Dora Brodeur v. Energizer Battery Manufacturing Inc. (April 2, 2014)

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Dora Brodeur v. Energizer Battery Manufacturing Inc. (April 2, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dora Brodeur Opinion No. 06-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Energizer Battery
Manufacturing, Inc. For: Anne M. Noonan
Commissioner
State File No. AA-62208
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 22, 2013
Record closed on January 22, 2014
APPEARANCES:
Heidi Groff, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
Is SI joint fusion surgery, as recommended by Dr. Barnum, reasonable treatment causally
related to Claimant’s April 30, 2009 compensable work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Michael Barnum, M.D.
Claimant’s Exhibit 2: Bibliography; White Paper (Oct. 2010); Rudolf, L., Sacroiliac Joint
Arthrodesis – MIS Technique with Titanium Implants: Report of
the First 50 Patients and Outcomes, The Open Orthopaedics
Journal 2012; 6: 492-499.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits retroactive to September 4, 2013 and ongoing, pursuant to 21
V.S.A. §642
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
Claimant’s 2009 Work Injury and Subsequent Treatment
3. On April 30, 2009 Claimant was moving metal trays of batteries from a conveyor belt
onto interlocking shelves. Each tray weighed approximately 30 pounds. Claimant would
lift a tray and then turn her body so that she could maneuver it through a narrow opening.
At one point, as she was manipulating a tray she felt a pop, and then severe pain in her
neck, shoulder and lower back. Claimant reported the injury to her supervisor later that
day. The next day Defendant’s nurse directed her to seek medical treatment.
4. Defendant accepted Claimant’s injury, diagnosed as a lumbar, neck and shoulder strain,
as compensable, and began paying workers’ compensation benefits accordingly.
5. Initially Claimant treated conservatively for her injuries. Over time, her neck and
shoulder complaints resolved, but her low back pain continued. An MRI in May 2009
revealed lumbar spine defects at both L4-5 and L5-S1. Claimant reported pain at these
levels during an August 2009 evaluation with Dr. Landfish, an osteopath, and also
exhibited point tenderness along the mid-right sacroiliac (SI) joint. This latter finding
caused Dr. Landfish to suspect the SI joint as the pain generator, but a diagnostic
injection failed to produce any relief of symptoms. Physical therapy was also
unsuccessful.
6. In September 2009 Claimant underwent an evaluation with Dr. Barnum, a board certified
orthopedic surgeon. Dr. Barnum advised against treatment directed at the SI joint, and
instead recommended facet joint injections at both L4-5 and L5-S1 on the right. When
neither these nor various other injections proved effective, Claimant was advised to
consider surgical fusion.
7. In June 2010 Claimant underwent a two-level surgical fusion (L4-5 and L5-S1) with Dr.
Ames, an orthopedic surgeon. Initially she recovered well. As she was anxious to return
to work, Dr. Ames released her to do so only three months later, in early September 2010.
8. Unfortunately, by December 2010 Claimant’s pain had returned. A June 2011 CT scan
revealed a failed fusion – the bone grafts had not been incorporated and the surgical
hardware had loosened. Revision surgery therefore became necessary.
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9. Claimant underwent a second fusion surgery, again with Dr. Ames, in July 2011. As
with her first fusion, initially she felt better. Though she complained of some left-sided
low back pain in the area of her bone graft site, and also intermittent “pinching” over one
or both of her SI joints, her pre-operative pain had largely resolved. She participated
fully in a course of physical therapy from August through December 2011, then cancelled
her remaining appointments, as she had been cleared to return to work and was “feeling
good.”
10. By March 2012 Claimant’s pain had worsened again. She continued to experience
“pinching” discomfort and pain across both sides of her lower back. A May 2012 CT
scan showed that the fusion was healing, and subsequent x-rays confirmed that there was
neither residual motion nor loosened hardware to account for her symptoms. Dr. Ames
theorized that Claimant’s pain was emanating from the site of her bone graft. Postoperative
graft site pain can be significant and can last for years, with no “magic fix”
readily available.
11. Presumably because Claimant’s fusion appeared to be healing well, Dr. Ames did not
believe that further surgery would be effective at alleviating her pain. Instead, she
recommended chiropractic evaluation and/or physical therapy for SI joint mobilization
and gluteal strengthening.
12. Claimant underwent chiropractic treatment with Dr. Keefe from June through October
2012. Although her pain levels fluctuated to some extent, for the most part Dr. Keefe’s
treatment, which focused primarily on chiropractic manipulation rather than core
strengthening, did not result in any sustained improvement. Claimant continued to
complain of pain and stiffness in her lumbar, sacral and hip regions.
13. Although Defendant was able for some time to accommodate Claimant’s modified duty
work restrictions, by February 2013 it was no longer able to do so. Claimant has not
worked since.
