18-11WC. Steven Matheny v. Best Foods Baking Company.

• Court: Vermont

Vermont Workers Compensation 2011. 18-11WC. Steven Matheny v. Best Foods Baking Company Steven Matheny v. Best Foods Baking Company(July 19, 2011)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 18-11WCBy: Jane Woodruff, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. R-02092OPINION AND ORDERHearing held in Montpelier, Vermont on April 27, 2011 Record closed on June 10, 2011 APPEARANCES:Kevin Brown Esq., for Claimant Robert Mabey, Esq., for Defendant ISSUE: Is Claimant's right shoulder injury causally related to his March 1, 2000 work injury? EXHIBITS Joint Exhibit I: Medical records Claimant's Exhibit 1: Dr. Davignon report, March 8, 2008 Defendant's Exhibit A: Physical therapy evaluation, December 31, 2001 Defendant's Exhibit B: Dr. Davignon permanency evaluation, August 20, 2002 Defendant's Exhibit C: Functional Capacity Evaluation, February 5, 2003 Defendant's Exhibit D: Functional Capacity Evaluation, January 30, 2004 Defendant's Exhibit E: Dr. Knorpp curriculum vitae Defendant's Exhibit F: Dr. Knorpp report, April 3, 2007 Defendant's Exhibit G: Dr. Ziegelman records, March 2003-December 2004 Defendant's Exhibit H: Physical therapy and Dr. Abate office notes, April-July 2005 Defendant's Exhibit I: Physical therapy evaluation, February 22, 2006 Defendant's Exhibit J: Dr. Ziegelman deposition, April 13, 2011 CLAIM: Temporary total disability benefits pursuant to 21 V.S.A. §642 Medical benefits pursuant to 21 V.S.A. §640 Permanent partial disability benefits pursuant to 21 V.S.A. §648 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 an 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. Judicial notice also is taken of the Commissioner's prior decision in this claim, Methany v. Velan Valve andBouyea-Fassetts, Opinion No. 41-99WC (September 21, 1999). Claimant's Previous Compensable Injuries 3. In early 1994 Claimant injured his lower back while employed for Velan Valve. He was diagnosed with an acute lumbar muscle strain with radiculitis. The injury was deemed compensable and Velan Valve paid workers' compensation benefits accordingly. 4 .In April 1997 Claimant reinjured his back while working for Defendant's predecessor, Bouyea-Fassetts. Following a formal hearing, the Commissioner determined that the injury was an aggravation, and ordered Defendant to pay workers' compensation benefits. 5. On March 1, 2000, while still employed by Defendant, Claimant again reinjured his lower back when he slipped in some sugar water. Defendant accepted the injury as compensable. Claimant's December 2000 Injury 6. As a result of his March 2000 injury Claimant suffered from radicular symptoms in his left leg, including weakness. On December 8, 2000 Claimant's left leg gave out while he was carrying two oscillating fans to a storage shed at his home. Claimant then fell forward, still holding the fans. He hit his nose on a table and snapped his head back. His left arm caught on a lawn mower and his right arm struck shelves. 7. Immediately after falling, Claimant went to the Fletcher Allen Health Care emergency room for treatment. The emergency room physician's notes reflect that Claimant reported moderate neck stiffness and muscle pain "in his shoulders." 8. On December 11, 2000 Claimant went to see his primary care physician, Dr. Ziegelman, for the symptoms resulting from his fall three days earlier. Dr. Ziegelman's office note reflects that Claimant complained of left shoulder pain, but does not mention any complaints at all as to the right shoulder. 9. In August 2001, Dr. Ziegelman referred Claimant to Dr. Abate, an orthopedic surgeon, for treatment of his increasingly painful left shoulder. At his first visit, Dr. Abate examined both of Claimant's shoulders. Claimant credibly testified that he told Dr. Abate from the very beginning that he had injured both his left and his right shoulder in the December 2000 fall, and that both had been causing him pain ever since. 10. Dr. Abate diagnosed Claimant with both labral and rotator cuff tears in his left shoulder, as well as subacromial impingement and arthritis in the joint. Claimant underwent surgical repair on December 6, 2001. While his left shoulder healed from this surgery Claimant had to rely solely upon his right arm to perform all activities of daily living. 11. In the course of the December 2001 left shoulder surgery Dr. Abate also performed a distal clavicle excision. The purpose of this procedure was to address the pre-existing arthritis in the joint, thus reducing the risk of continued pain and enhancing the possibility of a successful surgical outcome. 12. Defendant accepted the December 2000 fall as causally related to Claimant's compensable March 2000 work injury and paid workers' compensation benefits accordingly. These included permanency benefits for a 12% whole person impairment referable to Claimant's left shoulder injury. 13. In February 2003 Defendant's bakery closed and Claimant was laid off. Soon thereafter, he was offered a job in Defendant's shipping department. Prior to taking this job, Claimant underwent a functional capacity evaluation. The evaluation assessed Claimant with a medium duty work capacity and concluded that he could safely perform the...