Bontempo v. Crescent Manor Nursing Home (June 4, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Constance Bontempo File #: F-16502
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Crescent Manor Nursing Commissioner
Home
Opinion #: 36-96WC
Record closed on May 8, 1996.
APPEARANCES
Gerald A. Harley, Esq., for the claimant
Keith J. Kasper, Esq., for the defendant
ISSUE
1. Whether the claimant is entitled to temporary total disability benefits from June 6, 1993, to February 2, 1995.
2. Whether the claimant is entitled to additional permanent partial disability benefits in addition to those already advanced by the insurer.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from June 16, 1993, to February 2, 1995.
2. Permanent partial disability compensation pursuant to 21 V.S.A. §648 for 100% of the right index finger, 100% of the right hand, 100% of the right arm, and 100% of the right upper extremity.
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. Claimant suffered an injury arising out of and in the course of her employment on February 22, 1993.
2. Claimant was an employee within the meaning of the Act on that date.
3. Crescent Manor Nursing Home was Claimant's employer within the meaning of the Act on the date of the injury.
4. Liberty Mutual Insurance Company was the workers' compensation insurance carrier for Crescent Manor Nursing Home on the date of the work-related injury.
5. Claimant received temporary total disability benefits from February 23, 1993, through June 15, 1993, when a Form 27 was filed. Claimant was also paid 6.4 weeks in permanency for a 20% permanent impairment to the index finger due to the work-related injury.
6. At the time of the injury, Claimant's average weekly wage, and therefore her compensation rate, was $177.85. Claimant has no dependents.
7. Claimant seeks temporary total disability benefits from June 15, 1993, through February 2, 1995. Claimant also seeks permanent partial disability benefits in the amount of 390.287 weeks. Claimant also seeks medical reimbursement in the amount of $3,000. Claimant also seeks attorney's fees and costs in this matter.
8. For attorney fee purposes only, Defendant has offered to pay as additional new money, temporary total disability benefits through October 14, 1993, or a total of $3,000, as a resolution of this disputed claim.
9. Following the accident, Claimant returned to part time work at an employer much closer to her home at Hoosick Falls Health Center (12 hours per week at $5.00 per hour) from May 17, 1993, to July 8, 1993. She also worked part time (12 to 16 hours per week at $5.00 per hour--this was increased to $6.15 per hour in May 1995) from about July 17, 1993, to May 30, 1995. Claimant was not paid temporary total disability benefits for this period.
10. The parties agree to submit this case on the records, with joint exhibits and depositions, and do not have the need for a live formal hearing on the merits.
11. The evidence in this record will close and proposed findings of fact and conclusions of law are due in the offices of the Department of Labor and Industry on May 3, 1996, unless the parties agree to the extension due to the unavailability of any deposition transcript in this matter or other unsurmountable problem.
EXHIBITS
1. Joint Exhibit 1: Medical notebook
2. Joint Exhibit 2: Deposition of Constance Bontempo
3. Joint Exhibit 3: Deposition of Arnold B. Wise, M.D.
4. Joint Exhibit 4: Deposition of Brendan M. Coogan
5. Joint Exhibit 5: Deposition of Patricia A. Babcock, R.N.
FINDINGS OF FACT
1. The above stipulations are adopted as true, and the above exhibits are admitted into evidence. Notice is taken of all forms filed in this matter with the Department.
2. The claimant worked as a nurse's aide at the defendant, where she had trained the prior fall. On the date in question, February 22, 1993, the claimant was assisting an elderly patient into a whirlpool bath, using a lifting mechanism. Although the process of the accident is not entirely clear, it appears that the claimant's right index finger was forcibly struck or pinched by a metal bar, severing almost completely the tip of the finger at the base of the nail. The claimant was transported by a coworker to the Southwestern Vermont Medical Center.
