Cushing v. Just Good Builders (Nov. 25, 1996)
DEPARTMENT OF LABOR AND INDUSTRY
Ronald Cushing, Jr. File # Z-8060
v. By: Barbara H. Alsop
Hearing Officer
For: Mary S. Hooper
Just Good Builders Commissioner
Opinion #: 68-96WC
Record closed on October 15, 1996.
APPEARANCES
Patrick K. Biggam, Esq., for the claimant
Keith J. Kasper, Esq., for the employer
ISSUE
Whether the claimant's March 14, 1995, surgery to his right knee is as a result of an
aggravation of his pre-existing injury to his knee or is a recurrence of that pre-existing injury.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642.
2. Permanent partial disability compensation pursuant to 21 V.S.A. §648.
3. Medical and hospital benefits pursuant to 21 V.S.A. §640.
4. Attorney's fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. On October 13, 1986, Claimant was an employee of Just Good Builders within the
meaning of the Workers' Compensation Act (hereinafter "Act").
2. On October 13, 1986, Nationwide Insurance Company was the workers' compensation
insurance carrier for Just Good Builders.
3. On October 13, 1986, Claimant suffered an injury arising out of and in the course of his
employment.
4. Claimant was paid all of the workers' compensation benefits he was due at the time of
the original injury.
5. On March 14, 1995, Claimant had additional surgery to the same knee resulting in his
temporary total disability for six weeks following the surgery.
6. At the time of the March 14, 1995 surgery, Claimant had an average weekly wage of
$478.09, resulting in a compensation rate of $318.73.
7.At the time of the March 14, 1995 surgery, Claimant had no dependents.
8. The parties agreed to average Dr. Callan's permanency rating for a permanent
impairment to the lower extremity of 12.5%.
9. Claimant seeks benefits in the amount of six weeks temporary total disability benefits,
12.5% impairment of the lower extremity, and medical benefits for the March 14, 1995
surgery, as well as attorney's fees and costs.
10. The parties agree that this matter may be decided without the need for formal hearing,
based upon the deposition of Claimant, Dr. Callan, applicable medical records, and all forms
in the Department of Labor and Industry's files.
11. For the purposes of attorney fees only, the parties agree that the Defendant has
offered Plaintiff payment of the agreed upon permanent impairment on a Form 15 basis as
a complete and final resolution of the claim. Plaintiff has declined this settlement offer.
FINDINGS OF FACTS
1. The above stipulations are accepted as true. Notice is taken of all forms filed with the
Department of Labor and Industry.
2. On October 13, 1986, the claimant was injured when a 16 penny nail was discharged
by a nail gun and struck his right knee, in effect nailing his knee into a locked position.
The claimant was operated upon that same day by Dr. Felix Callan, who removed the nail
and observed that there was scratching of the articular surface of the medial tibial plateau.
The claimant escaped the "main hazard" of such a perforation, that is, infection of the knee.
3. The claimant was discharged from the hospital after three days of intravenous antibiotics,
and was instructed to use crutches. He thereafter returned to see Dr. Callan on a number
of occasions over a period of approximately three years, during which time he continued
to work with the employer. Approximately one and a half years after the injury, the
claimant began to develop crepitus in the knee, which continued unabated until the time
of the 1995 surgery.
4. The claimant was out of work for a period of two years after he last saw Dr. Callan in
1989. Thereafter he returned to work in the construction field at E.F. Wall, working at,
among other tasks, roofing jobs that required frequent climbing of ladders. The claimant
noted that the climbing of ladders seemed to cause an increase in his symptoms, which
had been fairly consistent over the years following the injury. The claimant was never
pain free after the original injury, and self treated with over the counter pain killers as
needed. He testified that he believed that there was surgery that might relieve his
symptoms, based on his conversations with Dr. Callan, but that he was not interested in
pursuing that option until 1995.
5. During a layoff from his work in 1995, the claimant returned to Dr. Callan for another
evaluation of his knee. The claimant reported to Dr. Callan that he had been experiencing
an increase in symptoms over a period of about one year prior to the appointment. Dr. Callan
offered the claimant treatment in the form of arthroscopic surgery, which was performed on
March 14, 1995. The surgery revealed chondromalacia of the medial tibial plateau in the
same area as the original trauma to the knee. There were tears in the cartilage as well as
in the medial meniscus, which were resected. The claimant recovered well from the surgery.
