Egri v. U.S. Air, Inc. (Oct. 28, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Janice Egri File #: G-10002
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
U.S. Air, Incorporated Commissioner
Opinion #: 63-96WC
Hearing held at Montpelier, Vermont, on September 27, 1996.
Record closed on October 9, 1996.
APPEARANCES
James J. McNamara, Esq., for the claimant
Andrew C. Boxer, Esq., for the employer
ISSUE
Whether the injury to the claimant's spine arose out of and in the course of her employment with U.S. Air.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from October 25, 1993, to an undetermined date.
2. Permanent partial disability compensation pursuant to 21 V.S.A. §648 for an undetermined amount.
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).
STIPULATIONS
1. At all relevant times, the claimant was an employee within the meaning of the Workers' Compensation Act.
2. At all relevant times, the defendant was an employer within the meaning of the Workers' Compensation Act.
3. At all relevant times, Alexis, Inc., was the third party administrator for U.S. Air.
EXHIBITS
1. Claimant's Exhibit A Medical Records
2. Claimant's Exhibit B Recorded statement of Lisa Liberty
3. Claimant's Exhibit C Deposition of Dr. Daniel Donnelly
4. Defendant's Exhibit I Medical Records
5. Defendant's Exhibit II Attendance calendar
6. Defendant's Exhibit III Letter of Janice Egri dated November 15, 1993
7. Defendant's Exhibit IV Recorded statement of Janice Egri
FINDINGS OF FACT
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 in this matter.
2. On October 18, 1993, the claimant was working for U.S. Air, for whom she had worked for several years. Her first employment in the field was with Allegheny Airlines, the redecessor of U.S. Air, and her employment with the two companies spanned 21 years. Her job duties with the companies were initially as a reservations clerk, but she later performed duties at the ticket counter, check-ins, on the ramp, in the mailroom, at the gates and in operations. At the time in question, she was working at check-in.
3. The claimant was checking in an elderly couple, who had for baggage a small cardboard box. The claimant leaned down to transfer the box from the floor to the conveyor belt behind her. The box was deceptively heavy because it contained canned hams and containers of maple syrup, and the claimant misjudged the weight. As the claimant was raising the box and turning to place it on the belt, she felt a pop in her lower back, accompanied by a sharp pain and a burning sensation. She muttered something under her breath which was not heard by her coworker at the station. The claimant completed
her shift on that day, although her back stiffened up over the course of the day.
4. The claimant took some Flexeril when she returned home, and worked the remainder of the week. Over the course of the week, the pain faded away, although she was still experiencing morning stiffness. The claimant discussed the incident with her husband, who urged her to report the injury to her employer. The claimant testified that she did not do so because she was concerned about the effect it would have on her husband, who was at that time undergoing stress tests for a heart problem. The claimant further testified that she had, over the years, frequently had difficulties with her back because of her work, and that she did not report many of these occurrences to her employer. She indicated that her employer was concerned about issues including work injuries and illnesses, and she would only report those injuries that required her to lose work.
5. On Saturday, when the claimant awoke, her back was aching and stiff, and she decided to take a bath to relieve the stiffness. She fell asleep in the bath, and was awakened by the sound of her husband and son moving around. As she began to rise up from the tub, lifting her torso off the surface of the tub, she felt an incredible pain and was unable to move.
6. The claimant's husband had to lift her from the bathtub. She made breakfast for her family and then returned to bed. The feeling she was experiencing was more painful than any she had experienced in the past. The claimant had a long prior history of back pain, with medical treatment at various times over the years. She had diagnostic tests performed and had never had a herniated disk prior to this time.
7. The claimant stayed in bed for the rest of the weekend and then went into work on Monday, October 25. She was feeling terrible but was concerned because of a warning she had received about taking excessive sick leave. Her co-workers teased her about the way she was bent over, and she reported to them that she had hurt herself getting out of the bathtub. She made no reference to the injury of the prior Monday.
8. After work, the claimant went to see her physician, Dr. Donald Donnelly, a family practitioner at CHP. This was the first time the claimant saw Dr. Donnelly, although he had access to her prior CHP records. The claimant told Dr. Donnelly that the acute pain had begun as she was getting out of the bathtub, and she described symptoms consistent with radiculopathy in her right leg. Dr. Donnelly referred the claimant for a CT scan and an appointment with Dr. Nancy Binter, a neurological surgeon. He also took the claimant out of work until October 28.
9. The claimant stayed out of work and saw Dr. Binter on November 2, 1993. Dr. Binter performed the CT scan and determined that the claimant suffered from a herniated nucleus pulposus. She recommended conservative care, including physical therapy, and opined that surgery would be the final option if the conservative care was not successful. On that date, Dr. Binter released her to work with a lifting restriction of less than 20 pounds. On November 16, 1993, Dr. Binter wrote that the claimant would be "unable to work until she has completed a course of physical therapy."
10. In the interim, on November 5, 1993, Dr. Donnelly released the claimant to work but with an absolute restriction against lifting, pulling, or pushing. At that time, he noted that she had a "herniated disc, possibly related to lifting at work." However, he denied learning of the prior Monday's incident at work until December 3, 1993.
11. The claimant herself did not make the connection between the incident at work and her injury until sometime after the discovery of the herniated disc. She testified that she did not really remember about the incident the prior Monday until the day she first treated with Dr. Binter. She believed that she told Dr. Donnelly about the connection in early November, which is confirmed in part by Dr. Donnelly's November 5 note.
