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Cecile Lushima v. Cathedral Square Corporation (September 29, 2009)

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Cecile Lushima v. Cathedral Square Corporation (September 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cecile Lushima Opinion No. 38-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Cathedral Square Corporation For: Patricia Moulton Powden
Commissioner
State File No. Y-50129
OPINION AND ORDER
Hearing held in Montpelier on October 17th and 18th, 2008
Record closed on July 9, 2009
APPEARANCES:
Chris McVeigh, Esq. for Claimant
Wesley Lawrence, Esq. for Defendant
ISSUES:
1. Was Defendant justified in terminating Claimant’s temporary disability benefits on September 16, 2007 on the grounds that she had reached an end medical result for her compensable work injury?
2. Is Claimant barred from disputing the date of end medical result and the extent of her permanent impairment by virtue of the signed and approved Agreement for Permanent Partial Disability Compensation (Form 22)?
3. Is Claimant entitled to medical benefits for ongoing treatment of her left shoulder after June 24, 2007?
EXHIBITS:
Defendant’s Exhibit 1: Medical records
CLAIM:
Temporary partial disability benefits pursuant to 21 V.S.A. §644;
Medical benefits pursuant to 21 V.S.A. §640;
Permanent partial disability benefits pursuant to 21 V.S.A. §648;
Interest, costs and attorney fees pursuant to V.S.A. 21 §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to the proceedings, Claimant was an employee and Defendant was her employer as those terms are defined under Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant was born in the Congo and moved to the United States by way of Niger and Europe. She moved from the Congo for political reasons. Claimant’s uncle, the first democratically elected Prime Minister of the Republic of Congo, was overthrown and murdered. Both because of this association and because of the country’s general instability, Claimant felt that it was unsafe to remain there. Ultimately she and her family settled in Vermont.
4. On the date of Claimant’s injury she was married to Wembo “Alex” Shungo, with whom she raised six children ranging in age from 10 to 20 years old. Claimant’s native language is French, but she is fluent in seven other languages, including English, which she reads, writes and speaks well.
Claimant’s Initial Work Injury
5. On June 20, 2006 Claimant was working for Defendant as a nurse’s aide. In the course of helping a stroke patient into bed, she injured her left shoulder. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly. Claimant continued to work, though in a modified-duty capacity, until February 2, 2007.
6. Initially Claimant treated conservatively for her injury, which was diagnosed as a shoulder strain. When her symptoms failed to improve, she underwent an arthrogram, which revealed a labral tear. Claimant continued to treat conservatively, but again her symptoms did not improve. After some time, she was referred to Dr. Lawlis, an orthopedic surgeon, for further evaluation. Dr. Lawlis diagnosed a superior labrum anterior and posterior (SLAP) tear, which he surgically repaired on February 20, 2007.
7. Following her surgery Claimant was referred for “aggressive” physical therapy. Her recovery was slow, and her left shoulder remained painful to such an extent that it severely limited her activities of daily living.
8. On April 6, 2007 Dr. Lawlis reevaluated Claimant on an urgent basis because of her increased pain. He noted that Claimant’s range of motion was extremely limited and concluded that she was suffering from severe fibrous capsulitis causally related to her shoulder surgery. Dr. Lawlis prescribed aqua therapy and recommended that Claimant progressively work at gentle stretching more frequently on her own at home. He also prescribed Oxycontin and Percocet for break-through pain.
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9. Dr. Lawlis continued to monitor Claimant’s progress. On May 8, 2007 he determined that she should continue her pain medications and remain out of work for at least eight more weeks. In the meantime, Claimant continued to work diligently at her exercise regimen. Although her pain persisted, she was doing more. A June 20, 2007 physical therapy progress note indicated that the strength below her shoulder had improved “remarkably,” although Claimant still could not use her arm for overhead activity. Claimant’s progress at this point represented a significant improvement over what the physical therapy notes had documented in early May.
The June 24, 2007 Border Incident
10. On June 24, 2007 Claimant, her husband, her mother-in-law and her sister-in-law drove to Montreal. Claimant’s in-laws had been visiting, and the purpose of the trip to Montreal was to accompany them to the bus station so that they could travel home to western Canada. Claimant’s six children stayed home, with the older ones caring for the younger ones.
