Karen Kendrick v. LSI Cleaning Service, Inc Opinion No. 07-16WC

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STATE OF VERMONT

DEPARTMENT OF LABOR

Karen Kendrick Opinion No. 07-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

LSI Cleaning Service, Inc.

For: Anne M. Noonan

Commissioner

State File No. DD-51585

OPINION AND ORDER

Hearing held in Montpelier on September 14, 2015

Record closed on October 30, 2015

APPEARANCES:

Robert Mabey, Esq., for Claimant

Jennifer Moore, Esq., for Defendant

ISSUES PRESENTED:

  1. Had Claimant reached an end medical result for her July 26, 2011 compensable

work injury as of September 26, 2014, the date on which Defendant discontinued

temporary disability benefits?

  1. If not, on what later date did Claimant reach an end medical result for her July 26,

2011 compensable work injury?

  1. What is the appropriate permanent impairment rating referable to Claimant’s July

26, 2011 compensable work injury?

  1. Is Defendant responsible for paying the charges referable to Dr. Ensalada’s June

2, 2015 evaluation?

EXHIBITS:

Joint Exhibit I: Medical records

Claimant’s Exhibit 1: Curriculum vitae, Adam Pearson, M.D.

Claimant’s Exhibit 2: Curriculum vitae, Leon Ensalada, M.D.

Claimant’s Exhibit 3: Permanent impairment evaluation, June 2, 2015

Claimant’s Exhibit 4: Dr. Ensalada invoice, August 17, 2015

Claimant’s Exhibit 5: Agreement for Permanent Partial or Permanent Total

Disability Compensation (Form 22), 2/1/13

Defendant’s Exhibit A: Curriculum vitae, William Boucher, M.D.

CLAIM:

Temporary total disability benefits pursuant to 21 V.S.A. §642

Permanent partial disability benefits pursuant to 21 V.S.A. §648

Medical benefits pursuant to 21 V.S.A. §640(a)

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.

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

Department’s file relating to this claim.

Claimant’s July 2011 Work Injury and Subsequent Medical Course

  1. Claimant worked as a cleaner for Defendant’s cleaning service company. On July

26, 2011 she sought medical treatment for neck and left shoulder pain causally

related to wearing a vacuum pack and performing other heavy lifting activities

necessitated by her job duties. Defendant accepted her injury as compensable and

began paying workers’ compensation benefits accordingly.

  1. Initially Claimant treated conservatively for her injury, which was diagnosed as

probable cervical radiculopathy. She began a course of physical therapy, but

could not tolerate it. Her symptoms at the time included left shoulder and neck

pain and paresthesias down her left arm and into her fingers.

  1. Claimant failed to improve with conservative therapy. An October 2011 MRI

scan revealed a large, left-sided disc herniation at C6-7. As treatment, in

December 2011 she underwent fusion surgery with Dr. Pearson, a specialist in

orthopedic spine surgery.

  1. Claimant enjoyed complete relief of her left upper extremity symptoms postsurgery,

but her neck pain continued. At a February 2012 independent medical

examination with Dr. Backus, an occupational medicine specialist, she reported

“significant complaints,” including constant aching pain in her neck, upper back

and shoulders. She reiterated these complaints to her treating provider in New

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Mexico, where she had relocated, in April 2012. As treatment, the provider

strongly recommended physical therapy and progressive rehabilitation.

  1. Claimant underwent a course of physical therapy (her second since her initial

injury) while in New Mexico – a total of nine visits between May 30th and

September 4th, 2012. At formal hearing, she described the treatment as “not at all

helpful.”

  1. At Defendant’s request, in October 2012 Claimant underwent an independent

medical examination with Dr. Chen. She continued to report constant, aching

pain in her neck and shoulders, with general weakness in her left arm and

intermittent numbness and tingling radiating down into her fingers. Dr. Chen

anticipated that she would reach an end medical result one year post-surgery, or

December 2012, with an estimated 25 percent whole person permanent

impairment.

