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Under Medicare Secondary Payer law (42 U.S.C. § 1395y(b)), Medicare does not pay for items or services to the extent that payment has been, or may reasonably be expected to be, made through a no-fault or liability insurer or through Workers’ Compensation (WC)

Wilbur Baraw v. F. R. Lafayette, Inc. (January 20, 2010)

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Wilbur Baraw v. F. R. Lafayette, Inc. (January 20, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Wilbur Baraw, Jr. Opinion No. 01-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
F.R. Lafayette, Inc.
For: Patricia Moulton Powden
Commissioner
State File No. Z-01098
OPINION AND ORDER
Hearing held in Montpelier on December 4, 2009
Record closed on December 28, 2009
APPEARANCES:
Steven Robinson, Esq, for Claimant
Kelly Smith, Esq., for Defendant
ISSUES:
1. Has Claimant reached an end medical result for his September 27, 2007 work injury?
2. Do Claimant’s current mental health counseling sessions constitute reasonably necessary treatment for his work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Orleans Medical Clinic referral, May 13, 2009
Defendant’s Exhibit A: Curriculum Vitae, William Nash, Ph.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorneys fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant lives in Craftsbury, Vermont with his wife and daughter. On the date of his injury, Claimant was 33 years old.
4. Claimant worked for Defendant for ten years. For three of those years he was a truck driver. Subsequently, he operated a piece of heavy equipment used to drive posts into the ground. The machine is known as a “post pounder.”
5. On September 27, 2007 Claimant was operating the post pounder to replace roadside guard rails. As he pulled up a metal rod that supported the original guard rail, the rod broke and hit Claimant in the head between the eyes. Claimant immediately lost consciousness.
6. Defendant accepted Claimant’s injury as compensable and began paying both temporary total disability compensation and medical benefits accordingly.
7. Claimant attempted a return to work during both 2007 and 2008. He initially operated the post pounder but its constant movement and vibrations triggered migraines, dizziness and nausea. Claimant transferred to ground work as a laborer but the continual physical movements of that job caused the same symptoms. Claimant has not worked since October 2008.
On-going Treatment and End Medical Result
8. Dr. Haas, an occupational health physician, evaluated Claimant on August 6, 2008. He also reviewed Claimant’s then-existing medical records, including those of Dr. Haq, a neurologist, whom Claimant saw periodically between early October 2007 and late February 2008. Dr. Haq had diagnosed Claimant with post-traumatic migraine headaches and post-concussion syndrome.
9. Dr. Haas concurred with Dr. Haq’s diagnosis. He found no evidence of any traumatic brain injury. Based both on Claimant’s subjective report and on his objective examination, Dr. Haas concluded that Claimant’s condition had stabilized and that whatever symptoms persisted were relatively mild. Claimant reported that his headaches had been infrequent since December 2007 and that he had experienced only three episodes of dizziness in the previous six months. His wife reported that his memory deficits were stable. On objective examination, Dr. Haas found Claimant to be within normal limits for both coordination and balance. As for his mood, Claimant reported that he felt “like a million bucks” on most days at work.
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10. Dr. Haas noted that Claimant continued to experience episodic headaches and dizziness, mild positional vertigo, mild fatigue and memory difficulties, but doubted that these symptoms would likely resolve with further treatment. As for any suspected cognitive deficits, Dr. Haas felt that in the absence of a pre-injury baseline, further neuropsychological testing was unlikely to reveal anything new or lead to more effective treatment. Dr. Haas concluded, therefore, that Claimant had reached an end medical result and rated him with a 3% whole person permanent impairment. 1
11. On November 18, 2008 Claimant saw Dr. Haas again. Subjectively, Claimant reported that his headaches and dizziness had worsened since September 2008. Objectively, in contrast to his prior examination only three months earlier, this time Dr. Haas’ testing revealed evidence of vertigo and balance deficits. Dr. Haas was unable to explain why Claimant’s condition had worsened. In an effort to address these symptoms, Dr. Haas prescribed physical therapy for balance stabilization and additional medications for headaches.
12. On December 12, 2008 Claimant underwent a neuropsychiatric evaluation with Drs. Ammerman and McAllister at Dartmouth Hitchcock Medical Center. Claimant described the circumstances of his injury and reported persistent symptoms of insomnia, dizziness, nausea, head pain, motion sickness and memory loss. The doctors determined that Claimant had suffered a mild brain injury and had not yet returned to his functional baseline. For further treatment, they outlined the following plan:
• Referral to an ear, nose and throat specialist for further evaluation whether Claimant’s balance issues might be evidence of a middle or inner ear problem;
• Neuropsychological testing to identify and quantify Claimant’s cognitive complaints;
• Physical therapy to address Claimant’s dizziness symptoms;
• Medication adjustments to address Claimant’s depression; and
• Referral to the Dartmouth Hitchcock Headache Clinic for further evaluation of Claimant’s headaches.
1 Specifically, Dr. Haas rated Claimant with a 0% impairment referable to his headaches, 1% for his dizziness symptoms and 2% for deficits in cognitive performance.
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13. Although the medical records are incomplete, 2 it appears Claimant underwent each of the further evaluations Drs. Ammerman and McAllister recommended. Specifically:
• As reported by Dr. Orecchio in the context of his independent medical evaluation, Claimant was evaluated by Dr. Saunders, an otolaryngologist, in 2009 for his disequilibrium and dizziness symptoms. The record does not indicate what further treatment recommendations, if any, Dr. Saunders made.
• Claimant underwent a neuropsychological evaluation with Drs. Kumbhani and Roth on March 5, 2009. The findings were consistent with a traumatic brain injury, but also reflected Claimant’s pre-morbid level of functioning as well. The doctors suggested that Claimant might benefit from a behavioral medicine referral, but again, the record does not reflect whether Claimant pursued this recommendation. Beyond that, they recommended cognitive deficit coping strategies – avoiding environmental distractions or multi-step tasks, for example – but no real treatment per se. They also recommended psychological counseling for Claimant’s depression.
• Claimant underwent a course of physical therapy to address his dizziness and balance issues. The record does not reflect how this therapy progressed and/or the extent to which it was successful. Claimant testified at the formal hearing that he had concluded it.
• As discussed below, Claimant began treating with Dr. Ward, a neurologist at Dartmouth Hitchcock, primarily for his headaches but with some attention to his other symptoms as well.
14. At Defendant’s request, on May 1, 2009 Claimant underwent an independent medical evaluation with Dr. Orecchio. Dr. Orecchio is board certified in neurology with an added qualification in clinical neurophysiology. Dr. Orecchio reviewed Claimant’s medical records, including apparently some that are lacking from the record here, notably Dawna Pigeon’s physical therapy notes and Dr. Saunders’ otolaryngological evaluation.
