Nardone v. Johnson Controls (July 24, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
Orlando Nardone File #: D-20841
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Johnson Controls Commissioner
Opinion #: 46-96WC
Hearing held at Montpelier, Vermont, on April 30, 1996.
Record closed on June 26, 1996.
APPEARANCES
Sam Mason, Esq., for the claimant
William A. O'Rourke, Esq., for the defendant
ISSUE
1. Whether the claimant is entitled to additional permanency as a result of his work related injury of March 11, 1991.
2. If the answer to #1 is in the affirmative, to what amount of permanency is the claimant entitled.
THE CLAIM
1. Permanent partial disability compensation pursuant to 21 V.S.A. §648 for an additional 21.5% of the spine.
2. Medical and hospital benefits pursuant to 21 V.S.A. §640.
3. Attorneys' fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. On March 11, 1991, the claimant was an employee within the meaning of the Workers' Compensation Act.
2. On March 11, 1991, Johnson Controls was an employer within the meaning of the Workers' Compensation Act.
3. The claimant suffered an injury to the low back while employed on March 11, 1991.
4. At the time of the injury, the claimant's average weekly wage was $824.59.
5. As a result of a prior work related injury at the defendant, the claimant had a pre-existing 20% permanent impairment of the spine.
6. The claimant has never received any permanency benefits from the injury of March 11, 1991.
EXHIBIT
1. Joint Exhibit 1 Medical records
PROCEDURAL NOTES
1. Prior to the hearing in this case, the parties proposed to the Department a Form 15, Settlement Agreement, that would provide to the claimant additional permanency for his back injury in the amount of 3.5%. This was rejected by the Department based on the report of the claimant's treating physician, whose rating would entitle the claimant to an additional 22% in permanency for his injury.
2. After the date for the filing of the proposed findings and rulings, May 22, 1996, the parties were notified of two documents in an earlier claim by Mr. Nardone against the same employer. Those documents were in the file # 84-18697, involving the claimant's prior back injury. One document was a letter from the claimant's then treating physician who opined that the claimant had a 40% impairment to his spine. The second was a letter from the claimant's then attorney agreeing to a permanency for the 1984 injury of a 20% impairment to the spine. Counsel were given until June 26, 1996, to respond to these documents, either by comment or by requesting a reopening of the hearing to take testimony from either the prior physician or the prior attorney. The parties have responded with arguments about the import of the documents, and a note from the claimant's current treating physician. No objection having been made to that note, it is accepted into evidence.
FINDINGS OF FACT
1. The above stipulations are accepted as true, and the exhibit is admitted into evidence. Judicial notice is taken of all forms filed in this matter, as well as the files in the claimant's prior claims against the defendant.
2. The claimant has a substantial hearing problem (see State File E-14436) and testified in this matter by telephone from his home in Florida. As a result of his difficulty in hearing the questions posed, he requested assistance from his wife. Mrs. Nardone was then sworn in, and assisted the claimant in testifying in this proceeding.
3. The claimant worked for Johnson Controls from at least 1959 until his retirement in 1992. During his employment, he had at least three injuries to his back, the first in 1959, the second in 1984, and the last injury was on March 11, 1991. It was for the 1984 injury that the claimant received a permanency award of 20% of the spine. Prior to the 1991 injury, the claimant had twice undergone surgery on his back.
4. The 1991 injury occurred on March 11 when the claimant attempted to lift a bucket of water while twisting to put the water into another receptacle. He felt a sudden sharp pain in his back, dropped the bucket, and reported to the company nurse. He got an ice pack for his back, rested for a period of time, and returned to work. The claimant did not seek medical attention for his injury until April 29, 1991.
5. The claimant treated with Dr. Keith Edwards, a neurologist, for his symptoms. Dr. Edwards initially diagnosed the claimant's injury as a lumbar strain. He took the claimant out of work for approximately two weeks. He also placed the claimant into physical therapy. An electromyograph (EMG) on May 3, 1991, revealed mild bilateral S1 radiculopathy, which was unchanged from the prior year, that is, before the injury of March 11, 1991. Dr. Edwards noted that his impression was of a recurrent lumbar strain, with no evidence of a new disc injury or any nerve root entrapment.
