Deforge v. Wayside Restaurant (June 3, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Allen DeForge File #: H-5270
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
The Wayside Restaurant Commissioner
Opinion #: 35-96WC
Hearing held at Montpelier, Vermont, on April 18, 1996.
Record closed on May 2, 1996.
APPEARANCES
Gary D. McQuesten, Esq., for the claimant
John Davis Buckley, Esq., for New Hampshire Insurance Company
Tammy M. Besaw, Esq., for Glens Falls Insurance Company
Christopher J. Whelton, Esq., for Aetna Insurance Company
ISSUE
Whether the claimant's need for surgery and additional medical treatment in 1994 and 1995 is chargeable to his work injury of March 13, 1981, or is as a result of a new 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. Vocational rehabilitation pursuant to 21 V.S.A. §641(b).
5. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
EXHIBITS
1. Joint Exhibit 1 Medical Notebook
2. Joint Exhibit 2 Letter from employer re: lost time
3. Joint Exhibit 3 Deposition of Kuhrt Wieneke, M.D.
4. Exhibit A Deposition of Russell P. Davignon, M.D.
PROCEDURAL HISTORY
The claimant has worked for the employer since 1978. In the early 1980s, he suffered a work related injury to his left knee that culminated in surgery. At that time, the workers' compensation claim was split by two carriers for reasons that are not immediately apparent. New Hampshire Insurance Company and Glens Falls Insurance Company therefore are jointly on the risk for the 1982 and the 1986 surgeries. Aetna Insurance Company has insured the employer at least since November of 1990. Aetna has advanced benefits without prejudice to the claimant in this matter, and is seeking reimbursement for its payments from the prior two carriers.
FINDINGS OF FACT
1. The above exhibits are admitted into evidence. Notice is taken of all forms filed in connection with the claims against The Wayside Restaurant.
2. The claimant first worked for the defendant while in high school. At that time, he determined that he was interested in a career in a culinary field, and he went to Champlain College, where his work-study employment was in the kitchen. After graduation, he returned to the defendant for a period of time, and then went to work in New York. He returned to the defendant on April 2, 1978, and has been there since, except for periods of disability as a result of his knee and back injuries.
3. In 1981, the claimant began to experience problems with his left knee, which was his pivot knee. He was the head night line cook supervisor, and he would work in a small area, between the grill, the steam table and the fryolator. As he moved between the various appliances, he would plant his left foot and move his right foot. He also had other duties that required that he lift heavy items on an occasional basis, to weights of 100 pounds, for the storing of provisions. He was on his feet for eight to ten hours a day.
4. On October 19, 1982, the claimant underwent a medial meniscectomy of his left knee. After the surgery, his symptoms resolved for a period of time, and then he began to experience additional pain in his left knee. In September of 1986, as a result of his ongoing symptoms, the claimant had an arthrogram of his left knee which revealed a popliteal cyst.
5. A popliteal cyst forms when there is inflammation in the knee that is sequestered in the popliteal fossa, and becomes a Baker's cyst. The inflammation is caused by irritation, which may be due to a number of causes, but in this case was specifically attributable to the removal of the medial meniscus. The treatment for the claimant's cyst was compensated by the two prior carriers.
6. The claimant underwent day surgery for excision of the cyst on October 20, 1986. The surgery failed to reveal a cyst, and medical records indicate that it is likely that the cyst had spontaneously ruptured a few days prior to the surgery.
7. When the claimant awoke from the cyst surgery, he immediately noticed a numbness and coldness in his left foot. He also reported a low back pain which he correlated with his sensory problems in his foot. Over the following months, he also began to experience soreness of the sole and the arch of his left foot. He later described the feeling as "like a bruise."
8. The claimant had physical therapy for his back in January of 1987. There he reported that he had slipped on October 22, 1986, two days after his knee surgery, and that his back had been worse since. He was treated with ultrasound and massage, and given an exercise program. At the end of therapy, he indicated that he was feeling better.
9. Based on his continuing symptoms, the claimant treated with Dr. Frederick Fries, a neurologist, in February of 1987. Dr. Fries ascertained that the claimant did indeed have a sensory deficit over his left heel, suggestive of a sural nerve compression arising from the 1986 surgery. The claimant's report of symptoms to Dr. Fries is consistent with his reports to other physicians and his testimony at hearing, including symptoms in his left foot and lower extremity.