15. As Dr. Haas had noted in his November 2008 examination, Dr. Orecchio found positive evidence of vertigo and balance issues, possibly indicative of an inner ear dysfunction. These issues had persisted despite the further treatment recommended not only by Dr. Haas, but by Drs. Ammerman and McAllister as well. Dr. Orecchio remarked that it was typical for an injury such as Claimant’s to generate symptoms that would wax and wane over time. Thus, despite his persistent, though occasional, headaches and disequilibrium symptoms, Dr. Orecchio concluded that Claimant had reached an end medical result, with a 3% whole person permanent impairment.
2 Records contained in the parties’ joint medical exhibit refer to various other providers who either treated or evaluated Claimant for his work injury, but whose records are not themselves included in the exhibit. It is apparent, for example, that Claimant underwent physical therapy with Dawna Pigeon and also an otolaryngological evaluation with Dr. Saunders, but those records are absent from the joint medical exhibit. In addition, the records pertaining to Claimant’s treatment with Dr. Ward, his current neurologist, are incomplete. These gaps in the factual record are significant.
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16. Dr. Orecchio reiterated his end medical result opinion on July 21, 2009. Having reviewed additional medical records, including apparently some from Dr. Ward, the neurologist who was treating Claimant’s headaches, Dr. Orecchio still maintained that Claimant had reached an end medical result for his balance dysfunction. As to Claimant’s persistent headaches, Dr. Orecchio deferred somewhat to Dr. Ward, stating that he believed Dr. Ward’s involvement in treating these was “important.” Dr. Orecchio anticipated that Dr. Ward’s treatment in this regard would consist primarily in monitoring and adjusting Claimant’s medications.
17. With Dr. Orecchio’s end medical result opinion as support, Defendant discontinued Claimant’s temporary total disability compensation effective July 30, 2009.
18. The record contains only one office note from Dr. Ward, dated July 21, 2009. That note reflects that Claimant had been maintaining a headache journal for some time, however, and thus may be indicative of prior office visits with Dr. Ward as well. Dr. Ward reported that Claimant’s headaches had been “quite intermittent” during the preceding months and that Claimant was able to control all of them with medication. He further reported that Claimant’s balance issues were being addressed with physical therapy. Dr. Ward remarked that he “might” seek another neuropsychological evaluation in three months’ time, but did not explain for what purpose he would do so. Last, Dr. Ward adjusted Claimant’s headache medication.
19. Also in July 2009 Dr. Ward responded to an inquiry from Claimant’s attorney as to whether Claimant had reached an end medical result, stating, “unsure, but if not, close” (emphasis in original). Later, in a letter to Claimant’s attorney dated September 23, 2009 Dr. Ward advised that Claimant had reached an end medical result for his headaches, but not for his disequilibrium symptoms. The letter does not specify what further treatment Dr. Ward was recommending to address those symptoms.3
20. Claimant testified that he saw Dr. Ward again in early December, apparently for the purpose of monitoring his headaches and adjusting his sleep medications. The record of that visit was not available at the hearing. Claimant testified that he was scheduled to see either Dr. Ward and/or Dr. McAllister again in early February 2010, but again, it was unclear from his testimony for what purpose.
Mental Health Counseling
21. As noted above, in the context of Claimant’s March 2009 neuropsychological evaluation Drs. Kumbhani and Roth recommended that Claimant undergo psychotherapy to address his depressive symptoms. To that end, Claimant began treating with Ruth Hale, M.S.W. in May 2009.
3 The letter references an enclosed office note dated September 17, 2009. Possibly Dr. Ward specified his treatment plan in that note, but once again, the parties’ joint medical exhibit does not include the record.
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22. Between May and August 2009 Ms. Hale conducted approximately thirteen counseling sessions with Claimant. Throughout these sessions the themes have been largely consistent. Claimant describes feeling worthless and frustrated at his inability to work and provide for his family. He has adapted poorly to spending more time at home, and his relationship with his wife has suffered as a result. He continues to feel hampered by his short-term memory deficits and his inability to complete household tasks. He admits to feeling depressed. Claimant reiterated these sentiments in his formal hearing testimony. Clearly they continue to weigh heavily upon him.
23. The tenor of Ms. Hale’s therapy was supportive, reflective and insight-oriented. She encouraged Claimant to express his feelings and as Claimant described, gave him an outlet for venting his frustrations.
24. In order to quantify the nature and extent of Claimant’s depressive symptoms, Ms. Hale administered a depression screening inventory on July 14, 2009 and again on August 18, 2009. The results indicated that Claimant’s depression had not improved with counseling, but rather had worsened slightly in the interim.
25. At Defendant’s request, in August 2009 Dr. Nash, a psychologist, reviewed Claimant’s medical and psychological treatment records for the purpose of determining whether Ms. Hale’s therapy constituted reasonable and necessary treatment for Claimant’s work injury. Dr. Nash testified at the formal hearing that he has performed numerous forensic examinations in workers’ compensation cases, for both claimants and defendants.
26. In Dr. Nash’s opinion, the cognitive and emotional consequences of Claimant’s injury would be much better addressed by focusing more on adaptive techniques and rehabilitation strategies and less on “talk therapy.” In fact, according to Dr. Nash, the therapy offered by Ms. Hale is counter-productive. Rather than encouraging Claimant to deal with his loss and then move forward, Ms. Hale’s sessions have allowed him to remain focused on his symptoms and entrenched in his disability. Indeed, according to Dr. Nash, Ms. Hale’s own depression screening inventories document that this is exactly what has occurred in Claimant’s case.
27. In support of his opinion Dr. Nash cited to various reported studies indicating that “passive” treatments such as supportive counseling are largely ineffective in the context of chronic pain management, and in fact may even be detrimental. Although these studies all involved patients who suffered from low back pain, Dr. Nash testified that their findings were equally applicable to patients whose chronic pain had developed from other injuries as well.
28. With these studies in mind, Dr. Nash suggested that a multidisciplinary rehabilitation program likely would be a more effective treatment for a chronic pain patient such as Claimant. Without personally having evaluated him, however, Dr. Nash stopped short of making a specific treatment recommendation to that effect.
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29. In sum, Dr. Nash concluded that Ms. Hale’s therapy has not ameliorated Claimant’s depression to any extent, and actually may have worsened it. In his opinion, therefore, her treatment is neither reasonable nor necessary.
30. With Dr. Nash’s report as support, Defendant discontinued coverage for Ms. Hale’s therapy sessions effective October 19, 2009.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974). As to the first disputed issue in this claim, therefore – whether Claimant has reached an end medical result for his work-related injury – the burden of proof is on Defendant.
