Steimel v. Burgess Electrical Supply (Oct. 29, 1996)
STATE OF VERMONT
DEPARTMENT OF LABOR AND INDUSTRY
John Steimel File #: J-03254
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Burgess Electrical Supply Commissioner
Opinion #: 64-96WC
Hearing held at Montpelier, Vermont, on September 24, 1996.
Record closed on October 15, 1996.
APPEARANCES
Mary G. Kirkpatrick, Esq., for the claimant
Thomas P. Simon, Esq., for the defendant
ISSUE
Whether the claimant suffered an injury arising out of and in the course of his employment on either May 12, 1995, or May 16, 1995.
THE CLAIM
1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from July 11, 1995, to October 30, 1995.
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. 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.
EXHIBITS
1. Joint Exhibit 1: Medical Notebook by provider
2. Joint Exhibit 1A: Medical Notebook by Bates stamp
3. Claimant's Exhibit A: Claimant's statement of days missed
4. Claimant's Exhibit B: Updated medical bills
5. Claimant's Exhibit C: Affidavit of Dena Letarneau
6. Claimant's Exhibit D: Timecards
7. Claimant's Exhibit E: Letter of Dena Letarneau dated August 28, 1995
8. Claimant's Exhibit F: VA notice of appointment, August 15, 1995
9. Claimant's Exhibit G: VA notice of appointment, October 17, 1995
10. Claimant's Exhibit H: Notes from claimant's personnel file at employer
11. Claimant's Exhibit I: Deposition of Dr. Kenneth Ciongoli
12. Claimant's Exhibit J: Deposition of Dr. Katherine Habeeb
13. Claimant's Exhibit K: Deposition of Dr. John Siberski
14. Claimant's Exhibit J: Deposition of Dena Letarneau
15. For i.d. b: Claimant's statement to Jeff Garcia
16. For i.d. c: Deposition of John Steimel
17. For i.d. d: Monthly planner pages
PROCEDURAL NOTE
At the hearing, the claimant made an oral motion to amend his claim to state that the date of injury was May 16, 1996, instead of May 12, 1996. The date of injury was a primary focus of the dispute in this case. Accordingly, the claim is amended, and the claimant bears the burden of proof that he was injured on May 16, 1996.
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 is a Vietnam veteran who suffered a severe and traumatic injury to his head, including a skull fracture, with several pieces of shrapnel in his face. As a result of that injury, he was in a coma for a number of days. He never returned to combat duty thereafter, and was honorably discharged from the army in 1970. Since that time, he has treated with the VA hospitals for gastrointestinal problems associated with his service in Vietnam. The claimant denies any residual problems as a result of his head injury.
3. The claimant began to work at the employer in the spring of 1994. He was the counterman for a small electrical supply company. He would serve customers, and retrieve stock from the back room for sale. Until mid-May of 1995, the claimant was a good worker with good attendance, although he had had a few absences that caused some concern to his employer. He got a ride home from his employer, Dena Letarneau, almost every night.
4. The claimant alleges that he was injured while cutting cable for a customer late one afternoon. He testified that the loose end of the heavy duty cable snapped off the roll and hit him a glancing blow across the bridge of his nose, his left shoulder and down his left side. He claimed that the incident was observed by a customer, whom he believed to be Jason Brauch. Mr. Brauch denies witnessing any injury to Mr. Steimel. After the incident,
the claimant got a ride home from Ms. Letarneau, and he testified that he told her that he had gotten "dinged" by a cable. He went home and went to bed early with a headache.
5. Mr. Steimel testified that he awoke the next day with a serious bruise across his face and a headache. When he went into work, he was pressured to go to the hospital by Raymond Letarneau, the father of Ms. Letarneau and the prior owner of the business. Mr. Steimel received medical attention on May 17, 1995.
6. Some time after the injury, the claimant began to experience severe headaches and incidents which he has called seizures which ultimately led to his receiving further medical attention from Dr. A. Kenneth Ciongoli and from the VA hospital in White River Junction. The claimant has had a number of diagnostic tests which have failed to reveal any organic basis for his complaints, although treatment for vascular headaches was successful for a period of six months. Dr. Ciongoli testified that the claimant's complaints were consistent with the claimed injury, but also showed evidence of having a significant psychological component. Dr. Ciongoli accepted as true, for purposes of treatment, the claimant's description of the mechanism of his injury. To the extent that the claimant's "seizures" were anatomically correct, they were left-sided, which implied an injury to the right side of the brain.
7. All of the medical evidence is consistent with a traumatic injury to the claimant's head in mid May of 1995. There is no significant dispute, in fact, that the claimant suffered some sort of insult to produce the bruising of which the claimant testified.
