07-11WC. Wendy Bush v. Kelly Services.

• Court: Vermont

Vermont Workers Compensation 2011. 07-11WC. Wendy Bush v. Kelly Services Wendy Bush v. Kelly Services(March 25, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 07-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. U-10436OPINION AND ORDERHearing held in Montpelier, Vermont on December 2, 2010 Record closed on January 21, 2011APPEARANCES:William Skiff, Esq., for Claimant Robert Cain, Esq., for DefendantISSUE PRESENTED:

Were Claimant's March 2009 right ankle symptoms and subsequent surgical treatment causally related to her compensable January 2004 work injury?

EXHIBITS: Claimant's Exhibit 1: Deposition of Mark Charlson, M.D., November 19, 2010 Claimant's Exhibit 2: Curriculum vitae, Mark Charlson, M.D. Claimant's Exhibit 3: Dr. Charlson diagrams Claimant's Exhibit 4: Retainer agreement Claimant's Exhibit 5: Various medical records (Charlson Deposition Exhibit 2) Defendant's Exhibit A: Video deposition of Kristen DeStigter, M.D., November 19, 2010 (with attached exhibits) Defendant's Exhibit B: Deposition of George White, M.D., November 16, 2010 (with attached exhibits) Defendant's Exhibit C: Dr. Hernandez, problem list and chart notes (4 pages) Defendant's Exhibit D: Curriculum vitae, John Johansson, D.O. CLAIM: Workers' compensation benefits causally related to treatment of Claimant's right ankle condition since March 23, 2009 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 her 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. Claimant's 2004 Ankle Injury 3. On January 13, 2004 Claimant was engaged in the course and scope of her employment for Defendant, on an assignment at the National Life Building in Montpelier. As she was exiting the building on that day via the vestibule steps, her foot slipped and landed hard on the floor, causing her to fall. 4. Later that day Claimant presented to the emergency room, complaining of severe pain and difficulty walking. The mechanism of injury was described in part as "hyper-dorsiflexion of [right] foot," meaning that her foot had been bent sharply up towards her shin. Diagnostic studies, both x-ray and CT scan, revealed fractures of the anterior process of the calcaneus (the front of the heel bone) and of the navicular (a bone on top of the mid-foot), both non-displaced. 5. Also evident on the January 13, 2004 x-ray was an osteochondral defect, in layman's terms a "bone chip," adjacent to the talar dome of Claimant's right foot. The talar dome is the top portion of the talus, the bone that connects the leg to the foot. By transferring the energy associated with bearing weight to the horizontal bones of the foot, the talus is the upright bone that allows us to walk. 6. A bone chip is a small piece of bone and cartilage that separates off from its mother bone. Once detached, it can either remain in its groove, like a golf divot, or it can become dislodged and move further into the joint space as a free fragment or loose body. It is not uncommon for a non-displaced bone chip to remain in its "divot" for years before it moves and becomes dislocated. This can occur spontaneously or as the result of even minor trauma, such as from stepping off a curb awkwardly. If the chip moves in such a way as to interfere with the weight-bearing surface of the joint, it can be quite painful, akin to walking with a rock in one's shoe. 7. The bone chip revealed by the January 13, 2004 x-ray was well corticated, meaning that its surfaces were very smooth. This is an indication that the chip was old, and thus had not been caused by...