3. Defendant also bears the burden of proof as to the second disputed issue – whether Ms. Hale’s counseling sessions constitute reasonable and necessary treatment for Claimant’s work injury. Having initially accepted these treatments as compensable, Defendant now must prove that they are no longer reasonable and therefore not covered under 21 V.S.A. §640(a). Scranton v. The Book Press, Opinion No. 06-07WC (February 22, 2007). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable condition or injury. Sinon v. State of Vermont, Opinion No. 10-09WC (April 1, 2009); see also Morriseau v. State of Vermont Agency of Transportation, Opinion No. 8-00WC (May 17, 2004).
End Medical Result
4. Defendant relies on the opinions of Drs. Haas and Orecchio in support of its assertion that Claimant has reached an end medical result for his work injury. In response, Claimant relies on his ongoing treatment with Drs. Ward and McAllister as evidence that his condition has not yet reached a medical plateau.
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5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
6. The medical records demonstrate no disagreement on a number of points. Claimant sustained a serious blow to his head. He had numerous physiological symptoms after his injury, but principally dizziness, motion sickness, headaches, nausea and memory loss. Claimant’s symptoms were consistent with a diagnosis of post concussive syndrome. Waxing and waning symptoms are characteristic of this type of injury.
7. Dr. Haas initially found Claimant to be at end medical result as of his August 2008 evaluation. After re-evaluating him in November 2008, however, Dr. Haas noted that Claimant’s symptoms had worsened and prescribed further treatment in response. By doing so, in effect Dr. Haas retracted his prior finding of end medical result. I find his opinion to be insufficient support for Defendant’s position, therefore.
8. Following their examination of Claimant in December 2008 Drs. Ammerman and McAllister made various recommendations directed at further evaluating and treating Claimant’s ongoing headaches, disequilibrium and cognitive deficits. It appears from the record that each of these recommendations was followed to an appropriate conclusion. Dr. Orecchio so noted in the context of his May 2009 evaluation, as supplemented by his July 21, 2009 correspondence. On those grounds, Dr. Orecchio determined that Claimant had reached an end medical result by that latter date.
9. As for Dr. Ward, as of September 23, 2009 he acknowledged that Claimant had reached an end medical result for his headache symptoms, though not for his disequilibrium. Dr. Ward’s opinion is flawed, however, in that it makes no mention of any specific treatment recommendations that reasonably might be calculated to lead to significant further improvement. This is an essential requirement to negate an end medical result determination. Workers’ Compensation Rule 2.1200.
10. In the absence of any evidence relating to the purpose of Dr. Ward’s ongoing treatment, I simply cannot find sufficient support for a finding that Claimant has not yet reached an end medical result. If such evidence exists, it was not produced here.
11. Having eliminated both Dr. Haas’ and Dr. Ward’s opinions on the issue, I am convinced that Dr. Orecchio’s end medical result determination is the most credible. Dr. Orecchio conducted a thorough evaluation and appears to have reviewed all of the available medical records (including some that were not made available for my review here). His opinion was well-supported and persuasively established. I conclude, therefore, that Defendant’s July 30, 2009 discontinuance on end medical result grounds was proper.
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Compensability of On-going Mental Health Counseling Sessions
12. As to the compensability of Claimant’s on-going counseling sessions with Ms. Hale, I am convinced by Dr. Nash’s testimony that these are no longer reasonable and necessary. Dr. Nash’s explanation as to why the reflective, supportive therapy Ms. Hale offered was more likely to be detrimental than beneficial was borne out by Ms. Hale’s own objective measurements, which showed that Claimant’s depressive symptoms actually increased over the course of her treatment. While palliative care can be compensable in appropriate circumstances, it must be shown to be effective at maintaining function, not worsening it. J.C. v. Eveready Battery, Opinion No. 12-07WC (April 3, 2007). Ms. Hale’s treatment does not meet this standard.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for temporary total disability benefits after July 30, 2009 is DENIED. Claimant’s claim for medical coverage for Ms. Hale’s ongoing counseling sessions is DENIED.
DATED at Montpelier, Vermont this 20th day of January 2010.
_______________________
Patricia Moulton Powden
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.

Robin Brown-Williams v. General Electric Transportation (January 20, 2010)

Categories: Workers' Compensation Hearing DecisionTags: Author:

Robin Brown-Williams v. General Electric Transportation (January 20, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robin Brown-Williams Opinion No. 02-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
General Electric Transportation
For: Patricia Moulton Powden
Commissioner
State File No. Y-05206
OPINION AND ORDER
Hearing held in Montpelier, Vermont on July 29, 2009
Record closed on October 2, 2009
APPEARANCES:
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
1. Did Claimant develop an overuse injury to her right upper extremity and/or cervical spine as a result of her employment for Defendant on or about May 15, 2007?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Photographs (subject to Protective Order as to confidentiality)
Claimant’s Exhibit 1: Excerpts from Claimant’s personnel file
Claimant’s Exhibit 2: Preservation deposition, Dr. Richard Baker, June 16, 2009
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant has worked as a “bencher” for Defendant since 2000. Defendant manufactures metal blades for jet engines and turbines. Claimant’s job requires her to use grinding and polishing wheels to remove imperfections from the blades and bring them within engineering tolerances for size and shape. The task is repetitive and involves elements of both force and vibration into the upper extremity.
4. From 2000 to 2005 Claimant also worked at times at the “bow-warp” station. This job required her to grip tools and use them to twist and bend a blade to the appropriate engineering tolerance.
Claimant’s 2005 Injury
5. In June 2005 Claimant briefly was assigned to a different station, following which she complained of pain, swelling, numbness and tingling in her right hand, wrist, fingers and thumb. By August 2005 her symptoms extended up her arm and into her shoulder.
6. Claimant’s condition was variously diagnosed by Dr. Baker, her primary care physician, as tendinitis of the wrist and thumb; by Dr. Ryder, Defendant’s company physician, as deQuervain’s tendinitis/carpal tunnel syndrome; and by Dr. Stein, her treating orthopedist, first as an “acute inflammatory response to overuse at work,” then later as biceps tendinitis and inflammation of the right hand. Following a course of physical therapy for her hand as well as a cortisone injection in her right shoulder Claimant’s symptoms resolved. In September 2005 she returned to full-time work at her regular benching and bow-warp stations.
7. Defendant’s internal injury monitoring records indicate that it initially denied that Claimant’s condition was causally related to her work. It is unclear whether it ultimately accepted the claim as compensable or not.
Claimant’s May 2007 Injury
8. In August 2006 Defendant reassigned Claimant from its small engine division to its large engine division. There, Claimant continued her benching job, but the blades upon which she worked were larger, measuring four to six inches long as opposed to the one- to two-inch small engine blades she previously had benched.
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9. Claimant found her new assignment problematic. The large engine blades were more difficult to work with, and benching out their defects required more forceful pressure against the grinding wheel. Claimant testified that after only a few months on the job she began to experience headaches and pain in her right shoulder and neck. Her hands began swelling as well.
