Cehic v. Mack Molding, Inc.

• Decision Date: 13 January 2006
• Docket Number: No. 04-353.,04-353.
• Citation: 2006 VT 12,895 A.2d 167
• Parties: Ramiz CEHIC v. MACK MOLDING, INC.
• Court: Vermont Supreme Court

895 A.2d 167

2006 VT 12

Ramiz CEHIC v. MACK MOLDING, INC.

No. 04-353.

Supreme Court of Vermont.

January 13, 2006.

COPYRIGHT MATERIAL OMITTED

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Mack Molding, Inc. appeals from the Commissioner of Labor and Industry's decision that it is responsible for paying workers' compensation benefits for its former employee, claimant Ramiz Cehic. The Commissioner, after a contested hearing, concluded that a 1998 injury claimant incurred while employed at Mack Molding, rather than a more recent 2001 lifting incident at a subsequent employer, Pike Industries, was responsible for claimant's continued impairment and need for back surgery in 2002. On appeal, Mack Molding argues that the Commissioner erred in considering the later lifting incident as a temporary flare-up of a preexisting condition, instead of analyzing the incident as an "aggravation" of a preexisting injury, for which the latest employer would be responsible, or a "recurrence" of an old injury, for which Mack Molding would remain liable. Alternatively, Mack Molding argues that this Court should abandon the current aggravation-or-recurrence analysis and, instead, adopt a bright-line rule that the employer at the time of the last injurious exposure is always liable. We affirm.

¶ 2. Claimant was employed by Mack Molding in 1998 when he injured his back in a lifting incident, suffering a herniated disc in his spine, an injured facet joint, and strained lower lumbar muscles. In 1999, as a result of the injury, claimant had surgery on his spine, which removed part of the facet joint and large amounts of disc material. After the surgery, claimant continued to experience pain, worked part-time for a while, and was gradually released by his doctor to work full-time, but with lifting restrictions. In May 2000, while his workers' compensation claim against Mack Molding was still under adjustment, claimant began work at Pike Industries, a New Hampshire employer. In November 2000, Mack Molding sent claimant to an orthopedic surgeon, who determined that claimant had reached a medical end result for the 1998 injury, with persistent back and leg pain and a permanent disability amounting to a ten-percent impairment of the whole person.

¶ 3. Eight months later, on July 31, 2001, after lifting a pipe at Pike Industries, claimant experienced back pain and leg numbness and sought medical treatment. Claimant missed some time from work, engaged in physical therapy, and returned to full-time work by September or October of 2001. Claimant was laid off from Pike Industries on January 4, 2002. Shortly thereafter, claimant underwent a surgical fusion of his lower lumbar vertebrae. Claimant first filed a workers' compensation claim with the New Hampshire Department of Labor, which determined that Pike Industries was not responsible.

¶ 4. Claimant next filed for workers' compensation in Vermont against Mack Molding. Mack Molding denied coverage, contending that it was not answerable for the pipe-lifting episode at Pike, since it was not a recurrence of the Mack Molding injury, but an aggravation of that injury while in Pike's employ. At the time of the hearing in 2004, claimant had not resumed employment. After a contested hearing, the Commissioner concluded that the back pain and numbness incurred in July 2001 at Pike was a "flare-up" for which Mack Molding was not responsible. The Commissioner determined the flare-up prompted claimant to seek medical treatment, but did not alter claimant's underlying condition remaining from his earlier accident at Mack Molding. The Commissioner further determined, however, that once claimant's condition returned to his pre-Pike-injury "baseline" in late September or October 2001, Mack Molding continued to be liable for benefits due on account of claimant's underlying condition. See Pacher v. Fairdale Farms, 166 Vt. 626, 629, 699 A.2d 43, 47 (1997) (mem.) (describing "baseline" as achieved when a claimant reaches the condition he or she was in prior to the subsequent, distinct injury).

