STATE OF VERMONT
DEPARTMENT OF LABOR
Darlene Chartrand v. General Electric Aviation Opinion No. 15-16WC
- By: George K. Belcher, Esq.
Administrative Law Judge
For: Anne M. Noonan
State File No. T-18120
RULING ON CLAIMANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Erin H. Gallivan, Esq. for Claimant
Erin J. Gilmore, Esq. for Defendant
- Is Claimant’s 2014 carpal tunnel syndrome condition compensable as a matter of
Claimant’s Statement of Undisputed Facts
Claimant’s Exhibit A: Defendant’s Pre-trial Disclosures
Claimant’s Exhibit B: Claimant’s First Report of Injury, 4/24/14
Claimant’s Exhibit C: Vermont Orthopaedic Clinic records, 2003
Claimant’s Exhibit D: Dr. Stein office note, 6/30/14, amended 7/30/14
Claimant’s Exhibit E: Dr. Timura deposition, November 24, 2015
Defendant’s Statement of Disputed Facts, 1/28/16
Defendant’s Exhibit 1: GE medical note, 5/6/14
Defendant’s Exhibit 2: GE medical note, 7/11/07
Defendant’s Exhibit 3: Dr. Timura deposition, November 24, 2015
Defendant’s Exhibit 4: Dr. Stein office note, 6/30/14
FINDINGS OF FACT:
The following facts are undisputed:
- Claimant has filed a Motion for Partial Summary Judgment seeking a determination that
her right upper extremity condition is compensable as the natural progression of a
compensable injury. Defendant filed an Opposition to the Motion with a Statement of
Disputed Facts and Exhibits. Claimant filed a response.
- 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.
- In 1990 Claimant was assessed with mild carpal tunnel syndrome of the right hand.
Defendant accepted this injury as work-related and compensable. Claimant’s Exhibit A.
- Again in 2003, Claimant reported problems with her right hand and arm. These injuries
as well were causally related to her work for Defendant. Claimant’s Exhibit A.
- On April 24, 2014 Claimant reported right arm pain and numbness. At the time she was
working in Defendant’s pre-ship area, inspecting and packaging blades. By this time, she
had worked in pre-ship for four to five years. In her injury report, she related the
problem to prior incidents in 1990 and 2003. Claimant’s Exhibit B.
- Defendant denied Claimant’s claim for medical benefits by way of a Denial of Workers’
Compensation Benefits (Form 2) filed on July 15, 2015. As grounds, the form stated,
“Treatment Is Not Reasonable, Necessary, or Related to Injury: 5/6/14 Evaluation for
[sic] Dr. Timura notes that diagnosis is not causally related to her work at GE.” Form 2
- Dr. Stein treated Claimant for her right upper extremity problem in both 2003 and 2014.
On July 30, 2014 she noted, “The carpal tunnel which has progressed over years of
highly repetitive work including benching and now inspection of blades is in my opinion
work related.” Claimant’s Exhibit D.
- Defendant has identified only one defense witness, Dr. Timura, who would testify in
accordance with his deposition testimony. Claimant’s Exhibit A.
- When Dr. Timura examined the Claimant on May 6, 2014, he reported the following
assessment, Defendant’s Exhibit 1:
Assessment: Carpal tunnel syndrome on the right. Within a reasonable
degree of medical certainty, her recent diagnosis is not causally related to
her work at GE. She has been working pre-ship inspect for about four to
five [sic] and therefore there is no temporal relationship to her alleged
current condition being related back to 1990 or 2003. In addition, her job
tasks do not require any forceful pinching or gripping nor awkward wrist
- This opinion formed the basis for Defendant’s claim denial.
- In his deposition, Dr. Timura was asked various questions about the relationship between
Claimant’s current condition and her prior injuries in 1990 and 2003, Claimant’s Exhibit
E at p. 84, lines 1-9:
- (Ms. Gallivan) Okay is her condition now related back to her condition
back in 1990 and 2003?
- (Dr. Timura) In what sense?
- The medical sense.
- Well, yeah, it’s on the right side and it’s gotten worse.
- Is it the natural progression of her condition?
- And later, Claimant’s Exhibit E at p. 85, lines 2-5:
- Okay. And I assume that means non-work activities didn’t contribute to
her condition; is that correct?
- Dr. Timura’s deposition testimony made clear that his opinion concerning the absence of
a causal relationship between Claimant’s current carpal tunnel syndrome symptoms and
her work applied exclusively to her recent assignment in “pre-ship,” Claimant’s Exhibit E
at p. 107, lines 19-25 and p. 108, lines 1-13:
- (Ms. Gallivan) Does it really matter whether her symptoms ever really
resolved or not to your opinion in this case?
- (Dr. Timura) Not in respect of whether or not it’s causally related to
work it doesn’t matter.
- So whether her symptoms resolved or not makes no difference to your
opinion about whether her current condition is work related?
- In this scenario – I’m looking at whether or not her diagnosis of carpal
tunnel syndrome – which is correct by the way – whether or not it was
causally related to her work in pre-ship and pre-ship inspect. And I do not
believe it was.
- Right. But it’s your testimony that it’s not relevant to you whether her
symptoms have resolved prior to that or not. It’s not relevant to your
opinion in this case. I’m just trying to get the record straight.
- Dr. Stein’s causation opinion specifically stated that “[t]he carpal tunnel syndrome which
has progressed over years of highly repetitive work including benching and now
inspection of blades is in my opinion work related (emphasis added).” Dr. Timura’s
testimony is more supportive of than contradictory to Dr. Stein’s progression opinion.
