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Lesley Bienvenue v. Sandra Kuc d/b/a Vermonsters Daycare Center

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Lesley Bienvenue v. Sandra Kuc d/b/a Vermonsters Daycare Center

Opinion No. 23-15WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. CC-2661

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

APPEARANCES:

Lesley Bienvenue, pro se

Jennifer Moore, Esq., for Defendant

ISSUE PRESENTED:

Is Claimant’s workers’ compensation claim time-barred under 21 V.S.A. §660(a)?

EXHIBITS:

Defendant’s Exhibit A: Employer First Report of Injury (Form 1)

Defendant’s Exhibit B: Denial of Workers’ Compensation Benefits (Form 2)

Defendant’s Exhibit C: Letter from Anne Coutermarsh, November 18, 2011

Defendant’s Exhibit D: Letter from Tracy Downing, February 9, 2012

Defendant’s Exhibit E: Letter from Claimant, February 15, 2012

Defendant’s Exhibit F: Letter from Anne Coutermarsh, March 11, 2015

FINDINGS OF FACT:

Considering the evidence in the light most favorable to Claimant as the non-moving

party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:

  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 contained in the Department’s file

relative to this claim.

2

  1. On or about May 5, 2011 Claimant filed an Employer First Report of Injury

(Form 1) with the Department, in which she alleged that on March 21, 2011 she

had injured her lower back and left knee when a co-worker fell into her and

knocked her to the ground.1 Defendant’s Exhibit A.

  1. On or about June 10, 2011 Defendant filed a Denial of Workers’ Compensation

Benefits (Form 2), Defendant’s Exhibit B, in which it asserted that there was no

causal relationship between Claimant’s injuries and her employment. In support

of its position, Defendant submitted email correspondence from Sandra Kuc, its

executive director, and Stacy Sturtevant, its assistant director, both of whom

challenged Claimant’s version of events. Specifically, Ms. Kuc and Ms.

Sturtevant denied that Claimant had ever informed them either of the incident or

of the injuries she alleged, nor had she ever appeared disabled to the extent she

now claimed.

  1. Claimant appealed Defendant’s denial on or about June 20, 2011. On September

14, 2011 the parties participated in an informal conference with the Department’s

specialist. By this time, Defendant had produced additional statements from two

of Claimant’s co-employees, both of whom denied having witnessed the incident

she had alleged despite having worked with her on the day in question. Based on

this evidence, as well as her review of the contemporaneous medical records, on

November 18, 2011 the Department’s workers’ compensation specialist

determined that Defendant’s denial was reasonably supported and therefore

upheld it. Defendant’s Exhibit C.

  1. By Notice and Application for Hearing (Form 6) dated December 7, 2011,

Claimant challenged the specialist’s determination and requested a formal

hearing.

  1. By letter dated February 9, 2012 the formal hearing docket administrator notified

the parties that Claimant’s claim had been referred to the formal hearing docket,

and that a telephone pretrial conference had been scheduled for March 12, 2012.

Defendant’s Exhibit D.

  1. On February 15, 2012 Claimant addressed the following letter to the Department,

Defendant’s Exhibit E:

I have chosen to withdraw my request for a hearing. I am not able

to handle the stress associated with this case. I unfortunately, I

chose to wait and see if I would heal on my own before reporting

the incident to my Doctor and can’t undo that fact.

  1. Upon receipt of Claimant’s letter, the specialist notified the parties that the

previously scheduled pretrial conference had been cancelled.

1 Claimant appears to have completed the First Report of Injury herself; it is in her handwriting, and neither

Defendant nor its representative signed it.

3

  1. Defendant filed additional denials with the Department on February 21, 2013 and

May 1, 2013, pertaining to medical bills it had received from various providers

for treatment rendered to Claimant between January and March 2013. Claimant

did not immediately appeal either denial.

  1. By correspondence dated February 27, 2015 (received by the Department on

March 4, 2015), Claimant sought to renew her appeal of Defendant’s claim

denial. By letter dated March 11, 2015 the Department’s specialist determined

that the evidence did not support her claim, and therefore declined to issue an

interim order for benefits. Defendant’s Exhibit F.

  1. At Claimant’s request thereafter, the specialist referred the matter back to the

formal hearing docket. Defendant’s motion for summary judgment followed.

Claimant has not filed any response.

DISCUSSION:

  1. Summary judgment is proper when “there is no genuine issue of material fact and

the moving party is entitled to a judgment as a matter of law, after giving the

benefit of all reasonable doubts and inferences to the opposing party.” State v.

Delaney, 157 Vt. 247, 252 (1991). To prevail on a motion for summary

judgment, the facts must be “clear, undisputed or unrefuted.” State v. Heritage

Realty of Vermont, 137 Vt. 425 (1979); A.M. v. Laraway Youth and Family

Services, Opinion No. 43-08WC (October 30, 2008).

  1. Defendant here asserts that because Claimant previously withdrew her request for

a hearing on its denial of her claim for workers’ compensation benefits, the

applicable statute of limitations now precludes her from reviving it. As the

material facts are undisputed, summary judgment is an appropriate vehicle for

resolving this issue. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22,

25 (1996).

  1. The statute of limitations for initiating a claim for workers’ compensation benefits

is three years from the date of injury. 21 V.S.A. §660(a). Having alleged an

injury date of March 21, 2011, Claimant here first initiated her claim on or about

May 5, 2011, which was well within the limitations period. Thereafter, however,

in February 2012 she withdrew her appeal of Defendant’s claim denial, and did

not seek to revive it until February 2015. The legal question posed by these

actions is whether the statute of limitations was tolled in the meantime, such that

her current appeal remains timely, or whether it has since expired, such that her

appeal is now time-barred.

  1. So long as they do not defeat the informal nature of the dispute resolution process,

the Vermont Rules of Civil Procedure apply generally to workers’ compensation

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proceedings. Workers’ Compensation Rule 7.1000.2 Vermont Rule of Civil

Procedure 41(a) governs voluntary dismissals. It allows for a plaintiff to dismiss

an action without a court order at any time before the adverse party files an

answer, V.R.C.P. 41(a)(1), and thereafter with the court’s approval, V.R.C.P.

41(a)(2).

  1. I consider the actions taken in February 2012, when in response to Claimant’s

notice that she had chosen to “withdraw” her request for a hearing the

Department’s specialist cancelled the previously scheduled pretrial conference, to

be the equivalent of a voluntary dismissal of her appeal under V.R.C.P. 41(a)(2).

See Agency of Natural Resources v. Lyndonville Savings Bank & Trust Co., 174

Vt. 498 (2002) (equating “withdrawal” of action with voluntary dismissal in

context of V.R.C.P. 11 “safe harbor” provisions).

  1. For statute of limitations purposes, the legal effect of Claimant having voluntarily

dismissed her appeal without pursuing a determination on the merits of

Defendant’s claim denial is the same as if she had never filed a claim for benefits

at all. Grant v. Cobbs Corner, Inc., Opinion No. 22A-02WC (July 25, 2002),

citing Demars v. Robinson King Floors, Inc., 256 N.W.2d 501, 505 (Minn. 1977).

Were the rule otherwise, a claimant might voluntarily dismiss and then renew his

or her claim “in perpetuity.” Grant, supra.

  1. The time limits imposed by a statute of limitations “represent a balance, affording

the opportunity to plaintiffs to develop and present a claim while protecting the

legitimate interests of defendants in timely assertion of that claim.” U.S. v.

Kubrick, 444 U.S. 111, 117 (1979), cited with approval in Investment Properties,

Inc. v. Lyttle, 169 Vt. 487, 492 (1999). For both the parties and the fact-finder,

“the search for truth may be seriously impaired by the loss of evidence, whether

by death or disappearance of witnesses, fading memories, disappearance of

documents, or otherwise.” Id. These concerns are especially relevant in cases

where, as here, the most basic facts underlying a claimant’s claim for workers’

compensation benefits, including where and when the alleged injury occurred,

who witnessed it and what if any disability resulted, have been hotly contested

from the beginning.

  1. I conclude as a matter of law that the statute of limitations was not tolled when

Claimant voluntarily withdrew her appeal of Defendant’s claim denial in February

  1. That being the case, she had three years from the date of her alleged March

21, 2011 injury, or until March 21, 2014, within which to reassert her claim for

worker’s compensation benefits. As she failed to do so, her claim is now timebarred.

2 Effective August 1, 2015 Workers’ Compensation Rule 7.1000 has been re-codified as Rule 17.1100.

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ORDER:

Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s claim for

workers’ compensation benefits arising out of her alleged March 11, 2011 work-related

injury is hereby DISMISSED WITH PREJUDICE.

DATED at Montpelier, Vermont this _____ day of ____________, 2015.

_______________________

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.

Ryan Wetherby v. Donald P. Blake Jr. Opinion No. 02-16WC

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Ryan Wetherby Opinion No. 02-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

Donald P. Blake, Jr.

For: Anne M. Noonan

Commissioner

State File No. EE-65426

RULING ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY

JUDGMENT

APPEARANCES:

Christopher McVeigh, Esq., for Claimant

William Blake, Esq., for Defendant

ISSUE PRESENTED:

Did Defendant’s calculation of Claimant’s average weekly wage and

compensation rate in accordance with Workers’ Compensation Rule 15.4240

violate the parameters of 21 V.S.A. §650(a)?

EXHIBITS:

Claimant’s Exhibit 1: Wage Statement (Form 25)

Defendant’s Exhibit A: Wage Statement (Form 25)

Defendant’s Exhibit B: Proposed Workers’ Compensation Rules

FINDINGS OF FACT:

The following facts are undisputed:

  1. Claimant filed the pending workers’ compensation claim alleging a lower back

injury arising out of a June 24, 2013 work-related accident.

  1. Defendant’s workers’ compensation insurance carrier, Acadia Insurance

Company (“Acadia”), accepted the claim as compensable.

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

Categories: Do not chooseAuthor:

 

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.

4

  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

5

  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.

7

  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.

8

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.

9

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.

10

  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).

11

  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)

12

(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

14

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.

 

 

 

 

Sue Ann Goodrich v. Fletcher Allen Health Care Opinion No. 06-16WC

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Sue Ann Goodrich Opinion No. 06-16WC

  1. By: Jane Woodruff, Esq.

Administrative Law Judge

Fletcher Allen Health Care

For: Anne M. Noonan

Commissioner

State File No. DD-60132

RULING ON DEFENDANT’S MOTION TO ENFORCE CLAIMANT’S

STATUTORY OBLIGATION TO SUBMIT TO NEUROLOGICAL

TESTING AND, IN THE ALTERNATIVE, MOTION IN LIMINE

APPEARANCES:

Frank Talbott, Esq., for Claimant

Jennifer Moore, Esq., for Defendant

ISSUES PRESENTED:

  1. Do the terms of 21 V.S.A. §655 apply to independent neuropsychological

examinations?

  1. Does Claimant’s right to make a video recording of Defendant’s

independent neuropsychological examination impermissibly deny

Defendant’s right to an examination?

  1. Did Claimant give proper notice of her intent to make a video recording of

Defendant’s independent neuropsychological examination under Workers’

Compensation Rule 6.1410?

  1. If Claimant failed to give proper notice, should she be held financially

responsible for the charges Defendant incurred as a consequence?

  1. Should Claimant’s right to prosecute her claim be suspended on the

grounds that she has refused to attend a properly noticed independent

medical examination?

EXHIBITS:

Claimant’s Exhibit 1: Federal Rule of Civil Procedure 6

2

Claimant’s Exhibit 2: American Psychological Association, Statement on Third

Party Observers in Psychological Testing and Assessment:

A Framework for Decision Making, 2007

Claimant’s Exhibit 3: Zabkowicz v. The West Bend Co., et al., 585 F. Supp. 635

(E.D. Wis. 1984)

Defendant’s Exhibit A: Letter from Attorney Moore to Claimant, December 11,

2015

Defendant’s Exhibit B: Affidavit of Sarah Spicer, January 26, 2016

Defendant’s Exhibit C: Emails between Attorney Talbott and Attorney Moore,

January 4, 2016

Defendant’s Exhibit D: Dr. Postal’s fee schedule

Defendant’s Exhibit E: Lewandowski, et al., Policy Statement of the American

Board of Professional Neuropsychology regarding third

party observation and the recording of psychological test

administration in neurological evaluations, http://abnboard.

com/?s=ABN+White+paper

Defendant’s Exhibit F: Policy Statement on the Presence of Third Party Observers

in Neuropsychological Assessments, The Clinical

Neuropsychologist, 2001, Vol. 15 No. 4, pp. 433-439

Defendant’s Exhibit G: Affidavit of thirty-three Illinois psychologists opposed to

the presence of third party observers during

neuropsychological and psychological assessments, June

2012

Defendant’s Exhibit H: Legal policies regarding the reproduction and

dissemination of Pearson Test Materials, January 1, 2014

FACTUAL BACKGROUND:

On February 12, 2012, Claimant sustained a low back injury while lifting a heavy trash

bag in the course of her employment for Defendant. Defendant accepted the injury as

compensable and paid benefits accordingly. On December 10, 2014 Claimant filed a

Notice and Application for Hearing (Form 6), in which she asserted a claim for

permanent total disability benefits. Specifically, she claims that she is unable to return to

gainful employment because her learning disability prevents her from learning a new

trade that does not exceed her work capacity.

On December 11, 2015, Defendant provided notice to Claimant and her counsel,

Attorney Talbott, that it had scheduled her to attend a neuropsychological examination on

Thursday, January 7, 2016 at 9:00 AM with Dr. Karen Postal, Ph.D. On Monday,

January 4, 2016 Sarah Spicer, a paralegal employed by Attorney Moore (Defendant’s

counsel), telephoned Attorney Talbott between 3:01 PM and 3:10 PM to confirm that

Claimant would be attending the examination as scheduled. Attorney Talbott indicated

that Claimant would attend. In addition, he requested that Ms. Spicer inform Attorney

Moore that Claimant intended to exercise her right, under 21 V.S.A. §655, to make a

video recording of the examination.

3

Shortly thereafter, at 3:39 PM Attorney Moore emailed Attorney Talbott to advise that

Dr. Postal would allow Claimant to make a video recording of the interview portion of

the examination, but objected to any video record of the testing itself.

Attorney Talbott responded to Attorney Moore’s email at 4:34 PM. In it, he asserted that

Claimant had the right to videotape the entire evaluation. At 4:38 PM Attorney Moore

replied, and again asserted her position that Claimant would not be permitted to make a

video recording of the actual testing portion of the examination. More specifically, she

advised that Dr. Postal was unwilling to conduct the examination if it was to be

videotaped, due to her concern that a third party observer would render the test results

unreliable. Thus, Attorney Moore asserted, if Claimant insisted on doing so the ultimate

result would be to deprive Defendant of its right to the evaluation altogether. In addition,

Attorney Moore questioned whether Attorney Talbott had given the requisite three

business days’ notice of Claimant’s intent to videotape the examination, as mandated by

Workers’ Compensation Rule 6.1410.

