Barrows v. Georgia Pacific Corp

Barrows v. Georgia-Pacific Corp. (July 29, 1996)

STATE OF VERMONT

DEPARTMENT OF LABOR AND INDUSTRY

David Barrows File #: G-10788

By:Barbara H. Alsop

v. Hearing Officer

For: Mary S. Hooper

Georgia-Pacific Corp. Commissioner

Opinion #: 44-96WC

Hearing held at Montpelier, Vermont, on June 5, 1996.

Record closed on June 26, 1996.

APPEARANCES

Michael J. Hertz, Esq., for the claimant

John J. Boylan III, Esq., for the defendant

ISSUE

1. What is the correct measure of the claimant's average weekly wage for calculation of his workers' compensation benefits?

2. Is the claimant entitled to temporary partial disability benefits for the period from July 11, 1994, to August 31, 1994?

THE CLAIM

1. Temporary partial disability compensation pursuant to 21 V.S.A. §646 from July 11, 1994, to August 31, 1994.

2. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).

STIPULATIONS

1. As of October 28, 1993, the claimant was employed by Georgia-Pacific Corporation and was an employee within the meaning of the Vermont Workers' Compensation Act.

2. As of October 28, 1993, Georgia-Pacific Corporation was the claimant's employer within the meaning of the Act and was self-insured.

3. On October 28, 1993, the claimant suffered an injury arising out of and in the course of his employment with Georgia-Pacific.

4. During the 12 weeks preceding October 28, 1993, the claimant had earnings from his employment with Georgia-Pacific in the amount of $4,859.72.

5. As of October 28, 1993, the claimant also worked on a part-time basis for Ker, Westerlund and Fleming Funeral Home ("Ker's") as an ambulance driver and attendant, as an attendant during "visiting hours," and, occasionally, doing painting and other maintenance work. The claimant received payments from Ker's in the amount of $1,092.00 during the 12 weeks preceding October 28, 1993.

6. Ker treated the claimant as an independent contractor and paid him monthly, without withholding for taxes, Social Security, or Medicare.

7. If based upon payments received from both Georgia-Pacific and Ker's during the 12 weeks prior to his work injury, the claimant's average weekly wage (AWW) is $495.98; if based solely on his earnings from Georgia-Pacific, the claimant's AWW is $404.98.

8. The claimant continued working for Georgia-Pacific on a full-time basis until March 27, 1994, and has not worked for Georgia-Pacific since then.

9. During the period July 11-August 31, 1994, the claimant worked for Ker's on a part-time basis and was paid for ambulance runs as follows:

W/e 7/17/94 $75.00

W/e 7/24/94 90.00

W/e 7/31/94 60.00

W/e 8/7/94 60.00

W/e 8/14/94 0.00

W/e 8/21/94 90.00

W/e 8/28/94 105.00

8/29/94-8/31/94 90.00

According to Ker, the claimant received additional payments from Ker's for work done on an hourly basis in the amount of $150.00 for July and in the amount of $175.00 for August. Said payments were not broken down by day or week in the information received from Ker's, but the parties have agreed that these amounts may be pro-rated on a weekly basis, as follows: $34.62/wk. ($150/4.333) during July, and $40.39/wk. ($1.75.00/4.333) during August.

10. Combining the payments for ambulance runs and the additional pro-rata payments, the claimant was paid for work done in July and August as follows:

W/e 7/17/94 $109.62

W/e 7/24/94 124.62

W/e 7/31/94 94.62

W/e 8/7/94 100.39

W/e 8/14/94 40.39

W/e 8/21/94 130.39

W/e 8/28/94 145.39

8/29/94-8/31/94 103.44

11. If the claimant is found entitled to temporary partial disability benefits for the period July 11-August 31, 1994, the amounts of those benefits are as follows (depending which figure is used for the claimant's AWW):