¶ 5. The Commissioner based his conclusion on opinions from three medical experts, including one hired by Mack Molding, that the Pike incident changed nothing in claimant's underlying condition from his earlier injury at Mack Molding. Two of the experts related the need for fusion surgery to the earlier Mack Molding injury. Two of the experts opined that claimant returned to his pre-Pike-injury baseline four months before the 2002 surgery. That claimant's condition never stabilized after the earlier injury was further supported by medical indications that he still had pain and could work only with lifting restrictions. Notwithstanding an opinion to the contrary from a fourth medical expert, whose opinion was not supported by the MRI, the Commissioner's conclusion was amply supported by the medical evidence.

¶ 6. Our review in a direct appeal from a decision by the Commissioner of Labor and Industry is limited to questions of law certified by the Commissioner. 21 V.S.A. § 672. We are bound by the Commissioner's findings so long as they are supported by the evidence. Wroten v. Lamphere, 147 Vt. 606, 611, 523 A.2d 1236, 1239 (1987). The sufficiency of the findings are considered from a point of view favorable to the award. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533, 687 A.2d 465, 467 (1996). "[W]e 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.'" Id. at 533, 687 A.2d at 467-68 (quoting Kenney v. Rockingham Sch. Dist., 123 Vt. 344, 348, 190 A.2d 702, 705 (1963)). Where the Commissioner's conclusions are "rationally derived from the findings and based on a correct interpretation of the law," we will affirm. Pacher, 166 Vt. at 627, 699 A.2d at 46.

¶ 7. The question certified by the Commissioner was whether "a lifting incident at Pike Industries in 2001 or an injury at Mack Molding in 1998 [was] responsible for claimant's current condition, his January 2002 surgery and lost time from work." Mack Molding argues that application of the traditional aggravation-or-recurrence analysis would conclusively result in a determination that claimant's current condition and need for surgery in 2002 resulted from an aggravation at Pike of his preexisting condition. We disagree with Mack Molding's contention that the aggravation-or-recurrence standard was the only applicable theory of liability for categorizing the Pike lifting injury, or that the Commissioner erred by relying on another theory, which was supported by the evidence, in analyzing that injury.

¶ 8. We have stated that where a dispute concerns a compensation claim involving successive employers and successive injuries, liability will remain with the first employer if the second injury is a recurrence of the first. Farris v. Byrant Grinder Corp., 2005 VT 5, ¶ 4, 177 Vt. 456, 869 A.2d 131. "If, however, the second incident aggravated, accelerated, or combined with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, the second incident is an `aggravation,' and the second employer becomes solely responsible for the entire disability at that point." Pacher, 166 Vt. at 627-28, 699 A.2d at 46. We have also observed, as in Pacher, that at least a third option exists where an incident is neither an aggravation nor a recurrence but causes "a new injury distinct from claimant's prior injuries." Id. at 628, 699 A.2d at 46. The Commissioner, relying on Pacher, determined that the injury claimant incurred at Pike fell within this third option as "a so-called flare-up."

¶ 9. The Commissioner's melding of a distinctly new injury and condition, as discussed in Pacher, with a flare-up may lend more confusion than clarity to the issue. Pacher acknowledged that just because a claimant incurs a subsequent injury does not mandate a finding that the injury is either a recurrence or an aggravation; alternatively, a subsequent incident may be an entirely new injury. See Pacher, 166 Vt. at 628, 699 A.2d at 46-47 (upholding the Commissioner's conclusion that a later injury during subsequent employment to right lower back was new and distinct from earlier injury, from prior employment, to left lower back and left leg). "Flare-up" most appropriately connotes a temporary worsening of a preexisting disability caused by a new trauma for which the new "employer is responsible for paying compensation benefits until the worker's condition returns to the baseline, and not thereafter." See Wood v. Fletcher Allen Health Care, 169 Vt. 419, 424, 739 A.2d 1201, 1206 (1999) (summarizing the Commissioner's use of the temporary flare-up doctrine, but finding it inapplicable to the facts of the...