30-10WC. Arnold Griggs v. New Generation Communication.

• Court: Vermont

Vermont Workers Compensation 2010. 30-10WC. Arnold Griggs v. New Generation Communication Arnold Griggs v. New Generation Communication(October 1, 2010)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 30-10WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Valerie Rickert Acting CommissionerState File No. P-15250OPINION AND ORDERHearing held in Montpelier, Vermont on April 30 and June 25, 2010 Record closed on August 30, 2010APPEARANCES:Christopher McVeigh, Esq., for Claimant Bonnie Shappy, Esq., for DefendantISSUES PRESENTED: 1.To what additional workers' compensation benefits is Claimant entitled as a consequence of his December 1999 work-related injury? 2.What was the amount of Defendant's "holiday" under 21 V.S.A. §624 following Claimant's settlement of the third-party claim that arose out of his December 1999 motor vehicle accident? 3.Is Defendant entitled to an additional "holiday" under 21 V.S.A. §624 as a consequence of Claimant's settlement of the third-party claim that arose out of his May 2003 motor vehicle accident? 4.Is Claimant entitled to penalties and/or interest on any benefits awarded? EXHIBITS: Joint Exhibit I: Medical records Joint Exhibit II: October 8, 2002 letter from Shirley Houghton, with attachments Claimant's Exhibit 1: September 25, 2007 letter from Attorney McVeigh to Attorney Shappy, with attachments (admitted to show notice only) Claimant's Exhibit 2: Form 2 Denial of Workers' Compensation Benefits, with attached correspondence Claimant's Exhibit 3: Carrier's activity log Claimant's Exhibit 4: May 19, 2006 letter from Attorney McVeigh to Attorney Windish, with attached Form 6 Claimant's Exhibit 5: March 2, 2009 letter from Attorney Shappy to Attorney McVeigh, with attached payment ledger Claimant's Exhibit 6: Defendant's Responses to Requests to Admit Claimant's Exhibit 7: Release by Claimant of Lucille Lawes Defendant's Exhibit A: August 19, 2004 letter from Attorney McVeigh to Richard Bolduc Defendant's Exhibit C: August 17, 2004 letter from Richard Bolduc to Attorney McVeigh, with attached Release of Workers' Compensation Lien CLAIM: Temporary total disability benefits pursuant to 21 V.S.A. §642 Permanent partial disability benefits pursuant to 21 V.S.A. §648 Penalties and interest pursuant to 21 V.S.A. §§650(e) and 664 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 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.Defendant's business involved installing communications equipment and fiber optic cable. Claimant was both an owner and the president of the corporation. As such, his job duties were quite varied. They included soliciting new accounts, traveling to job sites to evaluate and quote new jobs and performing installations. Claimant's Low Back Injuries and Medical Course 4.In March 1999 Claimant suffered an incident of acute low back pain with right-sided radiculopathy while lifting luggage during a work-related business trip. Diagnostic imaging studies revealed a small extruded L5-S1 disc herniation. This was treated with aggressive physical therapy, and by November 1999 Claimant's symptoms had nearly, though not completely, resolved. 5.In December 1999 Claimant was involved in a work-related motor vehicle accident. After that, his low back and right leg pain worsened and became persistent. This time, Claimant's symptoms failed to resolve with conservative therapy. In January 2001 he underwent L5-S1 disc surgery. Thereafter, his right leg symptoms resolved, though he continued to experience occasional low back pain. 6.Claimant reached an end medical result for the injuries referable to his December 1999 motor vehicle accident in May 2002. In October 2002 the Department approved the parties' Agreement for Permanent Partial Disability Compensation (Form 22), pursuant to which Defendant paid permanency benefits equating to an 11.5% whole person impairment. 7.Despite having been declared at end medical result, Claimant's low back and right leg symptoms continued. To address these complaints, he underwent a course of physical therapy from September through December 2002, following which he was given a home exercise program. When his pain started worsening again, in March 2003 Claimant resumed physical therapy. 8.On May 29, 2003, while en route to a physical therapy appointment, Claimant was involved in another motor vehicle accident. The force of the collision was strong enough that the airbags in Claimant's car were deployed. 