  1. Based on the extent to which Claimant’s activities of daily living were impacted

by the continued limitations she reported – difficulty sleeping, lifting more than

15 or 20 pounds or sitting or standing for extended periods, for example – Dr.

Backus rated a somewhat higher permanent impairment – 27 percent whole

person – than Dr. Chen had. With the Department’s approval, Defendant

compromised the two ratings, and paid permanent partial disability benefits in

accordance with a 26 percent whole person impairment rating.

  1. Having returned from New Mexico, Claimant next sought treatment for her neck

pain and upper extremity paresthesias in July 2013, again with Dr. Pearson. At

Dr. Pearson’s referral, from mid-August through mid-September 2013 she

underwent a third course of physical therapy. Unlike the therapy she had

undergone in 2012, which consisted primarily of passive modalities, this course

was exercise-based. Unfortunately, however, this treatment as well failed to yield

significant improvement. In all, Claimant attended eight of fourteen scheduled

sessions, during which she reported increased symptoms.

  1. Claimant returned to Dr. Pearson in October 2013. Electrodiagnostic studies

suggested longstanding radiculopathy in the C7 nerve root distribution, and an

MRI scan demonstrated adjacent segment degeneration at C5-6, the level above

the solid fusion at C6-7. Dr. Pearson recommended a second surgical fusion, this

time at C5-6, which Claimant underwent in November 2013. Defendant accepted

this procedure as causally related to her original injury, and paid benefits

accordingly.

  1. Claimant continued to complain of persistent axial neck pain following her

second surgery. As treatment, Dr. Pearson again referred her for physical therapy

(her fourth course). Between March and April 2014 Claimant attended five of ten

scheduled sessions, during which she reported that the exercises exacerbated

rather than relieved her symptoms.

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  1. Claimant next saw Dr. Pearson in mid-May 2014. As before, she reported pain at

the base of her cervical spine, radiating into her trapezius muscles bilaterally. Dr.

Pearson prescribed Tramadol, a narcotic pain medication, and advised her to

return in six months for a follow-up visit.

  1. Claimant credibly testified that during this period her symptoms significantly

limited her functional abilities. She stopped driving her car, because

manipulating the standard shift caused pain in her arm and shoulder, and the

limited range of motion in her neck made her feel unsafe. She was unable to

grocery shop, vacuum, perform yard work, carry laundry or pick up a gallon of

milk. She had difficulty washing her hair and could not tolerate working on a

computer for more than 30 minutes at a time. She did not go camping or fishing

during the summer, both recreational activities she had enjoyed previously.

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

medical examination with Dr. Boucher, an occupational medicine specialist.

Based on his physical examination and review of the pertinent medical records,

Dr. Boucher concluded that Claimant had reached an end medical result. In his

opinion, the treatment she had received to date had been reasonable, though he

voiced concern about the use of Tramadol for long-term relief of chronic pain.

Instead, he recommended a combination of non-steroidal anti-inflammatories and

tricyclic medications.

  1. As for permanency, Dr. Boucher rated Claimant with a 24 percent whole person

permanent impairment, the details of which are discussed infra, Conclusion of

Law Nos. 34-39. He described her overall prognosis as only “fair.”

  1. Following Dr. Boucher’s examination, in September 2014 Claimant telephoned

Dr. Pearson’s office to request a follow-up visit, notwithstanding that she was still

two months shy of the six-month timeframe he had suggested at her last

appointment in mid-May. She acknowledged at formal hearing that she

understood the financial ramifications of Dr. Boucher’s end medical result

determination – specifically, that it likely would prompt Defendant to discontinue

her temporary disability benefits – but credibly denied that her motivation for

contacting Dr. Pearson was solely to preclude it from doing so. Rather, her

primary goal was to discuss her remaining treatment options, if any.

  1. Dr. Pearson examined Claimant on September 30, 2014. Since his May

evaluation, her right-sided radicular symptoms had subsided, but she still

complained of significant axial neck pain radiating into her left trapezius, with

intermittent numbness into her left upper extremity. Dr. Pearson determined that

further surgery was not appropriate, and instead suggested non-surgical treatment

options – medial branch blocks, radiofrequency ablation or another course of

physical therapy. Claimant chose physical therapy, and Dr. Pearson made the

refer

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  1. Unlike her four prior attempts at physical therapy, this time Claimant made

excellent progress. As of late December 2014 her therapist reported that she no

longer guarded her neck movements, demonstrated full active range of motion

(within the limits of her fusions) and showed good upper extremity strength. Dr.