3. At the hospital, it was determined that the claimant had a near circumferential laceration of the finger, with a complicated, comminuted and displaced fracture of the distal phalanx. The finger was surgically repaired by Dr. Robert S. Block, an orthopedic surgeon, who noted that the radial neurovascular bundle had been spared, insuring good vascular inflow to the amputated tip.
4. Dr. Block followed the claimant's care over the next several months. Initially, he noted that she had normal color and blood flow, and normal turgor to the skin. The bone was healing in an excellent position, and the claimant was released to work by March 22, 1993, with a protective splint.
5. The claimant was feeling pain in the finger, and was concerned about the ability to keep the wound clean in the workplace, as her job entailed hygiene care for incontinent patients. The claimant testified that she called the Home, and spoke with the head nurse, Patricia Babcock, about the possibility of light duty work. She claims that she was told that there was no light duty work available.
6. Ms. Babcock has no recollection of the telephone conversation with the claimant. However, the call was apparently transferred to Brendan Coogan, the Administrator for Crescent Manor Nursing Home. Mr. Coogan took notes of his conversation with the claimant, and refreshed his recollection from those notes. It appears that the call was transferred to him because the claimant had tendered her resignation to Ms. Babcock, and it was Mr. Coogan's job to handle resignations.
7. Mr. Coogan testified that the claimant indicated that she was planning to resign as she had found that she could do private duty nursing, and hoped to have more hours available to her in that position. She requested a letter of recommendation, which was prepared for her. Mr. Coogan asked that she confirm her resignation in writing, and the claimant complied. The telephone conversation occurred on March 17, 1993, and the claimant's resignation is dated the same day.
8. The claimant's resignation letter indicates that "[a]lthough the attending physician (Dr. R. Block) approved my return to work on March 22, 1993 I feel any duty there would cause further permanent damage to my finger - and I am still in pain and could not perform my duties." The claimant never attempted to return to work for the employer after Dr. Block released her to work.
9. On March 26, 1993, Dr. Block gave the claimant an out-of-work slip which indicated "unable to successful RTW 3/22 due to excess lifting + water exposure injuring repaired finger." There is no contemporaneous office note, and so it is unclear where Dr. Block obtained this information. The claimant did not actually attempt to work, and merely opined that she would be unable to perform it.
10. Ms. Babcock indicated that she had the authority to place a returning worker into a light duty position. She stated that light duty work would be available, and she would handle the matter in consultation with the administrator.
11. The claimant testified that light duty work was not available. She indicated that Ms. Babcock told her that there was no light duty work after hearing the claimant describe her limitations.
12. The claimant returned to see Dr. Block on April 13, 1993. At that time, he determined that she had moderate tenderness over the fingertip, but that it was otherwise well healed. He recommended that she begin to type on a daily basis for five minutes in the morning and afternoon, to be increased to ten minutes in the morning and afternoon after one week, and then to return to full time work, and recheck in four weeks. It does not appear that the claimant complied with these recommendations.
13. In May of 1993, the claimant went to work part-time at Hoosick Falls Health Center. She only worked there through part of the summer, about nine weeks, and was let go because she could not work fast enough because of the limitations caused by her injury.
14. The claimant next went to Dr. Block on June 16, 1993, where he opined that she suffered from hypersensitivity over the tip of the finger as well as a mild tendinitis. He referred her to occupational therapy for a course in desensitization.
15. The claimant went for occupational therapy, where she was instructed in desensitization techniques for her fingertip, including massage and range of motion exercises. She was also referred to a work hardening program.
16. After the job at Hoosick Falls, the claimant worked for Adept Health Care, where she did home care with a paralyzed patient a few hours in the evening between the regular nurses' shifts. The claimant continued in this job until May of 1995. Her W-2 forms indicate earnings in 1993 of $910.49 from Hoosick Falls and $3,220.13 from Adept, in 1994 of $7,393.37 from Adept, and in 1995 of $3,355.33 again from Adept. These numbers, based on the claimant's reported wage rate, reflect that the claimant was working about half time through this period.
