Bates v. Velan Valve Corporation (August 7, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Robert Bates File #: G-20239
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Velan Valve Corporation Commissioner
Opinion #: 49-96WC
Hearing held at Montpelier, Vermont, on July 8, 1996.
Record closed on July 22, 1996.
APPEARANCES
David A. Nicholson, Esq., for the claimant
Thomas P. Simon, Esq., for the defendant
ISSUES
1. Whether the claimant suffered a compensable injury while in the employ of the defendant.
2. Whether the claimant is barred from receiving benefits because of his delay in reporting his injury.
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. At all relevant times, the claimant was an employee within the meaning of the Workers' Compensation Act.
2. At all relevant times, the defendant was an employer within the meaning of the Workers' Compensation Act.
EXHIBITS
1. Joint Exhibit 1 Medical Records notebook
2. Defendant's Exhibit A Company Rules and Regulations
3. Defendant's Exhibit B Claimant's acknowledgment of receipt of Company Rules and Regulations
4. Defendant's Exhibit C Sign requiring reporting of all injuries
5. Defendant's Exhibit D DLI sign re: workers' compensation
6. Defendant's Exhibit E VOSHA posting
7. Defendant's Exhibit F Memo of August 14, 1991
8. Defendant's Exhibit G Memo of October 26, 1992
9. Defendant's Exhibit H Memo of January 5, 1993
10. Defendant's Exhibit J Memo of April 5, 1993
11. Defendant's Exhibit K Letter to the employer from the union appointing the claimant as the union's "safety man," dated March 24, 1988.
12. Defendant's Exhibit L Target sponsor form, dated April 13, 1994.
13. Defendant's Exhibit M Videotape
14. Defendant's Exhibit N Videotape
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 worked at the defendant for approximately 16 years, and was a toolroom machinist B at the time in question here. He was the safety man for the union and was aware of his obligation to report any injuries to the employer. He had, in fact, reported as many as twelve injuries over the 16 years of his employment with the company.
3. In the spring of 1993, the claimant saw Dr. Stanley Grzyb in March with reports of bilateral shoulder pain. Dr. Grzyb thought that the claimant was suffering from tendinitis after x-rays were negative for any evidence of bony or soft tissue injury. He suspected that the cause of the claimant's problem was repetitive work at his place of employment, although there is no evidence that the doctor was aware of the claimant's bow hunting (see below). He recommended anti-inflammatories and a course of physical therapy. On May 17, 1993, Dr. Grzyb noted that the claimant's problems had resolved, and he was released on a PRN basis.
4. The claimant testified that he did not want to claim this injury as a workers' compensation claim, particularly as the problem seemed to resolve. In November of 1993, the claimant went bow hunting during the deer season. The claimant testified that he had no problems with the bow, and that he had been pain free for about six months. The claimant has been bow hunting for about 20 years, and he has participated in archery leagues for at least two winters, usually for ten weeks around January and February. Before the hunting season began, he would practice four or five nights a week to prepare. In April of 1994, the claimant requested and received from the employer a sponsorship in a target shooting competition to occur in August of 1994. The claimant does not recall whether or not he shot in the competition, and described the likelihood as "50-50."
5. Shortly after the 1993 deer season, the claimant alleges that he hurt his shoulder while replacing a chuck mounted on one of the machines in the plant. Normally, when removing the bolts from the chuck, it stays on its shaft until lifted off. On this occasion, the claimant says that the chuck dropped when the bolts were removed, and his left arm was pulled over the shaft by the falling chuck. He claims to have reported the injury to the toolroom foreman, Roger Forgues, and that the incident was witnessed by other co-workers. He indicated that the pain went away after about twenty minutes, and that they decided not to write up the injury unless there were further problems. Roger Forgues testified and denied that the claimant reported the injury to him.
6. The claimant indicated that he continued to work, but that he had to make accommodations to his work procedures to avoid aggravating the shoulder. He claimed that he worked on the cutter-grinder, one of the machines in the shop, almost exclusively. Sometimes when the pain got worse, he would stop working and hold his shoulder for up to 15 minutes. He testified that this behavior was observed on numerous occasions by Mr. Forgues.
7. On April 6, 1994, the claimant banged his left shoulder against the side of the drill press table as he was walking by. He received medical treatment and returned to work the following day on a light duty basis. After a steroid injection, he had some initial improvement but then increased pain, and was referred to an orthopedic surgeon.
