Zostant v. C&S Wholesale Grocers (July 11, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Mark Zostant File #: F-16464
By:Barbara H. Alsop
v. Hearing Officer
For:Mary S. Hooper
C & S Wholesale Grocers Commissioner
Opinion #: 40A-96WC
Amended Order
1. On June 4, 1996, this matter was heard at the Department of Labor and Industry, and Dr. Jon Thatcher testified on behalf of the claimant.
2. The record closed in this case on June 14, 1996, at which time the claimant did not produce any evidence of costs relative to Dr. Thatcher's testimony.
3. On June 24, 1996, claimant's counsel received an invoice from Dr. Thatcher in the amount of $260.00 for his testimony at hearing.
4. On June 28, 1996, the Commissioner issued an opinion, #40-96WC, in this matter, denying an award of costs to the claimant.
5. By motion dated July 3, 1996, and filed on July 5, 1996, the claimant requested an award of costs consistent with Dr. Thatcher's invoice.
THEREFORE, based on the foregoing, it is hereby ordered that Aetna Life and Casualty, or in the event of its default C&S Wholesale Grocers, pay the claimant's costs in the amount of $260.00.
DATED at Montpelier, Vermont this 11th day of July 1996.
________________________________
Mary S. Hooper
Commissioner
Zostant v. C&S Wholesale Grocers (June 28, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Mark Zostant File #: F-16464
By:Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
C & S Wholesale Grocers, Inc. Commissioner
Opinion #: 40-96WC
Hearing held at Montpelier, Vermont, on June 4, 1996.
Record closed on June 14, 1996.
APPEARANCES
John C. Mabie, Esq., for the claimant
Keith J. Kasper, Esq., for the defendant
ISSUE
Whether the claimant's right knee injury arose out of and in the course of his employment, as a result of the concededly work related injury to the claimant's left knee.
THE CLAIM
1. Permanent partial disability compensation pursuant to 21 V.S.A. §648.
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).
STIPULATIONS
1. Claimant was an employee within the meaning of the Act at all times relevant hereto.
2. C&S Wholesale Grocers was an employer within the meaning of the Act at all times relevant hereto.
3. On the date of the accident, Aetna Life and Casualty was the workers' compensation insurance carrier for C&S Wholesale Grocers.
4. On February 5, 1993, Claimant suffered an injury arising out of and in the course of his employment to his left knee.
5. At the time of the injury, Claimant had an average weekly wage of $615.63, resulting in an initial compensation rate of $410.42.
6. At the time of the injury, Claimant had no dependents, but had a dependent on March 6, 1995.
7. At issue in this case is Claimant's entitlement to workers' compensation benefits relative to his alleged work-related injury to his right knee.
8. Claimant seeks payment of all medical benefits related to his right knee, and permanency in the amount of 7% lower extremity to his right knee. (sic)
9. The parties stipulate to the admission of medical records as Joint Exhibit 1, and agree that the Department of Labor and Industry can take judicial notice of all forms in this file.
EXHIBIT
1. Joint Exhibit 1 Medical records notebook
FINDINGS OF FACT
1. The above stipulations are adopted as true, and the exhibit is admitted into evidence. Notice is taken of all forms filed in this matter with the Department of Labor and Industry.
2. On February 5, 1993, the claimant injured his left knee while selecting product for the employer. He did not immediately seek medical attention, and attempted to rest it over the weekend. When this was unsuccessful, he sought care through the emergency room at Brattleboro Memorial Hospital.
3. The claimant was referred to Dr. John T. Chard, an orthopedic surgeon. Dr. Chard treated the claimant conservatively for a period of several months, after diagnosing the claimant's problem as chondromalacia of patella.
4. When conservative care failed to resolve the claimant's problems, he underwent arthroscopy, performed by Dr. Chard, in September of 1993. Dr. Chard found that the claimant suffered from chondromalacia of the patella with lateral patellar tracking. He performed a lateral release with the hope that it would ameliorate the tracking problem.
