Gale v. Vermont Precision Tools (August 7, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Collette Gale File #: G-20302
By:Barbara H. Alsop
v. Hearing Officer
For:Mary S. Hooper
Vermont Precision Tools Commissioner
Opinion #:50-96WC
Hearing held at Montpelier, Vermont, on June 28, 1996.
Record closed on July 13, 1996.
APPEARANCES
Robert K. Andres, Esq., for the claimant
Glenn Morgan, Esq., and Tammy Besaw, Esq., for the defendant
ISSUE
Whether the claimant suffered a compensable injury while in the employ of the defendant on March 14, 1994.
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. Vocational rehabilitation pursuant to 21 V.S.A. §641(b).
4. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. On March 14, 1994, the claimant was an employee within the meaning of the Workers' Compensation Act.
2. On March 14, 1994, the defendant was an employer within the meaning of the Workers' Compensation Act.
3. On March 14, 1994, New Hampshire Insurance Company was the workers' compensation insurer for the employer.
EXHIBITS
1. Joint Exhibit 1 Medical record notebook
2. Joint Exhibit 2 Deposition of Dr. Marietta Scholten
3. Claimant's Exhibit I Note dated March 21, 1994.
4. Claimant's Exhibit II Internal Accident Report Form
5. Claimant's Exhibit III Separation Notice
6. Defendant's Exhibit A Handwritten note on yellow paper
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. The claimant was unemployed at the time she applied for a position with the defendant. She responded to an ad in the paper and was hired in a temporary position inspecting gauge pins, starting on March 9, 1994. Her job entailed taking gauge pins and placing them in correct holes in trays. When the trays were full, she was to place them in boxes for shipping. Trays weighed between 25 and 42 pounds, depending on the size of the pins.
3. While lifting a tray of gauge pins on March 14, the claimant felt a ripping and burning sensation in her left shoulder area. She claims to have reported the injury to Christopher Leduc, her supervisor, telling him that she was in extreme pain and that she would be calling a physician in the morning. The following day, she reported that she had a doctor's appointment at 9:30, and she went to that appointment. She was given a muscle relaxant and then returned to work.
4. The claimant testified that she worked the rest of the week, using a "back restraint" but that the pain did not go away. The restraint was a weight lifter's belt that she had gotten from her husband. On March 18, she again reported her problem to Mr. Leduc and indicated that she was going to return to see her doctor. He requested a note from the doctor to confirm that she was treating with him.
5. The claimant did not return to work after treating with her physician, and was terminated on March 22, 1994, as a "voluntary quit." She returned to the company on April 6 to inquire about her claim for workers' compensation benefits. She was advised that she had to see the company doctor, Dr. Marietta Scholten. The claimant went to see Dr. Scholten, who identified muscle spasms in her left shoulder area. Dr. Scholten changed the claimant's medication and referred her to physical therapy.
6. There is substantial dispute about the conversation at the company office on April 6. The claimant testified that Mr. Leduc had indicated an intent to fill out a first report of injury at some time prior to April 6. He denied this, and indicated that he never knew that the claimant was alleging a work injury until April 6. Mr. Leduc had support in his assertion from his sister Monica Green, the controller of the company. She testified that her first knowledge of the claim occurred on April 6 when the claimant came to the office. She also testified that she had had a conversation with Mr. Leduc on or about March 22 when he informed her that the claimant had an injured back but had not reported an injury at work. It was at this time that the claimant had been terminated on the company's books.
7. Mr. Leduc testified that he spoke with the claimant on March 15 when she asked to go to see the doctor. His personal note of the conversation indicates that the claimant came to him at about 11:00 a.m. and told him that she might have a pinched nerve in her shoulder. The claimant had started work at 8:00 a.m. Mr. Leduc never inquired of the claimant how the problem arose, and the claimant did not volunteer any further information.
8. The employer produced a number of witnesses who worked with the claimant, who testified that the claimant never reported any injury to them. One witness asserted that the claimant complained of a pre-existing back injury. These witnesses all testified that they had not discussed this matter with anyone until a representative of the insurer appeared to interview them shortly before the hearing. The gap of two years between the events in question and the testimony casts some shadow on the witnesses' recollection. Moreover, there was no reason for the claimant to report an injury to any of these witnesses.