17. The claimant saw Dr. Block again on July 14, 1993, where he noted her continued participation in therapy. She reported that she had no pain when the hand was at rest, and his impression was that she was slowly improving. He opined that she would not be able to return to nursing aide work, although she would shortly be able to perform light work.
18. On August 5, 1993, the claimant reported continued slow improvement to Dr. Block, who referred her to therapy at Hoosick Falls, as that was closer to home for her. It was his expectation that this would allow her to be a more regular participant in therapy. He indicated that he anticipated a return to full function after four more weeks of desensitization.
19. On September 2, 1993, the claimant returned to Dr. Block. At that time, she told him that she was not performing the increasing stress exercises, although she was continuing her soaks and range of motion desensitization procedures. However, Dr. Block stressed to her the importance of the progressive stress work to hasten desensitization of the finger tip. The claimant became very upset when the doctor recommended that there was work that she could do even with an exquisitely hypersensitive finger tip. Dr. Block referred her for follow-up to Dr. Harrington for the possibility of a novel approach to the problem. Dr. Block also prescribed a TENS unit to try to ameliorate the hypersensitivity.
20. The claimant saw Dr. Harrington, an associate of Dr. Block's, on September 29, 1993. His significant findings were of a well-healed partial amputation of the finger tip and pain disproportionate to the physical findings. He specifically noted that on one of his tests, the results indicated a lack of compliance by the claimant in the examination. He also commented on her resistance to returning to any type of work, even after they discussed her options. Of some note is his failure to find any signs of reflex sympathetic dystrophy.
21. On October 14, 1993, Dr. Block found the claimant to be at an end medical result with a 20% impairment of the right index finger, which translates to a 4% impairment to the hand, and then to a 4% impairment of the right upper extremity. The carrier has advanced undetermined benefits in accordance with this rating.
22. After the last appointment with Dr. Block, the claimant continued to see her family doctor, Dr. Martinez, mainly to obtain refills of certain prescriptions. At some point, he referred her to Dr. Arnold B. Wise, an orthopedic surgeon in Cambridge, New York.
23. The claimant saw Dr. Wise in July of 1994. At that time, he found that the claimant had full passive range of motion throughout her right upper extremity, with only mild resistance encountered and only in the index finger. He did not note any skin discoloration or atrophic skin changes or swelling in the affected area. He opined that "she seems to have evidence of a reflex dystrophy-like syndrome involving that arm and hand." He did not know that the claimant was working half time, and in fact the claimant denied that she had worked at all after she left the defendant.
24. Dr. Wise next saw the claimant in February of 1995, at which time he determined that she was suffering from reflex sympathetic dystrophy. He acknowledged that she did not have the classic signs of the condition, including diffuse swelling or discoloration of the hand. He testified that the etiology of RSD is unclear, as is the condition itself. He indicated that "[i]t's sort of in some respects a catch-all for pain syndromes that are sort of out of proportion to the injury that you see." He agreed that there are some doctors who are trying to limit and define RSD, and under those definitions the claimant does not qualify as having RSD.
25. Dr. Wise also agreed that the claimant's permanency, as evaluated by Dr. Block, was probably correct, at least according to the AMA Guides. He indicated that the Guides measure impairment by range of motion, and that the claimant's passive range of motion was full in virtually all respects. He opined that the Guides are not a good measure for either pain or functional disability.
26. Dr. Wise also expressed concern about two issues in his deposition. The first was the failure of the claimant to inform him that she continued to work throughout the period after May of 1993, up through her two visits with him. He was clear that she had denied that she was ever able to work. The second was a note in Dr. Block's final visit with the claimant, in which the doctor recorded his observation that the claimant could use her right hand readily to pick up her pocketbook with full range of motion in her hand. Dr. Wise indicated that one of the difficulties confronting a physician is that he sees the patient briefly and does not have the opportunity to observe the claimant's true capabilities in a more natural setting. He confirmed that the claimant's apparent capability, which was inconsistent with her complaints of pain and inability, could indicate that there was a psychological overlay for her claim.