5. The claimant's major complaint after the surgery involved a large postoperative hematoma which resolved with conservative care. He also experienced some tenderness over the lateral patella retinaculum. Although physical therapy was recommended, the claimant was unable to follow up on this because of his lack of transportation. He therefore began a home exercise program.
6. The claimant was released to light duty work on October 26, 1993, and requested a further release on November 1, 1993. On the latter date, he was released to a lifting limitation of 25 pounds, with no repeated squatting or crawling.
7. At the end of November, the claimant returned with increased complaints of pain, apparently attributable to the fact that he had to walk several miles a day to work. Dr. Chard found that the claimant was experiencing weakness in his quadriceps, and he referred the claimant to a physical therapist within a block of his home. He also took the claimant out of work unless the employer was able to arrange alternative transportation for him. The claimant was out of work for the month of December.
8. On January 13, 1994, the claimant had a full and free range of motion in his left knee, and Dr. Chard indicated that he appeared to have had a full recovery from his knee injury. The claimant was released to full duty work.
9. In March, the claimant felt a "snap" in his left knee as he rose from a squatting position while playing with his dog. As a result of the increased symptoms after that incident, the claimant underwent a CT scan of his left knee. Based on the results of that test, the claimant was scheduled for additional surgery to correct a defect in his patellar tendon. The surgery was a transplantation of the tibial tubercle, and was performed on April 25, 1994.
10. On May 9, 1994, the claimant underwent a third surgery to his left knee to repair a failed tibial tubercle fixation. As a result of this surgery, the claimant was placed in a cast for a period of about six weeks. He was placed on crutches, and ultimately sent to physical therapy.
11. Throughout the fall of 1994, the claimant complained to Dr. Chard and his therapist of an increasingly weakened left leg. He was participating in physical therapy to attempt to strengthen the leg, and finally determined that he wanted to seek a second opinion with regard to his left knee. He went to see Dr. Jon Thatcher, with whom he had treated in the emergency room at the time of the failure of the tibial tubercle fixation.
12. Dr. Thatcher saw the claimant on October 12, 1994, and confirmed the atrophy in the claimant's left quadricep. He recommended a hinge brace for the knee which would limit the degree of flexion, preventing the knee from giving way while the claimant was working. He also encouraged aggressive physical therapy for the strengthening of the weakened muscle.
13. On a return visit to Dr. Thatcher on November 15, 1994, the claimant made a complaint of bilateral knee pain. The doctor and the claimant discussed this issue more thoroughly in the appointment on December 12, 1994, when it was determined that the claimant would undergo a fourth surgery to remove the hardware installed in the tibial tubercle repair. At that time, Dr. Thatcher noted that the claimant suffered from lateral tilting of the right patella, which was now causing patella femoral pain. They deferred any decision on the right knee until after the fourth operation on the left knee and the recovery from that operation.
14. The fourth surgery occurred in January of 1995, and was successful. By April of 1995, the claimant was reporting that his right knee was much worse than the left knee. Dr. Thatcher, in his note of April 4, 1995, indicated that the claimant's difficulties with his right knee began around six to nine months earlier. Dr. Thatcher at that time opined that the pain in the right knee was "probably related to stressing the right knee as he was recuperating from his multiple surgeries in the left knee."
15. On May 23, 1995, the claimant underwent an arthroscopic lateral release of his right knee, which was successful. After a reasonably uneventful recovery, he was placed at an end medical result on September 14, 1995, for his right knee, with a 7% permanent impairment to his right leg for the subluxation patella.
16. The claimant and his girl friend each testified that he began to complain of pain in his right knee at about the time the cast was removed from his left leg after the third surgery in the summer of 1994. Because the claimant was more concerned about the difficulties with his left leg and the weakness and giving way that he was experiencing in that leg, he did not report the right knee pain immediately. He testified that he reported the right knee pain to his physical therapist some time in October and to Dr. Thatcher in November. He did not report the right knee pain to Dr. Chard.