$404.98 $495.98

W/e 7/17/94 $196.91 $257.57

W/e 7/24/94 186.91 247.57

W/e 7/31/94 206.91 267.57

W/e 8/7/94 203.06 263.73

W/e 8/14/94 243.06 303.73

W/e 8/21/94 183.06 243.73

W/e 8/28/94 173.06 233.73

8/29/94-8/31/94 46.75 72.75

Total $1,439.72 $1,890.38

EXHIBITS

1. Joint Exhibit 1 Medical records

2. Joint Exhibit 2 Ker, Westerlund and Fleming Funeral Home records

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. Notice is also taken of all vocational rehabilitation records filed with the Department. Notice is also taken of Department records that show that Ker, Westerlund and Fleming Funeral Home is an insured employer at all times relevant to this proceeding within the meaning of the Workers' Compensation Act.

2. The claimant worked for Georgia-Pacific and its predecessor Erving Paper for over 19 years. His position in 1993 was in shipping and warehousing. He operated a box clamp, which he described as being similar to a fork lift, to stack cases and place them in the warehouse. He also sometimes helped in the loading of trucks.

3. The claimant began to experience pains in his left knee in August of 1993. He described his symptoms as being sharp pains in the area of the kneecap. He first sought medical attention for this condition in October of 1993, when he went to see his general practitioner, Dr. Langweiler. He also saw the company doctor, Dr. A. Douglas Lilly, in November, and he recommended a nonsteroidal anti-inflammatory and a brace. The brace made his knee worse, and the claimant stopped wearing it.

4. In the beginning of 1994, the company was planning to go from an eight hour work day to a twelve hour work day. The claimant self-referred to a physician in Massachusetts, Dr. James Parkinson, who recommended against the claimant's working for twelve hours a day. He brought a note from Dr. Parkinson to his employer, and continued to work until he went to see Dr. John T. Chard, in March of 1993.

5. Dr. Chard diagnosed the claimant as suffering from patellar subluxation and probable secondary chondromalacia, a diagnosis that confirmed the findings of Dr. Parkinson. Dr. Chard believed that surgery might offer the claimant some relief, but he otherwise restricted his comments to limitations in the claimant's work, such as no bending, squatting, stair climbing or extended walking. Dr. Chard opined that the claimant's work at Georgia-Pacific had aggravated his underlying malalignment problem. Dr. Chard gave the claimant a note for his employer, describing these restrictions and recommending light duty work.

6. When the claimant produced Dr. Chard's note for the employer on March 24, 1994, the employer declined to allow the claimant to work until he was seen again by the company doctor. Dr. Lilly subsequently saw the claimant on April 5, 1994, and he confirmed that the claimant should not work more than eight hours a day, and that it was unlikely that the claimant could continue to do his regular duties with his knee condition..

7. The employer claimed that it had no work for the claimant meeting the restrictions imposed by the various doctors. Georgia-Pacific had previously referred the claimant for vocational rehabilitation services to Comprehensive Rehabilitation Associates, Inc., where he was assigned a case manager, Helyn Strom-Henriksen. It does not appear that vocational rehabilitation with a goal of return to work at the same employer in a different position was ever considered, although the record is silent on this issue.

8. As noted in the stipulations, the claimant had a part-time job with Ker's. He was able to return to his part-time work on June 1, 1994. However, on June 9, 1994, the claimant returned to see Dr. Chard, now complaining of bilateral knee pain. Dr. Chard suspected that the pain in the right knee was partly in response to compensatory behaviors because of the pain in the left knee. Dr. Chard placed the claimant into a physical therapy program through his office.

9. At the same time, Dr. Chard evaluated the claimant for a permanent impairment rating, which he established at 7% of the lower extremity, even though the claimant continued to treat for physical therapy through the summer. The physical therapy was successful in easing the right knee symptoms, but was of no benefit to the claimant's left knee. Finally, on August 31, 1994, he wrote a letter to claimant's counsel indicating that "I think I have taken Mr. Barrows as far as I can with non-operative treatment. It is my opinion that surgery on the left knee would be beneficial." Dr. Chard's opinion about the benefits of surgery was not shared by Dr. Lilly or Dr. Parkinson. Dr. Chard recommended referring the claimant to a recognized knee expert for resolution of the medical dispute. It does not appear that this has been done.