Pearson confirmed these results in his January 2015 follow-up examination,

noting in particular a ten-degree improvement in neck extension, which is

considered significant.

  1. As of December 26, 2014 Claimant’s physical therapist anticipated that she would

require only one to three additional sessions prior to discharge. Thereafter,

Claimant cancelled her next scheduled session on January 5, 2015, and did not

resume therapy until March 13, 2015. At hearing, she testified that she had been

ill during some of the intervening weeks, but otherwise did not offer any

explanation for the delay.

  1. After resuming therapy, Claimant underwent six additional sessions, and then was

discharged to a self-directed gym and/or home exercise program on April 30,

  1. According to the physical therapist’s report, by that date she had “met and

surpassed” all therapy goals.

  1. In her formal hearing testimony, Claimant credibly described the manner in which

her most recent course of physical therapy differed from those she had attempted

in the past. Beginning with massages and light exercises and then progressing to

more strenuous work in the gym allowed her gradually to build strength and

improve her range of motion without also increasing her pain. As a consequence,

her function improved as well. Over time, she regained the ability to lift a gallon

of milk, go grocery shopping, perform normal household chores, wash her own

hair, sit for longer periods at her computer and turn her head enough to drive

safely. She also reduced her use of Tramadol. In all, to her the program seemed

more attuned to her abilities than the previous ones had.

  1. Claimant credibly testified that although she has lost some of the gains she

realized while actively engaged in physical therapy, her functional abilities today

remain much improved over what they were a year ago. She has been unable to

maintain a gym membership, as both Dr. Pearson and the physical therapist

recommended, but continues to do her home exercises on a daily basis. With

better range of motion in her neck, she is still able to drive safely, grocery shop

and perform most activities of daily living.

ral.

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Expert End Medical Result Opinions

(a) Dr. Boucher

  1. With Dr. Boucher’s end medical result opinion as support, Finding of Fact No. 15

supra, Defendant discontinued Claimant’s temporary total disability benefits

effective September 26, 2014.

  1. At formal hearing, Dr. Boucher testified that Dr. Pearson’s subsequent referral for

an additional course of physical therapy did not alter his August 2014 end medical

result determination in any respect. Based on his review of Claimant’s medical

records, her cervical condition had already stabilized, such that additional therapy

likely would not have resulted in substantial improvement. To his eye,

furthermore, the increased range of motion in her neck was relatively

insignificant, and with home exercise the functional gains she reported could just

as easily have been realized a year earlier.

  1. Dr. Boucher acknowledged that he did not question Claimant closely during his

examination about her functional abilities, and also that he did not review the

records relating to her final course of physical therapy in any detail. I find that

these omissions significantly weaken his conclusions as to end medical result.

(b) Dr. Pearson

  1. On the basis of his September 30, 2014 physical therapy referral, Finding of Fact

No. 18 supra, and contrary to Dr. Boucher’s opinion on the issue, Dr. Pearson

concluded that Claimant had not yet reached a plateau in her recovery process by

that date, and therefore that she was not yet at an end medical result for her work

injury. Noting that at the time of Dr. Boucher’s evaluation she was only nine

months post-surgery, in his opinion any end medical result determination was on

its face premature. In his experience, the standard is at least one year postsurgery,

particularly in cases involving fusions, because it takes that long to

ensure that the vertebrae have solidly fused.

  1. Of greater import, Dr. Pearson believed that with additional physical therapy

Claimant still might realize decreased neck pain, increased cervical range of

motion and upper extremity strength, and improved function overall. It is not

uncommon for a patient to respond positively to physical therapy even after

having failed to do so previously, as Claimant had. Different therapists employ

different techniques, and patients often tolerate different modalities in different

ways at different times. Thus, while Dr. Pearson admitted that his physical

therapy referral would not “cure” Claimant’s chronic neck pain, he fully expected

that it would result in substantial improvement. That according to both his

clinical examination and Claimant’s subjective report this is in fact what occurred

corroborates his opinion, which I find credible in all respects.

