Miller v. Cersosimo Lumber Co.

Miller v. Cersosimo Lumber Co. (Oct. 5, 1996)

STATE OF VERMONT

DEPARTMENT OF LABOR AND INDUSTRY

Robert Miller File #: P-10755

By: Barbara H. Alsop

v. Hearing Officer

For: Mary S. Hooper

Cersosimo Lumber Co. Commissioner

Opinion #: 55-96WC

Record closed on August 5, 1996.

APPEARANCES

John A. Rocray, Esq., for the claimant

Keith J. Kasper, Esq., for the employer

ISSUES

1. Whether the claimant's current claim of injury is a recurrence of his 1979 injury or an aggravation or new injury?

2. If the claimant is suffering a recurrence of his 1979 injury, is his claim barred by the Statute of Limitations?

THE CLAIM

1. Temporary total disability compensation pursuant to 21 V.S.A. §642.

2. Permanent partial disability compensation pursuant to 21 V.S.A. §648.

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 February 26, 1979, Claimant suffered an injury arising out of and in the course of his employment to his left hand.

2. On February 26, 1979, Claimant was an employee within the meaning of the Vermont Workers' Compensation Act.

3. On February 26, 1979, Cersosimo Lumber Company was Claimant's employer within the meaning of the Act.

4. On February 26, 1979, Liberty Mutual Insurance Company was the workers' compensation insurance carrier for Cersosimo Lumber Company within the meaning of the Act.

5. At issue in this matter is Claimant's request for current and future benefits for his left thumb, including but not limited to medical and hospital benefits, as well as temporary total disability benefits and potentially additional permanency benefits, and attorney's fees.

6. Defendant denies liability on the basis of applicable statute of limitations and alleging Claimant suffered an aggravation of his pre-existing condition so as to relieve Liberty Mutual Insurance Company and Cersosimo Lumber Company of liability in this matter.

7. The parties stipulate to the admission of Joint Medical Exhibit, Dr. Chard's deposition.

8. The Department may take judicial notice of all forms, if any, in this matter.

EXHIBITS

1. Joint Exhibit 1: Medical records

2. Joint Exhibit 2: Deposition of Dr. John Chard

3. Claimant's Exhibit A: Deposition of Robert Miller

FINDINGS OF FACT

1. The above stipulations are accepted as true, and the exhibits are admitted into evidence. Because of the age of the original claim, the Department's file was destroyed in the normal course of business. Copies of the forms have not been provided by either the claimant or the insurer. Therefore, no notice can be taken of any forms filed with the Department.

2. The claimant, at the age of 18, suffered a serious injury to his left thumb on February 26, 1979, when a router kicked back and severed tendons in the base of the thumb. He treated over a period of several months with Dr. John T. Chard, whose physician's assistant noted within days of the initial injury the possibility that the claimant would need a "fusion or a prosthesis at this joint in the future." The claimant had surgery performed by Dr. Donald M. Kinsley in June of 1979 for the placement of a tendon graft. In August of 1979, Dr. Kinsley found that he had full range of motion in his left, nondominant thumb, with good strength, pinch and abduction. The claimant missed an appointment scheduled in October of 1979, and next treated in May of 1980.

3. At that time it was suggested that the claimant was suffering from a neuroma at the site of the original surgery. The claimant did not undergo surgery to find the neuroma, and his symptoms from that neuroma have since resolved.

4. The claimant testified that he never received a permanency award for his injury. In fact, he claimed that he never dealt with the insurer in any regard with this claim. His benefits were paid directly by the employer.

5. The claimant did not return to Cersosimo Lumber after the surgery of 1979. His stated reason for this refusal was that the employer expected him to continue to work on the router that had been the cause of the original injury, and he did not wish to chance a second injury. Instead, he worked at a number of different employers, performing tasks that included driving and deliveries, carpentry, and finally auto body work. The claimant experienced pain in his left hand consistently after 1980 from a number of activities, although the pain would resolve upon cessation of the activity. The claimant did not believe that there was anything that could be done for his thumb medically, and hence did not seek further medical attention for a period of 15 years, although he testified that he began to feel an increase in the pain and discomfort in his thumb in the year 1989.

