in any way affect the manner in which he was
assigned trucking jobs, whether long-haul or local. The contemporaneous medical
records reflect that during this time he was able to continue working full time and without
any difficulties.
11. According to Claimant’s recollection, he completed his six-month course of warfarin in
early February 2011. At that point, he testified, his doctors advised him to stay close to
the area so that if he experienced any problems as a result of discontinuing his blood
thinners they would be able to retest and treat him expeditiously. Claimant recalled that
he was given a note to that effect by his doctor, which he in turn gave to Booska’s
interstate dispatcher. As a consequence, according to Claimant he was assigned only
local deliveries for some ten weeks thereafter, until mid-April 2011 when his doctor
released him to return to interstate driving.
12. The contemporaneous medical records tell a different story. As to when Claimant
discontinued warfarin, I find that this likely occurred not in early February 2011 as he
alleged, but rather on February 28, 2011, as reported in the summary of his April 8, 2011
thrombosis clinic follow-up visit.1 Assuming Claimant began taking warfarin shortly
after first seeking medical treatment in early September 2010, this date would have been
consistent with a six-month course, as his treating providers had prescribed. Reports of
blood work done on February 9th and again on February 15, 2011 provide further
corroboration, as both indicate that Claimant was still taking Coumadin (the brand name
for warfarin) as of those dates.2
1 Joint Exhibit I, p. 000125.
2 Joint Exhibit I, pp. 000091 and 000097.
4
13. Nor do the contemporaneous medical records offer any corroboration for Claimant’s
assertion that he was restricted to local driving only between early February and April
2011. Specifically:
 At his December 28, 2010 follow-up visit to the thrombosis clinic, Claimant was
advised to anticipate a full complement of blood work and imaging studies in
March 2011, that is, after completing his six-month course of warfarin.3 At that
point, the office note reflects, recommendations would be made regarding
whether to continue anticoagulant medications for the long term or not. No
mention was made of any anticipated work restrictions in the interim.
 As noted above, Claimant underwent two blood draws to test his iron count in
mid-February 2011, but was not otherwise evaluated or treated at the thrombosis
clinic at any time during the month; nor is there any record of a note from his
treatment providers restricting him to local driving during this time.
 The medical note from Claimant’s final follow-up visit on April 8, 2011 makes no
mention of any prior restriction to local driving; to the contrary, in it Dr. Zakai
reports that, as previously recommended, Claimant was driving with his
compression garment, stopping every two to four hours and doing leg pumps
while in cruise control, all modifications that implicate long-haul rather than local
driving.
14. Claimant relies on Booska’s payroll records (Joint Exhibit II) to corroborate his assertion
that he was restricted to local job assignments only between February 6th and April 10th,
2011. The largest weekly paycheck he received during this period was for $688.00,
which is far less than what he typically received for a long-haul assignment.
Furthermore, many of the payroll entries reflect two amounts combined and paid via the
same check number, which according to the testimony of Booska’s general manager,
Adam Booska, indicates payment for a local job rather than a long-haul one. Thus,
though the evidence is not entirely clear, I find that Claimant likely did not undertake any
long-haul jobs during this period.
15. As for the reasons why this occurred, Mr. Booska credibly testified that the peak season
for long-haul movers is from May through October, and that typically there is more local
work to be done from January through March.4 I find from this credible evidence that the
fact Claimant did not receive any long-haul job assignments between February and April
2011 most likely was due to Booska’s business needs rather than any injury-related
medical limitation.
3 The report of these lab studies confirms that as of March 18, 2011 Claimant was no longer on Coumadin. Joint
Exhibit I, p. 000107.
4 This assertion is borne out as well by the payroll records for the following year, which indicate that from January
through March 2012 Claimant undertook substantially more local runs than long-haul ones.
5
16. Having completed his six-month course of anticoagulant medication, in April 2011 Dr.
Zakai considered whether to maintain Claimant on long-term warfarin. He concluded
that it would be difficult for Claimant to do so, given his profession as a long-haul driver.
