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 A. B. v. Peerless Insurance (April 16, 2008)

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A. B. v. Peerless Insurance (April 16, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. B. Opinion No. 16-08WC
By: Phyllis Phillips, Esq.
v. Hearing Officer
Peerless Insurance Co. For: Patricia Moulton Powden
Commissioner
State File No. Y-51457
OPINION AND ORDER
Hearing held in Montpelier on January 14, 2008.
APPEARANCES:
Frank Talbott, Esq. for Claimant
Bonnie Shappy, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant suffered a compensable work-related injury on October 18, 2005.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit 1: John Carp letter, January 19, 2007
Claimant’s Exhibit 2: Mike Derway statement, September 22, 2006
Claimant’s Exhibit 3: Deposition of James Howe, M.D., January 24, 2008
Defendant’s Exhibits:
Defendant’s Exhibit A: Curriculum Vitae, H. James Forbes, M.D.
Defendant’s Exhibit B: 5 photographs of Claimant’s worksite
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CLAIM:
1. Temporary total, temporary partial and/or permanent partial disability benefits under 21 V.S.A. §§642, 646 and 648
2. Medical benefits under 21 V.S.A. §640(a)
3. Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings Claimant has been an employee as defined under Vermont’s Workers’ Compensation Act.
2. At all times relevant to these proceedings Defendant has been the workers’ compensation insurance carrier for The Offset House, Claimant’s employer as defined under Vermont’s Workers’ Compensation Act.
3. Claimant has worked at The Offset House for thirty-eight years, the past sixteen as the bindery and finishing manager. He is responsible for overseeing the process by which books, brochures, pamphlets and other printed materials are bound and finished. Claimant’s job includes both supervising employees and helping to set up machines based on the customer’s finished product specifications. Claimant does a significant amount of walking throughout the plant, both to and from his office and on the production floor.
4. Claimant’s office is located in a corner of the plant floor. To exit it he has to step out his doorway, make a quick left through an adjacent office door and then a quick right onto the production floor. Both Claimant’s office and the adjacent office are carpeted; the production floor is concrete. The floor is level throughout.
5. On the morning of October 18, 2005 Claimant was assisting in setting up a production job. An employee was waiting for some information as to the set-up and Claimant went into his office to retrieve it from his computer. Claimant was walking somewhat hastily, as he knew the employee was waiting for him. Claimant exited his office and made the quick left through the adjacent office door. As he turned to make the quick right onto the production floor, his left knee twisted and gave out. Claimant immediately felt excruciating pain. He managed not to fall to the ground, but instead leaned against the wall and limped back into his office. Claimant called his supervisor and told her what had happened, then asked a co-employee to retrieve his car from the parking lot and bring it around to the shipping area so that he could drive himself home.
6. Claimant did not trip or slip on the floor. His left knee simply gave out as he twisted to make the quick right turn into the production area.
7. Claimant has a prior medical history of osteoarthritis in his left hip, but no prior medical history of any left knee pain or symptoms.
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8. Claimant began treating for his injury the next day, October 19, 2005, first with his primary care physician and later with Dr. Kaplan, an orthopedic surgeon. His symptoms included swelling, bruising and pain, both aching and stabbing, primarily in the back of his knee. An MRI scan on November 6, 2005 revealed a variety of abnormalities, including both medial and lateral meniscus tears, some mild degenerative changes and a probable bone contusion in the medial tibial plateau.
9. Claimant’s symptoms failed to respond to conservative care. At Dr. Kaplan’s recommendation, he underwent arthroscopic surgery to repair the meniscal tears on February 9, 2006. Following the surgery Claimant’s symptoms abated somewhat. He no longer experienced stabbing pain in the back of his knee, but the aching, throbbing pain continued, as did the swelling. The pain was bad enough that while on a pre-planned cruise with his wife in early March 2006, Claimant had to limit his activities and even purchased a cane to help ease the stress on his knee. Claimant testified that the pain was a dull, persistent ache, and that it kept him from sleeping at night, both before Dr. Kaplan’s surgery and thereafter.
10. By July 2006 Claimant was complaining to Dr. Kaplan of pain “all over” his knee. A repeat MRI study revealed advanced degenerative changes within the medial tibiofemoral compartment, findings that were suspicious for osteonecrosis. Osteonecrosis, also known as avascular necrosis, is an inflammation in the bone marrow that occurs when the blood circulation to a bone is disrupted, as can happen with a bone contusion.
