Gaetan Brochu
v.
Peck Electric Co.
Opinion No. 18-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
November 4, 2020
Hearing held via Skype on August 21, 2020
Record
closed on September 21, 2020
State
File No. HH-63000
Christopher McVeigh, Esq., for Claimant.
Bonnie
J. Badgewick, Esq., for Defendant.
Beth
A. DeBernardi, Administrative Law Judge.
OPINION
AND ORDER
Michael A. Harrington Commissioner.
ISSUES
PRESENTED:
1. Did
Claimant sustain a compensable low back injury as a result of
his February 18, 2016 work-related fall?
2. If
yes, to what workers’ compensation benefits, if any, is
he entitled?
EXHIBITS:
Joint
Exhibit I: Medical records
Claimant’s
Exhibit A: Unemployment records
CLAIM:
All
workers’ compensation benefits to which Claimant proves
his entitlement as causally related to his low back condition
FINDINGS
OF FACT:
1.
Claimant was an employee and Defendant was his employer as
those terms are defined in the Vermont Workers’
Compensation Act.
2. I
take judicial notice of all forms and correspondence in the
Department’s file relating to this claim.
Claimant’s
Prior Work History and Medical History
3.
Claimant is a 51-year-old man who lives in Walden, Vermont.
Prior to his employment with Defendant, he worked as an
electrician for several other businesses, including Ames
Electric and H.A. Manosh. During his prior employment,
Claimant sustained several work injuries, including a right
shoulder injury in 2001 and several wrist injuries in 2005.
He underwent multiple wrist surgeries and was out of work for
several years, during which time he collected workers’
compensation benefits.
4.
Claimant has no history of low back symptoms prior to his
employment with Defendant.
Claimant’s
Work for Defendant
5.
Claimant began work for Defendant in 2014 as a lead
technician, working on a three-member crew. The other two
crew members installed residential solar panels, typically on
a customer’s roof, and Claimant ran power from those
panels to the inverters and distribution panels. He performed
this work for about three years.
Claimant’s
February 2016 Work Injury
6. On
February 18, 2016, Claimant was working with a crew in
Warren, Vermont, installing solar panels on a one-story
house. Claimant climbed a ladder to the garage roof to take
photos of the solar panel installation. When he was done, he
walked to the edge of the roof and prepared to climb down the
ladder. At that moment, he lost his footing, knocked the
ladder over, and slid to the edge of the roof. He grabbed the
roof with his left arm but could not hold on. Claimant fell
off the roof, landing in the driveway about ten feet below.
When he stood up, he felt pain in his left shoulder.
7.
Claimant’s supervisor, Curt Beacham, was at the
jobsite. Claimant watched Mr. Beacham fill out a First Report
of Injury and report his accident by telephone to someone in
Defendant’s office.
8.
Claimant then drove to a nearby express care facility. That
visit’s medical record states that he fell off a roof,
injuring his left shoulder and bruising his right knee.
Claimant credibly testified that his left shoulder injury
occurred when he grabbed the roof in a last-ditch attempt to
stem his fall. The record includes no report of any back
injury, nor any symptoms associated with back pain or
discomfort. Joint Exhibit I, at 392-93.
9. The
next day, Claimant saw his primary care provider, family
medicine physician Kimberly Bruno, MD. Claimant reported to
Dr. Bruno that he fell off the roof and landed on his right
knee. Joint Exhibit I, at 394. He did not report any back
pain.
10. In
March 2017, Claimant underwent an independent medical
examination with occupational medicine physician William
Boucher, MD. Claimant reported to Dr. Boucher that he slipped
off a roof, tried to catch himself with his left arm, and
landed on his right side. Joint Exhibit I, at 762. Claimant
did not report any back pain to Dr. Boucher.
11. I
find that Claimant’s accounts of the roof incident
given to the urgent care facility, to Dr. Bruno the next day,
and to Dr. Boucher are generally consistent. Further, they
are among the accounts closest in time to the incident.
Reading them together, I find that Claimant grabbed the roof
with his left arm, slipped off the roof, and landed on his
right side, sustaining a shoulder injury and a knee bruise.
None of these accounts mention landing on his back or
buttocks, nor do they mention any low back injury, pain or
symptoms.
Claimant’s
Subsequent Medical Treatment
12.
Claimant returned to work about a week after his fall, but
his shoulder pain persisted. In March 2016, he was diagnosed
with a torn rotator cuff, and he stopped working to undergo
rotator cuff repair surgery with orthopedic surgeon John
Macy, MD.
13. In
anticipation of that surgery, Claimant completed a health
history worksheet for Dr. Macy. Joint Exhibit I, at 424-25.
The worksheet asked whether he had chronic neck or back
problems, and he responded “no.” The worksheet
included space for patients to expand on their answers.
Claimant added additional information about his cigarette
smoking, but he did not add any information about his back.
Additionally, the worksheet’s last question asked about
“Other Medical Conditions not addressed above.”
Claimant did not identify any low back symptoms there,
either. Id. at 425.
14. Dr.
Bruno performed a pre-operative evaluation on April 11, 2016.
Her physical examination of Claimant noted that his spine was
“unremarkable” and that he had a full range of
motion in his spine “without pain.” Joint Exhibit
I, at 441.
15. The
rotator cuff repair surgery on April 12, 2016 was successful,
and Claimant furthered his recovery with 22 physical therapy
visits from May through August of 2016. None of these records
record any low back pain, symptoms or treatment. See Joint
Exhibit I, at 499-512, 515-54.
16.
Claimant was out of work from March 2016 until August 2016,
when he returned to work for Defendant. In November 2016, a
nurse practitioner at Copley Hospital provided a note that
Claimant could work full duty with no restrictions, although
he had already returned to his regular duties. Joint Exhibit
I, at 556.
17.
Claimant’s job duties upon his return were similar to
his pre-injury duties. These duties continued through the
spring of 2017.
18.
Claimant did not report any low back injury or symptoms to
Defendant or to his physicians at any time between February
18, 2016 and May 23, 2017. His shoulder treatment included
months of physical therapy, but he never mentioned any back
symptoms to his physical therapists, either.
19.
When Dr. Boucher performed his independent medical
examination of Claimant in March 2017, see Finding of Fact
No. 10 supra, he provided Claimant with multiple
opportunities to report...
