Coburn v. Frank Dodge & Sons

Coburn v. Frank Dodge & Sons  (95-475); 165 Vt 529; 687 A.2d 465

[Opinion Filed 30-Aug-1996]

[Motion for Reargument Denied 31-Oct-1996]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-475

Roger Coburn                                      Supreme Court

                                                  On Appeal from
    v.                                            Commissioner of Labor &
                                                  Industry

Frank Dodge & Sons and                            May Term, 1996
Travelers Insurance Co.


Mary S. Hooper, Commissioner

Rodney F. Vieux, Johnson, for plaintiff-appellant

Andrew C. Boxer of Kiel & Associates, Springfield, for defendants-appellees


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       ALLEN, C.J.  This is a workers' compensation case in which Roger
  Coburn (claimant) appeals a decision of the Commissioner of the Department
  of Labor and Industry awarding him permanent disability compensation,
  medical benefits, and partial attorney's fees.  Claimant argues that the
  Commissioner erred in limiting his recovery and seeks additional
  compensation, benefits, and fees.  We affirm.

       On January 24, 1988, claimant suffered a work-related injury while
  employed by defendant Frank Dodge and Sons, a construction company.  He
  experienced recurring lower-back, neck, and shoulder-blade pain, which he
  treated with an over-the-counter pain medication. On April 13, 1989,
  claimant suffered another work-related injury.  As a result of this second
  injury, he complained of increased neck and upper- and lower-back pain.

       Claimant sought medical treatment on a number of occasions to
  alleviate his neck and back pain.  On March 1, 1990, his treating
  physician, Dr. Binter, performed a bilateral L3-4 laminectomy and
  discectomy, which alleviated his lower-back pain.  On December 31, 1990,

 

  Dr. Binter performed a foraminotomy, which relieved some of his neck and
  upper-back pain. Dr. Binter noted that, although claimant recovered well
  from this surgery, he continued to experience some mid-scapular pain.  She
  therefore recommended physical therapy.

       On July 13, 1992, Dr. Binter placed claimant at "medical end result"
  regarding both his neck and lower-back surgeries.  Medical end result is
  "the point at which a person has reached a substantial plateau in the
  medical recovery process, such that significant further improvement is not
  expected, regardless of treatment."  Vt. Labor and Indus. Dep't Reg., Vt.
  Workers' Comp. and Occupational Disease Rules, Rule 2(h), 3 Code of Vt.
  Rules 24010003-1 (1995). Dr. Binter concluded that claimant had thirty-one
  percent permanent partial impairment to the cervical and lumbar spine.  Two
  other physicians also examined him to determine whether he had reached
  medical end result.  Dr. Phillips opined that claimant had reached medical
  end result with respect to his lower-back injury in October 1991.  Dr. Ford
  examined claimant on October 7, 1992, for defendant Traveler's Insurance
  Company and concluded that he had reached medical end result for both his
  neck and lower-back surgeries.  Dr. Ford concluded that claimant had a
  twenty-nine percent permanent partial impairment to the spine.

       In August 1992, claimant sought chiropractic treatment from Dr.
  Vartanian for his remaining upper-back pain.  Dr. Vartanian treated him on
  a regular basis from August 1992 until March 1993.  Claimant testified that
  this treatment relieved his symptoms to the extent that it improved his
  ability to walk, enabled him to work part time, and enabled him to perform
  simple household chores.  His sleep patterns also improved, and he
  decreased his use of pain medication.  Because claimant's condition
  improved while under his care, Dr. Vartanian disagreed with the earlier
  diagnoses of medical end result.

       Claimant began working part time at an automotive supply store in
  September 1992.  He testified that his pain increased while working for
  this employer because the job required him to spend long hours on his feet
  and to stock merchandise.  He also testified that he experienced difficulty
  dealing with customers and working on the computer.  His weekly work hours
  varied,

 

  but he generally worked thirty hours per week, earning six dollars an hour.

       In June 1993, claimant left the automotive supply store and accepted
  employment as a truck driver with a crane service company.  This employer
  demanded longer hours and frequent overtime.  The increased physical
  demands aggravated claimant's back pain, and he resumed taking pain
  medication.  In the fall of 1993, he left the crane service company because
  he could not withstand the job's physical demands.  He entered a physical
  therapy program at Copley Hospital in November 1993 and was discharged on
  January 5, 1994.

