Beth Farr v. Rite Aid Corporation Opinion No. 24-16WC

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STATE OF VERMONT

DEPARTMENT OF LABOR

Beth Farr v. Rite Aid Corporation Opinion No. 24-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

 

For: Anne M. Noonan

Commissioner

State File No. X-63385

OPINION AND ORDER

Hearing held in Montpelier on December 11, 2015

Record closed on March 23, 2016

APPEARANCES:

William Skiff, Esq., for Claimant

David Berman, Esq., for Defendant

ISSUE PRESENTED:

Did Claimant’s November 2014 surgery constitute reasonable medical treatment for her

June 2006 compensable work injury?

EXHIBITS:

Joint Exhibit I: Medical records

Claimant’s Exhibit 1: Curriculum vitae, Joseph Phillips, M.D., Ph.D.

Defendant’s Exhibit A: Curriculum vitae, Leonard Rudolf, M.D.

CLAIM:

All workers’ compensation benefits to which Claimant proves her entitlement as causally related

to her November 2014 spine surgery

Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678

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.

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  1. Judicial notice is taken of all relevant forms and correspondence contained in the

Department’s file relating to this claim.

Claimant’s 2006 Work Injury and Initial Treatment

  1. Claimant worked for Defendant as a retail clerk. On June 19, 2006 she was reorganizing

some boxes of liquor that had been delivered earlier in the day and placed in a cramped

closet. While so engaged, she caught her foot between two boxes, twisted, fell and hit

her back on a metal doorjamb. She heard and felt a pop in the area of her left hip, with

pain radiating down her left leg.

  1. Following a July 2006 MRI study, Claimant was diagnosed with a large left lateral disc

herniation at L4-5 impinging on the L4 nerve root. Defendant accepted the injury as

compensable, and began paying workers’ compensation indemnity and medical benefits

accordingly.

  1. Initially Claimant treated conservatively for her injury, with physical therapy, pain

medications and a course of epidural steroid injections. She continued to report

symptoms consistent with the MRI findings, most notably constant low back and left hip

pain, with pain, numbness and tingling radiating into her left leg, calf and foot. These

were exacerbated by most activities, including prolonged standing, sitting and walking.

Her sleep was impaired, and she reported falling occasionally due to her leg giving out.

  1. Conservative treatment having failed to alleviate her symptoms, in October 2006

Claimant underwent surgery with Dr. Phillips, a neurosurgeon. This was a minimally

invasive microsurgical procedure, the goal of which was to decompress the L4 nerve root

by removing herniated disc material and widening the opening (in medical terms, the

neural foramen) through which the nerve root traveled.

  1. In the months following her 2006 surgery, Claimant experienced some symptom relief.

Most notably, she reported that the radiating pains down her left leg had resolved.

However, the numbness and tingling persisted, and ultimately came to include her right

leg as well. By March 2007 she was reporting worsening pain radiating from her lower

back into her hips and legs bilaterally. An MRI study documented findings consistent

with ongoing L4 nerve root compression.

  1. To treat her recurrent symptoms, Claimant underwent additional courses of physical

therapy, epidural steroid injections and home exercise. In addition, her treating pain

management specialist, Dr. Rauwerdink, discussed weight control, smoking cessation and

increased physical activity as a means of addressing her discomfort on a long-term basis.

From the evidence, it is unclear whether, to what extent and for how long she attempted

these lifestyle changes. In any event, while her right-sided radicular symptoms abated,

her low back pain persisted and her left leg symptoms steadily worsened. Her activities

continued to be limited by discomfort.

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  1. In June 2007 Claimant underwent electrodiagnostic evaluation with Dr. Ayers, a

neurologist. The results documented normal nerve conductions throughout her lower

extremities, but also findings consistent with ongoing sensory nerve recovery, which

would account for her continued paresthesias. Unfortunately, the process by which

nerves heal is very slow, and with that in mind Dr. Ayers predicted that Claimant’s

radicular symptoms would improve only gradually.