11. At his primary care physician’s referral, Claimant obtained a second opinion with another orthopedic surgeon, Dr. Howe, in September 2006. Dr. Howe is board certified in orthopedic surgery, and specializes in treating patients with arthritis.
12. Dr. Howe diagnosed avascular necrosis of the left medial femoral condyle, causally related to the twisting injury Claimant suffered at work on October 18, 2005. As treatment, he recommended a total knee replacement, which Claimant underwent in October 2006.
13. In Dr. Howe’s opinion, Claimant suffered from mild osteoarthritis in his left knee prior to the October 2005 injury, and probably had some degenerative changes in his meniscus as well. Both of these conditions were totally asymptomatic and neither was severe enough to be a likely cause of Claimant’s injuries. According to Dr. Howe, when Claimant twisted his knee while turning right to exit his office in October 2005, he suffered an acute injury of significant magnitude, enough to cause not only meniscal tears but also a bone contusion. Dr. Howe believes that the bone contusion was the inciting insult that led to avascular necrosis, the treatment for which was Claimant’s total knee replacement.
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14. In support of his opinion Dr. Howe found significant the fact that the surgical repair of the meniscal tears in Claimant’s knee alleviated the stabbing pain he had been experiencing, but not the aching, throbbing pain. That pain Claimant continued to experience, not only with activity, but also at night. According to Dr. Howe, night pain is the sine qua non of avascular necrosis. Typically, patients with osteoarthritis or a meniscal tear experience pain during the day, when activity causes them to put force on their knee, but have fewer symptoms at night, when their knee is at rest. In contrast, avascular necrosis is painful all of the time, day and night, regardless of activity.
15. At Defendant’s request, in February 2007 Claimant underwent an independent medical evaluation with Dr. James Forbes, a board-certified orthopedic surgeon. In Dr. Forbes’ opinion, Claimant suffered an acute rotational injury to his left knee on October 18, 2005 that resulted in both medial and lateral meniscus tears. In that respect, his opinion is the same as Dr. Howe’s.
16. Contrary to Dr. Howe’s opinion, however, Dr. Forbes believes that Claimant’s avascular necrosis was not caused by the October 2005 injury, but rather was totally coincidental. Dr. Forbes cited three factors in support of this opinion: first, that MRI evidence of avascular necrosis did not appear until some nine months following the October 2005 injury; second, that Claimant’s knee symptoms improved for a period of time after his meniscal tears were surgically repaired; and third, that Claimant had a medical history of gout and diabetes, both risk factors for avascular necrosis.
17. As to the lack of evidence of avascular necrosis on the first MRI, Dr. Howe testified that at three weeks post-injury the condition very well might not have developed to the point of being recognizable on an MRI scan yet. The first MRI scan did show a contusion of the tissue in the area, which in itself suggested the magnitude of the injury to Claimant’s knee, according to Dr. Howe. Furthermore, although it is true that Claimant suffers from diabetes and has a prior medical history of gout, Dr. Howe did not list either of these conditions as significant risk factors for avascular necrosis. Last, as was noted above, Claimant testified credibly that while the stabbing pain in his knee abated somewhat after arthroscopic surgery, his other symptoms persisted, including his night pain.
18. Claimant testified that since the total knee replacement his symptoms have largely resolved. He still experiences occasional pain when he twists or turns his knee, but no longer suffers the persistent throbbing ache he felt previously.
19. The medical records reflect that when asked in patient questionnaires whether his injury was work-related, Claimant initially responded that it was not. It was not until July 2006 that Claimant spoke with his employer’s comptroller and asked that a workers’ compensation claim be filed. Claimant testified credibly that as part of the management team at The Offset House he was aware of the impact that his injury might have on his employer’s workers’ compensation insurance costs, and he was reluctant to be the cause of any increase in this expense. For that reason, he delayed filing a claim until he realized that his knee required further treatment and that his out-of-pocket medical costs were becoming more expensive than he felt capable of absorbing.
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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. Claimant’s argument in the current claim is straightforward. He was at work, fulfilling his job responsibilities, when he turned a corner and twisted his left knee. In doing so, he suffered both meniscal tears and a bone contusion. Claimant contends that the latter injury was the “inciting insult” that later led to avascular necrosis and the need for a total knee replacement. Claimant argues that because he was at work when these injuries occurred, and because they would not have occurred “but for” the conditions and obligations of his employment, they are work-related and compensable.
