Bret Nelson v. Federal Express Freight Opinion No. 19-16WC

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STATE OF VERMONT

DEPARTMENT OF LABOR

Bret Nelson v.Federal Express Freight  Opinion No. 19-16WC

  1. By: Jane Woodruff, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. EE-50898

OPINION AND ORDER

Hearing held in Montpelier, Vermont on March 15, 2016.

Record closed on June 20, 2016

APPEARANCES:

Claimant, pro se

James O’Sullivan, Esq., for Defendant

ISSUES PRESENTED:

  1. Is Claimant’s current neck condition causally related to his 2012 compensable work

injury?

  1. Does Claimant’s ongoing chiropractic care constitute reasonable medical treatment

for his 2012 compensable work injury?

  1. What is the extent of the permanent partial impairment referable to Claimant’s 2012

compensable work injury?

  1. Has Claimant’s end medical result status changed since December 24, 2014?

EXHIBITS:

Joint Exhibit 1: Medical records dating from Dr. Temple’s July 16, 2012 note through Dr.

Backus’ August 4, 2015 medical report

FINDINGS OF FACT:

  1. At all times relevant to these proceedings, Claimant was an employee and Defendant was

his employer as those terms are defined in Vermont’s Workers’ Compensation Act.

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

Department’s file relating to this claim.

2

  1. Claimant is 55 years old. In 2012 he worked for Defendant as a route delivery driver.
  2. In May or June 2012, while engaged in deliveries and pickups, Claimant had difficulty

raising and lowering a truck door that often jammed. The door was readjusted but it

remained very tight, and for about a two-week period Claimant had to push and pull on it

to open and close it. During this period, he felt a strain in his neck, which progressed to

numbness, tingling and pain radiating down his right arm.

  1. Claimant’s description of his initial injury and onset of symptoms was generally

consistent within various medical providers’ and evaluators’ records, including Dr.

Temple (JME 229), Dr. Sengupta (JME 191), Dr. Presutti (JME 147), Dr. Stommel (JME

92), Colleen Olson, APRN (JME 99), physical therapist Traci Bergeron (JME 179), Dr.

Hastings (JME 63), Dr. Ross (JME 45) and Dr. Backus (JME 14).1

  1. Claimant sought treatment from Dr. Temple, a licensed chiropractic practitioner. Dr.

Temple’s practice deals mostly with musculoskeletal cases. He has practiced for 35 years

and has served as the president of the National Board of Chiropractic Examiners.

  1. Dr. Temple treated Claimant regularly from his first post-injury visit on July 16, 2012

until shortly before the March 2016 formal hearing. Dr. Temple’s first impression

included a diagnosis of “upper extremity cervical radiculopathy.”

  1. A November 2012 MRI (JME 198-202) revealed large disc osteophytes at the C5 level,

worse on the right, which caused neural foraminal narrowing, and also a large right

paracentral disc osteophyte complex at C6-7, which caused neural foraminal narrowing

and mild central canal narrowing. Additional findings were suspicious for left

paracentral and lateral disc herniation, which contributed to further neural foraminal

narrowing at that level. The MRI also revealed a very small left paracentral area of disc

protrusion at C4-5, with disc osteophyte complex and facet hypertrophic change.

  1. Neural foraminal narrowing is a narrowing of the space through which nerves exit the

spinal column. Disc osteophyte complex connotes a combination of both disc and

osteophyte involvement of the spine.

  1. Upon reviewing the November 2012 MRI, Dr. Temple concluded that there was a

“distinct clinical correlation between the [right] cervical thoracic [right] upper extremity

pain and the [right] C5-C6 C6-C7 findings.” In his opinion, the disc herniation was

significant (JME 197).

1 All page number references here and following are to the medical records contained in the joint medical exhibit

(Joint Exhibit 1).

3

  1. Dr. Temple recommended that Claimant undergo an evaluation with an orthopedic or

neurosurgical specialist. To that end, on November 23, 2012 Claimant presented to Dr.