Instead, he recommended that Claimant travel with a supply of Lovenox, (an injectable
anticoagulant), and that he contact the thrombosis clinic and/or seek medical attention
immediately if he experienced symptoms indicative of either another DVT or a
pulmonary embolism. In addition, Dr. Zakai encouraged Claimant to continue to adhere
to the previous recommendations he had been given – wearing his compression garment
while driving, stopping periodically to walk around and doing leg pumps while in cruise
control – with a follow-up evaluation in one year’s time.
17. Between April and August 2011 Claimant undertook both long-haul and local job
assignments without incident.
Claimant’s August 2011 Work-Related Injury
18. On August 5, 2011 Claimant returned to Vermont after a long-haul trip complaining of a
one-week history of chest pain and shortness of breath. Upon informing his supervisor,
he was sent first to Booska’s preferred provider and then immediately to the hospital
emergency room, where he was diagnosed with bilateral pulmonary emboli and admitted
overnight for anticoagulation. Defendant York Risk Services Group (York) was
Booska’s workers’ compensation insurance carrier at the time of this event.5
19. On August 10, 2011 Claimant presented to Dr. Zakai for follow-up. Noting that
Claimant had not been fully compliant with his prior recommendations, Dr. Zakai
impressed upon him how close he had come to a potentially fatal event. Given his
condition, Dr. Zakai determined that it would not be prudent for him to continue working.
When ordered by the Department to do so, York commenced paying temporary total
disability benefits accordingly.
20. Claimant remained totally disabled from working until at least December 16, 2011. On
that date, Emily Parenteau, a nurse practitioner at the thrombosis clinic, released him to
return to work full duty, with the proviso that if he found himself unable to keep up, a
more graduated return would be implemented.
21. Claimant credibly testified that after being released by Ms. Parenteau, he returned to
work for Booska for one day, December 18, 2011. Thereafter, Adam Booska informed
him that he needed a written release from his doctor, which he procured from Dr. Zakai
on December 21, 2011. The release clearly indicated that Claimant was able to work
with no physical activity restrictions.
5 York has disputed its responsibility for this event, on the grounds that it represents a recurrence for which Zurich
should remain liable. It has paid benefits pursuant to the Department’s interim order. The aggravation/recurrence
issue has been referred to arbitration pursuant to 21 V.S.A. §662(e), and therefore is not before me now.
6
22. Claimant acknowledged that notwithstanding Dr. Zakai’s full-duty release, after
December 18, 2011 he elected to take unused vacation time through the end of the year,
as otherwise he would have lost it. I find that he thus removed himself from Booska’s
work force for the period from December 19, 2011 through January 1, 2012 for reasons
unrelated to his work injury.
23. Claimant testified that he could not resume interstate driving until he underwent a
Department of Transportation physical and obtained an updated Medical Examiner’s
Certificate. Mr. Booska corroborated this testimony. According to the medical records,
the required certificate was issued on December 30, 2011 with an expiration date of
December 30, 2012. Other than a requirement that he drive with corrective lenses, the
certificate did not restrict Claimant in any way on account of either his DVTs or his use
of anticoagulant medication.
24. With both his doctor’s full duty release and the necessary Medical Examiner’s Certificate
in hand, I find that as of December 30, 2011 Claimant was fully able to resume interstate
driving.
25. Although a January 27, 2012 thrombosis clinic record reports that, according to Claimant,
Booska had been restricting him to local deliveries only, in his formal hearing testimony
Claimant could not recall whether this was accurate or not. In contrast, Mr. Booska
credibly testified that as soon as Claimant was medically cleared to return to work full
duty, he put him back into the long-haul rotation. It being the slow time of year, no
interstate work was available, however. I find that for this reason, and not on account of
his work-related DVTs, from January 2, 2012 through mid-February 2012 Claimant was
assigned only local delivery jobs.
Average Weekly Wage Referable to Claimant’s August 30, 2010 Work Injury
26. Mr. Booska submitted the following Wage Statement (Form 25) for the 26 weeks
preceding Claimant’s August 30, 2010 work-related DVT:6
6 According to Mr. Booska’s credible testimony, he used a zero in the “Number of Hours or Days Worked” column
to connote long-haul jobs; because these were paid on a commission basis, the company did not keep track of the
number of hours required to complete them. With the exception of Week 2, the amounts stated in the “Extras”
column were simply transferred over from the “Gross Wages” column; they do not represent additional payments
made.
