George Plante v State of Vermont, Agency of Transportation (August 22, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
George Plante Opinion No. 19-13WC
v. By: Jane Woodruff, Esq.
State of Vermont For: Anne M. Noonan
Agency of Transportation Commissioner
State File Nos. X-4039 and BB-0900
OPINION AND ORDER
Hearing held in Montpelier on March 25, 2013
Record closed on May 28, 2013
Frank Talbott, Esq., for Claimant
Keith Kasper, Esq., for Defendant
1. What is the appropriate compensation rate for the indemnity benefits due
Claimant as a consequence of his December 2009 cervical disc fusion surgery?
2. Were Claimant’s staph bacteremia infection and its sequelae causally related to
his February 14, 2011 work-related neck strain?
Joint Exhibit I: Medical records
Joint Exhibit II: Veterans’ Administration medical records
Claimant’s Exhibit 5: Curriculum vitae, Philip Carling, M.D.
Claimant’s Exhibit 6: Army National Guard 2004 Physical Profile
Claimant’s Exhibit 7: Army National Guard correspondence and memorandum, May 11,
Claimant’s Exhibit 8: Final Discharge Notice, October 22, 2007
Defendant’s Exhibit A: Department of Veterans’ Affairs Rating Decision, September 13,
Defendant’s Exhibit B: Correspondence from Kristie Farnham, February 17, 2009 and
January 26, 2009
Defendant’s Exhibit C: Curriculum vitae, Marjorie Eskay-Auerbach, M.D., J.D.
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. § 648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
This is the third time that issues related to Claimant’s July 1, 2005 compensable work injury
have come before the Commissioner. In Plante v. Vermont Agency of Transportation (Plante I),
Opinion No. 26-10WC (August 5, 2010), the Commissioner considered whether Claimant’s
cervical condition had been caused or aggravated by his work for Defendant, and concluded that
it had not. In doing so, the Commissioner rejected evidence from Claimant’s treating orthopedic
surgeon to the effect that the July 2005 injury, which Defendant had accepted in its initial
presentation as bilateral carpal tunnel syndrome, actually consisted of a “double crush
syndrome,” involving pinched nerves in both the neck and the wrists.
Claimant successfully appealed the Commissioner’s determination in Plante I to the Franklin
Superior Court Civil Division, where a jury concluded that his cervical condition had in fact been
“caused and/or aggravated by his employment for Defendant.” Thereafter, the Commissioner
entered an Amended Order requiring Defendant to pay “all workers’ compensation benefits to
which Claimant establishes his entitlement as a consequence of his compensable cervical
condition.” Plante v. Vermont Agency of Transportation, Opinion No. 26A-10WC (January 18,
In Plante v. State of Vermont Agency of Transportation (Plante II), Opinion No. 24-12WC
(September 14, 2012), the Commissioner was asked to determine the date of Claimant’s cervical
injury, so that the average weekly wage and compensation rate for subsequent periods of
disability could be calculated appropriately. The Commissioner assigned the same date of injury
– July 1, 2005 – to that condition as had been assigned to Claimant’s original bilateral carpal
Left unresolved in Plante II was whether Claimant’s wages from a concurrent employer, the
Vermont Army National Guard, should be included in calculating his average weekly wage and
compensation rate for indemnity benefits due as a consequence of his December 2009 cervical
disc fusion surgery. That issue is now ripe for consideration. Also to be decided in the current
action is whether the staph bacteremia infection with which Claimant was diagnosed in March
2011 was causally related to a separate compensable injury, consisting of a neck strain suffered
at work on February 14, 2011.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant has been an employee and Defendant
has been his employer as those terms are defined in Vermont’s Workers’ Compensation
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim. Judicial notice also is taken of the
Commissioner’s Opinion and Order in Plante v. State of Vermont Agency of
Transportation (Plante II), Opinion No. 24-12WC (September 14, 2012).
