05-11WC. Meril Badger v. BWP Distibutors, Inc. and Maynard's Auto Supply, Inc.

• Court: Vermont

Vermont Workers Compensation 2011. 05-11WC. Meril Badger v. BWP Distibutors, Inc. and Maynard's Auto Supply, Inc Meril Badger v. BWP Distibutors, Inc. and Maynard's Auto Supply, Inc. (March 25, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 05-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File Nos. AA-62692 and U-15282OPINION AND ORDERHearing held in Montpelier, Vermont on November 18, 2010 Record closed on December 29, 2010APPEARANCES:Beth Robinson, Esq., for ClaimantWesley Lawrence, Esq., for Defendant BWP Distributors, Inc. Jeff Spencer, Esq., for Defendant Maynard's Auto Supply, Inc.ISSUES PRESENTED:

1. Is Claimant's current lumbar spine condition causally related to either his May 14, 2009 work-related injury or to his April 15, 2004 work-related injury?

2. If yes, to what workers' compensation benefits is he entitled and which employer is responsible?

3. Is Claimant's current cervical spine condition causally related to either his May 14, 2009 work-related injury or to his April 15, 2004 work-related injury?

4. If yes, to what workers' compensation benefits is he entitled and which employer is responsible?

EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 1: Curriculum vitae, Mark Bucksbaum, M.D. Defendant Maynard's Exhibit A: Curriculum vitae, Amin Sabra, M.D. Defendant BWP Exhibit A: Dr. Levy reports Defendant BWP Exhibit B: Dr. Bucksbaum report and deposition transcripts Defendant BWP Exhibit C: Form 15 and accompanying letters Defendant BWP Exhibit D: Form 22, June 24, 1999 Defendant BWP Exhibit E: Letter from Attorney Robinson, September 26, 2000 Defendant BWP Exhibit F: Vocational Rehabilitation Discontinuance Report Defendant BWP Exhibit G: Peg Mangan file memo, January 8, 2001 Defendant BWP Exhibit H: Joint medical exhibit (CD-rom format) Defendant BWP Exhibit I: Meril Badger deposition, Jan. 19, 2000 and Feb. 9, 2001 Defendant BWP Exhibit J: Brenda Badger deposition, February 9, 2001 Defendant BWP Exhibit K: Dr. Lefkoe deposition, Jan. 15, 2001 and May 9, 2001 Defendant BWP Exhibit L: Dr. Zimmerman deposition, February 8, 2001 Defendant BWP Exhibit M: Dr. Laub deposition, May 3, 2001 Defendant BWP Exhibit N: Various Social Security notices Defendant BWP Exhibit O: Curriculum vitae, Richard Levy, M.D. Defendant BWP Exhibit P: Work search records CLAIM: Temporary total disability benefits pursuant to 21 V.S.A. §642 Permanent partial disability benefits pursuant to 21 V.S.A. §648 Medical benefits pursuant to 21 V.S.A. §640 Vocational rehabilitation benefits pursuant to 21 V.S.A. §641 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 Defendants were his employers 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 files relating to this claim. 3. Claimant was 62 years old at the time of the formal hearing. He began working on his family farm at an early age. When he was 13, his father died, and he assumed greater responsibility for running the farm. He quit school at age 16 so that he could help his mother support his siblings. Aside from farming, Claimant's work history includes carpentry, logging and construction. 4. Claimant has suffered three work-related injuries to his lumbar and/or cervical spine, each of which bears some relevance to his current claim. The first injury occurred in 1997, while Claimant was working for Engelberth Construction Co. The second injury occurred in 2004, while Claimant was working for Defendant Maynard's Auto Supply, Inc. ("Maynard's"). The third occurred in 2009, while Claimant was working for Defendant BWP Distributors, Inc. ("BWP"). The 1997 Engelberth Construction Injury 5. On September 20, 1997 Claimant was working at a construction site at Middlebury College. His activities on that day included maneuvering heavy rafters from the ground up to workers on the building's second story. To do so, Claimant would stand each rafter on end and push it up the side of the building as far as he could reach. Then he would rest the rafter momentarily on the front of his hardhat and reposition his hands so that he could push the beam high enough for the second story workers to reach. Claimant repeated this process many times until the task was completed. 6. Following this activity, Claimant complained of pain in his left wrist, numbness and tingling in his arms and hands, tremors in his right forearm, headaches and pain in the back of his neck. Much later, he reported having experienced low back pain as well associated with this injury, though the contemporaneous medical records make no mention of such symptoms. 7. Initially Claimant's treatment focused on his bilateral hand symptoms. He was diagnosed with bilateral carpal tunnel syndrome, and later with a ligament injury as well in his left wrist. After two surgeries, his upper extremity symptoms still persisted, leading his treatment providers to suspect that they might be cervical in origin. This was consistent with what Claimant himself had felt from the beginning. 8. Claimant's employer disputed the compensability of any cervical spine injury or symptoms as not causally related to his September 1997 work activities. A July 1998 cervical spine MRI revealed mild to moderate degenerative disc disease, which Claimant's treating physician, Dr. Lefkoe, determined had been aggravated by lifting the heavy rafters overhead and balancing them on his forehead. Engelberth's independent medical evaluator, Dr. White, disagreed that any such causal relationship existed, however. With Dr. White's opinion as support, in 1999 Engelberth compensated Claimant for a 35% whole person permanent impairment referable to his bilateral wrist injuries, but refused to pay any permanency related to his other complaints. 9. For two years thereafter Claimant continued to pursue his claim for additional workers' compensation benefits causally related to the September 1997 injury. He continued to experience and treat for pain in his neck and shoulders, headaches and diffuse facial numbness. As he was unable to resume carpentry or construction work, Claimant was determined eligible for vocational rehabilitation services, but aside from a brief stint at a local dairy farm his return to work efforts were unsuccessful.(fn1) Ultimately Claimant asserted a claim for permanent total disability. 10. Claimant's medical expert at the time, Dr. Bucksbaum, supported the alleged causal relationship between his September 1997 work activities and his ongoing symptoms. Dr. Bucksbaum is board certified in physical medicine and rehabilitation. He is also a biomechanical engineer. 11. According to Dr. Bucksbaum, the vertical forces produced when Claimant rested the heavy rafters on his hardhat while maneuvering them overhead likely caused a C5 disc herniation with cervical radiculopathy, resulting in the constellation of symptoms in his neck and upper extremities from which he continued to suffer at least as of Dr. Bucksbaum's evaluation in July 2000. I find credible this explanation for Claimant's condition. 12. Of note, Dr. Bucksbaum was unable to determine to the required degree of medical certainty whether Claimant's complaints of low back pain were in any way related to his work...