Stannard v. Stannard Co., Inc.
Annotate this Case
Stannard v. Stannard Co., Inc. (2002-378); 175 Vt. 549; 830 A.2d 66
2003 VT 52
[Filed 29-May-2003]
ENTRY ORDER
2003 VT 52
SUPREME COURT DOCKET NO. 2002-378
APRIL TERM, 2003
James Stannard } APPEALED FROM:
}
}
v. } Bennington Superior Court
}
Stannard Company, Inc., CNA Insurance }
Company, Peerless Insurance, Vermont } DOCKET NO. 402-11-01 Bncv
Property and Casualty Insurance
Trial Judge: Richard W. Norton
In the above-entitled cause, the Clerk will enter:
¶ 1. CNA Insurance Company (CNA) appeals a superior court order
holding CNA, and not its successor insurers Peerless Insurance and Vermont
Property and Casualty Insurance, liable for workers' compensation benefits
related to the osteoarthritic condition of claimant James Stannard's right
and left knees. Stannard, a plumber with the Stannard Company, suffered
several injuries that aggravated and accelerated the underlying arthritic
condition in his knees during the ten years that CNA carried the Stannard
Company's workers' compensation insurance. The trial court held that
Stannard's continued work as a plumber for three years after CNA was
replaced on the risk by the two other insurance companies did not
sufficiently aggravate or accelerate his medical condition so as to
constitute a new injury, and therefore CNA remained solely liable for the
recurrence of Stannard's osteoarthritic condition. We affirm.
¶ 2. James Stannard worked full-time for his family's plumbing and
heating company for thirty-two years, from age eighteen until he was forced
by his knee injuries to cease work at age fifty. During an average day,
Stannard spent approximately sixty-five percent of his time on his knees,
repeatedly rising and squatting. His work also involved standing on hard
surfaces, performing twisting movements, and repeatedly going up and down
stairs, often while carrying a five-gallon tool pail weighing between
thirty-five and forty pounds. Additionally, because of his strength and
large size, Stannard did much of the company's heavy lifting, such as
downloading 800-pound boilers by rope and working as the "low man" when
carrying old bathtubs, toilets, and radiators up and down stairs. He was
often given the job of breaking apart old plumbing fixtures with a sledge
hammer and hauling them away.
¶ 3. During the last thirteen years of Stannard's career, three
companies provided the Stannard Company with workers' compensation
insurance. CNA carried the insurance from March 30, 1985 to March 30,
1995; the Peerless Insurance Company covered March 30, 1995 to March 30,
1997; and United Pacific covered from March 30, 1997 until Stannard's last
day of work on June 5, 1998. Since then, the Vermont Property and Casualty
Insurance Guaranty Association has assumed United Pacific's obligations.
¶ 4. Stannard initially sought treatment for pain and swelling in
his right knee in 1980 and 1983. In 1985, he had arthroscopic surgery to
repair a torn meniscus in that knee. Stannard filed a first report of
injury with the Department of Labor and Industry (Department) for his right
knee some time during that period. During surgery, it was discovered that
Stannard was suffering early degenerative changes in the right knee from
osteoarthritis. Stannard returned to work, but filed additional claims
with the Department for work-related injuries to his right knee in 1992,
1993, and 1994. In 1998, three years after CNA had left the risk, Stannard
filed a claim with the Department that the knee surgery he had undergone
years earlier was no longer sufficient and that the right knee joint was
"gone." In June of 1998, Stannard underwent a less invasive high tibial
osteotomy instead of a total knee replacement in hopes of being able to
continue working. Complications from the surgery lasted several months,
however, and the subsequent and enduring pain - together with the
anticipated surgery on his other knee - forced Stannard to give up any
hopes of returning to work as a plumber. He is now awaiting a total right
knee replacement.
¶ 5. Regarding his left knee, Stannard filed his first report of
injury with the Department after stepping into a hole and twisting his knee
while working in 1989. Stannard then underwent arthroscopic surgery to
repair a tear in the posterior horn of the medial meniscus. In the
process, cartilage damage possibly indicating a very early stage of
osteoarthritis was discovered. Stannard filed another claim after
re-injuring the left knee from a fall at work in 1994. He continued both
to work and treat the left knee in the same manner as his right knee, and
in 1998 filed a claim with the Department that his left knee was also
"gone." In 1999, the ongoing pain in his left knee became intolerable.
Based on the ineffectiveness and complications from the high tibial
osteotomy on his right knee, Stannard elected to have a total left knee
replacement. Following several months of therapy, Stannard reached a
medical end result for his left knee sometime before the end of August
2000.