11. At the time, Claimant’s husband was working as a high school teacher in Brattleboro. Neither he nor Claimant had ever been arrested or otherwise involved in any criminal activity. On the trip up, they entered Canada without incident. On the return trip, however, Claimant and her husband were stopped at the Highgate Springs, Vermont entry point. After examining their passports, a border patrol officer directed them to park their car and proceed into the immigration building. The officer kept their passports.
12. A security videotape of the immigration building’s lobby depicts what happened next. Once inside, Claimant and her husband sat down. No one approached them. After a time, Claimant’s husband inquired of a border patrol officer as to why they were being detained. According to his testimony, he was told to continue waiting. When he tried to inquire further, an argument ensued among him, Claimant and various border patrol officers. Ultimately the border patrol officers approached Claimant’s husband and moved to take him into custody.
13. With this unfortunate development, Claimant became very upset. She clung to her husband and attempted to push the border patrol officers away. A struggle ensued, which went on for several minutes. The officers had to physically restrain Claimant in order to separate her from her husband, whom they handcuffed and removed to a detention cell. Claimant continued to remonstrate with the officers, both verbally and physically. Eventually she too was handcuffed, with her arms behind her back, and taken to a detention cell.
14. In the process of being handcuffed, the border patrol officers pushed on Claimant’s injured left shoulder, which was very painful to her. Both Claimant and her husband testified that they tried to explain to the border patrol officers that Claimant had recently undergone shoulder surgery, but to no avail.
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15. Once in her cell, Claimant began complaining of severe pain in her left shoulder. After holding Claimant and her husband in custody for several hours, eventually border patrol personnel had them transported by ambulance to Northwestern Medical Center. Claimant underwent treatment in the emergency room for her left shoulder. Subsequently, both she and her husband were released from border patrol custody and proceeded home to Burlington.
Medical Evaluation and Treatment after June 25, 2007
16. On the day following the border patrol incident, Claimant saw Dr. Lawlis again. Diagnostic testing later revealed additional tears in the tendons of Claimant’s left shoulder, tendons that had been intact at the time of her first surgery. Because Defendant disputed its responsibility for medical treatment related to the incident, Claimant could only afford to treat sparingly, however. She continued her home exercise program and later attended physical therapy. As of the date of the formal hearing, it was unclear whether she would require additional surgery to repair the new tears.
17. After the border incident Claimant returned to work part-time, modified-duty, at a convent in Winooski. Later she began working in a medical office.
18. In Dr. Lawlis’ opinion, the border incident aggravated Claimant’s original shoulder injury and significantly delayed her recovery. He noted that had Claimant not been recovering from shoulder surgery at the time, the incident probably would not have resulted in any injury at all. As it was, however, the border incident probably caused the new tears in Claimant’s shoulder tendons that had not been present at the time of her original injury.
19. Dr. Lawlis determined that Claimant reached an end medical result for the original June 2006 work injury on March 3, 2008. In his opinion, she did not reach end medical result for the border incident injury until June 3, 2008.
20. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Johansson in July 2007. Dr. Johansson concluded that the June 2007 border incident caused either an aggravation or a new injury to Claimant’s left shoulder. In his opinion, had it not been for that event Claimant would have reached end medical result for her original work injury by the date of his evaluation, July 23, 2007. Dr. Johansson further found that Claimant had suffered a 7% whole person permanent impairment referable to her original work injury.
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Claimant’s Response to Defendant’s Form 27 and Proposed Permanency Agreement
21. With Dr. Johansson’s opinion as support, in September 2007 Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), seeking to terminate Claimant’s temporary disability benefits on end medical result grounds as of September 16, 2007. The Department approved the discontinuance on September 21, 2007.
22. On September 28, 2007 Claimant, who was unrepresented at the time, wrote to Defendant, advising that she disagreed with the decision to terminate her benefits and asking that Defendant reconsider its position. Defendant did not respond to this letter.