7
27. Although the wage statement purports to reflect 26 weeks of wages, upon closer
inspection it contains only 22. This is because, though recorded separately, weeks 12 and
13, 14 and 15, 16 and 17 and 19 and 20 all actually reflect both local and long-haul wages
paid in the same week.
8
28. Combining the weeks that should not have been stated separately, the proper recitation of
Claimant’s weekly wages is as follows:
# Week
Ending
Number
of Hours
or Days
Worked
Gross Wages
1 8/27/10 30 480.00
2 8/20/10 17 + 0 272.00 + 2,867.24
3 8/13/10 0 3,256.36
4 8/6/10 0 3,392.60
5 7/30/10 0 4,761.14
6 7/23/10 17 272.00
7 7/16/10 0 2,033.69
8 7/9/10 8 128.00
9 7/2/10 0 6,126.26
10 6/25/10 22 352.00
11 6/11/10 0 3,040.00
12 6/4/10 20.5 + 0 328.00 + 2,433.60
13 5/28/10 0 + 12 761.34 + 192.00
14 5/21/10 12 + 0 192.00 + 3,004.37
15 5/14/10 0 1,687.83
16 5/7/10 0 + 3.5 5,329.78+ 56.00
17 4/30/10 38.75 620.00
18 4/23/10 38.75 620.00
19 4/16/10 55 1,000.00
20 4/9/10 53.5 1,034.00
21 4/2/10 46.5 796.00
22 3/26/10 43.5 724.00
29. From these entries, weeks 6 and 8 must be disregarded, as the hours stated were less than
one-half of Claimant’s normal workweek. The wages paid over the remaining 20 weeks
total $45,360.21, which yields an average weekly wage of $2,268.01.
9
Average Weekly Wage Referable to Claimant’s August 5, 2011 Work Injury
30. Mr. Booska submitted the following Wage Statement (Form 25) for the 26 weeks
preceding Claimant’s August 5, 2011 work-related DVT:
31. In this wage statement as well, Mr. Booska separately recorded the wages paid for local
and long-haul jobs undertaken during the same week. To correct the error, weeks 7 and 8
and 17 and 18 should have been combined.
10
32. In addition, comparing the wages stated on the wage statement with those reflected in
Booska’s payroll records (Joint Exhibit II) reveals the following omissions:
 The wages reportedly paid in week 3 (the week ending July 15, 2011) should have
included an additional $1,203.16 paid for long-haul jobs;
 The wages reportedly paid in week 13 (the week ending May 13, 2011) were
actually paid on May 20, 2011, and therefore should have been combined with the
wages reported for week 12;
 The wages actually paid for the week ending May 13, 2011 ($3,467.83) were
omitted;
 The wages paid in week 19 (the week ending April 8, 2011) were for local
delivery assignments, and therefore should have reflected 37.5 hours worked.
11
33. With these errors corrected, the proper recitation of Claimant’s weekly wages is as
follows:
# Week
Ending
Number
of
Hours
or Days
Worked
Gross Wages
1 7/29/11 0 7,541.77
2 7/22/11 0 1,309.25
3 7/15/11 13 + 0 221.00 + 1,203.16
4 7/8/11 42.25 718.25
5 7/1/11 0 4,792.00
6 6/24/11 0 4,654.27
7 6/17/11 3 + 0 48.00 + 3,846.93
8 6/10/11 0 5,770.39
9 6/3/11 24 384.00
10 5/27/11 0 3,317.28
11 5/20/11 10 + 0 160.00 + 1,544.20
12 5/13/11 0 3,467.83
13 5/6/11 0 407.86
14 4/29/11 0 3,183.67
15 4/22/11 0 4,699.98
16 4/15/11 22.5 + 0 360.00 + 603.07
17 4/8/11 37.5 600.00
18 4/1/11 41.75 682.00
19 3/25/11 29.5 472.00
20 3/18/11 36 576.00
21 3/11/11 35 560.00
22 3/4/11 42 688.00
23 2/25/11 30 480.00
24 2/18/11 30.25 484.00
25 2/11/11 29.5 472.00
26 2/4/11 ? 456.837
7 The wages stated for weeks 25 and 26 are derived from Booska’s payroll records (Joint Exhibit II), as these were
not included on the Wage Statement. It is unclear whether the wages paid for week 26 were for local or long-haul
jobs; if local, assuming Claimant’s hourly rate at the time of $16.00, they would have represented approximately
28.55 hours.