  1. Over the ensuing months, Claimant continued to report low back and left leg pain. She

rejected proposed interventional options (medial branch blocks, radiofrequency lesioning

and/or additional epidural steroid injections) and also suggestions that she consider a

psychological approach to managing her pain. She demonstrated fair to good endurance

for activity during a work hardening program, but reported increased pain both before

and after each session, to such an extent that she did not feel the program benefitted her.

Instead, she continued her exercises at home.

Claimant’s 2009 Surgery

  1. In January 2008 Claimant returned to Dr. Phillips, again complaining of low back and left

leg pain. An MRI study did not document any large disc herniations, but revealed some

substantial narrowing of the spinal canal in the same location (L4-5 level on the left) as

her 2006 surgery. It also showed degenerative changes at both L2-3 and L3-4, to a

degree considered advanced for a patient of her age (29 at the time).

  1. Dr. Phillips’ office note reflects that he discussed these findings with Claimant in depth.

He explained that there likely was no reasonable surgical treatment option for her low

back pain – simply decompressing nerves is rarely beneficial, and fusions directed at

controlling back pain per se are as likely to fail as they are to succeed. However, as to

the radicular pain and weakness in her left leg, Dr. Phillips posited that surgically

opening the spinal canal at the L3-4 and L4-5 levels on the left would create more room

for the L4 and L5 nerve roots, which potentially would alleviate those symptoms. I find

this analysis credible.

  1. Dr. Phillips also engaged in a discussion of sorts with Dr. Chard, the orthopedic surgeon

who examined Claimant at Defendant’s request in June 2008. Dr. Chard raised several

concerns as to whether the surgery Dr. Phillips had proposed was medically indicated, all

of which led him to conclude that Claimant was “less likely than the average patient to

have a satisfactory outcome.” Nevertheless, he acknowledged that for Dr. Phillips to reexplore

the L5 nerve root and remove residual disc fragments might be of some benefit. I

concur, and find that Dr. Phillips adequately justified his decision to perform a second

surgery.

  1. Claimant underwent the second surgery, during which Dr. Phillips decompressed the left

L4 nerve root by widening the spinal canal from L3 to L5, in January 2009. Defendant

accepted the procedure as causally related to her work injury, and paid workers’

compensation benefits accordingly.

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  1. As before, Claimant experienced some symptom relief following surgery, but it was

incomplete. She continued to complain of numbness and pain radiating down her left leg,

and localized low back pain as well. A September 2009 MRI did not reveal any dramatic

interval change from her pre-surgical condition – there was an appropriate degree of

scarring, but no evidence of a fresh disc herniation. Dr. Phillips characterized these

findings as “very assuring,” adding that despite her residual complaints, the MRI showed

“no reason for additional intervention.” He anticipated that she was approaching an end

medical result.

  1. In December 2009 Defendant’s independent medical examiner, Dr. Chard, determined

that Claimant had reached an end medical result, with a 12 percent whole person

permanent impairment attributable to her work injury. At her attorney’s referral, in

August 2010 Claimant underwent a second permanency evaluation with Dr. Banerjee,

who concurred that she had reached an end medical result. In October 2010 the

Department approved the parties’ Agreement for Permanent Partial Disability

Compensation (Form 22), which established December 24, 2009 as the end medical result

date and compromised the permanency at the midpoint between the two ratings.

  1. The medical records corroborate that although Claimant had reached an end medical

result by December 2009, functionally she remained significantly restricted. A February

2010 functional capacity evaluation documented limited tolerance for sitting, standing,

lifting, carrying and bending. Later, in the context of his August 2010 permanency

evaluation, Dr. Banerjee remarked that she remained “severely disabled with pain, unable

to perform routine activities at home.”