Sengupta, an orthopedic surgeon at the Dartmouth-Hitchcock Spine Center. Dr.

Sengupta noted weakness in Claimant’s right wrist extension and flexion, and also in his

right hand grip. In addition, Dr. Sengupta stated, “he has definitive cervical spondylitis

causing narrowing of the exit foramen for C6 and C7 nerve root with disc and osteophyte

complex between C5-6 and C6-7. This can be treated with surgery.” Given Claimant’s

pain level, however, Dr. Sengupta stopped short of recommending surgery at the time,

and instead offered Claimant physical therapy and possible steroid injections (JME 192).

  1. Claimant continued to treat with Dr. Temple, but he also engaged in physical therapy

with Traci Bergeron, P.T. He completed approximately seventeen visits with Ms.

Bergeron between December 3, 2012 and February 21, 2013, at which time he was

discharged from physical therapy.

  1. Claimant presented to Dr. Presutti, an orthopedic surgeon, in January 2013. Dr. Presutti

noted no whole person impairment (JME 150). He cleared Claimant to return to work

with restrictions in January, and later released him to full duty work on February 22,

2013 (JME 116).

  1. Claimant left Defendant’s employment in March or April of 2013. From approximately

May through September 2013 he worked as a truck driver for Justin Co.

  1. Even after being cleared for full duty work, Claimant continued to treat with Dr. Temple.

Dr. Temple noted ongoing symptoms, including limited range of motion, right sided

weakness, cold sensation at C6 dermatomes and radicular pain with foraminal

compression tests (JME 70, 76, 104, 107 and 114).

  1. Claimant underwent an evaluation with Dr. Stommel, a neurologist, in July 2013. Dr.

Stommel diagnosed cervical radiculopathy (JME 95). As to causation, he stated:

I suspect the patient has an irritated C6 or C7 nerve root secondary to

degenerative changes of the cervical spine. The nerve root may well have

been irritated by all the tugging and lifting he was doing while working for

Fed Ex. It would not appear that he is a surgical candidate (JME 92).

  1. In January or February 2014 Claimant began working as a fuel delivery driver for Irving

Oil Co. This work included both driving and pulling on fuel hoses. As to the latter task,

Claimant had the benefit of a power reel, but the work still involved pulling hoses across

lawns and yards.

4

  1. At Defendant’s request, in April 2014 Claimant underwent an independent medical

evaluation with Dr. Hastings, a chiropractor. Dr. Hastings also reviewed Claimant’s

pertinent medical records. He concluded as follows:

All my findings, along with MRI and X-ray reports are consistent with a

C5/C6 radiculopathy. X-ray findings of osteophyte formation suggest

some level of degeneration prior to the injury, but described mechanism of

action of trying to open a stuck door repetitively could certainly make an

otherwise undetected and latent condition acute. Nothing in the [patient’s]

history suggests there was a prior injury to the area (JME 64).

  1. Dr. Hastings saw no signs of malingering and was of the opinion that past chiropractic

treatments were reasonable.

  1. Claimant underwent an evaluation with Dr. Ross, an orthopedic surgeon, in October
  2. Dr. Ross also reviewed his pertinent medical records. On exam, Dr. Ross noted

some atrophy in the right bicep and right forearm (JME 46). He discerned no Waddell’s

signs. His diagnosis was “degenerative disc and joint disease of the cervical spine with

foraminal stenosis [R greater than L] C5-C7” and “suggestion of chronic right C6 and C7

radiculopathy without clinical myelopathy (JME 47).”

  1. Dr. Ross concluded that further chiropractic care was not indicated and that past

chiropractic care had been excessive. He reiterated this opinion in a November 2014

addendum, at which point he also rated Claimant with a six percent whole person

impairment (JME 41).

  1. On December 24, 2014 Dr. Temple wrote a two-page description of Claimant’s injury.

He concluded that Claimant had reached an end medical result, with a fifteen percent

whole person permanent impairment. Later, in January 2015 Dr. Temple supplemented

his report and responded specifically to Dr. Ross’ report (JME 36-37).

