Monroe v. Raylar Limited Partnership and Paul's Cleaners (Sept. 3, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Joanne Monroe File #: E-00672
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Raylar Limited Partnership Commissioner
and Paul's Cleaners
Opinion #: 54-96WC
Hearing held at Montpelier, Vermont, on July 2, 1996.
Record closed on July 19, 1996.
APPEARANCES
Lillian Billewicz, Esq., for the claimant
Christopher McVeigh, Esq., for the defendant Raylar Limited Partnership
Thomas P. Simon, Esq., for the defendant Paul's Cleaners
ISSUES
1. Whether the claimant's valgus osteotomy and herniated disc are as a result of a work related injury.
2. If so, is either Raylar Limited Partnership or Paul's Cleaners responsible for benefits for those medical conditions.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from May 1994, and ongoing.
2. Medical and hospital benefits pursuant to 21 V.S.A. §640.
3. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATION
1. The claimant has been overpaid compensation for the permanent partial impairment of her right leg, having been paid for a 35% impairment when the actual impairment was 3% to 5%.
EXHIBITS
1. Joint Exhibit 1: Medical records notebook
2. Claimant's Exhibit A: Deposition of Dr. Dudley M. Baker
3. Claimant's Exhibit B: Deposition of Curtis Monroe
FINDINGS OF FACT
1. The above stipulation is 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 has worked in general labor her whole adult life. Prior to working at the Howard Johnson's, the subsidiary of Raylar, in 1991, the claimant had been working as a housekeeper. Her position at the Howard Johnson's was as a housekeeper, and she started work at the beginning of July. The Howard Johnson's was short of help, and the claimant worked with another woman for two days before being sent out on her own. There were a lot of rooms to do, and the work involved overtime.
3. The claimant's duties included cleaning the rooms, scrubbing the bathroom floors, cleaning the patio door tracks, and looking under the beds. The housekeepers were expected to do a thorough job. After work on July 3, 1991, the claimant noted that her knees and back were burning. After work on the 4th, her knees and back continued to hurt and her left knee in particular was quite painful. She reported the injury to Howard Johnson's, and went to see Dr. Joseph H. Vargas, III.
4. Dr. Vargas noted some swelling in both knees with crepitus and evidence of a low back strain. After conservative treatment failed to resolve her problems and her left knee became increasingly symptomatic, Dr. Vargas performed an arthroscopic procedure on September 1, 1992. The preoperative diagnosis was chondromalacia of the patella, but the doctor determined that she was actually suffering from a complex tear of the medical meniscus. A partial removal of the meniscus appeared to resolve the tear. The claimant's postoperative course was initially good, but after her return to work, she again began to suffer additional symptoms. Dr. Vargas attributed these symptoms to a too early return to work.
5. By the time of the surgery, the claimant was working for the Mountain Inn in a supervisory position. Dr. Vargas described her duties as "some housekeeping, limited stairs and no lifting." This description was confirmed in all material respects by the claimant.
6. The claimant's continuing postsurgical symptoms led her to seek further medical attention from Dr. Dudley M. Baker, an orthopedic surgeon. He followed her for a few visits in which he noted her persistent symptoms, and then performed another arthroscopy on February 8, 1993. In that operation, he discovered another tear in the meniscus, which he attributed to the original injury. It was his opinion that the tear was present and undiscovered at the time of Dr. Vargas' arthroscopy. This opinion was based in part on the lack of evidence of fresh bleeding or hemorrhage, which would have indicated a more recent injury had it been present. Dr. Baker testified that it was not uncommon to miss a meniscal tear in a case of a complex tear, especially when the exploration is performed arthroscopically. He did not fault Dr. Vargas' performance of the earlier operation.
7. The claimant testified, and her husband confirmed, that her knee was swollen during the period following the second operation. Dr. Baker's notes indicated that there was effusion in the knee for some months following the operation but that there came a time when the effusion resolved. However, he confirmed that she remained symptomatic, with reports of pain. He determined that her condition became stable toward the end of 1993, and that he placed her at an end medical result in December of that year.
8. Dr. Baker next saw the claimant in April of 1994, when she returned with some renewed swelling in her left knee. At that time, she had been working for Paul's Cleaners for several weeks, a job that entailed a fair amount of standing. It was Dr. Baker's opinion that the claimant should not work more than five hours a day at this job, as prolonged standing might increase the claimant's symptoms. The claimant testified that she only worked more than five hours on two occasions in the four months that she worked for Paul's Cleaners, and on those dates she worked no more than six hours. She testified that her job at Paul's entailed taking wet shirts to the cuff and collar machine, ironing them, then to the body machine, and finally to the sleever. She was allowed to sit down as needed to relieve the stress on her knees, and she would frequently go outside to sit down. The claimant ceased working at Paul's in June of 1994, and has not worked since.