  1. With the exception of a visit to her primary care provider in April 2012, between

November 2009 and March 2014 Claimant did not seek any treatment for low back or left

leg complaints. Nevertheless, she credibly testified that her symptoms steadily worsened

during this time. The numbness down her left leg occurred with greater frequency, and

the shooting pains became increasingly severe, to the point where by 2012 she felt she

could hardly walk. She managed her symptoms as best she could with home exercise.

She often cried in the bathroom so that her children would not see her.

  1. Claimant credibly testified that she delayed seeking further treatment from Dr. Phillips

while her children were younger, because she feared he would recommend fusion surgery

and she did not want to burden them with what she anticipated would be an extended

recovery. However, by 2014 her symptoms had become unbearable, so she sought an

appointment.

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Claimant’s 2014 Surgery

  1. Dr. Phillips examined Claimant in June 2014. In preparation for that visit, in March 2014

she had undergone another MRI. Upon review, Dr. Phillips reported that the findings

depicted a new, “frankly recurrent” L4-5 disc herniation, which he described as “quite

substantial, [it] clogs up both the foramen and the origin of the L5 nerve.” Dr. Phillips

believed the resulting nerve root compression was the cause of Claimant’s intensified

symptoms. As treatment, he recommended another minimally invasive surgery, much

like the one she had undergone in 2006. As with both prior surgeries, Dr. Phillips’ intent

was once again to decompress the L4 and L5 nerve roots by removing the encroaching

material from the disc space.

  1. Dr. Phillips did not testify at hearing, but his office notes were clear and thorough. In

them, he credibly described an “extensive discussion” with Claimant regarding the

relative merits of another minimally invasive decompression surgery versus spinal fusion.

Noting specifically that she felt the radicular symptoms in her buttock and left leg took

precedence over her low back pain, he concluded that it was appropriate to proceed with

decompression, notwithstanding the risk of yet another recurrence thereafter. Even with

decompression, he anticipated that a future fusion surgery might still become reasonable

in the event that her symptoms later gravitated more towards low back pain.

  1. Claimant underwent the third surgery on November 12, 2014. Notably, although Dr.

Phillips’ surgical findings did not document any free disc fragments in the area of the L4

and L5 nerve roots, there was significant bony overgrowth and scar tissue. Dr. Phillips

described these as “potentially” compressive, and therefore carefully removed them.

  1. As with her prior surgeries, Claimant realized some improvement following her

November 2014 surgery, but it was short-lived, and not nearly as substantial as she had

hoped. It has allowed her to remain off opioid pain medications, but functionally she

remains severely restricted. She was in obvious physical distress at formal hearing.

When asked to differentiate between low back and leg pain, her frustration was palpable

– “I don’t differentiate, it’s all just pain to me, . . . it all links together.” She was equally

frustrated when asked if the surgery had made her symptoms more “tolerable.” “Overall,

I’m living with it,” she responded, but then credibly described feeling nauseous because

“I hurt so much.”

Expert Medical Opinions regarding 2014 Surgery

  1. Defendant’s medical expert, Dr. Rudolf, reviewed Claimant’s medical records and

deposition testimony for the purpose of rendering an opinion whether her November

2014 surgery constituted medically necessary treatment causally related to her 2006 work

injury. Dr. Rudolf is a board certified orthopedic surgeon with an active clinical practice.

He issued a written report and also testified at formal hearing.

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  1. In Dr. Rudolf’s opinion, Dr. Phillips’ 2006 surgery had properly addressed the specific

injury Claimant had suffered at work – he removed the herniated disc material that likely

had been compressing her L4 nerve root at the L4-5 level. In the years following, MRI

studies documented spinal stenosis, a degenerative process that caused narrowing

throughout her spinal canal. Noting that neither of her subsequent surgeries revealed any

loose, soft disc material, Dr. Rudolf concluded that the likelihood of a recurrent disc

herniation attributable to Claimant’s 2006 work injury was questionable, not only at the

time of her 2014 surgery but dating back to her 2009 procedure as well. According to his

analysis, a more probable cause for the worsening symptoms that precipitated both

surgeries was ongoing deterioration related to spinal stenosis.

