Abdulkadir Ali
v.
University of Vermont
Opinion No. 20-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
December 15, 2020
State
File No. LL-53322
Hearing held via Skype on August 4, 2020
Record
closed on September 9, 2020
Craig
Jarvis, Esq., for Claimant
David
Berman, Esq., for Defendant
Stephen W. Brown, Administrative Law Judge
OPINION
AND ORDER
Michael A. Harrington Commissioner
ISSUE
PRESENTED:
Did
Claimant sustain a work-related lower back injury, and if so,
to what benefits is he entitled?
EXHIBITS:
Joint
Exhibit: Joint Medical Exhibit (“JME”)
Claimant’s
Exhibit 1: Emails regarding Claimant’s use of leave
time, dated September 4, 2018
Claimant’s
Exhibit 2: Certificate of Dependency and Concurrent
Employment (Form 10), filed September 24, 2018
Claimant’s
Exhibit 3: Wage Statement (Form 25), dated September 24, 2018
Claimant’s
Exhibit 4: Certificate of Dependency and Concurrent
Employment (Form 10), dated July 31, 2020
Claimant’s
Exhibit 5: Signature of Dennis Coakley and handwritten date
of “8·6·19” on notebook paper
Claimant’s
Exhibit 6: Correspondence from Laurie Newton to Claimant
dated October 12, 2018, enclosing Denial of Workers’
Compensation Benefits by Employer or Carrier (Form 2)
Claimant’s
Exhibit 7: Multiple emails among Defendant’s employees
dated October 12, 2018 concerning work orders assigned to
Claimant
Defendant’s
Exhibit A: Employer's First Report of Injury (Form 1),
dated September 4, 2018
Defendant’s
Exhibit B: Work Order WO50063
Defendant’s
Exhibit C: Work Order WO500600
Defendant’s
Exhibit D: Work Schedule of Danny Whitaker for dates May 29,
2018 through September 29, 2018
Defendant’s
Exhibit E: Written Statement of Dennis Coakley
FINDINGS
OF FACT:
1. I
take judicial notice of all forms in the Department’s
file for this claim.
2.
Claimant is a 38-year-old man residing in Burlington, Vermont
with his wife and six1dependent minor children.
3. He
was born in Somalia but moved to Kenya when he was nine years
old because of the Somali Civil War. He spent six years in a
refugee camp in Kenya, where he mostly learned Swahili and
Somali. He took some English classes there, but he credibly
testified that they were not of high quality.
4. He
moved to Massachusetts when he was 22 years old and could not
speak English at that time. He moved to Vermont in 2006 and
three years later began attending Winooski High School to
improve his English while working full time. He attended high
school for three years but did not graduate because one of
his children became ill. Following his departure from
Winooski High School, Claimant worked in several jobs,
including Walmart, before Defendant hired him.
Claimant’s
Employment with Defendant
5.
Defendant hired Claimant as a maintenance employee in August
2014, and three years later, promoted him to the role of
repair specialist within the facilities repair department.
His duties in both roles included cleaning, repairing,
removing equipment, driving trucks, and changing filters.
6.
Throughout his employment with Defendant, Claimant’s
direct supervisor was utility trade supervisor Danny
Whitaker. Mr. Whitaker generally assigned Claimant work tasks
by issuing work orders through Defendant’s computer
system. Claimant also worked with maintenance supervisor
Keith Benoit when Mr. Whitaker was unavailable, and with
facilities manager Dennis Coakley, who was Mr.
Whitaker’s supervisor. Messrs. Whitaker, Benoit, and
Copley all testified at the formal hearing.
Claimant’s
History of Back-Related Complaints and Medical Care
7.
Claimant had several episodes of back pain in 2014, 2015, and
2016 for which sought care at the University of Vermont
Medical Center’s (UVMMC’s) emergency department.
8.
Specifically, in April 2014, while Claimant was working at
Walmart, he sustained a right hip and right lower back injury
while unloading a truck. (JME 19-23). He was diagnosed with a
lumbar strain and advised to treat with nonsteroidal
anti-inflammatory drugs (NSAIDs), ice, and heat, and advised
to avoid heavy lifting. (Id.).
9.
Approximately one year later, in April 2015, he again
presented to the emergency department with sudden-onset back
pain after stretching his back. (JME 41-46). His providers
administered Toradol, which provided significant relief, and
he was advised to use NSAIDs, ice, and rest. (Id.).
10. He
returned with similar back complaints in December 2015, and
again was diagnosed with a strain, given Toradol, and advised
to treat with NSAIDs, ice, and rest. He was discharged with a
pain rating of 1/10. (JME 57-67).
11. In
August 2016, Claimant returned to the emergency department
with back pain, and again was provided Toradol. He also
received a muscle relaxant and narcotic pain medications and
was advised to treat with heat. (JME 72-88).
12.
Despite these episodes of back pain, there is no convincing
evidence that Claimant suffered ongoing back pain between
these visits, or that his symptoms lingered long afterward. I
see no basis in the record to find that Claimant experienced
ongoing back symptoms during the roughly 21 months between
his August 2016 emergency room visit and May 2018.
Claimant’s
May 2018 Workplace Incident
13. The
parties dispute what happened between May 29 and August 28,
2018. Based on the totality of evidence presented, including
the medical records, the Form 1 filed with the Department,
work orders (Defendant’s Exhibits B and C), Mr.
Whitaker’s time records (Defendant’s Exhibit D),
Mr. Coakley’s contemporaneous written statement
(Defendant’s Exhibit E), and testimony from Claimant,
Mr. Benoit, Mr. Coakley, and Mr. Whitaker, I find as
follows:2
14. On
May 29, 2018, Mr. Whitaker scheduled Claimant to perform two
jobs through two work orders, one of which was to vacuum the
snow screens in Jeffords Hall, a job that took about five
hours to complete. (Defendant’s Exhibit
B).3
Claimant performed that task the following day, on May 30,
2018.
15.
Cleaning the snow screens required Claimant to maneuver
inside an air intake area with a vacuum unit on his back.
While the vacuum unit was not particularly heavy, this task
involves working for several hours in a tight and awkward
space where movement is cramped and difficult. After
completing that task, Claimant felt an irritation and sharp
pain in his back.
16.
Claimant spoke with Mr. Benoit about his back pain later that
afternoon. Ordinarily, he would have gone to his direct
supervisor, Mr. Whitaker, but he was not in the building at
that time.
17. Mr.
Whittaker was upset that Claimant did not report this injury
to him directly. He approached Claimant to ask why he had
reported his injury to Mr...