On January 5, 2016 Attorney Moore sought guidance from the administrative law judge

on the issues she had raised in the previous day’s email to Attorney Talbott. As to the

question whether Claimant should be allowed to videotape the testing portion of Dr.

Postal’s examination, Attorney Moore asserted that doing so would be improper because

(a) the presence of a third party observer (in this case, the videographer) would invalidate

the test results; and (b) videotaping would compromise the proprietary nature of the

written test materials.

At a telephone status conference that same afternoon, the administrative law judge

preliminarily ruled that the statute granted Claimant an absolute right to make a video

recording of the examination, and that Dr. Postal’s concerns could be adequately

addressed by crafting an order to protect the proprietary nature of the test materials. She

also ruled preliminarily that Claimant had in fact given adequate notice of her intent to

videotape. She then allowed the parties additional time in which to more fully brief their

respective positions on these issues.

As a consequence of the administrative law judge’s preliminary rulings, Defendant

canceled Dr. Postal’s scheduled examination. However, because it failed to do so at least

48 hours beforehand, Dr. Postal imposed a late cancellation charge of $1,600.00, in

accordance with her established fee schedule. Now, in addition to a final ruling on the

issues discussed above, Defendant also requests an order that Claimant be held

responsible for the cancellation charge, on the grounds that but for her improper request

to videotape the examination it would have occurred as scheduled.

4

DISCUSSION:

Application of 21 V.S.A. §655 to Independent Neuropsychological Examinations

  1. I consider first Defendant’s argument that the statute pertaining to independent

medical examinations, 21 V.S.A. §655, does not apply to neuropsychological

examinations. The specific statutory language reads:

After an injury and during the period of disability, if so requested

by his or her employer, . . . the employee shall submit to

examination . . . by a duly licensed physician or surgeon

designated and paid by the employer.

  1. Workers’ Compensation Rule 6.0000 refers to the examinations that §655

mandates by their more common descriptor, “independent medical examinations.”

Defendant asserts that a neuropsychological examination is not a “medical”

examination, and therefore that the rights granted Claimant by both statute and

rule with respect to videotaping examinations do not apply here. Unlike a

neuropsychological examination, it argues, a “medical” examination does not

involve “testing;” thus, Claimant’s right to make a video recording should not

extend to the actual test portion of Dr. Postal’s exam.

  1. The short answer to Defendant’s argument is that if a neuropsychological

examination is not covered by §655, then Defendant has no right to require

Claimant to submit to it in the first instance.

  1. Beyond that, I reject Defendant’s premise that a neuropsychological examination

is not properly characterized as a “medical” procedure. “Neuropsychology” is

defined as “a science concerned with the integration of psychological

observations on behavior and the mind with neurological observations on

the brain and nervous system.” http://www.merriamwebster.

com/dictionary/ neuropsychology. “Medical” is defined as “of or

relating to the treatment of diseases and injuries: of or relating to

medicine.” http://www.merriam-webster.com/dictionary/medical. The

brain and the nervous system are organs of the human body and are

treated for diseases and injuries. Considering these definitions together, I

conclude that it is reasonable to characterize neuropsychology as a wellrecognized

subset of medicine.

  1. The employer’s statutory right to independent medical examinations has

long been interpreted to include both psychological and

neuropsychological evaluations. I see no basis for interpreting the

statutory language as narrowly as Defendant suggests. I conclude that the

parties’ rights and responsibilities with respect to Dr. Postal’s evaluation

are squarely covered by §655 and Rule 6.0000.

5

Claimant’s Right to Make Video Recording versus Employer’s Right to

Independent Examination

  1. Workers’ compensation-related independent medical examinations are governed

by statute, 21 V.S.A. §655. Particularly with respect to video- and audiotaping,

the statute safeguards both parties’ rights as follows:

The employee may make a video or audio recording of any

examination performed by the insurer’s physician or surgeon or

have a licensed health care provider designated and paid by the

employee present at the examination. The employer may make an

audio recording of the examination. . . . If an employee refuses to

submit to or in any way obstructs the examination, the employee’s

right to prosecute any proceeding under the provisions of this

chapter shall be suspended until the refusal or obstruction ceases,

and compensation shall not be payable for the period during which

the refusal or obstruction continues.

  1. Defendant contends that, under the circumstances of this case, Claimant’s

insistence on videotaping Dr. Postal’s neuropsychological examination is

tantamount to denying its right to conduct the examination itself, in violation of

the language of §655 quoted in Paragraph 1 above. It argues that ethical

considerations preclude Dr. Postal from allowing a third party observer to be

present while the necessary tests are administered. As support, Defendant cites to

two journal articles purporting to explain the positions of the American Board of

Professional Neuropsychology (the “Board”) and the American Academy of

Clinical Neuropsychology (the “Academy”) on this issue, see Defendant’s

Exhibits E and F.

  1. Both the Board and the Academy state the same reasons for their policies: (1)

because test results are measured against normalized standards that do not account

for third party observers, validating tests conducted with an observer present is

impossible; and (2) because testing materials are proprietary in nature, the

presence of a third party observer will compromise their integrity and jeopardize

their future use.

  1. As Claimant correctly observes, see Claimant’s Exhibit 2, the American

Psychological Association (the “Association”) has advocated an alternative

position, one that recognizes the necessity of third party observers in certain

situations, for example, where testing occurs in the context of criminal

proceedings against the examinee. The Association has provided a framework

under which an examination can proceed without compromising either test

validity or security.

  1. As to test validity, the concern raised by both the Board and the Academy is the

risk that a third party observer will distort the testing environment, distract the

6

examinee and damage the examiner’s ability to establish rapport, all of which will

adversely affect the examinee’s performance and skew test results. To minimize

these risks, the Association has suggested various solutions, such as positioning

the observer behind the examinee (with strict instructions to remain silent

throughout) or recording the examination through a one-way mirror. Though

perhaps not perfect, these steps represent an effective compromise between the

examinee’s rights and the examiner’s need for valid test results.

  1. In this case, both Claimant’s right to have a third party videographer present at

Dr. Postal’s examination and Defendant’s right to the examination itself derive

from the same statute, 21 V.S.A. §655. As to the right to make a video recording,

the statute grants permission for “any examination” to be videotaped. I can accept

the need to impose whatever safeguards are reasonably necessary to address an

examiner’s valid concerns. However, having in mind the remedial purposes of

the workers’ compensation act, Grather v. Gables Inn, Ltd., 170 Vt. 377, 382

(2000), I cannot countenance restrictions that are unduly limiting.

  1. I conclude here that Claimant has the right to make a video recording of Dr.

Postal’s neuropsychological examination, including not only the interview portion

of the exam but also the actual testing portion. Among the safeguards that are

reasonable to impose are those discussed in Paragraph 4 above. In addition, in

order to protect the proprietary nature of the test materials, I conclude that it is

reasonable to prohibit Claimant from disclosing the video recording to anyone

(including her attorney) other than directly to another qualified expert

neuropsychologist.

  1. In reaching this conclusion and imposing these safeguards, I acknowledge the

very real possibility that Dr. Postal will refuse to conduct the examination. That

is her right. I am reasonably confident that if this occurs, Defendant will be able

to identify another equally competent neuropsychologist who is willing to

proceed. If travel beyond the statutory two-hour driving limitation becomes

necessary, I expect it will be within the proper exercise of the discretion granted

me by §655 to allow the examination to take place nevertheless.

Notice of Intent to Make Video Recording

  1. Workers’ Compensation Rule 6.1400 reiterates the Claimant’s statutory right to

videotape an independent medical examination, see Paragraph 6 supra, but adds a

notice requirement, as follows:

6.1410 At least three business days prior to the scheduled

examination date, the injured worker shall give notice of his or her

intention to make a video or audio recording of the examination to

the employer or insurance carrier, who shall in turn notify the

medical provider.

7

  1. Defendant argues that Claimant did not comply with the requirements of Rule

6.1410 because she did not give three full business days’ notice of her intent to

video record the examination. Claimant contends that she complied with the plain

meaning of the Rule in providing her notice.

  1. The Vermont Rules of Civil Procedure apply in workers’ compensation

proceedings to the extent that they do not defeat the informal nature of the

hearings. 21 V.S.A. §§602, 604; Workers’ Compensation Rule 17.1100.

Specifically with respect to determining timeliness, Workers’ Compensation Rule

3.3000 incorporates the provisions of Vermont Rule of Civil Procedure 6(a). That

rule states, in pertinent part, that when computing time, “the day of the act, event,

or default from which the designated period of time begins to run shall not be

included.” The last day of the period is included, however, unless it falls on a

weekend or holiday.

  1. There is an important distinction between the time computations encompassed by

the Rules of Civil Procedure and the one at issue here. Counting the last day of a

period as a full day of notice makes sense when the action to be taken involves

serving documents on a party or filing papers with the court, because acts such as

this are not scheduled to occur at any particular hour of the day. However, when

the notice concerns a scheduled medical appointment, time of day matters. And

with its specific reference to “business days,” Workers’ Compensation Rule

6.1410 reflects that.

  1. In the instant case, the three-day notice period began to run on Tuesday, January

5, 2016, the day after Attorney Talbott first gave notice of Claimant’s intent to

videotape Dr. Postal’s exam. Wednesday, January 6th was the second day.

Thursday, January 7th – the day of Dr. Postal’s exam – would have been the third

day. Had the exam been scheduled for later in the afternoon, perhaps it would

have been fair to count it as a notice day. As it was, the exam was scheduled for

9:00 AM, the very start of the business day, however. Under that circumstance, to

count January 7th as the third day would be manifestly unfair.

  1. I conclude that Claimant failed to give adequate notice of her intent to videotape

Dr. Postal’s independent medical examination, as required by Workers’

Compensation Rule 6.1410. Because her failure to do so led directly to the

appointment’s late cancellation, I further conclude that she is liable for the

$1,600.00 cancellation fee that Dr. Postal imposed.

Defendant’s Motion in Limine in the Alternative

  1. I reject Defendant’s contention that Claimant should be sanctioned under §655 for

“refusing to attend” Dr. Postal’s examination, however. Although she failed to

give adequate notice of her intention to videotape the exam, I do not interpret her

actions as amounting to a refusal to attend. For that reason, I conclude that it

would be improper to allow Defendant to suspend benefits on those grounds.

8

ORDER:

Based on the foregoing, Defendant’s Motion to Enforce Claimant’s Statutory Obligation

to Submit to Neuropsychological Testing and Motion in Limine in the Alternative are

hereby DENIED. Defendant’s request for reimbursement is hereby GRANTED.

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.

Ryan Wetherby v. Donald P. Blake, Jr. Opinion No. 02-16WC

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Ryan Wetherby Opinion No. 02-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

Donald P. Blake, Jr.

For: Anne M. Noonan

Commissioner

State File No. EE-65426

RULING ON CLAIMANT’S MOTION FOR FINAL JUDGMENT

This claim came before the Commissioner on Defendant’s Motion for Partial

Summary Judgment. The sole issue in dispute was whether Defendant’s

calculation of Claimant’s average weekly wage and compensation rate in

accordance with Workers’ Compensation Rule 15.4240 violated the parameters of

21 V.S.A. §650(a).

By Order dated January 25, 2016, the Commissioner concluded as a matter of law

that Rule 15.4240 was consistent with the statute, rationally based and validly

promulgated, and therefore that it was appropriate for Defendant to have calculated

Claimant’s average weekly wage in accordance with its terms. On those grounds,

the Commissioner granted Defendant’s Motion for Partial Summary Judgment.

Wetherby v. Donald P. Blake, Jr., Opinion No. 02-16WC (January 25, 2016).

Claimant’s underlying workers’ compensation claim remains open. There are

currently no claim disputes pending in which the Commissioner is actively

involved, nor any anticipated that might trigger additional scrutiny of the specific

legal issues already determined by the Commissioner’s January 25, 2016 Order.

Final resolution of these issues will determine whether Claimant is appropriately

compensated for past and/or future periods of indemnity causally related to his June

24, 2013 compensable work injury. With that consideration in mind, I conclude

that there is no just reason for delaying entry of final judgment. See V.R.C.P.

54(b). To the contrary, there is every reason to expedite it.

ORDER:

Claimant’s Motion for Final Judgment is hereby GRANTED. Consistent with the

Commissioner’s January 25, 2016 Ruling on Defendant’s Motion for Partial

Summary Judgment, and in accordance with V.R.C.P. 54(b), final judgment in

Defendant’s favor on the question whether Claimant’s average weekly wage has

been appropriately calculated in accordance with Workers’ Compensation Rule

15.4240 and 21 V.S.A. §650(a) is hereby ENTERED.

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.

Thomas Kibbie v. Killington, Ltd Opinion No. 05A-16WC

Categories: Do not chooseAuthor:

 

 

STATE OF VERMONT

DEPARTMENT OF LABOR

Thomas Kibbie v. Killington, Ltd. Opinion No. 05A-16WC

  1. By: Jane Woodruff, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. Z-58225

RULING ON CLAIMANT’S PETITION FOR AWARD OF ATTORNEY FEES AND

COSTS

The Commissioner previously decided this claim on February 23, 2016. Two disputed

issues were presented: (1) whether ongoing treatment for Claimant’s neck pain was within the

terms of the medical benefits foreclosed by the parties’ Modified Form 15 Settlement Agreement;

and (2) to what other medical benefits, if any, was Claimant entitled.

The Commissioner ruled in Claimant’s favor as to Defendant’s responsibility to pay for

treatment referable to his vision deficits, dental injuries, headaches and psychological condition.

She ruled against him on his claim that the Settlement Agreement did not foreclose treatment for

his cervical injury, and also on his claim for mileage reimbursement.

In accordance with 21 V.S.A. §678(e), Claimant now submits his petition for costs

totaling $719.00 and attorney fees totaling $14,752.00.

According to 21 V.S.A. §678(a), when a claimant prevails after formal hearing necessary

litigation costs “shall be assessed” against the employer. The commissioner has discretion to

award attorney fees to a prevailing claimant as well.

The Supreme Court has held that a claimant does not automatically forfeit entitlement to

costs and fees under §678(a) merely because he or she did not prevail as to every issue litigated

at formal hearing. Hodgeman v. Jard, 157 Vt. 461, 465 (1991). With that in mind, where the

claimant only partially prevails, the commissioner typically endeavors to award only those costs

that relate directly to the successful claims. See, e.g., Hatin v. Our Lady of Providence, Opinion

No. 21S-03 (October 22, 2003).

2

It is not always possible to separate out the costs that are attributable to a successful claim

as opposed to an unsuccessful one, however. Here, for example, all of the costs Claimant

incurred were for Dr. Miller’s expert witness deposition. Although some portion of this

deposition was devoted to issues mpensation Rule 10.1210,1 I consider the

total amount of his fee request to be $9,352.50.

