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Ethan Allen8/20/2002
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
This is a dispute over workers compensation responsibility for the injury to claimant, Jeannette Bressett-Roberge. Claimant, claimant's previous employer Personnel Connection, and its insurance carrier, Liberty Mutual Insurance Co. (hereinafter Liberty), appeal from a decision of the superior court after trial that they and not appellees, Ethan Allen, Inc., and its insurance carrier, Travelers Insurance Co. (hereinafter Travelers), are responsible. They argue that the court erred in not using the last injurious exposure rule to determine which of successive employers must provide workers compensation benefits to claimant as a result of her carpal tunnel syndrome. We affirm.
Throughout the relevant period from December 2, 1996 through March 10, 1997, claimant worked as a white sander in the Ethan Allen Furniture factory in Orleans, Vermont. As a white sander, she prepared furniture for staining by sanding off marks by hand and filling holes with wood putty. Up until February 24, 1997, she worked for Personnel Connection; on that day she was hired as an employee of Ethan Allen, Inc. and worked for it until she injured her back and left on March 10. From the beginning of her work, claimant suffered pain, swelling and numbness in her hands and arms as a result of the repetitive motion of the sanding activity. The doctors eventually diagnosed claimant's condition as carpal tunnel syndrome and prescribed corrective surgery. The superior court made the following findings concerning the injury:
Here, the credible, persuasive evidence establishes that [claimant's] . . . bilateral carpal tunnel syndrome was in existence, and sufficiently manifest that corrective surgery would have been required if she had made a formal complaint at that time, by the end of January 1997. By then she was fully engaged with and exhibiting all the classic symptoms: swelling, numbness, tingling, night-time pain, and most importantly shooting pain up and down her arms. Admittedly it is a progressive disease, but in her case that progression had clearly manifested itself as of the end of January 1997.
Conversely, even after her formal complaint and physical exam on 2/14/97, her pain and complaints did not radically change or escalate, and she was able to keep performing the same job , and the same duties, until her separate back injury on 3/7/97 ended her career at Ethan Allen. There is no specific, objective evidence that her condition materially worsened during the period from 2/14/97 to 3/7/97, or that her continuing job duties in fact exacerbated her injury as manifested in late January.
Applying the traditional aggravation versus recurrence analysis, the superior court found that any symptoms that were evident after claimant went to work directly for Ethan Allen, Inc. were a recurrence of the pre-existing condition and therefore Liberty, as the carrier for Personnel Connections, was responsible for claimant's workers compensation benefits. In doing so, the court reversed a decision of the Commissioner of Labor and Industries that Travelers was responsible because claimant's last injurious exposure occurred while claimant worked for Ethan Allen directly.
Liberty characterizes this case as a choice between the last injurious exposure rule and the aggravation versus recurrence rule to allocate workers compensation costs between successive employers, with the choice determining the outcome. The facts as found by the trial court, however, do not support this characterization of the legal question.
Here, the court found that claimant's work during the short period she was employed d
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