23. Shortly thereafter, Defendant mailed to Claimant a proposed Agreement for Permanent Partial Disability Compensation (Form 22). The Form 22 reflected that Claimant’s temporary total disability had ended on September 16, 2007. It referenced the Form 27 that had been filed to that effect on the grounds that she had reached an end medical result for her work-related injury, described as a “left shoulder SLAP repair.” The Form 22 further proposed to pay permanent partial disability benefits in accordance with Dr. Johansson’s 7% whole person impairment rating.
24. Claimant testified that she assumed that the Form 22 had been sent to her in response to her September 28, 2007 letter. She thought that its purpose was to reinstate her temporary disability benefits. She admitted that she did not even read the form, but instead merely signed it and sent it back.
25. The Department approved the Form 22 on October 24, 2007. Thereafter, Claimant received weekly permanent partial disability benefits, totaling $9,582.30, until March 30, 2008. Claimant testified that at least at first, she presumed that the checks she was receiving were for temporary total disability, not permanency.
26. On November 20, 2007 Claimant’s counsel entered his appearance on Claimant’s behalf and asked the Department both to reconsider its approval of the Form 27 and to rescind its approval of the Form 22. The Department’s Staff Attorney denied both requests and the claim subsequently was forwarded to the formal hearing docket.
CONCLUSIONS OF LAW:
1. Two interesting legal issues are raised by this claim. The first involves whether the June 2007 border incident constitutes an independent intervening event sufficient to break the causal link between Claimant’s original work-related injury and her subsequent disability and need for medical treatment. The second involves the extent, if any, to which Claimant is precluded from seeking additional benefits by virtue of the Form 22 permanency agreement that she signed. Because the second issue is somewhat dispositive, it will be considered first.
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2. It is generally accepted that once the parties to a workers’ compensation claim execute a Form 22 or other form agreement, and the Commissioner (or her designee) approves it, it becomes a binding and enforceable contract. Workers’ Compensation Rule 17.0000; Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999). Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions of the form, and the Department will consider it to represent a final determination of any dispute as to its contents. Rule 17.0000; id.
3. There is no evidence of fraud here, nor is there compelling evidence of any material mistake of fact. For such a mistake to exist, it must be mutual. Maglin v. Tschannerl, 174 Vt. 39 (2002). Here, only Claimant was mistaken. She thought the purpose of the form she was signing was to reinstate her temporary disability benefits, when in fact it was confirming the basis for their proper termination. Claimant’s failure to recognize the form’s import may be understandable, particularly because she was unrepresented at the time, but it still provides an insufficient basis for undoing a binding contract. Hawkins v. Visiting Nurse Association, Opinion No. 53-04WC (December 3, 2004).
4. The fact is, there was no way for either Defendant or the Department to have known whether Claimant had signed the Form 22 because she did not understand the ramifications of doing so, or whether she signed it because she had decided to take the permanency compensation offered rather than pursue a claim for additional temporary disability benefits. In hindsight, it may seem harsh to hold her to the agreement. To allow her to rescind it unilaterally, however, would result in an untenable loss of certainty as to what constitutes a binding, enforceable contract, not only to pay workers’ compensation benefits but also to accept them. Catani v. A.J. Eckert Co., Opinion No. 28-95WC (July 14, 1995).
5. Contrary to Claimant’s assertions, furthermore, Defendant was under no affirmative obligation to explain the form to her, or otherwise to caution her against signing it if she intended to pursue further her request that temporary disability benefits be reinstated. In the specific context of a workers’ compensation claim, the Vermont Supreme Court has ruled that an employer is under no duty to inform an employee of his or her rights under the Workers’ Compensation Act, instead upholding the “time-honored principle that all persons are presumed to know the law.” Longe v. Boise Cascade Corp., 171 Vt. 214, 226 (2000).
6. I conclude, therefore, that Claimant is bound by the terms of the Form 22 as to all of its material elements. These include the date upon which she reached end medical result for her work injury (whether aggravated by the June 2007 border incident or not) and the extent of her permanent impairment.
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7. As the Form 22 establishes that Claimant reached end medical result on September 16, 2007 she is precluded from seeking additional temporary disability benefits after that date. 21 V.S.A. §§642, 643a. Even with the Form 22, however, her entitlement to further medical benefits remains open, provided she shows that ongoing treatment is necessitated by the work injury rather than by some intervening event for which Defendant bears no responsibility. It is in this context that I next must consider the legal import of the June 2007 border incident.