The issues upon which both parties concentrated most of their efforts were Claimant’s

entitlement to treatment for his cervical injuries, which he lost, and Defendant’s responsibility to

pay for his vision deficits, dental injuries, headaches and psychological treatment, which he won.

In monetary terms, the treatment for Claimant’s dental injuries alone are quite substantial.

Combining that treatment with ongoing treatment for his headaches, vision deficits and

psychological treatment may well exceed the costs for the cervical treatment that he also sought,

but did not prevail on.

Weighing all of these considerations, and acknowledging that the exercise of discretion in

these matters is at best an imperfect science, I find it appropriate to award Claimant one-half of

the hours he sought, or 32.25 hours. At the appropriate reimbursement rate of $145.00 per hour,

this yields a total award of $4,676.25.

Given the particular circumstances of this case, I therefore conclude that it is a proper

exercise of the discretion granted by §678(a) to apportion Claimant’s entitlement to attorney fees

with reference to the extent of his success on the various claims he litigated.

1 Rule 10.1210 is now re-codified as Rule 20.1310.

3

ORDER:

Defendant is hereby ORDERED to pay:

  1. Costs totaling $719.00; and
  2. Attorney fees totaling $4,676.25.

DATED at Montpelier, Vermont this 24th day of May 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.

Thomas Kibbie v. Killington, Ltd. Opinion No. 05-16WC

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Thomas Kibbie v.Killington, Ltd. Opinion No. 05-16WC

  1. By: Jane Woodruff, Esq.

Administrative Law Judge

 

For: Anne Noonan

Commissioner

State File No. Z-58225

OPINION AND ORDER

Hearing held in Montpelier, Vermont on December 29, 2014

Record closed on August 21, 2015

APPEARANCES:

Thomas Bixby, Esq., for Claimant

Erin Gilmore, Esq., for Defendant

ISSUES PRESENTED:

  1. Is ongoing treatment for Claimant’s neck pain within the terms of the medical

benefits foreclosed by the parties’ Modified Form 15 Settlement Agreement?

  1. To what other medical benefits is Claimant entitled?

EXHIBITS:

Joint Exhibit I: Medical records

Claimant’s Exhibit 1: Modified Form 15 Settlement Agreement, August 18, 2010

Claimant’s Exhibit 2: Addendum to Modified Form 15 Settlement Agreement,

August 18, 2010

Claimant’s Exhibit 3: Letter from Dr. Miller to Attorney Mabie, May 15, 2012

Claimant’s Exhibit 4: Letter from Dr. Miller to Barbara Hewes, May 29, 2012

Claimant’s Exhibit 5: Letter from Dr. Miller to Attorney Bixby, February 24,

2014

Claimant’s Exhibit 6: Letter from Attorney Mabie to Director Monahan, August

27, 2010

Claimant’s Exhibit 7: Letter from Attorney Mabie to Ms. Bard, March 3, 2011

Claimant’s Exhibit 8: Letter from Attorney Mabie to Attorney Valente, April 23,

2012

2

Claimant’s Exhibit 9: Letter from Attorney Mabie to Department specialist, June

6, 2012

Claimant’s Exhibit 10: Two prescription co-payments

Claimant’s Exhibit 11: Mileage reimbursement request

Claimant’s Exhibit 12: Saint Francis Hospital bill

Claimant’s Exhibit 13: Multiple health insurance claim forms

Claimant’s Exhibit 14: Saint Francis bills, November and December 2010

Claimant’s Exhibit 15: Physical therapy itinerary, November and December 2010

Claimant’s Exhibit 16: TENS unit denial letter, May 13, 2011

Claimant’s Exhibit 17: Mount Sinai Hospital collection letter, January 18, 2011

Claimant’s Exhibit 18: Dentist bill, May 7, 2008

Claimant’s Exhibit 18A: Letter from dentist office to Attorney Bixby, December 19,

2013

Claimant’s Exhibit 19: Insurance payment history, September 16, 2011

Claimant’s Exhibit 20: Summary of unpaid medical bills

Claimant’s Exhibit 21: Pharmacy printout for 2010 and 2011

Claimant’s Exhibit 22: Expired prescription card

Claimant’s Exhibit 23: Physical therapy prescriptions from Dr. Miller, November

and December 2011

Defendant’s Exhibit A: Approved Modified Form 15 Settlement Agreement,

September 2, 2010

Defendant’s Exhibit B: Email from Attorney Mabie to Attorney Valente with

marked up Form 15 Settlement Agreement, August 10,

2010

CLAIM:

Medical benefits pursuant to 21 V.S.A. §640

Costs and attorney fees pursuant to 21 V.S.A. §678

Ruling on Defendant’s Motion to Exclude Evidence

During the formal hearing, Claimant proffered testimony from his former attorney, John

Mabie, Esq., who had represented him at the time that the Modified Form 15 Settlement

Agreement at issue in this case was negotiated. Attorney Mabie sought to testify

regarding the intended scope of the settlement agreement, specifically, which ongoing

medical treatments the parties meant to foreclose thereby. Defendant moved to exclude

the testimony on the grounds that the parol evidence rule rendered it inadmissible. The

administrative law judge reserved ruling on the motion pending further briefing by the

parties.

The parol evidence rule is well settled in Vermont. When contracting parties embody

their agreement in writing, the rule prohibits the admissibility of “evidence of a prior or

contemporaneous oral agreement . . . to vary or contradict the written agreement.” Big G

Corporation v. Henry, 148 Vt. 589, 591 (1987) (internal quotations omitted).

3

The purpose of the parol evidence rule is to prevent fraud and eliminate confusion in the

making of written agreements. Id. at 594. The law presumes that a written contract

contains the parties’ entire agreement. Economou v. Vermont Electric Coop., 131 Vt.

636, 638 (1973) (internal citations omitted). Contract terms that are unambiguous on

their face cannot be modified by extrinsic evidence. Hall v. State, 2012 VT 43, ¶21.

As will be seen infra, Conclusion of Law Nos. 4-16, because I have concluded in this

case that the parties’ Modified Form 15 Settlement Agreement was unambiguous on its

face, I presume that its terms fully embody the parties’ intent. For that reason, I conclude

that Attorney Mabie’s proffered testimony is inadmissible.

Defendant’s Motion to Exclude Evidence is hereby GRANTED.

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 contained in the Department’s file

relating to this claim.

  1. Claimant was a volunteer ski ambassador for Defendant, a position he had held

for ten years prior to the 2008 winter season. His duties included helping other

skiers, putting their equipment back on if they fell and generally being pleasant to

the paying customers.

  1. Claimant resides in Vernon, Connecticut. On weekends during the ski season, he

traveled to Defendant’s ski area to perform his ambassador duties. He did not

introduce any evidence to establish either where he stayed while in Vermont or

what his regular commute distance to and from work was.

Claimant’s January 2008 Work Injury

  1. At the end of the day on January 12, 2008, Claimant was conducting a final trail

sweep as part of his ambassador duties. His son was accompanying him. During

the run, Claimant fell and hit his head so hard that it cracked his ski helmet. He

credibly testified that he has no real memory of the fall or its immediate

aftermath.

  1. Claimant’s son called for emergency assistance. Claimant went by ambulance to

Dartmouth-Hitchcock Medical Center, where he was later admitted. A CT scan

revealed a very small hemorrhage in his right temporal lobe, but no skull fracture.

Claimant was discharged home four days later. While he could not specifically

recall at formal hearing what his injuries were upon discharge, he credibly

4

testified that he remembered not being able to see very well, having a difficult

time walking due to right ankle pain, having pain in his right arm, and just

wanting to get home.

  1. Defendant accepted Claimant’s injury, which it initially described as

head/face/concussion,” as compensable, and began paying workers’

compensation benefits accordingly.

Claimant’s Course of Treatment from March 2008 through August 2010

(a) Traumatic brain injury, occipital neuralgia, headaches and neck pain (Dr.

Miller)

  1. In March 2008, Claimant entered the traumatic brain injury program at Mount

Sinai Rehabilitation Hospital under the care of Dr. Miller, a board certified

physiatrist with a subspecialty in brain injuries. Dr. Miller diagnosed a traumatic

brain injury with occipital neuralgia, that is, an injury to or inflammation of the

occipital nerves. Dr. Miller also diagnosed a cervical whiplash injury and vision

problems, all causally related to Claimant’s January 2008 work injury.

  1. Claimant has treated with Dr. Miller continuously from March 2008 to the

present. His initial complaints included headaches, neck pain, loss of taste and

smell, loss of concentration, attention and memory, vision problems and mood

swings.

  1. For Claimant’s whiplash injury, Dr. Miller initially prescribed a muscle relaxant

and administered a cervical injection, which provided only short-term relief. To

address his ankle injury, Dr. Miller referred him to physical therapy. Claimant

also underwent both occupational and speech therapy. For his chronic headaches

and neck pain, Dr. Miller prescribed oxycodone, which Claimant continues to this

day to take for this purpose.

  1. In April 2008 Claimant underwent a cervical spine MRI in an attempt to identify

the source of significant pain complaints between his right shoulder and the back

part of his head. The results were negative for any pathology. Thereafter, Dr.

Miller administered a series of occipital nerve blocks to address both occipital

neuralgia and neck pain, but these provided only short-term symptom relief.

  1. During the ensuing months, Dr. Miller continued to administer nerve blocks for

short-term relief of Claimant’s pain. Unfortunately, none of the treatments

provided long-term pain relief. Thereafter, he referred Claimant for craniosacral

therapy. This is a subset of physical therapy that uses gentle hands-on

manipulation of the head and neck to relieve pain.

  1. Claimant saw Dr. Miller on a monthly basis throughout 2009. He continued to

complain of headaches, neck pain, difficulty processing his thoughts, vision

5

problems and drastic mood swings. Dr. Miller strongly recommended that

Claimant undergo a neuropsychological evaluation with counseling thereafter.

Defendant approved one counseling session, but none after that until its own

expert, Dr. Drukteinis, recommended psychological counseling in July 2012, see

Finding of Fact No. 58, infra. The evidence does not reflect any basis for

Defendant’s refusal to pay. Claimant also continued to engage in craniosacral

therapy during this time, which provided him with some measure of pain relief.

(b) Fractured teeth and dental work (Dr. Shlafstein)

  1. Claimant credibly testified that prior to his January 2008 work injury, his teeth

were “perfect.”

  1. The work injury caused damage to seven teeth. Specifically, in March 2008

Claimant’s treating dentist, Dr. Shlafstein, diagnosed fractures to tooth numbers

25, 26 and 30, and chips and possible fractures to tooth numbers 7, 8, 9 and 10, all

causally related to the January 2008 work injury.

  1. Dr. Shlafstein repaired the fractures to tooth numbers 25 and 26 in March 2008.

To repair the other injured teeth, he determined that Claimant would require full

coverage crowns. Otherwise, he risks further damage to the roots, which might

necessitate root canals and/or excision. I find this analysis credible.

  1. Defendant accepted the repairs to tooth numbers 25 and 26 as causally related to

the work injury and paid the associated dental bills accordingly. As for the

repairs to tooth numbers 7, 8, 9, 10 and 30, it is unclear from the record at what

point Claimant first sought coverage from Defendant for this treatment and was

denied. He has yet to undergo the repairs to these teeth. It is unclear whether he

has suffered the additional damage Dr. Shlafstein feared would occur were

treatment delayed.

(c) Vision deficits (Dr. Danberg)

  1. Claimant first reported vision problems to Dr. Miller in March 2008. He began

treating with Dr. Danberg, a behavioral optometrist, in October 2008.

  1. Dr. Danberg administered several tests to measure Claimant’s visual and

perceptual deficiencies. Based on the results, she diagnosed convergence

insufficiency and ocular motor deficiency. Dr. Danberg causally related both

conditions to Claimant’s January 2008 work injury. I find her opinion on this

issue credible.

  1. Dr. Danberg treated Claimant’s visual deficiencies with Optometric Visual

Rehabilitation Therapy (OVRT). The purpose of this therapy was to address

some of the functional difficulties Claimant had encountered – skipping words

and transposing letters while reading, veering out of his lane while driving and

6

seeing double, for example. She also prescribed glasses with prism, which are

designed to correct double vision and convergence difficulties.

  1. Claimant underwent three OVRT sessions from February through April 2009.

Defendant paid for these sessions, but then refused to authorize any more. The

record does not indicate the basis for its denial. Similarly, Defendant paid for

Claimant’s first pair of glasses with prism, but when his prescription changed in

October 2009, it refused to cover the cost of a new pair.

The September 2010 Modified Form 15 Settlement Agreement

  1. In January 2009, Claimant retained Attorney John Mabie to represent him in his

claim for workers’ compensation benefits causally related to his January 2008

work injury.

  1. On August 18, 2010 Claimant executed a Modified Form 15 Settlement

Agreement (the “Agreement”) that Attorney Mabie had negotiated on his behalf.

In pertinent part, the Agreement, which included handwritten language that

Attorney Mabie had inserted (shown in bold), stated:

This is an agreement in which the Claimant agrees to accept

$50,000.00, in full and final settlement of all claims for: All claims

occurring as a result of the work incident including but not limited

to right ankle, head/TBI1 and right elbow/biceps, however as noted

in the addendum attached the carrier will continue to furnish all

reasonable and related future medical treatment pursuant to the

Rules necessary for the treatment of his cognitive or other head

injury including neurological, psychological, ophthalmological,

TBI care and treatment; and prior care for his covered injuries

sustained as a result of the accident referred to above, including his

claim for past, present and future compensation for temporary total

disability, temporary partial disability, permanent partial disability

or permanent total disability, dependency benefits, medical,

hospital, surgical and nursing expenses, and vocational

rehabilitation benefits.

  1. The Agreement incorporated by reference a typewritten Addendum. Paragraph 2

of the Addendum, which again included handwritten language that Attorney

Mabie had inserted (shown in bold), stated:

As part of this agreement the carrier agrees it will continue to

furnish all reasonable and related future medical treatment

pursuant to the Rules, necessary to [sic] for the treatment of his

cognitive or other head injury, including neurological,

1 The acronym “TBI” stands for “traumatic brain injury.”

7

psychological, ophthalmological, TBI care and treatment; and

to pay for care for his covered injuries prior to the time of

settlement.

  1. The Agreement and Addendum thus purported to settle, on a full and final basis,

all claims for future indemnity and vocational rehabilitation benefits causally

related to any of the injuries Claimant suffered as a consequence of his January

2008 accident.

  1. As for medical benefits, however, the settlement terms sought to differentiate

between Claimant’s “cognitive or other head injury” and all of his other injuries.

As to medical treatment for the former, which specifically included “neurological,

psychological, ophthalmological, TBI care and treatment,” Defendant would

continue to bear responsibility into the future. As to treatment for the latter, it

would no longer be responsible.

