Sicotte v. Brattleboro Retreat (Nov. 25, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Dennis Sicotte File # G-20052
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Brattleboro Retreat Commissioner
Opinion #: 71-96WC
Hearing held in Montpelier, Vermont, on October 17, 1996.
Record closed on November 12, 1996.
APPEARANCES
Michael J. Hertz, Esq., for the claimant
Keith J. Kasper, Esq., for the employer
ISSUE
Whether the claimant's December 2, 1995, incident involving his back is an
aggravation or a recurrence of his March 27, 1994, injury at the Brattleboro
Retreat.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642.
2. Medical and hospital benefits pursuant to 21 V.S.A. §640.
3. Attorney's fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. On March 27, 1994, Plaintiff was an employee within the meaning of the Vermont Workers' Compensation Act.
2. On March 27, 1994, Brattleboro Retreat was Claimant's employer within the meaning of the Act.
3. On March 27, 1994, ITT Hartford was the workers' compensation insurance carrier for the Brattleboro Retreat within the meaning of the Act.
4. On March 27, 1994, Claimant suffered a work-related injury arising out of and in the course of his employment. As a result of that injury, Claimant was paid all benefits due as of December 1, 1995, including permanent partial disability benefits in the amount of 10% of the spine.
5. On December 2, 1995, Claimant's disk herniated.
6. The issue for resolution by the Department of Labor and Industry is whether or not Claimant's December 2, 1995 disability and ongoing disability is an aggravation or recurrence of the original March 27, 1994 injury.
7. As of April 1, 1995, Claimant had left the employ of Brattleboro Retreat and was employed by Cedar's Nursing Home in Portland, Maine. The Department of Labor and Industry has no jurisdiction over Cedar's Nursing Home.
8. At the time of the December 2, 1995, herniation and thereafter, Claimant had two dependents.
9. On December 2, 1995, Claimant's average weekly wage was $530.81, resulting in a compensation rate of $353.88.
10. The parties agree to the admission of the Joint Medical Exhibit and deposition transcripts of Dr. Pavlak, Dr. Barth and Dr. Boothby.
EXHIBITS
1. Joint Exhibit 1 Deposition of Dr. John Boothby
2. Joint Exhibit 2 Deposition of Dr. Douglas Pavlak
3. Joint Exhibit 3 Medical records notebook
4. Joint Exhibit 4 Deposition of Dr. K.N.M. Barth
FINDINGS OF FACTS
1. The above stipulations are accepted as true and the exhibits are admitted into evidence. Notice is taken of all forms filed with the Department of Labor and Industry.
2. The claimant worked for a number of years at the Brattleboro Retreat in a number of different positions. His most recent positions at the employer were as production chef and then production manager. In these positions, the claimant had to perform a number of tasks involving repetitive heavy lifting, and twisting and turning. On March 27, 1994, he suffered an injury in which he herniated the L5 disc. After conservative treatment failed to relieve his symptoms, he underwent a laminectomy and discectomy on May 13, 1994.
3. After the surgery, the claimant initially felt a complete resolution of his complaints. However, as he returned to work at the Retreat, he noticed that he was having significant problems with his back. These problems included soreness in his lower back that would resolve with rest and aspirins. However, the work load at the Retreat was extremely heavy, and the claimant determined that it was in his best interest to seek another job.
4. The claimant moved to Maine and took a position with Cedar's Nursing Home as the associate food services director. The claimant testified that his duties at Cedar's were very similar to his duties at the Retreat, but that the workload was much lighter as it was a smaller facility. He opined that the load at Cedar's was approximately one third of the load at the Retreat. He indicated that at the Retreat, he had done more receiving, including rotating stock, and that the working conditions were extreme.
5. The claimant agreed that he probably did some things at Cedar's that were beyond his capabilities. However, he testified that he had no lifting restrictions after one month after the first surgery. He thought that he was perhaps not supposed to lift items over 50 pounds in weight. He admitted that he pushed himself at Cedar's, but indicated that he was able to go for a walk after work, which he had never been able to do at the Retreat. He also testified that while he got progressively worse while he worked at the Retreat, he was consistently better and healthier while at the Cedar's.
