Kilburn v. Munson Earth Moving (Dec. 30, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Norman Kilburn File # J-04452 By: Barbara H. Alsop
v. Hearing Officer For: Mary S. Hooper
Munson Earth Moving Commissioner
Opinion No.: 75-96WC
Record closed on December 2, 1996.
APPEARANCES
Thomas C. Nuovo, Esq., for the claimant
Barbara E. Cory, Esq., for the employer
ISSUES
1. Whether the claimant is entitled to a calculation of his average weekly
wage based on the hourly rate at which he was working at the time of his
injury.
2. Whether the claimant is entitled to have his last full week of work
included in the calculation, notwithstanding the fact that he worked after
the date of injury.
THE CLAIM
1. All benefits otherwise due to be paid based on an average weekly wage of
$585.00.
2. Attorney's fees and costs pursuant to 21 V.S.A. §678(a).
PROCEDURAL HISTORY
The compensability of Mr. Kilburn's claim for benefits from the defendant was
previously decided in his favor in Opinion No. 19-96WC. Thereafter, the
issue of the correct rate of compensation was joined, based on a disagreement
as to whether the claimant had a promotion in the 12 weeks prior to his
injury. The parties have agreed to submit this case on affidavits of the
claimant and a representative from the employer, and proposed findings and
rulings.
EXHIBITS
1. Affidavit of Norman Kilburn
2. Affidavit of James Emerson
3. Affidavit of William C. Bohlen
FINDINGS OF FACTS
1. The exhibits are admitted into evidence. Notice is taken of all forms
filed with the Department of Labor and Industry. Notice is taken of all
relevant facts found in Opinion No. 19-96WC.
2. The claimant was hired on July 3, 1995. The parties agree that his
status at that time was not permanent, with the claimant calling his position
temporary while the employer called it seasonal. The claimant wanted a wage
of $12.00 an hour, but was offered a wage of $11.50, to be increased to
$12.00 upon completion of a probationary period. The increase was duly paid
in the pay period ending August 12, 1995. The claimant was injured on August
25, 1995, but worked the balance of the week. He worked one day the
following week.
3. The claimant indicates that he was hired as a Drott operator
(alternately called a drought operator), and that he received a promotion
when his employer found that he could operate many different kinds of
equipment. However, his employment application indicates that he was
applying for a position as an equipment operator, with experience in at least
five kinds of equipment. Mr. Bohlen claimed that the claimant was hired as
an equipment operator consistent with the equipment that he claimed he could
operate and that his work did not change between the date of hire and the
period after the increase in pay.
4. The claimant's average weekly wage including the weeks leading up to his
injury but excluding the week of injury, a period of seven weeks, is $513.31.
The same calculation including the week of injury, a period of eight weeks,
results in an average weekly wage of $523.77. The claimant in one of his
alternative formulations suggests using week two through week eight, the week
of injury, for an average weekly wage of $540.27. Finally, an average weekly
wage based on the period when the claimant was earning $12.00 an hour, a
period of three weeks including the week of injury, is $585.00.
5. The claimant has presented evidence, in the earlier proceeding, of his
fee agreement with his attorney for a fee in the amount of 20% of the sums
recovered. This agreement 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).
2. The calculation of a claimant's average weekly wage is governed in the
first instance by the statute, 21 V.S.A. §650, and then by the rules, Rule 15
of the Workers' Compensation and Occupational Disease Rules. The basic
premise of the calculation is "to give the average weekly earnings of the
worker during the twelve weeks preceding the injury...." 21 V.S.A. §650(a).
That section goes on to say that "if a worker at the time of the injury is
regularly employed in a higher grade of work than formerly during the twelve
weeks preceding the injury and with larger regular wages, only the larger
wages shall be taken into consideration in computing the worker's average
weekly wage." The statute therefore requires both a higher grade of work and
an increase in wages.
3. Rule 15 similarly excludes "any weeks preceding a promotion and/or
transfer as a result of which the claimant is receiving larger regular
wages." Rule 15(d)(2)(C). Rule 15 does not specifically require a change in
the grade of work, although some change is envisaged by the words "promotion
and/or transfer" presumably.
