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Delaney v. Hartford Accident & Indemnity Co.3/1/2001
lled in school at Williston State College in Williston, North Dakota.
Claimant testified, and I find, that the light-duty position he was assigned upon returning to work was temporary and that to continue working for Holly Sugar on a permanent basis he would have been required to lift at least 50 pounds.
Since August 1998, claimant has been attending college. In addition to attending school, he is working as a disc jockey for about 10 hours a week at $5.15 an hour. He plans to transfer to a four-year college to pursue a bachelor's degree in aviation science as an air traffic controller. A further discussion of his vocational plans is set out later in this decision. Meanwhile, a further explication of claimant's subsequent medical history is necessary.
On November 12, 1998, claimant had a sudden onset of "pain to lower right side of back" and sought treatment at the local hospital's emergency room (ER). (Ex. 9 at 58.) The history taken at the ER notes as follows:
This 21-year-old male was sitting at a computer and experienced abrupt onset of discomfort over the right paralumbar area. He states that in December, 1997 he was buried in "1 ½ tons of sugar at the Holly Sugar Factory." He states he has had some recurring neck and back discomfort since. He has had no radicular symptoms. He has had no recent recalled history of discreet trauma. . . . (Id. at 57, emphasis added.)
The ER physician noted "discomfort on direct palpation over the right paralumbar musculature with some local paralumbar musculature spasm." (Id.) The doctor diagnosed paralumbar strain with spasm, and recommended bed rest for one or two days. (Id.)
Hartford refused payment for the November 12, 1998 emergency room visit, declaring that it was "not related" to his industrial accident. (Ex. 10 at 4.) Given claimant's history, and the lack of a contemporaneous medical opinion that the claimant's visit was unrelated to his industrial injury, I am unable to find any reasonable explanation for that denial. The denial was unreasonable.
On November 25, 1998, claimant went back to Dr. Vaughan. (Ex. 9 at 54.) Dr. Vaughan's office note reads:
. . . sudden back pain while he was studing at the computer at college and pain radiated into his right lateral hip while sitting at the computer. On examination the patient has tenderness over the right greater trochanter and some mild spasm in the lower back. X-rays of his back show congenital spina bifida of S1, but no other abnormalities. AP of the pelvis is normal. DX [diagnosis]: Acute low back strain and right greater trochanteric bursitis. He will take Naprosyn b.i.d. and see me on a prn basis if his symptoms do not diminish over the next few weeks. (He has full ROM [range of motion] of his left shoulder, but has persistent acromion impingement syndrome and pain with abduction and external rotation. He will continue studing as much as possible.) (Id.)
Claimant returned to Dr. Vaughan on February 10, 1999. In his office note on that date, the doctor wrote:
All of his lower back, upper back, and left shoulder symptoms are directly related to the initial injury when a large amount of sugar landed on his back, neck and left shoulder on December 29, 1997. (Id. at 125a, underlining in original, bolding added.)
On February 17, 1999, Dr. Vaughan authored a letter to Hartford's claims adjuster in response to Martello's inquiries about claimant. He opined that claimant's:
. . . left shoulder condition which necessitated surgery on July 1, 1998 was directly related to that injury, the periarticular left shoulder scarring and inflammation, with reaso
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