49-02WC. Patch v. H.P. Cummings.

• Case Date: December 06, 2002
• Court: Vermont

Vermont Workers Compensation 2002. 49-02WC. Patch v. H.P. Cummings Kirk Jon Patch v. H.P. Cummings/Liberty MutualDecember 6, 2002STATE OF VERMONT DEPARTMENT OF LABOR AND INDUSTRY Opinion No. 49-02WCBy: Margaret A. Mangan Hearing Officer For: R. Tasha Wallis Commissioner State File No. X-6884 Hearing held in Montpelier on May 14, 2002 Record closed on July 10, 2002 APPEARANCES: Mark H. Kolter, Esq. for the claimant Keith J. Kasper, Esq. for the defendantISSUES: 1.

Is Claimant's requested handicapped accessible van a reasonable and necessary medical service or supply?

2.

Are Claimant's requested modifications to his parents' home reasonable and necessary medical services or supplies?

3.

If either the van or home modifications are deemed compensable, what is the extent of the obligation, which Defendant owes to Claimant and what, if any, interest in these items is retained by Defendant?

4.

Is Claimant's request for reimbursement for services performed by his mother compensable as reasonable medical or nursing services or supplies? If so, what is the value of the Claimant's mothers reasonable medical or nursing services?

5.

What, if any, portion of Claimant's claim is barred by the statute of limitations?

6.

What is the proper methodology for calculating Claimant's current and future entitlement to weekly permanent total disability benefits?

7.

Is Mr. Patch entitled to receive cost of living adjustments on or after July 1, 1996, the date his compensation rate reached the equivalent of his average weekly wage?

8.

Is Mr. Patch entitled to receive a lump sum payment of his permanent total disability indemnity benefits?

9.

What remedies are available to Mr. Patch considering his complaints of slow claims adjustment service by Liberty Mutual Insurance Company?

10.

Is Mr. Patch entitled to attorney's fees and litigation costs and, if so, how much is due?

CLAIMANT'S EXHIBITS: 1.

Medical Records

2.

R. Heaps's calculation of value of serves of Ms. Patch

3.

Videotape re: proposed renovations and Rehabilitation Engineering Site visit report.

4.

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5.

Gerald Weisman report on powered wheelchair and lift-equipped van, dated 2/19/02

6.

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7.

Rehabilitation Engineering site visit, dated 12/20/01

8.

Transcript of deposition of Carol Talley, M.D. dated 4/30/02

9.

Functional capacity evaluation ("FCE") 5/19/99

10.

FCE 3/20/02

11.

Curriculum vitae of Diane Aja

12.

Curriculum vitae of Carol Talley, M.D.

13.

Letter b Linda Peet, P.T., 12/21/000

14.

Table: Claimant's determination of financial impact of not receiving annual cost of living adjustments

15.

Memorandum on Nursing Home and Assisted Care Facilities

16.

Letter of Myron Smith 12/7/00

17.

Letter of Myron Smith 12/22/00 with Dr. Kiely letter

18.

Curriculum vitae of Gerald Weisman, M.S., A.T.P., R.E.T.

19.

Bid from Chris Nichols 3/02

DEFENDANT'S EXHIBITS: A: Eagle Builders, Inc., response B: Liberty Mutual Material 2001 C. Intermediate bid STIPULATION OF FACTS: 1.

On October 1, 1985 claimant suffered a personal injury arising out of and in the course of his employment. The parties agree that as a result the Claimant is permanently and totally disabled.

2.

On October 1, 1985 Claimant was an employee of Defendant within the meaning of the Vermont Workers' Compensation Act ("Act").

3.

On October 1, 1985 Defendant was an employer of Claimant within the meaning of the Act.

4.

On October 1, 1985 Claimant's average weekly wage was $222.55, resulting in an initial compensation rate of $148.35.

5.

Claimant's compensation rate reached his average weekly wage on July 1, 1996.