4. The only transfer that could possibly qualify for the exclusion of the
lower paid weeks is the conversion of the claimant's status from "seasonal"
or "temporary" to "permanent." However, in this conversion, there is simply
no evidence that the claimant's duties changed in any material way. The
logical inference is that the increase in pay received by Mr. Kilburn was the
functional equivalent of a cost-of-living raise, or other regularly scheduled
increase, and not an increase due to a change in the grade of his work. In
support of this inference is Mr. Kilburn's affidavit, in which he indicated
that he was performing on other pieces of equipment prior to the increase in
rate of pay.
5. The claimant argues that the purpose of the average weekly wage
calculation is to "arrive at a fair approximation of claimant's probable
future earning capacity" citing to Larson, Workers' Compensation Law, at
§60.11. While this is certainly the policy underlying the calculation of the
average weekly wage, the Legislature has adopted a rational and reasonable
method of effectuating the policy, and the claimant has produced no authority
for the Department to alter the legislative plan.
6. The claimant has also argued that the first week of the claimant's
employment should not be included in the calculation, and that the week of
the injury should be included. With regard to the first week, the claimant
has produced no reason for excluding it, other than the fact that inclusion
reduces his compensation rate. The statute and the rule both allow for the
exclusion of any week in which the claimant works less than one half of his
normal hours. In the first week of the claimant's employment, he worked more
than one half of his average weekly hours. The first week is includible.
With regard to the week of injury, the claimant wishes to include it because
it will increase his compensation rate. However the statute requires the
calculation to be made based on the earnings during the weeks "preceding the
injury" and the rule specifically excludes the week of injury. The week of
injury is not includible.
7. The claimant's average weekly wage for purposes of calculation of
benefits due to him under the Workers' Compensation Act is $513.31.
8. The claimant not having prevailed 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 that Norman Kilburn be paid all benefits to which he is
entitled based upon an average weekly wage of $513.31, and that his claim for
attorney's fees and costs be DENIED.
DATED at Montpelier, Vermont this 30th day of December 1996.
_____________________________
Mary S. Hooper
Commissioner
Kilburn v. Munson Earth Moving (April 8, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Norman Kilburn File #: J-04452 By: Barbara H. Alsop
v. Hearing Officer For: Mary S. Hooper
Munson Earth Moving Commissioner
Opinion #: 19-96WC
Record closed on March 21, 1996.
APPEARANCES
Thomas C. Nuovo, Esq., for the claimant
Barbara E. Cory, Esq., for the defendant
ISSUES
1. Whether the claimant wilfully engaged in behavior intended to injure himself in violation of 21 V.S.A.§649.
2. Whether the claimant intentionally misled his employer in his
application for employment by failing to disclose his prior operation and one
prior employer.
3. If the answer to #2 is affirmative, whether the claimant's failure to
disclose the information bars him from receiving benefits under the Workers
Compensation Act as a result of his injury of August 25, 1995.
PROCEDURAL HISTORY
Pursuant to a pretrial conference and later correspondence between counsel,
it was agreed that this matter would be submitted for decision based on
medical records, depositions, and proposed findings and rulings.
EXHIBITS
Joint Exhibit 1 Medical records notebook
Joint Exhibit 2 Deposition of Norman Kilburn
Joint Exhibit 3 Deposition of Nancy E. Binter, M.D.
The claimant has proposed a number of exhibits, and no objection has been
received to them. However, some of the exhibits are already included in
Joint Exhibit 1, and will not be accepted.
Claimant's Exhibit 1 Letter of 2/5/96 from Barbara E. Cory
to the hearing officer.
Claimant's Exhibit 3 Recorded statement of Jim Adkins, dated
September 13, 1995.
Claimant's Exhibit 9 Physical therapy note, August 12, 1994.
The defendant has filed an affidavit and the claimant's application with
Munson Earth Moving. There has been no objection to these documents.