10. Throughout the summer of 1994, while attending physical therapy, the claimant continued to work with his vocational rehabilitation counselor, and also continued to work for Ker's. With his vocational rehabilitation counselor, the claimant actively pursued other work consistent with the limitations placed upon him by Dr. Chard, and finally on September 7, 1994, was released to continue the job search on his own. Ms. Strom-Henriksen's reports through the summer confirm the claimant's positive involvement in the process and his desire to find appropriate employment.

11. While Ker's treated the claimant's remuneration as that of an independent contractor, the claimant had no control over his own work. See, e.g., Mitchell v. Harrington Plumbing & Heating, Opinion # 91-95WC. He worked when he was called by the company, using the company's vehicles in the performance of the company's business, helping in the funeral home as an aide, and maintaining the facilities of the funeral home. The claimant did not receive a full time job with Ker's because a family member was given that position.

12. The claimant has presented evidence of his fee agreement with his attorney, a modified contingent fee agreement providing for a fee of "25% of the amount recovered, in the event of a hearing before the Commissioner of Labor and Industry, or the amount of attorney's fees awarded by the Commissioner, which ever is greater." Subject to the limitations of Rule 10

of the Workers' Compensation and Occupational Disease Rules, this agreement is acceptable. The claimant has also produced evidence of costs in the amount of $181.93, which is acceptable.

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. 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 computation of the claimant's average weekly wage is determined by the language in 21 V.S.A. §650 and Rule 15 of the Workers' Compensation and Occupational Disease Rules. The pertinent language in §650 is that "[a]verage weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding his injury...." Additionally, §650 also indicates that "[i]f the injured employee is employed in the concurrent service of more than one insured employer or self-insurer his total earnings from the several insured employers and self-insurers shall be combined in determining his average weekly wages, but insurance liability shall devolve exclusively upon the employer in whose employ the injury occurred."

4. Because Ker's is an insured employer, its payments to the claimant should be included in the average weekly wage calculation if the claimant qualified as an employee of Ker's. A long line of cases involving the issue of independent contractor/employee disputes establishes the standards by which this analysis is to be made. Utilizing either the "right to control" standard, see Falconer v. Cameron, 151 Vt. 530 (1989), and its progeny, or the Restatement of Agency (2d), standard, see Bashaw v. Newton, Opinion No. 24-82WC, and it progeny, it is clear that the claimant was an employee of Ker's, regardless of how the parties characterized the relationship. When the claimant drove Ker's ambulance, it was on instructions as to when and where he was to do so, in equipment provided by Ker's. When he acted as an attendant at funerals, he was engaged in Ker's business along side Ker's other employees, performing the work at Ker's instructions. "Where, as here, the claimant does work obtained for him by [Ker's], does the work as instructed by [Ker's] and exercises no independent decision making, [Ker's] right to control' would seem to be dispositive of the [issue]." Mitchell v. Harrington Plumbing and Heating, Opinion No. 91-95WC. Ker's payments to the claimant should be included in the calculation of his average weekly wage.

5. The next issue involves the claimant's entitlement to further temporary partial disability benefits. This issue is complicated by the failure the employer/self-insurer to adjust this case in accordance with the provisions of the Workers' Compensation Act and the Workers' Compensation and Occupational Disease Rules. The only forms filed by the employer/self-insurer are the First Report of Injury, Form 1, and the Report of Benefits & Related Expenses Paid, Form 13. Among the required forms that were never filed are the Certificate of Dependency, Form 10, and the Wage Statement, Form 25. It appears that the employer/self-insurer prepared a Form 25 on March 29, 1994, although this was not filed with the Department until the employer/self-insurer filed its proposed findings and rulings after the

formal hearing.