27. For purposes of social security, Dr. Wise has found the claimant to be completely disabled, in part because of her RSD. However, he also noted that she has been walking with a cane and is suffering dizzy spells, which are not apparently related to the RSD. For purposes of the arm, Dr. Wise indicated that she has some permanent partial disability, although he never evaluated her for that disability.
28. The claimant has presented evidence of her fee agreement with her attorney for a contingency fee of 33 % of any sum recovered. Pursuant to the limitations imposed by Rule 10(a)(2), the fee agreement is approved only in the amount of 20%, not to exceed $3000.00.
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 meet her burden of proof. Her treating physician and his associate found her to be at an end medical result with no signs of RSD eight months after her injury, and with a permanent impairment of 4% of the right upper extremity, reflecting an 4% impairment to the hand, or a 20% impairment to the right index finger. These numbers are not contested by the claimant's own expert. The claimant has produced no expert evidence as to a higher impairment, as based on the AMA Guides or any other methodology. It would require surmise or guesswork to rule that the claimant suffered any greater impairment to her right upper extremity.
4. The claimant argues, first, that Dr. Block misread the AMA Guides, and that the 20% impairment of the right index finger translates to an 8% impairment of the right hand and a 7% impairment of the upper extremity. The claimant has herself misread the Guides. A 20% impairment of a thumb equates to 8% of the hand. A 20% impairment of the index or middle finger equates to a 4% impairment of the hand, and a 20% impairment of the ring or little finger equated to a 2% impairment of the hand. All of this information is found in Table 1 of the AMA Guides to the Evaluation of Permanent Impairment. The insurer's calculation is correct.
5. The claimant further argues that, in fact, she has suffered a 100% impairment to her right index finger, a 100% impairment to her right hand, a 100% impairment to her right arm and a 100% impairment to her right upper extremity. This claim verges on the frivolous. First, the claimant has not elicited any expert testimony, as required by Lapan, supra, to suggest that she has suffered a 100% permanent impairment to her right index finger, a condition precedent to making this claim. More than that, there is simply no evidence of impairment other than that found by Dr. Block. While there may be evidence of disability, it is axiomatic that the workers' compensation system in Vermont compensates impairment and not disability. See, e.g., Orvis v. Hutchins, 123 Vt. 18 (1962) and Bishop v. Town of Barre, 140 Vt. 564 (1982).
6. The claimant is also not entitled to an award of temporary partial disability benefits after March 25, 1993, The employee had been released to light duty work by her treating physician, and without even trying to work, the claimant quit. Light duty work was available. The claimant has presented no evidence that she was unable to perform light duty work at that time, nor has she presented any evidence of a search for light duty work. See, e.g., Waits v. Grace Cottage Hospital, Opinion No. 54-95WC.
7. Because the claimant has failed to prove either that she has RSD or that it is causally related to her work injury, she has failed to meet her burden of proof that any of her health care after October 14, 1993, is compensable.
8. Because the claimant has not prevailed, she is not entitled to an award of attorney's fees or costs.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered:
1. That Liberty Mutual Insurance Company, or in the event of its default Crescent Manor Nursing Home, pay, to the extent that it has not been paid, 8.6 weeks of benefits for a 4% impairment of the claimant's right upper extremity;
2. That Liberty Mutual Insurance Company, or in the event of its default Crescent Manor Nursing Home, be credited with any overpayment that it may have made above 8.6 weeks in any claim for future benefits; and
3. That all other claims by Constance Bontempo arising out of the injury received on February 22, 1993, at the Crescent Manor Nursing Home are denied.
DATED at Montpelier, Vermont this 4th day of June 1996.
__________________________
Mary S. Hooper
Commissioner