31-10WC. Scott Myrick v. Ormond Bushey and Sons.

• Court: Vermont

Vermont Workers Compensation 2010. 31-10WC. Scott Myrick v. Ormond Bushey and Sons Scott Myrick v. Ormond Bushey and Sons(October 5, 2010)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 31-10WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Valerie Rickert Acting CommissionerState File No. Z-1465OPINION AND ORDERHearing held in Montpelier, Vermont on May 9 and May 26, 2010 Record closed on August 25, 2010APPEARANCES:Christopher McVeigh, Esq., for Claimant Steven Wright, Esq., for DefendantISSUES PRESENTED: 1.Did Claimant suffer a compensable injury arising out of and in the course of his employment for Defendant on November 8, 2006? 2.If yes, are the costs related to Dr. Bucksbaum's proposed treatment plan compensable under 21 V.S.A. §640(a)? 3.Is Claimant's claim for workers' compensation benefits barred for failure to make a timely claim under 21 V.S.A. §656(a)? EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 1: Supervisor's Report of Accident Claimant's Exhibit 3: November 2, 2006 memo Defendant's Exhibit A: Photograph of excavator Defendant's Exhibit B: Photograph of excavator Defendant's Exhibit C: Photograph of excavator Defendant's Exhibit E: Daily time sheets, 11/8/06-11/16/06 Defendant's Exhibit F: Claimant's handwritten diagram of accident site CLAIM: Medical benefits pursuant to 21 V.S.A. §640(a) 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 contained in the Department's file relating to this claim. 3.Claimant worked for Defendant as a construction superintendent. His duties included supervising work crews and generally overseeing and directing activities at the construction site. The November 2006 Backhoe Incident 4.On the morning of November 8, 2006 Claimant was supervising a crew that was engaged in the process of installing water and sewer service in a new housing development. 5.Claimant testified that he was in a trench, watching as Rick Lafountain, the backhoe operator, worked to prepare it for laying some pipe. According to Claimant, the pipe to be laid was from the main sewer line to a newly constructed house. Because it measured only 4 inches in diameter and weighed only 5 or 6 pounds, once the trench was prepared the pipe could be lowered into place and laid by hand. The trench, which measured approximately 15 feet long, 6 feet wide and 8 to 10 feet deep, already had been dug. Claimant testified that Mr. Lafountain's task was merely to use the backhoe to remove a bit more dirt from the trench so that the drainage stone underlying the pipe could be installed. 6.Claimant testified that as he was climbing up the bank to exit the trench, the backhoe's "stick" brushed him from behind and pushed him down.(fn1) Claimant described being pushed into the bank for a few seconds, "like a frog squatting to jump." Claimant then scrambled up out of the hole. 7.Claimant testified that immediately after exiting the trench he felt pain and pressure in the area of his hips and groin. He stretched and squatted in an attempt to relieve the pain. Claimant testified that as he did so, Dean Henry, Defendant's co-owner and...