8. Both Claimant’s treating physician, Dr. Lawlis, and Defendant’s medical expert, Dr. Johansson, agreed that the border incident caused either an aggravation or a new injury to Claimant’s previously injured shoulder. Both also acknowledged, however, that Claimant probably would not have suffered any injury at all during that incident had her shoulder not already been in a weakened state as a result of her primary compensable injury. The question, therefore, is whether the second injury is sufficiently linked to the first to be compensable as well.
9. Once an injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from it likewise is deemed to have arisen out of the employment. 1 Larson’s Workers’ Compensation Law, §10, p. 10-1. An exception to this general rule exists as to consequences that result from an independent intervening non-industrial cause attributable to the claimant’s own intentional conduct. Id., quoted in Bowen v. Jobsite Services, Opinion No. 23-00WC (July 31, 2000). Such an event may be sufficient to break the chain of causation back to the primary injury and thereby may relieve the employer of further workers’ compensation liability.
10. Not all intervening events are sufficient to fall within the exception and thus sever the link between the work injury and any ongoing disability or need for treatment. It is to be expected, for example, that even injured workers will continue to engage in activities of daily living, and therefore injuries sustained during such activities are considered to be a natural consequence of the primary injury. Church v. Springfield Hospital, Opinion No. 40-08WC (October 8, 2008) (climbing step at home); Signorini v. Northeast Cooperatives, Opinion No. 36-04WC (September 1, 2004) (getting up from chair); Verchereau v. Meals on Wheels, Opinion No. 20-88WC (1988) (lifting groceries).
11. Where the intervening event does not arise in any way from the employment relationship, the chain of causation is deemed broken by either intentional or negligent claimant misconduct. Larson, supra at §10.05, p. 10-11. Even here, however, exceptions exist. Thus, in defining what constitutes negligent conduct, Professor Larson distinguishes spontaneous acts that may well be “impulsive and momentarily thoughtless,” but which because of the circumstances are better characterized as instinctive rather than negligent. Id. at §10.06, p. 10-13; see, e.g., McMillan v. Bertek, Inc., Opinion No. 95-95WC (January 29, 1996) (reaching for branch while falling from tree); Kelly v. Federal Shipbuilding and Drydock Co., 64 A.2d 92 (N.J. Super. 1949) (reaching for falling child). The claimant’s conduct in such cases does not rise to the level of negligence necessary to break the causal link back to the original injury.
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12. The link is severed, however, if a claimant, knowing of certain weaknesses arising from the primary injury, “rashly undertakes activities likely to produce harmful results.” Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12 (Fla. 1960); Larson, supra at §10.06[3], p. 10-17.
13. This was the case here. Arguably Claimant’s initial response to the border patrol officers’ approaching her husband and moving to take him into custody might be characterized as the kind of impulsive, momentarily thoughtless act that, though misguided, would not rise to the level of negligence. As the altercation progressed, however, and particularly after Claimant’s husband already had been moved to a detention cell, Claimant reasonably should have known that by continuing the battle she was risking further injury to her already weakened shoulder. Her actions at that point were no longer just “momentarily thoughtless,” they were deliberately so.
14. I conclude, therefore, that Claimant broke the chain of causation back to her primary work-related injury by virtue of her actions during the June 2007 border patrol incident. Defendant is not responsible for any workers’ compensation benefits necessitated as a result of that event.
15. Claimant having failed to prevail on her claim, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits is hereby DENIED.
DATED at Montpelier, Vermont this 29th day of September 2009.
_________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

D. P., Jr. v. GE Transportation (January 17, 2008)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

D. P., Jr. v. GE Transportation (January 17, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. P. Jr. Opinion No. 03-08WC
v. Phyllis Phillips, Esq.
Contract Hearing Officer
GE Transportation
Patricia Moulton Powden
Commissioner
State File No. W-60106
OPINION AND ORDER
Claim submitted on stipulated facts and briefs without evidentiary hearing.