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  1. As for Dr. Boucher’s characterization of the cervical range of motion gains Dr.

Pearson measured in January 2015 as insignificant, again Dr. Pearson disagreed.

Range of motion measurements suffer from very poor inter-rater reliability,

meaning that two doctors examining the same patient are unlikely to record the

same measurements. Thus, to the extent that Dr. Boucher based his conclusions

on a comparison between Dr. Pearson’s measurements and his own, this was a

faulty analysis.

  1. Dr. Pearson credibly testified that Claimant’s recovery process had not yet

plateaued as of the last time he examined her, January 7, 2015, because her

cervical condition was still improving and in his opinion probably would continue

to do so. He acknowledged that without personally evaluating her, he could not

determine at what point she likely reached an end medical result.

(c) Dr. Ensalada

  1. At her attorney’s referral, in June 2015 Claimant underwent an independent

medical examination with Dr. Ensalada. Dr. Ensalada is board certified in both

pain management and as an independent medical examiner. The primary purpose

of his evaluation was to rate the extent of the permanent impairment referable to

Claimant’s work injury in accordance with the American Medical Association

Guides to the Evaluation of Permanent Impairment (5th ed.) (“AMA Guides”).

The AMA Guides require that a patient must first have reached an end medical

result before his or her permanency can be rated, and for that reason Dr. Ensalada

addressed that issue as well in his subsequent report.

  1. As Dr. Pearson had, Dr. Ensalada disputed Dr. Boucher’s August 2014 end

medical result determination. In his opinion, it was appropriate for Dr. Pearson to

recommend additional physical therapy in September 2014, and in fact, the

treatment resulted in further improvement in her condition, thus negating any

finding that her recovery process had plateaued. For that reason, in Dr. Ensalada’s

opinion Claimant did not reach an end medical result until the date she was

discharged from physical therapy, April 30, 2015.

  1. In support of his opinion, Dr. Ensalada referenced the Occupational Disability

Guidelines (“ODG”), a publication of evidence-based treatment protocols for

various injuries and conditions arising in the workers’ compensation context.

According to the ODG, and specifically with regard to cervical spine fusion

surgeries, the evidence supports as many as 24 physical therapy sessions, spread

over 16 weeks after graft maturity, as reasonable and necessary. In comparison,

for a soft tissue sprain or strain, the ODG recommends only ten sessions, spread

over eight weeks. But in Claimant’s case, following her November 2013 fusion

surgery she had been able to tolerate just five sessions, in March and April 2014.

Viewed from this perspective, Dr. Pearson’s September 2014 referral for an

additional course of therapy fit well within the ODG guidelines and was therefore

entirely appropriate. I find this analysis credible.

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Expert Permanent Impairment Ratings

(a) Dr. Boucher

  1. With reference to the AMA Guides, Dr. Boucher rated Claimant with a 24 percent

whole person impairment referable to her work injury. In cases such as

Claimant’s, where the patient has undergone surgeries at different levels in the

same spinal region, the AMA Guides (§15.2 at pp. 379-380) require that the range

of motion model be used to calculate impairment. Under that model, the

evaluator must assess three separate elements: (1) the impaired spinal region’s

range of motion; (2) the accompanying diagnosis; and (3) any spinal nerve deficit.

AMA Guides §15.8 at p. 398.

  1. In Claimant’s case, Dr. Boucher assessed eleven percent impairment on account

of cervical range of motion deficits, thirteen percent impairment for the diagnostic

component and zero percent for nerve deficits. From this, he derived a total

whole person impairment rating of 24 percent.

  1. The methodology Dr. Boucher used to calculate Claimant’s range of motionrelated

impairment deviated in significant respects from that required by the AMA

Guides. Specifically:

 The AMA Guides require that the impairment rating for cervical

flexion/extension, lateral bending and rotation be based on “a valid set of

three consecutive measurements,” AMA Guides §15.11 at pp. 417-420.