6. The claimant worked for his ex-brother-in-law for several years, up to and including the present, doing auto body work. This work entailed the use of both hands, although the use of the left hand was minimal and supportive. Specifically the claimant used the left hand in sanding, taping, and removing and replacing fasteners, such as bolts and screws. The claimant noted that he was having more difficulty in gripping a bolt or a nut with his left hand, although other work did not bother his thumb very much. He also indicated that his thumb was sensitive to touch, such as tapping it or banging it against something. His decision to seek further medical attention for his thumb in 1995 was caused by the increased pain he was experiencing and his inability to grip items in his daily work.

7. The claimant returned to Dr. Chard on August 16, 1995, when Dr. Chard diagnosed his condition as post-traumatic arthritis. After physical therapy failed to afford the claimant relief from pain in small movements, Dr. Chard referred the claimant to Dr. James V. Mogan, an orthopedic surgeon with a specialty in hand disorders, who found that the claimant had limited range of motion at the base of the thumb with a markedly positive grind test. It is

Dr. Mogan's opinion that the claimant is a candidate for CMC tendon interposition arthroplasty as a result of his significant CMC arthritis.

8. Dr. Chard testified that the claimant's arthritis was an expected consequence of the original traumatic injury to his left thumb. In response to questions from defense counsel, Dr. Chard testified that a certain amount of use of the joint was necessary to prevent deterioration, but that the medical community was not in agreement as to how much use was appropriate. He indicated that it would be possible with overuse to accelerate the deterioration in the joint. However, he also testified that the claimant reported only an increase in pain when he did heavy work, which is not equivalent to a finding of further deterioration in the joint.

9. With regard to a potentially aggravating event involving the claimant's thumb, Dr. Chard testified that a mere percussive trauma would not be sufficient, but that a wrenching of the joint might have accelerated the condition. The claimant denied the occurrence of such an event. Moreover, Dr. Chard opined that the apparent health of the claimant's right (and dominant) thumb suggested that the body work was not sufficiently stressful in general to cause a reinjury adequate to break the chain of causation from the original injury.

10. The claimant has produced no evidence with regard to attorney's fees or 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 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. Once the claimant makes a prima facie case, establishing his right to recover, the burden shifts to the defendant to prove that either the injury is not causally related or that an aggravating intervening event has occurred. See, e.g., Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 54 (1921), and Grenier v. Hill Martin Corp., Opinion No. 16-89WC.

4. The parties have stipulated that the claimant was injured arising out of and in the course of his employment. The claimant has presented credible medical evidence to support his claim that his post-traumatic arthritis is a natural and expected consequence of his work injury. Therefore, the burden is on the defendant to establish the existence of an aggravating event to terminate its obligations to the claimant. This the defendant has failed to do.

5. The defendant argues, based on the criteria enunciated in Griffin v. Blue Seal Feeds, Inc., Opinion No. 14-94WC, and others, that the claimant suffered an aggravation of his original injury. The definition of an aggravation, as found in the Workers' Compensation and Occupational Disease Rules, at Rule 2(I), is "an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events." (emphasis added). Before reaching the Griffin criteria, the defendant must first establish the existence of an intervening event or events. The mere assertion that the claimant continued to work, without more, is not sufficient to establish such an intervening event. The defendant cannot base its claim solely on the testimony of Dr. Chard that it was "possible" that work as an auto body mechanic could cause an aggravation of the underlying condition. Such testimony constitutes nothing "more than a possibility, suspicion or surmise" and is not adequate to establish the requisite probability. The defense has failed to produce the requisite medical evidence to support its claim.

6. The defendant next argues that the claimant is barred from recovery by operation of the statute of limitations. A statute of limitations serves the function of preventing fraudulent or stale claims from being brought when the evidence to support the claim may be lost or unavailable. See, e.g., Law's Administrator v. Culver, 121 Vt. 285 (1959). The six year statute of limitations runs from the date of injury, defined as the point in time when an injury becomes reasonably discoverable. Hartman v. Ouellette, 146 Vt. 443 (1985). In this case, the two relevant dates are February 29, 1979, and August 16, 1995. On the former date, the claimant made his claim in a manner sufficient to satisfy the statute of limitations, and the employer or its insurer commenced payment on the accepted claim. The defendant asserts, again without supporting evidence, that the claimant was paid all benefits to which he was entitled in the course of his recovery from the work injury. The defendant has the burden of proof on this issue, and it has not met it. The mere fact that the claimant testified that he received his compensation is not sufficient to establish that the claimant received all benefits to which he was entitled, and it certainly is not evidence that the carrier ever properly terminated benefits in this case. Without such evidence, it must be presumed that the original claim is still open, and the statue of limitations argument is not applicable.