10. Claimant did not initially seek medical treatment for these symptoms. Instead she used the home exercise program she had learned in the context of her 2005 injury. Claimant also worked with her supervisors to try to find alternative assignments that would be less likely to induce her symptoms. Unfortunately, neither Claimant nor her supervisors were able to identify any alternatives that Defendant’s medical staff deemed appropriate given both her prior injury and her current complaints.
11. By May 2007 Claimant’s arms and shoulders were feeling so sore that she feared she would not be able to continue performing all of her assigned job tasks. Claimant testified that on Friday, May 11th she left work early because of pain in her neck and arms. On Monday, May 14th she benched large blades all day, and that evening was very sore. Tuesday morning, May 15th, she awoke with a very stiff and sore neck. She went to work and tried to bench, but her neck pain was severe. After advising her supervisor, she presented first to the company nurse and then to Dr. Baker, her primary care provider, for evaluation and treatment.
12. Both the company nurse’s record and Dr. Baker’s office note report that Claimant “woke up with a stiff neck” that morning. Initially, neither record indicates any possible connection to Claimant’s work activities. A month later, however, after cervical spine films failed to reveal any herniated discs, Dr. Baker stated that in his opinion Claimant’s “cervical strain and pain is from muscle spasm secondary to ‘overuse injury’ at work.”
13. Aside from a failed return-to-work trial at the end of May, Claimant was unable to work from May 15, 2007 until early November 2007. A functional capacities evaluation completed in September 2007 “highly recommended” that she undergo a gradual return to work benching small blades. Notwithstanding this recommendation, upon her return Defendant assigned Claimant once again to the large engine benching job she had been doing at the time of her injury. Defendant’s company physicians, Drs. Ryder and Timura, both determined that the tasks involved were “reasonably light duty” and would be unlikely to cause any significant neck, shoulder or upper extremity injury. Both physicians qualified their remarks, however. Dr. Timura noted that the large engine benching job would not cause any significant neck or shoulder stress “provided [Claimant] follows proper technique and posture.” This followed Dr. Ryder’s earlier suggestion that Claimant may have had a habit of tensing up and holding the blades too tightly.
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14. Initially Claimant’s return to large engine benching appeared to be reasonably successful. She still found that the large engine blades had more imperfections, and required more forceful grinding, than the small engine blades had necessitated. Fortunately, she was able to rotate her assignments so as to avoid having to bench all day, every day. Once her modified-duty restrictions were lifted, however, Claimant spent most of her time benching. After that, Claimant testified, her symptoms recurred.
15. Claimant missed twelve days from work in February 2008, including the entire last week, for personal reasons. Approximately three weeks after her return she presented again to Dr. Baker with complaints of neck and shoulder pain. As he had previously, Dr. Baker determined that Claimant’s condition was attributable to work-related overuse. He disabled Claimant from working as of March 19, 2008. Claimant has not returned to work since.
16. As she had in 2005, Claimant again treated with Dr. Stein, an orthopedic surgeon, for her neck and right upper extremity symptoms. Dr. Stein consulted with Dr. Boynton, another orthopedist, who determined that Claimant’s shoulder most likely was not the primary pain driver. Dr. Boynton suggested that Claimant’s neck and carpal tunnel symptoms be addressed first.
17. In October 2008 Claimant underwent nerve conduction studies, which were positive for both carpal tunnel syndrome in her right wrist and ulnar nerve entrapment in her right elbow. Dr. Stein addressed both of these conditions surgically in March 2009. Thereafter, Claimant’s shoulder and arm pain decreased substantially. Her neck pain has persisted, however. Although diagnostic studies have revealed evidence of cervical degenerative disc disease, those findings alone do not account adequately for Claimant’s symptoms.
Medical Opinions as to Causation
18. According to Dr. Baker, Claimant’s primary care physician, Claimant’s job tasks caused her entire right upper extremity to become inflamed, from her wrist up to her neck. Claimant’s physical therapist, Scott Tommola, concurred. In his opinion, the symptoms Claimant exhibited in May 2007 arose from the increased volume and intensity of the work she had been performing since being assigned to large engine benching. That job required more physical force, and possibly a different physical posture as well, resulting in musculoskeletal strains in her neck and shoulders.
19. Dr. Bucksbaum, the physiatrist to whom Dr. Baker referred Claimant in August 2007, also believed Claimant’s condition to be work-related. In addition to his medical qualifications, Dr. Bucksbaum is a biomechanical engineer. As such, he testified to an understanding of the forces attendant in Claimant’s large engine benching job, even though he has never viewed the work station itself, only photographs.
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20. According to Dr. Bucksbaum, the medical fact pattern Claimant exhibited in the context of her 2005 injury was very similar to the one she experienced in 2007. In essence, Claimant’s benching job required her to maintain her upper extremity in a fairly static posture from the elbow to the shoulder, while at the same time applying force repetitively with her hands and fingers against a vibrating grinding wheel. This combination of activities – sustained posturing, repetitive motion, force and vibration – was consistent with a mechanism of injury likely to result in cervical sprain, tendinitis and overuse inflammation.
21. Dr. Bucksbaum testified that Claimant had not yet reached an end medical result as of his most recent evaluation of her in May 2009. He expects that she probably has a work capacity. Given Claimant’s exposure to both repetitive motion and vibration in the context of her prior job assignment for Defendant, however, Dr. Bucksbaum would recommend against her returning to this position again.
22. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Johansson, an osteopathic physician, in February 2008. Dr. Johansson also evaluated Claimant in September 2008 and again in June 2009.
23. According to Dr. Johansson, the medical evidence is insufficient to establish a work-related cause either for Claimant’s neck pain or for her carpal tunnel syndrome. As to Claimant’s neck pain, Dr. Johansson found significant the fact that her symptoms had failed to improve even during periods when she was not working. In his experience, most soft tissue injuries caused by overuse tend to resolve with physical therapy, rest and medication. That Claimant’s injury did not follow this pattern indicates that work-related overuse was not the cause. Dr. Johansson did not otherwise identify the etiology of Claimant’s cervical symptoms with any certainty.
24. As for Claimant’s carpal tunnel syndrome, according to Dr. Johansson’s review the medical records did not mention any symptoms indicative of this condition until July 2008, when Claimant already had been disabled from working for approximately four months. In his opinion, this gap in time effectively disqualified Claimant’s work as the cause of her symptoms. Contrary to Dr. Johansson’s assertion, however, Defendant’s company physician, Dr. Ryder, previously had diagnosed Claimant with possible carpal tunnel syndrome in the context of her 2005 injury.
25. Dr. Johansson determined that Claimant had reached an end medical result for her cervical condition as of his June 1, 2009 evaluation. He suggested another functional capacities evaluation to clarify her work capacity, but stated that she likely could perform at least sedentary- to light-capacity work.