  1. After both parties had executed the settlement documents, on August 27, 2010

Attorney Mabie submitted them to the Department for its review, along with the

explanatory letter required by Workers’ Compensation Rule 17.0000.2 The letter

described the settlement terms as follows:

[T]he parties are desirous of resolving their dispute with respect to

indemnity benefits and certain medical benefits insofar as the

claimant’s right ankle and right elbow/bicep are concerned.

Medical benefits will continue to be paid by the carrier/employer

for head injuries and TBI care and treatment, including but not

limited to cognitive, neurological, psychological and

ophthalmological care. The head injuries are significant and will

require on-going assessment and care.

  1. The settlement letter, which was copied to Defendant’s attorney, but neither

reviewed beforehand nor signed by him,3 also referenced the settlement

documents themselves, stating:

The terms of the settlement agreement are fully set forth in the

settlement documents to be submitted to the Department under

separate cover by [Defendant], including the Settlement

Agreement (DOL Form 15) and Addendum to Modified Form 15

Settlement Agreement, both of which will have been duly executed

by the parties.

2 Effective August 1, 2015, the pertinent subsections of Rule 17.0000 have been re-codified as Rule

13.1600.

3 Claimant acknowledged in the Rule 17.0000 letter that Defendant’s attorney “has been away this week

and has not approved this letter, but he did draft the settlement documents and agreed they could be

submitted in his absence.”

8

  1. The Department approved the parties’ proposed settlement on September 2, 2010.
  2. Claimant credibly testified that he had ample opportunity to review the settlement

documents with Attorney Mabie, and to ask questions if he so chose, before he

signed them. He further testified that he believed the settlement meant that

Defendant would continue to be responsible for medical treatment “for everything

from the shoulders up.” I do not doubt that Claimant was sincere in this belief.

Claimant’s Course of Treatment from September 2010 Forward

(a) Traumatic brain injury, occipital neuralgia, headaches and neck pain (Dr.

Miller)

  1. Claimant underwent ongoing treatment with Dr. Miller in 2010 for his traumatic

brain injury, occipital neuralgia, persistent headaches and neck pain. The latter

two conditions he continued to manage with oxycodone.

  1. As treatment for Claimant’s ongoing headaches and cervical symptoms, in

November 2010 Dr. Miller prescribed physical therapy, with both mechanical

traction and deep tissue mobilization. Claimant attended seven sessions during

November and December 2010.

  1. Defendant denied payment for the November and December 2010 physical

therapy sessions, which totaled $1,364.94, on the grounds that the terms of the

parties’ approved settlement agreement now excused it from doing so.

Specifically, it asserted that Claimant’s headaches were causally related to his

cervical injury, that the cervical injury was not subsumed under the category of

either “cognitive or other head injury” or “traumatic brain injury,” and that

therefore its ongoing responsibility had ended. Thereafter, Dr. Miller prescribed

additional sessions, but because Defendant continued to deny payment Claimant

was unable to continue them.

  1. Defendant also denied payment of several of Dr. Miller’s bills. Nine of the

unpaid bills Claimant submitted at hearing covered treatments rendered between

November 8, 2010 and April 5, 2011. The diagnosis noted on eight bills is

“cervicalgia;” the ninth bill, for services rendered on November 8, 2010, indicates

treatment for “brain injury.” From reviewing the medical records corresponding

to the eight “cervicalgia” bills, I find that the treatments rendered were in fact

related to Claimant’s cervical injury. Similarly, the medical record corresponding

to the November 8, 2010 bill reflected treatment for his brain injury.

  1. Defendant also denied payment for treatment rendered by Dr. Miller on March 15,
  2. From my review of the corresponding office note, I find that Dr. Miller’s

treatment on that date involved ongoing evaluation of both Claimant’s cervical

9

pain, for which he administered a cervical injection, and his traumatic brain

injury.

  1. In February 2014 Dr. Miller became increasingly concerned that Claimant was

not receiving any treatment for depression. In his opinion, Claimant’s

psychological condition is causally related to his traumatic brain injury. As noted

above, Finding of Fact No. 13 supra, until July 2012 Defendant had denied

responsibility for all but one counseling session. The record does not establish

any basis for its denial of psychological treatment. According to Dr. Miller, all of

Claimant’s physical injuries have been exacerbated as a consequence of his

inability to access mental health services. I find this analysis credible.

  1. Claimant continued to treat with Dr. Miller at least through June 2015. Currently

he continues to suffer from chronic neck pain, headaches, visual problems and

difficulty sleeping. Defendant having denied payment for additional physical

therapy, Dr. Miller’s treatment has consisted of medications: oxycodone for pain

management, zolpidem tartrate for sleep disturbance and paroxetine for

depression. Defendant has denied payment for all of these; again, however, the

record does not clearly establish any basis for its denials.

  1. Dr. Miller also recommended that Claimant obtain a TENS unit, a device that

sends electrical impulses along the skin surface and nerve strand to relieve pain.

Defendant refused payment for the device, on the grounds that its purpose was to

treat Claimant’s neck pain, for which it was no longer responsible under the terms

of the parties’ approved settlement. Claimant has since purchased one on his

own, and credibly testified that it has helped to alleviate his neck pain.

  1. Claimant also has paid for at least some of the medications Dr. Miller has

prescribed from his own funds. He introduced evidence of payments totaling

$719.99 for prescriptions of oxycodone, zolpidem tartrate and paroxetine that he

filled between January 2011 and January 2013.

  1. Claimant also paid $157.37 for a prescription for Catapres-TTS, a blood pressure

medication, in September 2010. The medical evidence does not address whether

his need for this medication is causally related in any way to his January 2008

work injuries.

(b) Dental work (Dr. Shlafstein)

  1. As noted above, Finding of Fact No. 17 supra, Claimant has yet to undergo the

remaining dental work that Dr. Shlafstein recommended in March 2008.

Defendant has refused payment on the grounds that under the terms of the parties’

approved settlement agreement, it is no longer covered.

(c) Visual deficits (Dr. Danberg)

10

  1. Claimant continues to suffer from various visual deficiencies, including difficulty

tracking and focusing and eye-teaming deficits. Functionally, he continues to

skip letters and read words out of sequence.

  1. In May 2012 Claimant returned to Dr. Danberg to assess whether he might still

benefit from additional OVRT treatment. Dr. Danberg credibly concluded that he

would.

  1. As noted above, Finding of Fact No. 21 supra, since at least October 2009

Claimant has required new glasses with prism, as his prescription has changed.

Defendant has denied payment, for reasons that are unclear from the record.

Expert Medical Opinions

  1. The parties introduced conflicting expert medical evidence regarding the causal

relationship between the various treatments at issue in this claim and the injuries

for which Defendant remains responsible in accordance with the September 2010

settlement agreement.

(a) Dr. Miller

  1. As noted above, Finding of Fact No. 8 supra, Dr. Miller diagnosed Claimant with

a traumatic brain injury with occipital neuralgia, cervical pain from a whiplash

injury and vision problems, all causally related to his January 2008 work accident.

  1. Dr. Miller had difficulty separating out which of the medical treatments he

prescribed were referable specifically to Claimant’s head and/or traumatic brain

injury and their associated sequelae (neurological, psychological and/or

ophthalmological), and which were referable to his neck injury. I acknowledge

his credible opinion that all of Claimant’s head and neck symptoms were causally

related to the work injury, but standing alone, this opinion is not responsive to the

question whether, under the terms of the parties’ settlement, Defendant remains

responsible for specific treatments or not.

  1. Dr. Miller credibly concluded that Claimant’s trigger point injections, occipital

nerve blocks, craniosacral therapy, physical therapy with traction, TENS unit, and

vision treatment were all medically necessary and causally related to his work

injuries. Of these, he acknowledged that the trigger point injections, physical

therapy with traction and use of a TENS unit were treatments specifically

prescribed to treat Claimant’s cervical pain, and not his traumatic brain injury.

According to Dr. Miller, the occipital nerve blocks, craniosacral therapy and

vision treatments were causally related to the latter condition. I find this analysis

credible.

  1. As for prescription medications, as noted above, Finding of Fact No. 37 supra,

Dr. Miller prescribed oxycodone for Claimant’s persistent headaches and chronic

11

neck pain, zolpidem tartrate for his sleep disturbance and paroxetine for

depression. Although Claimant’s chronic neck pain very well may have

contributed to all three of these conditions, according to Dr. Miller they are

common sequelae of traumatic brain injury as well. I accept as credible his

opinion that all three medications are necessitated at least in part by Claimant’s

traumatic brain injury, therefore.

(b) Dr. Conway

  1. At Defendant’s request, in September 2013 Claimant underwent an independent

medical examination with Dr. Conway, a board certified neurologist. Dr. Conway

also reviewed Claimant’s relevant medical records.

  1. Dr. Conway diagnosed Claimant with a closed head injury, causally related to his

January 2008 accident, which has affected his cognition, impaired his memory

and processing ability, triggered concussive headaches and made him frustrated

and psychologically distressed. I find this analysis credible.

  1. As for which of Dr. Miller’s prescribed treatments were necessitated by

Claimant’s cervical injury as opposed to his cognitive and other head injuries, Dr.

Conway concluded that the physical therapy with traction that Claimant

underwent in November and December 2010, Finding of Fact No. 32 supra, was

directed at the former, while the craniosacral therapy he underwent in 2008 and

2009, Finding of Fact Nos. 12 and 13, supra, was focused on the latter. In this he

concurred with Dr. Miller, see Finding of Fact No. 48 supra.

  1. Dr. Conway disputed the necessity for occipital nerve blocks as causally related to

Claimant’s traumatic brain injury, however. Unlike Dr. Miller, in Dr. Conway’s

opinion Claimant did not suffer from occipital neuralgia. For that reason, after

the first, diagnostic, nerve block he concluded that further blocks were neither

causally related to the brain injury nor medically necessary.

  1. Consistent with Dr. Miller’s emphatic recommendation, Finding of Fact No. 36

supra, Dr. Conway also concluded that Claimant was in need of psychological

counseling causally related to his traumatic brain injury.

  1. Dr. Conway disagreed with Dr. Danberg regarding the causal relationship

between Claimant’s vision deficits and his work injuries. In his opinion, the

problems Claimant was experiencing were simply due to the natural aging

process, and not to any injury. Given Dr. Conway’s lack of expertise in this field,

I do not find his opinion on this issue convincing.

(c) Dr. Drukteinis

12

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

psychiatric examination with Dr. Drukteinis, a board certified psychiatrist. Dr.

Drukteinis also reviewed Claimant’s relevant medical records.

  1. Dr. Drukteinis diagnosed Claimant with a residual traumatic brain injury, a

cognitive disorder and a pain disorder. He also found that Claimant exhibited

clear signs of a depressive disorder. In Dr. Drukteinis’ credible opinion, all of

these conditions are causally related to Claimant’s January 2008 work accident.

  1. As treatment for Claimant’s psychological disorders, Dr. Drukteinis

recommended both psychological counseling and anti-depressant medication.

According to his analysis, Claimant’s depression is an impediment to his

recovery. Therefore, the recommended treatments are medically necessary and

causally related. I find Dr. Drukteinis credible in all respects.

Mileage Reimbursement

  1. Claimant introduced a mileage log documenting his travel for injury-related

medical treatment with Drs. Danberg, Drukteinis, Shlafstein and Miller on various

dates between November 2011 and January 2014. In all, he calculated a total of

660 round-trip miles traveled to and from his home in Connecticut. I find that

none of these miles were incurred solely to obtain treatment for his cervical

condition; to the contrary, all were necessitated at least in part by his dental

injuries and/or traumatic brain injury and psychological sequelae. Claimant also

calculated a total of 1,068 round-trip miles traveled to and from a pharmacy for

the purpose of obtaining prescription medications.

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).

The Scope of the Parties’ Approved Settlement Agreement

  1. Claimant here seeks to hold Defendant responsible for various medical treatments

that he contends remain open under the terms of the parties’ approved settlement.

To resolve this issue, it is necessary to determine the scope of that agreement as it

relates to treatment for the specific conditions from which he still suffers.

13

  1. As I already have found, Finding of Fact No. 26 supra, with respect to medical

benefits, the settlement agreement established two distinct categories of injuries.

For treatment of Claimant’s “cognitive or other head injury,” including

“neurological, psychological, ophthalmological and TBI,” by the terms of the

settlement agreement Defendant would remain liable into the future. For all other

injuries, the agreement relieved Defendant from future responsibility.

(a) Treatment Directed at Neck Pain and Headaches

  1. The most hotly contested area of disagreement between the parties concerns

Defendant’s post-settlement responsibility for treatments directed at Claimant’s

ongoing neck pain and headaches. As noted above, Finding of Fact No. 30 supra,

Claimant credibly testified as to his understanding that even after the settlement

Defendant would remain liable “for everything from the shoulders up.”

Defendant consistently has denied responsibility for any cervical-related

treatment, however, on the grounds that it is not subsumed under the category of

“other head injury” and therefore is no longer covered.

  1. The term “head” is defined as “the upper part of the human body . . . typically

separated from the rest of the body by a neck, and containing the brain, mouth and

sense organs.” Oxford Dictionaries,

www.oxforddictionaries.com/definition/english/head; see also, Merriam-Webster

Dictionary, www.merriam-webster.com/dictionary/head (defining “head” as “the

part of the body containing the brain, eyes, ears, nose and mouth”); Merriam-

Webster Medical Dictionary; www.merriam-webster.com/medical/head (defining

“head” as “the division of the human body that contains the brain, the eyes, the

ears, the nose and the mouth”).

  1. The term “neck” is defined as “the part of a person’s . . . body connecting the

head to the rest of the body.” Oxford Dictionaries,

www.oxforddictionaries.com/definition/english/neck; see also, Merriam-Webster

Dictionary, www.merriam-webster.com/dictionary/neck (defining “neck” as “the

part of the body between the head and the shoulders”); Merriam-Webster Medical

Dictionary, www.merriam-webster.com/medical/neck (defining “neck” as “the

usually narrowed part of an animal that connects the head with the body,

specifically, the cervical region of a vertebrate” (emphasis in original)).

  1. As these definitions establish, in both their common and their medical usages the

terms “head” and “neck” each connote separate and distinct body parts.

Notwithstanding their anatomical connection, the neck is no more a part of the

head than the leg is a part of the hip, or the hand a part of the forearm.

  1. Claimant argues that by referencing only his “head injury,” but not his “neck

injury” in either inclusionary or exclusionary language, the settlement agreement

created sufficient ambiguity as to negate any “meeting of the minds” between the

14

parties. Therefore, he asserts, the agreement must either be voided, or else

enforced as if the two terms were synonymous. See, e.g., Evarts v. Forte, 135 Vt.

306, 310 (1977) (real estate contract voided where property description was too

vague to establish parties’ mutual agreement as to what was being conveyed).

