Henderson v. Northeast Tool (Oct. 31, 1996)
DEPARTMENT OF LABOR AND INDUSTRY
Carlton Henderson File #: C-27112
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Northeast Tool Commissioner
Opinion #: 59A-96WC
Ruling on Claimant's Motion to Clarify Decision on Request for Reconsideration
Claimant has filed the above referenced motion because his original request for
reconsideration requested an award of attorney's fees and costs. In denying that motion,
the words "and costs" were inadvertently omitted from the order denying claimant's motion.
THEREFORE, the first order in Opinion No. 59-96WC is amended to read:
Carlton Henderson's request for attorney's fees and costs be denied.
DATED at Montpelier, Vermont this 31st day of October 1996.
________________________________
Mary S. Hooper
Commissioner
Henderson v. Northeast Tool Division (Sept. 3, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Carlton Henderson File #: C-27112
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Northeast Tool Division Commissioner
Opinion #: 48-96WC
Hearing held at Montpelier, Vermont, on May 23, 1996.
Record closed on July 3, 1996.
APPEARANCES
David J. Williams, Esq., for the claimant
Andrew C. Boxer, Esq., for the defendant
ISSUES
1. When did the claimant reach an end medical result from his work injury of June 8, 1990?
2. Is the claimant entitled to permanency benefits as a result of his injury?
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from August 20, 1991, through September 14, 1993.
2. Permanent partial disability compensation pursuant to 21 V.S.A. §648 for 112.2 weeks.
3. Medical and hospital benefits pursuant to 21 V.S.A. §640.
4. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. On June 8, 1990, the claimant was an employee within the meaning of the Workers' Compensation Act.
2. On June 8, 1990, the defendant was an employer within the meaning of the Workers' Compensation Act.
3. On June 8, 1990, the claimant suffered an injury arising out of and in the course of his employment with the defendant.
EXHIBITS
1. Exhibit A: Dr. Caswell's deposition and attached exhibits
2. Exhibit B: Physical therapy records
3. Exhibit C: Additional medical records
4. Exhibit D: Records of Dr. Thomas Turek
5. Exhibit E: Videotape
6. Defendant's Exhibit I: Interview Form
7. 1 for Identification: Eight documents from the Department of Labor and Industry file
FINDINGS OF FACT
1. The above stipulations are accepted as true, and the exhibits are admitted into evidence, with the exception of #1 for Identification. Notice is taken of the documents in #1 for Identification and all forms filed with the Department in this matter.
2. The claimant worked at the defendant for a period of approximately 26 years, during which period he had at least 16 accidents, the bulk of which involved his lower back.
3. On or about June 8, 1990, the claimant suffered a twisting injury to his back while on a ladder. He reported the injury to the employer, and continued to work for a few days before seeking treatment. The claimant initially treated with Dr. Thomas Turek, a chiropractor, for what was diagnosed as a lumbar strain with lumbar subluxation.
4. The claimant continued to work for the employer in his position as a maintenance electrician, at least until June of 1991. The employer contested the claim, and sent the claimant to Dr. Philip Davis for an examination in September of 1990.
5. Dr. Davis opined that the claimant was suffering from degenerative disc disease, related to the aging process and the claimant's excessive weight. He determined that the injury of June, 1990, caused a "temporary aggravation" of the degenerative disc disease, and that the claimant was likely to suffer repeated episodes of low back pain, related to his degenerative disc disease, and not the injury of June, 1990.
6. The claimant continued to treat with Dr. Turek at least through December 5, 1990. It was Dr. Turek's opinion that the claimant's work was a significant factor in the claimant's continuing symptoms, and that a change of job might be necessary to relieve his problems.
7. The claimant apparently reinjured himself at work in April of 1991, although no new first report of injury was filed with the Department. Thereafter he was evaluated by Dr. John Peterson, an osteopath, at the request of the insurer, on May 25, 1991, who opined that the claimant was at an end medical result with a permanent partial impairment of 19% of the spine, attributable to degenerative disc disease and loss of range of motion. Dr. Peterson made a determination that the claimant's degenerative condition was caused by a combination of his excessive weight and his numerous on the job injuries, although he found no evidence of any neurological deficit. Dr. Peterson had in his possession at the time of his examination of the claimant x-rays and CT scans, some of them dating back to September 1, 1977, and the most recent July 7, 1987. Based on his review of the records, Dr. Peterson determined that the claimant's "recent low back disability is indirectly related to his OTJ injuries. No direct causation exists, but it certainly is similar to and is the result of his cumulative injuries." Based on his review of the claimant's total record, he opined that "Mr. Henderson will probably go on to have recurrent injuries, probably with even less trauma involved in the future and that he may eventually require surgery if he were to frankly herniate a disc."