17. Dr. Thatcher testified that, in all medical likelihood, the claimant's right knee pain was triggered by his reliance on his right knee while recovering from the multiple traumas to the left knee. He stated that, while the claimant's tracking problem was pre-existing, it was made symptomatic by the problems with the left knee. While he could not rule out the possibility that the claimant's right knee pain was only coincidental, he found that to be unlikely, given the prolonged stresses to the right knee.
18. Dr. Chard testified that the claimant never reported any right knee pain to him, and that he would have expected any right knee symptoms to arise while the claimant was at his most disabled state, that is, after the open surgeries. He indicated in his testimony that the claimant first mentioned this pain in the fall of 1994, after he was doing much better with his left knee. However, the record does not support that the claimant was doing much better with his left knee at the time that the claimant first reported the right knee pain.
19. Dr. Chard could not refute the possibility of Dr. Thatcher's position. He conceded that it was not rare to have an uninjured leg become symptomatic while treating an injured leg. However, he pointed out that people with malalignment of the patella tend to become more symptomatic as the aging process continues, and that this could be the mechanism by which the claimant's right knee developed symptoms.
20. The claimant has presented evidence of his fee agreement with his attorney, for a contingency fee of 33 % of recovery of past due temporary total disability compensation and permanent partial disability compensation. Subject to restrictions in Rule 10, this agreement is acceptable. The claimant has not presented any evidence as to costs in this matter.
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). 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).
3. The claimant's left knee problems, although based on a pre-existing condition, were clearly compensable because of the injury at work. All of the natural consequences that flow directly from that injury are therefore compensable. Corell v. Burlington Office Equipment, Opinion No. 64-94WC. See, also, Larson, Workmen's Compensation Law §13.11. It is based on this principle that the insurer has paid compensation for all of the treatment of the left knee. The dispute in this case is simply whether the problems with the right knee are a direct consequence of the injury to the left knee.
4. Both doctors agree that the claimant had an asymptomatic pre-existing condition in his right knee that became symptomatic at some time in the summer or fall of 1994. It is the cause of the new symptoms that is questioned here. Both doctors agree that it is possible for an uninjured leg to become symptomatic during the treatment of an injury to the opposing leg. While Dr. Thatcher believes that it is more probable that the claimant's right knee became symptomatic because of his favoring of his left knee, particularly in light of the length of the treatment to the left knee, Dr. Chard is less sanguine in his endorsement of this opinion. Both doctors concede that this is not a matter that can be determined with absolute certainty.
5. The standard, as expressed in Burton, supra, is whether the claim as presented by the claimant is the "more probable hypothesis." Mindful of the Lapan, supra, requirement for medical evidence, it must be said that Dr. Thatcher's opinion is of sufficient certainty to support a finding of compensability, while Dr. Chard's concession of the possibility that Dr. Thatcher is correct provides some bolstering to that opinion. I find that the claimant has met his burden of proof that the more probable hypothesis in this case is that the right knee became symptomatic and required surgery as a result of the injury to and treatment of the left knee.
6. The claimant having prevailed is entitled to an award of costs as a matter of law and of attorney's fees as a matter of discretion. Because the claimant has not presented any evidence of costs, he cannot be awarded costs. Workers' Compensation and Occupational Disease Rules, Rule 10(d). The claimant is awarded attorney's fees in the amount of 20% of the permanency to his right knee.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. Aetna Life and Casualty, or in the event of its default C&S Wholesale Grocers, pay medical benefits for the surgery and other treatment to the claimant's right knee;
2. Aetna Life and Casualty, or in the event of its default C&S Wholesale Grocers, pay the claimant permanency in the amount of 7% to his right lower extremity; and
3. Aetna Life and Casualty, or in the event of its default C&S Wholesale Grocers, pay attorney's fees in the amount of 20% of the permanency awarded.
DATED at Montpelier, Vermont this 28th day of June 1996.
___________________________
Mary S. Hooper
Commissioner