       Claimant sought workers' compensation for the injuries he received
  while employed by Frank Dodge & Sons.  In February 1992, the Commissioner
  ordered Traveler's Insurance Company to pay the amount necessary to allow
  claimant to continue treatment with Dr. Binter. Claimant later filed a
  claim with the Commissioner to recover additional temporary disability
  compensation and medical benefits for the Copley Hospital physical therapy
  program and Dr. Vartanian's care.  The Commissioner concluded that Dr.
  Binter's opinion regarding medical end result was entitled to the greatest
  weight because she was claimant's primary treating physician. Having found
  that medical end result occurred July 9, 1992, the Commissioner concluded
  that claimant was not entitled to temporary disability benefits beyond that
  date.  The Commissioner further concluded that Dr. Vartanian's care was
  reasonable, necessary, and compensable, but somewhat excessive.  The
  Commissioner awarded $1629 in medical benefits for treatment rendered by
  Dr. Vartanian through January 4, 1993, the date by which claimant had
  reached a steady weekly work schedule at the automotive supply store.  The
  Commissioner also awarded $194.05 in costs and $542.95 in attorney's fees. 
  The Commissioner did not award medical benefits for the Copley Hospital
  physical therapy program.

       Claimant argues that the Commissioner's award is inadequate in light
  of her findings. He maintains that he is entitled to: (1) temporary
  disability compensation beyond July 9, 1992, the date found by the
  Commissioner to be medical end result, (2) medical benefits for the Copley
  Hospital physical therapy program and all of Dr. Vartanian's care, and (3)
  full costs and

 

  attorney's fees.

                                I.

       Claimant argues that he is entitled to temporary disability benefits
  beyond July 9, 1992. He contends that the Commissioner's finding of medical
  end result on July 9, 1992, is erroneous because her findings are
  inconsistent.  Specifically, he contends that medical end result is a
  conclusion of law and that this conclusion is erroneous where the
  Commissioner finds that a patient later experienced substantial improvement
  in his condition.  We disagree.

       Under Vermont workers' compensation law, a claimant is entitled to
  temporary disability compensation upon reaching medical end result or
  successfully returning to work.  See Orvis v. Hutchins, 123 Vt. 18, 24, 179 A.2d 470, 474 (1962) (temporary disability ends when maximum earning power
  has been restored or recovery process has ended).  The determination of
  medical end result is a question of fact for the Commissioner.  See Ortiz
  v. Industrial Comm'n of Utah, 766 P.2d 1092, 1095 (Utah 1989); see also
  Merrill v. University of Vt., 133 Vt. 101, 106, 329 A.2d 635, 638 (1974)
  ("duration of the disability is one of fact to be determined by the
  commission") (quoting Employers' Liab. Assur. Corp. v. Industrial Accident
  Comm'n, 109 P.2d 716, 718 (Cal. Dist. Ct. App. 1941)).  When reviewing the
  Commissioner's factual findings, we test the sufficiency of the findings
  from a point of view favorable to the award, Moody v. Humphrey & Harding,
  Inc., 127 Vt. 52, 54, 238 A.2d 646, 647-48 (1968), and we will overrule
  only where those findings have no evidentiary support in the record or
  where the decision is based on "evidence so slight as to be an irrational
  basis for the result reached."  Kenney v. Rockingham Sch. Dist., 123 Vt.
  344, 348, 190 A.2d 702, 705 (1963).

       Claimant argues that the Commissioner erred by assigning greatest
  weight to Dr. Binter's opinion.  He contends that the Commissioner should
  have assigned Dr. Vartanian's opinion the greater weight because Dr.
  Vartanian examined claimant later in time and had more information on which
  to base a diagnosis of medical end result.  Dr. Binter, however, was
  claimant's treating physician for three years.  During that time she
  performed two surgeries and

 

  recommended that he receive physical therapy.  She noted claimant's
  improvement after each surgical procedure.  Dr. Binter's opinion therefore
  is not so slight as to be an irrational basis for the Commissioner's
  finding.  Moreover, the weight of the evidence is not reviewable by this
  Court on appeal.  Jewell v. Olson Constr. Co., 122 Vt. 434, 436, 175 A.2d 509, 511 (1961); see also 21 V.S.A. § 672 (jurisdiction of Supreme Court
  limited to review of questions of law).