6. Over the following months, Dr. Edwards continued to treat the claimant, with various reports of decreasing pains, and on September 12, 1991, he noted that the lumbar strain was improved.
7. The claimant stopped working for the defendant in January of 1992, and retired in March. He was paid through March because of accumulated leave time. The claimant testified that he retired at that time because of ongoing problems with his back.
8. The claimant was scheduled to return to Dr. Edwards for a check up in September of 1992. However, he missed that appointment because of illness. Dr. Edwards was not able to see the claimant again until January of 1993. At that time, he found that the claimant had been suffering increasing back pain radiating down his left leg for several months. He prescribed physical therapy and analgesics, and ordered further EMG and nerve conduction studies.
9. The diagnostic studies revealed acute denervation in the left S1 distribution and bilateral S1 and L5 radiculopathy. After a course of newmedications with an exercise problem, Dr. Edwards found an improvement in theclaimant's nerve root pain, although his musculoskeletal pain continued.
10. Dr. Edwards continued to treat the claimant through the rest of 1993 and into 1994. He referred the claimant for a surgical consultation to Dr. Fabricius, but the claimant declined further surgery.
11. Dr. Edwards initially stated that the claimant's difficulties were attributable to his 1984 injury, but finally opined that the March 11, 1991, incident was an aggravating incident. There is no evidence to the contrary provided by the defendant.
12. After further medical care and physical therapy in 1994, the claimant moved to Florida. His wife stated that they hoped that he would do better in a warmer climate. After they were in Florida for a few months, he finally managed to get an appointment for further care with Dr. Anthony Shydohub, a neurologist, on November 23, 1994. Dr. Shydohub's studies indicated chronic radiculopathy in the L5 distribution, with some symptoms of a lesser nature in the L4 distribution. He indicated that with an ongoing exercise program the claimant should be able to maintain his level of functioning. Dr. Shydohub's nerve conduction studies were consistent with those of Dr. Edward's one year earlier.
13. In May of 1995, an MRI revealed significant degenerative changes with "suspicious abnormalities suggesting disc herniation producing radiculopathy," according to Dr. Shydohub. As a result, he referred the claimant for a neurosurgical consultation to Dr. William Hoffmeister. Dr. Hoffmeister suggested a myelogram prior to a surgical intervention. The claimant once again elected not to undergo surgery, and indicated a lack of interest in the myelogram.
14. The claimant underwent a series of epidural blocks in the summer of 1995, and continued to take physical therapy treatments. He noted temporary improvements from the nerve blocks. However, over the fall of 1995, his symptoms continued to increase.
15. The claimant was seen by Dr. Shydohub in January of 1996. Repeat nerve conduction and EMG studies showed a slight worsening of his condition. As a result, Dr. Shydohub again recommended surgery to slow the decline. The claimant indicated a desire to think about it for a time. In February, Dr. Shydohub indicated that, with the exception of ongoing physical therapy and medication, no other nonsurgical intervention was warranted.
16. In response to a request from the claimant's counsel, Dr. Shydohub opined, in March of 1996, that the claimant was suffering from a 25% whole person impairment, based on DRE Lumbosacral Category V: Radiculopathy and Loss of Motion Segment Integrity, from the AMA Guides to the Evaluation of Permanent Impairment. He based his opinion on his clinical experience with the claimant, including the January nerve conduction and EMG studies. Dr. Shydohub also opined that the claimant was suffering from a work related injury, although he did not assign the damage to a particular incident. A 25% whole person impairment equates to a 42% impairment of the spine.