Dr. Boucher took only two measurements in each plane.

 The AMA Guides require use of the two-inclinometer technique for

flexion/extension and lateral bending measurements, id. Dr. Boucher

used only a single inclinometer.

 To measure cervical rotation, the AMA Guides require use of an

inclinometer while the patient is in a supine position on the examining

table, id. Dr. Boucher used a goniometer instead, and took his

measurements while Claimant was seated rather than lying down on her

back.

 The AMA Guides require that the range of motion impairments for each

plane (flexion/extension, lateral bending and rotation) be added together

to derive the total cervical range of motion impairment, id. §15.8d at p.

403 and Figure 15-18 at p. 422, and then combined (using the Combined

Values chart, id. at pp. 604-605) with the diagnosis and nerve deficit

impairments to determine a single whole person impairment referable to

the cervical spine, id. at p. 403. Dr. Boucher combined all of his ratings,

including not only the 13-percent diagnosis-based rating but also the

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range of motion measurements for each individual plane. Had he

followed the Guides’ procedure correctly, the result would have been 23

percent whole person impairment, not 24 percent.

  1. Dr. Boucher offered various justifications for deviating from the AMA Guides’

methodology. These ranged from asserting that his examination methods

produced equally valid results to theorizing that the Guides’ instructions with

respect to adding versus combining impairment ratings were erroneous and likely

had been misprinted. None of these explanations was even remotely credible.

  1. Dr. Boucher acknowledged that his final impairment rating – 24 percent – was

less than either of the two impairment ratings Claimant had obtained following

her first fusion surgery in December 2011, see Finding of Fact Nos. 8 and 9

supra. He agreed that this was an unfair result, given that Claimant has now

undergone a second fusion surgery. The first rating was derived under the

diagnosis-related estimate method, however, which does not always correlate

exactly to one based on the range of motion method. I find this analysis credible.

  1. Dr. Boucher did not assess any additional permanent impairment on account of

pain in formulating his rating. The AMA Guides allow an evaluator to rate as

much as three percent additional impairment when a person with a verifiable

medical condition experiences pain in excess of what the primary impairment

rating already has captured. AMA Guides §18.3 at p. 570. Phrased alternatively,

the Guides allow for an additional rating in situations “in which the pain itself is a

major cause of suffering, dysfunction or medical intervention,” id. at p. 566.

Here, Dr. Boucher concluded that the range of motion impairments incorporated

into his 24 percent whole person rating adequately reflected Claimant’s pain

experience; therefore, no additional impairment was justified. I find this analysis

credible.

(b) Dr. Ensalada

  1. In Dr. Ensalada’s opinion, Claimant has suffered a 30 percent whole person

permanent impairment referable to her work injury – eighteen percent on account

of cervical range of motion deficits, twelve percent for the diagnostic component,

zero percent for nerve deficits and three percent for pain.

  1. Dr. Ensalada adhered scrupulously to the AMA Guides’ methodology to calculate

his cervical range of motion-related impairment. He took at least three

measurements in each plane. To do so, he used an inclinometer, because it

measures smaller angles of the spine with greater accuracy than a goniometer.

Last, he appropriately added the individual range of motion ratings, and then

combined the result with the other component ratings to derive the final whole

person impairment rating. I find that his close attention to the procedures

articulated in the Guides adds significant credibility to his calculations.

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range of motion measurements for each individual plane. Had he

followed the Guides’ procedure correctly, the result would have been 23

percent whole person impairment, not 24 percent.

  1. Dr. Boucher offered various justifications for deviating from the AMA Guides’

methodology. These ranged from asserting that his examination methods

produced equally valid results to theorizing that the Guides’ instructions with

respect to adding versus combining impairment ratings were erroneous and likely

had been misprinted. None of these explanations was even remotely credible.

