Richard Deforge
v.
Lark Inns, L.P.
Opinion No. 19-19WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
October 23, 2019
State
File No. KK-51368
Craig
A. Jarvis, Esq., for Claimant
David
A. Berman, Esq., for Defendant
Beth
A. DeBernardi, Administrative Law Judge.
RULING ON CLAIMANT’S MOTION FOR SUMMARY
JUDGMENT
Michael A. Harrington, Interim Commissioner.
ISSUE
PRESENTED:
Is
Claimant entitled to permanent partial disability benefits
based on a 20 percent whole person impairment as a matter of
law, with no apportionment for his preexisting respiratory
condition?
EXHIBITS:
Claimant’s
Statement of Undisputed Material Facts filed July 26, 2019
Claimant’s
Exhibit 1: First Report of Injury (Form 1)
Claimant’s
Exhibit 2: Agreement for Temporary Compensation (Form 32)
Claimant’s
Exhibit 3: Email from Attorney Berman to the
Department’s specialist Medical records
Claimant’s
Exhibit 5: Dr. Davignon’s April 15, 2019 independent
medical examination report
Claimant’s
Exhibit 6: Dr. Backus’ July 13, 2019 medical records
review report
Defendant’s
Response to Statement of Undisputed Facts filed August 22,
2019
FINDINGS
OF FACT:
Considering
the evidence in the light most favorable to Defendant as the
non-moving party, State v. Delaney, 157 Vt. 247, 252 (1991),
I find the following facts:
Claim
History
1. On
July 31, 2017, Claimant sought medical treatment following a
workplace incident three days earlier during which he inhaled
chlorine gas while maintaining a swimming pool. He reported
lung irritation, eye irritation and shortness of breath.
Claimant’s Exhibit 4 (“Medical Records”) at
65.
2.
Defendant filed a First Report of Injury (Form 1) on August
1, 2017 for Claimant’s reported respiratory injury,
including difficulty breathing. Claimant’s Exhibit 1.
3.
Defendant entered into an Agreement for Temporary
Compensation (Form 32) with Claimant to pay temporary total
disability benefits at the rate of $427.00 per week. The
Department approved the Agreement on October 19, 2017.
Claimant’s Exhibit 2.
4.
Defendant paid temporary total disability benefits from
September 2 to September 11, 2017. See Claimant’s
Exhibit 3.
Claimant’s
Status as a Smoker and his Pre-Injury Respiratory
Condition
5.
Claimant is a 51-year-old man. See Claimant’s Exhibit
1. His medical records describe him as a “heavy tobacco
smoker,” with a 34-year history of cigarette smoking.
See, e.g., Medical Records at 3, 76. Claimant was still an
active daily smoker in June 2016; he quit smoking around
October 2016, about nine months before his workplace chlorine
exposure. See Medical Records at 8, 58. However, he continues
to vape nicotine products. See, e.g., Medical Records at 47,
112.
6.
Claimant’s medical records between March 2016 and June
2017 have no reference to chronic obstructive pulmonary
disease (COPD) or emphysema, nor do they identify a pulmonary
or respiratory condition as a current or past medical
problem. Medical Records at 1-64. However, his medical record
from August 2, 2017 notes that his 2010 and 2011 chest x-rays
showed focal calcifications in the left upper lobe of his
lung. Further, a chest x-ray from three days after his injury
showed lung nodules in his right and left upper lobes.
Medical Records at 74.
7. In
May 2016 Claimant’s medical record lists dyspnea (i.e.,
labored breathing or shortness of breath) as a
“pertinent negative” relevant to his high blood
pressure treatment. Medical Records at 1-2. In August 2016
his medical record notes no shortness of breath. Medical
Records at 18.
8. In
January 2017 Claimant’s provider wrote that his smoking
was a risk...