9. The medical testimony and exhibits confirm that the claimant had a muscle spasm in her upper back, specifically in the area of her trapezius and rhomboid, commencing on or about March 15, 1994. Dr. Wendall A. Stimets, her original physician confirmed this, as did Dr. Scholten, the company doctor. Dr. Scholten continued to treat the claimant, and opined that the claimant had a light duty work capacity as of May 9, 1994, and a full duty work
capacity on June 6, 1994.
10. The claimant returned to see Dr. Scholten in August of 1994, now complaining of lower back pain and radiating pain in the left leg. Dr. Scholten opined that these new complaints were unrelated to her work injury of March 14 or 15, particularly in light of the fact that this was the first time the claimant reported these pains.
11. The claimant thereafter went to the SPINE Institute, where she was seen by Dr. Rowland G. Hazard, the Director of Rehabilitation Services, on August 25, 1994. Dr. Hazard reported that the claimant had no prior history of back pain, and that the lower back pain was contemporaneous with the muscle spasms in the upper back. Both of these statements were apparently based on the claimant's history to the doctor. Both of these statements are incorrect. The claimant testified at the hearing that she had a history of pain in her lower back and right hip which long predated the work injury, a fact confirmed by other medical records. Accordingly, Dr. Hazard's correlation of the two sets of symptoms to the work injury is not accepted.
12. Dr. Hazard noted as of September 27, 1994, that the claimant "continues primarily with low back and left leg pain." This was confirmed by the Medical Center Hospital of Vermont where the claimant received an epidural steroid injection. There is no mention of the muscle spasms in the upper back.
13. The claimant has continued to seek medical care for the pains she is experiencing in her back and lower extremities. Initially, there was no objective evidence of any ongoing pathology, and neurological, radiographic and electrophysiologic examinations have been negative. However, an EMG study on March 16, 1995, was suggestive of "an old or chronic and indolent S1 radiculopathy." This finding is consistent with the claimant's reports of pain prior to the work related injury.
14. The claimant has produced evidence that her attorney has spent 19.9 hours representing the claimant in this case. She has also presented evidence of costs in the amount of $166.40. The claimant has failed to produce a copy of her fee agreement with her attorney in this case.
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 adequately established that she injured her shoulder while in the employ of the defendant. Specifically, the treatment for muscle spasms which the claimant sought after three hours of work on March 15, 1994, was clearly related to her work at Vermont Precision Tools. However, the claimant has failed to meet her burden of proof with regard to her lower back and S1 problems. While all later physicians indicate that these problems arose from the work injury, the claimant did not report these symptoms to anyone until well after she was released to full time work by Dr. Scholten. I find that her lower back problems were preexisting and were not in any way affected by the work at Vermont Precision Tools.
4. The claimant is therefore entitled to temporary total disability benefits from the date of March 18, 1994, to June 6, 1994, when she achieved a full time work capacity, and to medical benefits for treatment for her muscle spasms. To the extent that she has any permanency attributable to the muscle spasms, the insurer is to compensate her for that impairment.
5. The claimant has prevailed at least in part of her claim. She is therefore entitled to an award of costs as a matter of law, and is therefore granted costs in the amount of $166.40. Because of her failure to comply with the provisions of Rule 10(g) of the Workers' Compensation and Occupational Disease Rules, the claimant is not awarded attorney's fees.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby ordered that:
1. New Hampshire Insurance Company, or in the event of its default Vermont Precision Tools, pay to the claimant temporary total disability compensation for the period from March 18, 1994, to June 6, 1994;
2. New Hampshire Insurance Company, or in the event of its default Vermont Precision Tools, pay medical benefits consistent with this opinion;
3. New Hampshire Insurance Company, or in the event of its default Vermont Precision Tools, pay to the claimant such permanency benefits as she is entitled to according to the provisions of this decision;
4. New Hampshire Insurance Company, or in the event of its default Vermont Precision Tools, pay costs in the amount of $166.40; and
5. All other claims be and hereby are denied.
DATED at Montpelier, Vermont this 7th day of August 1996.
____________________________
Mary S. Hooper
Commissioner