Garvin v. Mt. Snow (Sept. 3, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Michael Garvin File #: G-17112
By: Barbara H. Alsop
V. Hearing Officer
For: Mary S. Hooper
Mt. Snow Commissioner
Opinion #: 53-96WC
Hearing held at Montpelier, Vermont, on June 27, 1996.
Record closed on July 16, 1996.
APPEARANCES
Sam W. Mason, Esq., for the claimant
Glenn S. Morgan, Esq., and Tammy M. Besaw, Esq., for the employer
ISSUE
Whether the claimant's neck surgery and other related treatment was compensable as a result of his
injury of February 24, 1994.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 as may be determined.
2. Permanent partial disability compensation pursuant to 21 V.S.A. §648 as may be determined.
3. Medical and hospital benefits pursuant to 21 V.S.A. §640.
4. Vocational rehabilitation pursuant to 21 V.S.A. §641(b).
5. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. At all relevant times, the claimant was an employee within the meaning of the Workers'
Compensation Act.
2. At all relevant times, the defendant was an employer within the meaning of the Workers'
Compensation Act.
EXHIBITS
1. Joint Exhibit 1 Medical records notebook
2. Joint Exhibit 1A Medical records notebook
3. Claimant's Exhibit A Deposition of Dr. John T. Chard, M.D.
4. Defendant's Exhibit I Deposition of Dr. Peter Upton, M.D.
FINDINGS OF FACT
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 in this matter.
2. The claimant was working as a lift attendant for the employer on February 24, 1994, when he
slipped on some ice while loading a chairlift.
The claimant reported pain in his lower back that was sufficiently debilitating that his back "froze" and
he could not move. He saw the first aid people at the ski area who sent him home after icing his back.
3. The claimant initially felt pain in his lower back where the "freezing" occurred, but as that pain
calmed down in the evening, he also noticed significant pain in his neck. The claimant reported both
pains when he went to see a chiropractor the following day. He tried to return to work but only lasted a
few hours.
4. The claimant then went to another chiropractor, Michelle Doucette, who ordered x-rays which
revealed a congenital defect in the C1-C2 area of the claimant's spine. She indicated that chiropractic
treatment was the nature of the defect. Thereafter the claimant was seen by Dr. Keith Edwards, a
neurologist, whose impression was of a subluxation at C1-C2, "status post fall with whiplash type of
musculoskeletal injury of the cervical spine." He determined that the instability of the C1-C2 area
needed further assessment.
5. The claimant then went to Dr. John Chard, an orthopedist. Dr. Chard has treated the claimant since
May of 1994, with physical therapy and medications. He has testified that the claimant had at least
some work capacity through most of the period that he treated the claimant. The claimant did not
participate well in physical therapy for a number of reasons, and Dr. Chard referred the claimant to
Dr. Sy at the Cheshire Medical Center in Keene, N.H. for pain management. On August 16, 1994, Dr.
Sy determined that the claimant was suffering from a disseminated myofascial pain syndrome, and
indicated that the claimant would not be at an end medical result for 12 months. He opined that the
claimant had a light duty work capacity, although it would be "virtually unavailable to him based
on his intellectual achievement and past job experience." The claimant returned to Dr. Chard for treatment.
6. In February of 1995, X-rays confirmed that the claimant had a congenitally small or absent odontoid,
the bone that connects the C2 vertebra to the C1 vertebra. As a result, the claimant had excessive
motion in that area of the spine. Dr. Chard opined that the pre-existing condition was aggravated by the
fall at work, "causing some increased mobility and certainly causing persistent symptoms in the neck
area." Dr. Chard noted that many of the apparently bizarre symptoms that the claimant reported were
consistent with an affront to the nerves at the C1-C2 levels.
7. As a result of these findings, the claimant underwent a fusion of the C1-C2 space in May of 1995. This
operation was deemed necessary by the surgeon, Dr. William Abdu, because of the high risk of paralysis
or death from further trauma to the area. Unfortunately, the first fusion was unsuccessful, and a repeat
fusion was performed in September of 1995. The claimant is scheduled to see Dr. Abdu in September
of 1996 for a one year check-up after the second fusion.
