Godfrey v. ECCO Temporary Services (Nov. 25, 1996)
DEPARTMENT OF LABOR AND INDUSTRY
Mindy Jo Godfrey File # H-20336
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
ECCO Temporary Services Commissioner
Opinion #: 72-96WC
Hearing held in Montpelier, Vermont, on October 8, 1996.
Record closed on October 22, 1996.
APPEARANCES
Kerry G. Spradlin, Esq., for the claimant
William A. O'Rourke, III, Esq., for the employer
ISSUE
1. Whether the claimant's right shoulder injury is a recurrence or an aggravation of the
injury suffered while in the employ of ECCO Temporary Services on January 17, 1995.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642.
2. Medical and hospital benefits pursuant to 21 V.S.A. §640.
3. Attorney's fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. On January 17, 1995, the claimant was an employee of ECCO Temporary
Services with an hourly rate of pay of $7.00.
2. On January 17, 1995, the claimant was working at Nastech as a placement
from ECCO Temporary Services.
EXHIBITS
1. Joint Exhibit 1: Dr. Block's medical records
2. Joint Exhibit 2: Dr. Block's deposition
3. Claimant's Exhibit I: Time sheets from TAD Temporary Services
4. Defendant's Exhibit A: Preliminary Accident Report form
5. Defendant's Exhibit B: Notebook entry from ECCO
FINDINGS OF FACTS
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 of Labor and Industry.
2. The claimant was assigned to work at Nastech shortly before the incident
on January 17, 1995. Her job at the time of the injury was to place O-rings
on shafts. While moving from her station, she slipped on a small amount of
oil on the floor, and lost her balance. She caught herself by her right arm
on a crate, twisting and pulling at her shoulder. She testified that her
shoulder continued to hurt but that she worked the rest of her shift.
3. When she returned to work the following day, the claimant was told that
she had to go to ECCO Temporary Services, her employer, to fill out an
accident report form. She was sent to ECCO by taxi from Nastech, and it was
her expectation that she would return to work after she reported her injury.
When she got to ECCO, she was told that she was not going to return to
Nastech, and that they were not interested in her continuing to work for
them. The claimant was upset and worried about what her husband would say.
She told her supervisor Louise Hahn that she was capable of returning to
work. She did not fill out the accident report that day, but returned the
following week, after she had seen her doctor, to fill it out.
4. The claimant saw Dr. Robert Block on January 24, 1995, at a time when
she had a previously scheduled appointment with him for another problem. She
reported to him the injury at Nastech, and described the mechanism of injury
to him. His impression at that time was that she was suffering from a
shoulder strain, and that her minimal symptoms were resolving. He indicated
that she should stay out of work until February 3, and that she should
restrict her lifting with the injured shoulder. He scheduled a follow-up
appointment for February 21, 1995.
5. The claimant did not keep the appointment on February 21, and did not
know, as of the date of the hearing, why she missed it. However, she
indicated that she was suffering through some family problems during that
period of time, and that it was possible that she missed the appointment
because of those problems. During that period of time, she noted that her
shoulder would begin to ache if she used it too much, and that she was
limiting use of her shoulder.
6. The claimant applied for a job at the Family Dollar Store in the
beginning of March. She was still experiencing symptoms in her shoulder, and
tried to modify her work to accommodate her shoulder problems. The job
entailed setting up a new retail store, including setting up and stocking
shelves. Whenever Ms. Godfrey had difficulty lifting a box or other item,
she would get assistance from a co-worker. She testified that the employer
knew that she had a bad shoulder.
7. The claimant only worked two days at the Family Dollar Store. After the
first day, she noticed that her shoulder was very sore. However, she tried
to work the second day, and was unable to perform her tasks without
increasing the symptoms in her shoulder. She quit the job, and felt that her
shoulder symptoms resolved over a period of days back to the baseline of her
symptoms prior to the job.
8. The claimant returned to see Dr. Block on March 21, 1995. He noted that
she had an increase in symptoms due to shoulder motion at her job at the
Family Dollar Store, and he found that she had some localized swelling around
the AC joint. As a result of his findings, he injected the biceps tendon
sheath and the anterior shoulder joint capsule with Xylocaine and Celestone,
promptly alleviating the claimant's discomfort. He kept the claimant out of
work for a week as a result of the injection, and indicated that she should
return to see him if the relief from the injections was only short term.
9. The claimant did not return to work after the injection until August of
1995. In the interim, she noted that the pain began to return to her
shoulder as the shots wore off, and that she began to notice a clicking in
her shoulder when she moved her arm. As a result of the increased symptoms,
she returned to see Dr. Block on July 14, 1995. Dr. Block's examination
revealed crepitus in the subacromial space, and a positive Adson's maneuver
for right thoracic outlet syndrome. He instructed the claimant in thoracic
outlet syndrome exercises and urged her to avoid abducting her shoulder at
night.
10. Dr. Block testified that thoracic outlet syndrome was a not uncommon
result of a shoulder injury. He explained that the mechanism of this was
that the claimant would reduce use of her shoulder because of the pain,
resulting in weaker muscles. The AC joint is supported by those muscles, and
the thoracic outlet is kept open by the strength of these muscles.
