Jefts-Martin v. Claussen's Florist & Greenhouse (July 15, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Melanie Jefts-Martin File #: H-3735
By:Barbara H. Alsop
v. Hearing Officer
For:Mary S. Hooper
Claussen's Florist and Commissioner
Greenhouse, et al.
Opinion #: 43-96WC
Hearing held at Montpelier, Vermont, on June 17, 1996.
Record closed on June 24, 1996.
APPEARANCES
John W. Valente, Esq., for New Hampshire Insurance Company
Harold E. Eaton, Jr., Esq., for Peerless Insurance Company
Christopher J. Whelton, Esq., for Aetna Insurance Company
ISSUE
Which carrier, if any, is responsible for benefits for the claimant's carpal tunnel syndrome?
STIPULATIONS
1. From July 1988, to April 2, 1991, New Hampshire Insurance Company provided workers' compensation insurance to Claussen's Florist and Greenhouse.
2. From April 2, 1991, through January of 1992, Peerless Insurance Company provided workers' compensation insurance to Claussen's Florist and Greenhouse.
3. From February of 1992 to the present, Aetna Insurance Company has provided workers' compensation insurance to Chappell's Florist.
EXHIBITS
1. Joint Exhibit 1 Medical Records
2. New Hampshire A Deposition of Dr. James V. Mogan
3. New Hampshire B Affidavit of Denyse Conant
PROCEDURAL NOTE
This matter was the subject of a pretrial conference on March 13, 1996. At that time, the claimant did not appear either personally or through counsel, and the three defendants agreed that the sole issue to be resolved at hearing was the determination of the responsible carrier. At no time was the issue of compensability or entitlement to benefits raised as an issue to be tried. Had such occurred, the claimant would have been placed on notice by the Department and would have been advised to retain counsel.
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, a lifelong resident of Vermont, trained in Boston as a floral designer. She has held a number of positions in that field since 1984. From July of 1988 until November of 1991, the claimant was employed by Claussen's Florist and Greenhouse. In February of 1992, the claimant became employed at Chappell's Florists, where she continues to work.
3. As a floral designer, the claimant regularly worked with knives and scissors in the day-to-day work of designing arrangements. She generally worked about forty hours a week, except during holiday periods. In a normal day, she would prepare about ten designs, but during a holiday period that number could increase to 100 designs in a day.
4. In March of 1989, the claimant first reported to her physician, Dr. Judith Steinberg, that her hand was frequently asleep. She next reported a difficulty with her hand to Dr. Steinberg on November 30, 1990. At that time, her complaint was that her right hand still fell asleep a lot, and it woke her up at night. It was Dr. Steinberg's opinion that the claimant suffered from carpal tunnel syndrome.
5. The claimant then went to see Dr. James V. Mogan, a hand specialist, at the recommendation of Dr. Steinberg. Dr. Mogan, in February of 1991, injected the claimant's wrist with a combination of Lidocaine and Cortisone and had her fitted for a splint. It was Dr. Mogan's opinion that approximately 10% of the people so treated will experience long term relief from the syndrome.
6. The claimant testified that the shot and the splint helped for several weeks, but that the effect of the treatment wore off at that time. She returned to Dr. Mogan, who then recommended surgery. The surgery as described by Dr. Mogan in April of 1991 involved an open procedure with a lengthy incision in the wrist area and an eight week period of recovery. The claimant declined the surgery in the spring of 1991. She did not realize that, in declining the surgery, her symptoms could get worse or that she might be risking permanent damage to her wrist. She was concerned also because she had never been in a hospital, and was single, with no support during her period of recuperation.
7. Dr. Mogan testified that some individuals decline surgery and attempt to live with their symptoms. He classified the surgery for carpal tunnel syndrome as elective, and indicated that it was not a required treatment. He also testified that a possible negative result of refusal of surgery could be permanent nerve damage caused by constant irritation. He did not find permanent nerve damage in the claimant when he later treated her.