APPEARANCES:
Emily Joselson, Esq. for Claimant
John Valente, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant is entitled to temporary partial disability benefits after having been terminated from employment with Defendant for reasons unrelated to his work injury.
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EXHIBITS:
Joint Exhibits:
Joint Exhibit A: Key Medical Records, as follows:
a. 4/13/05: Mark Messier, MD; office notes and work limitations form
b. 10/29/05: Mark Bucksbaum, MD; independent medical evaluation
c. 1/2/06: Mark Messier, MD; office notes (order MRI and referral to Dr. Boynton)
d. 1/4/06: Rutland Regional Health Services Radiology Report; MRI left shoulder
e. 1/25/06: Melbourne Boynton, MD; office notes and work injury tracking form
f. 3/24/06: Melbourne Boynton, MD; office notes and work injury tracking form
g. 3/27/06: Rutland Regional Medical Center, operative report
h. 4/4/06: Melbourne Boynton, MD; office notes and work injury tracking form
i. 4/13/06: Vermont Sports Medicine Physical Therapy initial evaluation form
j. 5/5/06: Melbourne Boynton, MD; office notes and work injury tracking form
k. 6/29/06: Melbourne Boynton, MD; third shoulder surgery post-op visit form and work injury tracking form
l. 9/26/06: Melbourne Boynton, MD; office notes and work injury tracking form
m. 3/13/07: Letter from Vermont Sports Medicine Physical Therapy, Tyler Smith, P.T. (advising discharge from physical therapy)
n. 3/26/07: Melbourne Boynton, MD; office notes (EMR, permanent impairment) and work injury tracking form
o. 7/27/07: Mark Bucksbaum, MD; independent medical evaluation (permanent impairment)
p. 10/18/07: Mark Bucksbaum, MD; letter advising continuing physical limitations
Joint Exhibit B: Complete Medical Records & Index
CLAIM:
Temporary partial disability benefits under 21 V.S.A. §646
Interest, attorney’s fees and costs under 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
The parties jointly stipulated to the following findings of fact:
1. Claimant was an employee at all relevant times as defined by Vermont’s workers’ compensation statute and rules.
2. Defendant was an employer at all relevant times as defined by Vermont’s workers’ compensation statute and rules.
3. On April 13, 2005 Claimant suffered an injury to his left shoulder due to repetitive work while employed by Defendant, and promptly so notified his employer. The injury eventually was diagnosed as a rotator cuff tear.
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4. As of April 13, 2005 Claimant had worked for Defendant for nearly twenty years. Also as of that date Claimant was working in a job that required lifting up to 37 pounds, including bulky items, and occasional reaching overhead and at shoulder level, as well as leaning over a broach machine.
5. On April 13, 2005 immediately following Claimant’s report of injury, Defendant reassigned him to a less physical job assignment of bench de-burring. On April 14, 2005 Claimant reported that the new position was fine and caused no problems.
6. At the time of his injury Claimant was earning $940.81 per week, which yielded a compensation rate of $627.21 per week.
7. On April 13, 2005 Claimant saw Dr. Mark Messier and was issued a work restriction to avoid working with his arm at shoulder level. He was to follow up with Dr. Messier in four weeks.
8. Claimant continued working for Defendant at the bench de-burring position, which required less physical effort.
9. On May 4, 2005 Claimant’s employment with Defendant was terminated. Defendant maintains that the termination was for cause unrelated to Claimant’s workers’ compensation claim. Claimant maintains that the reason for his termination is irrelevant to this matter.1
10. Following the termination of his employment with Defendant, Claimant had no health insurance.
11. Because Defendant’s workers’ compensation insurance carrier did not accept this claim until November 22, 2005 Claimant did not immediately obtain further medical care for his left shoulder.
12. Following his termination from Defendant’s employment in May 2005 Claimant received unemployment compensation while he searched for new employment.
13. On October 24, 2005 Claimant obtained work at Timberwolf Manufacturing Corporation, earning $531.00 per week.
14. Claimant’s job responsibilities at Timberwolf included pushing, pulling and lifting, but did not require any lifting to shoulder level or above.
15. In early November 2005 Timberwolf reassigned Claimant to operating a forklift, which involved even less pushing, pulling and lifting, due to Claimant’s asserted physical limitations.
