01-11WC. Jeffrey Marshall v. State of Vermont, Vermont State Hospital.

• Court: Vermont

Vermont Workers Compensation 2011. 01-11WC. Jeffrey Marshall v. State of Vermont, Vermont State Hospital Jeffrey Marshall v. State of Vermont, Vermont State Hospital(January 25, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 01-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. S-22038OPINION AND ORDERHearing held in Montpelier, Vermont on October 6, 2010 Record closed on November 12, 2010APPEARANCES:Patricia Turley, Esq., for Claimant William Blake, Esq., for DefendantISSUES PRESENTED:

1. Is Claimant entitled to additional permanent partial disability and/or medical benefits referable to his June 2002 compensable work injury?

2. Did Defendant fail to give Claimant proper notice of its denial of various medical bills, and if yes, is Defendant thereby obligated to pay?

3. Is Defendant entitled to apportionment of any permanent partial impairment on account of Claimant's 1989 and/or 1997 injuries?

4. Is Claimant barred by the statute of limitations from seeking additional permanent partial disability benefits referable to his 2002 injury?

EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 1: Letter from Tim Vincent, August 7, 2003 Claimant's Exhibit 2: Vocational Rehabilitation Progress Report, March 31, 2004 Claimant's Exhibit 3: Letter from Susan Drapp, RN, March 28, 2005 Claimant's Exhibit 4: Letter from Bruce Chenail (with attachments), August 1, 2005 Claimant's Exhibit 5: Letter to Department (with attachments), September 6, 2005 Claimant's Exhibit 6: Curriculum vitae, Sikhar Banerjee, M.D. Defendant's Exhibit A: Form 22 approved February 3, 2004 Defendant's Exhibit B: Form 22 approved December 28, 1993 Defendant's Exhibit C: Deposition of Dr. William Boucher, September 29, 2010 CLAIM: Medical benefits pursuant to 21 V.S.A. §640 Permanent partial disability benefits pursuant to 21 V.S.A. §648 Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678 FINDINGS OF FACT: 1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont's Workers' Compensation Act. 2. Judicial notice is taken of all relevant forms and correspondence contained in the Department's file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (hereinafter the "AMA Guides"). 3. Claimant was employed by Defendant as a ward aide. On June 6, 2002 he was assisting a co-employee to restrain a self-abusive patient. At one point the patient lifted both legs off the floor, requiring Claimant and the co-employee to support his entire weight. Claimant felt the immediate onset of low back pain, with sciatic pain radiating down both legs. Claimant's Prior Low Back Injuries 4. At the time of this injury Claimant already had suffered three previous work-related low back injuries. The first one occurred in 1987. While working for a prior employer, Claimant experienced low back pain and radicular symptoms down his left leg as a result of a forklift accident. He was diagnosed with a significant left-sided L5-S1 disc herniation, for which he underwent surgery in 1989. The surgery went well, and aside from some minor residual numbness in his left foot Claimant's symptoms completely resolved. He resumed his regular activities without restriction, both at work and recreationally. The latter included hunting, fishing, working on his land and other outdoor pursuits. 5. Claimant was not rated for his permanent impairment following the 1987 injury and subsequent surgery. He did not seek, and was not paid, any permanent partial disability benefits as a result. 6. The second injury occurred in 1992, when Claimant lifted a heavy patient while at work for Defendant. He experienced the same symptoms he had suffered as a result of the 1987 injury - low back pain and radicular symptoms down his left leg - and was diagnosed with a recurrent disc herniation at L5-S1, the same disc that had ruptured previously. Again Claimant underwent disc surgery, and again his symptoms almost completely resolved, allowing him to resume both recreational and work activities without restriction. 7. Having reached an end medical result for his 1992 injury, in November 1993 Claimant's treating surgeon rated him with a 10% permanent impairment of the spine. Defendant accepted this rating and paid permanent partial disability benefits accordingly. In doing so it made no attempt to determine whether some portion of Claimant's permanent impairment should have been allocated back to his 1987 injury. 8. Claimant injured his back for the third time in June 1997, again while working with a patient in the course of his employment for Defendant. As before, his symptoms included low back pain and radicular symptoms down his left leg. Once again, Claimant was diagnosed with a recurrent disc herniation at L5-S1, for which he underwent surgery and then successfully recovered. 9. Claimant was not rated for his permanent impairment after the 1997 injury, and was not paid any permanent partial disability benefits referable to it. Claimant's Medical Course Following the June 2002 Low Back Injury 10. Claimant's symptoms following the June 2002 injury were different from those he had experienced after any of his three previous injuries. Whereas the predominant symptoms after his prior injuries were radicular pain, numbness and tingling down his left lower extremity, this time Claimant's low back pain was predominant, and his radicular symptoms were both left- and right-sided. 11. Claimant treated with Dr. Cyr, a chiropractor, following his 2002 injury. Diagnostic x-rays taken shortly after the event showed mild degenerative changes at L4, L5 and S1. A July 2002 MRI study revealed a small recurrent left-sided disc herniation at L5-S1, but did not note abnormalities at any other level. Specifically, the study did not mention any findings whatsoever at the L4-5 level. 12. Claimant opted not to treat surgically for his 2002 injury. Dr. Tranmer, a spine surgeon with whom he consulted in August 2002, remarked that as he was managing "reasonably well" with exercises and chiropractic care, surgery to remove the recurrent disc herniation likely was not necessary. Dr. Krag, the surgeon who had treated Claimant following his 1997 injury, concurred with this assessment. In his opinion, it was unlikely that Claimant's symptoms were associated with the July 2002 MRI findings. It was more likely that the June 2002 incident caused a muscle strain or ligament injury, and that Claimant's current symptoms were attributable to resulting back spasms, perhaps also with a component of disc degeneration. Rather than surgery, therefore, as treatment Dr. Krag recommended physical therapy and home exercises aimed at strengthening Claimant's back. 13. Given...