6. On December 2, 1995, while at home, the claimant coughed while walking into his kitchen. He immediately felt a sharp pain radiating down both legs. The location of the pain was the same as in his prior injury, and the pain was originally the same. However, on this occasion, the pain did not taper off the way it had eighteen months earlier. He contacted his doctor, who advised medications and rest. His symptoms progressed over the following two days to the point that he was having difficulty walking and urinating. Based on his new symptoms, particularly the problem with voiding, he was seen by Dr. Barth as a surgical candidate.
7. Dr. Konrad Barth testified that he operated on the claimant after an MRI established a recurrent herniation of the disk at the L5 level, and after conservative treatment failed to resolve his problems. Dr. Barth noted that the claimant's complaints of pain on the left side progressed through the period of conservative care, and that this was troublesome, as it might indicate a further herniation of the disk, which might put some of the other nerve roots at risk. The surgery that was performed on January 5, 1996, was a repeat laminotomy on the right side with a discectomy and a left laminotomy.
8. After the surgery, the claimant initially felt better but noticed that as he increased his activities, his pain increased. He experienced pain down the right leg and numbness in the right foot. He continued to treat with Dr. Barth for several months with continued reports of increased symptoms, although he was overall quite improved from his condition prior to the
surgery. Dr. Barth performed an MRI in April and established that the claimant's L5-S1 disc looked highly degenerated. As a result of his findings, he referred the claimant to Dr. Douglas Pavlak, a physiatrist.
9. Dr. Pavlak testified with regard to his report dated April 29, 1996, in which he stated that "[t]he patient states that he did admittedly have some recurrent back pain from time to time. He pointed out that the nature of his job was somewhat physical in that he did frequently do lifting that he knew was somewhat above and beyond what would be ideal." This language seems to refer to the period of time prior to the claimant's move to Maine, and is consistent with the claimant's testimony. Dr. Pavlak in his testimony appeared to assume that this description also fit the claimant's work at the Cedar's, although there is minimal evidence to support this. Dr. Pavlak indicated that his treatment of the claimant was predominantly medication and behavioral modification, as well as therapeutic exercise. He thought that osteopathic manipulations might be appropriate, but his osteopathic associate did not agree.
10. Dr. Pavlak opined that the claimant's reherniation of the disc was in some measure attributable to the claimant's work at Cedar's. He indicated that "if you have a gentlemen in a job situation where he is doing routinely as part of his every day life, five days a week or more, activities that are clearly biomechanically stressing the disc over and above what you think would be within the realms of sound judgment, it is hard to ignore that when you then have a second disc failure and someone asks you why." Dr. Pavlak's basis for finding that the claimant's work was outside the range of sound judgment was the claimant's description of his job duties at Cedar's.
11. Dr. Barth was not quite so sanguine in his ascription of responsibility for the reherniation. In fact, he indicated that the claimant's statement that he could do most of the work at Cedar's without "excessive symptomatology" was evidence that any activities that the claimant participated in during the 18 months since the first surgery would be likely to cause the reherniation. Dr. Barth also found it significant that the reherniation occurred at home while the claimant was coughing and not while he was at work. Dr. Barth also indicated that he had great respect for the opinion of Dr. Pavlak, but that he disagreed with him in this instance.
12. Causation of the reherniation is further muddied by the testimony of Dr. John Boothby, a board certified neurologist, who performed a records review for the insurer. Dr. Boothby indicated that, if the claimant was lifting regularly as reported by Dr. Pavlak, then the cumulative trauma from that lifting was a possible cause of the reherniation. He similarly indicated that the reherniation was possible, although not probable, from simply the cough, in the event that the claimant had not worked at Cedar's. It was his opinion that the work at Cedar's could have caused deterioration of the disc that sufficiently weakened it to allow for the acute event that occurred when the claimant coughed. Dr. Boothby admitted that this opinion was based on supposition and that he could not state this opinion to a reasonable degree of medical certainty.
13. All three doctors agreed that the mechanism of the injury in this case was a reherniation at the site of the prior herniation. They all testified that the occurrence of one herniation would predispose the patient to a higher likelihood of a second herniation, and that the second herniation would probably occur at the site of the original herniation. The reason for this is that the original herniation would cause a tear in the anulus, a hard cartilage structure around the softer disc. The human body apparently attempts to heal the tear by building scar tissue over the hole in the anulus, and the scar tissue is weaker than the rest of the anulus, therefore being the site where a disc is likely to extrude.