  1. At Defendant’s request, in August 2015 Claimant underwent an evaluation with Dr.

Backus, a board certified specialist in occupational and environmental medicine. Dr.

Backus is a 1983 graduate of Dartmouth Medical School. Ninety-five percent of his

medical practice concerns work-related injuries. He has undergone special, post-graduate

training in the use of the AMA Guides to the Evaluation of Permanent Impairment. In

addition to his clinical examination, Dr. Backus also reviewed Claimant’s medical

records and assessed his response to various tests and questionnaires.

  1. Dr. Backus diagnosed Claimant with “cervicobrachial syndrome.” He added that there

“could be a right C6 radiculopathy involved . . . but the MRI was not impressive for

verifying nerve root impingement of the right C6 nerve root (JME 21).”

5

  1. Consistent with both Dr. Ross’ and Dr. Temple’s determinations, Dr. Backus concluded

that Claimant had reached an end medical result (JME 22). As for permanency, he rated

Claimant with a six percent whole person impairment. In his opinion, further

chiropractic care was not necessary (JME 23).

  1. As to causation, Dr. Backus concluded that after leaving Defendant’s employment,

Claimant’s work with Irving Oil Company had caused an aggravation, which had

worsened his condition (JME 23).

  1. The three witnesses who testified at the hearing in this matter were Claimant, Dr. Temple

and Dr. Backus.

  1. Defendant has accepted Claimant’s 2012 injury as compensable, and in fact, has been

paying permanency benefits in accordance with a six percent whole person impairment,

as rated by both Dr. Ross and Dr. Backus.

End Medical Result

  1. Both Dr. Ross and Dr. Temple concur that Claimant had reached an end medical result

for his work injury as of December 24, 2014.

Causation of Current Condition

  1. Dr. Backus and Dr. Temple both addressed the question whether Claimant’s current

medical condition and symptoms are related to his 2012 injury. Dr. Backus asserted that

Claimant’s work for Irving Oil as a fuel delivery driver was an aggravating cause of his

symptoms, which worsened appreciably after he began that employment.

  1. Dr. Temple, on the other hand, asserted that Claimant’s symptoms had never fully

resolved, and that during his employment for Irving Oil no new injury or triggering work

event ever specifically aggravated his condition. Moreover, Claimant testified that he

was taking a break from chiropractic treatments when he first began working at Irving

Oil, and both he and Dr. Temple felt it was the gap in chiropractic manipulations that

caused his symptoms to worsen.

  1. On this point, I find Dr. Temple’s conclusion to be the most persuasive. Having

reviewed the medical records, and considering Claimant’s testimony, I find that his work

at Irving Oil did not cause a separate injury or aggravation, but was merely normal

physical work. From the credible evidence I further find that Claimant’s fluctuating

levels of pain and numbness continued consistently from the time of his 2012 work injury

forward, albeit with periodic increases and decreases from time to time.

6

Continued Chiropractic Care

  1. Dr. Backus opined that continued chiropractic care was not reasonable or necessary as a

treatment for Claimant’s 2012 injury. He was of the view that several chiropractic

manipulations (up to twelve) might have been appropriate but that more such treatments

after Claimant began working for Irving Oil were not necessary.

  1. In contrast, Dr. Temple was of the opinion that chiropractic treatment had proven

effective, and that during periods when Claimant did not undergo chiropractic care his

condition had worsened (JME 49). He warned that there may well be events in the future

that will increase Claimant’s 2012 injury-related symptoms, and these too might require

chiropractic manipulations as treatment.

  1. In Dr. Temple’s opinion, Claimant’s condition has not shifted significantly since his

original injury in 2012. While it has occasionally improved and worsened since then, his

symptoms have always been consistently related to the 2012 injury and have not been

affected by any subsequent injury or aggravation through an intervening cause.

According to Dr. Temple, chiropractic care continues to be reasonable and necessary

treatment for Claimant’s injury-related symptoms, therefore.