1 I assume from this stipulated fact that Claimant disputes whether his termination was for cause, but agrees that it was in any event for reasons unrelated to the injury at issue in the current claim.
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16. On November 22, 2005 the parties stipulated to Claimant’s eligibility for workers’ compensation benefits.
17. After Defendant’s workers’ compensation insurance carrier stipulated to compensability, Claimant returned to active medical care for his shoulder with Dr. Melbourne Boynton. Claimant’s restrictions persisted, as documented by a Work Injury Tracking Form dated January 25, 2006, which states: “Able to work with limited use of left arm. Patient may work as tolerated. Surgery scheduled for left shoulder rotator cuff repair.”
18. Claimant was scheduled for and underwent rotator cuff surgery, performed by Dr. Boynton, on March 27, 2006.
19. Following the surgery Claimant stayed out of work to recuperate. In his April 4, 2006 record Dr. Boynton restricted Claimant from work. In his May 5, 2006 record, Dr. Boynton’s Work Injury Tracking Form states: “Claimant could return to work now with the restriction of no use of his left arm at all.”
20. On June 29, 2006 Dr. Boynton’s Work Injury Tracking Form states: “Claimant could return to work with limited use of left shoulder. He can do active motion but should not do repetitive activity with left arm and he cannot lift more than five pounds.”
21. Because Claimant’s employment involved pushing, pulling and lifting, he was not able to return to work at Timberwolf with these restrictions.
22. Claimant and Defendant entered into a Form 21 Agreement on July 26, 2006 which provided his compensation rate to be $627.21 per week. Claimant was paid temporary total disability (TTD) benefits from March 27, 2006 until September 7, 2006.
23. In August 2006 Timberwolf accommodated Claimant’s physical restrictions by assigning him to a sales position with the company – a desk job that did not include any pushing, pulling or lifting.
24. On August 29, 2006 Claimant returned to work at Timberwolf, light duty status (and not yet at end medical result), earning $585 per week, and so notified Defendant’s workers’ compensation insurance carrier.
25. On September 7, 2006 Defendant’s workers’ compensation insurance carrier stopped payment on Claimant’s last two TTD checks (8/29/06-9/4/06 and 9/5/06-9/11/06), totaling $1,254.42, asserting that Claimant had returned to work full-time and was no longer entitled to temporary disability benefits.
26. On September 26, 2006, upon learning that Claimant had taken a light duty position at Timberwolf without the same physical requirements as his prior position, Dr. Boynton’s Work Injury Tracking Form released Claimant to work with no limitations, and stated: “Continue usual work.”
27. As of February 19, 2007 Claimant was earning $607.20 per week at Timberwolf.
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28. On March 26, 2007 Dr. Boynton found Claimant to be at end medical result and opined that he had a 3% permanent impairment to the whole person (5% upper extremity). Dr. Boynton’s Work Injury Tracking Form of that date released Claimant to work with no limitations, and stated: “Continue normal work.”
29. On July 27, 2007 Dr. Bucksbaum opined that Claimant had a 4% permanent impairment to the whole person (7% upper extremity).
30. The parties agree that Claimant’s permanent impairment shall be 3.5% to the whole person.
31. On October 18, 2007 Dr. Bucksbaum opined that Claimant could work full time but should avoid reaching above his shoulder twelve times per hour with up to fifteen pounds of weight; reaching to shoulder up to fifteen times per hour with up to twenty pounds of weight; holding his arm in abduction or flexion up to twelve times per hour with up to fifteen pounds of weight; lifting and carrying up to twenty pounds fifteen times per hour; single upper extremity work using injured arm for light work only (full use of non-injured arm); no climbing ladders; and to avoid operation of tools or equipment that produce vibration to the left upper extremity.
32. The Commissioner may take judicial notice of any and all state forms, pleadings and correspondence to the Department filed by the parties.
33. In addition to the stipulated facts, in accordance with Paragraph 32 above I find the following facts as well:
(a) Claimant has made no claim for temporary total disability benefits from May 5, 2005 (the date when his employment with Defendant terminated) until October 24, 2005 (the date when he began working at Timberwolf). Nor has Claimant made any claim for temporary partial disability benefits from October 24, 2005 until March 27, 2006 (the date of his surgery).