  1. I cannot accept this analysis. As the above definitions establish, there is no

ambiguity in the term “head” injury. Reasonable people would not disagree that

its plain meaning signifies something other than an injury to the “neck,” see

Isbrandtsen v. North Branch Corp., 150 Vt. 575, 578 (1988) (internal citations

omitted).

  1. Claimant asks a legitimate question, however. If his neck injury, which

Defendant has never disputed is causally related to the January 2008 work

accident, does not qualify as a “head injury,” where in the settlement agreement

does it fit?

  1. Again, the agreement’s plain language provides the answer. It defines the general

scope of the injuries to be covered by the settlement as “including but not limited

to right ankle, head/TBI and right elbow/biceps,” and the subcategory of those for

which Defendant will be liable only for “prior care” as “his covered injuries

sustained as a result of the [January 2008] accident (emphasis supplied).” There

being no question but that the neck injury is causally related and compensable, it

thus fits under both the “including but not limited to” and the “covered injuries”

descriptors. Though admittedly less specific than the “cognitive or other head

injury” category descriptors, I cannot conclude that these phrases are themselves

ambiguous, in either meaning or application.

  1. I acknowledge the fact that, in describing the terms of the parties’ settlement in

his Rule 17.0000 letter to the Department, Claimant omitted any reference to his

cervical injury, either as one of the injuries for which medical benefits were to be

closed out, or as one of those for which medical benefits were to continue, see

Finding of Fact No. 27 supra. Claimant argues that the reason for this omission

was that it was “clear as day” that the parties’ intended for the “head” to include

the “neck.” See Claimant’s Findings of Fact and Memorandum of Law at p. 22.

  1. I disagree. Had the matter been as clear as Claimant asserts, Defendant would not

have begun denying coverage for treatment of his neck pain almost immediately

after the settlement was approved, a position it has maintained ever since, and one

which I already have concluded is consistent with the agreement’s plain language,

see Conclusion of Law No. 9 supra. And while the Rule 17.0000 letter did not

contain the same inclusive category descriptors (“including but not limited to”

and “covered injuries,” see Conclusion of Law No. 11 supra), it specifically

deferred to the settlement documents themselves for a more complete description

of the agreement’s terms, Finding of Fact No. 28 supra. Notably, furthermore,

Defendant neither reviewed the Rule 17.0000 letter before its submission nor

signed it.

15

  1. I conclude that the Rule 17.0000 letter neither created nor resolved any ambiguity

in the settlement agreement’s terms. Instead, at best it signified a unilateral

mistake on Claimant’s part. A misunderstanding of this type does not preclude

contract rescission in all cases. Town of Lyndon v. Burnett’s Contracting Co.,

Inc., 138 Vt. 102, 107 (1980). However, “if the mistake has resulted solely from

the negligence or inattention of the party seeking relief, and the other party is

without fault, relief will not be granted absent unusual circumstances that would

make enforcement of the agreement manifestly unjust.” Id. at 108.

  1. Claimant’s mistake here occurred solely as a result of his “erroneous assumption,”

Burnett, supra at 108, that an injury to the “neck” was equivalent to an injury to

the “head.” The evidence does not suggest that Defendant was in any way to

blame for this misunderstanding. Nor does it suggest any unusual circumstances

sufficient to render enforcement of the parties’ agreement “manifestly unjust.”

The facts necessary to justify rescission do not exist.

  1. I do not dispute that the settlement agreement Claimant executed may not have

said what he wanted it to say. I cannot conclude that this was a consequence of

ambiguous or inadequately defined terms, however. Merely because the

agreement’s plain language led to an unfavorable outcome for him is not an

appropriate basis for finding ambiguity. Brault v. Welch, 2014 VT 44, ¶13. Nor

does his unilateral misunderstanding of the agreement’s scope provide sufficient

grounds for rescission. Absent a mutual mistake of fact, “one of the parties can

no more rescind the contract without the other’s express or implied assent, than he

alone could have made it.” Maglin v. Tschannerl¸174 Vt. 39, 45 (2002) (quoting

Enequist v. Bemis, 115 Vt. 209, 212 (1947). I am bound to enforce it according to

its terms, therefore.

  1. I thus conclude that the parties’ approved settlement agreement does not obligate

Defendant to provide ongoing medical coverage for Claimant’s neck injury.

  1. I turn now to the specific treatments at issue for that condition. The parties

presented conflicting expert medical opinions regarding the causal relationship

and/or medical necessity of at least some of these treatments, which is the

standard for determining an employer’s liability under the statute, 21 V.S.A.

  • 640(a). See, e.g., MacAskill v. Kelly Services, Opinion No. 04-09WC (January

30, 2009). 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).

16

  1. As to the trigger point injections, physical therapy with traction and the use of a

TENS unit, both Dr. Miller, Claimant’s treating physician, and Dr. Conway,

Defendant’s medical expert, agreed that these treatments were necessitated by

Claimant’s neck injury, and not by his traumatic brain injury. Therefore, under

the terms of the parties’ approved settlement agreement, after September 2, 2010

Defendant was no longer obligated to pay for them.

  1. Similarly, I conclude that Defendant is not obligated to pay for the treatments

reflected on the eight “cervicalgia” bills referenced in Finding of Fact No. 34

supra. Dr. Miller’s corresponding office notes reflect treatment for Claimant’s

cervical injury on the dates covered by those bills, and therefore Defendant is not

responsible for them.

  1. I conclude that Defendant is responsible, however, for the ninth bill referenced in

Finding of Fact No. 34 supra, as the treatment Dr. Miller rendered on that date

(November 8, 2010) was directed at Claimant’s traumatic brain injury, not his

cervical condition.

  1. I conclude that Defendant is also liable for the office evaluation portion of Dr.

Miller’s March 15, 2012 bill, as it concerned at least in part Claimant’s traumatic

brain injury. However, Defendant is not responsible for the charges incurred for

administering a cervical injection on that date, as Dr. Miller himself conceded that

such therapy was causally related to Claimant’s neck injury, not his traumatic

brain injury.

  1. The experts agreed as to the post-concussive nature of Claimant’s headaches, and

therefore I conclude that under the terms of the approved settlement agreement

reasonable treatment for that condition remains Defendant’s responsibility.

  1. Based on Dr. Miller’s credible testimony, and with no countervailing expert

testimony to negate it, I conclude that the medications Dr. Miller prescribed,

specifically oxycodone for pain, zolpidem tartrate for sleep disturbance and

paroxetine for depression, are all causally related at least in part to his cognitive

or other head injury rather than exclusively to his cervical condition. Under the

specific terms of the parties’ approved settlement agreement, these medications

are all still covered and Defendant is obligated to pay for them, therefore.

  1. I conclude that Defendant is responsible for medically necessary treatment of

Claimant’s occipital neuralgia, including the occipital nerve blocks that Dr. Miller

administered in 2008 and 2009. In reaching this conclusion, I accept Dr. Miller’s

diagnosis as more credible than Dr. Conway’s.

  1. Last, I conclude that Claimant has failed to sustain his burden of proving any

causal relationship between his need for Catapres-TTS, a blood pressure

17

medication, and any of the injuries or conditions for which Defendant is still

responsible. For that reason, he is not entitled to reimbursement.

(b) Treatment for Dental Injuries

  1. Claimant introduced credible medical evidence from his treating dentist, Dr.

Shlafstein, that as a direct result of the January 2008 work injury he now requires

full coverage crowns on tooth numbers 7, 8, 9, 10 and 30. Defendant failed to

offer any expert medical opinion to contradict the medical necessity of these

treatments. I therefore accept Dr. Shlafstein’s opinion on this issue as persuasive.

  1. As noted above, Conclusion of Law No. 5 supra, in both its common usage and

its medical usage, the term “head” includes the mouth, and therefore the teeth as

well. I thus conclude that the dental treatments at issue are causally related to

Claimant’s head injury. Under the terms of the parties’ approved settlement

agreement, Defendant remains responsible for them, therefore.

(c) Treatment for Visual Deficits

  1. The parties presented conflicting expert medical opinions regarding whether

ongoing treatment for Claimant’s visual deficits is causally related to his head

injury, as Dr. Danberg asserted, or is simply a consequence of the natural aging

process, as Dr. Conway concluded.

  1. Considering the factors listed in Conclusion of Law No. 18 supra, I conclude that

Dr. Danberg’s opinion is the most credible. As a behavioral optometrist, Dr.

Danberg has specialized training and expertise in this area, which Dr. Conway

does not share. Having tested and treated Claimant in the past, she is best

positioned to evaluate his current and future needs, and also to determine their

relationship back to his work injury. Her opinion thus merits greater weight than

Dr. Conway’s.

  1. I therefore conclude that Dr. Danberg’s ongoing treatment, including but not

limited to resumed sessions of optometric visual rehabilitation therapy, is both

causally related to Claimant’s work injury and medically necessary. Under the

terms of the parties’ approved settlement agreement, which specifically included

“ophthalmological” treatment as one of the enumerated medical services

associated with Claimant’s head injury, I conclude that Defendant remains

obligated to pay for it. Similarly, I conclude that Defendant is responsible for

providing Claimant with replacement glasses with prism, in order to

accommodate periodic changes in his prescription.

(d) Psychological Treatment

18

  1. Defendant proffered no explanation to account for its continued denial of

coverage for Claimant’s antidepressant medications and other psychological

treatment. Its own medical expert, Dr. Drukteinis, confirmed Claimant’s pressing

need for treatment and its causal relationship to the January 2008 work accident.

Psychological treatment was another of the specifically enumerated medical

services associated with Claimant’s head injury for which Defendant remains

responsible under the terms of the approved settlement agreement, furthermore. I

conclude that Defendant is obligated to pay for both mental health services and

medications, therefore.

Mileage Reimbursement

  1. As a final matter, Claimant seeks reimbursement for 660 miles traveled to and

from medical appointments necessitated by his work injuries, and 1,068 miles

traveled to and from a pharmacy for the purpose of obtaining prescription

medications.

  1. According to Workers’ Compensation Rule 12.2100,4 an injured worker who is

“required to travel for treatment, or to attend an employer’s independent medical

examination,” is entitled to reimbursement for mileage “beyond the distance

normally traveled to the workplace.” The purpose of the rule is to make the

worker whole, by providing compensation for expenses that he or she would not

have incurred but for the work injury. At the same time, the rule is phrased so as

to deny reimbursement for regular commuting expenses that presumably the

worker would have had to bear even had there been no injury. Fosher v. FAHC,

Opinion No. 11-11WC (May 6, 2011).

  1. Claimant here failed to introduce any evidence from which I might calculate his

regular commute distance to and from work while he was in Vermont engaging in

his ambassador duties for Defendant. On that basis alone, it is impossible to

determine the amount due him in mileage reimbursement.

  1. The language of Rule 12.2100 has never been interpreted to cover travel to and

from a pharmacy. Dain v. AIHRS, Opinion No. 85-95WC (November 17, 1995).

Presumably, most injured workers have access to a local pharmacy that is at least

within their commuting distance to and from work, and if not, mail order likely

presents a viable alternative, see Workers’ Compensation Rule 26.3000.5 I thus

conclude that Claimant is not entitled to reimbursement for the 1,068 miles

claimed for that purpose.

  1. I conclude that Claimant has failed to sustain his burden of proving any

entitlement to mileage reimbursement in the amounts claimed.

4 Effective August 1, 2015 Rule 12.2100 has been re-codified as Rule 4.1300.

5 Effective August 1, 2015 Rule 26.3000 has been re-codified as Rule 3.2510.

19

Attorney Fees

  1. As Claimant has only partially prevailed, he is entitled to an award of only those

costs that relate directly to the claims he successfully litigated. Hatin v. Our Lady

of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting,

Opinion No. 7-97WC (June 13, 1997). As for attorney fees, in cases where a

claimant has only partially prevailed, the Commissioner typically exercises her

discretion to award fees commensurate with the extent of the claimant’s success.

Subject to these limitations, Claimant shall have 30 days from the date of this

opinion to submit evidence of his allowable costs and attorney fees.

ORDER:

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

medical benefits covering the following medical services and supplies is hereby

DENIED:

  1. Physical therapy services rendered on November 19 and 22, 2010 and

December 1, 2, 6, 8, and 13, 2010;

  1. Evaluation and treatment of Claimant’s cervical condition by Dr. Miller as

reflected on the eight “cervicalgia” bills described in Finding of Fact No.

34 supra;

  1. Trigger point and other cervical injections, including those reflected on

Dr. Miller’s March 15, 2012 billing, as described in Finding of Fact No.

35 supra;

  1. TENS unit and associated supplies;
  2. Catapres-TTS or other prescription blood pressure medications; and
  3. Mileage reimbursement.

Defendant is hereby ORDERED to pay medical benefits covering the following medical

services and supplies, in accordance with 21 V.S.A. §640(a):

  1. Evaluation and treatment of Claimant’s cognitive or other head injury,

occipital neuralgia and concussive headaches, including evaluation and

treatment rendered by Dr. Miller on November 8, 2010 and March 15,

2012, as described in Finding of Fact Nos. 34 and 35 supra, and occipital

nerve blocks;

20

  1. Reimbursement to Claimant for prescription medication costs (oxycodone,

zolpidem tartrate and paroxetine) totaling $719.99, with interest from the

date of purchase in accordance with 21 V.S.A. §664;

  1. Prescription medications, including oxycodone, zolpidem tartrate and

paroxetine, or other medications prescribed for pain control, sleep

disturbance and/or depression, all as causally related to Claimant’s

cognitive or other head injury;

  1. Ongoing treatment for visual deficits, including specifically optometric

visual rehabilitation therapy and glasses with prism;

  1. Full coverage crowns and other dental treatment necessary to repair

accident-related damage to tooth numbers 7, 8, 9, 10 and 30;

  1. Mental health counseling and anti-depressant medications, all as causally

related to Claimant’s cognitive or other head injury; 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.

 

 

 

 

Joseph Quinones v. State of Vermont Opinion No. 04-16WC

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Joseph Quinones v.State of Vermont Opinion No. 04-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. FF-59764

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

APPEARANCES:

Carey Rose, Esq., for Claimant

William Blake, Esq., for Defendant

ISSUE PRESENTED:

  1. As a matter of law, is Defendant bound by the terms of an Agreement for

Permanent Partial or Permanent Total Disability Compensation (Form 22) that

was signed by the parties but not approved by the Commissioner prior to its

purported rescission?

EXHIBITS:

Defendant’s Exhibit A: Psychology initial assessment (Joann Joy, Ph.D.),

7/30/2014

Defendant’s Exhibit B: Independent behavioral medicine and pain experience

evaluation (Dr. Mann), October 20, 2014

Defendant’s Exhibit C: Independent medical evaluation supplemental report (Dr.

Backus), November 17, 2014

Defendant’s Exhibit D: Email from Lori Clark, November 13, 2014

FINDINGS OF FACT:

The following facts are undisputed:

  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.

2

  1. On February 4, 2014 Claimant injured his right wrist in the course and scope of

his employment as a corrections officer for Defendant.