8. Dr. Peterson toured the facility at the Northeast Tool Division to determine what, if any, modifications could be made in the claimant's job to allow him to continue working. Based on his review of the facility, he determined that continued work as a maintenance electrician posed a substantial risk of injury both to the claimant and to his coworkers. The defendant, after determining that it had no position available for Mr. Henderson given the limitations established by Dr. Peterson, discharged the claimant.
9. The carrier, based on Dr. Peterson's determination that the claimant had reached an end medical result, then commenced to advance the claimant permanency benefits in accord with Dr. Peterson's evaluation, and has paid benefits for 101.85 weeks. The carrier did not file a Form 27, Notice of Intent to Discontinue Benefits, until April 12, 1993.
10. The claimant consulted with Attorney Vincent Illuzzi, who sent a demand letter to the defendant under the Americans With Disabilities Act after the discharge with the assertion that the claimant was capable of working. The claimant denied authorizing Mr. Illuzzi to write this letter.
11. After his termination, the claimant began to treat with Dr. H. Taylor Caswell, a board certified orthopedic surgeon. Dr. Caswell noted that the claimant had some mild degenerative changes, and was concerned that the claimant might be suffering from spinal claudication. He therefore referred him to Dr. Parker Towle, a neurologist, who noted that the claimant was obese, with a lumbar facet syndrome and chronic pain syndrome. He recommended amitriptyline to improve his sleep, and vocational rehabilitation for retraining in a sedentary job.
12. At the same time, the claimant was involved in vocational rehabilitation through the carrier for the employer. The claimant was given a number of job leads in the course of his meetings with his counselor, but never followed through on any of them. He testified that he felt that he could not work anywhere if he could not work for the employer. His counselor noted that, while the claimant indicated an interest in obtaining work, he made no effort to follow through on any of the recommendations of the counselor.
13. The claimant continued to treat with Dr. Caswell. Dr. Caswell recommended that the claimant remain active, and indicated that the claimant could play golf for exercise. The claimant attempted to play, but determined that golf was not "his game" and he stopped. Dr. Caswell opined that the claimant was capable of working, but that it was unlikely that a position could be found for him with the substantial limitations placed upon him. Specifically, Dr. Caswell determined that the claimant could not sit or stand for more than 20 minutes at a time, that he needed 20 minutes supine out of every six hours, and that he could not lift more that 40 pounds. Dr. Caswell regularly reported in his notes from December of 1991 through June of 1993 that the claimant's condition was unchanged.
14. In September of 1993, Dr. Caswell performed a permanency evaluation, based on the third edition of the AMA Guides to the Evaluation of Permanent Impairment. Based on his examination of the claimant, as well as a neurological evaluation and an examination of the claimant's range of motion, Dr. Caswell determined that the claimant suffered a 20% whole person permanent impairment, which translates into a 33.5% permanent impairment to the claimant's spine. Dr. Caswell did not indicate which part of the Guides he used to reach this result.
15. On November 17, 1992, the claimant was examined by Dr. Leonard M. Rudolf, a board certified orthopedic surgeon, at the request of the employer. Dr. Rudolf has performed so-called IMEs for insurers, lawyers, patients, and physicians (for second opinions) on a regular basis for about eight years. Dr. Rudolf found no objective evidence of dysfunction in the claimant's spine. Specifically, he found normal range of motion in the lumbar spine, no sensory deficits, no radiating pain, and no muscle spasm. He did find excessive pain reactions, including postural changes and facial expressions that indicated an attempt to convey pain. Dr. Rudolf also noted that the claimant did not report the injury of 1990 in his history of his back problems. When asked about the 1990 injury, he could not specify the mechanics of that injury.