Defendant's Exhibit 1 Affidavit of William C. Bohlen
Defendant's Exhibit 2 Applications for employment dated
March 28, 1995, and July 3, 1995,
by Norman Kilburn.
FINDINGS OF FACT
1. The above exhibits are admitted into evidence. Notice is taken of all
forms in the Department's file. Neither party offered the Functional
Capacity Evaluation (FCE) of the claimant, although it has been marked as
Exhibit 6 in the deposition of Dr. Binter. As such, it has been admitted.
2. Norman Kilburn is a 56 year old man with a seventh grade education and a
marked inability to recall names, dates or events in any detail. He is an
operator of heavy machinery, with a lifetime history of manual labor.
3. On July 18, 1994, the claimant injured his back while working for
Engineer's Construction. As a result of that injury, and after a period of
unsuccessful conservative treatment, he underwent spinal surgery performed by
Dr. Nancy Binter on September 28, 1994, with discectomies at L4-5 and L5-S1.
4. The claimant went through physical therapy and work hardening over a
period of several months. On January 24, 1995, he participated in an FCE
with physical therapists at Fletcher Allen. The FCE is a blind study in that
the subject of the evaluation is not made aware of the weights he is lifting
during the evaluation. The claimant had been lifting 40 pounds in physical
therapy prior to the evaluation, with a goal of 50 pounds.
5. The FCE indicated that the claimant could carry weights, as with a
bucket or luggage, up to 42 pounds. His lifting was limited to between 21.4
pounds to 32.4 pounds, depending upon the level at which he was lifting.
6. The claimant met with Dr. Binter after the FCE for further discussion.
The claimant recalls that he was told not to lift in excess of 50 pounds, and
was told not to lift anything excessively heavy. Dr. Binter has no
recollection of the particular meeting with the claimant, but was adamant
that she always discusses the specific limitations in an FCE with a patient.
It is clear that the claimant was insensitive to the significance of the
information he was given in this meeting.
7. The claimant was released to part time work on January 31, 1995, and he
did so, although he reported to Dr. Binter that one of his bosses was
reluctant to have him back at work. After the physical therapy program was
completed, the claimant was in a rehabilitation program to continue to
increase his strength. He was laid off by Engineer's Construction at some
time in late March or early April.
8. From February through June, the claimant returned to Dr. Binter with
reports of difficulties with his back. In February, his pain was in his left
buttock and the back of his left leg, and was treated with a Medrol Dosepak,
Flexeril and Amitriptyline. In April, the complaint of low back pain was
similar to that he had previously experienced, with bilateral leg pain if he
bent over. At that time, Dr. Binter's notes reflect that the claimant had
been returned to work full duty, full-time without any difficulty prior to
his layoff. The June visit occurred after another MRI was performed on June
6, 1995, which showed no change in his operative site, but degenerative disc
changes and a bulge at L3-4 that was unchanged from earlier studies. There
was no apparent cause for the claimant's then complaints of a pressure in his
back extending into his legs.
9. On March 28, 1995, and July 3, 1995, the claimant applied for work at
Munson Earth Moving Corporation, and he was hired on the second occasion.
The claimant did not report Engineer's Contractor as a prior employer on
either application. He interviewed with William C. Bohlen, the vice
president for the defendant. Mr. Bohlen indicated in his affidavit that the
claimant never told him that he had been injured before, that he had worked
for Engineer's Construction, nor that he had a lifting restriction. He
stated that he assumed that [Mr. Kilburn] could perform lifting and all
other duties and tasks necessary to his position as a heavy equipment
operator. He asserted that Munson would have worked with the claimant to
adhere to his work restrictions and to accommodate him in order to avoid
further injury.
10. The claimant testified that he did not report any problems to the
defendant at the time of his employment because he believed that there was
nothing wrong with me anymore and it had been taken care of and there was no
reason why I couldn t go back to work.