14. At some time in January, the claimant called the insurer and attempted to reopen his claim based on the injury at the Brattleboro Retreat. When he was denied, he contacted a Maine lawyer for assistance in bringing a claim in Maine against the Cedar's Nursing Home. Thereafter, he went to a second lawyer in Maine, who referred him back to Vermont to pursue his claim. In May of 1996, when he had not received any compensation benefits from the employer here, he sought to obtain group disability benefits through the Cedar's Nursing Home. The claimant has always ascribed the damage to his disc to his work at the Retreat and not at the Cedar's.
15. The claimant has presented evidence of his fee agreement with his attorney for a contingency fee of 20% of the amount recovered for past due temporary total disability benefits and 20% of the amount recovered for permanency. Subject to the limitations of Rule 10(a) of the Worker's Compensation and Occupational Disease Rules, this agreement is acceptable. The claimant has also presented evidence of costs expended on his behalf in
the amount of $845.43. This amount is also reasonable.
CONCLUSIONS
1. In workers' compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1963). The claimant 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).
2. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well grounded opinion as to causation, expert medical testimony is necessary. Lapan v. Berno's Inc., 137 Vt. 393 (1979). 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 inference from the facts proved must
be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. The issue in this case is whether the work performed by the claimant at the Cedar's Nursing Home was a sufficient intervening cause to terminate the Brattleboro Retreat's obligation to provide the claimant with workers' compensation benefits. It is unlike the traditional aggravation/recurrence case in that only one of the employers is present to press its case. It is also dissimilar to the traditional case in that the claimant's second injury did not occur on the job, but rather at home. Therefore, the burden is on the employer to show that another employer is responsible for the benefits sought herein. Once it has been established that a claimant is entitled to benefits under the Workers' Compensation Act, the burden shifts to the employer to establish the propriety of either ceasing or denying further
compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974).
4. The employer cites to extensive testimony by Dr. Pavlak to support its theory that the work performed by the claimant at the Cedar's constituted a cumulative trauma injury sufficient to break the chain of causation. Dr. Pavlak's opinion was based almost entirely upon the claimant's report of his activities at Cedar's. Unfortunately, Dr. Pavlak's description of those activities is somewhat at odds with the claimant's testimony at the hearing. While it is true that the claimant continued to perform lifting and twisting functions at his job at Cedar's, he had restricted this work to such an extent that he was able to perform many of his regular activities after work, unlike the period when he was still at the Retreat. It is unclear whether Dr. Pavlak's opinion would have been different had he been aware of the
substantial reduction of the claimant's work load after his move to Maine.
5. In any event, where the burden of proof is on the employer, I cannot find that the employer has met that burden in this case. Neither Dr. Barth, the surgeon, nor Dr. Boothby could say to the requisite degree of medical certainty that the work at the Cedar's was of a sufficient magnitude to constitute an intervening cause. Each spoke in terms of possibilities, not probabilities, and Dr. Barth at least was convinced that activities of daily living were a likely explanation for the reherniation. Dr. Barth's testimony must be given substantial weight in light of his experience as the surgeon who managed the claimant's care after the coughing incident, and who moreover performed the surgical intervention when conservative care failed to reduce the claimant's symptoms. In light of the significant disagreements amongst the doctors in this case, I cannot find that any of the evidence creates a "more probable hypothesis." Each hypothesis is equally likely, and in this case, where the burden of proof is on the employer, a tie goes to the claimant.
6. The claimant having prevailed is entitled as a matter of law to an award of costs and as a matter of discretion to an award of attorney's fees. Costs are awarded in the amount of $845.43, and fees in the amount of 20% of the amount awarded herein, not to exceed $3,000.00.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that:
1. ITT Hartford, or in the event of its default the Brattleboro Retreat, pay the claimant such temporary total disability benefits as he is entitled to under the Workers' Compensation Act;
2. ITT Hartford, or in the event of its default the Brattleboro Retreat, pay medical benefits for the claimant's surgery and other medical care since December 2, 1995;
3. ITT Hartford, or in the event of its default the Brattleboro Retreat, provide such other benefits as the claimant is entitled to under the Workers' Compensation Act as a result of the finding herein; and
4. ITT Hartford, or in the event of its default the Brattleboro Retreat, pay attorney's fees in the amount of 20% of the sums awarded herein, not to exceed $3,000.00, and costs in the amount of $845.43.
DATED at Montpelier, Vermont this 25th day of November 1996.
_____________________________
Mary S. Hooper
Commissioner