36-10WC. Christine Erickson v. Kennedy Brothers, Inc.

• Court: Vermont

Vermont Workers Compensation 2010. 36-10WC. Christine Erickson v. Kennedy Brothers, Inc Christine Erickson v. Kennedy Brothers, Inc.(December 14, 2010)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 36-10WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Valerie Rickert Acting CommissionerState File No. S-09163OPINION AND ORDERHearing held in Montpelier, Vermont on April 26 and August 18, 2010 Record closed on October 8, 2010APPEARANCES:Mary Kirkpatrick, Esq., for Claimant William Blake, Esq., for DefendantISSUES PRESENTED: 1. Was Claimant's L4-5 disc herniation causally related to her November 23, 2001 compensable work injury? 2. If yes, to what workers' compensation benefits is Claimant entitled? EXHIBITS: Joint Exhibit I: Medical records Claimant's Exhibit 5: Medical Discussion Paper, Limping and Back Pain Claimant's Exhibit 12: Curriculum vitae, Richard Levy, M.D. Claimant's Exhibit 13: List of Dr. Levy's prior testimony Claimant's Exhibit 14: Dr. Levy's patient ledger Claimant's Exhibit 15: Letter from Marge McCluskey to Dr. Levy, October 28, 2008 Claimant's Exhibit 16: Dr. Levy report, November 3, 2008 Claimant's Exhibit 17: Letter from Dr. Levy to Attorney Blake, July 23, 2009 Claimant's Exhibit 20: Invoice of attorney fees and costs Claimant's Exhibit 21: Contingency Fee Agreement Claimant's Exhibit 22: Dr. Davignon Independent Medical Evaluation, 01/11/06 Claimant's Exhibit 23: Medical bills chart CLAIM: Temporary total disability benefits pursuant to 21 V.S.A. §642 Medical benefits pursuant to 21 V.S.A. §640 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 her 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. Claimant's November 2001 Work Injury and Subsequent Medical Course 3. On November 23, 2001 Claimant was at work, assisting her employer to string outdoor Christmas lights, when she caught her right leg in a stepladder and fell. Claimant sustained a severe tibial plateau fracture, which required two surgeries to repair. Defendant accepted the injury as compensable and paid workers' compensation benefits accordingly. 4.The injury caused permanent trauma to Claimant's right knee. It aches, lacks full range of motion and feels weak. As a result of these deficits, Claimant moves her body differently than she did previously, consistently leaning to her left and favoring her right side. She walks up and down stairs one step at a time, always leading with her left foot rather than alternating with her right. She cannot bend, squat or twist properly. Even when sitting or driving, she twists her core and cocks her weight more to her left side. 5. Because Claimant's right knee lacks full extension, she sometimes "toe walks," meaning that she completes her stride with her right heel still slightly above the ground. This gait abnormality is subtle; Claimant herself is not always aware that she is doing it. Her mother has observed it, as have some, but not all, of the physicians who have examined Claimant over the course of the past several years. It fluctuates in degree with the time of day (worse in the morning and in the evening) and the weather. It also worsens when Claimant is particularly fatigued, as after a long day spent standing or walking. 6. In December 2003 Claimant fractured her femur when her right knee gave out while descending some stairs. Defendant accepted this injury as compensable and paid workers' compensation benefits accordingly. 7. In November and December 2005 Claimant experienced two episodes of low back pain, one apparently prompted by having slept in a propped up position due to a cold, the other by lifting a bag of cat litter. Claimant had no prior history of low back pain. Following these episodes, Claimant's family physician, Dr. Hoffman, and her treating orthopedic surgeon, Dr. Kristiansen, both determined that her abnormal gait pattern was at least partly to blame for her low back pain. Defendant's independent medical evaluator, Dr. Davignon, concurred. All three recommended a course of physical therapy to emphasize back stretching, posture and gait training. Claimant underwent this therapy in early 2006, and Defendant bore the cost as causally related to her original 2001 work injury. Claimant's Medical Treatment in February 2008 and Thereafter 8. Claimant is a 25-year cigarette smoker. She has a history of chronic bronchitis and also of rib fractures after coughing. 9. On February 6, 2008 Claimant presented to her family physician with a complaint of right-sided rib pain that had begun two days earlier, after she had coughed hard while twisting at the same time. Although Claimant suspected that she had fractured a rib, x-rays were negative. 10. More than a month later, on March 16, 2008 Claimant presented to the Porter Hospital Emergency Room complaining of left-sided low back pain that she reported had been present "for a couple of weeks." Claimant advised that she had had "quite a cough," for which she had seen her family physician "off and on for the last few months," but that the pain associated with that had been on the right side, whereas her current pain was on the left. Claimant was diagnosed with muscular back pain and referred for a course of physical therapy. 11. Claimant's physical therapist, Michael DiPalermo, evaluated her on March 19, 2008...