12
34. The wages paid over the 26 weeks stated total $53,703.74, which yields an average
weekly wage of $2,065.53.
Claimant’s Claim for Temporary Partial Disability Benefits Referable to his August 30, 2010
Work Injury
35. Claimant seeks temporary partial disability benefits referable to his August 30, 2010
DVT for the period from February 6, 2011 through April 15, 2011. According to
Booska’s payroll records, he was paid the following wages during these weeks:
Week Ending Gross Wages
Paid
2/11/11 472.00
2/18/11 484.00
2/25/11 480.00
3/4/11 688.00
3/11/11 560.00
3/18/11 576.00
3/25/11 472.00
4/1/11 682.00
4/8/11 600.00
4/15/11 963.07
Claimant’s Claim for Temporary Partial Disability Benefits Referable to his August 5, 2011
Work Injury
36. Claimant seeks temporary partial disability benefits referable to his August 5, 2011 DVT
for the period from December 18, 2011 through February 12, 2012. According to
Booska’s payroll records, he was paid the following wages during these weeks:
Week Ending Gross Wages
Paid
12/23/11 150.00
12/30/11 0
1/6/12 263.50
1/13/12 599.25
1/20/12 718.25
1/27/12 807.50
2/3/12 686.38
2/10/12 658.75
2/17/12 671.50
13
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. Claimant here seeks compensation for separate periods of alleged temporary partial
disability following each of his work-related DVTs. The disputed issues raised by his
claim involve the proper computation of his average weekly wage as well as his
entitlement to indemnity benefits for any portion of the periods identified.
Average Weekly Wage Calculation
3. Average weekly wages are calculated in accordance with 21 V.S.A. §650(a), which states
as follows:
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 . . . .
4. Workers’ Compensation Rule 15.4000 provides further guidance:
15.4100 The Wage Statement (Form 25) shall be filed and will include
the wages paid and/or due the claimant for each of the [26] weeks
preceding the injury not including the week of the injury.
. . .
15.4200 The following shall not be included when determining the gross
wages:
15.4210 Any week(s) during which the claimant worked and/or
was paid for fewer than one-half of his or her normally scheduled
hours.
14
5. Claimant raises two issues with respect to the proper calculation of his average weekly
wage. First, he argues that because his “primary position” was as a long-haul driver, only
those wages, and not the hourly wages attributable to his local delivery work, should be
included in computing his average wage. Second, he asserts that the average weekly
wage calculation should include the long-haul wages he was paid in the week of his
August 30, 2010 injury, as those earnings most likely reflect jobs that were completed in
the preceding week.
6. In support of his position on these issues, Claimant cites both to the language of §650(a)
and to the Supreme Court’s oft-quoted instruction that the Workers’ Compensation Act is
to be “liberally construed” in favor of injured workers. See, e.g., St. Paul Fire & Marine
Ins. Co. v. Surdam, 156 Vt. 585, 590 (1991); Montgomery v. Brinver Corp., 142 Vt. 461,
463 (1983). According to his interpretation, a liberal construction of the statute’s
requirement that average weekly wages be computed in such manner as is “best
calculated” to represent the injured worker’s average weekly earnings requires a
“flexible” approach. Not coincidentally, the flexibility for which he advocates here
would cause higher paying weeks to replace lower paying ones, thus significantly
inflating his average weekly wage.
7. I can find neither factual nor legal support for Claimant’s argument as to the first issue he
has raised. Factually, the undisputed evidence establishes that Claimant’s regular job
duties include both long-haul and local work. It is true, as Mr. Booska testified, that
Claimant was hired primarily for long-haul work. It is also true, as Claimant testified,
that because long-haul work pays more, he much prefers it over local work. Neither of
these facts changes the bottom line in any respect, however. As Mr. Booska and
Claimant each acknowledged, he was hired to perform both functions, and his average
weekly wage appropriately reflects that. Nothing in either the statute or the rule permits
any other interpretation. Wages are wages, no matter how earned.