3. In response, Defendant argues that Claimant’s injury resulted from a weakness that was purely personal to him, a so-called idiopathic injury. For such a claim to be compensable, Defendant argues, Claimant must show that his employment contributed to the injury by placing him in a position of “increased danger.” J.C. v. Experian Information Solutions, Opinion No. 30-07WC (October 30, 2007). Defendant argues that Claimant has failed to make such a showing and that therefore his injury is not compensable.
4. To establish a compensable claim under Vermont’s workers’ compensation law, a claimant must show both that the accident giving rise to his or her injury occurred “in the course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161 Vt. 213, 214 (1993); 21 V.S.A. §618.
5. An injury occurs in the course of employment “when it occurs within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964). There is no dispute that in this claim Claimant was on duty, at work and fulfilling his employment responsibilities when the injury occurred. Therefore, the first prong of the compensability test is met.
6. As to the “arising out of” component, Vermont adheres to the “positional risk” doctrine, which uses a “but for” test for meeting the second prong of the compensability test. Thus, an injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 A. Larson, Workmen’s Compensation Law §6.50 (1990) (emphasis in original).
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7. Putting the two prongs of the compensability test together, “[o]rdinarily, if an injury occurs during the ‘course of employment,’ it also ‘arises out of it,’ unless the circumstances are so attenuated from the condition of employment that the cause of injury cannot reasonably be related to the employment.” Miller, supra at 215, citing Shaw, supra at 598.
8. As the Supreme Court explained in Miller, the more liberal positional risk doctrine adopted in this state reflects the broad, remedial purposes of Vermont’s workers’ compensation law. Miller, supra at 214. The positional risk analysis adopted here differs from the “neutral risk” reasoning applied in many other states. In order to satisfy the “arising out of” component under a “neutral risk” analysis, the conditions of employment must expose the employee to a risk of injury “greater than that to which the general public is exposed” before compensability can be established. See, Illinois Consolidated Telephone Co. v. Industrial Commission, 732 N.E.2d 49, 56-57 (2000)(Rakowski, J., concurring). No such “greater-than-the-general-public” type exposure is required in a positional risk state. See 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law §7.04(1) at 7-15 (1999), cited in Illinois Consolidated Telephone Co., supra.
9. Applying the positional risk doctrine to the current claim, it was the conditions and obligations of Claimant’s employment – having to turn quickly to his right as he exited his office – which placed him in the position where he was injured. That Claimant might have injured his knee while making a similarly quick right turn in a non-work-related setting is irrelevant. Singer v. S.B. Collins/Jolly Associates, Opinion No. 32-04WC (August 19, 2004). He did it at work, because his work responsibilities required him to traverse that path and make that turn. Positional risk analysis needs no more than that.
10. Defendant makes much of the fact that there was no exceptional work activity or abnormal work condition to explain why Claimant’s knee twisted when it did – no defect in the floor, no uneven surface and nothing upon which to slip or trip. Defendant contends that without such unusual circumstances for Claimant’s knee to give out when it did must necessarily have been due to an idiopathic weakness instead, one purely personal to Claimant. This argument is unconvincing, both medically and legally.
11. Medically, the evidence established that while Claimant did have some pre-existing osteoarthritis and degenerative changes in his knee, these conditions were entirely asymptomatic and not severe enough in themselves to cause his knee to twist and give out when it did. The legal conclusion that must follow from this medical evidence is that Claimant’s injury cannot be deemed idiopathic because it did not result from a purely personal weakness. Rather, it represented a confluence of both personal and employment risks. The personal risk was a pre-existing condition that might have predisposed Claimant to what Dr. Forbes described as an acute rotational injury. The employment risk was the requirement that in order to traverse the route from his office to the production floor Claimant had to make a quick right turn, thus necessitating the rotation that in fact occurred.
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12. An injury caused by the concurrence of both personal and employment risks is not idiopathic and does not merit special consideration under that doctrine. See Dubuque v. Grand Union Co., Opinion No. 34-02WC (August 20, 2002)(stress personal to claimant combined with fall down stairs, a necessary condition of employment, to produce compensable claim under positional risk analysis). There is no requirement that the risk contributed by the employment be one of increased danger, therefore, or of any greater magnitude than what is required by the more lenient positional risk analysis. So long as the conditions and obligations of Claimant’s employment placed him in the position to be injured – and I conclude that they did – the arising out of component necessary to establish compensability is satisfied. Singer, supra; Shea v. Worcester Insurance Co., Opinion No. 13-02WC (March 13, 2002).