8. The claimant was treated by Dr. John F. Lawliss, III, an orthopedic surgeon. Dr. Lawliss performed an arthroscopic decompression of the claimant's left shoulder on September 22, 1994, with good results. The claimant reported to Dr. Lawliss that his symptoms were worsened by steady work on the cutter-grinder with the airflow attachment. Dr. Lawliss viewed a videotape of the employer's workplace, and opined that it was unlikely that there was a significant causal relationship between the work portrayed on the video and the claimant's injury. The claimant thereafter reported that the video was not a good representation of his work, and a new videotape was procured. Based on the second video, Dr. Lawliss opined that repetitive work on the machine pictured, the cutter-grinder with the airflow attachment, could aggravate an underlying condition, but would not be likely "to create a shoulder condition in a healthy person." He indicated that the problem could be easily remedied by use of a platform to raise the worker. When apprised of Mr. Bates' bow and arrow use, Dr. Lawliss indicated that "[i]f Mr. Bates uses his bow and arrow as often as he uses the airflow cutter-grinder machine, it is quite likely that the bow and arrow use is more responsible for his shoulder symptoms than the machine."
9. Carl Adams, the Labor Relations Manager for the defendant, testified regarding the numerous defense exhibits, which established the company's requirement for expeditious reporting of injuries, and the need for care in handling dangerous machines. He confirmed that the claimant was the safety representative for the union from March of 1988 to December of 1994. He testified that the claimant had reported numerous injuries at work, and that the company had always returned the claimant to light duty work whenever it was possible. He testified that the company routinely made accommodations for employees when requested by a physician, and had in fact supplied the claimant with rubber mats when he complained of leg pains in the past. He confirmed that he would hear about any workers' compensation claim and would routinely learn of any lengthy absence from work of an employee.
10. Roger Forgues, the toolroom supervisor, testified to his experiences with the claimant and to the practices of the company in the area where the claimant worked. A toolmaker B was required to be able to operate all the machines in the toolroom. The function of the toolroom was as a job shop, specifically set up to cater to the machine shop. They would collect dull tools into a box, and schedule the machines to run as many tools as possible on any given set-up. The universal cutter-grinder will grind any kind of tool, and has four or five attachments for different kinds of tools, including the airflow attachment. Anywhere between five and ten days of the month, the airflow attachment would be on the machine. All of the toolmakers, of which there were three, would work on the cutter-grinder, although the claimant worked on it more than the other two. The machine could be operated from either side, and it was expected that all toolmakers would be able to operate the machine with either hand. Using the airflow attachment was easy, as the tube could be pushed with one finger. He likened the operation to a guiding function, and indicated that the machine was very user-friendly. Mr. Forgues testified that there were a number of platforms in the shop for use with the machines. None of the platforms was attached to the floor, and each could be moved to any machine where additional height was required.
11. Mr. Forgues testified to his clear recollection of the incident of April 6, 1994. He also indicated that, while the claimant regularly complained of aches and pains, he never reported the alleged injury of the fall of 1993. He also questioned the claimant's story of the mechanism of the injury, stating that "being the safety man Bob is, I would expect him to have a hoist on [the chuck]." Finally, he stated that whenever the claimant complained of a pain, he would check it out carefully to determine whether to send the claimant to the first aid people in the company. This did not occur in the fall of 1993.
12. The claimant has presented no evidence within the time allotted of his 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. The claimant has failed to adduce the necessary medical evidence to support his claim. While all of his physicians agree that it is possible that his work aggravated his underlying condition, Dr. Lawliss also indicates that the claimant's bow and arrow work was at least as likely to be the source of the claimant's complaints. Moreover, the claimant's failure to report the alleged injury of the fall of 1993 in a timely manner creates substantial doubt about that incident, particularly when coupled with the claimant's position as safety officer for the union. Under the circumstances, the claimant cannot be said to have met his burden of proof.
4. The claimant not having prevailed is not entitled to an award of costs or attorney's fees, even if he had perfected the request.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that all claims by Robert Bates against Velan Valve Corporation for injuries suffered in the fall of 1993 or the spring of 1994 are denied.
DATED at Montpelier, Vermont this 7th day of August 1996.
___________________________
Mary S. Hooper
Commissioner