9. The claimant denied any new injury while at Paul's Cleaners. She noted that her knee returned to its previous state within a very short period after leaving work, and that it then progressively worsened over the summer after she ceased to work at Paul's. She ascribed all of her symptoms in her knees to the original injury and an incident that occurred in the summer of 1993 when her left knee gave way while she was gardening. Specifically, she
suffered a twisting injury that hurt her knees and her back in the summer of 1993, when her left knee collapsed. She reported the injury as well as her back complaints to Dr. Baker, who made a minimal note at the time, and a lengthier confirmatory note some time later in response to a request for clarification from the claimant's attorney.
10. The claimant initially treated for her back injury with Dr. Baker, and then consulted with Dr. Joseph E. Corbett, a neurological surgeon, for further treatment. Dr. Corbett related her back symptoms to the work injury of 1991, the gardening incident of the summer of 1993, and a flare-up in May of 1995, at a time when the claimant was not working. Dr. Corbett has established by diagnostic studies that the claimant has herniated discs at L2-3 and at L5-S1, which are consistent with her complaints of pain. Dr. Baker has indicated that Dr. Corbett's conservative care has been inadequate, and has assigned the claimant to physical therapy for her back. The records reflect some minimal earlier treatments for complaints of lower back pain, all of which resolved with conservative care.
11. On March 27, 1996, the claimant underwent a valgus tibial osteotomy, a procedure designed to "shim" the claimant's injured left knee to remove pressure from the side of the knee that had lost its cushioning by the resection of the medial meniscus. It was Dr. Baker's opinion that this surgery was necessitated by the claimant's two arthroscopies and was not
caused or accelerated by her work at Paul's Cleaners.
12. The claimant was seen on July 10, 1995, by Dr. Joseph Quellman, an orthopedic surgeon in Wilmington, Massachusetts, at the request of the insurer for Raylar. He found that the claimant's knee problems were a result of the 1991 injury, and that they were aggravating a preexisting back condition. He based this latter opinion on the fact that the claimant had had a history of reports of lower back pain and treatment prior to the injury.
13. The claimant has presented evidence of a contingency fee agreement with her attorney for 33 % of the amount awarded. Subject to the limitations in Rule 10 of the Workers' Compensation and Occupational Disease Rules, this agreement is acceptable. The claimant has not presented any evidence with regard to costs.
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 bscure, 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 clearly established her entitlement to benefits at least through the first two knee surgeries. The issues therefore are compensability of the back injury and the responsibility for the valgus osteotomy. With regard to the back injury, the defendant Raylar suggests that the claimant has not produced sufficient medical evidence to support her contention that it is related to the work injury of 1991. The evidence establishes that the claimant suffered from two affronts to her lower back, the injury of 1991 and the gardening incident of 1993. Up to and through the 1991 injury, the claimant's back injuries resolved with rest and conservative treatment. After the twisting injury of the summer of 1993, the claimant consistently reported back pain even after conservative treatment, and diagnostic studies indicated significant damage to her spine. Dr. Corbett's correlation of the damage to the two, the injuries of 1991 and 1993 is more credible than Dr. Quellman's attempt to lay this damage at the door of a preexisting condition. However, it should be noted that, even if the herniated discs predated the work injury of 1991, their increased symptoms were caused by the subsequent injuries, and would be compensable under a long line of cases, including 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. The claimant is entitled to all benefits necessary to treat the herniations in her spine, including surgery and temporary total disability and permanent partial disability benefits as a result of those surgeries.
4. Compensability of the valgus osteotomy is governed by the rule enunciated in Jaquish v. Bechtel Construction Company, Opinion No. 30-92WC. In that case and its numerous progeny, the tests to determine which carrier is responsible for benefits are: whether there has been a successful return to work, whether there has been active treatment of the injury prior to the second injury, whether the two injuries are in proximity in time, whether the
claimant has reached an end medical result for the first injury prior to the second injury, and whether there was a specific new injury as opposed to a gradual worsening of the claimant's condition.