Claimant’s National Guard Employment and Average Weekly Wage Calculation
3. At the time of his July 2005 work injury, Claimant was a member of the Vermont Army
National Guard. During his tenure there he suffered a low back injury in 2003, as a result
of which he was rated as 20 percent disabled. Later, following a medical evaluation in
2004, his Guard-related physical profile indicated that he suffered from neck pain and
4. In 2006 Claimant’s unit was deployed to Iraq. His neck pain precluded him from
wearing a helmet or other required protective gear, which weighed 70 pounds. For that
reason, he was deemed a medical “hard no go.” As a result of that determination, the
Guard initiated medical discharge proceedings against him. The discharge decision was
issued in May 2006, and following his unsuccessful appeal, Claimant was discharged in
January 2008. I find from Claimant’s credible testimony that had he not been discharged
for medical reasons his intention would have been to remain in the Guard until his
5. In February 2009 Claimant signed a document prepared by Defendant’s adjuster
indicating that his discharge from the Guard was not related to his July 2005 work injury.
At the time, Claimant had not yet been diagnosed with double crush syndrome, and
therefore did not understand that his cervical condition was in any way related to his
work injury. I find from his credible testimony that he executed the document because he
believed that his work injury consisted solely of bilateral carpal tunnel syndrome, which
he expected would eventually heal.
6. Claimant endured three separate periods of disability causally related to his July 2005
work injury – the first following carpal tunnel surgery in March 2006, the second
following repeat carpal tunnel surgery in December 2008, and the third following
cervical disc fusion surgery in December 2009. His combined average weekly wage
(including wages received from both Defendant and the Guard) prior to the first period of
disability was $1,269.54. By the time of his 2008 and 2009 surgeries, he was no longer
employed by the Guard, and therefore his average weekly wage for those periods of
disability was significantly lower – $788.46 for the weeks prior to December 2008, and
$814.41 for the weeks prior to December 2009.
7. As a result of his December 2009 cervical disc fusion surgery, Claimant was totally
disabled from December 23, 2009 until February 1, 2010.
Claimant’s February 2011 Work Injury and Subsequent Staph Bacteremia Infection
8. On February 14, 2011 Claimant was at work for Defendant, shoveling at a roadside site
in Addison County. During the course of this activity, he felt a popping in his neck that
“hurt like heck.” He finished his shift and went home. That evening, he had to curtail a
Valentine’s Day dinner with his wife due to increasing, severe neck pain.
9. The next day Claimant reported his injury, remained home from work and sought
treatment with his primary care provider, who diagnosed a neck strain. In the ensuing
days, his symptoms worsened dramatically. His neck was red and swollen and he had a
high fever. He made several emergency department visits for unbearable, intractable
10. On March 10, 2011 Claimant was taken to the hospital after collapsing at home.
Ultimately, he was diagnosed with a staph infection, specifically staph bacteremia, which
had developed into an epidural abscess at the site of his December 2009 cervical fusion.
Now critically ill, Claimant underwent emergency laminectomies at C2, C3 and C4 and
drainage of the abscess at C1-2 and C3-4. After an intense rehabilitation, he returned to
work in May 2011.
Expert Medical Opinions
11. The parties presented conflicting expert opinions as to the causal relationship, if any,
between Claimant’s 2011 work injury and his staph bacteremia infection.
(a) Dr. Carling
12. Dr. Carling, an epidemiologist, is board certified in infectious diseases. His primary
clinical duties involve consultations in infectious disease cases. He also has published
many articles on the subject. At Claimant’s request, he reviewed the relevant medical
records in this case.
13. As Dr. Carling credibly explained, staph bacteremia is a well-recognized cause of
infection, especially epidural abscesses. Many of us carry staph bacteria in our bodies,
but in most cases infections do not result. For that to occur, the staph bacteria must break
out of the bloodstream and become affixed to a site or nesting place, known as a nidus. A
miniscule weakness in a vessel wall may be sufficient to allow this to occur. If the vessel
wall breaks, bleeding occurs. Blood is the best nutrient for staph bacteria; even in minute
amounts, blood fosters the infection to develop and multiply rapidly. Symptoms caused
by the infection usually appear within four to ten days, and typically include intense pain,
fever, and redness and swelling at the nidus.