6. Even though the claimant was told in March of 1994 that he could not work until he was seen by the employer/self-insurer's physician, the employer/self-insurer apparently never paid the claimant temporary total disability benefits for that period of time, or for the time thereafter when its physician confirmed the report of the claimant's physician. Having told the claimant that he was unable to work until seen by its physician, the employer/self-insurer was obligated to pay the claimant temporary total disability benefits at least for the period between his release from work and the company's physician's confirmation of the claimant's doctor's opinion. Having once initiated temporary total disability benefits, the employer/self-insurer was not entitled to terminate those benefits without complying with Rule 18, Workers' Compensation and Occupational Disease Rules, which requires the filing of a Form 27, Notice of Intention to Discontinue Payments, with adequate supporting documentation, served on both the Department and the claimant, in those cases where the claimant has not successfully returned to work. This the employer/self-insurer did not do.

7. Rule 18 also provides that "[t]ermination of temporary disability compensation on the basis that claimant has reached a medical end result shall be prohibited in the absence of a Form 27 accompanied by adequate, written medical documentation." The employer/self-insurer argues that Dr. Chard's permanency rating in June of 1994 means that the claimant had reached a medical end result. The evidence suggests otherwise. Although Dr. Chard made his finding of permanency, he continued to treat the claimant throughout the summer of 1994, and maintained at the end of that treatment that there was further appropriate treatment for the claimant. Notwithstanding the permanency rating in June, I find that the claimant was not at an end medical result at that time. Furthermore, in light of Dr. Chard's letter of August 31, 1994, I have no evidence in front of me to suggest that the claimant, without the surgery, has reached an end medical result to date. In any event, the failure to file a Form 27, properly supported, bars the employer/self-insurer from making this argument.

8. Additionally, there is no evidence before me as to whether the claimant has ever successfully returned to work. I find that the claimant's work at Ker's, at least for the period for which I have records, does not constitute a successful return to work. Specifically, part-time work at a fraction of the claimant's prior hourly rate is not a successful return to work. Unless the claimant has successfully returned to work, he continues to be entitled to temporary total disability benefits both because he has not reached a medical end result and because the employer/self-insurer has never filed a Form 27.

9. If any permanency has been advanced to the claimant, it should be converted to temporary total disability benefits, and credited against those benefits owed by the employer/self-insurer. The employer/self-insurer is entitled to reduce its temporary total disability benefits to temporary partial disability benefits for any period in which the claimant was working part time prior to his successful return to work, if any. The permanency evaluation of Dr. Chard is not accepted, as the claimant had not reached a medical end result at the time of the evaluation.

10. The claimant is entitled to an award of attorney's fees, not only because he prevailed, but also as a cautionary lesson to the employer/self-insurer. The Department would have no way of ascertaining the inadequate adjusting performed in this case had the claimant not insisted on bringing this dispute to hearing. His attorney has sought fees based on an hourly rate, in the event that the claimant prevailed on the limited issue before me, because of the amount of time he spent on the whole case. The employer/self-insurer objected to this, stating the "[t]his was not a novel or complex case. Rather, the issues presented are relatively simple and straight forward." The employer/self-insurer's failure to recognize its serious lapses in this case has cost it greatly in the award of temporary total or partial disability benefits. It will similarly cost it in an award of attorney's fees in the amount of $3,000.00, an award based on the presumed amount of temporary total disability or temporary partial disability benefits awarded in this case.

ORDER

THEREFORE, based on the foregoing findings of fact and conclusions of law, Georgia-Pacific is hereby ordered:

1. To convert any permanency already paid to temporary total disability or temporary partial disability benefits;

2. To pay to the claimant any additional temporary total disability or temporary partial disability benefits from March 27, 1994, and on-going, in accordance with the terms of this decision;

3. To provide such medical benefits as the claimant is entitled to in accordance with this decision;

4. In the event that the claimant has reached a medical end result, to ascertain the permanency to which he is entitled, and to pay it forthwith; and

5. To pay attorney's fees in the amount of $3,000.00 and costs in the amount of $181.93.

DATED at Montpelier, Vermont this 29th day of July 1996.

__________________________

Mary S. Hooper

Commissioner