Dr. Barnum’s Proposed SI Joint Fusion Surgery
14. In November 2012 Claimant returned to Dr. Barnum for evaluation. As noted above,
Finding of Fact No. 6 supra, Dr. Barnum previously had evaluated her in 2009, well prior
to her first fusion surgery. At that time, he had advised against focusing treatment efforts
on her SI joint, as he believed the lumbar facet joints were a more likely pain generator.
15. This time, Dr. Barnum concluded that Claimant’s pain was in fact attributable to her SI
joint. Initially, this was a diagnosis of exclusion – imaging scans showed that her fusion
was solid, and also that there was no adjacent segment disease at L3-4, the disc level
immediately above her fusion. Dr. Barnum thus eliminated Claimant’s lumbar spine as
the likely pain generator. I find this analysis credible.
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16. There is no definitive test for SI joint dysfunction. However, once the lumbar spine has
been ruled out as a likely pain source, there are physical findings that, if manifested, can
form the basis for diagnosing the condition. In Claimant’s case, Dr. Barnum made four
such findings. Two findings consisted of pain elicited when the joint was maneuvered
provocatively (the FABER and single leg stance tests) during clinical examinations in
November 2012 and/or April 2013. A third positive finding consisted of tenderness to
palpation over Claimant’s left SI joint. These tests are all somewhat indicative of SI joint
dysfunction, though none of them are conclusive.
17. Dr. Barnum’s fourth positive finding, and the one he deemed most significant, was
Claimant’s positive response to an injection directly into her left SI joint. For a brief
period – one or two hours – immediately following the injection, she reported a 95
percent reduction in pain. According to Dr. Barnum, this type of response is the “gold
standard” for diagnosing SI joint dysfunction. In discussing the finding during his formal
hearing testimony, he was extremely confident both that he had administered the
injection properly into the joint and that the results established SI joint dysfunction as the
pain generator. I find this testimony credible in all respects.
18. Having identified the source of Claimant’s pain, as treatment Dr. Barnum recommended
SI joint fusion surgery. In the past, such surgery required large incisions, significant
bone harvesting, lengthy hospital stays and several months of non-weight-bearing
recovery. More recently, a new surgical technique has been developed, using a different
type of implant to fixate and then stabilize the joint. The procedure is minimally
invasive, requiring only a small incision on the upper part of the buttock and a one-night
hospital stay. After three weeks of partial weight bearing with crutches, the patient is
released to full activity.
19. Dr. Barnum was one of the first surgeons in the country to become proficient in
minimally invasive SI joint fusion surgery. He has performed approximately 120 such
surgeries since 2009. Currently he is enrolled in a prospective study of one type of
implant used, called the SI Lock device, which he helped design. The study is being
funded by Globus Medical, the manufacturer. Of 13 patients enrolled so far, the
outcomes have been excellent, with markedly decreased pain, increased function and
successful return to work. In a published retrospective study of another manufacturer’s
device, Dr. Rudolf, the surgeon who trained Dr. Barnum in the technique, reported
similarly positive outcomes some two years post-surgery.1
20. Dr. Barnum receives royalty payments from the sale of the SI Lock device for use in
other patients. He is prohibited by law from receiving a royalty on any instrumentation
he uses on his own patients. He also receives honoraria for conducting training seminars
for other surgeons on the minimally invasive SI joint fusion technique, either from
Globus Medical and/or from the manufacturer of the device involved in Dr. Rudolf’s
study.
1 Rudolf, L., Sacroiliac Joint Arthrodesis – MIS Technique with Titanium Implants: Report of the First 50 Patients
and Outcomes, The Open Orthopaedics Journal 2012; 6: 492-499. As disclosed in the article, Dr. Rudolf holds
stock in, and is a consultant for, SI-Bone, Inc., the manufacturer of the implant used in the study.
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21. As Dr. Barnum described in his testimony, SI joint dysfunction has been the “thorn in the
side” of spine surgeons for many years. As was the case with Claimant, and as he
himself has observed in his practice, patients who undergo lumbar fusions seem to get
better for a time, but then return with nagging pain in their buttocks and down their legs.
A soon-to-be-published research article documents a dramatic increase in the
biomechanical stress to the SI joint following L4-5 and/or L5-S1 fusion surgery. With
the minimally invasive SI fusion technique, a more viable surgical treatment option now
exists for adjacent segment disease at this level.