  1. Defendant accepted Claimant’s right wrist strain/hyperextension injury as

compensable and paid all associated medical benefits.

  1. Claimant never presented a formal written “claim” for a psychological injury.

However, the medical complaints associated with his compensable injury evolved

to the point where he was exhibiting psychological complaints. Specifically, on

July 30, 2014 Dr. Joann Joy offered an opinion that Claimant was suffering from

depression and anxiety regarding the pain issues referable to his February 2014

work injury. Defendant’s Exhibit A. I find that this reasonably can be construed

as notice of a claimed psychological injury.

  1. At Defendant’s request, on October 10, 2014 Claimant underwent an independent

medical evaluation with Dr. Backus. Claimant was not represented by an attorney

at the time.

  1. In his October 10, 2014 report, Dr. Backus concluded that Claimant had sustained

a work-related wrist injury, which warranted an eight percent whole person

permanent impairment rating. Dr. Backus further stated that the exact cause of

Claimant’s chronic pain was medically unknown, “but it did start with the work

injury and remains related at this time to a reasonable degree of medical

certainty.”

  1. At Defendant’s request, on October 20, 2014 Claimant underwent an independent

psychological evaluation with Stephen Mann, Ph.D. In his report, Dr. Mann

concluded that Claimant had not experienced a psychological injury causally

related to his February 2014 compensable wrist injury. Instead, in his opinion

Claimant suffers from somatoform disorder, which he stated “is based on a longterm,

chronic pattern of somatization arising from ingrained personality traits, not

causally related to a specific physical disorder.” Defendant’s Exhibit B.

  1. Sometime before November 10, 2014 Defendant drafted an Agreement for

Permanent Partial or Permanent Total Disability Compensation (Form 22) and

sent it to Claimant to sign and return. The terms of the agreement called for

Defendant to pay permanent partial disability benefits in accordance with Dr.

Backus’ October 10, 2014 eight percent impairment rating.

  1. Claimant, who was still pro se at the time, signed Defendant’s proposed Form 22

Agreement on November 10, 2014.

  1. On November 12, 2014 Defendant’s workers’ compensation insurance adjuster

signed the proposed Form 22 Agreement and submitted the document, now fully

executed, to the Commissioner for approval.

3

  1. On November 13, 2014 Defendant’s adjuster, Lori Clark, sent the following email

message to the Department’s workers’ compensation specialist:

I hereby rescind my previously expressed consent to the Form 22

based on Dr. Mann’s report dated 10/20/14. Please immediately

purge this agreement from the Department of Labor’s file.

  1. At Defendant’s request, on November 17, 2014 Dr. Backus drafted a

“supplemental report,” in which he retracted his eight percent permanent

impairment rating on the basis of Dr. Mann’s reported psychological findings and

conclusions. Specifically, Dr. Backus determined that the history Claimant

previously had reported to him was unreliable, and that he likely had not suffered

any physical injury at all. In Dr. Backus’ opinion, a more likely alternative

explanation for the symptoms Claimant reported was “as part of his somatization

unrelated to the work injury.” Dr. Backus thus concluded that Claimant had

suffered a zero percent permanent impairment related to his “alleged” work

injury. Defendant’s Exhibit C.

  1. On November 17, 2014 Ms. Clark again corresponded via email with the

Department’s workers’ compensation specialist, as follows:

Hello, I am writing in follow [sic] to my request to rescind the

previously issued Form 22. I attach for further support of my

request a supplemental report from Dr. Backus. Can you please

confirm and respond on my formal request for rescinding the Form

22? Thank you.

  1. The Commissioner never approved the fully executed Form 22 Agreement.
  2. Claimant did not agree to a rescission and instead hired legal counsel to enforce

the Form 22 Agreement.

  1. There are no allegations of fraud or mutual mistake of fact in this claim.

DISCUSSION:

  1. In order to prevail on a motion for summary judgment, the moving party must

show that there exist no genuine issues of material fact, such that it is entitled to a

judgment in its favor as a matter of law. Samplid Enterprises, Inc. v. First

Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the nonmoving

party is entitled to the benefit of all reasonable doubts and inferences.

State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155

Vt. 44 (1990). Summary judgment is appropriate only when the facts in question

are clear, undisputed or unrefuted. State v. Heritage Realty of Vermont, 137 Vt.

425 (1979). It is unwarranted where the evidence is subject to conflicting

interpretations, regardless of the comparative plausibility of facts offered by either

4

party or the likelihood that one party or another might prevail at trial. Provost v.

Fletcher Allen Health Care, Inc., 2005 VT 115, ¶15.

  1. The legal question presented here is whether Defendant can be bound to the terms

of an Agreement for Permanent Partial or Permanent Total Disability

Compensation (Form 22) that was signed by the parties but not approved by the

Commissioner prior to its purported rescission. As the facts are not disputed, the

issue is appropriate for resolution on summary judgment.

  1. Vermont’s workers’ compensation statute, 21 V.S.A. §662(a), requires that the

parties to a compensation agreement must file “a memorandum thereof” with the

commissioner for review and approval. Approval is conditioned on a

determination that the agreement’s terms “conform to the provisions” of the

Workers’ Compensation Act. Id. “If approved by the commissioner, such

agreement shall be enforceable” and thereafter will be subject to modification

only in limited circumstances. Id.

  1. Workers’ Compensation Rule 17.00001 identifies the forms, among them the

Agreement for Permanent Partial or Permanent Total Disability Compensation

(Form 22), that satisfy the statute’s “memorandum” requirement. It also reiterates

the requirement for, and effect of, approval, as follows:

Once executed by the parties and approved by the [Workers’

Compensation] Division,2 these forms shall become binding

agreements and absent evidence of fraud or material mistake of

fact the parties shall be deemed to have waived their right to

contest the material portions thereof.

  1. Both statute and rule thus clarify the conditions precedent for even a fully

executed compensation agreement to become a binding and enforceable contract –

first, it must be reviewed by the commissioner for compliance with the statute;

second it must be approved; and third, it must not have been induced by fraud or

otherwise invalidated by the parties’ material mistake of fact.

  1. The commissioner’s responsibility to review and approve compensation

agreements is more than just a formality. It is a necessary component of the

statutory obligation to facilitate the proper administration of the workers’

compensation law, see 21 V.S.A. §602. The review process encompasses all of a

compensation agreement’s material elements, from correctly calculating the

injured worker’s average weekly wage and compensation rate to appropriately

documenting the extent of his or her medical disability and permanent

impairment. See Workers’ Compensation Rule 17.0000. The statute does not

exempt any agreements from the review and approval process; even compromise

1 Effective August 1, 2015, Rule 17.0000 has been re-codified as Rule 10.1820.

2 Pursuant to 21 V.S.A. §601(20), the commissioner is empowered to delegate statutory authority to the

Workers’ Compensation Division as designee.

5

agreements negotiated in disputed cases are subject to it.3 It is by any measuring

stick one of the commissioner’s critical functions.

  1. The parties here both acknowledge that the commissioner has neither reviewed

nor approved their signed compensation agreement. They further acknowledge

that neither of them was induced to execute the agreement by fraudulent means or

as a result of mutual mistake. True, both parties signed it, but none of the

conditions necessary for its enforcement exist. It is not a binding contract under

either statute or rule, therefore.

  1. Claimant raises equitable arguments in support of his position that Defendant

should be precluded from rescinding the Form 22 Agreement nevertheless. I

acknowledge that rescission is often described as an equitable remedy, and that it

should not be granted unless it is possible “to restore both parties to their

condition before the contract.” Smith v. Munro, 134 Vt. 417, 420 (1976)

(citations omitted); see also, Paradise Restaurant, Inc. v. Somerset Enterprises,

Inc., 164 Vt. 405, 411 (1995) (rescission impractical due to difficulties inherent in

attempting to put parties in status quo ante); Caledonia Sand & Gravel Co. v.

Joseph A. Bass Co., 121 Vt. 161, 164 (1995) (party seeking to rescind release

contract must first restore the status quo).

  1. Restoring the parties to the position they were in prior to executing the Form 22

Agreement is exactly what Defendant seeks to do here, and I cannot discern that

any inequities will result if it is allowed to do so. Rescinding the agreement will

leave each party free either to submit a negotiated permanency agreement for the

commissioner’s review and approval or to litigate the extent, if any, of Claimant’s

permanent impairment at formal hearing. Claimant will not be bound to a zero

percent impairment rating any more than Defendant will be bound to an eight

percent rating. Regardless of how the parties ultimately arrive at a determination

of the benefits to be paid, in either case the commissioner’s review and approval

will be necessary, in accordance with both statute and rule.

  1. I note in this case the very brief timeframe – a span of only one day – that existed

between the time when Defendant submitted the parties’ executed agreement for

the commissioner’s approval and the time when it first sought to rescind it. Were

the timeframe a matter of weeks or months rather than days, restoring the status

quo might be more difficult to accomplish, such that the equities between the

parties might weigh differently. Even in that situation, however, I would be hard

pressed to enforce an agreement absent the commissioner’s prior review and

approval. To allow one party to bind another to an agreement that had not been

3 Section 662(a) allows the commissioner to approve a compromise agreement only “when he or she is

clearly of the opinion that the best interests of [the injured] employee or [his or her] dependents will be

served thereby.” Workers’ Compensation Rule 17.6000 (recently re-codified as Rules 13.1500 and

13.1600) reiterates the review requirement and details the supporting documentation necessary for

approval.

6

subjected to the scrutiny mandated by statute would impermissibly undermine the

commissioner’s essential role in the process.

  1. I conclude as a matter of law that because the commissioner has neither reviewed

nor approved the parties’ previously submitted compensation agreement, it is not

a binding and enforceable contract. I further conclude that rescinding the

agreement will restore the parties to the position they occupied prior to its

execution. I thus conclude as a matter of law that Defendant is entitled to

rescission.

ORDER:

Claimant’s Motion for Summary Judgment is hereby DENIED. Defendant’s Motion for

Summary Judgment is hereby GRANTED. The parties’ previously executed Agreement

for Permanent Partial or Permanent Total Disability Compensation (Form 22) is

rescinded. The extent, if any, of the permanent impairment referable to Claimant’s

February 4, 2014 compensable work injury remains to be determined, whether by a

properly reviewed and approved agreement or by formal hearing.

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.

Eva Quebec v. FCI Federal, Inc. Opinion No. 03-16WC

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Eva Quebec v.FCI Federal, Inc. Opinion No. 03-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. FF-54597

OPINION AND ORDER

Hearing held in Montpelier on June 12, 2015

Record closed on July 28, 2015

APPEARANCES:

William Skiff, Esq., for Claimant

  1. Justin Sluka, Esq., for Defendant

ISSUES PRESENTED:

  1. Is Claimant’s proposed right total knee replacement surgery reasonable

treatment for her October 8, 2013 compensable work injury?

  1. Should Defendant have been allowed to discontinue temporary disability

benefits effective either December 15, 2014 or February 5, 2015?

EXHIBITS:

Joint Exhibit I: Medical records

Claimant’s Exhibit 1: Deposition of Robert Beattie, M.D., May 22, 2015

Defendant’s Exhibit A: Deposition of William Boucher, M.D., June 17, 2015

CLAIM:

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

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

Costs and attorney fees pursuant to 21 V.S.A. §678

2

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.

  1. Claimant has worked for Defendant, a private contractor for the federal

Immigration and Naturalization Service, for many years. Her duties, which are

primarily administrative in nature, involve reviewing and processing petitions for

immigrant and seasonal workers. Until four or five years ago, Claimant worked

full time. More recently, she reduced her hours so that she could enjoy more time

with her family. As of October 8, 2013, the date of the injury at issue in this claim,

she regularly worked eight hours per day, three days per week.

Claimant’s Prior Medical History

  1. Claimant has an extensive prior medical history of treatment for right knee pain

dating back at least to 1994. As early as 2001, her treating orthopedic surgeon, Dr.

Beattie, diagnosed her with degenerative changes in her right knee, including some

mild medial compartment osteoarthritis.

  1. Following a work-related injury in October 2001, in June 2002 Claimant underwent

right knee arthroscopic surgery. The surgical findings at that time included varying

degrees of chondromalacia – a pre-arthritic condition characterized by softening or

loss of articular cartilage – throughout the joint. In Claimant’s case, at the time of

her June 2002 surgery the chondromalacia in the medial compartment of her right

knee was already at Grade IV, meaning that the cartilage was completely lost and

the joint was articulating bone on bone in that area.

  1. Both osteoarthritis and chondromalacia, its precursor, are progressive, degenerative

conditions. Typically, the differentiating point between the two diagnoses occurs

as the loss of joint surface cartilage becomes so extensive as to result in an

inflammatory response and pain. It is not uncommon for an x-ray to reveal

significant evidence of osteoarthritis in a joint even while the patient remains

asymptomatic. For this reason, doctors typically advise against treating

osteoarthritis until it becomes symptomatic. “Treat the patient, not the x-ray” is a

common refrain.

  1. In Claimant’s case, following her June 2002 surgery she continued to experience

pain, swelling and stiffness in her right knee. To address these complaints,

between August 2002 and November 2003 she underwent three courses of

viscosupplementation injections. Viscosupplements increase the lubricating value

of the fluid in a joint, thus enabling freer, less painful movement. If effective,

3

viscosupplementation will reduce symptoms for at least six months and sometimes

for substantially longer periods, even years.

  1. Claimant derived significant symptom relief from viscosupplementation. After

completing her final series of injections in November 2003, she did not treat for

right knee pain for almost seven years. When, in October 2010 the pain and

stiffness in her right knee worsened, she again sought treatment with Dr. Beattie.

Thereafter, she underwent two additional courses of viscosupplement injections,

first in January 2011 and then in September 2011.

  1. Claimant credibly testified that after completing her September 2011 course of

viscosupplementation, she was able to perform both job functions and daily living

activities without difficulty. At work, she could walk, climb stairs, get in and out

of her chair and lift and carry file boxes. At home, she could drive, shop, play

tennis, and walk or ride a bike for exercise. The medical records do not document

any treatment for right knee pain during this time.

  1. Notwithstanding Claimant’s positive response to viscosupplementation, as early as

December 2002 Dr. Beattie had predicted that eventually she would need a total

knee replacement. As noted above, osteoarthritis is a progressive, degenerative

condition. Non-surgical treatments can, and often do, provide substantial symptom

relief, but they are incapable of slowing the disease process itself. At some point,

x-ray evidence of the joint’s gradual deterioration, combined with the patient’s

failure to respond to conservative symptom management, will justify joint

replacement surgery as the best treatment option.

Claimant’s October 2013 Injury

  1. The injury at issue in this claim occurred on October 8, 2013. On that date,

Claimant was descending a wet stairway at work, when she slipped from one stair

to the next, landing hard on her right heel. Immediately, she felt something “give”

in her right knee, with severe pain resulting.

