Vermont Workers Compensation
62-98WC. McCrillis v. VT Castings
November 7, 1998
State File No. D-13524
By: Jill Lanman Broderick
For: Steve Janson
Opinion No. 62-98WC
Charles McCrillis, Sr.
Heard in Montpelier, Vermont on March 6, 1998
Record Closed: April 3, 1998
Joseph C. Galanes, Esq., Attorney for Claimant
Andrew C. Boxer, Esq., Attorney for Defendant, The Travelers
Barbara R. Blackman, Esq., Attorney for Defendant, EBI Companies
THE CLAIMANT SEEKS:
1. Temporary total disability benefits for the period beginning on July 1, 1991 and ending on July 22, 1991.
2. Additional permanent partial disability compensation.
3. Attorney’s fees.
4. Interest on the permanent partial disability compensation.
5. Vocational rehabilitation.
Did the Claimant’s ulnar nerve injury arise out of and in the course of his work for the Defendant?
The parties have stipulated to the following:
1. The claimant was an employee of the defendant, Vermont Castings, on December 5, 1990.
2. The defendant is an employer within the meaning of the Workers’ Compensation Act.
3. The Travelers was the workers’ compensation insurance carrier for the defendant between December 5, 1990 and February 24, 1991.
4. EBI has been the workers’ compensation insurance carrier from February 25, 1991 to the present.
5. The Travelers has paid the claimant based on ten percent of 175 weeks for impairment to the claimant’s right hand due to his carpal tunnel injury.
There is no objection to the admission of the following exhibit: Joint Medical Exhibit 1 Indexed records compiled by Attorney Galanes with the addition of January 21, 1998 letter from Dr. LaFontaine.
Based on the evidence and testimony presented at the hearing, I find:
1. The stipulations set forth above are true and the exhibit is admitted into evidence.
2. The claimant began working for Vermont Castings in 1987, removing finished parts from a conveyor belt and placing the parts into baskets.
3. He began working on the pouring deck in 1990. This job involved pouring molten iron from a cauldron into a device called an auto-pourer which then released the molten iron into the molds for various parts of wood stoves.
4. The cauldron, when full of molten iron, weighed approximately 1800 pounds. Claimant’s job involved grasping the cauldron with both hands and rotating his shoulders, arms and wrists to maneuver it. The job was physically demanding and required repetitive motion of both his right wrist and elbow.
5. In December 1990 the claimant began experiencing pain and numbness in his right fingers. In addition, at times the fingers on his right hand would automatically open up without warning. This concerned the claimant because of the danger that the molten iron might spill and injure him or his coworkers.
6. Claimant compensated for this loss of finger control by taking the pressure of the cauldron into the palm of his right hand. The cauldron was so heavy that it left an imprint on the claimant’s right palm even for several months after he stopped working as a pourer.
7. The claimant reported his injury to his employer on December 5, 1990.
8. The claimant saw Dr. Miccolo on January 17, 1991 complaining of pain in the ulnar side of his wrist. Dr. Miccolo’s impression was “probable carpal tunnel syndrome, although his pain is slightly different than I normally see.”
9. Dr. Fries, a neurologist, conducted EMG testing on the claimant on January 21, 1991. The claimant testified that the examination involved a lot of “needles” and it was very uncomfortable.
10. Dr. Fries’ diagnosis was carpal tunnel entrapment as “the cause of the bulk” of the claimant’s right upper extremity complaint. Dr. Fries noted that “in complicated cases like this, however, the physician who is managing the case over time will of course be doing follow-up evaluations such that changes in the clinical picture may modify the diagnostic impression.” Dr. Fries also stated that the claimant’s “chief pain complaint involves the ulnar side of the hand dorsally, an area which would be very atypical for carpal tunnel pain.”
11. The claimant injured his right hand with a chainsaw approximately twenty years ago. Dr. Fries noted that there was some question whether the chainsaw laceration was related to the claimant’s ulnar nerve pain. He did not, however, give an opinion regarding the cause of the claimant’s ulnar pain but stated, “The ulnar abnormality, which may be 20 years old, seems unrelated to the current chief complaint but this question will also be re-evaluated at successive visits to the office of the referring physician.”
12. The claimant testified at the hearing that he did not have residual pain after his chainsaw accident and that the ulnar nerve pain did not begin until December 1990. I find this testimony credible.
13. On February 4, 1991 Dr. Miccolo performed carpal tunnel release on the claimant’s right hand.
14. Following the surgery the claimant took pain medication and began performing light duty work at Vermont Castings approximately three weeks after the surgery.
15. The claimant saw Dr. Miccolo on February 14, February 20, and February 27. During those visits he reported some median nerve pain in his right hand but did not complain of ulnar pain. However, Dr. Miccolo stated in his office notes for the claimant’s visit on March 4 that the claimant reported that he had, in fact, had ulnar pain when he saw Dr. Miccolo on February 20 and February 27. Dr. Miccolo stated, “this seems to be directly related to ulnar nerve compression at the elbow . . .”
16. The claimant testified at the hearing that he did not report the ulnar nerve pain immediately after the surgery because at first he did not notice it much due to the pain medication he was taking. In addition, he did not want to have another “needle” examination by Dr. Fries or undergo more surgery. I find this testimony credible.
17. Dr. Miccolo stated in his office notes for March 29, 1991 that the claimant had “ulnar nerve entrapment, secondary to his old chainsaw injury.” Dr. Miccolo referred the claimant to Dr. Ward for EMG testing.
18. Dr. Ward noted that the claimant “has a remote history of a chainsaw accident where he cut his proximal palm and wrist but developed no symptoms at that time.” His diagnosis was “right ulnar neuropathy” at the “right cubital (elbow) tunnel.”