  1. Dr. Boucher acknowledged that his final impairment rating – 24 percent – was

less than either of the two impairment ratings Claimant had obtained following

her first fusion surgery in December 2011, see Finding of Fact Nos. 8 and 9

supra. He agreed that this was an unfair result, given that Claimant has now

undergone a second fusion surgery. The first rating was derived under the

diagnosis-related estimate method, however, which does not always correlate

exactly to one based on the range of motion method. I find this analysis credible.

  1. Dr. Boucher did not assess any additional permanent impairment on account of

pain in formulating his rating. The AMA Guides allow an evaluator to rate as

much as three percent additional impairment when a person with a verifiable

medical condition experiences pain in excess of what the primary impairment

rating already has captured. AMA Guides §18.3 at p. 570. Phrased alternatively,

the Guides allow for an additional rating in situations “in which the pain itself is a

major cause of suffering, dysfunction or medical intervention,” id. at p. 566.

Here, Dr. Boucher concluded that the range of motion impairments incorporated

into his 24 percent whole person rating adequately reflected Claimant’s pain

experience; therefore, no additional impairment was justified. I find this analysis

credible.

(b) Dr. Ensalada

  1. In Dr. Ensalada’s opinion, Claimant has suffered a 30 percent whole person

permanent impairment referable to her work injury – eighteen percent on account

of cervical range of motion deficits, twelve percent for the diagnostic component,

zero percent for nerve deficits and three percent for pain.

  1. Dr. Ensalada adhered scrupulously to the AMA Guides’ methodology to calculate

his cervical range of motion-related impairment. He took at least three

measurements in each plane. To do so, he used an inclinometer, because it

measures smaller angles of the spine with greater accuracy than a goniometer.

Last, he appropriately added the individual range of motion ratings, and then

combined the result with the other component ratings to derive the final whole

person impairment rating. I find that his close attention to the procedures

articulated in the Guides adds significant credibility to his calculations.

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  1. Although grounded in the same section of the AMA Guides (Table 15-7 at p. 404)

that Dr. Boucher had utilized, Dr. Ensalada’s interpretation yielded a slightly

lower diagnosis-related impairment – twelve percent, as opposed to Dr. Boucher’s

thirteen percent. Neither evaluator specifically addressed the discrepancy in their

formal hearing testimony. Again, given Dr. Ensalada’s demonstrated familiarity

with, and close adherence to, the Guides’ rating system, I find his application of

Table 15-7 is likely more accurate than Dr. Boucher’s.

  1. As noted above, Conclusion of Law No. 39 supra, the AMA Guides permit an

evaluator to assess an additional pain-related impairment if he or she determines

that the body system impairment already rated has failed to adequately

incorporate it. Dr. Ensalada acknowledged that the impairment he derived under

the Guides’ range of motion methodology included some consideration of

Claimant’s pain. Nevertheless, in his view she still deserved the maximum

allowable pain-related rating, three percent.

  1. As support for his opinion, Dr. Ensalada referenced various pain-related

limitations on daily living activities that Claimant had reported to her physical

therapist on April 23, 2014. As documented in the therapist’s report, Claimant

rated her pain at that time as “6-7/10 constantly.” By the time of Dr. Ensalada’s

examination, however, and with the benefit of the physical therapy she had

undergone more recently, Conclusion of Law Nos. 19-23 supra, Claimant was

reporting both significantly decreased pain levels – ranging from three to six out

of ten – and an increased ability to perform daily living activities. Indeed, it was

exactly because of the gains she realized with this latest round of physical therapy

that Dr. Ensalada characterized the sessions as both medically appropriate and

successful, see Conclusion of Law No. 32 supra. With that in mind, I find it

difficult to accept his opinion that Claimant’s current condition merits the

maximum allowable pain-related impairment rating.

  1. Dr. Ensalada billed a total of $1,750.00 for the time spent interviewing and

examining Claimant, reviewing her medical records and preparing his

independent medical examination report.

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).

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  1. The primary disputed issues here revolve around end medical result and

permanency. Claimant asserts that the physical therapy she underwent from

October 2014 until April 2015 substantially improved her condition, and thus

negated Dr. Boucher’s previous end medical result determination. She further

contends that Dr. Ensalada’s permanency opinion, which includes an additional

rating for pain-related impairment, more accurately reflects her current condition

than Dr. Boucher’s does.