6. Dr. Callan testified that the primary cause of the claimant's need for surgery was the
initial trauma of 1986, and he indicated that the chondromalacia from which the claimant
suffered in 1995 had been present at least since his final treatment of the claimant in 1989.
He indicated that the normal wear and tear on the knee from activities of daily living would
be sufficient to cause the kind of damage that he discovered in the 1995 surgery.
However, he also agreed that it was possible that the claimant's work in construction,
specifically in doing the roofing work, had accelerated the claimant's need for the surgery
by as much as a year to eighteen months. He indicated that this was speculative, and not
an opinion he held to a reasonable degree of medical certainty, particularly in the absence
of a specific new injury or reinjury.
7. The claimant has presented evidence of his fee agreement with his attorney in this
matter for a contingency fee of 25%. Subject to the restrictions of Rule 10(a), this
agreement is acceptable. The claimant has also produced evidence of costs in the
amount of $62.70, which 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 l
ayperson 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. Once it has been established that a claimant is entitled to benefits under the Workers'
Compensation Act, the burden shifts to the employer to establish the propriety of either
ceasing or denying further compensation. Merrill v. University of Vermont, 133 Vt.
101 (1974).
4. The employer alleges in this case that the evidence supports a finding of an aggravation
of the claimant's 1986 injury by his work at E.F. Wall, specifically his roofing work.
The employer cites to the decision in Griffin v. Blue Seal Feeds, Inc., Opinion No. 14-94WC,
among others, wherein the Commissioner enunciated five factors in determining whether
a claimant had suffered an aggravation or a recurrence of a prior injury. Those factors
are: 1) whether the claimant has successfully returned to work; 2) whether the claimant
actively treated prior to the second injury and the extent of that treatment; 3) the
proximity in time of the two injuries; 4) whether the claimant had been declared at an
end medical result; and 5) whether there was a specific new incident as opposed to a
gradual worsening of condition. 5. While it appears that the bulk of these factors redound
to the benefit of the employer, it must be said that the facts in the present case bear
a substantial resemblance to those in the case of DeForge v. The Wayside Restaurant,
Opinion No. 35-96WC, where a claimant complained of problems which were identifiable at
an early stage, but which were not treated for a number of years (in that case, because of
the failure of medical professionals to ascertain the cause). In this case, the claimant's
chondromalacia was present and symptomatic in 1989 when he last saw Dr. Callan prior to
the spring of 1995, although that condition was not treated until the later time. Moreover,
while there is evidence of an increase in the claimant's symptoms in 1995, there is no
evidence from which I can find that the more probable hypothesis is that the claimant
suffered from an increase in his injury. As stated in Gay v. Gardener's Supply Company,
Opinion No. 18-96WC, "in order to establish the necessary 'worsening' as opposed to a
natural progression of an injury, it is incumbent upon the proponent to present some
medical evidence in support of that theory." It is not enough to produce speculation or
surmise to advance the defense. The claimant must prevail in this case.
6. The claimant having prevailed is entitled to an award of attorney's fees in the amount
of 20% of the benefits awarded, and costs in the amount of $62.70.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby
ORDERED that:
1. Nationwide Insurance Company, or in the event of its default Just Good Builders, pay
the claimant for six weeks of temporary total disability at the rate of $318.73;
2. Nationwide Insurance Company, or in the event of its default Just Good Builders,
pay medical benefits for the claimant's surgery of March 14, 1995, and subsequent care;
3. Nationwide Insurance Company, or in the event of its default Just Good Builders,
pay the claimant permanent partial disability benefits for a 12.5% permanent impairment
to his right lower extremity; and
4. Nationwide Insurance Company, or in the event of its default Just Good Builders,
pay attorney's fees in the amount of 20% of the amounts herein awarded, not to exceed
$3,000.00, and costs in the amount of $62.70.
DATED at Montpelier, Vermont, this 25th day of November 1996.
_____________________________
Mary S. Hooper
Commissioner