14. According to Dr. Carling, in Claimant’s case the cervical strain he suffered at work on
February 14, 2011 was the likely cause of his staph bacteremia infection. Even a small
strain causes the muscles and tendons in the area to tear, which in turn causes the vessel
walls to break and bleed. Thus, when Claimant strained his neck while shoveling, the
mechanism was thereby provided for the staph bacteria to break out of the bloodstream. I
find this analysis credible.
15. As for how the epidural abscess in Claimant’s cervical spine occurred, according to Dr.
Carling the surgical hardware at the site of his December 2009 fusion surgery made that
area a likely target for a staph infection to develop. The number of staph cells necessary
to cause an infection decreases by a thousand fold when the nidus is a foreign body. In
addition, the human body will not kill infectious cells associated with the metal or plastic
that comprises the hardware.
16. As Dr. Carling correctly observed, the timeframe during which the symptoms indicative
of staph bacteremia occurred in Claimant’s case – four to ten days after his February
2011 neck strain – point to that event as the inciting factor that allowed the infection to
break out of the bloodstream. Having left the bloodstream, the most likely nidus for the
infection was at the site of his prior cervical fusion, a surgery necessitated by his July
2005 work injury. For these reasons, in Dr. Carling’s opinion, to a high degree of
medical certainty Claimant’s staph bacteremia and subsequent epidural abscess were both
work-related. I find this analysis extremely persuasive.
17. Dr. Carling acknowledged that the original source of the staph cells in Claimant’s body
may never be known. As noted above, it is possible for a person to carry the bacteria in
the body without ever developing a staph bacteremia infection.
(b) Dr. Eskay-Auerbach
18. Dr. Eskay-Auerbach is a board certified orthopedic surgeon and spine specialist. She has
not conducted any clinical research regarding staph infections and has not published on
the subject. At Defendant’s request, she reviewed Claimant’s relevant medical records.
19. In Dr. Eskay-Auerbach’s opinion, Claimant’s staph bacteremia infection was not causally
related in any way to his February 14, 2011 work injury. According to her analysis, the
“popping” sensation that Claimant experienced while shoveling on that day evidenced
that his infection was already existent. The onset of his pain and pattern of his
subsequent symptoms were consistent with an infection, but the medical records provide
no objective evidence that his neck strain resulted in either external or internal bleeding.
20. Contrary to Dr. Carling’s analysis, Dr. Eskay-Auerbach denied that a muscle strain
typically causes even a small pinprick of blood to escape from a blood vessel or muscle
tissue. She testified that in her twenty five years of experience, she has never observed a
muscle or tendon strain that bled. While I accept that she was earnest in her opinion,
nevertheless I find Dr. Carling’s testimony and analysis more convincing on this point.
21. In her testimony, Dr. Eskay-Auerbach identified what she considered another reasonable
explanation for the development of staph bacteremia in Claimant’s case – a subcutaneous
cyst on his hand that was removed in 2010. However, Dr. Carling credibly refuted this
theory in his testimony, noting that there was no indication in the medical records that the
cyst had been infected and that it appeared to have healed without complications. Had
the cyst been the genesis of the staph bacteremia infection, furthermore, one would have
expected the epidural abscess at the site of Claimant’s cervical fusion to have developed
within the seven-to-ten-day progression in symptoms typically associated with the
condition, not some two months later. For these reasons, I find Dr. Carling’s analysis
more persuasive than Dr. Eskay-Auerbach’s on this issue.
22. Both Dr. Eskay-Auerbach and Dr. Carling agreed on the following points:
• Claimant suffered a cervical strain on February 14, 2011;
• It is impossible to determine the origin of the staph cells in Claimant’s body; and
• A foreign body can be the nidus of a staph infection, and likely was in this case.
Where the two experts diverge is on the question whether the February 2011 cervical
strain was the precipitating factor that allowed the staph cells to develop into bacteremia.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts
essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the injury and the employment. Egbert v. The Book Press,
144 Vt. 367 (1984). There must be created in the mind of the trier of fact something
more than a possibility, suspicion or surmise that the incidents complained of were the
cause of the injury and the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. This case presents two distinct issues. First, should Claimant’s average weekly wage and
compensation rate for the indemnity benefits due him as a consequence of his December
2009 cervical fusion surgery include his Vermont Army National Guard wages?