8. Nor is there legal support for Claimant’s assertion that the wages he was paid during the
week of his injury should be included in his average weekly wage calculation. Certainly
a relationship exists between work that is performed (and completed) and wages that are
paid, but both statute and rule look to the latter event as the operative one, not the former.
The statute references “earnings,” which Merriam-Webster defines as “money received
as wages or gained as profit.” The rule refers to wages “paid and/or due,” which
according to the parties’ employment contract in this case did not occur until the Friday
following the immediately preceding Wednesday-to-Tuesday pay period. Under either
phrasing, the wages Claimant seeks to include fell in the week of his injury, not the week
before. By the plain language of both statute and rule they are excluded from the average
wage calculation.
15
9. “While the [Workers’] Compensation Act is to be construed liberally to accomplish the
humane purpose for which it was passed, a liberal construction does not mean an
unreasonable or unwarranted construction.” Herbert v. Layman, 125 Vt. 481, 485-86
(1966), cited with approval in King v. Snide, 144 Vt. 395, 404 (1984). The purpose of the
act, which represents a public policy compromise between employees and employers,
Gerrish v. Savard, 169 Vt. 468, 470 (1999) is not only to provide injured workers with an
expeditious, no-fault remedy, but also to provide employers with limited and determinate
liability. Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 441 (1980). Though
asserted under the guise of flexibility, the arguments Claimant has put forth to support his
claim for a higher average weekly wage would require me to interpret the statute in
whichever way results in the maximum recovery to the injured worker.8 In a system
intended to balance the interests of both employees and employers, I do not consider that
construing the statute liberally mandates such an obvious bias.
10. Consistent with Finding of Fact Nos. 29 and 34 supra, I conclude that the average weekly
wage referable to Claimant’s August 30, 2010 work injury is $2,268.01, and that the
average weekly wage referable to his August 5, 2011 work injury is $2,065.53.
Temporary Partial Disability Benefits Referable to Claimant’s August 30, 2010 Work Injury
11. Temporary disability benefits are awarded on the basis of an injured worker’s incapacity
for work. Bishop v. Town of Barre, 140 Vt. 564 (1982). Unlike permanency benefits,
which are intended to compensate for a probable future reduction in earning power,
temporary disability benefits are designed to counteract the injured worker’s immediate
or present loss of wages during the period of physical recovery. Orvis v. Hutchins, 123
Vt. 18, 22 (1962). Once the worker either regains full earning power or reaches an end
medical result, his entitlement to temporary disability benefits, whether total or partial,
ends. Id. at 24; 21 V.S.A. §§643 and 647.
12. Claimant’s claim for temporary partial disability benefits for the period from February 6,
2011 through April 10, 2011 rests on his assertion that he was medically precluded on
account of his August 30, 2010 DVT from undertaking any long-haul jobs during those
weeks. As I have already found, Finding of Fact No. 13 supra, the medical evidence
provides no support for this assertion. As a result, the most essential component of
temporary partial disability – a showing that the injured worker’s reduced earnings were
due to reduced earning power rather than other factors – is lacking. See, e.g., Knoff v.
Josef Knoff Illuminating, Opinion No. 25-12WC (October 15, 2012) (insufficient support
found for higher compensation rate where reduced average weekly wage was due to
personal choices or economic factors rather than injury-related sequellae); Griggs v. New
Generation Communications, Opinion No. 30-10WC (October 1, 2010) (same). For that
reason, I conclude that Claimant has not proven his entitlement to temporary partial
disability benefits for any of the weeks claimed during this period.
8 I presume that had Claimant been hired “primarily” as a local driver rather than a long-haul one, he would not now
be advocating for exclusion of his long-haul wages from the average weekly wage calculation. Similarly, I presume
that had the wages he was paid in the week of his injury been lower, he would not be advocating that they be
included in place of another, higher paid week.
16
Temporary Partial Disability Benefits Referable to Claimant’s August 5, 2011 Work Injury
13. Claimant’s claim for temporary partial disability benefits for the period from December
18, 2011 through February 12, 2012 also lacks the necessary factual support. The more
credible evidence establishes that, after successfully returning to work for one day on
December 18, 2011, Claimant voluntarily removed himself from the workforce from
December 19, 2011 through January 1, 2012 so as to make use of accumulated annual
leave time. His reduced earnings during that period resulted not from any injury-related
disability, but rather from his own personal choice, therefore. For that reason, no
temporary partial disability benefits are owed.
