Wyman v. Rutland Plywood (Oct, 21, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Patricia Wyman File #: G-5587
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Rutland Plywood Commissioner
Opinion #: 61-96WC
Hearing held at Montpelier, Vermont, on August 30, 1996.
Record closed on September 6, 1996.
APPEARANCES
Christopher P. Rhodes, Esq., for the claimant
John W. Valente, Esq., for the defendant
ISSUE
For what time periods is the claimant entitled to temporary total disability benefits?
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from June 1, 1994, to April 13, 1995.
2. Temporary partial disability compensation pursuant to 21 V.S.A. §646 from April 14, 1995, to June 22, 1995.
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. The claimant suffered a work related injury and her rate of compensation was $228.56.
2. The period of temporary total disability in question is June 1, 1994, to April 13, 1995.
3. That period is 45 weeks and 2 days.
4. The period of temporary partial disability in question is April 14, 1995, to June 22, 1995.
5. The days and hours worked during the temporary partial period are:
April 14, 1995 4 hours
April 17-21, 1995 4 hours each day
April 24-27, 1995 vacation
April 28, 1995 4 hours
May 1-5, 1995 4 hours each day
May 8-11, 1995 4 hours each day
May 12, 1995 out by order of Dr. Dier
May 15-19, 1995 out by order of Dr. Dier
May 22-26, 1995 out by order of Dr. Dier
May 29-June 2, 1995 out by order of Dr. Dier
June 5-7, 1995 out by order of Dr. Dier
June 8-9, 1995 4 hours each day
June 12-16, 1995 4 hours each day
June 19-21, 1995 4 hours each day
June 22, 1995 resumption of full time work
6. Temporary partial for 5 weeks and 1 day at 4 hours a day equals $594.26. Temporary total for 3 weeks and 4 days equals $868.53.
7. The temporary total amount for the period from June 1, 1994, to April 13, 1995, a period of 45 weeks and 2 days, is $10,376.62.
8. The claimant had two surgeries on September 13, 1993, and December 13, 1993.
EXHIBITS
1. Joint Exhibit 1 Medical records notebook
2. Exhibit A Letter dated February 16, 1995, to the claimant from Michael Lannon
PROCEDURAL NOTE
At the commencement of the hearing, the attorney for the carrier agreed that the carrier would pay any outstanding medical bills for the claimant. As a result of that representation, no evidence was admitted regarding any bills remaining to be paid.
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 has worked for Rutland Plywood as a machine operator for 18 years. Her primary job at the time of her injury was on the glue roll, where she was the pusher. Her job was to push veneer through the roll, which would put glue on the veneer. Another person would catch the veneer as it came through and a third person would be responsible for laying out the dry material. The pushing job is normally a standing job, but the claimant now does it from a seated position.
3. In 1993, the claimant developed a Morton's neuroma on her right foot, involving the base of her foot and her third and fourth toes. Conservative treatment involving medications and injections were ultimately unsuccessful in resolving the problem. The claimant described the feeling as if there were a stone in her shoe. After conservative treatment failed, the claimant underwent surgery for the neuroma on September 13, 1993, performed by Dr. Frank Buggiani.
4. The claimant's recovery from the surgery did not go well. She underwent physical therapy which was not helpful. Her foot remained inflamed and sore, and Dr. Buggiani, in consultation with other doctors, began to suspect that there was an infection at the operative site. Therefore, another surgery was performed on December 13 with a probable diagnosis of osteomyelitis. Fibrous tissue was excised from the third intermetatarsal space, although cultures were negative. The pathology report indicated fibroadipose tissue with mild chronic inflammation.
5. The claimant returned to work in February of 1994, after seeing the company's physician Dr. John Wheeler. She began to work two hours a day in the "make-up" department, where her job was to sort veneer. The jog required her to be on her feet, with some walking. The claimant had difficulty with remaining on her feet for any significant length of time.
6. In March of 1994, the claimant received a call from one of her doctors at the plant, telling her to report to the hospital immediately. The call was received by Michael Lannon, the director of human resources. The urgency of the call scared both the claimant and Mr. Lannon. The call came from Dr. Smith, the claimant's general practitioner, who was relaying Dr. Buggiani's concern. The claimant was admitted to the hospital with the expectation of
receiving intravenous antibiotics because of a presumed infection at the operative site. However, tests at the hospital conclusively ruled out an infectious process.
