Nichole Marden
v.
Carrols LLC d/b/a Burger King
Opinion No. 21-20WC
Vermont Workers Compensation Decisions
State of Vermont Department of Labor
December 15. 2020
State
File No. KK-60001
Hearing
held via Skype on October 5, 2020
Record
closed on November 9, 2020
Patrick L. Biggam, Esq., for Claimant
Krystn
M. Perettine, Esq., for Defendant
Beth
A. DeBernardi, Administrative Law Judge
OPINION
AND ORDER
Michael A. Harrington, Commissioner
ISSUES
PRESENTED:
1. Did
Claimant sustain a left upper extremity and cervical injury
arising out of and in the course of her employment with
Defendant on January 26, 2018?
2. What
is the extent, if any, of Claimant’s permanent partial
disability referable to her cervical spine condition?
EXHIBITS:
Joint
Exhibit I: Medical records
Claimant’s
Exhibit 1: Curriculum vitae of William Spina, MD
Defendant’s
Exhibit 1: Curriculum vitae of Andrew Haig, MD
CLAIM:
Permanent
partial disability benefits pursuant to 21 V.S.A. § 648
Interest,
costs and attorney fees pursuant to 21 V.S.A. §§
664 and 678
FINDINGS
OF FACT:
1. At
all times relevant to these proceedings, 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.
Claimant’s
Employment with Defendant
3.
Claimant is a 47-year-old woman who lives in Bristol,
Vermont. Prior to working for Defendant, she worked as a
personal care assistant for a visiting nurse association.
Before that employment, she held a variety of jobs, including
several periods of employment with Burger King.
4. In
November 2015, Claimant began working for Defendant at its
Burger King restaurant in South Burlington, Vermont. Over
time she worked her way up to shift manager. Claimant was in
charge of the breakfast shift Monday through Friday, starting
at 5:00 am and ending at 3:00 pm. Her duties included opening
the restaurant, counting the cash drawers, checking
inventory, ordering supplies, and setting up the appliances
and workstations for breakfast production. After completing
these set-up tasks, she oversaw daily operations and took
orders from customers.
Claimant’s
Work Injury and Subsequent Medical Course
5. On
January 26, 2018, Claimant was setting up Defendant’s
milkshake machine. This task required pouring the liquid
shake mixture from a metal bucket into the top of the
machine, which was higher than her head. Claimant extended
her arms upward and used both hands to raise the heavy bucket
over her head; she then twisted her arms towards the machine
and began pouring the liquid. As she did so, she felt a
twinge in her left elbow and the onset of pain. Nevertheless,
she filled the machine and completed her workday.
6.
Claimant called her doctor’s office when she got home
from work that day. She was advised to apply ice, take
Tylenol, and make an appointment if her pain did not improve.
7. On
January 31, 2018, Claimant sought treatment from nurse
practitioner Sarah Dudley at the Thomas Chittenden Health
Center. Claimant described a burning pain in her left arm
centered around her elbow, with pain radiating up to her left
shoulder and down into her forearm. She also complained of
stiffness and achiness around her left shoulder. NP Dudley
suggested wearing a sling and returning if symptoms did not
improve. When Claimant returned for more treatment, NP Dudley
diagnosed her with lateral epicondylitis (tennis elbow) and
referred her for physical therapy.
8. The
initial physical therapy record in February 2018 reflects
that Claimant had pain, weakness and limited range of motion
in her left shoulder and elbow, as well as ulnar nerve
compression and inflammation. The note states that Claimant
had a history of left shoulder pain dating back to a 2008
assault and that she received physical therapy for her
shoulder in 2014 and 2016.
9.
Claimant saw her primary care provider again in February
2018. She reported that her left arm pain interfered with her
work duties, such as counting money or lifting a cup. Her
provider took her out of work, stating that even light duty
tasks were “exacerbating her symptoms and contributing
to ongoing inflammation that is prolonging the healing
process.” Joint Exhibit I, at 12.
10. In
April 2018, Claimant was referred to physician assistant
Stephanie Burch at UVM Orthopedics. She reported left elbow
pain, left shoulder pain and small finger numbness. In May
2018, Claimant underwent a left elbow MRI scan that revealed
a torn tendon.
11. In
July 2018, Claimant saw orthopedic physician David Lisle, MD.
Dr. Lisle agreed with the lateral epicondylitis diagnosis,
but also noted severe pain, numbness and tingling radiating
to Claimant’s left hand. He ordered EMG testing to see
whether other diagnoses were indicated.
12.
Physiatrist Carol Talley, MD, conducted the EMG testing in
August 2018. She reported no abnormal findings, including no
evidence of cervical radiculopathy. However, she cautioned
that the absence of findings for cervical radiculopathy on an
EMG examination “does not rule out this
diagnosis.” Joint Exhibit I, at 80.
13.
Claimant then returned to Dr. Lisle. He noted continuing
complaints of pain in her left elbow, left shoulder and neck,
and he referred her to a spine specialist to evaluate her
cervical condition. In October 2018, Claimant saw orthopedic
physician assistant Robert Hemond. He noted pain in her...