17. The claimant has produced evidence of his fee agreement with his attorney for a contingency fee of 20% of the amount recovered. In the alternative, he has produced a bill on an hourly basis for 24.75 hours, which, at $35.00 an hour, results in a claim for $866.25. This is reasonable. He has also presented evidence of expenses in the amount of $107.70, which is also 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. 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). 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). The Workers' Compensation and Occupational Disease Rules allow for a claimant to provide medical evidence by submission of medical records and opinion letters.
3. The claimant has established by uncontroverted evidence that he has a 42% permanent impairment to his spine. This number is particularly credible in light of the letter from his treating physician at the time of the settlement of the 1984 claim, when that doctor opined that the claimant was suffering from a 40% impairment to his spine. Accordingly, the 1991 injury contributed at least some additional permanent impairment to the claimant's condition, and he is therefore entitled to some compensation, although the amount is disputed.
4. It is clear that the claimant has been compensated in the prior case for 20% of the 42% impairment, and that he is therefore entitled at most to an award of 22%. The defendant argues that "[t]he Commissioner certainly has the authority to correct a prior adjusting error if that is, indeed, what happened based on present indications." The argument continues that the Commissioner has held that past due permanency can be evaluated and, presumably, can do so in this case. The inference is clear, although never stated, that the Commissioner can relieve the current carrier of liability because of the "adjusting error" in the past.
5. There is no evidence that there was, in fact, an adjusting error in the past. In fact, it appears that the parties settled the case, although the basis for that settlement is not clear. The parties were given the opportunity to explore precisely this issue by the deposing of parties to that earlier agreement, and elected rather to respond with written comments by recent care givers and written arguments. The choice not to include evidence from the prior attorneys or physicians leaves the trier of fact with only the option of deciding the case on general principles of law.
6. As has been frequently stated both by the Vermont Supreme Court and prior decisions of this Department, the Commissioner has no obligation to apportion the degree of impairment among the injuries suffered by the claimant. Stamper v. University Apartments, 147 Vt. 552 (1986). See, also, David Smith v. The Book Press, 30-93WC. In fact, "[o]ur statute makes no exceptional provision for apportionment of the compensation or medical benefits between the injury and the pre-existing [injury]. Without such a provision there is no requirement that the commissioner of industrial relations...determine the relative contribution of the accident and the prior [injury] to the final result." Marsigli Estate v. Granite City Auto Sales, 124 Vt. 95, 104 (1964) (citations omitted).
7. The legislature, in its most recent amendment to the Workers' Compensation Act, an amendment that is not controlling on this case, nonetheless has given guidance to the resolution of this dispute. 21 V.S.A. §648(d) currently states that "[a]n impairment rating determined pursuant to this section shall be reduced by any previously determined permanent impairment for which compensation has been paid...." (emphasis added). Under this scheme, it is irrelevant that a higher permanency rating existed unless compensation was paid based on that rating. While not binding, the logic of this statute is convincing, and it is in fact a statement of the long term policy of the Workers' Compensation Division.
8. The claimant is therefore entitled to an additional award in the amount of 22% permanent partial impairment to his spine. Because he has prevailed, the claimant is also entitled to an award of attorney's fees. Based on his contingency fee agreement, the claimant would be entitled to an award of $3,000.00. However, in light of the proposed Form 15, which would have substantially reduced the award to the claimant for permanency, and the fact that it was the Department that protected the claimant's interest in this regard, it is inappropriate to award the full fee to the claimant's attorney. On an hourly basis, the award would be $866.25, which is acceptable. Costs in the amount of $107.70 are also awarded.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is ordered that American Manufacturers Mutual, or in the event of its default Johnson Controls:
1. Pay to the claimant additional permanent partial disability benefits for a 22% impairment of the spine in accordance with the terms of this decision;
2. Pay all outstanding medical bills for the claimant's treatment to date, and such further medical benefits as are due to the injury of March 11, 1991; and
3. Pay attorney's fees in the amount of $866.25 and costs in the amount of $107.70.
DATED at Montpelier, Vermont this 24th day of July 1996.
____________________________
Mary S. Hooper
Commissioner