13. The remaining issue to be decided is whether there is sufficient medical evidence to connect causally Claimant’s avascular necrosis – the condition that ultimately led to his total knee replacement – to the October 18, 2005 injury. This requires consideration of Dr. Howe’s and Dr. Forbes’ contrary medical opinions. In such situations, the Department traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
14. Dr. Howe was Claimant’s treating physician. In formulating his opinion, he considered the fact that Claimant’s symptoms did not improve appreciably after his meniscal tears were surgically repaired, particularly his night pain. He also noted the significance of the bone contusion evident on the first MRI. He credibly explained why it was likely that an injury of significant magnitude to cause such tissue damage probably was the “inciting insult” leading ultimately to avascular necrosis. By thus taking into account all of the relevant medical facts Dr. Howe’s opinion was clear, thorough and objectively supported.
15. In contrast, Dr. Forbes’ opinion was based in part on his inaccurate assumption that Claimant’s symptoms abated significantly following the surgery to repair his meniscal tears. In the end, Dr. Forbes concluded that it was simply coincidental for Claimant to have developed avascular necrosis when he did. Rarely is a medical opinion that relies on coincidence as its strongest linchpin persuasive, and it does not convince me here.
16. I conclude, therefore, that Dr. Howe’s opinion as to the causal relationship between Claimant’s October 18, 2005 injury and the subsequent development of avascular necrosis in his left knee is the most credible.
17. I find that Claimant’s October 18, 2005 injury did not result from an idiopathic condition but rather arose out of and in the course of Claimant’s employment. All of the natural consequences that flow from that injury are compensable, including both the treatment necessitated by his meniscal tears and that required to address the avascular necrosis that subsequently developed.
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18. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $945.30 and attorney’s fees totaling $7,029.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. All workers’ compensation benefits associated with Claimant’s October 18, 2005 injury, including both indemnity and medical benefits, in amounts to be proven; and
2. Costs of $945.30 and attorney’s fees of $7,029.50.
DATED at Montpelier, Vermont this 16th day of April 2008.
__________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

M. M. v. Comet confectionery (December 4, 2007)

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

M. M. v. Comet confectionery (December 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. M. Opinion No. 32-07WC
v. By: Phyllis Phillips, Esq.,
Contract Hearing Officer
Comet Confectionery
For: Patricia Moulton Powden
Commissioner
State File No. K-09632
OPINION AND ORDER
Claim submitted on briefs without evidentiary hearing.
APPEARANCES:
William Skiff, Esq. for Claimant
J. Justin Sluka, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant is entitled to indemnity benefits beginning on March 18, 2007 as a consequence of her compensable knee injury and if so, at what compensation rate.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
CLAIM:
Temporary total disability benefits under 21 V.S.A. §642
Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. Judicial notice is taken of all forms in the Department’s file in this matter.
2. Claimant was at all relevant times an employee as defined under Vermont’s Workers’ Compensation Act.
3. Defendant was at all relevant times an employer as defined under Vermont’s Workers’ Compensation Act.
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4. On November 8, 1996 Claimant suffered a work-related injury to her right knee when she tripped and fell down some stairs. Claimant also dislocated her left shoulder in the fall.
5. At the time of this injury Defendant’s workers’ compensation insurance carrier was USF&G. USF&G accepted Claimant’s injury as compensable and paid benefits accordingly.
6. At the time of this injury Claimant’s average weekly wage was $673.30, resulting in a compensation rate of $448.87. Claimant’s weekly net income at the time of this injury was $519.80.
7. As a result of this injury Claimant was temporarily totally disabled from November 9, 1996 through April 11, 1997. She returned to work part-time on April 14, 1997 and full-time on June 7, 1997. USF&G paid the appropriate temporary total and temporary partial disability benefits during these periods. In addition, upon Claimant’s return to work full-time USF&G paid permanent partial disability benefits to reflect a 4% whole person impairment referable to Claimant’s right knee and left upper extremity injuries.