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26. Dr. Timura, another of Defendant’s company physicians, also discounted any relationship between Claimant’s symptoms and her work. He testified that he observed Claimant performing her large engine benching assignment, and even palpated her neck and shoulder muscles while she did so, and found that the movements required to bench the blades did not involve those muscles at all. Claimant strongly disputed this testimony. She recalled that Dr. Timura had observed her co-employee performing the benching job, but insisted that to her knowledge he had never personally observed her benching, much less palpated her muscles while she did so.
27. Dr. Timura acknowledged that Claimant’s 2005 injury had involved her entire right upper extremity and agreed that it had been caused by the forceful repetitive work necessitated by her job assignments at the time. In his opinion, however, Claimant’s large engine benching assignment did not involve the same type of forceful gripping and presented no risk factors for work-related stress to her neck, shoulder or upper extremity.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. Applying this test to the expert medical opinions offered in the current claim, I find Dr. Bucksbaum’s to be the most credible. With training as both a medical doctor and a biomechanical engineer, Dr. Bucksbaum is well-qualified to evaluate and understand the mechanical forces involved in Claimant’s benching activities and the attendant risk factors for developing an overuse injury to her neck and upper extremity. I find persuasive his observation that Claimant’s job involved not just repetitive motion, but also sustained posturing, force and vibration. In that context, I am convinced that the neck pain Claimant noted on May 15, 2007 was not an isolated event. To the contrary, it comprised a symptom of work-related overuse involving her entire right upper extremity.
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4. I am likewise convinced that Claimant’s carpal tunnel syndrome was work-related. Contrary to Dr. Johansson’s assertion, this condition had been diagnosed by Dr. Ryder as early as 2005. Given that prior history, and the known risk factors for repetitive stress to which Claimant continued to be exposed in her job thereafter, I am persuaded that the symptoms she exhibited in 2008 also were work-related.
5. I conclude, therefore, that Claimant has sustained her burden of proving that her work for Defendant caused her to develop an overuse injury in her neck, right upper extremity, elbow and wrist. As a result of this injury, Claimant was disabled from working full time from May 15, 2007 until November 15, 2007. Claimant again was disabled from working on March 19, 2008; that disability was ongoing as of the formal hearing.
6. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,760.22 and attorney fees totaling $8,883.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total and/or temporary partial disability benefits for the periods specified in Conclusion of Law 5 above, with credit for any amounts previously paid pursuant to the Department’s interim orders and with interest in accordance with 21 V.S.A. §664; such payments to continue until appropriately terminated in accordance with 21 V.S.A. §643a;
2. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s compensable injury;
3. Permanent partial disability benefits, if proven, in amounts to be established in accordance with 21 V.S.A. §648;
4. Costs totaling $3,760.22 and attorney fees totaling $8,883.00.
DATED at Montpelier, Vermont this 20th day of January 2010.
_____________________
Patricia Moulton Powden
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.

Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)

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Matthew Commo v. Stevens Gas Services, Inc. (February 3, 2010)

STATE OF VERMONT
DEPARTMENT OF LABOR
Matthew Commo Opinion No. 03-10WC
v. By: Jane Dimotsis, Esq.
Sal Spinosa, Esq.
Stevens Gas Services, Inc. Hearing Officers
For: Patricia Moulton Powden
Commissioner
State File Nos. W-7337 and Z-3648
OPINION AND ORDER
Hearing held in Montpelier on February 27, 2009 and June 17, 2009
Record closed on September 8, 2009
APPEARANCES:
Richard Goldsborough, Esq, for Claimant
Tammy Denton, Esq., for Defendant
ISSUES PRESENTED:
1. What is the appropriate permanent impairment rating for Claimant’s April 13, 2005 low back injury?
2. What is the appropriate permanent impairment rating for Claimant’s June 17, 2005 shoulder injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum Vitae, Verne Backus, M.D.
Defendant’s Exhibit A: Curriculum Vitae, John Johansson, D.O.
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A.§648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s Back Injury
3. On April 13, 2005 Claimant injured his lower back while making a fuel delivery. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. Claimant’s symptoms included right-sided low back and hip pain, with radiation down his right leg. Diagnostic imaging revealed disc herniations on the right at L4-5 and on the left at L5-S1. When his symptoms failed to abate with conservative treatment, in October 2005 Claimant underwent L4-5 disc surgery. Afterwards, he reported to Dr. Krag, his treating surgeon, that with the exception of some residual numbness in his toe, his right leg symptoms had completely resolved.
Claimant’s Shoulder Injury
5. On June 17, 2005, after his April 13, 2005 back injury but before his October 2005 back surgery, Claimant fell down a flight of stairs while at work and injured his right shoulder. Claimant was diagnosed with a torn rotator cuff, which Dr. Slaughterbeck surgically repaired on October 24, 2005. Thereafter, Claimant underwent a course of physical therapy. By May 2006 Dr. Slaughterbeck reported that he had regained full range of motion in his shoulder. The March 2006 physical therapy discharge note reflected the same results.
Permanent Impairment Ratings – Spine
6. At Defendant’s request, in September 2006 Dr. Johansson, an osteopathic physician, evaluated Claimant for the purpose of rating the extent of his permanent impairment relative to both the April 2005 low back injury and the June 2005 shoulder injury. In March 2007, upon referral of his attorney Claimant underwent a second permanency evaluation, this time with Dr. Backus, an occupational medicine specialist.
7. As to Claimant’s low back injury, both doctors determined that Claimant had reached an end medical result as of September 5, 2006, the date of Dr. Johansson’s examination. Using the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”), both doctors concluded that Claimant fit within DRE Category 3, which provides an impairment range of ten to thirteen percent. According to the AMA Guides, to select the appropriate impairment rating within that range requires an analysis of how the injury has impacted one’s activities of daily living.
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8. Dr. Johansson placed Claimant at the low end of the range and therefore rated him with a 10% whole person impairment referable to his spine. In Dr. Johansson’s opinion, it was inappropriate to assign any additional percentage attributable to the impact on Claimant’s activities of daily living, as at least some of that impact was attributable instead to Claimant’s June 2005 shoulder injury.
9. Dr. Backus disagreed. Unlike Dr. Johansson, he documented Claimant’s responses on both a pain disability index and an impairment impact inventory. From that he concluded that the impact of Claimant’s low back injury on his ability to perform activities of daily living merited a rating at the high end of the scale, or 13% whole person. Dr. Backus also noted that, to the extent that Claimant’s shoulder injury also affected his activities of daily living, that impact was accounted for in the impairment rating for that injury. While he agreed that the impact of an injury on one’s activities of daily living should not be counted twice, neither should it be ignored in the context of a rating for which the AMA Guides dictate that it be considered.
