37-10WC. Terrance Bortell v. Vermont Composites, Inc.

• Court: Vermont

Vermont Workers Compensation 2010. 37-10WC. Terrance Bortell v. Vermont Composites, Inc Terrance Bortell v. Vermont Composites, Inc.(December 29, 2010)STATE OF VERMONT DEPARTMENT OF LABOROpinion No. 37-10WCBy: Phyllis Phillips, Esq. Hearing OfficerFor: Valerie Rickert Acting CommissionerState File No. X-02179OPINION AND ORDERHearing held in Montpelier, Vermont on May 3rd, May 4th and September 1st, 2010 Record closed on October 28, 2010APPEARANCES:James Dingley, Esq., for Claimant James O'Sullivan, Esq., for DefendantISSUES PRESENTED: 1. Is Claimant permanently and totally disabled as a result of his October 11, 2005 work-related injury? 2. If yes, to what workers' compensation benefits is he entitled? EXHIBITS: Joint Exhibit I: Medical records Joint Exhibit II: Supplemental medical records Joint Exhibit III: Addendum medical records, University Disability Consortium Joint Exhibit IV: Village Primary Care records Joint Exhibit V: Supplemental medical records (Drs. Wing and Hearst) Claimant's Exhibit 1: Curriculum vitae, John Howland, M.D. Claimant's Exhibit 2: Curriculum vitae, Daniel Wing, M.D. Claimant's Exhibit 3: Curriculum vitae, Erin Boxer Claimant's Exhibit 4: Curriculum vitae, David Mellinger, Psy.D. Claimant's Exhibit 6: Deposition of Jack Bopp, M.S., April 23, 2010 (exhibits attached) Claimant's Exhibit 8: Work Capacity Rating (Dr. Howland), April 26, 2010 Claimant's Exhibit 9: Work Capacity Rating (Dr. Mellinger), April 22, 2010 Defendant's Exhibit A: Curriculum vitae, Brian Mercer, M.D. Defendant's Exhibit B: Curriculum vitae, Hyman Glick, M.D. Defendant's Exhibit C: Curriculum vitae, Melvyn Lurie, M.D. Defendant's Exhibit D: Curriculum vitae, Clayton Prinson Defendant's Exhibit E: Vocational Rehabilitation Assessment Report, July 1, 2010 CLAIM: Permanent total disability benefits pursuant to 21 V.S.A. §645 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. Defendant manufactures carbon fiber materials and components for use in the automotive industry. Claimant worked as a lay-up technician on the Corvette fender line. One aspect of the job involved loading large, heavy parts onto an autoclave cart, then wheeling the cart by hand to another area on the factory floor. When loaded, the cart weighed thousands of pounds. It had grocery cart-type wheels that allowed it to be pushed forwards and backwards, but it was difficult to maneuver in any other direction. Claimant's Work Injury and Subsequent Medical Course 4. On October 11, 2005 Claimant was assisting his team leader to guide an autoclave cart to the offloading area. As he was pushing the cart, Claimant observed that it was dangerously close to hitting an employee who was working nearby. Claimant pulled hard on the cart to stop it from doing so. He felt a sharp, stabbing pain in the front part of his right shoulder and deep under his right armpit. 5. Claimant reported the injury to his supervisor and the next day, sought medical treatment. Defendant accepted the injury as compensable and began paying workers' compensation benefits accordingly. 6. Almost from the moment the injury occurred, Claimant experienced severe pain in and about his right shoulder. As one early treatment provider reported, any movement at all would bring tears to his eyes and "drop me to my knees." Claimant could not get comfortable in any position, had difficulty sleeping and required assistance with such activities of daily living as bathing, dressing and cooking. 7. Initially Claimant treated conservatively with physical therapy, injections, narcotic pain medications and muscle relaxants. When his symptoms failed to respond, in May 2006 he underwent arthroscopic surgery to repair a partial thickness rotator cuff tear and both superior and anterior labral tears. 8. Claimant's pain failed to abate post-surgery. To the contrary, despite additional courses of physical therapy, various joint injections and numerous nerve blocks, in the four years since it has continued virtually unchecked. 9. Neither Claimant's treating physicians nor Defendant's independent medical examiners are fully able to explain the source of his intractable pain. All agree that there likely is a neuropathic component to his injury. Some have questioned whether there might still be some internal derangement or other structural damage in or around Claimant's shoulder, but diagnostic testing has not revealed any. Claimant has undergone numerous specialist evaluations, including one by orthopedic surgeons at Brigham and Women's Hospital in Boston and one by an orthopedic surgeon at Dartmouth Hitchcock Medical Center, and all have concluded that there is no surgical solution for his problem. 10. Following an independent medical evaluation with Dr. Ross, an orthopedist, in April 2008 Claimant was declared to be at an end medical result for his work injury. On those grounds, the Department approved Defendant's discontinuance of temporary total disability benefits effective November 10...