Pamela McKenzie Gallo
v.
Costco Wholesale Corporation
Opinion No. 19-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
November 22, 2020
State
File No. HH-64357
Christopher McVeigh, Esq., for Claimant
Jason
R. Ferreira, Esq., for Defendant
Beth
A. DeBernardi, Administrative Law Judge.
OPINION
AND ORDER
Michael A. Harrington, Commissioner.
ISSUES
PRESENTED:
1. Is
Claimant entitled to temporary disability benefits after she
left her employment with Defendant on March 19, 2019?
2. Is
Claimant entitled to temporary disability benefits following
her left hand surgery on May 29, 2020?
EXHIBITS:
Joint
Exhibit I: Medical records
Claimant’s
Exhibit 1: Claimant’s hours at work for February and
March 2019
Claimant’s
Exhibit 2: December 20, 2018 letter from Defendant to
Claimant concerning her employment status
Claimant’s
Exhibit 3: December 27, 2018 letter from Claimant’s
counsel to Defendant concerning her employment status
Claimant’s
Exhibit 5: November 9, 2018 email from Defendant to Claimant
concerning the refund cashier position
Claimant’s
Exhibit 6: November 9, 2018 letter from Claimant’s
counsel to Defendant concerning reinstatement rights under 21
V.S.A. § 643b
Claimant’s
Exhibit 7: January 4, 2019 letter from Defendant to
Claimant’s counsel with Job Analysis record
Claimant’s
Exhibit 8: February 14, 2019 Job Assessment Meeting record
Claimant’s
Exhibit 9: March 12, 2019 Exit Interview record
Claimant’s
Exhibit 10: March 13, 2019 Exit Questionnaire
Defendant’s
Exhibit 1: January 14, 2019 medical record and Work
Capabilities Form
Defendant’s
Exhibit 2: February 14, 2019 Job Assessment Meeting record
Defendant’s
Exhibit 3: March 1, 2019 letter from Claimant’s counsel
confirming her return to work effective February 26, 2019
Defendant’s
Exhibit 4: March 9, 2019 resignation letter
Defendant’s
Exhibit 5: March 12, 2019 Exit Interview record
Defendant’s
Exhibit 6: March 12, 2019 Resignation Form
Defendant’s
Exhibit 7: March 13, 2019 Exit Questionnaire
Defendant’s
Exhibit 8: Dr. White’s May 2019 Independent Medical
Examination report
Defendant’s
Exhibit 9: PA Hammond’s May 17, 2019 telephone
encounter record
Defendant’s
Exhibit 10: Claimant’s hours at work for February and
March 2019
Defendant’s
Exhibit 11: September 2016 emails between Store Manager
Christopher Stafford and Defendant’s Corporate Benefits
Department
CLAIM:
Temporary
disability benefits pursuant to 21 V.S.A. §§ 642
and 646
Costs
and attorney fees pursuant to 21 V.S.A. § 678
FINDINGS
OF FACT:
1.
Claimant was an employee and Defendant was her employer as
those terms are defined in the Vermont Workers’
Compensation Act.
2. I
take judicial notice of all forms in the Department’s
file relating to this claim.
3.
Claimant is a 56-year-old woman who lives in Colchester,
Vermont, with her husband and her elderly parents.
4.
Claimant’s adult daughter, who lives in Michigan, was
diagnosed with lupus when she was 19 years old. She has
received several rounds of chemotherapy and has serious
kidney disease and a heart condition. When she became
pregnant in 2018, her pregnancy was considered high risk.
Claimant’s
Employment with Defendant and her Work-Related Injuries
5.
Claimant began her employment with Defendant as a temporary
seasonal employee in December 1995; she became a regular
employee in May 1996. She has worked in several departments,
including electronics, jewelry, pharmacy, the photo lab, and
the tire center. She has also worked as a front-end cashier.
The cashier position required her to move items of varying
weight over a scanner and to maintain a fast pace.
6. On
May 25, 2016, Claimant sustained a right wrist injury while
working as a part-time front-end cashier for Defendant. She
grasped a container of cream cheese during the checkout
process and felt a twinge in her wrist.
7. Two
days later, Claimant sought medical treatment at Concentra
and was diagnosed with a right wrist sprain. The provider
referred her to physical therapy and placed her on light-duty
work restrictions. Joint Exhibit I, at 15-19.
8.
Defendant accepted Claimant’s right wrist injury as
compensable and began paying workers’ compensation
benefits accordingly.
9.
About six months later, Claimant began to experience left
wrist symptoms. Joint Exhibit I, at 174. Defendant
accepted her left wrist condition as compensable and began
paying benefits for that condition as well.
Claimant’s
Medical Course During her Employment with Defendant
10.
Claimant initially underwent conservative treatment and was
released to full-duty work on November 3, 2016 with no
restrictions. Joint Exhibit I, at 153. However, on
November 26, 2016, her medical provider advised her to stop
her cashier duties and return to light-duty work, if
available. Id. at 176.
11.
Claimant underwent right wrist surgeries in July 2017 and
January 2018, and she underwent left wrist surgery in May
2018. See Joint Exhibit I, at 248-51, 401-04,
469-70. She was out of work after each surgery but returned
to light duty each time. See Joint Exhibit I, at
291, 294, 314, 327, 449, 508.
12. In
October 2018, Claimant underwent a third right wrist surgery
to remove an excess tendon graft. Joint Exhibit I,
at 543-44. She again left work to recover from surgery.
13. In
November 2018, Claimant reported to her surgeon that she had
no pain and was able to grasp things and use her thumb better
than before. Joint Exhibit I, at 551. The surgeon
noted “basically full” wrist range of motion with
no pain and stated that she was “much improved.”
Id. at 552. He recommended increasing activity as
tolerated.
Claimant’s
Efforts to Return to Work in the Fall of 2018 and Winter of
2019
14.
Claimant’s October 2018 surgery was successful, and she
felt ready to return to work. On November 9, 2018, she
emailed Defendant to express interest in a refund cashier
position. Claimant’s Exhibit 5. The same day,
her attorney notified Defendant by letter that she would
likely be able to return to work on November 30, 2018 and
that she wished to be reinstated to a suitable position as
provided by 21 V.S.A. § 643b. Claimant’s
Exhibit 6. On December 20, 2018, Defendant wrote to
Claimant that it did not have a position that she could
likely perform, and it suggested that she might wish to
voluntarily resign her employment. See Claimant’s
Exhibit 2.
15.
Claimant’s counsel responded to Defendant’s
letter on December 27, 2018, reiterating Claimant’s
reinstatement rights under the workers’ compensation
statute. See Claimant’s Exhibit 3. Defendant
responded on January 4, 2019, asking for an updated Work
Capabilities Form (Form 20). See Claimant’s Exhibit
7. Claimant then scheduled an office visit with
orthopedic physician assistant Tracie Hammond to discuss her
work capabilities.
16. At
the January 14, 2019 office visit with PA Hammond, Claimant
reported that things were going...