22. Dr. Barnum expressed greater than 90 percent confidence that Claimant will do well with
minimally invasive SI joint fusion. Without surgery, he does not expect long-lasting
improvement, even with physical therapy. Dr. Barnum’s surgical recommendation thus
deviates from a 2010 “White Paper” algorithm for diagnosing and treating SI joint
dysfunction, which counsels that a patient should undergo six to twelve weeks of active
physical therapy, including stretching, strengthening, stabilization and balance, prior to
considering surgical options. However, as stated in the paper itself, the algorithm “is
meant to be a general guide for the clinician . . . and not an all-inclusive review of the
science and literature that makes up each step.” Given Dr. Barnum’s extensive training
and relevant experience, I find his decision not to adhere exactly to the algorithm’s
protocol in Claimant’s case entirely credible and appropriate.
23. Dr. Barnum acknowledged that he did not review all of Claimant’s medical records prior
to concluding that she was an appropriate candidate for SI joint fusion surgery. Again,
given his training and experience in treating SI joint dysfunction patients, and particularly
his determination that additional physical therapy likely would not afford her sustainable
relief, I do not consider his opinion any less credible as a result.
Dr. Binter’s Expert Medical Opinion
24. Defendant’s expert medical witness, Dr. Binter, strongly disagreed with Dr. Barnum’s
treatment approach. At Defendant’s request, in May 2013 Dr. Binter reviewed
Claimant’s medical records and issued an opinion regarding the reasonableness of Dr.
Barnum’s proposed SI joint fusion surgery. Later, in July 2013 Dr. Binter conducted an
independent medical examination of Claimant.
25. Dr. Binter is a board certified neurosurgeon with more than twenty years’ experience.
Over the course of her career, she performed roughly 4,000 elective spine surgeries, twothirds
of which were directed at the lumbar spine. She is well acquainted with SI joint
issues in that context.
26. Dr. Binter has never recommended SI joint fusion to a patient, nor has she ever
performed or observed the minimally invasive procedure that Dr. Barnum has
recommended. In her clinical experience, SI joint problems can be managed very well
conservatively, so long as the patient commits to strength training and core stabilization
exercises.
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27. In Dr. Binter’s opinion, to a reasonable degree of medical certainty Claimant does not
suffer from SI joint dysfunction. Of particular significance to her was the fact that
Claimant had failed to localize her pain directly over the SI joint, either during her
independent medical examination or later, when describing it in her deposition testimony.
According to her research, this test for SI joint dysfunction, referred to in the medical
literature as the “Fortin test,” is a more reliable finding than merely eliciting pain upon
palpation, as Dr. Barnum had reported.
28. Dr. Binter characterized Dr. Barnum’s surgical recommendation as having been based
solely on Claimant’s response to a single SI joint injection, an analysis with which she
strenuously disagreed. In her opinion, a patient should demonstrate at least three positive
signs of SI joint dysfunction in order to increase the probability of an accurate diagnosis.
When questioned on cross examination, she acknowledged that in fact Dr. Barnum had
made more than three such findings, though he may not have clearly reported all of them
at the time.
29. In Dr. Binter’s opinion, Claimant’s ongoing pain is most likely attributable to a
combination of general deconditioning and “pretty typical” post-fusion and post-graft site
pain. Consistent with the treatment approach to which she adhered over the years with
her own patients, she recommended that Claimant return to physical therapy for a
strength training refresher course, then restart her home exercise program with a pool and
gym membership and an emphasis on core strengthening.
30. Having rejected SI joint surgery as a reasonable treatment option, in Dr. Binter’s opinion
Claimant had reached an end medical result, with a 23 percent whole person permanent
impairment attributable to her work injury. With this opinion as support, the Department
approved Defendant’s discontinuance of temporary total disability benefits effective
September 4, 2013.
31. In accordance with Dr. Binter’s treatment recommendation, between late September and
mid-November 2013 Claimant engaged in another course of physical therapy. In all, she
underwent 19 sessions, seven of which were aqua- rather than land-based. She also used
a pool membership to perform aqua-based exercises on her own on a twice-weekly basis.
Unfortunately, her pain never significantly improved and instead worsened, to the point
where the therapist recommended discontinuing land therapy altogether and focusing
solely on pool work.
32. It is unclear to what extent Claimant’s most recent course of physical therapy consisted of
core strengthening, as Dr. Binter had suggested. And despite the fact that the program
has worsened rather than alleviated her pain, in her formal hearing testimony Dr. Binter
held firm to her assertion that Claimant’s pain is best managed conservatively rather than
surgically. In her opinion, committing to a good exercise program is a lifestyle, one that
Claimant should maintain even though she likely will continue to suffer from low back
pain nevertheless. While this may be true, I find that Claimant’s inability to participate
fully in structured physical therapy is an indication that Dr. Binter’s approach probably
will not succeed at effectively managing her pain.
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Claimant’s Current Status
33. In her formal hearing testimony, Claimant credibly described her current condition. She
has exhibited a pattern of worsening pain and decreased function essentially since the
spring of 2012. Her sleep is disrupted by pain. She has at times sought emergency room
treatment for her symptoms. She continues to adhere to a home exercise program
involving daily stretching, but described herself as “not doing well lately.” She is
“deathly afraid” of a third surgery, but is willing to undergo it because “I just want my
life back.”