Claimant argues that his Guard wages should be included, because it was at least in part
because of his July 2005 work injury that he was medically discharged from that
3. The second issue is whether Claimant’s staph bacteremia infection was causally related to
his February 2011 compensable work injury. Claimant asserts that the cervical strain was
what precipitated the infection, and therefore the necessary causal link is established.
Defendant contends otherwise.
Average Weekly Wage and Compensation Rate
4. At the time of Claimant’s 2005 work injury, Vermont’s workers’ compensation statute
stated: “Average weekly wages shall be computed in such manner as is best calculated to
give the average weekly earnings of the worker during the 12 weeks preceding an
injury.”1 21 V.S.A. §650(a). As to subsequent periods of disability arising from the
same compensable injury, §650(c) states: “When temporary disability . . . does not occur
in a continuous period but occurs in separate intervals each resulting from the original
injury, compensation shall be adjusted for each recurrence of disability to reflect any
increases in wages or benefits prevailing at that time.”
5. The rationale underlying §650(c) is to prevent an injured worker from being penalized in
situations where more recent wages – those immediately preceding a subsequent period
of disability – have been diminished as a consequence of work restrictions imposed
following the original injury and earlier period of disability. Griggs v. New Generation
Communications, Opinion No. 30-10WC (October 1, 2010). By the same token,
however, an injured worker should not receive a windfall when a reduction in earnings is
due to circumstances completely unrelated to the work injury. Id.
6. In this case, I conclude from the credible evidence that because Claimant’s July 2005
work injury precluded him from maintaining his concurrent employment for the Vermont
Army National Guard, the wages he received prior to his December 2009 disability were
accordingly diminished. Under §650(c), his compensation rate should have been based
on the earlier, higher average wages he had been able to earn prior to his original period
7. Defendant points to the document Claimant signed in February 2009 as evidence that
even he did not consider his medical discharge from the Guard to have been causally
related in any way to his work injury. However, Defendant fails to acknowledge that at
the time that document was executed the diagnosis of double crush syndrome, which
effectively tied Claimant’s cervical condition back to his July 2005 work injury, had not
yet been made. Under those circumstances, I conclude that the document carries no
value. The connection that mattered was the one supplied by medical experts based on
credible theories of medical causation, not the one Claimant misinterpreted based on his
understanding as a lay person.
8. As for Defendant’s argument that the medical records do not support a finding that
Claimant’s discharge from the Guard was due at least in part to his compensable neck
injury, I disagree. It is true that Claimant may have suffered from other conditions
unrelated to his employment for Defendant, such as low back pain. Taken as a whole, the
evidence is sufficient to justify a conclusion that his work-related cervical injury
contributed as well, however. Indeed, it was his neck pain that precluded him from
wearing a helmet in 2006, with the result that he was disqualified from deploying with his
unit to Iraq.
1 The statute was amended in 2008 to increase the computation period from 12 to 26 weeks.
9. I conclude that the indemnity benefits to which Claimant is entitled as a consequence of
his December 2009 cervical fusion surgery should be based on the wages he earned prior
to his original injury in July 2005, and thus should include both his wages from
Defendant and those from the Guard. Those wages yield an average weekly wage of
$1,269.54, and a corresponding weekly compensation rate of $846.36.
Compensability of Staph Bacteremia Infection
10. The parties presented conflicting expert opinions as to whether Claimant’s staph
bacteremia infection was causally related to his February 2011 compensable cervical
strain. In such cases, the commissioner traditionally uses a five-part test to determine
which expert’s opinion is the most persuasive: (1) the nature of treatment and the length
of time there has been a patient-provider relationship; (2) whether the expert examined all
pertinent records; (3) the clarity, thoroughness and objective support underlying the
opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the
experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No.
37-03WC (September 17, 2003).