11. On August 25, 1995, the claimant was operating a loader at the Williston
landfill, where he and another worker were moving bales of recycled paper to
the back of the building. The bales were wrapped in plastic, and some were
broken up, and some were wet. The co-worker, identified as Jim Adkins, was
putting the bales into the bucket of the loader, and the claimant was then
taking them around to the back of the building. At some point in the day,
the only bales left were those in an area that the claimant could not reach
with the loader because of detritus on the ground.
12. The claimant spontaneously got down from the loader to assist Mr.
Adkins. He was not asked to do this, but did so to help out. They would
bend down to pick them up, but the claimant was careful to use the lifting
techniques he had been taught at physical therapy. They were shifting the
bales only about three feet. The claimant testified that they were each
lifting about half of the weight of the bales. After assisting with
approximately 20 bales, taking occasional breathers, the claimant stopped,
indicating that it was making his back sore. The claimant testified that
he thought he was lifting 50 or 60 pounds, and Mr. Adkins, in his statement
to an insurance adjuster, opined that the bales weighed as much as 150
pounds, and that he could not lift them by himself. The claimant indicated
that the bales were awkward to lift, because they were broken and covered
with plastic, which was slippery in the damp.
13. The claimant later retrieved one of the bales from an owner of a tree
service, and had it weighed by one Robert Tourneau, the operator of an
official weigh station for deer. It was weighed at 63 pounds. The claimant
testified that the one he obtained for weighing purposes was quite wet, and
that the paper was soaking wet to the touch.
14. The claimant continued to work the rest of the day, babying his back.
He indicated that he could usually resolve any increase in symptoms this way,
but that it was not effective in this case. He worked the following day, but
was then unable to work the following day. He advised his supervisor that
his back was bothering him too much to continue to work.
15. The claimant testified that his back pain was on the opposite side from
his earlier injury. He returned to see Dr. Binter at that time, and had a
conversation with her. He testified that she told him he had done something
he was not supposed to do, that he had lifted too much, and that he was not
supposed to do any heavy lifting at all. He contested that and told her that
what he lifted was not very heavy at all. His behavior at that meeting
confirmed his inability to grasp the intent of her recommendations to him.
16. In her testimony, Dr. Binter indicated that it would not be unreasonable
for the claimant to lift 32 pounds, assuming that he had maintained the shape
he was in at the time of the FCE, and that it similarly would not have been
unreasonable to assist another person in lifting 64 pounds, if the body
mechanics were fine. The claimant testified, uncontradicted, that he always
lifted in the manner he had been taught at physical therapy.
17. The claimant has most recently seen Dr. Robert D. Monsey, who noted that
the claimant's symptoms were on his right side, as opposed to the area of the
prior injury. He recommended further diagnostic studies. It is not clear
from the record whether or not those studies have been done. In any event,
as Dr. Binter noted, the claimant's complaints were not in a distribution
consistent with a nerve root, and hence it was likely that the problem was
more consistent with a strain.
18. The claimant has produced evidence of his agreement with his attorney
for fees amounting to 20% of the amount recovered, as well as expenses in the
amount of $45.72. These amounts are reasonable.
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 defendant has the burden of proof in this case, as each of its
claims is an affirmative defense. See, e.g., Kelly's Dependents v. Hoosac
Lumber, 95 Vt. 50 (1921), and Garber v. Hill-Martin Corp., Opinion No.
11-88WC.
4. In order to prove a violation of 21 V.S.A. §649, the defendant must
establish that the more probable hypothesis is that the claimant had the
wilful intention to hurt himself or another. There is absolutely no
evidence from which I can find that the claimant lifted the bales in question
with the wilful intention of hurting himself. Nor does the defendant produce
a single case to support its position that §649 can apply in this case.