8. Dena Letarneau testified that she drove the claimant home on Friday, May 12, 1995, and that he showed no sign at that time of an injury. Contrary to Mr. Steimel's testimony, she denied that the claimant reported that he had gotten "dinged" by the end of a spool of cable. On the following Monday, Ms. Letarneau reported that the claimant came into work with a very large bruise on his face. She testified that she urged him to seek medical attention because of the size and the color of the bruise. When she asked him how it happened, the claimant told her that it happened at work. The claimant did not indicate that he was making a claim for an injury and continued to downplay the seriousness of the injury. Because of the "nastiness" of the bruise, she continued to urge him to seek medical attention. She testified that he always gave the same story for the mechanism of the injury, and that she never contested it until he actually made the claim. She felt that to confront him when he was telling someone how it happened would be like "airing dirty laundry" and that it was private between her and him. She also admitted that she did not fill out a First Report of Injury until August, and that she had no excuse for her failure. She indicated that she was unaware of the extent of the claimant's injury and that "[a]pparently I am still unaware of the extent of his injuries."
9. Roy Gordon, the manager of the employer, testified that he first noticed the claimant's injury on a Monday morning. He recalls that it was a Monday because he was in Ms. Letarneau's office doing the pricing of special items as the claimant walked in, and he stuck his head out to greet the claimant. He testified that Monday was the only day of the week when he would be in the office in the morning, since he usually prices in the afternoon. However, since he leaves work at 1 p.m. on Fridays, he prices on Monday morning. He testified that the claimant had looked fine the last time he saw him on Friday, but that would have been early in the afternoon and before the time of the reported injury. Mr. Gordon has been an employee of the company for about 25 years.
10. Raymond Letarneau testified that after he sold the business to his daughter he continued to hang out there every day. He indicated that he tried to keep a low profile to avoid interfering with his daughter's management of the company. He also testified that the claimant was bruised when he came in to work on Monday, and that he tried to talk the claimant into seeking medical attention at that time. He claimed that he did not press the claimant too much at that time because he did not want to appear to be running the business. He testified that he continued to pressure the claimant to go to the hospital on Tuesday to no avail. Finally, on Wednesday, a day when Ms. Letarneau was out of the shop all day doing customer contact for the business, he finally pressured Mr. Steimel into going to the hospital. He even loaned the claimant his car for the trip. While he denied ever telling the claimant that the business would cover the bill, he assumed that the matter would be covered by workers' compensation because of the claimant's story about how the injury happened.
11. The claimant's girlfriend, Donna Roberts, testified that she saw the claimant over the weekend of May 13 and 14, and that he had no bruises on his face at that time. She recalls the weekend because they were arguing over whether the claimant was going to move in with her or not. She also testified that she spoke with him on Tuesday night and that he told her that he had been hurt at work. He told her he had a headache, and she advised him to take an aspirin. He told her that it was not that simple, and she tended to agree after she saw him and the bruises.
12. The medical evidence on the issue of the freshness of the claimant's bruises is equivocal at best. Dr. Habeeb, the emergency room resident, had no memory of the claimant and could only testify by reading her notes. She testified that bruising can range from red and purple to yellow and green as the bruise ages. She indicated that she was not competent to testify as to the age of the bruise, but that she would have noted it if the bruise was
showing colors consistent with age. Dr. Ciongoli testified that bruising could take several days to develop and could last a few weeks.
13. The claimant has presented evidence of his fee agreement with his attorney for a contingency fee. He has also presented evidence that his attorney and her associate have spent 66.7 hours in preparation of this case. He has also presented evidence of expenses in the amount of $2,804.13.
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 failed to meet his burden of proof. His story has sufficient inconsistencies when weighed against the evidence of the other individuals at the employer to prevent the wholesale acceptance of his history. While I find that all of the witnesses' credibility suffers from some bias because of their respective positions, I find that the bias on the claimant's part and that of his girlfriend is of a significantly greater magnitude than that of the employer's witnesses, and hence fails to meet the requisite burden of proof. I am unable to find that the injury occurred as the claimant alleges given the evidence of Ms. Roberts that his face was uninjured Sunday night and the evidence of Mr. Gordon that the claimant was severely bruised on Monday morning. Moreover, there is a ring of truth to the testimony of Mr. Letarneau that he was unwilling to pressure the claimant too much to get medical treatment while his daughter was present, but that he was successful as soon as his daughter was out of the office for the day.
4. The claimant not having prevailed is not entitled to an award of attorney's fees or costs.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, John Steimel's claim for workers' compensation benefits arising out of an injury on either May 12 or 16, 1995, at Burgess Electrical Supply is denied.
DATED at Montpelier, Vermont this 29th day of October 1996.
________________________________
Mary S. Hooper
Commissioner