14. Similarly, the more credible evidence establishes that Claimant’s reduced earnings from
January 2, 2012 through February 12, 2012 also were not caused by any injury-related
disability, but rather resulted from fluctuations in Booska’s business needs and the
scarcity of long-haul jobs during the winter months. Again, therefore, the necessary
causal link between the work injury and the period of reduced earnings is lacking. I thus
conclude that no temporary partial disability benefits are owed for this period either.
Maximum Cap on Temporary Partial Disability Benefits
15. In their briefs, the parties have raised a final disputed issue – whether temporary partial
disability benefits payable under 21 V.S.A. §646 are subject to the same maximum
weekly cap as is applied under §642 to temporary total disability benefits. Having
concluded that Claimant is not entitled to temporary partial disability benefits for either
of the periods under consideration, it is not essential that I address this issue. However,
should Claimant appeal and prevail, many of the weeks claimed will exceed the cap, and
for that reason it is instructive to clarify the Department’s position.
16. The temporary total disability section of the statute, §642, reads as follows:
Where the injury causes total disability for work, during such disability . .
. 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.9
[Emphasis supplied].
9 The maximum and minimum weekly compensation amounts are determined annually on July 1st. 21 V.S.A.
§§601(18) and (19).
17
17. The temporary partial disability section, §646, makes no mention of either the maximum
or minimum weekly compensation. It reads:
Where the disability for work resulting from an injury is partial, during the
disability . . . the employer shall pay the injured employee a weekly
compensation equal to two-thirds of the difference between his or her
average weekly wage before the injury and the average weekly wage
which he or she is able to earn thereafter.
18. The temporary total disability section of the statute thus includes specific language to
effectuate a cap on weekly benefits, while the temporary partial disability section does
not. “Where the Legislature includes particular language in one section of a statute but
omits it in another section of the same act, it is generally presumed that the Legislature
did so advisedly.” In re Munson Earth Moving Corp., 169 Vt. 455, 465 (1999)); see also,
Archer v. Department of Employment Security, 133 Vt. 279, 281 (1975) (court “not at
liberty to read into the statute provisions which the legislature did not see fit to
incorporate”), quoted with approval in Longe v. Boise Cascade Corp., 171 Vt. 214, 223
(2000). Given the plain language of both sections, I cannot discern a basis for concluding
that the Legislature intended anything other than what it said – that temporary total
disability benefits are capped, but temporary partial disability benefits are not.
19. Defendants argue that unless the cap is presumed to apply to both types of benefits, a
claimant who is only partially disabled from working would be able to receive more in
weekly compensation payments than one who is totally disabled, a result they
characterize as illogical. I disagree. There is nothing illogical about encouraging an
injured worker to return to work as soon as he or she is medically cleared to do so, in
whatever limited initial capacity is deemed appropriate. Using temporary partial
disability benefits to help subsidize a claimant’s return to part-time work is an essential
strategy in the workers’ compensation arena, to the benefit of employees and employers
alike. See “Best Practices for Employers,” www.labor.vermont.gov/Businesses/Workers’
Compensation. Were there a cap on temporary partial disability benefits, high wage
earners in particular would face a disincentive to returning to work, because doing so
would yield no additional financial reward than remaining at home. I doubt the
Legislature would condone such a result.
20. Consistent with both the plain language of the statute and the Legislature’s presumed
intent, I conclude that temporary partial disability benefits are not subject to the
maximum weekly cap applicable to temporary total disability benefits.
Summary
21. For the reasons stated above, I conclude that Claimant has failed to establish his
entitlement to temporary partial disability benefits for either of the periods claimed.
22. As Claimant has failed to prevail on his claim for benefits, he is not entitled to an award
of costs or attorney fees.
18
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for temporary
partial disability benefits for the period from February 6, 2011 through April 10, 2011 and/or for
the period from December 18, 2011 through February 12, 2012 is hereby DENIED.
Dated at Montpelier, Vermont this 19th day of February 2014.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

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