End Medical Result

  1. Vermont’s workers’ compensation rules define end medical result as “the point at

which a person has reached a substantial plateau in the medical recovery process,

such that significant further improvement is not expected, regardless of

treatment.” Workers’ Compensation Rule 2.2000. The date of end medical result

marks an important turning point in an injured worker’s progress, both medically

and legally. Medically, it signals a shift in treatment from curative interventions,

the goal of which is to “diagnose, heal or permanently alleviate or eliminate a

medical condition,” to palliative ones, which aim instead to “reduce or moderate

temporarily the intensity of an otherwise stable medical condition.” Workers’

Compensation Rule 2.3400.

  1. Legally, because temporary disability benefits are only payable “for so long as the

medical recovery process is ongoing,” once an injured worker reaches an end

medical result his or her entitlement to temporary indemnity benefits ends, and

the focus shifts instead to consideration of permanent disability. Bishop v. Town

of Barre, 140 Vt. 564, 571 (1982).

  1. The Vermont Supreme Court has defined the proper test for determining end

medical result as “whether the treatment contemplated at the time it was given

was reasonably expected to bring about significant medical improvement.” Brace

  1. Vergennes Auto, Inc., 2009 VT 49 at ¶11, citing Coburn v. Frank Dodge &

Sons, 165 Vt. 529, 533 (1996). In Brace, the Court approved the trial court’s

determination that the claimant had not yet reached an end medical result because

her referral to a rehabilitation and pain management clinic had the potential to

improve her overall function, and in fact did so, in terms of both range of motion

and ability to engage in activities and tasks. Id. at ¶13.

  1. In cases decided since Brace, the Commissioner has ruled that a defined course of

treatment that (a) offers long-term symptom relief rather than just a temporary

reprieve; and (b) is reasonably expected to provide significant functional

improvement can, in appropriate circumstances, negate a finding of end medical

result. Marsh v. Koffee Kup Bakery, Inc., Opinion No. 15-15WC (July 6, 2015)

(pain management treatment); Luff v. Rent Way, Opinion No. 07-10WC (February

16, 2010) (trial implantation of spinal cord stimulator); Cochran v. Northeast

Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009)

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(participation in functional restoration program). Interpreting the concept of the

“medical recovery process,” Bishop, supra, in this way is in keeping with the

benevolent objectives and remedial nature of Vermont’s workers’ compensation

law. Luff, supra, citing Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983).

  1. The parties here proffered conflicting expert testimony regarding whether

Claimant’s most recent course of physical therapy could reasonably have been

expected to significantly improve her condition. 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).

  1. I conclude here that the opinions offered by Drs. Pearson and Ensalada are the

most credible. As the treating physician, Dr. Pearson was best positioned to

compare Claimant’s condition both before and after her most recent course of

physical therapy. His clinical observations and range of motion measurements

documented significant improvement, and thus provided objective support for his

conclusion that at least as of the last time he examined her, January 7, 2015, she

had not yet reached an end medical result. In addition, his clinical experience

with patients like Claimant, who showed significant improvement despite having

failed at previous attempts, and also with physical therapists that employ different

techniques to achieve successful rehabilitation, was compelling.

  1. Dr. Ensalada provided further support for Dr. Pearson’s opinion. His reliance on

the Occupational Disability Guidelines, which established that an additional

course of physical therapy fit well within the treatment parameters for a patient

with Claimant’s medical history, was persuasive.

  1. In contrast, Dr. Boucher’s end medical result opinion was premised primarily on

his assertion that Claimant’s cervical condition had already stabilized, and that

whatever further gains she realized thereafter were insignificant. As noted above,

however, Finding of Fact No. 29 supra, his comparison of Dr. Pearson’s range of

motion measurements with his own was faulty. He was unfamiliar with the

Occupational Disability Guidelines, and offered no objective support for his

claim that Claimant could have achieved the same results with a home exercise

program that she did with a final course of physical therapy. Last, he admitted

that he neither questioned Claimant closely about her functional abilities, nor

reviewed her physical therapy records in any detail, Finding of Fact No. 26 supra.