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts
essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the injury and the employment. Egbert v. The Book Press,
144 Vt. 367 (1984). There must be created 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, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Vermont’s workers’ compensation statute obligates an employer to pay only for those
medical treatments that are determined to be both “reasonable” and causally related to the
compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-
09WC (January 30, 2009). The commissioner has discretion to determine what
constitutes “reasonable” medical treatment given the particular circumstances of each
case. Id. A treatment can be unreasonable either because it is not medically necessary or
because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc.,
Opinion No. 01-10WC (January 20, 2010).
3. The disputed issue in this case is whether Dr. Barnum’s proposed SI joint fusion surgery
constitutes reasonable medical treatment for Claimant’s April 2009 work injury. The
parties offered conflicting expert testimony on the question. In such cases, the
commissioner traditionally uses a five-part test to determine which expert’s opinion is the
most persuasive: (1) the nature of treatment and the length of time there has been a
patient-provider relationship; (2) whether the expert examined all pertinent records; (3)
the clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
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4. With particular focus on Dr. Barnum’s qualifications, I conclude that his opinion is the
most persuasive. Dr. Barnum has extensive training, expertise and experience in
diagnosing and surgically treating patients who suffer from SI joint dysfunction. His
diagnosis in Claimant’s case was appropriately based on both his clinical findings and on
Claimant’s response to a “gold standard” diagnostic injection. As for treatment, the
extent to which the minimally invasive technique he proposes to employ differs from the
way SI joint fusion surgery was accomplished in the past is striking. The results he has
reported within his own patient population are credible and compelling, and the fact that
his current research is funded by the manufacturer of an implant that he helped design
does not diminish his proven success rate. I conclude that the confidence he has
expressed both in his diagnosis and in his ability to provide effective surgical relief is
well-placed.
5. Though an experienced surgeon in her own right, Dr. Binter lacks the specific training
and expertise that Dr. Barnum displayed with respect to diagnosing and surgically
treating SI joint dysfunction. Her conclusion that Claimant did not suffer from the
condition was based at least in part on her assertion that Dr. Barnum had not made
sufficient clinical findings to support the diagnosis, a claim that I have found to be
unsupported by the record. As for her recommendation that Claimant continue to manage
her symptoms conservatively by re-engaging in physical therapy, this already has proven
ineffective. For these reasons, I conclude that her opinions as to both diagnosis and
treatment are unpersuasive.
6. The determination whether a treatment is reasonable must be based primarily on evidence
establishing the likelihood that it will improve the patient’s condition, either by relieving
symptoms and/or by maintaining or increasing functional abilities. Quinn v. Emery
Worldwide, Opinion No. 29-00WC (September 11, 2000). An injured worker’s
subjective preferences cannot render a medically unreasonable treatment reasonable. See,
Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003). As is the case
with many aspects of medical decision-making, however, there can be more than one
right answer, and thus more than one reasonable treatment option for any given
condition. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2013);
Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). And although
the workers’ compensation statute mandates that employers pay only for “reasonable”
medical treatment, it does not in any way require that injured workers thereby forfeit the
right to direct their own medical care. Id.; see also, Luce v. Town of Stowe, Opinion No.
27-13WC (December 11, 2013).
7. The experts here have offered two vastly different treatment approaches. Dr. Barnum’s
surgical option carries greater risk, but potentially far more significant benefit. Dr.
Binter’s conservative management recommendation offers less risk, but most likely less
reward as well. There is sufficient evidence from which to conclude that either approach
would be a reasonable treatment option. That being the case, the choice is Claimant’s to
make, not mine.
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8. I conclude that Claimant has sustained her burden of proving that minimally invasive SI
joint fusion surgery constitutes reasonable medical treatment for her compensable workrelated
injury. Under 21 V.S.A. §640, Defendant is therefore obligated to pay for it.
9. Having concluded that Dr. Barnum’s proposed surgery is reasonable, it follows that Dr.
Binter’s end medical result determination was premature. I therefore conclude that
Claimant is entitled to temporary total disability benefits retroactive to the date of
discontinuance, September 4, 2013, and ongoing until properly discontinued in
accordance with 21 V.S.A. §643a and Workers’ Compensation Rule 18.0000.
10. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs
and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days
from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Temporary total disability benefits retroactive to September 4, 2013 and ongoing,
in accordance with 21 V.S.A. §642, with interest on any unpaid amounts
calculated in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies associated
with minimally invasive SI joint fusion surgery as proposed by Dr. Barnum, in
accordance with 21 V.S.A. §640; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21
V.S.A. §678.
DATED at Montpelier, Vermont this 2nd day of April 2014.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

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