  1. Claimant had been prescribed gabapentin for his pain which had been effective (JME 25).
  2. The medical records document Claimant’s report of various events that caused his pain to

increase from time to time. He often reported that driving caused his neck pain to

increase.2 He reported neck pain while working for Defendant on the loading dock. He

reported to APRN Olson that pulling on the fuel hoses with Irving Oil caused an increase

in his symptoms (JME 25). He reported some increase in neck stiffness and soreness

following a car repair in which he was on his back removing a fuel tank from the vehicle

(JME 145).

Permanent Impairment Rating

  1. The most important divergence between Dr. Backus and Dr. Temple was the extent of

Claimant’s permanent impairment. With reference to the AMA Guides to the Evaluation

of Permanent Impairment (5th ed.) (the “AMA Guides”), Dr. Backus assigned a six

percent impairment rating, while Dr. Temple assigned a fifteen percent rating.

  1. As noted above, Finding of Fact No. 24 supra, Dr. Backus diagnosed Claimant with

“cervicobrachial syndrome.” He testified that this is a diagnosis of neck pain, with

attendant pain down the arm, but “without an identifiable cause.” In his opinion,

Claimant did not qualify for a diagnosis of cervical radiculopathy because there was not

enough evidence to support that diagnosis to a reasonable degree of medical certainty.

Thus, in his analysis, while cervical radiculopathy was considered “in the differential” as

a possible cause, the required indicators were inconsistent.

2 See, e.g., Birget Ruppert 9/5/13 (JME 84); Dr. Temple 7/15/13 (JME 98), 5/13/13 (JME 109) and 9/8/14 (JME 52).

7

  1. Dr. Backus’ diagnosis sharply contrasts with those of Dr. Temple (“cervical

radiculopathy,” JME 76), Dr. Sengupta (right arm test “may be diminished because of the

radiculopathy,” JME 192), Dr. Stommel (“cervical radiculopathy,” JME 95), Dr. Hastings

(“C5/C6 radiculopathy,” JME 64), Dr. Ross (“suggestions of chronic right C6 and C7

radiculopathy without myelopathy,” JME 47) and APRN Olson (“findings suggestive of

impingement through the plexus as well as in the cervical spine,” JME 25). Aside from

Dr. Backus, no other treatment provider or evaluator diagnosed “cervicobrachial

syndrome.”

  1. In Dr. Backus’ opinion, Claimant’s MRI results did not provide imaging verification of

the radicular complaints. He described the MRI as “unimpressive,” and normal for a

person of the Claimant’s age. Dr. Backus was of the view that if the MRI had shown

nerve entrapment, then a category III impairment rating would have been appropriate and

surgery would have been recommended. The EMG study did not establish nerve root

impingement.

  1. Again, none of the other treatment providers or evaluators concurred with Dr. Backus’

analysis of the MRI as “unimpressive.” To the contrary, several diagnosed radiculopathy

based upon the MRI report.

  1. Dr. Backus listed those tests which he characterized as “objective,” and therefore not

affected by either the patient’s or the evaluator’s subjective involvement, as MRI, EMG

(although frequently inaccurate), reflex testing and muscle atrophy.

  1. Dr. Backus used the AMA Guides’ diagnosis related estimate (DRE) model to arrive at

his six percent whole person impairment rating. On page 22 of his report, he stated:

Dr. Temple does follow more specifically the impairment rating

methodology in his report and provides a better explanation [than Dr.

Ross] for his determination; however, the question that determines which

is correct becomes whether or not [Claimant] has a true radiculopathy as

defined in Box 15-1 to determine if he is in category II [5-8%] or III [15-

18%]. At present he does have some signs of radiculopathy for which a

category III can be considered, but he fits better with a DRE II criteria of

signs and symptoms that might support radiculopathy but which has not

been verified by imaging studies or electrodiagnostic testing as in this

case (emphasis added).