5. Instead, the defendant asserts that the lesser standard, as enunciated
in Whalen v. Lake Champlain Transportation, Inc., Opinion No. 21-93WC,
applies. That standard is that [a] claimant who, with knowledge of limiting
conditions, engages in unreasonable conduct or activity which exacerbates or
aggravates a condition, may not claim compensation for the exacerbation or
aggravation. Id., at 13. The defense seems to assume that the conduct in
this case is unreasonable per se. No argument is advanced with regard to the
evidence that the claimant may have been lifting within his restrictions at
the time of the new injury. If, as one reading of the evidence strongly
suggests, the claimant had a lifting restriction of 32 pounds and he lifted
in the therapeutically recommended manner 31.5 pounds, then the conduct in
this case could not be found to be unreasonable. The defendant has simply
ignored this possibility, and therefore cannot be said to have met its burden
of proof.
6. Additionally, there is a qualitative difference in the facts between the
instant case and Whalen. In the latter case, that claimant was specifically
instructed not to return to work as a waitress, and she ignored that
instruction. It is therefore significant in this case that the claimant had
returned to his position as a heavy equipment operator for Engineer's
Construction with the approval of his treating physician, with the only
caveat being the issue of the amount of weight he could lift. He was fully
employed at his regular position at the time he was laid off, and there is no
evidence that he was not able to perform all of the functions of his
position.
7. Additionally, Larson has indicated that neither rashness nor
impulsiveness in behavior will lead to a finding of intentional self-injury.
See, e.g., Larson, Workmen's Compensation Law,§§36.61-36.63. In so finding,
he cites to cases in which a claimant engages in hard work after being
advised by his physician that it might kill him and it does, a claimant plays
Russian roulette on his lunch break with unfortunate results, and a claimant
in anger slams hand into a wall and breaks it. As Larson states, Of course,
it was possible that these injuries would result in each case. It is quite
another matter to say that it was expected, much less intended. Larson, at
§36.62, p. 6-200. In all of these cases, compensation was awarded. I find
that the claimant's behavior in this case was at most impulsive, in his
desire to assist his co-worker, and hence it is compensable, if there is no
other bar.
8. In that light, the defendant also claims that the claimant misled the
employer in his application. The basis for this allegation is that he did
not disclose either his employment with Engineers Construction or his injury
there. I can see no basis for finding that the withholding of the name of a
prior employer is material to the question at hand. Certainly, the factors
adopted in Hamilton v. Miller Structures, Opinion No. 64-95WC, require that
the withheld information be material. Nothing in the affidavit of Mr.
Bohlen, the only evidence on this issue presented by the defense, suggests
that the defendant intended to call or did call any of the claimant's prior
employers. Therefore, the failure to disclose one of those employers was, at
best, harmless.
9. The failure to disclose the prior injury to the claimant's back presents
a slightly different issue. First, having been returned to full duty at his
prior employer, and having reached a medical end result, the claimant had no
reason or duty to report that he was unable to do the work for which he was
applying. Secondly, to the extent that he had limitations, the claimant was
not required to disclose them prior to his hiring, nor was the employer
entitled to ask, prior to the hiring. See, e.g., Americans with Disabilities
Act, 42 U.S.C.A. §12112(A). In Hamilton, supra, the claimant made the
material misrepresentation in a post-employment physical in response to a
specific inquiry. There was no such physical examination or inquiry here.
10. The claimant is accused only of an act of omission. The defendant has
produced no case where an act of omission rises to the level of a
sufficiently serious misrepresentation to give rise to a finding of fraud. A
nondisclosure, when no disclosure is required and no question is asked, has
no legal effect in this context. The affirmative defense of fraud must
therefore fail.
11. The claimant having prevailed is entitled to an award of costs as a
matter of law and attorney's fee as a matter of discretion. Costs are
awarded in the amount of $45.72, and fees are awarded in the amount of 20% of
all amounts paid pursuant to this decision.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it
is hereby ordered that Liberty Mutual Insurance Company, or in the event of
its default Munson Earth Moving, pay:
1. To the claimant or on the claimant's behalf such benefits under the
Workers Compensation Act as are required as a result of the finding in this
case; and
2. Attorney's fees in the amount of 20% of the amount awarded, and costs in
the amount of $45.72.
DATED at Montpelier, Vermont this 8th day of April 1996.
______________________
Mary S. Hooper
Commissioner