Therefore, a weakening of the muscles in response to pain leads to a
reduction of support for the AC joint and a closing of the thoracic outlet.
Simple household activities would be sufficient to trigger the onset of
thoracic outlet syndrome and an increase in symptoms under these
circumstances. He ordered a shoulder arthrogram to determine the nature of
the claimant's injury, but the arthrogram was not performed because the
claimant's workers' compensation injury had not been accepted by the carrier.
11. After that visit with Dr. Block, the claimant acquired a job as a
flagger for road work for TAD Temporary Contract Services. The claimant
worked on seven separate occasions for TAD, but stopped working because of an
increase in the symptoms in her shoulder. She testified that the increased
symptoms were caused by the fact that she had to drive a considerable
distance to get to her work site, and her car had a standard transmission.
She denied any increase in symptoms from the actual flagging work. Dr. Block
confirmed that the act of shifting a standard transmission was the kind of
motion that could cause an increase in symptoms, given the claimant's
condition. However, he also indicated that he did not recall that the
claimant ever told him that the driving was the cause of an increase in
symptoms.
12. Dr. Block saw the claimant again on September 19, 1995, and noted a
marked increase in pain. He reinjected the two sites, and indicated that he
would not be able to do this again. He was anxious to perform the diagnostic
test, but was unable to do so because of the lack of approval from the
carrier. He also took her out of work for the balance of the month. Dr.
Block testified that prior to this time, he felt that the claimant had had a
light duty work capacity, and should not do the heavier work which she had
previously done. He agreed that this was the first point at which he
testified that the claimant was disabled from work.
13. Dr. Block did not see the claimant again until April 30, 1996, after the
carrier had been ordered to commence paying benefits to the claimant in an
Interim Order dated April 11, 1996. The claimant was then examined by MRI,
and returned with the result to Dr. Block on May 28, 1996. The MRI was
negative for a rotator cuff tear, although the claimant continued to have
symptoms of an impingement syndrome. Dr. Block determined that the claimant
was a good candidate for an anterior acromioplasty and early mobilization of
the shoulder.
14. The claimant underwent the surgery on September 4, 1996, and the
post-operative diagnosis was torn right acromioclavicular meniscus and
anterior impingement syndrome. It was his opinion that her condition was
consistent with her description of the injury of January 17, 1995, and that
there was not an aggravation of her condition by the work at the Family
Dollar Store.
15. The employer presented evidence that the claimant was not disabled at
the time of the injury. Louise Hahn testified that she received a report
from the nurse at Nastech that the claimant had injured herself and would be
coming over to fill out an accident report form. Ms. Hahn testified to her
recollection of the conversation with the nurse, and presented the log from
her office to establish that the conversation occurred. None of this
evidence contradicts the claimant's story of the injury or the accident. The
claimant returned to fill out the accident report form after her visit with
Dr. Block on January 24.
16. The claimant has presented evidence of her fee agreement with her
attorney for a 20% contingency fee of the amounts recovered in this action.
Subject to the limitations of Rule 10(a), this agreement is acceptable. She
has also presented evidence of costs in the amount of $95.25. These charges
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 layperson 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 must prevail in this case. There is simply no evidence
that the claimant suffered an injury after the January 17, 1995, injury
sufficient to break the chain of causation that leads back to the
ECCO/Nastech injury. Mere speculation by the employer is insufficient to
counteract the testimony of Dr. Block in this case. See, e.g., Leahy v.
Central Vermont Hospital, Opinion No. 6-96WC and the cases cited therein.
Dr. Block's description of the mechanism of the claimant's problem and the
manner in which the problem developed after the original insult to the
shoulder in January of 1995 is uncontradicted. Simply because, as the
employer alleges, the claimant is not a wholly accurate reporter of either
facts or history, it is not enough to defeat her claim in the absence of
countervailing evidence.
4. The claimant is entitled to temporary total disability benefits since
September 19, 1995, when Dr. Block testified that she was unable to work. It
does not appear that the claimant has received benefits from that date until
the date of the Interim Order, April 11, 1996. To the extent that the
claimant has not received these benefits, she is awarded them herein.
5. The claimant having prevailed is entitled to an award of costs as a
matter of law and attorney's fees as a matter of discretion.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it
is hereby ORDERED that:
1. Home Insurance Company, or in the event of its default ECCO Temporary
Services, pay temporary total disability benefits, to the extent that they
have not already been paid, from September 19, 1995, and ongoing;
2. Home Insurance Company, or in the event of its default ECCO Temporary
Services, pay medical benefits for the claimant's shoulder injury consistent
with this opinion;
3. Home Insurance Company, or in the event of its default ECCO Temporary
Services, provide the claimant such other benefits as she is entitled to
under the Workers' Compensation Act as a result of the compensable injury
found herein; and
4. Home Insurance Company, or in the event of its default ECCO Temporary
Services, pay attorney's fees in the amount of 20% of the amounts awarded
above, not to exceed $3,000.00, and costs in the amount of $95.25.
DATED at Montpelier, Vermont this 25th day of November 1996.
_____________________________
Mary S. Hooper
Commissioner