8

  1. “Radiculopathy” is defined in Box 15-1, AMA Guides at p. 382, as follows:

[S]ignificant alteration in the function of a nerve root or roots and is

usually caused by pressure on one or several nerve roots. The diagnosis

requires a dermatomal distribution of pain, numbness, and/or paresthesias

in a dermatomal distribution. A root tension sign is usually positive. The

diagnosis of a herniated disc must be substantiated by an appropriate

finding on an imaging study. The presence on an imaging study in and of

itself does not make a diagnosis of radiculopathy. There must also be

clinical evidence as described above.

  1. The pertinent description for the category II level of impairment upon which Dr. Backus

relied is as follows, AMA Guides at p. 392:

DRE Cervical Category II 5-8% Impairment of the Whole Person.

Clinical history and examination findings are compatible with a specific

injury; findings may include muscle guarding or spasm observed at the

time of the examination by a physician, asymmetric loss of range of

motion or non-verifiable radicular complaints, defined as complaints of

radicular pain without objective findings; no alteration of the structural

integrity,

Or,

Individual had clinically significant radiculopathy and an imaging study

that determined a herniated disc at the level and on the side that would be

expected based on the radiculopathy, but has improved following nonoperative

treatment.

  1. Dr. Temple, on the other hand, applied the same AMA Guides’ criteria to Claimant’s

condition and found him deserving of a fifteen percent whole person impairment. He

determined that the subjective and objective tests showed a clear cervical radiculopathy.

Such tests included: (1) the MRI, which showed a disc herniation with foraminal stenosis,

especially at C5-6 and C6-7 on the right, and disc encroachment from a herniating disc;

(2) muscle weakness on the right side as identified by Dr. Temple, Dr. Hastings, and Dr.

Ross, including reduced grip strength; (3) atrophy on the right bicep and forearm as

reported by Dr. Ross;3 (4) hypoesthesia (lack of feeling) in some right digits (also noted

by Dr. Backus); (5) occasionally positive Spurling’s test (creation of radiating symptoms

by compressing neck while neck is twisted);4 (6) tingling in C6 dermatomes (skin areas

associated with C6 nerve roots); and (7) reduced reflexes as found by Dr. Hastings. (See

generally Dr. Temple’s impairment calculation, JME 36-40).

3 Dr. Backus’ measurements showed equal circumference of the upper arms and a slightly larger right forearm (JME

18). These measurements are inconsistent with Dr. Ross’ (JME 46).

4 Dr. Backus did not administer a full Spurling’s test, because he was unwilling to compress Claimant’s spine, as is

usually included. Despite not having done the complete test, he nevertheless reported in his examination that

“Spurling’s maneuvers were negative (JME 18).” Previously, Spurling’s or compression tests had been positive

intermittently when conducted by Dr. Temple (12/24/14; 10/20/14; 6/9/14; 3/10/14; 1/20/14; 7/15/13), APRN Olson

(4/13/15) and physical therapist Birgit Ruppert (8/22/13).

9

  1. According to Dr. Temple, it is inappropriate to consider just one test to determine the

veracity of a cervical radiculopathy diagnosis. Rather, all tests and information must be

considered in concert. More to the point, in Dr. Temple’s view, the MRI result provided

the imaging confirmation (taken with all other test results and symptoms), which in turn

were consistent with Claimant’s symptoms. I find this analysis persuasive.

  1. The pertinent description for a category III cervical impairment reads as follows, AMA

Guides at 392:

DRE Cervical Category III 15-18% Impairment of the Whole Person.

Significant signs of radiculopathy, such as pain and/or sensory loss in a

dermatomal distribution, loss of relevant reflexes, loss of muscle strength,

or unilateral atrophy compared with the unaffected side, measured at the

same distance above or below the elbow, the neurologic impairment may

be verified by electrodiagnostic findings

Or,

Individual had clinically significant radiculopathy, verified by an imaging

study that demonstrates a herniated disc at the level and on the side

expected from clinical findings with radiculopathy or with improvement

of radiculopathy following surgery.