12. The claimant reported her injury to her direct supervisor Linda Kruger on Wednesday, November 3, when she attempted to return to work. The claimant and Ms. Kruger tried to arrange the claimant's schedule so that she could perform work within her work restrictions. There were a number of positions available that so qualified. However, on Thursday, Lisa Liberty, the customer service manager, would not permit the claimant to change shifts with co-workers and required her to work as assigned at the ticket counter or to call in sick. The claimant testified that supervisors will generally allow rotations of work stations to allow people to stay at work.
13. The claimant testified that she did not fill out the in-office paperwork for a work related injury on November 4, even though she reported the injury to Lisa Liberty at that time. She indicated that she wanted to confirm with her physical therapist or her doctor the work-relatedness of her injury. When she satisfied herself of that relationship, she filled out the employer's paperwork on November 13.
14. Lisa Liberty Graves testified that she did not observe the claimant as having any back problems during the week of October 18. However, she recalled that the claimant reported back problems on Monday, October 25, and attributed them to an injury getting out of the bathtub. On November 4, she spoke with the claimant because of the report to Linda Kruger the prior day of a work related injury. Ms. Graves said that she told the claimant that she would have to fill out the occupational injury forms and that she would like to have the paperwork that day. Ms. Graves also said that she was not required to fill out a Form 1, Employer's First Report of Injury, until the claimant filled out the company forms. Ms. Graves' mistaken belief about her obligations to file First Reports of Injury is immaterial in this case.
15. Ms. Graves testified that, in order for the claimant to get an accommodation from U.S. Air to continue working, her injury had to be an on-the-job injury. U.S. Air was not prepared to allow the claimant to alter her shifts to work within her limitations otherwise. Ms. Graves testified that she saw the claimant on both November 4 and November 13. She claimed that on the later date, the claimant's condition "had made a dramatic turn for the worse." She did not recall that the claimant exhibited any signs of distress on November 4. This evidence is not credible, in light of the medical evidence.
16. Dr. Daniel Donnelly's deposition was the only evidence presented as to causation of the claimant's injury. Dr. Donnelly is board certified in family practice, and has relied in part on the reports of the claimant's other physicians in reaching his conclusions. He conceded that the claimant initially reported the injury as having occurred rising out of the bathtub, but indicated that the claimant at some later date told him about the injury at work the prior week.
17. Dr. Donnelly described the difficulty in ascribing the claimant's current condition to one or the other of the two incidents. He indicated that the primary way to determine the more likely cause was by history. Based on his understanding of the history, he determined that the more likely cause of the claimant's injury was the twisting injury at work, although he conceded that the tub incident could also be the cause. He went on to say that it was a "high probability" that the claimant's work activities were the cause of her back problems, but in response to a direct question, he could not say with any certainty which, if either, of the incidents caused the herniation of the claimant's disc. He stated that "[t]he problem is because people can injure their backs sneezing or getting out of the tub or lifting at work, and I go based on what people tell me. And if she tells me that she had hurt herself prior to this, I would have to say that it is certainly a possibility that that was the straw that broke the camel's back." Dr. Donnelly admitted that some of the terms he was using in drawing the connection between the injury at work and the herniated disc were given to him by claimant's counsel in a meeting and a letter.
18. The claimant has presented evidence of her fee agreement with her attorney for a contingency fee of 20% of the amount awarded or $3,000.00, whichever is less. This is acceptable. The claimant has presented no evidence of her costs.
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 candidly conceded that she initially ascribed her herniated disc to the incident in her bath tub, and only later attributed it to the work injury the prior week. She further concedes a delay in reporting the injury to her employer, although the evidence supports that the report was made, for purposes of the Workers' Compensation Act, on November 3, 1993, when the claimant told her immediate supervisor Linda Kruger.
4. The employer claims prejudice in the late notice of the injury of October 18, 1993. Specifically, the allegation is that a timely report would have allowed the employer to arrange for medical treatment prior to the bathtub incident, potentially producing evidence regarding the time at which the claimant suffered the herniation of her disc. While it certainly would have been preferable for the claimant to report the injury as soon as it happened, the statute requires only that the report be made "as soon as practicable." 21 V.S.A. §656. Where, as here, the injury appeared to be fairly minor without the need for medical care, the claimant's failure to report the injury promptly is acceptable.
5. The employer further claims that the claimant's failure to report the myriad of similar injuries she suffered over the years with the employer deprived the employer of the ability to modify the claimant's work to avoid the recurrence of such injuries. While this may well be true, it hardly rises to the level of a defense against a workers' compensation claim.
6. Nonetheless, the claimant cannot prevail in this case. The claimant must produce some evidence of a medical nature that establishes that the "more probable hypothesis" is that the work incident is the cause of the claimant's medical problem. Dr. Donnelly's testimony cannot meet that requirement because it is based on surmise and speculation and the claimant's drawing of the connection between the incident and the injury. The claimant has the burden of proof, and must present more than speculative evidence to meet that burden.
7. The claimant not having prevailed is not entitled to an award of attorney's fees or costs.
THEREFORE, based on the foregoing findings of fact and conclusions of law, Janice Egri's claim for benefits against U.S. Air for an injury on October 18, 1993, is denied.
DATED at Montpelier, Vermont this 28th day of October 1996.
________________________________
Mary S. Hooper
Commissioner