Permanent Impairment Ratings – Shoulder
10. Again, both doctors agree that Claimant reached an end medical result for his June 2005 shoulder injury as of September 5, 2006, the date of Dr. Johansson’s examination. Both also agree that under the AMA Guides, the appropriate impairment rating for this injury depends on the extent of any residual deficit in Claimant’s shoulder range of motion. They disagree as to how best to measure it.
11. According to Dr. Johansson’s range of motion measurements, Claimant was left with a 2% whole person impairment referable to his shoulder injury. Dr. Johansson found corroboration for this rating in Claimant’s medical records, specifically the reports from Dr. Slaughterbeck and the physical therapist indicating that by May 2006 Claimant had regained full range of motion in his shoulder.
12. Dr. Backus reached a different result. According to his measurements Claimant’s shoulder range of motion was significantly more limited than what Dr. Johansson had reported. Dr. Backus’ rating was higher, therefore – 6% whole person.
13. Dr. Backus attributed the difference between his rating and Dr. Johansson’s to a variety of factors. Noting that the AMA Guides require that an impairment rating be based on active, not passive, range of motion, Dr. Backus questioned Dr. Johansson’s reliance on both the March 2006 physical therapy report and Dr. Slaughterbeck’s May 2006 report as corroboration for his findings. Those reports reflected passive, not active, range of motion findings. In addition, Dr. Backus noted that range of motion measurements that are taken shortly after active treatment has concluded, as both the physical therapist’s and Dr. Slaughterbeck’s measurements were, often do not reflect the true extent of a patient’s permanent loss. With the passage of time, additional deficits may become evident.
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14. For his part, Dr. Johansson acknowledged that the AMA Guides require that range of motion be measured actively, not passively. In his formal hearing testimony, Dr. Johansson clarified that he too took active range of motion measurements. Dr. Johansson expressed confidence in both his measurements and his methodology. He was skeptical that Claimant’s range of motion could have decreased to the level that Dr. Backus reported.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. Applying the above test to the conflicting medical opinions offered in the current claims, I find Dr. Backus’ permanency ratings to be the most persuasive. First, as to Claimant’s low back injury, I find that Dr. Backus’ report was indicative of a more careful and thorough examination. Most notably, consistent with AMA Guides protocol it included an impairment impact inventory from which it was easy to discern why Dr. Backus reached the rating that he did. In contrast, the basis for Dr. Johansson’s rating is less apparent.
4. Similarly, as to Claimant’s shoulder injury I find Dr. Backus’ impairment rating to be better supported than Dr. Johansson’s, and therefore more credible. Again, Dr. Johansson’s report lacked sufficient detail from which to discern his measurement methodology. It is less persuasive as a result.
5. I conclude, therefore, that in accordance with Dr. Backus’ impairment ratings Claimant sustained a 13% whole person impairment referable to his April 2005 low back injury, and a 6% whole person impairment referable to his June 2005 shoulder injury.
6. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with a 13% whole person impairment referable to the spine, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664;
2. Permanent partial disability benefits in accordance with a 6% whole person impairment referable to the shoulder, commencing on September 5, 2006, with credit for any amounts previously paid and with interest in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be established in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 3rd day of February 2010.
_____________________
Patricia Moulton Powden
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.

Terrance Bortell v. Vermont Composites Inc. (March 25, 2011)

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Terrance Bortell v. Vermont Composites Inc. (March 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Terrance Bortell Opinion No. 37L-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Vermont Composites, Inc.
For: Anne M. Noonan
Commissioner
State File No. X-02179
RULING ON CLAIMANT’S MOTION TO ORDER LUMP SUM PAYMENT OF PERMANENT TOTAL DISABILITY BENEFITS AND FOR OTHER RELIEF
The Commissioner previously decided this claim on December 30, 2010. The opinion determined that Claimant was permanently and totally disabled, and ordered that permanent total disability benefits be paid in accordance with 21 V.S.A. §645 commencing on November 10, 2008 (with credit for any permanent partial disability benefits paid since that date).
Claimant now requests that the minimum amount payable under §645(a) – 330 weeks at the applicable compensation rate – be paid in a lump sum in accordance with 21 V.S.A. §652(b), so that the benefits can be prorated in accordance with 21 V.S.A. §652(c). The purpose of the latter section is to protect a claimant’s ongoing entitlement to Social Security benefits by minimizing the offset that otherwise would occur were workers’ compensation permanency benefits not prorated over his or her life expectancy.
In keeping with §652(b), Workers’ Compensation Rule 19.3000 allows the commissioner to approve a claimant’s request for lump sum payment of permanent disability compensation “if it is in the best interests of the claimant.” The rule lists four “positive factors” to be considered in evaluating such a request:
19.3010 The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit;
19.3011 The lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment;
19.3012 The lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation;
19.3013 The claimant presents other evidence that the lump sum award is in their best interests.
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Workers’ Compensation Rule 19.5000 states that a lump sum payment shall not be approved if:
19.5010 The award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or
19.5011 The claimant is best served by receipt of periodic income benefits; or
19.5012 The payment is intended to pay everyday living expenses; or
19.5013 The lump sum payment is intended to pay past debts.
It is notable that while the language of Rule 19.5000 is mandatory, prohibiting a lump sum award if any of the four enumerated circumstances exist, the language of Rule 19.3000 is discretionary, in which the four enumerated circumstances are merely “positive factors” to be considered.
In support of his request here, Claimant asserts that since he began receiving permanency compensation his monthly Social Security Disability Income (SSDI) benefit has been reduced. Claimant’s SSDI benefit represents a regular source of household income under Rule 19.3010, and it is in his best interests to maximize his income from that source. On those grounds, I conclude that there is good reason to approve the payment of the first 330 weeks of Claimant’s permanent total disability award in a lump sum.
I further conclude that there is no basis under Rule 19.5000 for rejecting Claimant’s request. Defendant has not appealed the formal hearing decision, and the appeal period has now run. Claimant is better served not by the receipt of periodic income benefits from workers’ compensation, but by the maximization of his income from Social Security Disability. The lump sum payment is not intended to pay everyday living expenses, as Claimant’s Social Security Disability income will be adequate for that purpose. Last, although Claimant has had to borrow money in order to cover some additional expenses he just recently incurred, these were due to unusual and extenuating circumstances, and I do not consider them to be the type of “past debts” envisioned by the rule.
As a final argument, Defendant claims that it will be prejudiced if it is required to pay benefits in a lump sum. Given that Claimant has admitted in the past to suicidal ideation, Defendant argues that it “may have difficulty” recouping the lump sum payment if Claimant dies. Suffice it to say that nothing in Rule 19 even remotely hints at such reasoning as a valid basis for denying a lump sum request.
I conclude that it is appropriate under the circumstances of this case to award Claimant the first 330 weeks of permanent total disability benefits in a lump sum. Contrary to Claimant’s request, however, I will not assess interest or penalties against Defendant for its failure to issue a lump sum payment voluntarily. Absent an order to do so from the Commissioner, Defendant was under no obligation to pay benefits in a lump sum. There is no basis, therefore, for assessing either interest or penalties.