7. In the alternative, assuming that the original claim was properly closed in 1979 or 1980, the claimant was required, in accordance with the Hartman rule, to make a claim within six years of the discoverability of his "new" injury. Given the finding that there has been no new injury, see §5, supra, I must find that the significant date for discovery purposes is the date when the claimant was advised by Dr. Chard that he had post-traumatic arthritis, for that is the date when the claimant knew or should have known that he suffered additional damage as a result of his work injury. That date is August 16, 1995, and the claimant has clearly satisfied the statute of limitations in that regard.

8. The defendant's attempt to assign a date in 1989 as the onset of the new injury is disingenuous. The claimant has testified that he began to note an increase in symptoms at about that time, but that fact in and of itself is not sufficient to establish that additional damage was "discoverable" at that time. It would be inappropriate to charge a layman with knowledge of a medical nature, including the apparent significance of an increase in symptoms after ten years of pain. His delay in seeking medical treatment has not been shown to be dilatory or with bad intent.

9. Finally, the defendant alleges that it is against public policy to allow the reopening of a claim after 15 years because it is unduly burdensome on the insurer and violates the oft-quoted language of Morriseau v. Legac, 123 Vt. 70, 76 (1962), that provides an employer with liability that is "limited and determinate." The argument regarding the burdensome nature of this ruling is that carriers will be required to maintain reserves on all claims because of the possibility of a reopening of the claim at some distant time in the future. That is not the holding here. In this case, within days of the claimant's injury, a medical professional recorded in a note the possibility of the necessity for significant further treatment in the future as a direct result of this injury in the form of a fusion or a prosthesis. Now that that prophecy has come to pass, the insurer will not be heard to complain that it did not adequately prepare for that contingency. With regard to the claim that the employer's liability will not be "limited and determinate," the defendant mistakes the nature of the bargain that lies at the inception of all workers' compensation law. The employer's liability is limited and determinate by a very careful statutory scheme that limits and defines the only benefits to which a claimant is entitled, protecting the employer from the risks and high stakes of personal injury law suits, where liability is neither limited nor determinate.

10. In workers' compensation, the employer is liable for the direct and natural consequences of a work related injury. See Larson, Workmen's Compensation Law, §13.00. The claimant's current treatment for his left thumb is a direct and natural consequence of his work injury of February 26, 1979, and he is entitled to all benefits afforded by the Workers' Compensation Act as a result thereof. The claimant in this case is getting no more than his fair share of the original workers' compensation bargain, that all of the direct and natural consequences, and only the direct and natural consequences, of his injury will be compensable.

11. The claimant, having prevailed, would normally be entitled to an award of costs as a matter of law and attorney's fees as a matter of discretion. However, the claimant has not complied with the terms of Rule 10 of the Workers' Compensation and Occupational Disease Rules, and therefore is not awarded either costs or attorney's fees.

ORDER

THEREFORE, based on the foregoing findings of fact and conclusions of law, it is ordered:

1. That Liberty Mutual Insurance Company, or in the event of its default Cersosimo Lumber Company, provide such temporary total disability benefits as the claimant may be entitled to;

2. That Liberty Mutual Insurance Company, or in the event of its default Cersosimo Lumber Company, pay medical benefits for the claimant's left thumb injury;

3. That Liberty Mutual Insurance Company, or in the event of its default Cersosimo Lumber Company, provide all other benefits as the claimant may be entitled to as a result of the findings above; and

4. That the claim for attorney's fees and costs be denied.

DATED at Montpelier, Vermont this 5th day of October 1996.

_______________________________

Mary S. Hooper

Commissioner