19. Dr. Miccolo performed ulnar nerve decompression and transposition at the elbow on July 1, 1991. He stated in his operative report that the claimant’s ulnar nerve entrapment “was secondary to his job.”
20. The claimant missed work following the surgery and did not receive any temporary total compensation. I find that he is entitled to three weeks of temporary total compensation.
21. It is reasonable to assume that claimant reached a medical end result for both the carpal tunnel syndrome and ulnar nerve entrapment one year after the second surgery, i.e. by July 1, 1992.
22. EBI Companies obtained an opinion from Dr. Ayres, a neurologist, based on a review of the claimant’s medical records. Dr. Ayres stated that the claimant had symptoms of both carpal tunnel and ulnar nerve entrapment at the beginning of his medical treatment. He also stated “this patient appears to have suffered work related overuse syndrome of the right arm with concurrent entrapments at right median and ulnar nerves treated sequentially with carpal tunnel release and ulnar nerve transposition with resolution of symptoms.” This testimony is consistent with the claimant’s description of his various symptoms and the results of his treatment. In addition, Dr. Ayers noted “assuming no predisposing avocational activities, more probable than not, both of these nerve entrapments are related to Mr. McCrillis’ work activities.”
23. The Travelers obtained an opinion from Dr. LaFontaine based on a review of the claimant’s medical records. Dr. LaFontaine concluded that the claimant’s ulnar nerve injury occurred after January 21, 1991. When asked whether the claimant’s ulnar nerve entrapment could have been caused by work, she responded, “I do not have a definitive answer.”
24. Dr. Peterson saw the claimant on December 5, 1996 for an examination. He opined that the claimant has a permanent impairment of ten percent to his right upper extremity due to his carpal tunnel syndrome and permanent impairment of ten percent to his right upper extremity due to his ulnar nerve entrapment and that these injuries were work related.
25. The Travelers filed a Form 21 on March 9, 1991 indicating that it began paying temporary total compensation on February 7, 1991. The Travelers went off the risk on February 24, 1991 without arranging for an evaluation for permanent impairment or paying any compensation for such impairment.
26. On October 14, 1997, The Travelers paid the claimant ,916.53 for permanent impairment caused by his carpal tunnel injury.
Based on the foregoing findings of fact, I conclude the following:
1. In workers’ compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395 (1984). The claimant must establish by sufficient competent evidence the character and extent of the injury or disability, and the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. Early in claimant’s medical treatment Drs. Fries and Miccolo speculated that the ulnar nerve pain might have been caused by the claimant’s chainsaw accident. However, neither of those doctors so opined, and, in fact, Dr. Miccolo stated in his July 1, 1991 operative report that the pain was caused by the claimant’s job. In addition, Drs. Ayers and Peterson opined that both the carpal tunnel syndrome and the ulnar nerve injury were caused by the claimant’s work. Dr. LaFontaine declined to state an opinion regarding causation. The claimant’s testimony was credible and consistent with a conclusion that both right upper extremity injuries arose out of and in the course of claimant’s employment during the time that The Travelers was on the risk.
3. The Travelers paid temporary total compensation beginning on February 7, 1991, but failed to follow up on the claimant’s injury after it went off the risk on February 24, 1991. Although The Travelers did not dispute that the carpal tunnel injury was work related, it failed to pay any permanency, failed to advise the claimant of his entitlement to permanency, and failed to request any report reflecting a permanency evaluation until October 14, 1997. The Travelers should have obtained an evaluation of permanent impairment due to the carpal tunnel injury a year after the surgery. Because claimant had two surgical procedures on his hand in 1991, the date of the second procedure, July 1, 1991, shall be operative here. Accordingly, interest shall be awarded on permanency due for the carpal tunnel surgery from July 1, 1992.
4. It has been a long accepted practice in this Department to place an affirmative obligation on an employer to obtain a permanency examination and impairment rating. Failure to do so results in a charge of interest from the date it was due until it is paid. Workers’ Compensation Rule 11 (d) was a formalization of that well observed and regarded departmental practice. Heaney v. Southwestern Vermont Medical Center, Opinion No. 22-96WC (Apr. 29, 1996); Berno v. Stripping Unlimited, Inc., Opinion No. 07-98WC (Feb. 6, 1998); Longe v. Boise Cascade Corp., Opinion No. 42-98WC (Jul. 20, 1998). Furthermore, an assessment of interest from the date a particular amount was due and unpaid was approved by the Vermont Supreme Court in Marsigli Estate v. Granite City Auto Sales, 124 Vt. 467 (1965) (Marsigli II).
Therefore, based on the foregoing Conclusions and Findings, the defendant or in the event of its default, The Travelers is hereby ORDERED to:
1. Pay the claimant three weeks of temporary total compensation for the period beginning July 1, 1991.
2. Pay the claimant 2.25 weeks of permanent partial disability compensation at the rate of 2.70 for the unpaid portion of claimant’s ten percent impairment of his right upper extremity due to carpal tunnel syndrome.
3. Pay the claimant 21.5 weeks of permanent partial disability compensation at the rate of 2.70 for the unpaid portion of claimant’s ten percent impairment of his right upper extremity due to ulnar nerve entrapment.
4. Pay attorney’s fees in the amount of 20 percent of the award, not to exceed 00.
5. Pay costs in the amount of 4.91.
6. Pay interest from July 1, 1992 on the amount of compensation for permanent impairment caused by the carpal tunnel injury.
Dated at Montpelier, Vermont, this 7th day of November 1998.