  1. Dr. Rudolf acknowledged on cross examination that Claimant’s first (2006) and second

(2009) surgeries both entailed removing some portion of the bone comprising her L4-5

facet joint. Scar tissue formed in the area as a result. The prior surgeries thus changed

the normal anatomy of her spine at that level, further weakening a joint that likely was

already undergoing degenerative changes. I find this aspect of his analysis credible.

  1. As for whether Claimant’s 2014 surgery was medically necessary, given that two prior

surgeries had failed to provide sustained symptom relief Dr. Rudolf believed the

probability that she would improve with a third surgery was “extremely low.” He placed

her in the category of patients suffering from “failed back surgery syndrome,” meaning

those for whom surgical treatments proved unsuccessful despite evidence-based

indications on both clinical examination and imaging studies. The unfortunate result for

such patients is a chronic pain condition that is unlikely to improve with either medical or

surgical management.

  1. Dr. Rudolf noted that as with Claimant’s prior surgeries, the stated intent of Dr. Phillips’

third surgery was to address the persistent complaints of radicular pain and numbness

down her left leg by decompressing the involved nerves. Yet the electrodiagnostic

testing she had undergone in 2007, Finding of Fact No. 9 supra, had documented

essentially normal nerve conductions throughout her lower extremities. In Dr. Rudolf’s

analysis, without evidence to confirm that Claimant’s symptoms derived from significant

nerve dysfunction, it was unlikely that any of Dr. Phillips’ surgeries would provide

effective relief. I find this analysis credible.

  1. Nevertheless, Dr. Rudolf stopped short of concluding that Dr. Phillips’ third surgery

failed to meet the standard of care for a patient in Claimant’s position. Had his intent

been to alleviate her chronic low back pain, nerve decompression surgery would have

been inappropriate. But the decision to treat her radicular symptoms surgically was a

matter between her and her doctor.

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  1. Although he did not testify at formal hearing, Dr. Phillips responded to the opinions

expressed in Dr. Rudolf’s report by letter to Claimant’s attorney. He confirmed that

although her symptoms included some element of low back pain, “the ones that brought

her to me [in 2014] were more in my mind related to the L4 nerve root.” Moreover, in

his opinion the pathology he treated, that is, the L4 nerve root in its foramen at the L4-5

level, resulted directly from her 2006 work injury, which had caused changes at that same

location. I find this analysis credible.

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, see, e.g.,

Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941), 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, supra at 19; Morse v. John E. Russell Corp., Opinion

No. 40-92WC (May 7, 1993).

  1. The disputed issue in this claim is whether Claimant’s November 2014 surgery

constituted reasonable treatment for her 2006 work injury, such that Defendant is

obligated to pay the associated workers’ compensation benefits under 21 V.S.A. §640(a).

  1. Vermont’s workers’ compensation statute requires an employer to provide “reasonable”

medical services and supplies to an injured employee. 21 V.S.A. §640(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). The Commissioner has discretion to determine whether a particular medical

treatment is reasonable based on the circumstances of each case. MacAskill v. Kelly

Services, Opinion No. 04-09WC (January 30, 2009).

  1. The parties presented conflicting expert medical testimony regarding both aspects of the

reasonableness determination. In such cases, the Commissioner traditionally uses a fivepart

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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  1. Considering the causal relationship question first, I conclude from the credible evidence

that the required link between Claimant’s 2006 work injury and her treatment in

November 2014 has been established. True, Defendant’s expert, Dr. Rudolf, sought to

attribute her worsening symptoms to the degenerative processes at work throughout her

spine. At the same time, however, he acknowledged that her prior surgeries had caused

scar tissue to form and otherwise weakened the area in and around the L4-5 facet joint,

and thus were contributing factors as well. Dr. Rudolf conceded that the 2006 surgery

was directly related to Claimant’s work injury. Defendant having long ago accepted the

2009 surgery as causally related as well, Dr. Rudolf’s assertion to the contrary comes far

too late in the game to be legally relevant. See, e.g., Smith v. Fletcher Allen Health Care,

Opinion No. 51-08WC (December 15, 2008). The chain of causation thus runs directly

from Claimant’s 2006 work injury through her first and second surgeries. It ends with

the increasingly intolerable symptoms that prompted her to seek treatment again in the

months prior to November 2014.