10. In February of 1987, the claimant also had a CT scan of the lumbar spine, which revealed a bulging disc at L5-S1. The note of the radiologist indicates that "there does not appear to be any significant impingement upon the neural elements" and concludes that this was an "essentially normal examination." As will be noted below, Dr. Davignon takes serious issue with this conclusion.
11. The claimant continued to work for the defendant over the following years. During this period of time, his duties at the employer went through changes, as he was no longer a chef, but was now one of the managers of the restaurant. He continued to be on his feet all day, although his lifting requirements changed somewhat. He continued to experience symptoms in his left knee and foot, although they were not on a daily basis. He did not notice any appreciable difference in the symptoms over a period of years, although he did contact a few doctors for additional opinions about his symptoms. Dr. Dorothy Ford confirmed his continuing problems with numbness in the heel and the bruised feeling on January 19, 1990. He saw other doctors in 1991, with no apparent ability to assist him.
12. In the years between the second knee surgery and the claimant's return to medical treatment in 1994, the claimant engaged in a number of home improvement projects at home. There is no evidence on the record that the claimant ever injured himself in those projects or that any increase in his symptoms was attributable to that non-work-related behavior.
13. Finally, in January of 1994, the claimant went to see Dr. Russell Davignon, an orthopedic surgeon. They explored over the course of several months the possibility that the claimant's difficulties stemmed from nerve irritation in his knee. By November, the claimant and Dr. Davignon began to explore what was called "sciatica," the label attached to the back difficulties the claimant experienced after the 1986 surgery. The doctor's impression at that time was that the claimant's altered gait from his knee pain was bothering his back, and precipitating more symptoms of a clearly sciatic nature.
14. The claimant saw Dr. John Savoy, a neurosurgeon at Dartmouth-Hitchcock, in September of 1994 and January of 1995. In September, he opined that the claimant's problems were most likely caused by irritation of the sural nerve, although he noted that the claimant had a "fairly typical S-1 distribution" in his symptoms. By January, the claimant's clinical findings had increased to the point that the correlation with a disc problem was fairly clear cut. In fact, an MRI performed on January 10, 1995, disclosed an L5-S1 herniated disc. "The disc fragment projects centrally and to the left side and is causing some displacement of the first sacral root on the left side." Based on this finding, Dr. Savoy recommended surgical intervention.
15. After the September appointment with Dr. Savoy, the claimant underwent another arthroscopic procedure on his left knee. Nothing of substance was found to assist in resolution of his ongoing symptoms, and he experienced no improvement in his complaints as a result of that surgery.
16. After attempts of conservative management, including nerve blocks, were unsuccessful, the claimant underwent surgery, a lumbar laminectomy, on April 13, 1995. Immediately after the surgery, the claimant reported that the bruised feeling in his foot disappeared, as did all of the other foot symptoms with the exception of the numbness. Also, some of the symptoms that the claimant had always experienced in his knee and lower leg resolved, much to the claimant's surprise. The claimant had always attributed all of his knee and leg symptoms to the knee injury.
17. Dr. Davignon testified that the claimant's back problems arose from the period of time of the second knee surgery in 1986, although he could not state with any confidence the mechanism of the injury. There was no doubt that the claimant had an altered gait because of the loss of the meniscus, and there was also no doubt that the earlier CT scan was not "essentially normal." Dr. Davignon opined that a bulging disc was a significant finding, and that the report of the examination was only as good as the person reading it.
18. As an example of this latter principle, Dr. Davignon testified that the disc that he removed on April 13, 1995, was not herniated, notwithstanding the January MRI that found that it was. He stated that the disc that he removed was bulging and swollen, but it was not herniated. He indicated that the significance in the difference between the 1987 study and the 1995 study was only that "two different radiologists [were] looking at different films, and the reports were different." No other conclusion could be drawn with certainty from the reports.