Considered together, these omissions render his opinion unpersuasive.

  1. I conclude from Dr. Pearson’s credible testimony that Claimant had not yet

reached an end medical result for her July 26, 2011 compensable work injury as

13

of September 26, 2014, the date on which Defendant discontinued her temporary

disability benefits. I further conclude from Dr. Ensalada’s credible testimony that

she did not do so until April 30, 2015, the date on which she was discharged from

her final course of physical therapy.

  1. Although Claimant is thus owed additional temporary total disability benefits, she

has failed to establish her entitlement for the period from January 5, 2015 to

March 13, 2015. Her hiatus from therapy during this time was largely

unexplained, Finding of Fact No. 20 supra. Had it not occurred, presumably

treatment would have concluded sooner and she would have reached an end

medical result earlier. Claimant offered no credible justification for the delay, and

for that reason I cannot require Defendant to pay disability benefits while it

persisted.

  1. I conclude that Claimant is owed temporary total disability benefits for the

periods from September 26, 2014 through January 5, 2015 and from March 13,

2015 through April 30, 2015.

Permanency

  1. As for the extent of Claimant’s permanent partial impairment, again, the parties

offered conflicting expert medical evidence. As noted above, Finding of Fact No.

36 supra, the methods Dr. Boucher used to calculate permanency deviated from

the AMA Guides’ requirements in important respects, whereas Dr. Ensalada’s

rating complied in every detail.

  1. The primary purpose of the AMA Guides is to provide a “standardized, objective

approach to evaluating medical impairments,” id. at p. 1, quoted in Brown v. W.T.

Martin Plumbing & Heating, Inc., 2013 VT 38, ¶16. It is with that in mind that

Vermont’s workers’ compensation statute directs that the Guides are

determinative with respect to “the existence and degree of permanent partial

impairment” associated with a work injury. Id. at ¶21.

  1. I conclude that Dr. Boucher’s failure to adhere to the AMA Guides’ procedures for

determining permanent impairment renders his rating unpersuasive.

  1. While I accept Dr. Ensalada’s 28 percent range of motion-determined rating as

consistent with the AMA Guides and therefore credible, I cannot accept the basis

for his pain-related impairment. Claimant’s credible testimony itself belies his

assertion that her functional abilities remain impaired to such an extent as to merit

the maximum three percent additional impairment for pain. For that reason, I

must reject this component of his permanency rating.

  1. I conclude from the credible expert evidence that Claimant has suffered a 28

percent whole person permanent impairment referable to her July 26, 2011

compensable work injury. Having already been paid permanency benefits for a

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26 percent whole person impairment in 2013, Finding of Fact No. 9 supra, she is

now owed benefits for an additional two percent whole person impairment,

pursuant to 21 V.S.A. §648(d).

  1. As Claimant has substantially prevailed on her claim for benefits, she is entitled to

an award of costs1 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 from September 26, 2014 through January

5, 2015 and from March 13, 2015 through April 30, 2015, in accordance with

21 V.S.A. §642, with interest as calculated in accordance with 21 V.S.A.

  • 664;
  1. Permanent partial disability benefits in accordance with a two percent whole

person impairment referable to the spine, a total of eleven weeks commencing

on May 1, 2015, as calculated in accordance with 21 V.S.A. §648, with

interest as calculated in accordance with 21 V.S.A. §664; and

  1. Costs and attorney fees in amounts to be determined, in accordance with 21

V.S.A. §678.

DATED at Montpelier, Vermont this _____ day of ______________, 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.

1 Claimant having substantially prevailed, the cost of Dr. Ensalada’s independent medical examination and

permanent impairment rating is recoverable as a litigation expense. Therefore, I need not address the

extent to which it would have qualified in any event as a permanent impairment rating “from a physician of

[Claimant’s] choosing,” which Defendant would have been obligated to pay for under Workers’

Compensation Rule 10.1210.

 

 

 

 

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