09-11WC. David Auclair v. GW Savage Corp.,Revera, Inc.

• Court: Vermont

Vermont Workers Compensation 2011. 09-11WC. David Auclair v. GW Savage Corp.,Revera, Inc David Auclair v. GW Savage Corp.,Revera, Inc.(April 29, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 09-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File Nos. P-16967/CC-209/BB-60688OPINION AND ORDERHearing held in Montpelier, Vermont on January 26, 2011 Record closed on February 25, 2011APPEARANCES:Michael Green, Esq., for ClaimantJohn Valente, Esq., for Defendant G.W. Savage Corporation James O'Sullivan, Esq., for Defendant Revera, Inc. (Liberty Mutual Insurance Co.) Jason Ferreira, Esq., for Defendant Revera, Inc. (ESIS, Inc.)ISSUES PRESENTED: 1. Are Claimant's current right ankle symptoms and condition causally related to his February 2000 compensable work injury, such that Defendant G.W. Savage Corporation remains responsible for benefits? 2. Alternatively, if Claimant's current right ankle symptoms and condition are causally related to his employment for Revera, Inc., which of the two insurers for that employer are responsible for benefits? 3. If Claimant's current right ankle symptoms and condition are causally related to his employment for Revera, Inc., is his claim time barred pursuant to 21 V.S.A. §§656(a) and/or 660(a)? EXHIBITS: Joint Exhibit I: Medical records Defendant Cincinnati Exhibit 1: Curriculum vitae, John Johansson, D.O. Defendant ESIS Exhibit 1:Curriculum vitae, Leon Ensalada, M.D. Defendant ESIS Exhibit 2:Letter from Michael Green, Esq., March 22, 2010 Defendant ESIS Exhibit 3:Letter from Marnie Marrier, April 7, 2010 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 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. Claimant's February 2000 Injury and Initial Medical Course 3. On February 1, 2000 Claimant was employed as a roofer for Defendant G.W. Savage Corporation ("Savage"). On that date, Claimant was sweeping off an icy roof when he fell 8 to 10 feet to the ground, landing on his right ankle and leg. Claimant suffered a severe ankle injury, which included three fractured bones. 4. Defendant Savage accepted Claimant's injury as compensable and began paying workers' compensation benefits accordingly. 5. Claimant underwent surgery to repair his ankle fractures on the date of the injury. Thereafter he was followed by Dr. Kaplan, his treating orthopedic surgeon. 6. Following the surgery Claimant experienced ongoing pain, stiffness and decreased range of motion in his ankle. For support, he wore a lace-up ankle corset. Even with that, because he lacked dorsiflexion (the movement by which the toes are brought closer to the shin), he walked with his right foot pointed out so that his ankle would clear the ground. Extended standing or walking more than a block or two caused both pain and swelling. Stair climbing also exacerbated his symptoms. 7. In November 2000 Dr. Kaplan performed a second surgery. The goal was to decrease Claimant's pain and increase his range of motion by extracting the screws that previously had been placed, removing inflamed tissue and manipulating the joint under anesthesia. 8. Unfortunately, even after the second surgery Claimant continued to experience pain, stiffness, swelling, decreased range of motion and occasional episodes of giving way in his ankle. Dr. Kaplan determined that it was fruitless to pursue further attempts to increase mobility, and decided instead to focus on maximizing Claimant's ability to function. To that end, in January 2001 he prescribed a rigid AFO (ankle-foot orthosis) brace. The brace is permanently affixed to the sole of Claimant's shoe, with metal rods extending up both sides of his lower leg and held in place mid-calf with a leather strap. Its purpose is to support the ankle and position the foot in such a way as to allow a more normal gait. 9. At Defendant Savage's request, in March 2001 Claimant underwent an independent medical evaluation with Dr. White, an occupational medicine specialist. Dr. White reported that Claimant continued to experience constant pain in his right ankle and foot, that his ankle sometimes gave way, that he walked with a limp and that he wore an ankle brace. 10. Dr. White determined that Claimant had reached an end medical result, and rated him with a 15% whole person permanent impairment on the basis of his gait disturbance. In addition, given the severity of his ankle fractures Dr. White noted the "substantial possibility" that as time went on Claimant might develop post-traumatic arthritis. 11. Also in March 2001 Claimant completed a work hardening program and was determined to have a medium duty work capacity. His primary functional limitations were in the areas of walking, carrying and stair climbing. These limitations effectively precluded him from returning to work as a roofer. 12. With Dr. White's end medical result determination as support, in April 2001 Defendant Savage terminated temporary disability benefits. Thereafter it paid permanency benefits in accordance with Dr. White's 15% impairment rating. Claimant's Post-Injury Work and Subsequent Medical Course 13. From 2001 until 2004 Claimant worked as a truck driver for Merriam Graves, delivering oxygen tanks. He routinely worked more...