09-12WC. Judith Skovira v. Mylan Technologies Inc.

• Court: Vermont

Vermont Workers Compensation 2012. 09-12WC. Judith Skovira v. Mylan Technologies Inc Judith Skovira v. Mylan Technologies Inc(March 29, 2012)STATE OF VERMONT DEPARTMENT OF LABORJudith Skovira v. Mylan Technologies, Inc.Opinion No. 09-12WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. CC-02280OPINION AND ORDER Hearing held in Montpelier on January 9, 2012 Record closed on February 13, 2012 APPEARANCES: Ron Fox, Esq., for Claimant David Berman, Esq., for Defendant ISSUE PRESENTED:

1. Did Claimant suffer a compensable left knee injury on or about February 26th and/or March 2, 2011?

2. If yes, to what workers' compensation benefits is she entitled?

EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 1: List of Claimant's absences from work Claimant's Exhibit 2: Time Detail, 12/19/10-5/5/11 Defendant's Exhibit A: Curriculum vitae, Leonard Rudolf, M.D. Defendant's Exhibit B: Deposition of Thomas Rivers, December 6, 2011 Defendant's Exhibit C: Deposition of Lise Canevari, December 6, 2011 Defendant's Exhibit D: Deposition of Monique Brigante, December 6, 2011 Defendant's Exhibit E: Deposition of Vicki Shepard, December 6, 2011 Defendant's Exhibit F: Deposition of Chad Cichomski, December 6, 2011 CLAIM: Temporary disability benefits pursuant to 21 V.S.A. §§642 and 646 Permanent partial disability benefits pursuant to 21 V.S.A. §648 Medical benefits pursuant to 21 V.S.A. §640 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 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.

3. Claimant began working as a production operator for Defendant, a manufacturer of transdermal medication patches, in March 2007. Her duties included cutting, pouching, sealing and boxing patches on a large production line. Claimant routinely worked the second shift, from 3:00 PM to 11:00 PM. For certain tasks on the line she could alternate sitting and standing, though for most of her shift she was on her feet.

Claimant's Work-Related Slip-and-Falls 4. On Saturday evening, February 26, 2011 Claimant was walking through Defendant's parking lot after completing her shift. It had been snowing, and the pavement was slushy. As Claimant reached her car, she slipped and fell forward onto both knees. Two or three of her co-workers, including Lise Canevari and Tina Menard, came to her aid. As they did so, Ms. Canevari recalled Claimant exclaiming that she had fallen on her "f---ing bad knee." 5. After this event Claimant's left knee was swollen and painful, but not to the point where she sought medical treatment. She did report the injury to her supervisor when she returned to work as scheduled on Monday afternoon. 6. Claimant worked her scheduled shifts on Monday, Tuesday and Wednesday, February 28th through March 2nd, 2011. As she was leaving work on Wednesday with Ms. Canevari, again she slipped in the parking lot. Her left foot slid forward as if she was squatting, but Ms. Canevari was able to catch her before she fell to the ground.(fn1) 7. After this event, Claimant's left knee was even more swollen and painful than it had been prior to her fall the previous Saturday. Her symptoms prompted her to seek medical treatment, and ultimately restricted her function to the point where she was unable to work. 8. Defendant denied Claimant's claim for workers' compensation benefits, citing preexisting degenerative pathology in her knee as the cause of her complaints. Claimant's Prior Medical History 9. Claimant has a long, complicated medical history involving her left knee. In 1979 she underwent patellar realignment surgery as treatment for recurrent dislocations. She has experienced occasional episodes of left knee pain, swelling and clicking ever since. 10. In October 2000 Claimant's left knee symptoms again compelled her to seek treatment, ultimately culminating in arthroscopic surgery in April 2001. Diagnostic imaging studies at the time revealed moderate to severe degenerative changes throughout the joint. These changes most likely were caused by the particular type of patellar realignment surgery Claimant had undergone years earlier. By changing the mechanism of the joint, that type of procedure can cause the surface cartilage in the knee to break down, leading to the accelerated development of degenerative arthritis. For that reason, it is no longer considered an effective treatment for recurrent patellar dislocations. 11. Claimant's 2001 surgery also addressed a lateral meniscus tear, which had been documented as well on her imaging studies at the time. 12. Though she continued to suffer from persistent, generalized left knee pain, following her 2001 surgery Claimant did not seek medical treatment for many years. Then, in October 2009 she presented to her primary care provider complaining of increased discomfort in her knee and sharp pains under her left kneecap. Claimant did not ascribe her symptoms to any recent acute injury. 13. Claimant treated for her symptoms, which she described as having gotten much worse over the course of the prior three years, with Dr. Kaplan, an orthopedic surgeon. She reported intermittent stabbing pain in her knee, severe enough to "stop me dead," and worsened by such activities as climbing stairs, arising from a chair or kneeling. As had been the case in 2001, diagnostic imaging studies performed in February 2010 documented moderate to severe arthritis throughout the joint, this time evidenced by partial- and full-thickness cartilage degeneration, joint space narrowing and bone spurs. In addition, the studies revealed what was described as a "probable degenerative" medial meniscus tear. 14. Dr. Kaplan explained Claimant's treatment options in a telephone conference with her on March 1, 2010. His written summary of the conversation states:

In addition to her arthrosis she has meniscal tears medially. She understands that we may not be able to turn back the clock on her arthrosis, but we may consider doing something arthroscopically if injectable type treatments (such as a steroid injection) were not acceptable to her, given that she had a previous poor reaction [in 2001]. I understand her reluctance to do that, though I think it may help her.

She will see how she does over time. If she is not any better she will consider arthroscopy to see if a debridement of the left knee helps her pain at all.

15. Some months later, during an August 2010 follow-up appointment with her primary care provider for migraine headaches, Claimant also complained of chronic left knee pain. She reported that only a combination of Vicodin and OxyContin (both of which she had been prescribed at times previously for a shoulder injury) provided effective pain relief. As these medications are not recommended for chronic pain management, Claimant's provider instead prescribed a lidocaine patch. 16. Claimant next followed up with her primary care provider in September 2010. According to the provider's office note, Claimant reported that the lidocaine patch "did not help." In her formal hearing testimony, Claimant acknowledged...