11. I conclude that Dr. Carling’s opinion was more persuasive than Dr. Eskay-Auerbach’s.
His expertise in the area of infectious diseases was particularly relevant to understanding
how the staph cells in Claimant’s body developed first into a staph bacteremia infection
and then caused an epidural abscess at the site of the surgical hardware left from his prior
cervical fusion. Dr. Carling based his opinion on the objective signs with which
Claimant presented – a soft tissue injury followed by a steady progression of symptoms
including fever, severe pain and redness and swelling in his neck. Considering all of
these factors, Dr. Carling’s analysis was clearer, more thorough and better supported
objectively than Dr. Eskay-Auerbach’s opinion.
Costs and Attorney Fees
12. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs
and attorney fees. 21 V.S.A. §678(a). Claimant has submitted a request for costs totaling
$5,186.55, and attorney fees totaling $14,280.00. Defendant did not object to these
requests. I conclude that both the costs and fees are reasonable and they are thereby
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
1. Temporary total disability benefits in accordance with 21 V.S.A. §642 from
December 23, 2009 through January 31, 2010 at a compensation rate of $846.36
weekly, with interest on any unpaid amounts in accordance with 21 V.S.A. §664;
2. Permanent partial disability benefits in accordance with 21 V.S.A. §648 for the
ratable impairment referable to Claimant’s cervical condition and fusion surgery,
to be paid at an initial compensation rate of $846.36 weekly, with interest on any
unpaid amounts in accordance with 21 V.S.A. §664;
3. Temporary total disability benefits in accordance with 21 V.S.A. §642 covering
the period during which Claimant was disabled from working as a consequence of
his staph bacteremia infection, such benefits to be paid at a compensation rate
based on Claimant’s average weekly wage for the 26 weeks prior to February 14,
2011 and with interest on any unpaid amounts in accordance with 21 V.S.A.
4. Medical benefits covering reasonable treatment and supplies for Claimant’s staph
bacteremia infection and its sequelae, in accordance with 21 V.S.A. §640(a); and
5. Litigation costs totaling $5,186.55 and attorney fees totaling $14,280.00, in
accordance with 21 V.S.A. §678(a).
DATED at Montpelier, Vermont this 22nd day of August 2013.
Anne M. Noonan
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.
Tag Archive for: indemnity
George Plante v State of Vermont, Agency of Transportation (August 22, 2013)
Calvin McKiernan v. Standard Register (December 2, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Calvin McKiernan Opinion No. 47-09WC
v. By: J. Stephen Monahan, Esq.
Standard Register Co.
For: Patricia Moulton Powden
State File Numbers Z-01455 and T-14760
OPINION AND ORDER
Hearing held in Montpelier, Vermont on August 27, 2008
Record closed on September 15, 2008
Christopher McVeigh, Esq., for Claimant
David Berman, Esq., for Defendant Liberty Mutual Insurance Company
Justin Sluka, Esq., for Defendant Travelers Insurance Company
1. Did Claimant’s current low back condition arise out of and in the course of his employment at Standard Register?
2. Did Claimant’s right shoulder injury arise out of and in the course of his employment at Standard Register?
3. Is Claimant entitled to temporary disability benefits for any time after Standard Register closed for business and he was laid off?
4. Has Claimant reached an end medical result with regard to his current back and shoulder condition?
5. Is Claimant entitled to permanent partial disability compensation for an earlier workers’ compensation claim that occurred in February 2003 while Travelers Insurance Company was on the risk?
Summary judgment shall be awarded to the moving party if it can demonstrate that there is no genuine issue as to any material fact and it is entitled to judgment as a matter of law. Summary judgment is mandated when, after an adequate time for discovery, a party “fails to make a showing sufficient to establish the existence of an element” essential to the case and on which it has the burden of proof at trial. Poplaski v. Lamphere, 152 Vt. 251 (1989), citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In evaluating the propriety of a summary judgment motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22 (1996); Murray v. White, 155 Vt. 621 (1991).
