Marie Fitzgerald
v.
AE MacKenzie, Inc. d/b/a At Home Senior Care
Opinion No. 17-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
October 20, 2020
State
File No. LL-584
Marie
Fitzgerald, pro se
Jason
Ferreira, Esq., for Defendant
Stephen W. Brown, Administrative Law Judge
OPINION
AND ORDER
Michael A. Harrington Commissioner
Hearing
held via Skype on July 7, 2020
Record
closed on August 10, 2020
ISSUES
PRESENTED:
1. Did
Claimant sustain a work-related right foot injury on August
25, 2018, and if so, to what benefits is she entitled?
2. If
Claimant sustained a work-related right foot injury on August
25, 2018, did that injury result in sciatica or other low
back pain?
EXHIBITS:
Joint
Exhibit: Joint Medical Exhibit (“JME”)
Defendant’s
Exhibit 1: Employee Handbook
Defendant’s
Exhibit 2: Claimant’s August 25, 2018 Patient Logbook
Entry
Defendant’s
Exhibit 3: August 22, 2019 Letter from Defendant’s
President Concerning Claimant’s Termination
Defendant’s
Exhibit 4: Unemployment Insurance Documents (not
admitted)1
Defendant’s
Exhibit 5: Curriculum Vitae of Verne Backus, M.D.
Defendant’s
Exhibit 6: Dr. Backus’s Independent Medical Examination
Report
FINDINGS
OF FACT:
1. I
take judicial notice of all relevant forms and correspondence
in the Department’s file for this claim.
2.
Claimant is a 62-year-old woman residing in Rutland, Vermont.
Between approximately November 2015 and September 2018,
Defendant employed her as a caregiver and home aide. In that
role, she provided a range of services to clients both in
their homes and in nursing homes, including house cleaning,
grocery shopping, companionship, transportation, and help
with other errands and household duties.
July
25, 2018 Non-Workplace Injury
3.
During the late evening of July 25, 2018, Claimant suffered a
non-work-related injury to her right foot. She was walking
down the street in her neighborhood wearing clogs when a dog
approached her and began barking and growling. The dog
frightened her, and she quickly turned away from it. When she
turned, she twisted her right ankle and fell to the ground.
She called her son to assist her, and she returned home.
4.
After returning home, Claimant’s right foot began to
swell. She experienced pain when putting weight on her foot.
The following morning, a friend transported her to the
Rutland Regional Medical Center’s emergency room.
Claimant had to use crutches to get into her friend’s
car.
5. At
the emergency room, Claimant complained of pain in the top of
her right foot and in her ankle. X-ray imaging did not show
any acute bone abnormality, and she was diagnosed with a
right foot sprain, prescribed medications including
ibuprofen, and provided with a walking boot. (JME 14-16). She
continued to work for Defendant after this incident.
6. The
walking boot had hard plastic sides, a “flimsy”
plastic shield along the top, and Velcro straps to hold the
boot in place.
7.
After this injury, Claimant’s foot turned black. She
could not put all her weight on her foot during the following
month, and she credibly testified that she would not have
been able to do her job without the walking boot. She also
had to work at a slower pace following this injury. She
credibly agreed on cross-examination that her foot and ankle
injury was “very bad.”
8. In
late August 2018, Claimant was still wearing her walking boot
because she was still unable to put her full weight onto her
right foot; she was still experiencing pain and swelling from
her July 2018 incident.
August
25, 2018 Workplace Injury
9. On
August 25, 2018, exactly one month after her July 2018
incident involving the dog, Claimant was working for
Defendant and still wearing her boot. That morning, she
helped a client in a nursing home get dressed; she then
transported him into the dining room for breakfast. Claimant
credibly described this client as “the kind of person
that would get angry relatively eas[il]y depending on what
kind of day he was having.”
10.
While the client was eating his breakfast, another resident
bumped into the back of his chair with a food cart, causing
him to become very angry and agitated. He then aggressively
pushed his chair backwards, raised his heel, and stomped down
onto Claimant’s right foot with considerable force.
Although Claimant was wearing her walking boot, it was open
around the toes except for the “flimsy” shield
and Velcro straps. She experienced intense pain on the top of
her foot as a result.
11. The
client then attempted to stomp on her foot a second time, but
Claimant moved out of the way before he could land on her
foot again. He remained agitated, however; he got up from the
table and threw his chair. (See Defendant’s Exhibit 2).
12.
Claimant sought help from nursing home staff. Three or four
staff members escorted the client back to his room, where he
remained upset and tried to break things. Eventually, he was
medically sedated. Nursing home staff advised Claimant to
observe the client from a distance because he was still
trying to throw things around the room. He later calmed down
and took a nap.
13.
Claimant reported this incident both to the nursing
home’s head nurse and to Defendant. She notified
Defendant in two ways: first, by recording it in...