8. Claimant treated with Bruce Foerster, M.D., an orthopedic surgeon, for her right knee injury. In July 1998 she underwent arthroscopic surgery. Following this surgery she was unable to work until November 1998. USF&G accepted the surgery as related to Claimant’s November 8, 1996 injury and paid temporary total disability benefits accordingly. At the conclusion of Claimant’s disability period she returned to work for Defendant.
9. In October 2001 Claimant underwent a second right knee surgery. Following this surgery she was unable to work until February 2002. Again, USF&G accepted the surgery as related to Claimant’s original injury and paid workers’ compensation benefits accordingly. Again, at the conclusion of Claimant’s disability period she returned to work for Defendant.
10. The record does not reflect the average weekly wage calculations USF&G used to determine Claimant’s compensation rate for the temporary total disability benefits it paid after either the July 1998 or October 2001 knee surgeries.
11. On August 25, 2004 Claimant suffered a new injury to her left shoulder causally related to her work for Defendant.1 This injury was not related in any way to the injury Claimant had suffered in November 1996. USF&G was no longer on the risk at the time of this new injury. Instead, Gallagher Bassett Services, Inc. was the third-party administrator responsible for adjusting Claimant’s claim for workers’ compensation benefits associated with it.
1 Claimant’s employer at this time was Barry Callebaut, U.S.A., the new owner of Comet Confectionery.
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12. Claimant treated with Robert Beattie, M.D., an orthopedic surgeon, for her left shoulder injury. She underwent three surgeries as treatment for this injury – the first on April 8, 2005, the second on November 8, 2005 and the last on September 18, 2006. Gallagher Bassett accepted all of these surgeries as causally related and paid benefits accordingly.
13. Defendant’s time sheets reflect that after Claimant’s first shoulder surgery she did not work at all from April 8, 2005 until June 14, 2005. Thereafter she worked part-time from June 15, 2005 until mid-August 2005, when she returned to work full-time. Claimant stopped working again on November 8, 2005 when she underwent her second shoulder surgery. She has not returned to work since that time.
14. Following Claimant’s first shoulder surgery in April 2005, Gallagher Bassett paid temporary total disability benefits based upon an average weekly wage of $717.78 and weekly compensation rate of $478.52. Although the record does not specifically reflect it, presumably Gallagher Bassett began paying temporary total disability benefits again following Claimant’s second shoulder surgery in November 2005. These benefits were terminated on the basis of end medical result on March 15, 2007. With cost of living adjustments, Claimant’s compensation rate at that time was $509.12.
15. On March 10, 2006 Defendant terminated Claimant’s employment on the grounds that she had exhausted all available leave time and still was unable to return to work.
16. On April 13, 2006 Dr. Beattie performed a follow-up examination of Claimant’s left shoulder. As to Claimant’s employment status, Dr. Beattie reported as follows:
[Claimant] notes that her job was terminated at Barry Callebaut. She does have a nurse case manager, Nancy Cousino, with her. She has been encouraged to pursue a job search.
Dr. Beattie noted that Claimant continued to report symptoms in her elbow, arm, shoulder and neck, which appeared to worsen with increased physical therapy. In light of these persistent symptoms, he referred Claimant for an MRI of her cervical spine. Notably, he did not release Claimant to return to work, either full- or modified-duty.
17. Dr. Beattie next examined Claimant’s left shoulder in May 2006. Claimant reported that she had discontinued physical therapy and felt much better. With that improvement in mind, Dr. Beattie advised that Claimant could return to work with restrictions pertaining to her shoulder and upper extremities.
18. Apparently Claimant’s left shoulder pain did not continue to improve, but rather worsened to the point where she required yet another surgery, in September 2006, performed by John Macy, M.D.
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19. The record does not reflect the extent to which Claimant sought work within Dr. Beattie’s May 2006 restrictions between the time when he released her to do so and her September 2006 surgery. It appears that her temporary disability benefits continued unabated during this period, however. Presumably Gallagher Bassett determined that the combination of her work search efforts, if any and her medical condition merited that these benefits not be stopped.
20. Claimant’s right knee symptoms never fully abated following her 2001 surgery, but instead gradually worsened. In April 2006 she resumed treatment with Dr. Foerster, complaining of progressively increasing pain, swelling and episodes of catching and locking. Dr. Foerster recommended a partial knee replacement, but noted, “We will obviously have to time this appropriately based on the fact that she still has significant problems with the left shoulder.” For that reason, knee surgery was not immediately scheduled but rather was postponed.