9.Four days later, at his next scheduled physical therapy visit Claimant reported that he had been experiencing increased low back pain since the accident. Claimant also complained of right-sided sciatica and some left-sided symptoms as well. 10.Claimant continued his course of physical therapy throughout the summer of 2003. As had been the case prior to the May 2003 motor vehicle accident, the treatment notes document waxing and waning symptoms, sometimes precipitated by minor lifting or bending activities, sometimes apparently by nothing at all. On August 20, 2003 the therapist reported that Claimant's left-sided symptoms had resolved, and that he felt his right-sided symptoms had returned to their pre-accident baseline. 11.The medical records reflect that Claimant's low back pain and right-sided radiculopathy continued to worsen, though whether that was due in any way to the May 2003 motor vehicle accident is difficult to ascertain. Some providers, such as Dr. Weinberg, Claimant's primary care physician, appeared to view Claimant's gradually worsening symptoms as reflective of a chronic failed back syndrome causally related to his December 1999 accident and 2001 surgery. Others, such as Dr. Sengupta, a neurosurgeon, reported that Claimant himself had identified the May 2003 accident as a precipitating factor for his worsening pain. 12.Regardless of the cause, Claimant's symptoms became increasingly difficult to control, even with significant dosages of narcotic pain medications. 13.On February 1, 2006 Claimant underwent spinal fusion surgery at L5-S1, the site of his 2001 discectomy. The medical records do not document any specific work restrictions, and therefore it is unclear for how long after the surgery Claimant was disabled from working, either totally or partially. By all accounts Claimant often over-exerted himself and had to be reminded not to do too much too soon. It is likely that by mid-March 2006 he had begun working at least part-time from his home office. Claimant's wife recalled that by May 1, 2006 he had resumed more regular hours. 14.Claimant's salary at the time of his December 1999 injury was $1,500.00 per week, which entitled him to the maximum weekly compensation rate. Claimant's weekly salary for the twelve weeks prior to his February 1, 2006 fusion surgery was $1,200.00, which would have yielded an initial compensation rate of $800.40 per week. The maximum compensation rate at that time was $950.00 per week. 15.Claimant continued to receive his regular weekly salary during the period from February 1, 2006 through May 1, 2006. Expert Medical Opinions 16.In February 2004 Claimant underwent an independent medical evaluation with Dr. Bucksbaum, a physiatrist. In the context of expressing his opinion on such issues as causation, end medical result and permanency, Dr. Bucksbaum considered all three of Claimant's low back injuries - the March 1999 incident while lifting luggage and the December 1999 and May 2003 motor vehicle accidents. 17.Dr. Bucksbaum concluded that Claimant's ongoing symptoms were causally related to his December 1999 accident. He determined that Claimant had reached an end medical result and assessed a 13% whole person impairment attributable to that injury. 18.As to the impact of Claimant's May 2003 accident, Dr. Bucksbaum concluded that this incident had resulted in a lumbar strain on the opposite (left) side, which had resolved without residual impairment. 19.At Defendant's request, in June 2007 Claimant underwent an independent medical evaluation with Dr. White, a specialist in occupational medicine. As Dr. Bucksbaum had. Dr. White considered all three of Claimant's low back injuries in the context of rendering his opinion on a variety of issues. Based on his evaluation, he reached the following conclusions:

* That the initial luggage lifting incident in March 1999 likely "precipitated, aggravated or brought on the symptoms of [Claimant's] underlying disc herniation;"

*That the December 1999 motor vehicle accident resulted in "an aggravation of the underlying lumbar spine disorder;" and

*That Claimant's symptoms appeared to worsen further as a result of the May 2003 motor vehicle accident, but that this was a "temporary exacerbation," following which Claimant apparently returned to his pre-accident status.

20.When asked to comment specifically as to whether Claimant's 2006 fusion surgery was causally related to a specific injury or condition. Dr. White responded as follows:

This surgery was treatment for pain related to lumbar degenerative disc disease. It is not related to one specific injury or incident now [sic] as noted above his condition was likely aggravated by the December 1999 motor vehicle accident.

21.As a result of his fusion surgery. Dr. White determined that...