7-96WC. Lippard v. T. Copeland and Sons, Inc.

• Court: Vermont

Vermont Workers Compensation 1996. 7-96WC. Lippard v. T. Copeland and Sons, Inc Feb 5, 1996File #: B-25324 By: Barbara H. Alsop Hearing Officer For: Mary S. Hooper Commissioner Opinion #: 7-96WCRonald D. Lippard v. T. Copeland and Sons, Inc., et al.Hearing held at Montpelier, Vermont, on December 18, 1995. Record closed on January 9, 1996. APPEARANCES Steven A. Adler, Esq., for the claimant Christopher J. Whelton, Esq., for T. Copeland and Sons, Inc. Thomas P. Simon, Esq., for Jenne Brothers Jeffry W. White, Esq., for Montgomery Wire Christopher J. McVeigh, Esq., for Vermont Tap and Die ISSUE 1. Which, if any, of the employers is responsible for the claimant s workers compensation benefits? 2. To what benefits, if any, is the claimant entitled? THE CLAIM 1. Temporary total disability compensation pursuant to 21 V.S.A. §642 from July of 1992, until the reaching of an end medical result. 2. Permanent partial disability compensation pursuant to 21 V.S.A. §648. 3. Medical and hospital benefits pursuant to 21 V.S.A. §640. 4. Vocational rehabilitation pursuant to 21 V.S.A. §641(b). 5. Attorneys fees and costs pursuant to 21 V.S.A. §678(a). STIPULATIONS 1. The claimant has been a resident of New Hampshire from 1987 to the present. 2. Montgomery Wire is a New Hampshire company. 3. All of the claimant s work for Montgomery Wire was performed in the state of New Hampshire. EXHIBITS Joint Exhibit 1 Medical Record Notebook Joint Exhibit 2 Affidavit of Carlton Jenne Joint Exhibit 3 Ronald Lippard Chronology Joint Exhibit 4 Previous Employment Record Joint Exhibit 5 Photographs of Scar Joint Exhibit 6 Deposition of Kuhrt Wieneke, Jr., M.D. Joint Exhibit 7 Deposition of Ronald A. Lippard, March 10, 1995 8. Joint Exhibit 8 Letter to Department of Safety, February 10, 1993 Joint Exhibit 9 Letter from Lon W. Howard, M.D., December 12, 1989 Joint Exhibit 10 Curriculum Vitae of Seddon R. Savage, M.D. FINDINGS OF FACT 1. The above stipulations are accepted as true and the exhibits are admitted into evidence, with one exception. Included in Joint Exhibit 1 is an affidavit by George Lippard, the claimant s father, regarding the claimant s appointment with one of the physicians retained by the defendants. Objection has been made to the admission of the affidavit, and that objection is sustained. The claimant has not established the unavailability of the deponent, nor that the affidavit is anything more than a self-serving production of the claimant. Notice is taken of all forms filed with the Department in this case. 2. The claimant suffered a compensable injury on March 7, 1989, while working for the defendant T. Copeland and Sons (hereafter Copeland ), in Bradford, Vermont. The injury involved the forceful driving of a 2"x 4" of hardwood into the palm of his hand, propelling him backwards and off his feet. The claimant was at the time operating a table saw. 3. The claimant was initially treated on the date of the injury in the emergency room at Cottage Hospital in Waterville, N.H., where he complained of pain in the right shoulder, elbow and wrist joints, with numbness in his fingertips and painful motion of his fingers. It was originally diagnosed as a soft tissue injury, and he was released with instructions to rest for four days before returning to work. 4. The claimant next went to the Littleton Hospital on May 12, 1989, with continued difficulties with his right arm. He was referred to Dr. Parker Towle, (with whom he had previously treated for migraines) for nerve conduction studies, which were essentially normal. He then was sent to Dr. Lon W. Howard, an orthopedic surgeon. Dr. Howard opined that the claimant was suffering from a probable torn rotator cuff and subacromial bursitis, and planned a Neer acromioplasty. 5. On June 16, 1989, the claimant underwent surgery on his right shoulder, which was moderately successful. There was some pain and discomfort after the surgery, and many of his hand symptoms remained, but he was returned to work with lifting restrictions after about six weeks. 6. The claimant left Copeland and began to work for Montgomery Wire in July of 1989. His job there entailed maintenance machining, particularly remanufacturing worn parts. It was a job he could do without heavy lifting or repetitive or overhead lifting, and was within the work restrictions imposed on him by Dr. Howard. He had found that job on his own, and told a medical management specialist for Aetna, the insurer for Copeland, that the job there was more in line with his prior experience. He also told the specialist that he was a professional musician. 