- In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 2523 (1991). Summary
judgment is appropriate only when the facts in question are clear, undisputed, or
unrefuted. State v. Heritage Realty of Vermont, 137 Vt. 425 (1979). It is unwarranted
where the evidence is subject to conflicting interpretations, regardless of comparative
plausibility of facts offered by either party or the likelihood that one party or the other
might prevail at trial. Provost v. Fletcher Allen Health Care, Inc. 2005 VT 115.
- The Workers’ Compensation process is amenable to expedited process where
appropriate. “All process and procedure under the provisions of this chapter shall be as
summary and simple as reasonably may be.” 21 VSA Sec. 602.
- Summary judgment is appropriate where, after adequate time for discovery, a party fails
to make a sufficient showing to establish the existence of an element essential to its case.
Poplaski v. Lamphere, 152 Vt. 251, 254-255 (1989).
- The sole purpose of summary judgment review is to determine if a genuine issue of
material fact exists. If such an issue does exist, it cannot be adjudicated in
the summary judgment context, no matter how unlikely it seems that the party opposing
the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973).
- When the nonmoving party will bear the burden of proof at hearing, that party must set
forth “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); V.R.C.P. 56(e).
- 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 Lex K. Larson, Larson’s Workers’ Compensation §10 (Matthew Bender,
Rev. Ed.) at p. 10-1; Brower v. Mount Mansfield, Opinion No. 03-12WC (January 18,
2012). An exception to the general rule exists as to consequences that result from an
independent intervening non-industrial cause attributable to the claimant’s own
intentional conduct. Lushima v. Cathedral Square Corp., Opinion No. 38-09WC
(September 29, 2009), citing Larson’s Workers’ Compensation, supra. 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.
- Dr. Stein determined that Claimant’s injury is progressive and work related. Dr. Timura
agreed that the injury exists, and has naturally progressed since the condition first
manifested as work-related in 1990 and then again in 2003. Dr. Timura also
acknowledged that no non-work-related incident has contributed in any way to
Claimant’s current condition. Under these facts, one must reasonably ask whether there
are specific facts which show a genuine issue for trial.
- In argument, Defendant points to a statement made by a Dr. Ryder in 2007 to the effect
that Claimant had been fairly symptom free since 2003. Defendant argues that this
medical record shows that Claimant made inconsistent statements. Dr. Timura had this
report prior to rendering his opinions in deposition, however, and in fact had included
reference to Dr. Ryder’s record in his initial report. Defendant’s claim of inconsistency is
- Defendant next argues that Dr. Timura denied a causal relationship between Claimant’s
carpal tunnel syndrome and “her work at GE” based upon the lack of a temporal
relationship. Considering his deposition testimony as a whole, however, I conclude that
Dr. Timura’s reference to Claimant’s “work at GE” was limited solely to her work during
the past four or five years in pre-shipping, and not to her time at GE in 1990 and 2003.
- Next, Defendant argues that the Brower case is distinguishable because it was not a
summary judgment proceeding. The principle of law stated in that case does not lose
validity simply because it was not applied in summary judgment, however.
- Next, Defendant argues that carpal tunnel syndrome is “multi-factorial” in nature. This
fact is undisputed, as is the fact that many non-work-related risk factors can contribute to
the development and progression of carpal tunnel syndrome in a particular person.
Defendant is correct that the nature of carpal tunnel syndrome itself weighs heavily in
favor of denying Claimant’s Motion for Partial Summary Judgment, as expert medical
testimony will be required to determine whether in this case the condition is causally
linked to her work for Defendant or to other factors that are personal to her and therefore
not work-related. See Defendant’s Opposition to Motion at pp. 4-5.
- This point would be persuasive if not for the fact that Defendant’s own expert discounted
any non-work-related contributions, and instead established a direct causal link back to
her earlier work-related injury claims against it. As noted above, I must now add his
opinion to that of Claimant’s expert, Dr. Stein. Under the unusual facts of this case, the
medical experts both support compensability, therefore.
- Finally, Defendant challenges Dr. Stein’s conclusion because she did not state the basis
for her opinion in her July 30, 2014 chart note. This argument as well might be
persuasive if there was a “clear conflict in medical expert opinion in this matter,” as
Defendant argues, id. at p. 6. However, Dr. Timura did not directly challenge Dr. Stein’s
conclusions in his deposition. To the extent that both medical experts determined that the
injury was a progression from Claimant’s prior injuries in 1990 and 2003, the basis for
their consistent opinions is not particularly important, therefore.
- Numerous decisions support the proposition that summary judgment is inappropriate
when there are factual issues that require evidentiary hearing, cross-examination and full
development at trial. That principle is often cited and is accepted here as “black letter
law.” At the same time, it was Dr. Timura’s initial report and opinion that formed the
basis of the controversy in this case. When subsequently his deposition testimony
clarified that he too believed, as Dr. Stein did, that Claimant’s current condition
represents the natural progression of her compensable 1990 and 2003 work-related
injuries, without any contribution from non-work-related causes or events, Defendant’s
only issue in this case evaporated.
- As Claimant has prevailed in her claim for benefits, she is entitled to an award of attorney
fees in accordance with 21 V.S.A. §678. Claimant shall have 30 days from the date of
this Ruling within which to submit her itemized claim.
Claimant’s Motion for Partial Summary Judgment is hereby GRANTED. Defendant is
hereby ORDERED to pay:
- All workers’ compensation benefits to which Claimant proves her entitlement as causally
related to her compensable right upper extremity condition, with interest as provided in
21 V.S.A. §664; and
- Attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this ____ day of August 2016.
Anne M. Noonan
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 VSA Sec. 670, 672.