21. Claimant was determined to be at end medical result for her left shoulder injury on March 7, 2007 and she was released to return to work without restrictions as of that date. Her temporary total disability benefits were terminated on March 17, 2007.
22. On March 29, 2007 Claimant met with Dr. Beattie to discuss the right knee replacement surgery that had been on hold since April 2006. Dr. Beattie completed an “Employee/Employer Medical Status Form” on that date in which he took Claimant “off work” pending the surgery.
23. Claimant underwent right knee replacement surgery on May 14, 2007. USF&G accepted responsibility for the medical expenses associated with this surgery but denied Claimant’s claim for temporary disability benefits during her recovery period on the grounds that Claimant had “no wages in the twelve weeks preceding the disability.”
CONCLUSIONS OF LAW:
1. The sole issue to be decided in this claim is whether Claimant is disqualified from receiving temporary disability benefits related to her May 2007 knee surgery because she did not earn any wages in the twelve preceding weeks. Defendant argues that temporary disability benefits are intended to replace wages a claimant otherwise would have earned but for his or her injury-related disability, and if there are no wages being earned then there is nothing to be replaced. Claimant argues that the temporary disability benefits she was receiving on account of her shoulder injury in the twelve weeks prior to her knee surgery were themselves “wage replacement” benefits and therefore should be counted as “wages.”
2. An injured worker is entitled to temporary total disability benefits “where the injury causes total disability for work.” 21 V.S.A. §642. These benefits are payable “during such disability,” id., and cease “after such disability ends.” 21 V.S.A. §643.
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3. With this statutory language in mind, it is important to determine what exactly is being disputed in this claim and what is not. Defendant does not dispute that Claimant suffered a compensable injury to her right knee in 1996, that the May 2007 surgery was causally related to and necessitated by that injury, and that as a result of the surgery Claimant was totally disabled from working for a period of time thereafter. Defendant must be deemed to have conceded, therefore, that Claimant has met the threshold requirements of §642 and is entitled – theoretically, at least – to temporary total disability benefits.
4. What Defendant does dispute is the means by which such temporary total disability benefits are to be calculated and whether, once calculated, they amount to anything greater than zero.
5. Defendant correctly asserts that temporary total disability benefits are designed to be “wage replacement” benefits. Their purpose is to compensate for an injured worker’s current inability to work; they are calculated, therefore, with reference to his or her present earning capacity. Orvis v. Hutchins, 123 Vt. 18, 22 (1962).
6. Under Vermont’s statutory scheme, for the purposes of calculating temporary disability benefits an injured worker’s present earning capacity is determined by reviewing his or her “average weekly earnings during the twelve weeks preceding” the injury. 21 V.S.A. §650(a). Thus, our workers’ compensation law assumes that the most accurate way to estimate a worker’s present earning capacity is to look back at his or her most recent past earnings.
7. In most cases, the period of an injured worker’s temporary total disability immediately follows his or her injury. Sometimes, however, the worker does not become disabled from working until some time after the initial injury. In addition, sometimes the worker’s inability to work does not move forward in one uninterrupted period, but rather occurs at separate intervals. As to these situations, the statute states as follows:
When temporary disability, either total or partial, 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. For the purpose of computation, the adjustments shall be based upon the compensation received by a person in the same grade employed in the same class of employment and in the same district.
21 V.S.A. §650(c).
8. Thus, §650(c) mandates that a claimant’s compensation rate for a successive period of disability can never fall below the rate paid for his or her initial period of disability. It can be higher, but it can never be lower. V.S. v. Kenametal, Opinion No. 19-07WC (August 2, 2007), citing Bollhardt v. Mace Security International, Inc., Opinion No. 51-04WC (December 17, 2004).
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9. Section 650(c) clearly applies in this case. Claimant has suffered four distinct periods of disability causally related to her original 1996 injury – one immediately following the accident itself and one after each of the three surgeries she has undergone – July 1998, October 2001 and May 2007. According to §650(c), her compensation rate for each of these periods of disability “must be adjusted to reflect any increases in wages or benefits prevailing at that time.”
10. Defendant argues that the Department has carved out an exception to §650(c) and has declined to award temporary disability benefits in situations where the claimant has not worked at all prior to the most recent period of disability and therefore has no wages to replace. J.K. v. Joe Knoff Illuminating, Opinion No. 39-05WC (July 12, 2005); J.P. v. Pollution Solutions of Vermont, Opinion No. 23A-01WC (October 5, 2001); Plante v. Slalom Skiwear, Opinion No. 19-95WC (May 24, 1995). The cases Defendant cites in support of this position, however, are either inapposite or distinguishable from the current claim.
