33-11WC. Robert Gadwah v. Ethan Allen.

• Court: Vermont

Vermont Workers Compensation 2011. 33-11WC. Robert Gadwah v. Ethan Allen Robert Gadwah v. Ethan Allen(October 20, 2011)STATE OF VERMONT DEPARTMENT OF LABORRobert Gadwah v. Ethan AllenOpinion No. 33-11WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Anne M. Noonan CommissionerState File No. P-09814OPINION AND ORDERHearing held in Montpelier, Vermont on April 1, 2011 Record closed on June 22, 2011APPEARANCES:William Skiff, Esq., for Claimant Wesley Lawrence, Esq., for DefendantISSUE: Was Claimant's January 2009 fusion revision surgery causally related to his 1999 work injury? EXHIBITS Joint Exhibit I:Medical records Claimant's Exhibit A: New Hampshire Department of Labor decision, Gadwah v. WeirTree Farms, Case #63734 Claimant's Exhibit B:Curriculum vitae, Andrew Forrest, M.D. Defendant's Exhibit 1A: Letter to Attorneys Skiff and Lawrence, July 28, 2009 Defendant's Exhibit 1B: Letter to Attorneys Fox and Seeley, February 23, 2008 Defendant's Exhibit 1C: Letter from Claimant, June 4, 2007 Defendant's Exhibit 1D: Letter to Attorney Lawrence, March 18, 2010 Defendant's Exhibit 2Functional Capacity Evaluation, June 19, 2002 Defendant's Exhibit 3: Functional Capacity Evaluation, February 9, 2005 Defendant's Exhibit 4: Correspondence from Dr. Levy, April 25, 2010 and June 9, 2009 Defendant's Exhibit 5: Letters to Claimant, February 29 and October 16, 2008 Defendant's Exhibit 6: Weir Tree Farms website information Defendant's Exhibit 7: Weir Tree Farms payroll records Defendant's Exhibit 8: Social Security File, March 2011 (CD) Defendant's Exhibit 9: Formal Hearing Audio Transcript, March 2011 (CD) Defendant's Exhibit 10: Medical records (CD) Defendant's Exhibit 11: Deposition of Claimant, April 16, 2010 CLAIM: All workers' compensation benefits to which Claimant proves his entitlement as a consequence of his January 29, 2009 surgery; Interest, costs and attorneys 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 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 has worked at manual labor for his entire life. He completed the ninth grade in school. By his own characterization, he does not read or write very well. Any correspondence between Claimant and others related to this claim was written by his wife but signed by Claimant. Claimant's 1999 Work Injury, Subsequent Medical Course and 2001 Fusion Surgery 4. Claimant worked at Defendant's Beecher Falls plant from 1989 until approximately 2002. His duties there consisted of pulling boards and piling lumber. The work required constant lifting and twisting. 5. On October 12, 1999 Claimant injured his lower back at work. Defendant accepted the injury as compensable and began paying workers' compensation benefits accordingly. 6. Claimant was diagnosed with herniated discs at both L4-5 and L5-S1. Initially he treated conservatively for his injury. His symptoms, which included both low back pain and pain radiating down his legs, failed to abate. In February 2000 his treating orthopedic surgeon, Dr. Howard, surgically removed the herniated disc material at both levels. 6. Claimant's symptoms failed to resolve with surgery. He continued to complain of low back pain radiating down both legs, with swelling and muscle spasms as well. Diagnostic imaging studies in March 2001 revealed recurrent disc herniations at L4-5 and L5-S1. As treatment, Dr. Howard recommended a two-level disc fusion. 7. Claimant underwent Dr. Howard's disc fusion surgery on May 17, 2001. Defendant acknowledged that the treatment was reasonable, necessary and causally related to Claimant's 1999 work injury, and therefore paid workers' compensation benefits accordingly. 8. Unfortunately, Claimant never achieved complete relief of his symptoms following the May 2001 fusion surgery. In fact, as he credibly testified, both his low back and leg pain continued as before. Claimant managed his pain as best he could, with prescription pain medications and soaking baths. He also reduced his activity level, particularly as to recreational pursuits that he had enjoyed previously, such as hunting, fishing and snowmobiling. 9. The medical records corroborate at least some of Claimant's ongoing complaints during this period, though perhaps not the same level of activity restrictions. To the contrary, functional capacity evaluations in both 2002 and 2005 determined that Claimant was capable of performing full time work at a heavy physical demand level. 10. Claimant worked at a variety of jobs following the 2001 fusion surgery, none for any extended period of time. He worked as a...