33-10WC. William Boyd v. Kennametal, Inc.

• Court: Vermont

Vermont Workers Compensation 2010. 33-10WC. William Boyd v. Kennametal, Inc William Boyd v. Kennametal, Inc.STATE OF VERMONT DEPARTMENT OF LABOR(November 10, 2010)Opinion No. 33-10WCBy: Sal Spinosa, Esq. Hearing OfficerFor: Valerie Rickert Acting CommissionerState File No. S-14574OPINION AND ORDERHearing held in Montpelier, Vermont on July 26, 2010 Record closed on September 1, 2010APPEARANCES:Ronald Fox, Esq., for Claimant Glenn Morgan, Esq., for DefendantISSUE PRESENTED: Is Claimant entitled to permanent total disability benefits as a consequence of his compensable work-related injury? EXHIBITS: Joint Exhibit I: Medical and vocational rehabilitation records Joint Exhibit II: Deposition of Peter Upton, M.D., June 10, 2009 CLAIM: Permanent total disability benefits pursuant to 21 V.S.A. §644 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 contained in the Department's file relating to this claim. Claimant's Work Injury 3. Claimant, who is now 42 years old, worked for Defendant as an industrial electrician. On January 31, 2002 he slipped off a ladder. Initially he experienced pain in the right shoulder region. He treated with Dr. Lichtenstein, a family practitioner, and returned to work a week later. 4. Soon thereafter the pain shifted to his lower back and sacrum region. Claimant subsequently was diagnosed with a disc herniation at L4-5 requiring surgery. 5. Defendant accepted Claimant's injury as compensable and paid workers' compensation benefits accordingly. Claimant's Surgeries 6. On March 20, 2003 Dr. Lon Howard, an orthopedic surgeon, performed an L4-5 fusion. The surgery was performed posteriorly and included the use of metal hardware secured by screws and a bone graft. Claimant was in good post-operative condition and felt relief for six to eight weeks after his surgery. 7. As his activity level increased, however, so did Claimant's back pain. He described an unbearable band of pain across his lower back, worse in the morning than at night. Claimant judged his back pain to be more intense after the surgery than it had been before, and getting worse. His pain was heightened by sitting, standing, walking and physical therapy. Lying down, massage, hot baths and the use of a back brace provided some pain relief. 8. In April 2004 Claimant consulted with Drs. Ames and Banco, both orthopedic surgeons, about further treatment. Both recommended a second surgery. According to Dr. Banco, Claimant's first surgery had resulted in a failed fusion. In addition, the hardware screws had loosened, and therefore the supporting hardware would have to be removed and replaced. 9. Orthopedic surgeon Robert Monsey performed Claimant's second surgery on May 3, 2004. This surgery involved both an anterior re-fusion at L4-5 and a posterior fusion at L5-S1. 10. Claimant saw Dr. Monsey post-operatively for pain around his incisions. Dr. Monsey found nothing abnormal about Claimant's complaints and prescribed medication and physical treatment. 11. On February 1, 2005 Claimant saw Dr. Monsey again, this time complaining of back and leg pain worse than prior to his first surgery. Dr. Monsey determined that the fusion was mending appropriately but that Claimant exhibited ongoing pain, psychosocial issues, narcotic pain-killer dependence and functional disability. He noted that Claimant had been out of work for three years and had a 10% chance of ever returning. He explained to Claimant that it was unlikely that he would ever be pain free and discussed further medical options. 12. On May 26, 2005 Dr. Borrazzo, a general surgeon, confirmed the presence of an eventration(fn1) of Claimant's abdominal wall at site of his anterior surgical incision, causing a protrusion of intra-abdominal contents. Dr. Borrazzo determined that nerve damage from Claimant's second surgery caused this condition. 13. Dr. Borrazzo performed surgery to repair this condition on June 1, 2005. The surgery, similar to a hernia repair, was followed by ten months of continual draining from four drainage tracts. On December 13, 2006 Dr. Borrazzo performed a further abdominal surgery to debride the wound and promote healing. He followed this with a similar procedure in 2007, as Claimant's abdominal wound continued to require further surgical attention. End Medical Result and Permanency Ratings 14. At Defendant's request, in June 2005 Claimant underwent an independent medical evaluation with Dr. Upton, a neurosurgeon. Dr. Upton reviewed Claimant's medical records, conducted a physical examination and made the following observations:

* Dr. Upton confirmed that after two back surgeries Claimant was reporting low back pain that was far more severe than what he had reported prior to his first surgery. Virtually any movement, including walking, exercise or physical therapy, exacerbated the pain. Claimant reported that he was able

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