11. In J.P. v. Pollution Solutions of Vermont the claimant was denied temporary disability benefits not because he had no wages in the twelve weeks preceding his claimed periods of disability, but rather because there was insufficient medical evidence to support any disability from working during those times. In J.K. v. Joe Knoff Illuminating admittedly the claimant had no wages in the twelve weeks preceding his disability, but that was because he had sold his business and was receiving profits, not wages, instead. Last, in Plante v. Slalom Skiwear, the Commissioner specifically found that the claimant’s unemployment in the twelve weeks preceding her disability was “due to reasons other than her work-related injury.”
12. In each of the cases cited by Defendant, therefore, the claimants’ injuries could not be said to have caused their “total disability for work,” 21 V.S.A. §642, because they already had opted out of paid employment situations voluntarily, for their own personal reasons rather than because of any medically established disabling condition. Under these circumstances, to award them wage replacement benefits would have amounted to an undeserved windfall, one inconsistent with the statute’s intent. See generally, 5 Larson’s Workers’ Compensation Law §93.02 and cases cited therein.
13. In contrast, it is significant that in the current claim Claimant’s decision not to work in the twelve weeks preceding her May 2007 disability cannot be said to have been voluntary at all. Rather, it was medically necessary as a consequence of her work-related shoulder injury. It is reasonable to presume that were it not for that injury Claimant would have been working – to the same extent that she had in the past – up until March 29, 2007 when her treating physician disabled her on account of her right knee injury. SeeWood v. Fletcher Allen Health Care, Opinion No. 15R-98WC (May 5, 1998)(temporary disability benefits awarded where surgery for work-related injury was delayed on account of claimant’s pregnancy because it was reasonable to assume that claimant would have continued to work throughout her pregnancy if not for the work injury). Such a presumption is consistent both with the remedial character of Vermont’s Workers’ Compensation Act and with the liberal construction it is to be given in order to “‘achieve its manifest purpose.’” Wood, citing Morrisseau v. Legac, 123 Vt. 70, 77 (1962).
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14. I find, therefore, that it would be unfair to penalize Claimant for having earned no wages in the twelve weeks prior to her most recent period of disability where her failure to do so resulted from a disabling work-related medical condition rather than a voluntary decision on her part.2 I find that it is appropriate to determine Claimant’s average weekly wage with reference to §650(c).
15. The record establishes that Claimant’s average weekly wage for the twelve weeks prior to her initial injury and period of disability was $673.30. No evidence was introduced, however, as to Claimant’s average weekly wage for the twelve weeks preceding either the July 1998 or October 2001 disability periods. Nor is there any evidence as to “the compensation received by a person in the same grade employed in the same class of employment and in the same district” – the wages of a comparable employee, in other words – during the twelve weeks prior to the most recent period of disability, which I find began on March 29, 2007. See Cote v. Vermont Transit and St. Johnsbury Academy, Opinion No. 33-96 (June 19, 1996). In accordance with §650(c), the appropriate compensation rate should be based on whichever of the above periods yields the highest average weekly wage, subject to the applicable weekly net income cap imposed by the statute in effect at the time of Claimant’s original injury. Bollhardt v. Mace Security International, Inc., supra.
16. Claimant has submitted a request under 21 V.S.A. §678 and Workers’ Compensation Rule 10.0000 for costs totaling $52.66 and attorney’s fees totaling $2,871.00. I find that Claimant has substantially prevailed on her claim and that the costs and fees requested are reasonable.
2 Under the circumstances of this claim, I need not decide whether the same conclusion should apply to situations where the disabling medical condition is not work-related. Although a claimant’s lack of wages may be equally involuntary in such situations, other monetary safety nets may be available to protect against economic hardship in those cases. See Case of Louis, 676 N.E.2d 791 (Ma. 1997).
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary disability benefits causally related to Claimant’s right knee injury commencing on March 29, 2007 at a rate to be determined in accordance with Conclusion of Law #15 above; and
2. Costs in the amount of $52.66 and attorney’s fees totaling $2,871.00.
DATED at Montpelier, Vermont this 4th day of December 2007.
__________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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