¶ 6. Stannard subsequently filed for workers' compensation
benefits, and the parties litigated before the Department in 2001. After a
hearing, the Commissioner of Labor and Industry (Commissioner) concluded,
in relevant part, that Stannard's bilateral osteoarthritic knee condition
is a compensable injury under the Vermont Workers' Compensation Act, 21
V.S.A. § 601-711 (the Act), and that CNA was responsible for payment of all
benefits because (1) Stannard's knee injuries arose out of his employment
as a plumber while CNA was on the risk, and (2) Stannard's current
condition was a recurrence of injuries that had reached their full extent
prior to 1995. While the Commissioner agreed that Stannard's continued
employment after 1995 clearly aggravated his symptomology, i.e. his level
of pain, the Commissioner held that the work did not aggravate or causally
contribute to his underlying disability.
¶ 7. On appeal, pursuant to 21 V.S.A. § 671, the Commissioner
certified two questions to the Bennington Superior Court: (1) whether
Stannard's bilateral osteoarthritic knee condition is a compensable injury
under the Act, and (2) if so, which carrier is responsible for benefits
related to Stannard's (a) right knee and (b) left knee. Although entitled
to a de novo hearing, the parties stipulated to waive live testimony and
submitted the case on the record produced before the Department. The trial
court subsequently concluded that Stannard had made out a compensable claim
since, although his underlying osteoarthritic condition may have
pre-existed the 1985 and 1989 injuries, those injuries and his working
conditions at a minimum aggravated and accelerated this disease. The court
also held that Stannard's deteriorating post-1995 condition was wholly
attributable to his earlier injuries, and that the medical evidence did not
show that Stannard's weight or continued work as a plumber after 1995
sufficiently accelerated, aggravated, or combined with the pre-existing
injury so as to produce a greater disability than he would have otherwise
experienced. The trial court therefore held CNA solely responsible for all
of Stannard's workers' compensation claims. This appeal followed.
¶ 8. A trial court's conclusions that address mixed questions of
law and fact will be upheld so long as the court applied the correct legal
standard and the conclusions are supported by the findings. Landmark Trust
(USA), Inc. v. Goodhue, 172 Vt. 515, 519, 782 A.2d 1219, 1224 (2001); see
also City of Burlington v. Davis, 160 Vt. 183, 184, 624 A.2d 872, 873
(1993) (court's conclusions which address mixed questions of law and fact
will be upheld if supported by the findings). Findings are reviewed for
clear error, and will not be disturbed even if contradicted by substantial
evidence; rather, an appellant must show that there is no credible evidence
to support the findings. Mullin v. Phelps, 162 Vt. 250, 260, 647 A.2d 714,
720 (1994); V.R.C.P. 52(a)(2).
¶ 9. The sole contention that CNA makes on appeal is that the
trial court erred in concluding that CNA alone is liable for workers'
compensation benefits for both of Stannard's knees. Specifically, CNA
argues that the trial court's conclusion that "the medical evidence did not
persuasively show that claimant's continued work after 1995 sufficiently
accelerated his osteoarthritis to the extent that his osteoarthritic knee
condition could be considered aggravated" is clear error because (1)
"sufficiently accelerate" is the wrong legal standard and (2) this finding
is not supported by the evidence. We disagree.
¶ 10. CNA first argues that the traditional
recurrence-versus-acceleration/aggravation analysis under Vermont's
Workers' Compensation Act does not depend upon a "sufficient" degree of
acceleration or aggravation as the trial court held. Instead, CNA argues,
the law is that any acceleration or aggravation of a pre-existing condition
results in a compensable claim against the employer/carrier on the risk
when the acceleration/aggravation occurs. See, e.g., Jackson v. True
Temper Corp., 151 Vt. 592, 595, 563 A.2d 621, 623 (1989) ("Our law is clear
that the aggravation or acceleration of a pre-existing condition by an
employment accident is compensable under the workers' compensation law.").
CNA argues that the undisputed fact that Stannard continued to do the same
work for three years after CNA left the risk necessarily further
accelerated the course of his disease, and thus, as a matter of law,
shifted the liability to the later insurance carriers. CNA also argues
that, under these narrow circumstances, where continuous stress and damage
to the knee occur each day the claimant continues to work, the last
injurious exposure rule should be applied. See Pacher v. Fairdale Farms,
166 Vt. 626, 628 n.2, 699 A.2d 43, 46 n.2 (1997) (mem.) (the last injurious
exposure doctrine is appropriate "only where separate injuries all causally
contribute to the total disability so that it becomes difficult or
impossible to allocate liability among several potentially liable
employers").