8. The claimant returned to Dr. Chard in February of 1996 for further treatment of his lower and mid
back, areas that were not affected by the cervical fusion. Dr. Chard made findings consistent with
Dr. Sy's diagnosis of disseminated myofascial pain syndrome, and recommended physical therapy and
restarting Amitriptyline. However, he doubted the efficacy of a rehabilitation program given the
claimant's severely limited test level on IQ testing, and his inability to return to physical labor to which
he was accustomed. He gave the claimant a sedentary work release with limitations for March 18, 1996.
9. The claimant was examined by Dr. Peter Upton in February of 1995 at the request of the insurer. Dr.
Upton found that the claimant did not appear to be limited in his movements and had alleged symptoms
out of proportion to those expected from the trauma of February 24, 1994. He opined that the claimant's
C1-C2 abnormalities had nothing to do with the claimant's current complaints, and were not related to the
injuries received at Mt. Snow. In his testimony, Dr. Upton reiterated the importance to him of the fact that
the claimant made no initial report of neck pain, and no report until 24 hours after the injury. He found
that the only way the fall at Mt. Snow would cause any increase in problems in the C1-C2 deformity
would be if there were torn muscles or ligaments increasing the instability. He stated that it was
"impossible to believe that you can do that sort of injury with no symptoms whatsoever right off the bat."
He found that the claimant's complaints of neck pains the following day was more consistent with a mild
muscle strain, which would not contribute to the instability in the neck. He refused to adopt the position
that a claimant suffering a significant trauma to another area of the body, i.e., the lower back, might not
report a lesser trauma to the neck. Dr. Upton opined that the claimant was at an end medical result at the
time of his examination and suffered from an 11% permanent partial impairment to his spine.
10. The claimant has presented evidence of his fee agreement with his attorney for a fee of 20% of the
amount recovered or $3,000.00, whichever is less. He also produced an itemization showing that his
attorney expended 34.45 hours in preparation of the claim, with expenses in the amount of $177.00.
These are 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 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). 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 claimant has established that he had, prior to the work injury of February 24, 1994, an
asymptomatic pre-existing condition. If that condition became symptomatic as a result of the injury in
question here, then the claim is compensable. See, inter alia, Campbell v. Heinrich Savelberg, Inc., 139
Vt. 31 (1980) and cases cited therein, Jackson v. True Temper, 151 Vt. 592 (1989), and Clark v. U.S.
Quarried Slate Products, Opinion No. 8-95WC.
4. Dr. Chard, as well as Dr. Edwards and Dr. Abdu, all treating physicians, found the necessary correlation
between the injury at Mt. Snow and the onset of symptoms in the claimant's congenital defect. They had
both special knowledge in the field as an orthopedist, a neurologist and an orthopedic surgeon respectively,
and they had the opportunity to examine the claimant at the time of the most significant symptoms from
the injury. Dr. Upton on the other hand saw the claimant for the first and only time almost one year after
the injury. He never acknowledged the significance of the claimant's intellectual limitations in assessing
either the claimant's initial complaints of pain or in the history the claimant gave to him. He declined
to accept the possibility that the claimant may have failed to report the neck pain immediately because of
the overwhelming pain in his lower back. He found no significance in the report of the neck pain the
following day.
5. I find that the opinions of the three treating physicians are more credible than that of Dr. Upton, and
find that the claimant's asymptomatic congenital defect was made symptomatic by the work injury of
February 24, 1994. Therefore, all of the treatment for that defect is compensable, as is the claimant's
temporary total disability claim.
6. It should be noted that the claimant's release to work on March 18, 1996, by Dr. Chard, and Dr.
Chard's prior indications of work capacity were before the claimant was placed at end medical result by
Dr. Abdu from the second fusion, and therefore the question of medical endpoint is still unresolved.
A claimant with a release to work is obligated to make a good faith effort to find work upon notice of
his obligation to do so. There is no evidence that the claimant was so notified, nor is there any evidence
from which I can find that the claimant had the capacity to find work consistent with his substantial
limitations. At least two of the claimant's treating physicians assert that the claimant is unlikely to find
work consistent with his physical limitations in light of his intellectual limitations. I find that the claimant is
entitled to vocational rehabilitation services, given that he cannot return to his prior work and has no
transferrable skills.