  1. It is important to note several other facts in comparing the two expert opinions. First, Dr.

Backus was quite clear that if Claimant’s MRI had shown nerve impingement, then

surgery would have been suggested thereafter. According to his analysis, because

surgery was not recommended, then the MRI must not have shown impingement. The

medical evidence does not bear this analysis out, however. To the contrary, in his

November 2012 evaluation Dr. Sengupta specifically stated that Claimant had “definitive

cervical spondylitis causing narrowing of the exit foramen for C6 and C7 nerve root with

disc and osteophyte complex between C5-6 and C6-7,” and further that “[t]his can be

treated with surgery.” Finding of Fact No. 11 supra (emphasis added).

CONCLUSIONS OF LAW:

  1. There was no persuasive evidence presented that Claimant’s end medical result status has

changed since December 24, 2014, the date by which both his and Defendant’s experts

agreed he had reached the point of maximum medical improvement. That issue is

resolved, therefore.

  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). The Claimant

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).

10

Extent of Permanent Impairment

  1. By statute, any determination of the existence and degree of permanent partial

impairment shall be made only in accordance with the whole person determinations as set

out in the fifth edition of the American Medical Association Guides to the Evaluation of

Permanent Impairment. 21 V.S.A. §648(b). Generally, the AMA Guides are intended to

provide a standardized, objective approach to evaluating medical impairment. They

provide specific procedures so that objective tests should produce the same

determinations of impairment by any doctor. See R.J. v. Bourdeau International,

Opinion No 48-05 WC (August 9, 2005).

  1. Where expert medical opinions are conflicting, 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 (Sept. 17, 2003). With these factors in

mind, the key question is which expert medical opinion is the most credible? M.B. v.

Price Chopper, Opinion No. 13-07WC (May 8, 2007).

  1. Considering the above criteria, I note that Dr. Temple has been treating Claimant for his

2012 work injury since July of that year and has seen him regularly and often from the

time of his first examination to the time of the hearing. Dr. Sengupta was also in a

treating physician role. In contrast, Drs. Backus, Ross and Hastings were not treating

physicians. This fact enhances Dr. Temple’s opinion in the case.

  1. Both Dr. Temple and Dr. Backus had access to all the pertinent medical records.
  2. Both expert witnesses have similar qualifications. However, Dr. Backus’ qualifications

are more extensive, and therefore they weigh in favor of his opinion.

  1. Concerning the clarity, thoroughness and objective support underlying each expert’s

opinion, I conclude that Dr. Temple’s has more objective support. His diagnosis of

cervical radiculopathy is supported by almost all of the other providers and evaluators

except for Dr. Backus. Dr. Temple’s conclusions are supported by objective observations

and testing, including the MRI report, Dr. Hastings’ reflex testing and Dr. Ross’ atrophy

measurements.

11

  1. Dr. Backus indicated in his analysis that Claimant “fits better with a DRE II criteria,”

Finding of Fact No. 44 supra. A simple reading of the category II and III criteria,

Findings of Fact Nos. 46 and 49 supra, indicates that Claimant has more indicia of a

category III impairment than a category II one. His condition has not appreciably

improved; he has verifiable radicular complaints; there are objective findings of

radiculopathy including unilateral atrophy; there is an imaging study that showed a

herniated disc at the level and at the side expected from clinical findings. A category III

finding does not require a positive EMG finding.

  1. Dr. Temple’s opinion is supported in detail by Dr. Hastings with a full and complete

description of Dr. Hasting’s calculation of a fifteen percent impairment. Dr. Backus’

opinion was supported by Dr. Ross, but Dr. Ross did not explain how he derived his

rating, thus reducing the persuasive effect of that opinion.

  1. Finally, as noted above, Dr. Backus’ “cervicobrachial syndrome” diagnosis was

inconsistent with that of all of the other medical professionals who treated or evaluated

Claimant. Finding of Fact No. 40, supra.

  1. Considering all of the above, I conclude that Dr. Temple’s fifteen percent whole person

permanent impairment is the most credible.