In this case, genuine issues of material fact exist that preclude summary judgment for any party. First, the parties dispute the relationship of Claimant’s current low back and shoulder complaints to his employment at Standard Register. Claimant’s evidence suggests that his stressful, repetitive work with the Hunkler2 machine aggravated his low back and shoulder condition. In contrast, one of Defendants’ experts is of the opinion that Claimant’s problems are the result of degenerative changes associated with the aging process. The evidence diverges on the critical question of causation, therefore, making summary judgment on the issue inappropriate.
Assuming that Claimant’s condition is found to be work-related, furthermore, the parties dispute whether he is either totally or partially disabled from working. Although the parties agree that the reason Claimant ceased working for Standard Register was because the company closed, not because of his injury, they dispute whether his injuries currently prevent him from finding employment. This too presents a genuine issue of material fact.
Last, Claimant and Defendant Travelers dispute whether he is entitled to any permanent partial disability benefits for the February 21, 2003 back injury. This issue as well poses genuine issues of material fact.
Because each of these issues raise disputed questions of material fact, summary judgment is not appropriate, and all such motions are denied.
FINDINGS OF FACTS:
1. At all times relevant to this proceeding, Claimant was an employee and Defendant Standard Register was his employer as these terms are defined in Vermont’s Workers’ Compensation Act.
2. Travelers Insurance Company (“Travelers”) was Defendant’s workers’ compensation insurer at the time of Claimant’s February 2003 compensable work-related injury (State File No. T-14760).
3. Liberty Mutual Insurance Company (“Liberty”) was Defendant’s workers’ compensation insurer from July 1, 2003 until Standard Register ceased doing business in Vermont. Thus, Liberty was on the risk at the time of Claimant’s March 2007 injury claim (State File No. Z-1425).
4. The parties have stipulated that Travelers does not bear any liability for Claimant’s current back and shoulder claim. It may be liable for permanency benefits related to the 2003 injury.
5. Standard Register closed and ceased business on or about March 27, 2007.
6. Claimant worked full-time for Standard Register until the day the company closed.
7. Claimant did not seek treatment for his current alleged low back injury between July 2003 and March 14, 2007 (six days prior to his last day of work). Claimant worked full-time during that period, and no medical provider restricted his work activities during that period.
8. Claimant also first reported shoulder complaints on March 14, 2007. He saw a physician but no work restrictions were placed on him at that time.
9. According to Claimant, he had both back and shoulder complaints between July 2003 and March 14, 2007, but he feared losing his job if he reported another injury and so decided not to do so until just a week prior to being laid off. I do not find Claimant’s fear-of-termination story credible. He had filed complaints in the past, and had not been penalized by the company. In fact, he filed a mental stress claim during this period, and even quit his job for a week, but was rehired with no loss of seniority or benefits. I think it more likely that if Claimant was reluctant to file a claim, it was because he feared that if he were taken out of work he would be deemed ineligible for the severance package that the company was offering.
10. By his own admission, Claimant was willing to tailor his story to achieve a possible end. For example, after learning that the plant would be closing, Claimant thought he might want to become a truck driver. To that end, he went to a Dr. Iqbal, told the doctor that he had no complaints at all and sought a medical opinion that he was physically able to drive a truck. Claimant now alleges that these statements were not accurate, and that he only made them in order to obtain a medical release to drive a truck.1
1 As an aside, Claimant’s entire truck-driver scheme was rather unorthodox and demonstrates questionable judgment. He did not seek any formal training or evaluation, and evidently did not fully comprehend the demands of truck driving in any respect. After arranging to drive a friend’s truck, Claimant discovered that the job was harder than he initially had imagined and thereafter abandoned the plan.
11. Claimant’s testimony surrounding the termination of physical therapy treatment for his 2003 back injury is also telling. The physical therapy notes indicate that his condition was improving over time. On March 28, 2003 Claimant cancelled his appointment with the physical therapist, reporting that he had no symptoms. He sought no further treatment. At his deposition in 2008 Claimant acknowledged that his back had improved with physical therapy. At the formal hearing, however, Claimant’s testimony was somewhat different. There he stated that he cancelled his physical therapy appointment because he was unhappy and angry with his employer, who was asking when treatment would finish. Claimant also suggested that he did not like the “light duty” jobs offered by Standard Register, so he decided to stop going to physical therapy and return himself to full duty work status. This pattern of changing his story to achieve what he perceived to be a more beneficial result makes Claimant a less than credible witness.