7. When the claimant went into the hospital, she missed five days of work attributable to that hospitalization. She did not return to work thereafter until April 14, 1995. The insurer did not recommence payment of temporary total disability benefits upon the claimant's hospitalization for reasons that are not apparent in the record. At some later time, the claimant was paid benefits for the period from the hospitalization to May 31, 1994. No Form 27 was filed after the resumption of benefits.
8. The claimant was seen by a number of doctors who were unable to state with any specificity the nature of her problem. A disagreement developed as to whether the claimant was suffering from osteomyelitis or transient osteoporosis. Some physicians indicated that the claimant could return to work at a light duty work capacity. She saw Dr. Joseph Ranallo, a physiatrist, to whom she was referred after attempts to resolve her complaints medically were unsuccessful. Dr. Ranallo found tenderness and crepitus, although he noted no swelling on his first visit with the claimant on June 7, 1994. He started her on a program of physical therapy with ultrasound treatments, and recommended a further review of her orthotic device.
9. Upon the claimant's return to Dr. Ranallo after physical therapy, the doctor noted that she continued to have difficulty standing and walking, although she appeared to have improved considerably as a result of the therapy. He declined to make a determination whether she could return to work.
10. The carrier had a records review performed by Dr. Edwin Wyman, an orthopedic surgeon at Massachusetts General Hospital. He stated that "it would appear that the patient's diagnosis is that of a plantar neuroma between the 3rd and 4th toe of the right foot status post excision of neuroma with a postoperative inflammatory reaction of uncertain etiology, but no doubt, connected with the surgery." He continued that "[i]f symptoms persist, further diagnostic workup would be indicated, and probably she should be seen by an orthopaedist with a particular interest in foot problems."
11. The claimant finally self-referred to Dr. Douglas Dier, a rheumatologist, who diagnosed the claimant as having Reflex Sympathetic Dystrophy ("RSD"). In particular he noted that the claimant had persistent pain and swelling, that the foot was red and cooler to the touch than the left foot, and that there was increased perspiration. These symptoms certainly suggested the diagnosis. The previous radiographic studies which showed inflammation in the bones and the soft tissue but no infection also supported the diagnosis.
12. Dr. Dier testified that RSD is a slowly healing condition, and that there would be no reason to see the claimant frequently because of the slowness of the change in her condition. He indicated that the claimant's pain would determine how much she could do, and that she was instructed not to persist in activities that caused pain. The reason for this instruction was that RSD can get worse if the pain worsens. Therefore, the objective was to keep the patient as active as possible without causing further damage. He noted that pain is very subjective, but that he found the claimant to be a credible reporter of her symptoms, and anxious to return to work. He also found that the RSD had been present for some time before he saw her, and that treatments that might have been efficacious at early stages of the condition were now not available for treating the claimant, through no fault of hers.
13. Dr. Dier indicated that the claimant could not return to work before April of 1995. He stated that she should not be doing work that required her to stand or to sit with her leg depended, that is, hanging down. It was important to keep the leg elevated and supported. In his opinion, the claimant should not have gone back to work at any time prior to the time when he first saw her, and that April was the earliest date for her return to work. He took her out of work in May because he was concerned that she might be doing further damage to her foot, and that she needed further rest. Finally, he indicated that the claimant's ability to work was determined solely by her ability to tolerate the pain caused by the work.
14. The parties each presented evidence about the availability or nonavailability of light duty work at the defendant. The evidence suggested that all of the light duty work that was readily available involved standing or walking around. Michael Lannon testified that the employer considered making a job for the claimant in the office doing clerical work, but that she was never offered such a position. He also testified that he wrote her a letter in February of 1995 with the intent to get her to return to work. In that letter, he requested medical information and offered a stool or a chair among other options. He indicated that he could only hold her position open for a brief period of time.