  1. The question whether Dr. Phillips’ November 2014 surgery was medically necessary

requires me to carefully weigh the conflicting expert medical evidence.1 To prevail,

Claimant must establish that as of the time the treatment was undertaken, it was likely to

improve her condition, either by relieving symptoms and/or by maintaining or increasing

functional abilities. Shaffer v First Choice Communications, Opinion No. 15-14WC

(October 21, 2014).

  1. Fairness dictates that the determination whether a treatment is or is not reasonably

calculated to lead to further improvement must be made prospectively, at the time it is

undertaken, not retrospectively and with the benefit of hindsight. Luff v. Rent Way,

Opinion No. 07-10WC (February 16, 2010); Lukic v. Rhino Foods, Opinion No. 49-

09WC (December 15, 2009). The practice of medicine is often inexact, and whether a

particular treatment will prove efficacious cannot be known with certainty until it is

attempted. A doctor need not guarantee success, but neither can he or she merely

speculate that it might result in improvement. The standard is probability, not possibility.

  1. Here, Dr. Rudolf conceded that for Dr. Phillips to treat Claimant’s radicular symptoms

surgically was within the standard of care. He further acknowledged that the decision to

do so was properly a matter between her and her doctor. As the treating physician, Dr.

Phillips’ opinion is entitled to some deference. See, e.g., Galbicsek v. Experian

Information Solutions, Opinion No. 51-09WC (December 22, 2009).

1 Noting that Claimant did not offer Dr. Phillips’ testimony, either by deposition or at formal hearing, Defendant

asserts that she has failed to provide the evidence necessary to sustain her burden of proof. See, e.g., Lapan v.

Berno’s, Inc., 137 Vt. 393 (1979) (stating necessity for expert medical testimony to establish causal link between

employment, injury and benefits sought). Such a rigid interpretation of the case law undermines both the spirit and

intent of the workers’ compensation formal hearing process, which is designed to be speedy, inexpensive and

relatively informal, Workers’ Compensation Rule 17.1100. Medical opinions routinely find expression in medical

records and written reports. If cogently stated, they are entitled to be considered to the same extent as any other

evidence.

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  1. Yet although Dr. Phillips clearly explained his rationale for undertaking a third surgery,

his perspective seems to have been simply that it was worth trying. He has failed to

convince me that it was likely to improve Claimant’s condition to any appreciable extent,

which is the reasonableness standard I must impose.

  1. In contrast, Dr. Rudolf’s opinion on the medical necessity issue was clear, thorough and

objectively supported. Drawing both on the lack of objective findings on

electrodiagnostic testing and on Claimant’s failure to realize sustained improvement from

her prior surgeries, he concluded that the likelihood of success from a third surgery was

“extremely low.” I concur.

  1. I acknowledge that Claimant realized some benefit from her third surgery, however shortlived

it proved to be. I must believe that Dr. Phillips was anticipating more sustained

improvement; yet according to Dr. Rudolf’s credible analysis, he had no reasonable basis

for doing so.

  1. I conclude that Claimant has failed to sustain her burden of proving that Dr. Phillips’

November 2014 surgery was medically necessary. She therefore has failed to establish

that the treatment was reasonable under §640(a). For that reason, I conclude that

Defendant is not obligated to pay the associated workers’ compensation benefits.

  1. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award

of costs and attorney fees.

ORDER:

Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’

compensation benefits causally related to her November 2014 surgery is hereby DENIED.

DATED at Montpelier, Vermont this 12th day of December 2016.

_______________________

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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