Temporary Disability Benefits
12. Notwithstanding Claimant’s limited credibility, I find Dr. Bucksbaum’s opinion, supported in part by Dr. Ensalada’s opinion as well, compelling. Claimant was employed for several years in a difficult job. The stresses and strains of that job caused him injury and accelerated the onset of his arthritic degenerative condition.
13. Drs. Bucksbaum and Ensalada believe that Claimant’s current back injury is not a recurrence of his February 2003 injury. Rather, they believe that Claimant’s work at Standard Register after the arrival of the Hunkler2 machine in July 2003 resulted in an aggravation of his pre-existing condition.
14. In contrast, Dr. Johansson is of the opinion that Claimant’s current back and shoulder problems are the result of age-related degenerative changes, and have not been caused by his work for Standard Register. Dr. Johansson does not adequately address whether Claimant’s work in any way accelerated the pre-existing condition. In this respect, I find Dr. Johansson’s opinion to be both less complete and less credible than the opinions of Drs. Bucksbaum and Ensalada.
15. Based on the medical records submitted, Claimant did not seek medical treatment for his low back or right shoulder between November 2003 and August 2006.
16. On or about June 11, 2007 Dr. Bucksbaum placed work restrictions on Claimant but did not bar him from all work. According to Dr. Bucksbaum, Claimant had a limited work capacity dating back to March 20, 2007. Under the circumstances, I find that opinion too speculative to accept. Claimant had managed to work a full schedule right up until that date, and presumably would have continued to work thereafter had he not been laid off due to the company’s closure. I find that the evidence establishes that June 11, 2007 is the earliest date that Claimant established an entitlement to temporary partial disability.
17. Claimant began looking for work, and kept a job search log as soon as he learned that he was required to do so. Claimant is entitled to temporary partial disability benefits from June 11, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Notwithstanding the fact that he has some work capacity, Claimant has not worked at all during this period. Therefore, his temporary partial disability rate is equivalent to the temporary total disability benefit – two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
Permanent Partial Disability Benefits
18. Claimant essentially declared himself at end medical result on March 28, 2003 when he cancelled his physical therapy appointment and announced that he was ready for full duty work. He made no request for permanent partial disability benefits at that time, and the insurer on the risk at the time (Travelers) made no effort to evaluate whether any permanency benefits were due.
19. In 2003 the applicable statute of limitations within which to make a workers’ compensation claim was six years. Claimant’s claim for permanency benefits attributable to this earlier injury is timely. Because of the lapse of time between claimant’s “medical end” relating to the 2003 injury and the date of his permanency evaluations, an accurate determination is difficult, but not impossible.
20. Workers’ Compensation Rule 18.1100 provides that “The employer (insurer) shall take action necessary to determine whether an employee has any permanent impairment as a result of the work injury at such time as the employee reaches a medical end result.” Taken in its proper context, the rule contemplates that the trigger for the insurer’s action will be either a medical opinion establishing end medical result or a claim for permanent disability benefits. The rule does not anticipate a circumstance where a claimant would deem him- or herself at end medical result. As that is essentially what happened in this instance, I will not interpret Rule 18.1100 to require the insurer to have sought a permanency opinion before a claim was made or a medical determination rendered. I do note, however, that an insurer certainly could protect itself by seeking a determination of both end medical result and permanency at the time a claimant returns to work.
21. I find that Claimant had no impairment after the 2003 injury. Although Dr. Bucksbaum offered an opinion that Claimant had a 5% whole person impairment, he could not credibly testify that Claimant exhibited muscle spasm or guarding, asymmetric loss of range of motion, or non-verifiable radicular complaints at the time he returned to full duty work. I am therefore left with the opinion of Dr. Ensalada, which, although it appears to be an effort to offer a legal opinion rather than a medical opinion, is at least consistent with the 5th edition of the AMA Guides. Since the burden of establishing an entitlement to any permanency benefits is on the claimant, and Claimant has not met that burden, no benefits are awarded.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, sufficient competent evidence must be submitted verifying the causal connection between an injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984). Where the causal connection between an accident and an injury is obscure, and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
2. There must be created in the mind of the trier of fact something more than possibility, suspicion or surmise that the incidents complained of were the cause of the injury and resulting disability. Claimant must demonstrate that the most probable hypothesis is that the work incidents caused or aggravated the injury. See, Burton v. Holden Lumber, 112 Vt 17 (1941).