¶ 11. We declined to apply the last injurious exposure rule in
Pacher and in Ethan Allen, Inc. v. Bressett-Roberge, ___ Vt. ___, ___, 811 A.2d 171, 172 (2002) (mem.), and do so again here. As Pacher established,
in workers' compensation cases involving successive injuries, the
employer/carrier at the time of the first injury remains liable unless the
medical evidence establishes that the second injury "causally contribute[d]
to the claimant's disability." Id. at 627, 699 A.2d at 46. When
considering a progressively degenerative disease such as osteoarthritis,
where " 'the disease, if left to itself, and apart from any injury, would,
in time, have inevitably caused a complete disability,' " Jackson, 151 Vt.
at 596, 563 A.2d at 623 (quoting Gillespie v. Vt. Hosiery & Mach. Co., 109
Vt. 409, 415, 199 A. 564, 566 (1938)), the causation test becomes whether,
due to a work injury or the work environment, " 'the disability came upon
the claimant earlier than otherwise would have occurred.' " Id. Mere
continuation or even exacerbation of symptoms, without a worsening of the
underlying disability, does not meet the causation requirement. See Ethan
Allen, Inc., ___ Vt. at ___, 811 A.2d at 172 (original employer/carrier
held liable where the employee's bilateral carpal tunnel syndrome was fully
engaged and corrective surgery was already required before the change of
employment, and the employee's continued work under a different
employer/carrier impacted the symptoms but did not further contribute to
the underlying disability); see also City of Burlington, 160 Vt. at 184-85,
624 A.2d at 873 (although work-related stress may have increased the
frequency of seizures, the increase in symptoms was not compensable since
it did not accelerate the underlying disability, a brain tumor).
¶ 12. Here, both the trial court and the Commissioner evaluated
Stannard's injuries in light of the fact that osteoarthritis is a
progressively degenerative disease. Both noted that Stannard's original
injuries in 1985 (right knee) and 1989 (left knee), and all succeeding
injuries, occurred during the ten years CNA was on the risk. Both found
that the osteoarthritis was fully established in Stannard's knees prior to
1995, and both held that the medical evidence did not persuasively show
that Stannard's final three years of employment accelerated the inevitable
surgery for a total knee replacement. The trial court phrased its analysis
as "sufficiently accelerated," causing CNA to argue that sufficiency is not
part of the standard. We do not find this phrasing determinative because
the court went on to conclude that Stannard's deteriorating knee conditions
were "wholly attributable" to his pre-1995 condition, i.e. that the
underlying disability had already progressed so far that Stannard was
already a candidate for total knee replacement in both knees. The evidence
clearly supports this conclusion. Indeed, as noted by the Commissioner,
rather than work conditions hastening the inevitable total knee replacement
surgery, the evidence shows that Stannard actually worked longer than
expected due to his obvious work ethic and commitment to his family
business. Since the only other option would have been to undergo total
knee surgery sooner, and thus be permanently disabled from working sooner,
we agree with the trial court that Stannard's continued work after 1995 did
not, as a matter of law, accelerate the course of his disability. See City
of Burlington, 160 Vt. at 186, 624 A.2d at 874 (Dooley, J., dissenting)
("[T]he acceleration rule must be looked at in relation to the overall
condition of the body, particularly as it relates to plaintiff's ability to
work and function.").
¶ 13. CNA also argues that the evidence does not support this
conclusion. CNA contends that every medical expert accepted by the court
as credible testified that Stannard's work as a plumber after March 30,
1995 continued to aggravate and accelerate the progression of his
osteoarthritic left- and right-knee condition. A review of the record,
however, contradicts this view. Most experts, including the surgeon who
performed Stannard's 1998 and 1999 operations and Stannard's long-time
physician and rheumatologist, testified that Stannard's underlying
osteoarthritic condition was set regardless, but that his continued heavy
labor after 1995 would have worsened the symptoms of his disease. The
medical evidence supports this conclusion. X-rays in 1994 on both of
Stannard's knees showed a "nearly complete loss of the articular cartilage
height and adjacent spurring" in both knees. Measurements done at the same
time showed that Stannard's knees had tipped from valgus alignment into
varus deformity, or bowleggedness, which is caused by loss of cartilage
and, after that, flaking of bone. There was expert testimony that by this
time, in March of 1994, Stannard had bone riding on bone on the medial side
of both knees, a point beyond which further arthritic change through loss
of cartilage would not occur, even though flaking of bone, and thus the
pain, may continue and worsen. The experts further agreed that even with
intermediary treatments such as braces, injections, or a high tibial
osteotomy, such a condition would ultimately not stabilize until the
patient receives a total knee replacement. Given these facts, we cannot
say that the trial court erred in finding that Stannard's osteoarthritis
was fully engaged by 1995, and that the continued deterioration of his
knees was wholly attributable to this pre-existing condition, even though
the pain and other symptoms worsened. See Ethan Allen, Inc., ___ Vt. at
___, 811 A.2d at 172 (trial court finding supported by some of the medical
evidence is not clearly erroneous).
Affirmed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Frederic W. Allen, Chief Justice (Ret.)
Specially Assigned
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