8. The claimant continued to work after she saw Dr. Mogan in 1991. In November of that year, she left Claussen's and took a few months off. She obtained work at Chappell's in February of 1992, and has worked there since. Until her surgery in 1994, she did not miss any work as a result of her carpal tunnel syndrome.
9. From 1992 through the spring of 1994, as the claimant continued to work, she began to experience worsening symptoms. Specifically, the numbness that she originally experienced only in her hand began to move up her arm until, in 1994, her whole arm was numb. Also, in 1994, she began to awaken regularly at night from the discomfort, which was severe enough to cause her to cry. She could only reduce the pain by hanging her right arm over the side of the bed.
10. As a result of the increasing symptoms, the claimant returned to Dr. Steinberg who again referred her to Dr. Mogan. On May 16, 1994, the claimant was seen by Dr. Mogan, who found that she was still suffering from carpal tunnel syndrome and that she had additional evidence of impairment. Specifically, he found a new weakness in her abductor brevis, a muscle that had not shown any limitation in 1991.
11. Dr. Mogan performed an endoscopic release of the claimant's carpal tunnel syndrome, which was successful. Dr. Mogan testified that one benefit of the delay in surgery was to make it possible for the surgical repair to be done much more easily with a newer procedure, resulting in a shorter convalescence from the surgery. However, the delay also carried the risk of increased permanency because of damage to the muscles. He found no such increase in the claimant's permanency, and opined that she had a good result.
12. Dr. Mogan testified that, in comparing the claimant's condition between 1991 and 1994, her carpal tunnel syndrome was mild to moderate originally, but had deteriorated to moderate to severe by the time she presented for treatment in 1994.
13. Counsel for Aetna arranged informally for the claimant's appearance at a deposition on June 3, 1996. The claimant notified counsel on the morning of June 3 of her unwillingness to appear at the deposition. Thereafter, counsel for New Hampshire Insurance Company requested a subpoena for the claimant to appear at the hearing. Claimant complied with that subpoena.
14. Counsel for Aetna, at about the same time as the failed deposition, attempted to obtain, with the releases provided by the claimant pursuant to Rule 3(d) of the Workers' Compensation and Occupational Disease Rules, the records of a Dr. Ruess, who had provided the claimant with counseling at about the time of her original treatment for carpal tunnel syndrome. Dr. Ruess' office called the claimant when it received the request for records, and the claimant declined to release those records to the attorney for Aetna. The reason for the claimant's counseling with Dr. Ruess is clearly expressed in Dr. Steinberg's notes, which are part of the record, and based on those notes, the psychiatric records are clearly irrelevant to this proceeding.
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). The claimant has clearly established that her carpal tunnel syndrome arose out of and in the course of her employment with the defendants.
2. "This state has long recognized the existence of a class of injury known as gradual onset injuries. Campbell v. Savelberg, 139 Vt. 131 (1980). This Department's Rules have confirmed the possibility of the gradual onset of an injury. See, e.g. Workers' Compensation and Occupational Disease Rules, §2(f)." Gleason v. Brattleboro Printing Company, Opinion No. 38-95WC.
3. The facts in this case bear a remarkable similarity to those in the Gleason case. Here, as in Gleason, a claimant treated for a condition while one carrier was on the risk without making a claim for workers' compensation benefits, but continued to work at a job that increased her symptoms for some period of time after another carrier was on the risk, and did not lose any time from work during the earlier carrier's tenure.
4. In gradual onset cases, we look to the "last injurious exposure" suffered by the claimant in establishing the responsible party. As was said in McKearney v. Miguel's Stowaway Lodge, Opinion No. 6-94WC, "[f]requently this means, in a gradual onset injury, that the carrier on the risk at the time the claimant can no longer work because of his injury is the responsible
carrier."
5. Aetna, the carrier at the time of the last injurious exposure, attempts to avoid liability in this case on four theories. First, the allegation is made that the claimant, by failing to undergo surgery in 1991, violated 21 V.S.A. §649, by intentionally hurting herself. Specifically, Aetna argues that the claimant's continuing to work after the failure of the nonsurgical options was a knowing attempt to exacerbate her injury for profit, and was therefore against public policy.
6. Aetna has no evidence to support this claim. In fact, the claimant denied knowing, in 1991, that continuing to work might increase either her symptoms or the damage to her hand. This argument also ignores the fact that Dr. Mogan testified that the surgery in question was elective, and that other patients have made the same decision that the claimant made in this case. An insurer has neither the authority in general to require nor the justification in this case for requiring the claimant to undergo elective surgery.
7. Next, Aetna argues that the claimant is barred by the six month statue of limitations found in 21 V.S.A. §656, and cites to §660 where the claimant has the burden of showing either that the employer had knowledge of the injury or that the employer was not prejudiced by the delay in the claimant's making known her injury. Aetna, on the notice issue, specifically argues that the claimant had the obligation to tell the employer at the time of her hiring that she suffered from work related carpal tunnel syndrome. While this is an interesting theory, it flies in the face of the Americans with Disabilities Act, a point overlooked by Aetna.
8. Aetna has also failed to show how it has been prejudiced by the claimant's failure to notify it of her injury at an earlier date. Assuming that the claimant had no obligation to report the injury prior to her employment, any report after that date would have led to the same surgery, with the same period of recuperation, and the same amount of permanency as obtained in 1994. There is no evidence that the claimant's failure to report her injury at an earlier date led to any increase in the benefits to which she was entitled. Therefore, there is no prejudice to Aetna in the delay in the reporting of the injury, and the claimant is entitled to the six year statute of limitations found in §660.
9. Aetna's next argument is that the claimant is barred from recovery based on her efforts to frustrate discovery in this case. This argument borders on the offensive. Specifically, this matter was pretried on March 13, 1996, and the hearing date of June 17 was established at that time. Aetna made no effort to depose the claimant in a timely manner, but rather relied on an oral agreement to depose her only two weeks prior to hearing, leaving itself absolutely no time to address any additional issues raised by that deposition. In the meantime, Aetna attempted to obtain psychiatric records which were obviously irrelevant to this claim, behavior that clearly offended the claimant, and with good reason. If the claimant then refused to be deposed by the very party attempting to dig into her personal life in an inappropriate manner, her refusal must, in context, be approved. It should be noted that the claimant appeared at the hearing in answer to a subpoena, which illustrates the respect she accords to proper civil process. Aetna's failure to leave itself sufficient time to correct its lapse with a subpoena is chargeable to Aetna, not the claimant.
10. Finally, in an effort to address the true and primary issue in this case, as discussed in #2-4 above, Aetna argues, without reference to Gleason, a case exactly on point, that based on Deforge v. Wayside Restaurant, Opinion 35-96WC, Aetna is not responsible for an aggravation in this case, based on the claimant's acknowledgment that she suffered from the injury while employed at the prior employer. This argument is a minimal variation of the one addressed in Gleason, where the parties debated whether McKearney, supra, or Parker v. Decel, Opinion No. 58-94WC, was the controlling case. In Parker, as in Deforge, the prior injury had been accepted by another employer, pulling each case clearly into the aggravation/recurrence line of cases. Aetna has produced no authority for deciding this case as anything other than a last injurious exposure case, given the bright line drawn in the Gleason case. Resort to a later decision without acknowledging the specific distinction made in Gleason is disingenuous at best.
11. This case is particularly troublesome in light of its similarity to Gleason v. Brattleboro Printing Company, Opinion No. 38-95WC. This dispute has placed an undue burden on two other insurance carriers whose liability was never seriously in question, given the facts of this case and the ruling in Gleason. It is an inefficient use of the limited resources of the Department in forcing to hearing issues that have been conclusively resolved in earlier proceedings.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, Aetna Insurance Company's request for reimbursement is denied and Aetna is ordered to adjust the remainder of this claim in accordance with the provisions of the Workers' Compensation Act.
DATED at Montpelier, Vermont this 15th day of July 1996.
________________________
Mary S. Hooper
Commissioner