3. If a claimant has a pre-existing condition, he or she may still be entitled to workers’ compensation benefits if he or she is able to demonstrate that the work incident has aggravated or accelerated that pre-existing condition. See Jackson v. True Temper, 151 Vt. 592, 595 (1989).
4. The general rule is that a claimant who voluntarily quits his or her job for reasons unrelated to a compensable work injury is not entitled to temporary total disability. The workers’ compensation statute is remedial in nature, and so, to avoid harsh, unfair results, there is an exception to the general rule for a claimant who can demonstrate: (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 reduced wages) is related to the work injury and not to other unrelated factors. See, e.g., J. D. v. Putney Paper Co., Opinion No. 13-08WC (April 8, 2008); J.P. v. Pollution Solutions of Vermont, Opinion No. 23A-01WC (October 5, 2001), citing Andrew v. Johnson Controls, Opinion No 3-93WC (June 13, 1993).
5. When a claimant had no wages prior to the date of disability, workers’ compensation benefits are calculated based on the pre-injury wages plus any additional cost of living increases that may have accrued in the interim. See J. D. v. Putney Paper Co., supra; J.P. v. Pollution Solutions of Vermont, supra.
6. I conclude that Claimant’s receipt of severance benefits does not prohibit his receiving workers’ compensation benefits for the same period. Severance benefits are paid in exchange for the release and waiver by the employee of any right to sue the employer. They are sufficiently different from wages so as not to be considered when evaluating a right to temporary disability benefits.
7. I also conclude that Claimant’s application for and receipt of unemployment benefits does not defeat his claim for temporary disability benefits. Claimant’s physician had placed work restrictions on him, but had not prohibited all forms of work. Furthermore, to the extent that Claimant receives temporary disability benefits during a period when he also received unemployment benefits, he will have to repay the latter.
8. The Workers’ Compensation Act provides:
Where the disability for work resulting from an injury is partial, during the disability and beginning on the eighth day thereof, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average wage before the injury and the average weekly wage which he or she is able to earn thereafter.
21 V.S.A. §646.
9. Claimant has established that he was temporarily partially disabled as of June 11, 2007. He is entitled to temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which he establishes that he performed a good faith work search. Since Claimant was unable to find employment consistent with his limited ability to work payment shall be based on two-thirds of his average weekly wage for the twelve weeks preceding March 20, 2007.
10. For the purposes of workers’ compensation, “permanent disability” is established when the injured employee either reaches an end medical result or when maximum earning power is restored through resumption of employment. Wroten v. Lamphere, 147 Vt. 606, 610, (1987); Orvis v. Hutchins, 123 Vt. 18, (1962). The claimant has the burden of proving that a work injury has resulted in a permanent impairment. The degree of impairment must be determined using the 5th edition of the AMA guides. 21 V.S.A. §648. Claimant failed to meet his burden of establishing that he had a permanent partial disability impairment when he returned to full duty work in March of 2003.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ORDERED that:
1. Claimant’s request for an award of permanent partial disability benefits based on the 2003 injury is DENIED.
2. Liberty Mutual is ORDERED to pay:
a. All medical benefits that are determined to be reasonable and necessary treatment for Claimant’s compensable March 2007 work injury;
b. Temporary partial disability benefits from June 19, 2007 through April 2008, and thereafter for each week in which Claimant establishes that he performed a good faith work search;
c. Liberty Mutual is further ordered to promptly evaluate Claimant’s entitlement to vocational rehabilitation services.
4. Claimant shall have 30 days from the date of this Order to submit his request for costs and attorney fees.
DATED at Montpelier, Vermont this 2nd day of December 2009.
Patricia Moulton Powden
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.