Covey v. Boston International (Sept. 3, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Barbara Covey File #: G-11089
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Boston International Commissioner
Opinion #: 52-96WC
Hearing held at Montpelier, Vermont, on July 18, 1996.
Record closed on August 5, 1996.
APPEARANCES
Barbara Covey, Pro Se
Barbara E. Cory, Esq., for the employer
ISSUE
Whether the claimant remains temporarily totally disabled as a result of her work injury of October 1993.
THE CLAIM
1. Permanent total disability compensation pursuant to 21 V.S.A. §644 beginning September 5, 1995.
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).
EXHIBITS
1. Joint Exhibit 1 Medical records notebook
2. Claimant's Exhibit A Letter dated March 29, 1996, from Dr. Timothy Shafer
3. Claimant's Exhibit B Letter dated July 17, 1996, from Dr. Timothy Shafer
4. Defendant's Exhibit I Vocational rehabilitation records
5. Defendant's Exhibit II Letter from the claimant dated September 20, 1995, declining further vocational rehabilitation services
FINDINGS OF FACT
1. The above exhibits are admitted into evidence, and notice is taken of all forms filed in this matter with the Department.
2. On October 25, 1993, the claimant was pulling plywood sheets off a freezer when she suffered an injury to her arms and right shoulder. She attempted to continue working, and did not seek medical attention for her injury until November 30, 1993, with her personal physician Dr. Timothy Shafer. Treatment consisted of injections of Decadron LA and Xylocaine into the epicondyles of both arms, icing, splints and Flexeril. Initially, Dr. Shafer opined that she might need physical therapy or perhaps some time off work.
3. While continuing to work, the claimant continued to have injections over a period of several months, improving greatly after each set of shots and then gradually deteriorating again. In March, Dr. Shafer noted that the claimant continued to decline a referral to physical or occupational therapy, although she finally accepted the referral in the summer after she stopped working on June 14, 1994. After a period of physical therapy proved
unsuccessful in resolving her complaints, Dr. Shafer referred the claimant to Dr. Jon Thatcher, an orthopedic surgeon, for a further evaluation.
4. On August 26, 1994, Dr. Thatcher determined that the claimant had chronic bilateral tennis elbow, and he recommended further conservative measures. He indicated that further physical therapy was not warranted in this case.
5. On November 9, 1994, the claimant underwent a Functional Capacity Evaluation ("FCE") at the request of her physician, Dr. Shafer. Based on that examination, it was determined that the claimant had a light duty work capacity, and would be able to work in a job modified for her limitations. The FCE noted that the claimant had poor body mechanics, and recommended that this problem be addressed in a work hardening program.
6. The claimant entered a work hardening program on December 5, 1994. After four sessions, the claimant was discharged from work hardening based on a positive electro-physiologic test of the claimant's right arm, which established the presence of denervation in the claimant's right extensor carpi radialis muscle. Dr. Daniel Perri, who performed the EMG study on her right arm only, indicated that this finding could be explained by local trauma to a branch of the radial nerve, and was an incidental finding of a right ulnar neuropathy. He found that the right ulnar conduction velocity was abnormally slow, but that other motor nerve conduction studies were otherwise within normal limits.
7. The claimant was examined by Dr. David Coffey, a neurologist, in January of 1995, who established that the claimant had no measurable neurological impairment in her left arm. Thereafter she was seen by Dr. John Carmody, who opined that the claimant was in need of no further treatment, that she would probably experience gradual improvement, and that she would be able to return to work by June 1, 1995.
8. On March 22, 1995, the claimant was reevaluated by Dr. Thatcher, who determined that the claimant was at a point of maximal medical improvement with permanency of 3% in each upper extremity, or 4% of the whole person. Based on this evaluation, the insurer terminated temporary total disability benefits to the claimant based on a Form 27 as of June 1, 1995, and paid permanency benefits in accordance with Dr. Thatcher's opinion.
9. Dr. Shafer agreed with Dr. Thatcher's evaluation of March 22, 1995, and indicated on March 29, 1996, that the claimant's condition had not changed substantially since March of 1995. Dr. Shafer indicated that the claimant could not perform any task that requires repeated use of her hands, fingers or wrists. There is no substantial dispute about this limitation.
10. On September 28, 1994, the claimant met with Kathy Ruhl, a vocational rehabilitation case manager, for an initial assessment for vocational rehabilitation services. At that time, Ms. Ruhl noted that the claimant appeared to have arthritis in her hands which might limit vocational options. However, subsequent tests for rheumatoid arthritis were negative. In October of 1994, Ms. Ruhl noted that the target established by the claimant's physician for return to work was September of 1995, although Ms. Ruhl was hopeful that an earlier date might be possible.
11. Ms. Ruhl attended the claimant's appointment with Dr. Thatcher in March of 1995. The claimant has alleged that Dr. Thatcher did not test her on that date, but simply concurred with Ms. Ruhl's suggestion that the claimant seek work at Vermont Circuits. There is simply no evidence to support the claimant's contention that Dr. Thatcher merely adopted Ms. Ruhl's assessment of the claimant's ability to work, and did not evaluate the claimant in a medically appropriate manner.
12. The claimant continued to receive vocational rehabilitation services through the summer of 1995, although efforts to place her were severely hampered by the claimant's belief that she remained totally disabled. The claimant declined to take any responsibility in finding work for herself. On September 20, 1995, the claimant wrote to the insurer and declined any further vocational rehabilitation services based on her belief that she was not employable because of pain in her arms and lower back. The lower back problems are not related to the work injury of November 1993.
13. The claimant admitted at the hearing that she would be willing to accept vocational rehabilitation services in the event that she was not determined to be permanently totally disabled.
14. The claimant consulted with an attorney for assistance with regard to this matter as well as for questions involving unemployment compensation and SSDI benefits. He assisted her in obtaining a correction in an underpayment by the insurer in this case, but did not represent the claimant at the hearing. The claimant has submitted his bill for payment by the carrier in this proceeding. The bill is not sufficiently itemized to establish how much time was spent with regard to the workers' compensation claim. No fee agreement has been presented to support the charges.
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. There is no medical evidence to support the claimant's claim that she did not reach a medical end result in March of 1995 and that she is therefore entitle to additional benefits. All of the medical records establish that the claimant has a permanent impairment of 3% of each upper extremity or 4% of the whole person for which she has been compensated, and the possibility of performing gainful employment in a modified light duty capacity. The only evidence against this is the claimant's testimony and her perception of her disability. Unfortunately, this is not sufficient to support her claims, particularly in light of the long line of cases requiring medical evidence for issues such as those raised in this proceeding. The claimant has received all disability payments to which she is entitled.
4. The claimant declined vocational rehabilitation services because of her belief that she was entitled to further disability compensation. In light of the finding here, the claimant has expressed a willingness to pursue employment in the event of an adverse finding. The claimant therefore is awarded vocational rehabilitation services with the goal of finding a suitable placement for her in light of her disability.
5. The claimant's claim for attorney's fees is denied. The attorney who assisted the claimant in her pursuit of benefits never filed an appearance in this case and did not represent the claimant at the hearing. Moreover, his assistance included discussing with the claimant her other options, including unemployment and SSDI. It cannot be said the claimant prevailed in any meaningful way, and hence is not entitled to an award pursuant to Rule 10 of the Workers' Compensation and Occupational Disease Rules.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is ordered that:
1. Utica National Insurance Company, or in the event of its default Boston International, provide the claimant with vocational rehabilitation services in accord with this decision; and
2. All other claims be denied.
DATED at Montpelier, Vermont this 3rd day of September 1996.
___________________________
Mary S. Hooper
Commissioner