       Claimant further argues that the Commissioner's finding of medical end
  result is inconsistent with her finding that he later improved while under
  Dr. Vartanian's care.  The fact that Dr. Vartanian's care later improved
  claimant's symptoms is not inconsistent with finding medical end result
  earlier in time.  The proper test to determine medical end result is
  whether the treatment contemplated at the time it was given was reasonably
  expected to bring about significant medical improvement.  Vt. Labor and
  Indus. Dep't Reg., Vt. Workers' Comp. and Occupational Disease Rules, Rule
  2(h), 3 Code of Vt. Rules 24010003-1 (1995).  The fact that some treatment,
  such as physical or drug therapy, continues to be necessary does not
  preclude a finding of medical end result if the underlying condition
  causing the disability has become stable and if further treatment will not
  improve that condition.  1C A. Larson, Workmen's Compensation Law §
  57.12(c), at 10-40 to 10-46 (1996); see also Janis v. Industrial Comm'n,
  553 P.2d 1248, 1250 (Ariz. Ct. App. 1976) (claimant's condition is
  stationary where underlying condition causing pain is stable, although pain
  may not be stable); O'Banner v. Westinghouse Elec. Corp., 459 S.E.2d 324,
  327 (S.C. Ct. App. 1995) (finding that employee continued to take pain
  medication not inconsistent with finding of medical end result where
  underlying condition was stable and would show no further improvement).

                                II.

       Claimant next argues that he is entitled to medical benefits for the
  Copley Hospital physical therapy program and all of Dr. Vartanian's care
  pursuant to 21 V.S.A § 640.  He contends that he is entitled to be
  reimbursed for all of his medical treatment because the Commissioner found
  that treatment reasonable and necessary.  Again, we disagree.

 


       "The award of the [C]ommissioner is equivalent to the judgment of a
  trial court and doubtful findings must be construed to support it if this
  may reasonably be done."  Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161,
  166, 184 A.2d 220, 223 (1962).  Dr. Vartanian treated claimant with
  scheduled care from August 1992 until March 1993.  The Commissioner found
  that this treatment relieved claimant's symptoms to the extent that he was
  able to perform simple household chores such as washing dishes without
  holding onto the sink.  Further, his sleep patterns improved, and his use
  of pain medication decreased.  The record also established that by January
  4, 1993, claimant had returned to work nearly full time at the automotive
  supply store, averaging thirty hours per week.  His job involved stocking
  merchandise and required that he remain on his feet for long periods of
  time.  The Commissioner could reasonably infer that, because claimant was
  able to perform stock work, remain on his feet for extended periods of
  time, and work nearly full time, Dr. Vartanian's care after that date was
  excessive.

       Additionally, claimant attended the Copley Hospital physical therapy
  program from November 1993 to January 1994.  The Commissioner found that
  this treatment "significantly improved [claimant's] condition."  The record
  also established, however, that claimant entered physical therapy to treat
  pain induced by the increased physical demands of his job at the crane
  service company.  From this evidence, the Commissioner could have
  reasonably concluded that the need for physical therapy did not arise from
  the injuries sustained by claimant while employed by defendant Frank Dodge
  & Sons and that the therapy therefore was not compensable.  See Quinn v.
  Pate, 124 Vt. 121, 126, 197 A.2d 795, 798 (1964) (employer need not
  compensate employee who received injuries outside occupation engaged in for
  employer). Consequently, claimant is not entitled to additional medical
  benefits.

                               III.

       Claimant argues that the Commissioner erred by awarding him only a
  portion of his attorney's fees.  The Commissioner may award a claimant
  reasonable attorney's fees if the claimant prevails.  21 V.S.A. § 678(a). 
  This fee may be calculated as a percentage of the award

 

  as long as the fee does not exceed twenty percent of the medical
  compensation awarded.  Vt. Labor and Indus. Dep't Reg., Vt. Workers' Comp.
  and Occupational Disease Rules, Rule 10(a)(2), 3 Code of Vt. Rules
  24010003-7 (1995).  The Commissioner awarded claimant attorney's fees equal
  to one-third of the medical compensation awarded.  Although this amount is
  greater than twenty percent of the medical compensation, we affirm because
  claimant has not suffered any prejudice and defendant has not
  cross-appealed on the issue.

       Claimant also has filed a motion requesting reimbursement for
  attorney's fees and costs incurred in this appeal.  In a workers'
  compensation appeal to the Supreme Court, a claimant is entitled to
  reasonable attorney's fees if he prevails. 21 V.S.A. § 678(b).  Claimant
  has not prevailed in this appeal, and his motion therefore is denied.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice