Zebic v. Rhino Foods, Inc., No. 2020-209

Docket NºNo. 2020-209
Citation2021 VT 35
Case DateMay 21, 2021
CourtUnited States State Supreme Court of Vermont

2021 VT 35

Sadeta Zebic
Rhino Foods, Inc.

No. 2020-209

Supreme Court of Vermont

January Term, 2021
May 21, 2021

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

On Appeal from Commissioner of Labor

Michael A. Harrington, Interim Commissioner

Christopher McVeigh of McVeigh ? Skiff, LLP, Burlington, for Plaintiff-Appellant.

David A. Berman of McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. CARROLL, J. Claimant Sadeta Zebic appeals the Commissioner of Labor's decision not to certify a question for review to the superior court, arguing that the Commissioner had no discretion not to certify her proposed question. We conclude that we do not have jurisdiction to hear this appeal because claimant previously appealed to the superior court, and the statutory scheme provides that a workers' compensation claimant may appeal either to the superior court or directly to this Court.

¶ 2. The record indicates the following. Claimant began working for Rhino Foods in 1999. While at work in September 2015, she slipped—but did not fall—inside a walk-in cooler,

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which caused injuries to her knee and lower back. She submitted a workers' compensation claim the following month, and Rhino Foods determined that she was entitled to temporary disability benefits, which she received between October 2015 and February 2016.

¶ 3. In January 2016, claimant received arthroscopic meniscus repair surgery on her right knee. She returned to work with reduced activity the following month. That August, an occupational physician performed an independent medical examination and determined that claimant was at end medical result with respect to her lower back and knee injuries. He assessed an impairment rating of four percent for the knee condition and zero percent for the back injury. Based on the assessed knee impairment, Rhino Foods provided claimant with a lump sum payment representing permanent partial disability benefits, which the Commissioner approved as it related to the knee injury alone. See 21 V.S.A. § 648(a) (providing compensation rate for injury resulting in "partial impairment which is permanent and which does not result in permanent total disability" and explaining that "impairment" is "the percentage of impairment to the particular body part, system, or function converted to the percentage of impairment to the whole person").

¶ 4. Later in August 2016, claimant went to the emergency room because her lower back symptoms worsened. She was diagnosed with a lumbar strain and prescribed ibuprofen and diazepam. Over the next several months, her back condition was treated with "a combination of physical therapy, chiropractic care, acupuncture, steroid injections, and nonsteroidal anti-inflammatory drugs." She returned to work in October 2016 with physical restrictions. As of March 2017, claimant was working and earning the same wages as before her 2015 injury.

¶ 5. That same month, however, claimant suffered a subarachnoid hemorrhage due to a ruptured aneurysm in her left middle cerebral artery, which is one of the major arteries in the left hemisphere of the brain. Due to the risk of dying, claimant immediately underwent surgery where

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a surgeon removed part of her skull, removed the hemorrhage, and clipped the ruptured aneurysm. The hemorrhage rendered claimant unable to work.

¶ 6. After her hemorrhage, claimant continued to experience lower back symptoms related to her September 2015 injury. By July 2018, she had sufficiently recovered to undergo spinal fusion surgery, which Rhino Foods approved as related to her September 2015 injury. Although she participated in physical therapy as part of her recovery, claimant was still unable to work following surgery. In August 2019, a neurosurgeon performed an independent medical examination and placed claimant at end medical result with a twenty-eight percent impairment rating due to her lower back injury. Factoring in claimant's subarachnoid hemorrhage, the neurosurgeon concluded that she was permanently and totally disabled.

¶ 7. Thereafter, claimant sought temporary total disability benefits for the period between her fusion surgery, July 12, 2018, and her end medical result diagnosis on August 21, 2019, as well as vocational rehabilitation services. See 21 V.S.A. § 642 (providing that if "injury causes total disability for work," employer shall pay employee specified amount of compensation); id. § 641(a) ("When as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including retraining and job placement . . . ." (emphasis added)). Rhino Foods denied claimant's claim for benefits because it concluded that she was only disabled and unable to perform work because of her subarachnoid hemorrhage, which was unrelated to her September 2015 workplace injury. Claimant requested a formal hearing before the Commissioner.

¶ 8. A hearing was held in December 2019 to determine three issues: (1) whether claimant's accepted lower back injury causally contributed to her subarachnoid hemorrhage in

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March 2017; (2) whether claimant was entitled to temporary total disability benefits because of her July 12, 2018 spinal fusion surgery; and (3) whether claimant was entitled to vocational rehabilitation services. At the hearing, the parties presented competing expert testimony about whether claimant's September 2015 injury contributed to the March 2017 subarachnoid hemorrhage. The surgeon who treated claimant's subarachnoid hemorrhage testified that it was a "possibility" that the pain and stress stemming from the back injury "could have caused her blood pressure to rise and thereby contribute[d] to her hemorrhage." Another physician testified that the pain and stress caused by the lower back injury, as well as claimant's use of steroid injections and drugs to control the pain, increased her blood pressure, which in turn could have contributed to her March 2017 hemorrhage.

¶ 9. Rhino Foods presented two expert witnesses who concluded the opposite. One doctor testified that in his forty years of professional experience, he had never heard of back pain causing such a blood pressure spike to lead to the rupture of an aneurysm. He concluded that it was more likely that claimant's aneurysm presented without symptoms for many years, and her history of smoking and uncontrolled high blood pressure put her at risk of rupture at any time, regardless of the September 2015 workplace injury. The neurosurgeon who performed the August 2019 independent medical examination testified that "no objective determination in [claimant's] medical records support[ed] the theory that her post-injury pain and stress contributed to an increase in blood pressure that contributed to her subarachnoid hemorrhage."

¶ 10. In May 2020, the Commissioner issued a written decision finding that claimant had not proven a sufficient causal relationship between her 2015 workplace injury and her 2017 subarachnoid hemorrhage. The Commissioner explained that it was claimant's burden to prove the causal connection between her hemorrhage and the 2015 injury, which requires evidence to

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create "in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability." Claimant failed to meet this burden, the Commissioner concluded, because the weight of the evidence indicated that she was at increased risk for rupturing her preexisting aneurysm due to her age, sex, and preinjury hypertension. While the Commissioner acknowledged that claimant's treating surgeon credibly testified that her "workplace injuries might have impacted her blood pressure and that might have contributed to her eventual hemorrhage," the Commissioner also pointed out that the surgeon "refrained from asserting that it was even medically probable." Similarly, although claimant's other expert witness testified that there was a causal connection, the Commissioner found "his causal analysis far too speculative to be persuasive."

¶ 11. Based on this finding, the Commissioner concluded that claimant was not entitled to temporary total disability benefits between her July 12, 2018 surgery and her end medical result diagnosis on August 21, 2019 because her disability following her surgery was not caused by her workplace injury; rather, her hemorrhage was "an independent and superseding cause." Claimant was not entitled to vocational rehabilitation services for the same reason—her present inability to work was not the result of a work-related injury.

¶ 12. Pursuant to 21 V.S.A. § 670, claimant appealed the Commissioner's decision to the Chittenden Superior Court. Because the superior court's jurisdiction is limited to "questions of fact or questions of fact and law certified to it by the Commissioner," id. § 671, claimant proposed three certified questions to the Commissioner:

1. Whether [claimant]'s work-related injuries for her low back and her knee contributed to her subarachnoid hemorrhage which she suffered on March 5, 2017;

2. Whether [claimant] is entitled to temporary disability benefits for her work-related low back surgery; and

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3. Whether the Commissioner erred in failing to use a standard of plausibility on the causal relationship between consequences of [claimant]'s work-related injury and the symptoms and treatment [of] her

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