5. The facts in this case mirror those in Abbott v. Bombardier, Opinion No. 10-96WC, where a claimant returned to work after treating for a work injury and was, within ten months, again seeking treatment for symptoms consistent with the original injury. In that case, there was no evidence that the later work in any way contributed to the need for further surgery, and the same is true in this case. The only evidence regarding this issue comes from Dr. Baker who, to the extent possible in light of the peculiar questioning and frequent interruptions from the attorney for Raylar, affirmatively stated that the work at Paul's Cleaners did not contribute to the need for the valgus osteotomy. In the absence of credible expert testimony to the contrary, it would require speculation or surmise to find that the work at Paul's Cleaners aggravated the claimant's condition. The only evidence before me is that the work may have caused an increase in symptoms. There is no evidence of an actual worsening of the underlying condition. Therefore, Raylar remains on the risk for the valgus osteotomy and all benefits related thereto.
6. The claimant has been overpaid permanency in the amount of 30% of the lower extremity. This amount may be offset against any permanency due to the claimant but not yet paid because of the valgus osteotomy. It may also be offset against any permanency due to the claimant but not yet determined as a result of the injuries to the claimant's spine. In the event that these offsets do not make the insurer whole, the insurer may at that time petition the Department for an order of reimbursement.
7. The two defendants filed supplemental proposed findings and rulings after the date established by the hearing officer for the filing of proposed findings and rulings. Those filings have not been considered in the drafting of this opinion, having been filed outside the allowed time.
8. The claimant having prevailed is entitled to an award of attorney's fees in the amount of $3,000.00. This sum is established based on the extent of new benefits awarded to the claimant, without an offset for the overpayment previously made. The claimant's attorney has, by bringing this matter to hearing, obtained for her the possibility of spinal surgery on two herniated discs, which will produce a permanency award at least consistent with an
award of attorney's fees at the maximum level. The claimant is not awarded costs, having produced no evidence in the time required of costs expended in the presentation of this claim.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. Commercial Union Insurance Company, or in the event of its default Raylar Limited Partnership d/b/a Howard Johnson Motel, pay the claimant temporary total disability compensation, to the extent it has not already been paid, for any period of disability after the valgus osteotomy;
2. Commercial Union Insurance Company, or in the event of its default Raylar Limited Partnership d/b/a Howard Johnson Motel, calculate and pay the claimant permanent partial disability compensation for the valgus osteotomy upon the claimant's reaching of a medical end result therefrom, after offsetting the amount overpaid the claimant for her right lower extremity in accord with the terms of this decision;
3. Commercial Union Insurance Company, or in the event of its default Raylar Limited Partnership d/b/a Howard Johnson Motel, provide medical benefits for the valgus osteotomy and related treatment;
4. Commercial Union Insurance Company, or in the event of its default Raylar Limited Partnership d/b/a Howard Johnson Motel, provide the claimant with all benefits due her for her spine injuries consistent with this opinion and as required by the Workers' Compensation Act, after offsetting from permanency the amount overpaid the claimant for her right lower extremity in accord with the terms of this decision; and
5. Commercial Union Insurance Company, or in the event of its default Raylar Limited Partnership d/b/a Howard Johnson Motel, pay attorney's fees in the amount of $3,000.00 on behalf of the claimant.
DATED at Montpelier, Vermont this 3rd day of September 1996.
________________________________
Mary S. Hooper
Commissioner
Monroe v. Raylar Ltd. Partnership et. al. (Oct. 24, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
JoAnne Monroe File #: E-672
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Raylar Limited Partnership Commissioner
et al.
Opinion #: 54A-96WC
Ruling on Claimant's Motion for Clarification/Modification
The claimant requests by motion received on October 24, 1996, a revision of the Order in Opinion No. 54-96WC requiring the responsible employer/insurer to pay for benefits related to the valgus osteotomy. The requested revision is an order of temporary total disability benefits prior to the surgery, as well as medical benefits prior to the surgery.
The claimant in her motion misstates the state of evidence before the hearing officer. While there is evidence that the claimant voluntarily left work at Paul's Cleaners because of the fear that further work there might increase the damage to her knee, there is no evidence that the claimant was temporarily totally disabled at any time up to the date of surgery. There are notes in Dr. Baker's records of telephone calls from the claimant's attorney requesting that he indicate certain things in his records. I do not accept that the ensuing doctor's notes are sufficient to establish that the claimant was unable to work during the period in question. Nothing in Dr. Baker's deposition adequately addresses the issue of the claimant's disability during the period in question.
The claimant has failed to meet her burden of proof with regard to the issue of temporary total disability during the period between her departure from Paul's Cleaners and the date of the valgus osteotomy. Medical treatment during that period of time has already been determined to be compensable, based on the rulings in the original decision.
WHEREFORE, the claimant's Motion for Clarification/Modification is denied.
DATED at Montpelier, Vermont this 24th day of October 1996.
_______________________________
Mary S. Hooper
Commissioner