  1. Dr. Beattie first evaluated Claimant for this most recent episode of right knee pain

in December 2013. He diagnosed a “traumatic aggravation” of her preexisting

osteoarthritis, for which he recommended both physical therapy and

viscosupplementation as treatment.

  1. Unfortunately, this time Claimant’s symptoms did not improve with conservative

treatment. By April 2014, her knee was constantly painful, with lost motion,

strength and function. She could not walk, stand, climb stairs or sit without

significant pain and swelling. In Dr. Beattie’s opinion, her complaints had finally

worsened to the point that a total knee replacement was now the only viable

treatment option.

4

  1. Claimant was scheduled to undergo total knee replacement surgery on June 23,
  2. However, when her husband fell ill, she canceled the procedure. Her

husband died some months later. As of the formal hearing, she testified that she is

again ready to undergo surgery, as she feels she has “no choice.” Her lifestyle has

changed dramatically as a consequence of her injury. She is in continual pain and

cannot tolerate being on her leg for more than ten or 15 minutes at a time. She

frequently uses a cane and describes herself as feeling “pretty homebound.” I find

this testimony credible in all respects.

Expert Medical Opinions

  1. The parties presented conflicting expert testimony regarding the causal relationship,

if any, between Claimant’s October 2013 work injury and her need for total knee

replacement surgery.

(a) Dr. Beattie

  1. As noted above, Dr. Beattie has been Claimant’s treating orthopedic surgeon since
  2. He has maintained an orthopedics practice since 1988, specializing in knees,

shoulders and hips, in that order. Dr. Beattie estimates that in recent years he has

averaged approximately 80 knee replacement surgeries annually.

  1. In his deposition testimony, Dr. Beattie described the process by which Claimant’s

October 2013 injury likely accelerated the need for joint replacement surgery as the

only viable treatment option for her worsened osteoarthritic symptoms. The knee is

a homeostatic structure, meaning that it distributes forces upon it in such a way as

to maintain balance within the joint. In a younger, non-arthritic knee, the articular

surface cartilage is thicker and the soft tissue is more elastic; as a result, the joint is

more resilient and less susceptible to traumatic injury. However, as osteoarthritis

develops and gradually progresses, the surface cartilage thins at the same time that

the soft tissues become thicker and less elastic. The result is a joint that is less able

to maintain homeostasis and therefore more susceptible to trauma.

  1. This is particularly true in the context of an axial load-type injury such as the one

Claimant suffered, whereby a hard landing on her right heel resulted in the

application of force to her right knee. In a younger, healthier knee, both the

cartilage and the meniscus would have acted as axial load shock absorbers.

However, Claimant’s older, osteoarthritic knee lacked both meniscal and articular

cartilage cushioning. As a consequence, the axial load created by her slip was

transmitted directly to the joint’s bony surfaces. The resulting trauma caused bone

bruising, which in turn provoked a cascading series of symptoms – inflammation,

swelling, stiffness and pain.

  1. According to Dr. Beattie’s analysis, in the context of an already degraded,

osteoarthritic knee, Claimant’s joint lacked sufficient resiliency to return to a

homeostatic state with conservative measures such as viscosupplementation. The

5

only means of relieving symptoms at this point is to surgically replace the joint. To

be sure, given the radiographic evidence of osteoarthritis in her knee, she likely

would have come to this result eventually, as Dr. Beattie himself predicted as early

as 2002, Finding of Fact No. 10 supra. However, prior to her injury, her symptoms

would not have justified this treatment course. Now they do. With that in mind,

and to a reasonable degree of medical certainty, in Dr. Beattie’s opinion the

October 2013 work injury has aggravated the preexisting osteoarthritis in

Claimant’s knee and thereby accelerated her need for joint replacement surgery. I

find this analysis credible.

(b) Dr. Boucher

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

examination with Dr. Boucher, a board-certified occupational medicine specialist.

Later, he reviewed Claimant’s prior medical records. Dr. Boucher has treated

thousands of knee injuries, many involving degenerative arthritis. Although not an

orthopedic surgeon himself, he is experienced at identifying the point at which a

patient’s failure to respond to conservative measures warrants surgical evaluation

and treatment instead.

  1. To a reasonable degree of medical certainty, Dr. Boucher concluded that Claimant

likely suffered only a knee strain as a consequence of her October 2013 work

injury. Considered separately from her preexisting osteoarthritis, in his opinion

that injury itself required no treatment, and likely had resolved by December 2013.

  1. According to Dr. Boucher’s analysis, Claimant’s work injury and resulting knee

strain did nothing to worsen or accelerate her underlying osteoarthritis, which had

been “end stage” and severe for some years previously. Consequently, while he

concurred with Dr. Beattie’s recommendation for total joint replacement, Dr.

Boucher disagreed that it was in any way causally connected to the October 2013

incident. In his opinion, replacing the joint will eliminate the irritation caused by

bone-on-bone friction, which is a function solely of osteoarthritis, not of the knee

strain.

  1. Dr. Boucher thus disagreed with Dr. Beattie’s characterization of Claimant’s

worsening condition after October 2013 as a “cascade” of symptoms. According to

his analysis, Claimant’s osteoarthritis was primed to “go really bad,” and would

have worsened to the point of requiring surgery even had her work injury never

occurred when it did.

  1. Dr. Boucher could not identify a specific medical record to support his

determination that Claimant had reached an end medical result for her work injury

by December 2013. Instead, he based his opinion primarily on his experience

treating knee strains of the type he concluded she had suffered. His determination

that Claimant would have come to need a total knee replacement at approximately

the same time even had she not suffered an injury in October 2013 was likewise

6

based solely on his clinical experience treating similar cases of osteoarthritis in

other patients. Without more, I find this to be only minimally persuasive support

for his opinions.

  1. With Dr. Boucher’s opinion as support, on June 6, 2014 Defendant filed a Denial of

Workers’ Compensation Benefits (Form 2), in which it denied responsibility for Dr.

Beattie’s proposed knee replacement surgery as not causally related to her accepted

October 2013 compensable work injury. Upon review, the Department’s workers’

compensation specialist approved the denial. However, the specialist rejected

Defendant’s proposed discontinuance of temporary disability benefits, on the

grounds that the accepted work injury had caused a flare-up of symptoms and

resulting disability which had not yet resolved. Similar discontinuances were filed

and rejected in December 2014 and February 2015.

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).

  1. The disputed issue here is whether Claimant’s proposed right total knee

replacement surgery constitutes reasonable medical treatment for her October 2013

compensable work injury, such that Defendant is obligated by statute, 21 V.S.A.

  • 640(a), to pay for it. For a treatment to be reasonable, it must be both medically

necessary and causally related to the work injury. Skovira v. Mylan Technologies,

Inc., Opinion No. 09-12WC (March 29, 2012).

  1. The parties do not disagree as to the medical necessity of joint replacement surgery

in Claimant’s case. However, on the question whether the need for surgery is

causally related to the work injury, they proffered conflicting expert medical

opinions. 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).

7

  1. I conclude here that Dr. Beattie’s opinion is the most persuasive. As Claimant’s

treating physician since 2001, he had firsthand knowledge, both before and after

her work injury, of the pathology in her right knee, the symptoms she reported and

the treatments she underwent. His experience with surgically treated knee joints

was impressive. Most important, his analysis of the complex processes, both

biochemical and mechanical, by which the traumatic injury Claimant suffered

likely aggravated her underlying osteoarthritis and accelerated her need for knee

replacement surgery, was convincingly articulated and objectively supported.

  1. In contrast, the record provided only minimal support for the assumptions upon

which Dr. Boucher’s opinion was based. His assertion that Claimant suffered only

a knee strain as a consequence of the October 2013 work injury, for which she

likely had reached an end medical result by December 2013, was founded solely on

his experience with other patients. The contemporaneous medical records paint a

different, more accurate and thus more persuasive picture of how Claimant’s actual

experience unfolded, however. They document a two-year hiatus following the

most recent prior episode of exacerbated symptoms, and then a straight line of

treatment from the date of the injury forward and continuing to the present.

  1. Dr. Boucher’s assertion that Claimant probably would have developed sufficiently

severe symptoms to justify knee replacement surgery at around the same time that

she did even had her injury never occurred was similarly unsupported. Claimant’s

credible testimony and the contemporaneous medical records establish just the

opposite – that for at least two years prior to October 2013 she had no knee pain, no

functional limitations and no treatment. There is nothing at all to justify Dr.

Boucher’s prediction that without the trigger of a traumatic injury, Claimant’s

osteoarthritic symptoms would have worsened so dramatically and spontaneously

on their own. For that reason, I must reject his analysis.

  1. It is a well-settled tenet of Vermont’s workers’ compensation law that the

aggravation or exacerbation of a degenerative disease such as osteoarthritis can

qualify as a work-related injury. Stannard v. Stannard, 2003 VT 52, ¶11, citing

Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989) (internal quotations

omitted). The causation test in these circumstances is “whether, due to a work

injury or the work environment, the disability came upon the claimant earlier than

otherwise would have occurred.” Id. (internal citations omitted). Continued or

exacerbated symptoms alone will not establish compensability unless the

underlying disability has also worsened. Id.

  1. Having determined that Dr. Beattie’s expert medical opinion is both credible and

convincing, I conclude here that the causation test enunciated in Stannard has been

met. I accept as persuasive his analysis that the mechanism of Claimant’s October

2013 injury, particularly the axial load transmitted from her heel to her knee as a

result of her slip on the stairs, caused the bones within the joint to become bruised

and inflamed. The added trauma precipitated a worsening of the underlying

disability, as manifested by functionally limiting pain, swelling and stiffness. See

8

Stannard, supra at ¶12, citing with approval City of Burlington v. Davis, 160 Vt.

183, 186 (1993) (Dooley, J., dissenting) (noting that the acceleration rule must be

viewed “in relation to the overall condition of the body, particularly as it relates to

[the claimant’s] ability to work and function.”). Lacking sufficient reserves to

recover from the imbalance thus created, the joint is no longer capable of

responding to conservative treatment measures. Total knee replacement surgery

has thus become medically necessary.

  1. Even if the evidence was insufficient to establish that Claimant’s October 2013

work injury caused the underlying degeneration in her knee to worsen, under the

circumstances of this case I conclude that the fact of her exacerbated symptoms

alone is sufficient to trigger consideration under the flare-up doctrine. Under that

theory of liability, when a distinct new work-related injury temporarily worsens the

symptoms referable to a preexisting condition, the employer can be held

responsible for workers’ compensation benefits until the condition returns to its

pre-injury baseline. Cehic v. Mack Molding, Inc., 2006 VT 12, ¶10. Liability

under the flare-up doctrine extends to whatever medical treatment is necessary to

restore the injured worker to his or her pre-injury functional status. In this case,

both parties’ experts agree that knee replacement surgery is the only viable means

of accomplishing this result.

  1. Whether categorized as an aggravation or as a flare-up, I conclude from the

credible medical evidence that Claimant’s October 2013 injury triggered a chain of

events that led directly to her current disability and need for ongoing treatment.

Defendant’s expert having conceded that knee replacement surgery is medically

necessary, I thus conclude that it is both causally related and compensable.

  1. As a final argument, Defendant asserts that even if Claimant’s proposed knee

replacement surgery is found compensable, as I have now concluded, it should be

relieved from responsibility to pay temporary disability benefits after June 23,

2014, the date on which Claimant canceled the scheduled surgery on account of her

husband’s illness and subsequent death. Notably, Defendant had denied

responsibility for the surgery even prior to the cancelation, Finding of Fact No. 25

supra, on the grounds that it was not causally related to her work injury. It

therefore acted at its peril, that notwithstanding her personal reasons for doing so,

Claimant likely would delay undergoing an expensive surgical procedure without

having first secured a means of paying for it. Defendant is fully accountable for

this result. I conclude that its various attempts to discontinue temporary disability

benefits were appropriately rejected at the time, and remain unsupported now.

  1. As Claimant has prevailed on her claim for workers’ compensation benefits, she is

entitled to an award of costs and attorney fees, pursuant to 21 V.S.A. §678.

Claimant has submitted a request for costs totaling $1,437.62 and fees totaling

$5,714.45. Defendant shall have 30 days from the date of this opinion within

which to file its objections thereto, following which an award of costs and fees

shall issue.

9

ORDER:

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

ORDERED to pay:

  1. All reasonable medical services and supplies referable to Claimant’s

proposed right total knee replacement surgery, in accordance with 21

V.S.A. §640;

  1. Ongoing temporary disability benefits, in accordance with 21 V.S.A. §642;

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.

Tony Vohnoutka v. Ronnie’s Cycle Sales of Bennington Opinion No. 01-16WC

Categories: Do not chooseAuthor:

STATE OF VERMONT

DEPARTMENT OF LABOR

Tony Vohnoutka v. Ronnie’s Cycle Sales of Bennington, Inc

Opinion No. 01-16WC

  1. By: Phyllis Phillips, Esq.

Administrative Law Judge

For: Anne M. Noonan

Commissioner

State File No. FF-00938

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

APPEARANCES:

Claimant, pro se

William Blake, Esq., for Defendant

ISSUES PRESENTED:

  1. Is Claimant’s claim for workers’ compensation benefits barred as a matter of law

for failure to give timely notice of his alleged work-related injury as required by

21 V.S.A. §656(a)?

  1. Is Defendant entitled to judgment in its favor as a matter of law on the question

whether Claimant suffered a compensable work-related injury on or about

February 22, 2013?

  1. Is Defendant entitled to judgment in its favor as a matter of law on the question

whether Claimant is entitled to workers’ compensation benefits causally related to

his alleged February 22, 2013 work injury?

EXHIBITS:1

Claimant’s Exhibit 1: Affidavit of Tony Vohnoutka, January 9, 2015

Claimant’s Exhibit 2: Office note and referrals (Melanie Clark, NP), 2/10/2014

Claimant’s Exhibit 3: Office note and referrals (Melanie Clark, NP), 6/20/2014

1 Claimant failed to file a separate and concise statement of contested facts in response to Defendant’s

Motion for Summary Judgment, as is required by V.R.C.P. 56(c)(1)(A), and his memorandum in opposition

was non-responsive to the issues presented. Given both Claimant’s pro se status and the relatively informal

nature of the formal hearing process, Workers’ Compensation Rule 17.1100, in ruling on Defendant’s

motion I have considered various documents, identified herein as Claimant’s exhibits, that were previously

filed with the Department, as is permitted by V.R.C.P. 56(c)(3).