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Defendant is reminded, however, that it is its responsibility, not Claimant’s, to ensure that all outstanding medical bills causally related to the compensable injury are timely paid. To the extent that this has not occurred, Defendant may be liable for interest as charged by the providers.
Claimant having prevailed on his request for a lump sum award, he is entitled to an award of costs and attorney fees. Claimant has submitted two requests for attorney fees, one in conjunction with his original motion and a cumulative one filed after his reply to Defendant’s memorandum in opposition. Considering both submissions together, I conclude that an award of fees totaling $2,392.50 (16.5 hours at $145.00 per hour) is appropriate.
As for costs, Claimant shall have 30 days from the date of this Order within which to submit his request for reimbursement.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED as follows:
1. Defendant shall pay as a lump sum 330 weeks of permanent total disability benefits in accordance with 21 V.S.A. §645 commencing on November 10, 2008 (with credit for any permanent partial and/or permanent total disability benefits paid to date);
2. The award of benefits in this case, totaling $144,332.20, is lump sum compensation for a permanent impairment that will affect Claimant for the rest of his life. Claimant’s remaining life expectancy, based on the National Vital Statistics Reports, Vol. 54, No. 14 (April 19, 2006), is 33.1 years, or 397.2 months. Therefore, even though paid in a lump sum, Claimant’s net benefit is $88,950.60 (after the Commissioner’s award of $21,978.92 for attorney fees and deduction of attorney fees of $55,381.60 from the total award), which shall be prorated pursuant to 21 V.S.A. §652 and considered to be $223.94 per month beginning on November 10, 2008;
3. Attorney fees totaling $2,392.50 and costs to be submitted.
DATED at Montpelier, Vermont this 25th day of March 2011.
_____________________
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.

Christine Erickson v. Kennedy Brothers Inc (March 25, 2011)

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Christine Erickson v. Kennedy Brothers Inc (March 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christine Erickson Opinion No. 36A-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kennedy Brothers, Inc.
For: Anne M. Noonan
Commissioner
State File No. S-09163
RULING ON CLAIMANT’S REQUEST FOR AWARD OF ATTORNEY FEES AND COSTS
The Commissioner previously decided this claim on December 14, 2010. The disputed issues were (1) whether Claimant’s L4-5 disc herniation was causally related to her November 2001 compensable work injury; and (2) if yes, to what workers’ compensation benefits was Claimant entitled.
The Commissioner ruled in Claimant’s favor on the first issue. As to the second issue, the Commissioner ruled that Claimant was entitled to medical benefits causally related to her injury, but denied her claim for temporary disability and/or mileage benefits. The Commissioner also ruled that as Claimant had “substantially prevailed,” she was entitled to an award of costs and attorney fees “commensurate with the extent of her success.” 21 V.S.A. §678; Hatin v. Our Lady of Providence, Opinion No. 21S-03WC (October 22, 2003).
Claimant now has submitted a request for an award of costs totaling $7,212.64 and attorney fees totaling $21,648.00. Defendant has raised various objections, each of which is considered below. Fees Commensurate with the Extent of Claimant’s Success
Defendant argues that any award of fees and costs should be reduced substantially in recognition of the fact that the claims on which Claimant failed to prevail – temporary total disability and mileage reimbursement – are the ones that would have netted her an immediate monetary recovery. In contrast, the claims upon which she prevailed – compensability and medical benefits – resulted primarily in reimbursement to her medical providers, with no immediate monetary recovery to her.
Defendant’s argument misses the mark. Although they would have resulted in a small, albeit immediate, monetary award, the claims upon which Claimant failed to prevail were relatively minor. Of far greater import in the long run was the determination that her disc herniation is compensable. With that determination, Claimant may well become entitled to additional benefits in the future. This possibility alone is enough to justify awarding a significant portion of the attorney fees incurred.
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Updated Attorney Fee Reimbursement Rate
Defendant next argues that whatever attorney fees are awarded must be based on the reimbursement rate in effect as of the date of her injury, November 23, 2001. Workers’ Compensation Rule 10.1210 provided for a rate of $90.00 per hour at that time. Effective June 15, 2010 the rule was amended, and the rate increased to $145.00 per hour. Claimant incorporated the change into her fee request, and seeks an award at the updated rate for all legal services provided after June 15, 2010. Defendant argues that because the rule change was substantive rather than procedural, it cannot be applied retroactively, and therefore the old rate must apply throughout.
Workers’ Compensation Rule 46.1000 provides: “Procedures under these rules, not affecting the substantive rights of a party, shall apply to pending and future claims and cases.” Had the amendment at issue here created a new right to attorney fees where one had not existed before, this might indeed constitute a substantive change. But where the change merely alters the rate at which such fees are to be awarded, the amendment is properly categorized as procedural. Estabrook v. New England Precision, Opinion No. 10-00WC (May 16, 2000). It is appropriate, therefore, to apply the amended rate to new charges incurred after its effective date.
Recoverable Costs
Last, Defendant argues that various fax and copying charges should not be allowed as costs because Claimant has not established that they were “actually incurred.” I am satisfied that the costs are legitimate, reasonable and well within the spirit of Rule 10.3000.
Conclusion
I conclude that Claimant is entitled to an award of her costs as submitted, totaling $7,212.64.
As for attorney fees, as noted above the Commissioner typically exercises the discretion granted by 21 V.S.A. §678 to award only those attorney fees that are commensurate with the extent of the claimant’s success. Lyons v. American Flatbread, Opinion No. 36A-03WC (October 24, 2003). In addition, the Commissioner also considers such factors as whether the attorney’s efforts were integral to establishing the claimant’s right to compensation and whether the claim for fees is proportional to the attorney’s efforts in light of the difficulty of the issues raised and the skill and time expended. Id., and cases cited therein. Considering those factors in the context of the current claim, I conclude that it is appropriate to award Claimant 90% of the fees requested, or $19,483.20.
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ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Costs totaling $7,212.64; and
2. Attorney fees totaling $19,483.20.
DATED at Montpelier, Vermont this 25th day of March 2011.
__________________
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.

Christine Erickson v. Kennedy Brothers, Inc. (December 14, 2010)

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Christine Erickson v. Kennedy Brothers, Inc. (December 14, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christine Erickson Opinion No. 36-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kennedy Brothers, Inc.
For: Valerie Rickert
Acting Commissioner
State File No. S-09163
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 26 and August 18, 2010
Record closed on October 8, 2010
APPEARANCES:
Mary Kirkpatrick, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s L4-5 disc herniation causally related to her November 23, 2001 compensable work injury?
2. If yes, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 5: Medical Discussion Paper, Limping and Back Pain
Claimant’s Exhibit 12: Curriculum vitae, Richard Levy, M.D.