FINDINGS OF FACT: On the day of his injury, October 1, 1985, Mr. Patch was first knocked down then run over repeatedly by a forklift operated by a co-employee. His legs, pelvis left arm and shoulder were crushed. Eventually, after more than a dozen surgeries, Claimant's right leg was completely amputated at the hip on March 20, 1992. In 1995 at the request of the insurance company, Dr. Peterson assessed Claimant's permanency and concluded that Claimant had a 39% impairment of the left leg. Claimant lives in Elmore, Vermont, a rural community, with his parents. Claimant drives himself to Copley Hospital, a four-mile trip, three times per week for physical therapy. He also drives to Burlington, a 52-mile trip, for medical appointments, supplies and personal business. Claimant also has an overuse syndrome in his upper extremities from having been completely dependent on their use for mobility in a manual wheelchair for years. Claimant is essentially totally wheelchair dependent. Because of his overuse syndrome, a manual wheelchair is no longer feasible to meet all of Claimant's mobility needs. A powered wheelchair would relieve the dependence on the Claimant's upper extremities, whose strength and function are being compromised with constant manual wheelchair use. However, an electric wheelchair cannot be transported in a conventional automobile because it cannot fold in the way a manual wheelchair can. And it cannot be lifted into a vehicle because of its weight. Consequently, a lift-equipped van is necessary. Claimant's primary care physician, Philip Kiely, M.D., his Physiatrist, Carol Talley, M.D. and occupational therapist, Diane Aja, all opined, and I find, that a powered wheelchair is a medical necessity for the Claimant. The immediate need is to relieve the constant stress on overused upper extremities that tests show have diminished in strength over the last three years and to make the transfer to a vehicle safer. In the event Claimant suffers an acute illness, such as flu, his dependence on a power wheelchair will be absolute. In the house Claimant shares with his parents, he has an upstairs bedroom, with no second floor egress. His only egress is an electric "Stair Glide" into which he must transfer from a manual wheelchair upstairs to the glide and then to another manual wheelchair downstairs. He then must negotiate a narrow hallway into the kitchen in his wheelchair, through the kitchen, and out the home's back door. In the event of a power outage, he "bumps" down the stairs. Claimant cannot access the bathroom or kitchen facilities in a reasonably convenient manner because of tight space and the location of fixtures. Laundry facilities are in the basement, which is inaccessible to the Claimant. At the present time, Claimant's mother does his laundry. Home modifications proposed by the Claimant's Rehabilitation Engineer, Gerald Weisman are: 1) Move Claimant's bedroom to where front porch is now; 2) add a bathroom large enough for wheelchair with safe access to sink and bathtub; 3) install a ramp in front of the house from the Claimant's bedroom for the Claimant's safe egress; 4) move laundry facilities upstairs so that Claimant can do his own laundry; 5) install a driveway paving/heated snowmelt system; 6) replace the heating system; 7) install a full basement; 8) move the electrical box from basement to first floor; 9) provide a generator to be used in the event of a power outage; 10) Enclose the mud room for Claimant's scooter. The total cost of the recommendations by Mr. Weisman is $178, 690.44. If Claimant were to move out of his home into an institutional setting, the cost would be between $43,800 per year for assisted-care living to at least $59,495 per year for a nursing home. Claimant's parents own the house they share with him. They will not accept a mortgage on the property. As an only child, Claimant will inherit the house on his parents' deaths. Since his accident, Claimant's mother has helped him with his medications, changed wound dressings, provided sponge baths and linen changes when he was recovering from his many operations. Since the accident, Claimant's mother has provided necessary housekeeping services, including laundry, meal preparation, food shopping and housecleaning. She also has driven him to medical appointments, renewed his prescriptions and cleaned the stair glide he uses to ascend the stairs from the ground floor to his bedroom. Mrs. Patch estimates that she worked at least 27.5 hours per week on the Claimant's behalf after his hip disarticulation surgery on March 20, 1992. Dr. Kiely opined that the services Mrs. Patch provided were medically necessary to enable Claimant to reside at home in a safe and healthful manner given his physical disabilities. Nursing services in Lamoille County cost $15 per hour for the local Home Health Agency. An individual nurse earns $9 per hour. On or about June 26, 2000 Claimant filed a Notice and Application for Hearing seeking reimbursement for Mrs. Patch's attendant care and nursing services. Claimant has been receiving his "Average Weekly Wage" of $222.55 per week since July 1, 1996. If the average yearly increase of consumer goods is 2.67 per cent, the value of the Claimant's weekly will fall to $100.05 by 2025, the Claimant's estimated life expectancy. Claimant submitted evidence of his contingency fee agreement with his attorney and detailed bills and expenses for the time spent in this case. Attorney hours total 574.5 and litigation expenses total $17,129, plus $1,430 for Dr. Kiely, ($4,208.67+ $3,641.12) for Myron Smith, and $6,297.50 for Chris Nichols. DISCUSSION AND CONCLUSIONS OF LAW: Powered Wheelchair, Van And Home Modifications 1.

Whether an employer or its insurance carrier may be required to pay for home modifications or a specialized van to

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