(b) For reasons that are not entirely clear, Defendant’s workers’ compensation insurance carrier initially failed to accept Claimant’s claim as compensable. On November 22, 2005 the Department issued an interim order in which it required Defendant to pay medical benefits causally related to Claimant’s injury. The interim order noted that Claimant was not currently seeking temporary total disability benefits.
(c) Defendant did not file a Notice of Intention to Discontinue Payments (Form 27) prior to discontinuing Claimant’s temporary disability benefits on August 29, 2007.
(d) Claimant has submitted evidence of costs totaling $67.20 and attorney’s fees totaling $5,047.50.
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CONCLUSIONS OF LAW:
1. In this claim Claimant seeks temporary partial disability benefits from the date following surgery when he returned to work for a subsequent employer, full-time but at a lower weekly wage than what he was receiving at the time of his original work-related injury while in Defendant’s employ. Defendant argues that Claimant is disqualified from receiving temporary disability benefits because (a) he was terminated from Defendant’s employment for reasons unrelated to his injury; and (b) he failed to show that the reduced wages he earned when he returned to work thereafter were occasioned by his injury-related work restrictions.
2. In Andrew v. Johnson Controls, Opinion No. 3-93WC (June 13, 1993), the Commissioner determined that a claimant who, during his or her recovery from a work-related injury, voluntarily quits a suitable job for unrelated reasons generally is not entitled to temporary total disability compensation. The rationale for the rule is that a claimant who voluntarily removes him- or herself from the work force can no longer point to the work-related injury as the cause for his or her loss of earnings. Id.
3. In order to avoid unnecessarily harsh consequences, however, the Commissioner recognized an exception to this rule, providing that temporary disability benefits might resume if a claimant can show that the work-related disability is once again the cause of his or her inability to find or hold new employment. Id. Thus, in order to fit within the exception, a claimant has the burden of demonstrating (a) a work injury; (b) a reasonably diligent attempt to return to the work force; and (c) that the inability to return to the work force, or a return at a reduced wage, is related to the work injury and not to other factors. Id.
4. In Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003), the Commissioner expanded the application of the rule enunciated in Andrew to situations where a claimant is fired for reasons unrelated to his or her work injury. As with the voluntary quit situation, a claimant who is fired cannot point to the work injury as the cause of his or her loss of earnings, and therefore is not entitled to temporary disability benefits until he or she can fit within the three-prong exception referred to above. Id.; see also Ducharme v. DEW Construction, Opinion No. 24-07WC (August 27, 2007) (holding that claimant who was laid off for lack of work is not entitled to resumption of temporary disability benefits unless three-prong test is met); Pfalzer v. Pollution Solutions of Vermont, Opinion No. 23-01WC (October 5, 2001) (same); Gardner v. Nastech, Opinion No. 5-98 (January 26, 1998) (holding that claimant who is incarcerated is not entitled to temporary disability benefits because causal link between work injury and lost wages is broken); King v. CNF Construction, Opinion No. 2-98 (January 3, 1998) (same).
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5. In the current claim, the parties agree that Claimant’s termination of employment from Defendant was unrelated to his work injury. That said, Claimant cannot point to his injury-related work restrictions as the cause of his initial loss of earnings in May 2005. According to the general rule established in Andrew and its progeny, therefore, Claimant is not entitled to temporary partial disability benefits unless and until he can demonstrate that he fits within the exception.
6. Claimant has satisfied the first prong of the Andrew exception – he suffered a work injury. Defendant does not dispute that Claimant underwent a reasonably diligent attempt to return to the work force thereafter, and thus the second prong of the exception presumably is met as well.
7. Claimant’s proof is lacking as to the third prong, however. There simply is no evidence from which to conclude that because of his injury-related disability Claimant was unable to find suitable employment at a wage closer to what Defendant had paid him.
8. In his legal memoranda Claimant argues that the causal relationship between his injury and his reduced wages should be presumed, because (a) after twenty years of employment for Defendant, his wages were extraordinarily high; and (b) after a diligent search he took the best job offered to him that was consistent with his work restrictions, despite a wage rate considerably less than what he had been earning for Defendant. This is a reasonable argument, and the facts necessary to support it all may be true, but the evidence as submitted simply does not include them.