Causation of Current Symptoms and Condition

  1. Dr. Backus’s opinion was that “the new work [Irving Oil] rather than the lack of an

ineffective treatment [was] the cause of his worsening” (JME 23). Dr. Temple believed

that Claimant’s condition was subject to occasional recurrences and was not caused by

any new injury or aggravation while he was employed by Irving Oil.

  1. Under our law, in situations involving multiple employers, the first employer remains

liable for the full extent of benefits if a second injury is solely a “recurrence” of the first

injury and if subsequent accidents do not causally contribute to the claimant’s disability.

Pacher v. Fairdale Farms, 166 Vt. 626 (1997).

  1. The determination whether a condition is a “recurrence” or an “aggravation” caused by

subsequent events is determined by applying the following criteria: (1) whether a

subsequent incident or work condition destabilized a previously stable condition; (2)

whether the worker had stopped treating medically; (3) whether the injured worker had

successfully returned to work; (4) whether the worker had reached medical end result;

and (5) whether the subsequent work contributed independently to the final disability.

Pacher v. Fairdale Farms, 166 Vt. 626 (1997); Trask v. Richburg Builders, Opinion No.

51-98 (August 25, 1998).

12

  1. In applying these criteria, I conclude that the weight of the evidence supports a

conclusion of “recurrence” rather than “aggravation.” There was almost no evidence that

Claimant’s condition had become stable following the 2012 injury. He continued to

receive medical treatments, evaluations and physical therapy for neck and arm complaints

during the entire period. He had returned to work, but as Dr. Temple credibly noted, this

was only because he worked through the pain and despite the fact that driving seemed to

increase his symptoms. Claimant did not reach an end medical result until December

2014, well after he began working for Irving Oil. Finally, there was no specific incident,

injury or clinically observed change in condition that was related to his work there. As

Dr. Temple put it (JME 31), Claimant had pain and paresthesia aggravated by normal

activities that prior to his 2012 injury he could perform without difficulty.5

  1. I conclude that Claimant’s fluctuating medical condition, as manifested by neck pain and

radiating pain and numbness into his arm represents a recurrence of his 2012 work injury,

not an aggravation or new injury.

Reasonableness of Continued Chiropractic Treatment

  1. When an employer seeks to terminate coverage for medical benefits, it has the burden of

proving that the treatment at issue is not reasonable. Richards v. Mack Molding, Opinion

No. 34-07WC (December 11, 2007).

  1. Considering the conflicting medical evidence, I conclude that Defendant has not

sustained its burden of proof on this issue. Specifically, I conclude that the opinions of

Dr. Hastings, APRN Olson and Dr. Temple are more credible than that of Dr. Backus.

Particularly convincing were both Dr. Temple’s and Claimant’s reports of good relief of

symptoms with chiropractic manipulation, and worsening recurrence of symptoms during

breaks in treatment. Thus, I conclude that unless and until an intervening event occurs to

break the chain of causation back to the original injury, whether by new injury,

aggravation or flare-up, Dr. Temple’s chiropractic treatments remain both causally

related and medically necessary. Under 21 V.S.A. §640(a), they are Defendant’s

responsibility to pay, therefore.

5 I consider Dr. Temple’s use of the term “aggravation” to have been in its medical context, not its legal one. See

Gaboric v. Stratton Mountain, et al., Opinion No. 12-04WC (April 26, 2004).

13

ORDER:

Based on the foregoing findings of fact and conclusions of law, Defendant is hereby

ORDERED to pay:

  1. Permanent partial disability payments based upon a fifteen percent whole person

impairment referable to the spine, in accordance with 21 V.S.A. §648, with interest

from the date when temporary disability benefits terminated, in accordance with 21

V.S.A. §664; and

  1. Reasonable and necessary medical benefits, including chiropractic treatments, as

causally related to Claimant’s 2012 work injury.

DATED at Montpelier, Vermont this 1st day of November 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 VSA Sec. 670, 672.

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