19. Dr. Davignon also indicated that "what I can say with a reasonable degree of medical certainty is that because he has a damaged knee and he had that disc, he ended up having that disc removed ten years later which is not the same as saying the torn cartilage caused the disc." Alternatively, he stated that it was "more than important and coincidental that the disc of 1987 turns out to be, shall we say, the problem."
20. Dr. Kuhrt Wieneke performed a records review for the earlier carriers, and opined that the claimant suffered a serious deterioration in his back between September of 1994 and January of 1995. He based this opinion on the claimant's two visits with Dr. Savoy, and Dr. Savoy's finding of significant new radicular symptoms on the latter date. He also reviewed the 1987 CT scan and the 1995 MRI. While he recalled that the 1995 MRI was of good quality, he had no recollection about the quality of the 1987 study. In any event, based on his evaluation of the medical records, Dr. Wieneke opined that the claimant did not suffer a disc herniation during the 1986 surgery, but suffered one at some time between September of 1994 and January of 1995.
21. The claimant through his attorney has presented evidence that the attorney has spent 30.5 hours representing the claimant in this matter since October of 1994. He has also presented evidence of costs in the amount of $182.75. 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 true conflict in this case is between the prior carriers for the original claim and the current insurer for the employer. While there is evidence that the claimant engaged in some strenuous behavior outside of work, there is absolutely no evidence of any injury outside of the workplace, and it would require suspicion or surmise to so find.
4. This case does not fall into the normal category of an aggravation/recurrence dispute. The reason for this is that the claimant complained of the specific symptoms that were ultimately cured in 1995 as early as 1986, and he has consistently and forcefully made the claim that his injury is related to that earlier injury and time. The claimant actively sought treatment for his symptoms in 1986 and 1987, and objective evidence exists that the initial damage to the claimant's spine had occurred prior to January of 1987. The claimant is not responsible for the failure of the medical community to recognize the nature of his complaint and to act upon it.
5. There is no question that additional damage occurred to the disc in question after 1987. The only question is whether that damage was a natural progression or deterioration, or rather a new injury, either by specific injury or by gradual onset or cumulative trauma. There is no evidence of a specific event that created the new damage. Dr. Wieneke does not point to any evidence of a new trauma other than the fact of the "herniation." Given that the operative evidence does not support the claim that there ever was a herniation, Dr. Wieneke's opinion is of limited value, beyond the confirmation of additional symptoms occurring over the fall of 1994, an issue not in dispute.
6. In this case, preference must be given to the treating physician's opinion. The evidence clearly establishes a correlation between the diagnostic studies of 1987 and 1995, each showing damage to the same disc, and only differing in the degree of damage visible. Dr. Davignon's opinion that the need for the laminectomy was due to the combination of the claimant's damaged knee and the damaged disc is not an issue seriously disputed by the parties. The issue as posed by the prior carriers is that the claimant's work was a "substantial factor" in his need for surgery. Dr. Davignon testified that this was so only in the context that the claimant's whole life was a factor and working was a large part of his life.
7. This is a close case, and the single most compelling factor in the final analysis is that the claimant's "bruised" feeling in his foot, reported within weeks after the 1986 surgery, was completely resolved by the 1995 laminectomy. This means that the compensable injury to the disc dates back to that earlier time, and that any increase in his symptoms is only that, and not a new injury.
8. The claimant's request for attorney's fees in this case is unusual, as it is rare that a claimant is seriously involved in a dispute of this nature between carriers. However, it is clear in this case that the efforts of the claimant's attorney were integral to the establishment of the claimant's right to compensation in this case, and were essential in developing for the claimant the access to compensation over the period of the dispute. Hence, an award of fees to the claimant's attorney is appropriate in this case. The claimant's costs are reasonable.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, New Hampshire Insurance Company and Glens Falls Insurance Company are jointly and severally ordered to:
1. Reimburse Aetna Insurance Company for any and all benefits paid to the claimant as a result of this claim;
2. Adjust the remaining issues of this claim in accordance with the Workers' Compensation Act and the Workers' Compensation and Occupational Disease Rules; and
3. Pay attorney's fees in the amount of $1,067.50 and costs in the amount of $182.75.
DATED at Montpelier, Vermont this 3rd day of June 1996.
__________________________
Mary S. Hooper
Commissioner