9. Neither the stipulated facts nor the records of which I can take judicial notice establish that Claimant took the Timberwolf job because his injury-related work restrictions precluded him from securing a higher-paying job. The record does not reflect what types of jobs Claimant applied for, how many he was offered (if any), how many he rejected (if any), and why. He may have received and rejected other job offers, at wages closer to those he received from Defendant, because he did not like the work environment, or because they did not offer career advancement opportunities, or because the fringe benefit package was unacceptable, or for any number of other personal reasons, all unrelated to his work restrictions. He may have accepted the Timberwolf job because on balance it offered a better employment opportunity than other jobs he investigated, albeit at a lower starting salary. From the facts presented, there simply is no way to know. Without such evidence, it would be impermissible speculation to point to the work injury as the cause of Claimant’s loss of earnings, particularly where other equally plausible explanations exist for his decision to take a lower-paying job.
10. Having failed to satisfy the third prong of the Andrew exception, Claimant’s claim for temporary partial disability benefits must be denied unless Defendant’s conduct in adjusting the claim somehow overrides this result. Claimant argues that Defendant’s failure to file a Notice of Intention to Discontinue Payments (Form 27) prior to terminating Claimant’s temporary disability benefits is just such an overriding factor. Under the particular circumstances of this claim, however, I conclude that it is not.
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11. Workers’ Compensation Rule 18.1100 provides that “[u]nless the claimant has successfully returned to work, temporary disability compensation shall not be terminated until a Notice of Intention to Discontinue Payments (Form 27), adequately supported by evidence, is received by both the commissioner and the claimant.” (Emphasis supplied). That rule must be read in conjunction with Rule 18.1410, which states, “A claimant shall be deemed to have returned to work successfully when he or she demonstrates the physical capacity and actual ability to perform the duties of the job, without disabling pain and/or imminent risk of re-injury.” (Emphasis supplied).
12. Claimant argues that “the job” referred to in Rule 18.1410 means the pre-injury job. Claimant argues that because even following his March 2006 surgery he was unable to perform the duties of his pre-injury job for Defendant, his return to work for Timberwolf cannot be deemed to have been successful. Therefore, Claimant concludes, Defendant could not terminate benefits without first filing a Form 27.
13. Under the particular circumstances of this claim, however, I find that the more reasonable construction of Rule 18.1410 is that “the job” referred to means the job Claimant held at the time of his most recent disability, not the job he held at the time of the initial injury.
14. I find it significant that Claimant did not seek temporary partial disability benefits for the period of time after he first started working for Timberwolf in October 2005. Had he done so, Defendant would have been on notice that he did not consider his Timberwolf job to be suitable alternative employment and that consequently his work there did not constitute a “successful” return to work, either before or after the March 2006 surgery.
15. Thus, the result might be different if Claimant had been receiving (or at least had demanded) temporary partial disability benefits prior to the March 2006 surgery. In that case, it would have been clear that Claimant’s injury-related restrictions were continuing to impact his ability to realize his maximum earning power, see Orvis v. Hutchins, 123 Vt. 18, 24 (1962), such that a “successful return to work” necessarily would have to refer back to his pre-injury job.2
16. I conclude, therefore, that under the very specific facts of this claim, Defendant was not required to file a Form 27 prior to discontinuing Claimant’s temporary disability benefits on August 29, 2007.
2 The result also might be different for a claimant who is undergoing vocational rehabilitation, as this too would be an acknowledgment that because of injury-related work restrictions, he or she had not yet achieved maximum restoration of his or her earning power. The ruling in the current claim should be interpreted as extremely fact-specific and should not be extrapolated readily to claims involving different factual circumstances.
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ORDER:
Based on the foregoing findings of fact and conclusions of law,
1. Claimant’s claim for temporary partial disability benefits is DENIED;
2. Because Claimant has not prevailed, he is not entitled to an award of attorney’s fees or costs under 21 V.S.A. §678.
DATED at Montpelier, Vermont this 17th day of January 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.

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