16. Dr. Rudolf also discussed with the claimant his ability to work. He reported that the claimant claimed to be able to work, and to be able to return to his position at the employer. The claimant stooped down to an electrical outlet to show his ability to work at that level. Dr. Rudolf conceded that patients may be overly optimistic about their ability to work, but that in this case, there was no evidence that the claimant could not work. Dr. Rudolf opined that the claimant had no impairment to his spine.
17. The carrier produced a videotape which showed, among other things, the claimant climbing into the back of his pick-up truck in order to wash it. The claimant moved a little stiffly in this activity, but was able to bend and to move into awkward positions to complete the task. The claimant testified that he was able to perform this operation by following the lessons he learned in one of his numerous sessions in physical therapy, and that he was in great pain after performing the tasks, a claim that cannot be confirmed by extrinsic sources. Both Dr. Caswell and Dr. Rudolf observed the videotape, and claimed to find support for their opinions in the tape. In particular, Dr. Caswell indicated that the tape confirmed his position that the claimant had some work capacity for a limited period of time, while Dr. Rudolf indicated that it showed no limitations in the claimant's range of motion.
18. The claimant applied for and received an award of Social Security Disability Income. That determination was based on the claimant's deterioration after a snow shoveling incident in January of 1993, a year and a half after the claimant was terminated from the employer. The administrative law judge made a specific finding that the claimant had a significant work capacity prior to the January, 1993, incident. The claimant testified that, at the time of the snow shoveling incident, he had a housekeeper to help him out around the house, doing the tasks that he could not do.
19. The claimant has not produced any evidence of his fee agreement with his attorney, nor of his costs in connection with this proceeding.
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. This case ultimately devolves, as so many do, into a medical dispute. The claimant's inconsistent reports and lapses of memory render his testimony of limited value. The doctors in this case also suffer from credibility problems. For example, Dr. Rudolf's failure to find anything wrong with the claimant at all flies in the face of the evidence of the numerous x-rays, dating back as far as September of 1977, showing that the claimant was suffering from degenerative changes, including L2/3 degenerative disc disease. Dr. Caswell's testimony similarly suffers from his failure to recognize the claimant's substantial underlying condition and the contributions to the claimant's condition of the numerous work related and non-work related injuries.
4. The only opinion that fails to suffer from major deficiencies is that of Dr. Peterson. His opinion is based on the claimant's report of his symptoms and the mechanism of injury, the complete medical records, a thorough physical examination and a personal study of the claimant's working conditions. Moreover, his permanency rating is consistent with the claimant's behavior in the videotape, which cannot be said of either of the other opinions. Dr. Peterson's assessment of a 19% permanent partial impairment to the spine is therefore accepted, as is his opinion that the claimant had reached maximal medical improvement as of the date of the examination.
5. The insurer claims that it is not liable for any further payments to the claimant because it paid 101.85 weeks of benefits to the claimant "voluntarily" based on the recommendation of the then director of the Workers' Compensation Division in January of 1991. This ignores the fact that the insurer failed to file a Form 27 until April of 1993, almost two years after Dr. Peterson placed the claimant at an end medical result. Failure to file a properly executed Form 27 at the appropriate time is fatal to the insurer's claim in this case. See, e.g., Lisa Gilbeau v. CEPCO, Inc., Opinion No. 24-95WC, and Rule 18(a)(2) of the Workers' Compensation and Occupational Disease Rules.
6. The claimant, although he has prevailed in at least some measure, cannot recover either fees or costs because of his failure to comply with the requirements of Rule 10 of the Workers' Compensation and Occupational Disease Rules. In light of the number of recent cases in which this same point has been made, it is remarkable that the claimant has failed in this respect.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. Alexsis, Inc., or in the event of its default Northeast Tool Division, pay to the claimant permanency benefits for 62.7 weeks;
2. Alexsis, Inc., or in the event of its default Northeast Tool Division, pay such medical or vocational rehabilitation benefits as the claimant is entitled to pursuant to the Workers' Compensation Act and in accordance with the decision;
3. All other claims, including those for additional temporary total disability benefits, are denied.
DATED at Montpelier, Vermont this 3rd day of September 1996.
________________________________
Mary S. Hooper
Commissioner