JOHN DAY (Employee)
v.
GENERAL CONTRACTOR VAUGHN D. THIBODEAU (Employer)
and
MAINE EMPLOYERS' MUTUAL INSURANCE COMPANY (Insurer)
WCB No. 18010043
No. 18010043B
Maine Workers Compensation Decisions
State Of Maine Workers' Compensation Board
February 4, 2021
Issuance Date: February 4, 2021
DOI:
4/20/2018
Within
25 days after issuing this decision, or 5 days after ruling
on a motion for further findings, whichever is later, the
administrative law judge may request that the full
Workers' Compensation Board review this decision. See
39-A M.R.S. § 320.
Within
20 days after receiving this decision a party may file a
motion asking the Board to find further facts and make
further conclusions of law and file the appropriate decision
if it differs from the original decision; within 15 days
after filing the motion, the party shall file its proposed
findings of fact and conclusions of law pursuant to 39-A
M.R.S. § 318 and 90 M.A.R. 351 Ch. 12, § 15.
Any
party in interest may request an appeal to the Appellate
Division by filing a notice of intent to appeal along with a
copy of this decision with the clerk of the Appellate
Division within 20 (twenty) days of receipt of this decision.
See 39-A M.R.S. § 321-B and M.R.App.P. 23 and
accompanying Advisory Note (available at:
https://www.courts.maine.gov/rules adminorders/rules/text/mr
app p plus 2019-04-25.pdf).
Laura
Goldsmith, Esq. McCue Law Office LLC
MEMIC
P.O. Box 3606
RE:
John Day v. General Contractor Vaughn D. Thibodeau Case#:
18010043B
DAVID
HIRTLE, ADMINISTRATIVE LAW JUDGE
Pending
before the Board are the Employee’s PETITION FOR AWARD
and PETITION FOR PAYMENT OF MEDICAL AND RELATED SERVICES
regarding an alleged work injury date of April 20, 2018. A
video hearing was held on October 29, 2020, at which the
parties agreed to a base average weekly wage of $582.30 and
that no fringe benefits were paid. The Employee submitted ten
proposed exhibits as follows: EE 1 (medical records), EE 2
(disputed medical bills), EE 3 (MaineCare lien), EE 4 (work
search), EE 5 (Labor Ready paystubs), EE 6 (timecards), EE 7
(paystubs), EE 8 (Select Physical Therapy functional capacity
evaluation), EE 9 (Covey Physical Therapy functional capacity
evaluation), EE 10 (Dr. David Newman office note dated
October 28, 2020). The Employee’s exhibits were each
admitted without objection except for exhibit EE 4 (work
search). The Employer’s objection to exhibit EE 4 was
sustained as it was exchanged the day before the hearing
contrary to W.C.B. Rule ch. 12 §§ 11(1) and 12(1);
the exhibit was accepted as an offer of proof only. The
Employer submitted three proposed exhibits which were
admitted without objection as follows: ER 1 (statement of the
injured employee dated June 25, 2018), ER 2 (Employee’s
exchange of information dated April 17, 2019), and ER 3
(First Report of Injury dated July 10, 2018). The following
individuals testified: John Day, Wilbur Saunders, and
Christopher Nason. The case thus became ready for decision on
December 11, 2020, with the submission of the parties’
written arguments.
The
Employee seeks to establish that his severe right hip
condition is the result of a work-related injury on April 20,
2018, resulting in total incapacity to earn from that day to
the present and continuing with a credit for intermittent
wages earned since then. The Employee also seeks an order
that the Employer pay for his disputed medical expenses. The
Employer argues that the variety of inconsistent accounts
stemming from the onset of Mr. Day’s right hip symptoms
preclude a finding that the condition is work related. In the
alternative, the Employer argues that the effects of any
work-related injury ended by August 20, 2018; or further,
that if the effects of a work injury continue, that Mr. Day
retains a significant imputed earning capacity.
FACTUAL
FINDINGS
1. John
Day is a 48-year-old resident of Brewer who began his career
at the Holiday Inn as a student with the Penobscot Job Corp.
Over 18 years, Mr. Day worked his way up from dishwasher to
executive chef at the hotel; as the executive chef, he ran
the kitchen, ordered supplies, made schedules, and planned
menus. When the Holiday Inn was sold, Mr. Day was laid off
and sought work with the Employer through an acquaintance
with the owner, Vaughn Thibodeau. The Employer hired Mr. Day
as a laborer in February of 2018, and he was initially
assigned to shovel snow from the walkways of the
Employer’s commercial customers. After doing that work
for a short period of time, the Employer transferred Mr. Day
to its project at Nokomis High School in Newport, Maine,
where the company was installing underground water lines.
2. Mr.
Day testified that at the Nokomis project, his tasks were to
help maneuver water pipes lifted by cranes and make sure
those pipes were level in their trenches. Mr. Day testified
that the pipe trenches were six to twelve feet deep and he
got into and out of these trenches by digging his heels into
the trench walls to climb and by jumping. Mr. Day testified
that he worked with an excavator operator and would climb up
to the operator’s station to discuss their tasks before
climbing or jumping down from the excavator. Christopher
Nason testified that he was Mr. Day’s direct supervisor
at the Nokomis job site and that trenches on that site deeper
than five feet required either a trench box or plowed sides
to prevent the walls of the trench from collapsing; most of...