2

Claimant’s Exhibit 4: Doctor’s progress report (Dr. Maggio), 6/25/2014

Claimant’s Exhibit 5: Doctor’s initial report (Dr. Maggio), 6/26/2014

Claimant’s Exhibit 6: Office note (Melanie Clark, NP), 12/9/2014

Defendant’s Exhibit A: Letter from Denise Bourassa, March 27, 2014

Defendant’s Exhibit B: Timecards, March 4 – July 18, 2013; various tardy/absence

reports; documented warnings; employee’s statement

verifying receipt of company handbook

Defendant’s Exhibit C: Affidavit of Dave Munson, March 18, 2015

Defendant’s Exhibit D: Office note (Dr. Robbins), 7/14/2014

Defendant’s Exhibit E: Independent medical evaluation report (Dr. Boucher),

9/25/2015

FINDINGS OF FACT:

Considering the evidence in the light most favorable to Claimant as the non-moving

party, State v. Delaney, 157 Vt. 247, 252 (1991), and taking judicial notice of all relevant

forms contained in the Department’s claim file, I find the following facts:

  1. Claimant worked for Defendant, a retailer of recreational vehicles, as a service

technician. First Report of Injury (Form 1), March 27, 2014.

Claimant’s Alleged February 2013 Work Injury, Subsequent Medical Course and

Employment Status

  1. On or about November 12, 2013 Claimant informed Defendant’s service manager,

Dave Munson, that he wished to seek medical treatment for an injury he alleged

he had suffered while at work in January or February 2013. Letter from Denise

Bourassa, Defendant’s Exhibit A.

  1. More specifically, Claimant asserts by affidavit that he injured his neck on

February 22, 2013, while helping Mr. Munson unload a snowmobile from the

back of a truck. Affidavit of Tony Vohnoutka, Claimant’s Exhibit 1. He further

asserts that Mr. Munson later acknowledged that the incident had occurred,

although he recalled it as having taken place at a later date. Id.

  1. For his part, Mr. Munson denies any knowledge or recollection of the incident

Claimant alleged, or of any other work-related accident or injury occurring in

January or February 2013. According to his affidavit, prior to November 12,

2013 Claimant had never indicated either that he had suffered an injury or that he

was unable to perform his routine job duties. Affidavit of Dave Munson,

Defendant’s Exhibit C. Nor had Mr. Munson observed anything in Claimant’s

performance that was suggestive of an injury. Id.

  1. Upon learning of Claimant’s claim that he had suffered a work-related injury,

Defendant’s human resources representative, Denise Bourassa, advised him “to

3

seek medical attention on his own accord because the claim was not made

available at [the] time of the incident.” As support for Defendant’s position, Ms.

Bourassa cited language from Defendant’s Company Policy Handbook requiring

that “any accident on the job, no matter how small, must be reported immediately

to your supervisor.” Defendant’s Exhibit A.

  1. The medical records do not document any treatment for neck pain or injury until

February 10, 2014. On that date, Claimant presented to Melanie Clark, a nurse

practitioner, with a complaint of neck pain that reportedly had begun “about a

year ago at work moving a snowmobile.” Ms. Clark diagnosed cervicalgia.

Based on the history Claimant described, she determined that the February 2013

lifting incident was the “competent medical cause” of his injury. As treatment,

Ms. Clark prescribed pain medications and made referrals for both physical

therapy and an orthopedic consult. In the meantime, noting that Claimant had

been able to work without restrictions since his injury, she did not change his

work duties. Melanie Clark office note, Claimant’s Exhibit 2.

  1. Ms. Clark next examined Claimant on June 20, 2014. She reiterated that his

complaints were consistent with the history he had reported, and again

recommended both physical therapy (which Claimant had not yet initiated) and an

orthopedic consultation. Notwithstanding his subjective report of worsening pain,

Ms. Clark also reiterated that Claimant was capable of working without

restrictions or limitations. Melanie Clark office note, Claimant’s Exhibit 3; see

also Doctor’s Progress Report, Claimant’s Exhibit 4, and Doctor’s Initial Report,

Claimant’s Exhibit 5.

  1. Claimant underwent an orthopedic consultation with Dr. Robbins on July 14,
  2. According to the medical record, he reported the sudden onset of neck pain

some two years previously “as a result of lifting.” Dr. Robbins’ clinical

impression was of a soft tissue and posterior element cervical spine injury, with

resulting spasm and mechanical decompensation. I cannot discern from the

medical record whether he attributed these conditions to an acute event or to

“incremental repeat irritations,” whether work-related or not. Dr. Robbins office

note, Defendant’s Exhibit D.

  1. As treatment for Claimant’s symptoms, Dr. Robbins recommended home

exercises, ice and a short course of physical therapy. As for work capacity,

consistent with Ms. Clark’s prior determination, he too indicated that Claimant

was capable of working full duty, without restrictions. Id.

  1. In August 2014 Defendant terminated Claimant’s employment “due to

increasingly substandard performance.” Affidavit of Dave Munson, Defendant’s

Exhibit C.

4

  1. Between February 22, 2013 and August 2014, Claimant worked full time and

performed his regular duties. Affidavit of Dave Munson, Defendant’s Exhibit C;

timecards and absence reports, Defendant’s Exhibit B.

  1. On December 9, 2014 Claimant returned to Ms. Clark, again complaining of

ongoing neck pain. Ms. Clark reported that Claimant felt that his injury “has

caused him a degree of disability and he is [now] unable to perform the type of

work he did previously as a mechanic technician.” As treatment, she referred him

for chiropractic evaluation. She also expressed that vocational rehabilitation

would be beneficial, “as he feels due to the ongoing neck pain he is unable to

perform heavy lifting anymore.” With that in mind, Ms. Clark determined that as

of December 9th Claimant was able to work, but with limitations against bending,

twisting, lifting and operating heavy equipment. Melanie Clark office note,

Claimant’s Exhibit 6.

  1. At Defendant’s request, on September 25, 2015 Claimant underwent an

independent medical examination with Dr. Boucher. Dr. Boucher diagnosed

myofascial pain, which in his opinion was not causally related to the alleged

February 22, 2013 work injury. Dr. Boucher further determined that Claimant

had reached an end medical result, with no permanent impairment and no need for

additional medical treatment. As for work capacity, he found “no objective

reason for any work restrictions.”

  1. Following Defendant’s termination of his employment, Claimant applied for and

received unemployment compensation, but the record does not indicate for how

long. As of this date, he remains unemployed.

Procedural History

  1. Defendant filed a First Report of Injury (Form 1) with the Department on or about

April 10, 2014. It denied the claim on the same date, on the grounds that the

injury Claimant alleged had not arisen in the course and scope of his employment

and was not causally related thereto. Denial of Workers’ Compensation Benefits

by Employer or Carrier (Form 2), April 9, 2014.

  1. Claimant appealed Defendant’s claim denial by way of a Notice and Application

for Hearing (Form 6), filed on September 22, 2014 and supplemented on January

23, 2015. After informal dispute resolution efforts failed, the claim was

forwarded to the formal hearing docket.

DISCUSSION:

  1. In order to prevail on a motion for summary judgment, the moving party must

show that there exist no genuine issues of material fact, such that it is entitled to a

judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First

Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non5

moving party is entitled to the benefit of all reasonable doubts and inferences.

State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155

Vt. 44 (1990). Summary judgment is appropriate only when the facts in question

are clear, undisputed or unrefuted. State v. Heritage Realty of Vermont, 137 Vt.

425 (1979). It is unwarranted where the evidence is subject to conflicting

interpretations, regardless of the comparative plausibility of facts offered by either

party or the likelihood that one party or another might prevail at trial. Provost v.

Fletcher Allen Health Care, Inc., 2005 VT 115, ¶15.

  1. Defendant here seeks summary judgment on three grounds. First, it asserts that

Claimant’s claim for workers’ compensation benefits is barred as a matter of law

because he failed to give timely notice of his alleged work-related injury, as

required by 21 V.S.A. §656(a). Second, it asserts that Claimant has failed to

produce sufficient evidence to establish a prima facie case that he suffered a

compensable work injury on or about February 22, 2013. Last, and in the same

vein, it asserts that Claimant has failed to produce sufficient evidence to establish

a prima facie case entitling him to the benefits available under Vermont’s

workers’ compensation law.2

Timely Notice

  1. Vermont’s workers’ compensation statute requires that a worker give notice of an

alleged work-related injury to his or her employer “as soon as practicable” after

the injury occurs, and that a claim for compensation be made within six months

thereafter. 21 V.S.A. §656(a). These requirements are not absolute, however.

Section 660(a) excuses the worker from them “if it is shown that the employer,

the employer’s agent, or representative had knowledge of the accident . . ..”

  1. Defendant here claims that Claimant failed to give timely notice of his alleged

injury and resulting claim for benefits. True, this is what Claimant’s supervisor

has averred, Finding of Fact No. 4 supra, but Claimant has sworn otherwise,

Finding of Fact No. 3 supra. Their conflicting statements thus present genuine

issues of material fact, which cannot be resolved on summary judgment.

Compensability

  1. To establish a compensable claim under Vermont’s workers’ compensation

statute, a claimant must show both that the accident giving rise to his or her injury

occurred “in the course of the employment,” and that it “arose out of the

2 I acknowledge that the only benefit Claimant specifically claimed in his September 22, 2014 Notice and

Application for Hearing was for permanent total disability benefits. However, given both his pro se status

and the relatively informal nature of these proceedings, Workers’ Compensation Rule 17.1100, I consider

his claim to encompass any other benefits to which he might be entitled should his injury be deemed

compensable. Having participated in numerous status conferences at which indemnity, medical and

vocational rehabilitation benefits were discussed, I presume that Defendant’s counsel is well aware of the

actual scope of Claimant’s demands.

6

employment.” 21 V.S.A. §618(a)(1); Miller v. IBM Corp., 161 Vt. 213, 214

(1993).

  1. An injury occurs “in the course of” employment “when it occurs within the period

of time when the employee was on duty at a place where the employee was

reasonably expected to be while fulfilling the duties of [the] employment

contract.” Miller, supra at 215, quoting Marsigli’s Estate v. Granite City Auto

Sales, Inc., 124 Vt. 95, 98 (1964).

  1. An injury “arises out of” the employment “if it would not have occurred but for

the fact that the conditions and obligations of the employment placed the claimant

in the position where claimant was injured.” Shaw v. Dutton Berry Farm, 160 Vt.

594, 599 (1993) (emphasis in original).

  1. Putting the two prongs of the compensability test together, the “in the course of”

requirement generally “tests work-connection as to time, place and activity,” Cyr

  1. McDermott’s, Inc., 2010 VT 19, ¶13 (internal quotations omitted), while the

“arising out of” component establishes the required causal connection, id. at ¶10.

In order to establish entitlement to benefits, it is the claimant’s burden to prove

both components of the compensability test. Id. at ¶9 (internal citations omitted).

  1. Defendant here asserts that it is entitled to summary judgment on the grounds that

Claimant has failed to produce evidence sufficient to raise genuine issues of

material fact as to either element of compensability. I disagree. As to the first

element, the “time, place and activity” component, Claimant has sworn in his

affidavit that his injury occurred while moving a snowmobile at work, Finding of

Fact No. 3 supra. That Mr. Munson has sworn otherwise, Finding of Fact No. 4

supra, establishes only that genuine issues of material fact exist. Summary

judgment on this issue is therefore inappropriate.

  1. Similarly, determining the second element of compensability will require me to

evaluate whether Ms. Clark’s opinion on medical causation, as reflected in her

office notes, Finding of Fact Nos. 6, 7 and 12 supra, is more compelling than that

of Defendant’s expert, Dr. Boucher, Finding of Fact No. 13 supra. Again,

genuine issues of material fact have been presented, sufficient to defeat summary

judgment in Defendant’s favor.

Entitlement to Benefits

  1. Last, I consider whether summary judgment in Defendant’s favor is appropriate as

to any of the benefits Claimant seeks. Establishing both components of the

compensability test is a necessary prerequisite to every workers’ compensation

benefit, 21 V.S.A. §618(a)(1). With that in mind, and for the reasons stated

above, genuine issues of material fact exist as to Defendant’s responsibility for

Claimant’s medical treatment under 21 V.S.A. §640(a), and also as to Claimant’s

entitlement to vocational rehabilitation benefits under 21 V.S.A. §641. Only after

7

I resolve the discrepancies between Claimant’s and Mr. Munson’s testimony

regarding the “in the course of” component, and those between Ms. Clark and Dr.

Boucher on the “arising out of” component, will I be able to determine to what

extent, if any, Defendant is responsible for providing these benefits.

  1. Given the record before me, I must evaluate Claimant’s claim for temporary

disability benefits in two parts – before and after December 9, 2014. Prior to that

date, Ms. Clark, Dr. Robbins and Dr. Boucher each determined that he was

capable of working full time and full duty, with no activity restrictions

whatsoever. Claimant has not proffered any evidence to the contrary, despite

having had ample opportunity to do so. He thus has failed to raise a genuine issue

of material fact, and for that reason, I conclude as a matter of law that he is not

entitled to temporary disability benefits for any period prior to December 9, 2014.

See, e.g., Doe v. Doe, 172 Vt. 533 (2001); Poplaski v. Lamphere, 152 Vt. 251,

254-255 (1989) (summary judgment mandated where, after adequate time for

discovery, a party fails to make a sufficient showing to establish the existence of

an element essential to its case).

  1. After December 9, 2014 Ms. Clark imposed activity restrictions, Finding of Fact

No. 12 supra, which if found credible might entitle Claimant to temporary

disability benefits from that date forward. Summary judgment on this issue is

therefore inappropriate.

Summary

  1. The sole purpose of summary judgment review is to determine if a genuine issue

of material fact exists. If such an issue does exist, it cannot be adjudicated in the

summary judgment context, no matter how unlikely it seems that the party

opposing the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973);

Southworth v. State of Vermont Agency of Transportation, Opinion No. 45-08WC

(November 12, 2008). However tenuous or unlikely the evidence in support of

Claimant’s claims for medical and vocational rehabilitation benefits are, he is

entitled nonetheless to present his case and litigate the fact questions that surround

them. The same is true with respect to his claim for temporary disability benefits

after December 9, 2014. Summary judgment against him on these issues is not

appropriate. Bohannon v. Town of Stowe, Opinion No. 03-14WC (February 26,

2014).

  1. Because no genuine issues of material fact exist as to Claimant’s claim for

temporary disability benefits for any period prior to December 9, 2014, summary

judgment on this issue is appropriate.

ORDER:

Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and

DENIED IN PART, as follows:

8

  1. Summary judgment in Defendant’s favor is GRANTED as to Claimant’s

claim for temporary disability benefits for any period prior to December 9,

2014, and Claimant’s claim for such benefits is hereby DENIED;

  1. Summary judgment in Defendant’s favor is DENIED on the question

whether Claimant’s claim for workers’ compensation benefits is barred for

failure to give timely notice as required by 21 V.S.A. §656(a);

  1. Summary judgment in Defendant’s favor is DENIED on the question

whether Claimant suffered a compensable work-related injury on or about

February 22, 2013;

  1. Summary judgment in Defendant’s favor is DENIED as to Claimant’s

claim for medical, vocational rehabilitation and/or temporary disability

benefits for any period(s) after December 9, 2014.

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.

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