14-12WC. Scott Davis v. Wal-Mart.

• Court: Vermont

Vermont Workers Compensation 2012. 14-12WC. Scott Davis v. Wal-Mart Scott Davis v. Wal-Mart(May 16, 2012)STATE OF VERMONT DEPARTMENT OF LABORScott Davisv. Wal-MartOpinion No. 14-12WCBy: Jane Woodruff, Esq. Hearing Officer For: Anne M. Noonan CommissionerState File No. Z-52910OPINION AND ORDERHearing held in Montpelier, Vermont on December 13, 2011 Record closed on March 15, 2012APPEARANCES:Ronald Fox, Esq., for Claimant Marion Ferguson, Esq. and Glenn Morgan Esq., for DefendantISSUES PRESENTED: 1. Is Claimant entitled to permanent total disability benefits as a consequence of his August and September 2007 compensable work injuries? 2. If not, is Claimant entitled to permanent partial disability benefits as a consequence of his August and September 2007 compensable work injuries? 3. Is Claimant entitled to additional medical benefits as a consequence of his August and September 2007 compensable work injuries? EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 1: Vocational assessment, May 27, 2011 Claimant's Exhibit 2: Curriculum vitae, Mark Bucksbaum, M.D. Claimant's Exhibit 3: Curriculum vitae, James Parker Claimant's Exhibit 4: Curriculum vitae, Louise Lynch Claimant's Exhibit 5: Photo of Claimant with deer Claimant's Exhibit 6: Correspondence to Dr. Wieneke, February 7, 2008 Defendant's Exhibit A: Photo of Claimant with deer Defendant's Exhibit B: Correspondence to Claimant, February 25, 2008 Defendant's Exhibit C: Correspondence to Wendy Madigan, March 5, 2008 Defendant's Exhibit D: Correspondence to Claimant (undated) Defendant's Exhibit E: Curriculum vitae, Kuhrt Wieneke, M.D. CLAIM: Permanent total disability benefits pursuant to 21 V.S.A. §644 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 his employer as those terms are defined in Vermont Compensation Act. 2. Judicial notice is taken of all relevant forms contained in the Department's file relating to this claim. 3. Claimant is currently 33 years old. He began working at Defendant's Bennington, Vermont store as an overnight stocker in 2002. He excelled at his job and over the course of the ensuing five years was regularly promoted - first to inventory control specialist, then to customer service manager, then to sporting goods department manager, and then to assistant manager at Defendant's Pittsfield, Massachusetts store. Claimant returned to the Bennington area for personal reasons in January 2007, whereupon he resumed his prior position as sporting goods department manager in the Bennington store. Claimant's Prior Medical History 4. Claimant stands at 6 feet, 1 inch tall. He has struggled with obesity since elementary school. In high school he weighed 380 pounds. With diet and exercise, he lost some weight thereafter, down to approximately 350 pounds in March 2006, but by September 2007 it had increased again, back up to 385 pounds. In February 2008 he weighed 395 pounds. By February 2010, he weighed 491 pounds. As of September 2011 he weighed more than 500 pounds. 5. Claimant was diagnosed with both diabetes and high blood pressure in 2006. He also suffers from chronic gastroesophageal reflux disease (GERD), edema and peripheral neuropathy. 6. According to the medical records, Claimant has a strong family history of obesity. Both of his parents are obese, as are two of his three siblings. His father, mother and four maternal aunts and uncles suffer from diabetes. 7. Despite his obesity and related medical issues, as of August and September 2007 Claimant was fully able to work and engage in activities of daily living. He enjoyed hiking, camping, fishing, four-wheeling, going places and reading. He could walk, bend, kneel and squat without limitation. Claimant's August and September 2007 Work Injuries 8. In late August 2007 Claimant was assisting a co-employee to retrieve an elliptical machine from a high shelf. The machine, which was boxed, weighed between 80 and 100 pounds. As the co-employee, who was standing on a ladder, handed the box down to Claimant, it slipped from his grasp, dropped 1 or 2 feet and struck Claimant on the left side of his head and neck. Claimant felt a sharp pain in his neck, but shook it off and continued working. 9. Claimant reported the incident to Defendant's human resources department. He remained at work, but gradually developed pain in his right shoulder, particularly with lifting. Then, on September 3, 2007 he was walking through the store when he tripped over the edge of a pallet and fell backwards onto a mobile staircase. Claimant hit both his neck and lower back on two of the staircase's stability bars. 10. Claimant lay on the floor for some time, as he was in extreme pain. He screamed for help, but no one heard his cries. Ultimately he managed to get to the employee break room. A co-employee called the assistant manager, and Claimant called his wife, who took him to the hospital emergency department. Claimant's Post-Injury Medical Course 11. Initially Claimant treated with Dr. Whittum, an orthopedist. He also consulted with Dr. Hazard, another orthopedist, at Dartmouth Hitchcock Medical Center. Claimant's symptoms included right shoulder and neck pain and low back pain with numbness extending into his lower extremities. A lumbar MRI study revealed chronic degenerative disc disease at both L4-5 and L5-S1, likely aggravated by more recent trauma and including some nerve root compression as well. A cervical MRI failed to reveal any clear nerve root impingement. Claimant's shoulder symptoms were attributed either to acute bursitis and/or to a possible rotator cuff tear. 12. Claimant has undergone only limited treatment for his work injuries. He was unable to complete a course of physical therapy due to pain complaints, and could not undergo epidural steroid injections because of his large body mass. Neither the lumbar nor the cervical MRI scans suggested surgery as an appropriate treatment option. At one point Dr. Hazard suggested that Claimant consider pursuing a functional rehabilitation approach, but Defendant refused to authorize an evaluation. From the credible medical evidence, I find that such an approach was unlikely to be successful in any event. See Finding of Fact No. 37, infra. 13. Numerous independent medical evaluators, including Dr. Wieneke, Dr. McLarney and Dr. Kinley, have commented on the fact that Claimant's pain complaints are non-verifiable and, for the most part, subjective. In multiple examinations he has exhibited positive Waddell's signs, including give-away weakness, hypersensitivity, unreliable range of motion and non-physiologic pain radiation. Claimant exhibited some of these signs in the context of two functional capacity evaluations as well, one in October 2008 and another in March 2011. Such signs are indicative of a psychological or non-organic component to his pain, but do not necessarily signify malingering or deception. 14. Currently Claimant manages his pain with narcotic and other medications. He is largely inactive on most days. He reports constant low back pain and fatigue. He rarely leaves his house and spends most of his time alternating between sitting in his recliner and standing. He walks to his mailbox daily, a distance of 20-25 yards; the excursion typically takes him almost 30 minutes to complete. Because he has difficulty focusing, he no longer reads to the extent that he used to, and can only sit at his computer for brief intervals. His sleep is not restorative, and he suffers from sleep apnea. He is severely deconditioned, from both a muscular and a cardiovascular standpoint. He cannot bend over or tie his shoes. 15. The medical evidence establishes that many of Claimant's current deficits are due primarily to his obesity. His obesity is to blame for the fact that he is severely deconditioned cardiovascularly, for example. In addition, both his difficulty focusing and his fatigue are likely a consequence of his sleep apnea, which is itself a consequence of his obesity. Claimant's 2010 Weight Loss Efforts 16. At his primary care provider's referral, in February 2010 Claimant began treatment in the Albany Medical Center's Bariatric Surgery and Nutrition program. At the time he weighed 491 pounds, an...