7. The defense makes much of the claimant's lack of credibility because of his inconsistent histories to
the various doctors and his varied stories about collateral issues in this case. In light of the claimant's
low score on his intelligence tests, and his apparent difficulty in understanding questions at the hearing,
I find that the claimant's apparent lack of credibility in this case is not based on intentional misstatements
on his part but rather is the function of the limitations from which he suffers, and hence is not dispositive
of this matter, as the defense claims.
8. The claimant having prevailed is entitled to an award of attorney's fees as a matter of discretion,
and costs as a matter of right. Costs are awarded in the amount of $177.00. In light of the medical
benefits awarded herein, it is likely that the claimant's recovery is in excess of $15,000.00. Therefore,
attorney's fees in the sum of $3,000.00 are awarded, subject to a motion to reconsider in the event that
the claimant's recovery does not exceed $15,000.00.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. S-K-I, Ltd., and Mt. Snow, jointly and severally, pay temporary total disability compensation to the
claimant through the date of his end medical result or his successful return to work, whichever is earlier;
2. S-K-I, Ltd., and Mt. Snow, jointly and severally, pay medical benefits for the claimant's fusion
surgeries and related medical care, and such other medical benefits as are required by the terms of
this opinion;
3. S-K-I, Ltd., and Mt. Snow, jointly and severally, provide vocational rehabilitation services to the
claimant in accordance with this opinion;
4. S-K-I, Ltd., and Mt. Snow, jointly and severally, provide such other benefits as the claimant is
entitled to under the Workers' Compensation Act in accordance with this decision;
5. S-K-I, Ltd., and Mt. Snow, jointly and severally, pay attorney's fees in the amount of $3,000.00
and costs in the amount of $177.00.
DATED at Montpelier, Vermont, this 3rd day of September 1996.
________________________________
Mary S. Hooper
Commissioner
Garvin v. Mt. Snow, Ltd. (Oct. 31, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Michael Garvin File #: G-17112
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Mt. Snow, Ltd. Commissioner
Opinion #: 53A-96WC
Ruling on Motion to Reconsider
The defendant filed a Motion to Reconsider based on (1) a claim that the
order issued went beyond the scope of the issue set for hearing, that is,
the compensability of the claim, and (2) its disagreement with the facts
found by the Hearing Officer.
I. The Issue Argument
The defendant argues that the order in Opinion #53-96WC exceeds the issues
identified at the pretrial conference and hence deprives the defendant of
due process. Because the only issue identified was compensability, the
defendant argues that the Commissioner only has the authority to issue a
ruling of compensability. However, a finding of compensability carries with
it certain inherent obligations of an employer, to wit, paying temporary
total disability benefits should the claimant be unable to work as a result
of the work injury until the claimant either reaches an end medical result
or returns to work; paying medical benefits required as a result of the
compensable injury; and providing vocational rehabilitation benefits to
any individual who otherwise qualifies under the Workers' Compensation Act
among others. The order in Opinion #53-96WC did no more than state the
employer's inherent obligations upon a finding of compensability, as a
careful reading will show.
II. The Factual Argument
The defendant argues that the claimant failed to meet his burden of proof
in two respects. The first is that he allegedly failed to adduce expert
testimony of causation as required by a number of decisions, including
Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941). I need not reach
the full scope of the argument as the claimant did produce expert testimony
from Dr. Chard, who adopted without challenge under questioning by the
defendant's attorney the substance of other physician's medical records.
In fact, under that questioning, Dr. Chard read into the record Dr. Abdu's
statement that the pre-existing condition was aggravated by the work injury,
which was directly relevant to the issue before me. The defendant did not
move to strike the evidence, and hence it was admissible on the issue of
causation.
The defendant's second argument is that there is no evidence in the record
of the claimant's allegedly low IQ, and its possible effect on the claimant's
rehabilitation. Again, a reference to Dr. Chard's deposition shows that
Dr. Chard testified, in response to questioning by the defense attorney,
that the claimant had an IQ test showing an IQ of 77. Moreover, in the
joint medical exhibit, prepared by the defendant, is Dr. Chard's note of
February 13, 1996, in which he notes that "[h]is IQ testing at 77, suggests
that he may have a problem with maintenance of a rehabilitation program."
The defendant's argument is without merit, and shows a remarkable lack of
familiarity with the evidence in this case.
THEREFORE, the Defendant's Motion to Reconsider is denied.
DATED at Montpelier, Vermont this 31st day of October 1996.
________________________________
Mary S. Hooper
Commissioner