15. The claimant is now at an end medical result and has returned to work at the employer full time.
16. The claimant has presented evidence of her fee agreement with her attorney for a contingency fee of 33 % of the total amount recovered. Subject to the limitations of Rule 10(a), this is acceptable. The claimant has also submitted evidence of costs in the amount of $495.25. These sums are 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 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 presents the interesting test of the credibility of a doctor who did not see the claimant until a year after the surgery but who has a definitive diagnosis of her condition against the credibility of a number of doctors who claimed the claimant could return to work, even though they did not know what was wrong with her. The decision is rendered simple by the failure of the defendant to present anything more than the medical records of the doctors upon whom it relies. The uncontroverted testimony of Dr. Dier with regard to the diagnosis is compelling evidence that the claimant suffers from RSD, testimony moreover that is consistent with that previously discussed in Gay v. Gardener's Supply Company, Opinion No. 18-96WC.
4. I find that the claimant could not return to work until April 14, 1995, that her departure from work on May 12, 1995, was caused by her work injury, and that her continued part-time work upon her return as of June 8, 1995, was a continuation of her disability attributable to her work injury. She is therefore entitled to an award of $10,376.62 for the period from June 1, 1994, to April 13, 1994; of $594.26 for the days she worked four hours each day; and of $868.53 for the period she was unable to work in May and June of 1995. The claimant therefore is entitled to an award of $11,839.41 for temporary total and partial disability.
5. The defendant argues that the claimant is not entitled to an award of attorney's fees because the defendant made an offer of settlement two weeks prior to the hearing. Specifically, the claimant had made an offer of settlement of $9,150.00 for the period of temporary total disability sometime during the week of July 15, 1996. The defendant offered the sum of $8,950.00 in August of 1996. It appears that this was the first offer of settlement made by the defendant, over two months after the pretrial conference was held in this case. When, on August 15, 1996, the defendant finally offered to meet the claimant's original offer, the claimant withdrew the offer and demanded the full amount claimed for the period from June 1, 1994, to April 13, 1995. This was still a concession on the claimant's part for a sum less than that to which she was entitled. The employer declined to negotiate
further, mindful no doubt of the practice of requiring settlements to be presented to the Department no less than two weeks prior to the hearing date.
6. The Workers' Compensation Act requires an expeditious resolution of disputes between the parties. The battle in this case has been joined since the claimant left work in March of 1994 for the hospitalization for the suspected infection in her foot. Numerous informal conferences failed to result in a settlement of this case. After the matter was placed on the formal hearing docket and preparation for hearing was well commenced, the claimant made a final offer of settlement which the employer did not offer to meet until 15 days prior to the scheduled hearing. The Department discourages the practice of settlement on the "courthouse steps." Moreover, unlike in the realm of tort law, the word "settlement" in workers' compensation cases connotes an agreement as to the specific dates of disability, as well as the nature of the disability, rather than a compromise of a valid claim. The Workers' Compensation Act presents a no-fault statutory scheme of defined and specific benefits, and is not to be construed as an adjunct to tort law. Therefore, such tort practices as the "last, best offer" defense have no place in this setting, unless that offer encompasses all of the benefits to which the claimant is statutorily entitled. The simple answer to the defendant's claim is that the claimant is entitled under the statute to an award of $11,839.41, an amount never offered by the defendant, and an amount gained for the claimant only because her attorney took the case to a full hearing. Attorney's fees are awarded in the amount of $2367.88, representing 20% of $11,839.41, and costs are awarded in the amount of $495.25.
7. The claimant has made a claim for medical benefits, and the defendant at hearing acknowledged responsibility for the medical bills. Pursuant to the findings herein, medical benefits are awarded.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. Lumber Mutual, or in the event of its default Rutland Plywood Corporation, pay the claimant temporary total and temporary partial disability compensation in the amount of $11,839.41;
2. Lumber Mutual, or in the event of its default Rutland Plywood Corporation, pay medical benefits for the claimant's work related injury consistent with this decision; and
3. Lumber Mutual, or in the event of its default Rutland Plywood Corporation, pay attorney's fees in the amount of $2367.88 and costs in the amount of $495.25.
DATED at Montpelier, Vermont this 21st day of October 1996.
________________________________
Mary S. Hooper
Commissioner