7. In July of 1989, the claimant also returned to see Dr. Towle for additional nerve conduction studies, referring specifically to the functioning of his thumb and index finger on his right hand. Although Dr. Towle found the median motor and sensory latencies at wrists and motor velocities to axilla to be normal, he did find some denervation/reinnervation of the Flexor Digitorum Profundis. He indicated that the damage was severe, but that there might be some future improvement in the function of the two digits. 8. In November, the claimant returned again to Dr. Towle with continued reports of difficulties with his fingers, and he was referred to Dr. James M. Murphy at the Hitchcock Clinic. Although Dr. Murphy found some evidence of inconsistencies in the claimant s report of symptoms, he did suggest that the claimant was a suitable subject for nerve decompression. He referred the claimant to Dr. Daniel Wing, who urged an attempt at nonsurgical care for a period of time. When conservative approaches were unavailing, the claimant underwent, on March 7, 1990, an operation for anterior interosseous nerve syndrome. The surgery was at the level of the elbow, and produced a pronounced zig-zag scar on the interior of the right forearm. 9. Prior to the operation, the claimant returned to the Dartmouth-Hitchcock Medical Center where he attempted to obtain a refill of a percocet prescription given him by Dr. Murphy. He was seen by Dr. John Gorczyca, who declined, after a discussion about the addictive properties of percocet, to give him the prescription and instead gave him a prescription for Tylenol #3. 10. After the decompression of the anterior interosseous nerve, the claimant had a good recovery to the point that he was on May 1, 1990, nearly 100% improved from his preoperative condition. He was released to full duties at work, with no restrictions. 11. The claimant testified that, although he felt fairly good after the 1990 surgery, he always had some difficulties with his right arm. In the spring of 1991, he returned to Dr. Murphy with complaints relating to his right bicep. Dr. Murphy noted on March 26 that the onset of the bicep symptoms had been approximately two weeks earlier. By the end of April, the injury was diagnosed as an obvious rupture of the long head of the biceps. Dr. Murphy indicated that [a]t this point in time, no further workup is necessary. I doubt that he will have any functional deficit as a result of this. The people that rupture the long head oftentimes lose about 20% of their power of strength and flexion, but this, I doubt, will cause him to be in any way disabled at work. He can use the arm as tolerated. There are no restrictions on him at this time. No surgical intervention is necessary. The patient is reassured, and I would see him back on an as-needed basis. 12. The claimant did not seek additional medical attention for his right arm for another two years. During that period of time, the claimant continued to suffer occasionally from migraine headaches, a problem that had plagued him for many years and predated his injury at Copeland. During that period of time, the claimant left Montgomery Wire to work at Jenne Brothers Machine Shop. The claimant worked for Jenne from May to August of 1991, when he was laid off because of lack of work. The claimant testified that his right arm was slowing him down, and he could not work fast enough, and hinted that this was the true reason for his layoff. The claimant never reported any work injury while at Jenne, although he was working with lathes, grinders and other machines, and was doing some light to medium lifting. There is no evidence in the record to support the claimant s claim that his right arm was causing him difficulty at that time. 13. After the claimant was laid off, he remained unemployed until May of 1992. He testified that he was actively looking for work during that period of time, and that he collected unemployment compensation during that period. In May of 1992, the claimant accepted a position with Vermont Tap and Die, where his duties involved sharpening taps. He testified that he told them about the problems with his arm, but that no accommodations were made for his disability. He felt a general weakness in his hand, and he had difficulty keeping up with his work. He was released after two months for not meeting the job requirements and for attitude problems with long time employees. The claimant has not worked since he left Tap and Die. He denied any specific injury at Tap and Die. 14. In January of 1993, the claimant met with personnel at the New Hampshire Department of Education Vocational Rehabilitation program in Berlin, N.H. Based on reports filed by that organization, it appears that the claimant was involved in both professional Celtic harping and wood sculpting using a compound...