26-11WC. Anthony Pelissier v. Hannaford Brothers.

• Court: Vermont

Vermont Workers Compensation 2011. 26-11WC. Anthony Pelissier v. Hannaford Brothers Anthony Pelissier v. Hannaford Brothers(September 9, 2011)STATE OF VERMONT DEPARTMENT OF LABORAnthony Pelissier Opinion No. 26-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. AA-3847OPINION AND ORDERHearing held in Montpelier, Vermont on November 8, 2010 and April 15, 2011 Record closed on May 26, 2011APPEARANCES: Christopher McVeigh, Esq., for ClaimantJohn Valente, Esq., for Defendant ISSUES PRESENTED: 1. Was Claimant's May 2010 fusion surgery reasonable, necessary and causally related to his May 15, 2009 work injury? 2. Should Defendant's contribution to Claimant's group health insurance premium be included in his average weekly wage and compensation rate calculation? EXHIBITS: Joint Exhibit I: Medical records Joint Exhibit II: Additional medical records Claimant's Exhibit 1: Health insurance premium contributions, 2008-2010 Claimant's Exhibit 2: Letter to Claimant, 1/1/2010 Defendant's Exhibit A: Deposition of James Forbes, M.D., April 1, 2011 CLAIM: Temporary total disability benefits pursuant to 21 V.S.A. §642, recalculated after February 27, 2010 to include the value of Defendant's contribution to Claimant's group health insurance premium; All workers' compensation benefits to which Claimant is deemed entitled as a consequence of his May 2010 fusion surgery; 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's Workers' Compensation Act. 2. Judicial notice is taken of all relevant forms and correspondence contained in the Department's file relating to this claim. 3. Claimant began working for Defendant in 2004, first as a night crew associate and later as a frozen foods supervisor. His primary duty was stocking shelves. This involved breaking down pallets of merchandise, loading cases of product onto carts, pushing and pulling the carts to the appropriate aisle, and then unloading the product onto the shelves. The work was physically demanding, and entailed a significant amount of lifting, bending, walking and kneeling. Claimant's Prior Medical History 4. Claimant's medical history includes treatment for two episodes of low back pain prior to May 15, 2009. The first incident occurred in September 2006, when he strained his back while boxing. His symptoms were not disabling, and resolved quickly with ibuprofen and stretching. 5. Claimant treated again for low back pain, with symptoms radiating primarily into his right hip, beginning in October 2008. There was no inciting event or trauma, work-related or otherwise. A December 2008 MRI revealed some degenerative disc disease, and also an old pars defect, or stress fracture, in his L5 lumbar vertebra. Fractures of this type render unstable a specific segment of the spine. The condition, also known as spondylolysis, is not uncommon. Most cases are thought to be congenital in origin, and many never become symptomatic at all unless exacerbated, either by specific trauma or by age-related degeneration. 6. It is unclear from the medical records whether the symptoms Claimant experienced in October 2008 were causally related to his pre-existing pars defect. Although he later alleged that they were either caused or aggravated by his work activities, he never reported them to Defendant as such. Nor does the medical evidence establish any work-related connection. In any event, after a course of physical therapy and injections, Claimant's symptoms resolved. By February 2009 he had resumed his regular activities, both recreationally and at work. Claimant's May 2009 Work Injury and Subsequent Course 7. On May 15, 2009 Claimant was breaking down a pallet of merchandise. He bent over to pick up a case of cat litter weighing thirty to forty pounds and immediately felt a tearing sensation in his left lower back. The pain dropped him to the floor, and it was a few minutes before he could stand. It radiated down his left leg and caused numbness and tingling into his left foot. Claimant reported the injury to his supervisor, and then drove home. His wife took him to the hospital emergency room for treatment. 8. Defendant accepted Claimant's injury as compensable and began paying workers' compensation benefits accordingly. 9. Claimant treated conservatively for his injury, which initially was diagnosed as a lumbar strain. Unfortunately, he failed to improve with physical therapy, and was unable to complete a multidisciplinary work hardening program due to his ongoing pain complaints. A course of injections also...