03-12WC. Gregory Bower v. Mount Mansfield.

CourtVermont
Vermont Workers Compensation 2012. 03-12WC. Gregory Bower v. Mount Mansfield Gregory Bower v. Mount Mansfield(January 18, 2012)STATE OF VERMONT DEPARTMENT OF LABORGregory Bower v. Mount MansfieldOpinion No. 03-12WCBy: Jane Woodruff, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. BB-57124OPINION AND ORDERHearing held in Montpelier, Vermont on November 9, 2011Record closed on December 9, 2011APPEARANCES:Steven Robinson, Esq., for Claimant Marion Ferguson, Esq., for Defendant ISSUE PRESENTED: Is Defendant responsible for the surgical repair of Claimant's anterior cruciate ligament tear as a natural and direct consequence of Claimant's December 2009 work injury, or does the October 2010 apple-picking incident qualify as an independent intervening event sufficient to break the causal link back to that injury? EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 1: Dr. Huber's November 8, 2011 deposition (with attached exhibits) Claimant's Exhibit 2: Letter to Dr. Wieneke, October 12, 2011 Defendant's Exhibit A: Dr. Wieneke curriculum vitae Defendant's Exhibit B: Dr. Wieneke report, October 25, 2011 CLAIM: Medical benefits pursuant to 21 V.S.A. § 640 Costs and attorney fees pursuant to 21 V.S.A. § 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 contained in the Department's file relating to this claim. 3. Claimant worked as a volunteer ski host at Defendant's various mountain slopes. His responsibilities included helping skiers define where they wanted to ski. Claimant was an expert skier and knew Defendant's slopes well. He was otherwise unemployed. 4. On December 30, 2009 Claimant caught a ski tip while skiing in the course of his host duties. He rotated around the ski and fell backwards down the mountain. After coming to a stop, he took five minutes to compose himself before attempting to get up. When he did so he was unable to bear any weight on his left leg. Claimant skied down to the bottom of the mountain using only his right leg. 5. Claimant experienced significant swelling in his left knee to the point where he could not bend it. Defendant accepted this injury as compensable and paid medical benefits accordingly. Treatment_ for the Accepted Ski Injury 6. After waiting a few days to allow the swelling in his knee to subside, Claimant sought treatment at Stowe Urgent Care. He was examined for a possible anterior cruciate ligament (ACL) injury, but both anterior drawer and Lachman's tests were negative. These are the two most sensitive tests for detecting an ACL injury, but they are far less accurate in the early stages of a knee injury, when the patient is likely to be experiencing increased swelling, pain and guarding. Claimant was diagnosed with a knee sprain and released to return to work with restrictions. 7. Claimant followed up with Stowe Urgent Care on January 11, 2010. By then his knee felt better, but was still slightly unstable. As a protective measure, the physician advised him to wear a knee brace for stability. As before, he was released to return to work with restrictions. 8. Claimant next treated with Pierre Delfausse, a physician's assistant, on February 2, 2010. He complained of continuing discomfort in the left knee, reported that he did not completely trust it and that he was limiting his activities accordingly. Upon examination, Mr. Delfausse noted mild looseness in the left leg compared to the right and also that the left ACL was not attached solidly. Neither the anterior drawer nor Lachman's tests produced positive results, though Claimant was not relaxed during the exam and therefore these findings likely were affected by pain and guarding. 9. From March to the end of the ski season, Claimant performed some hosting duties for Defendant, but when he did so he wore both a knee brace and four ace bandages on his left knee. He could only ski five runs per day, whereas before he could ski twenty runs. Claimant's activity level after the ski season ended was similarly diminished. He played tennis only three times, and could not play golf at all. Both of these activities involve twisting and torque to the knee, a motion that he was unable to manage. Claimant was able to swim, perform landscaping work around his four-acre home, and chop and stack wood. 10. Claimant did not seek any treatment for his...

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