Claimant’s Exhibit 13: List of Dr. Levy’s prior testimony
Claimant’s Exhibit 14: Dr. Levy’s patient ledger
Claimant’s Exhibit 15: Letter from Marge McCluskey to Dr. Levy, October 28, 2008
Claimant’s Exhibit 16: Dr. Levy report, November 3, 2008
Claimant’s Exhibit 17: Letter from Dr. Levy to Attorney Blake, July 23, 2009
Claimant’s Exhibit 20: Invoice of attorney fees and costs
Claimant’s Exhibit 21: Contingency Fee Agreement
Claimant’s Exhibit 22: Dr. Davignon Independent Medical Evaluation, 01/11/06
Claimant’s Exhibit 23: Medical bills chart
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
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.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s November 2001 Work Injury and Subsequent Medical Course
3. On November 23, 2001 Claimant was at work, assisting her employer to string outdoor Christmas lights, when she caught her right leg in a stepladder and fell. Claimant sustained a severe tibial plateau fracture, which required two surgeries to repair. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. The injury caused permanent trauma to Claimant’s right knee. It aches, lacks full range of motion and feels weak. As a result of these deficits, Claimant moves her body differently than she did previously, consistently leaning to her left and favoring her right side. She walks up and down stairs one step at a time, always leading with her left foot rather than alternating with her right. She cannot bend, squat or twist properly. Even when sitting or driving, she twists her core and cocks her weight more to her left side.
5. Because Claimant’s right knee lacks full extension, she sometimes “toe walks,” meaning that she completes her stride with her right heel still slightly above the ground. This gait abnormality is subtle; Claimant herself is not always aware that she is doing it. Her mother has observed it, as have some, but not all, of the physicians who have examined Claimant over the course of the past several years. It fluctuates in degree with the time of day (worse in the morning and in the evening) and the weather. It also worsens when Claimant is particularly fatigued, as after a long day spent standing or walking.
6. In December 2003 Claimant fractured her femur when her right knee gave out while descending some stairs. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
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7. In November and December 2005 Claimant experienced two episodes of low back pain, one apparently prompted by having slept in a propped up position due to a cold, the other by lifting a bag of cat litter. Claimant had no prior history of low back pain. Following these episodes, Claimant’s family physician, Dr. Hoffman, and her treating orthopedic surgeon, Dr. Kristiansen, both determined that her abnormal gait pattern was at least partly to blame for her low back pain. Defendant’s independent medical evaluator, Dr. Davignon, concurred. All three recommended a course of physical therapy to emphasize back stretching, posture and gait training. Claimant underwent this therapy in early 2006, and Defendant bore the cost as causally related to her original 2001 work injury.
Claimant’s Medical Treatment in February 2008 and Thereafter
8. Claimant is a 25-year cigarette smoker. She has a history of chronic bronchitis and also of rib fractures after coughing.
9. On February 6, 2008 Claimant presented to her family physician with a complaint of right-sided rib pain that had begun two days earlier, after she had coughed hard while twisting at the same time. Although Claimant suspected that she had fractured a rib, x-rays were negative.
10. More than a month later, on March 16, 2008 Claimant presented to the Porter Hospital Emergency Room complaining of left-sided low back pain that she reported had been present “for a couple of weeks.” Claimant advised that she had had “quite a cough,” for which she had seen her family physician “off and on for the last few months,” but that the pain associated with that had been on the right side, whereas her current pain was on the left. Claimant was diagnosed with muscular back pain and referred for a course of physical therapy.
11. Claimant’s physical therapist, Michael DiPalermo, evaluated her on March 19, 2008. On March 25, 2008 Maria Collette, a physician’s assistant at Claimant’s family practice, also evaluated her. Both providers reported that Claimant’s low back symptoms had begun in February 2008, though neither specified exactly when. Ms. Collette further reported that Claimant’s pain had worsened significantly over the prior weekend, thus prompting her visit to the Emergency Room, and that she now was experiencing radicular symptoms from her left buttock down her left leg and into her ankle.
12. Ms. Collette next examined Claimant on May 12, 2008. By that time, Claimant’s low back and left leg symptoms had worsened further. Her response to a straight leg raise test, an objective test indicating the presence or absence of disc herniation, was positive. A subsequent MRI confirmed that Claimant had in fact suffered an L4-5 disc herniation with nerve root impingement. This correlated with Claimant’s clinical signs and accounted for her symptoms.
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13. Claimant’s disc herniation most likely had an insidious rather than an acute onset, and probably occurred some time between March and May 2008. This is established by the fact that her straight leg raise test was reported to be negative at the March 16, 2008 emergency room visit. It was indicative of only a partial disc herniation at Ms. Collette’s March 25th evaluation, but did not indicate a full herniation until the May 12th visit.
14. Claimant treated for her disc herniation with Dr. Flimlin, a specialist in physical and rehabilitative medicine at the Spine Institute of New England. Dr. Flimlin recommended physical therapy and epidural steroid injections. When neither of these treatments proved successful, Dr. Flimlin referred Claimant on to Dr. Braun, a surgeon. Dr. Braun performed disc surgery on December 11, 2009. Since that time, Claimant has had good relief of her radicular symptoms.
Expert Medical Opinions
15. Claimant’s treating physicians, Drs. Kristiansen, Flimlin and Bicknell, all testified to the causal relationship between her 2001 work injury, her abnormal gait and her 2008 disc herniation.
16. Dr. Kristiansen is a board-certified orthopedic surgeon. He has provided ongoing treatment to Claimant for a variety of orthopedic issues since shortly after her original knee injury in November 2001. Dr. Kristiansen’s primary area of interest involves orthopedic injuries to the arms and legs. He is fully capable of diagnosing disc herniations and disc trauma, although he typically refers such injuries to his colleagues for treatment.
17. Dr. Flimlin is board certified in physical medicine and rehabilitation. She routinely treats patients with mechanical low back pain and/or disc herniation issues. Dr. Flimlin evaluated and treated Claimant’s low back pain from August 2008 until October 2009, at which point she referred Claimant on to Dr. Braun for surgical consideration.
18. Dr. Donald Bicknell has been one of Claimant’s primary care physicians since 1986. Dr. Bicknell has treated many patients who developed low back pain after suffering an injury that altered their gait. He himself experienced low back pain many years ago, after suffering a tibial plateau fracture that temporarily caused him to limp.
19. There is very little information in the medical literature about the relationship between altered gait patterns and back pain. The premise is that walking with an altered gait pattern throws off the alignment of the hips and back and causes a lateral sway. Maintaining the body’s altered center of gravity puts repetitive stress on the trunk muscles, which in turn increases the force transmitted across the lower back. The resulting wear and tear on the lumbar spine is thought to cause or accelerate degenerative disc changes.
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20. Drs. Kristiansen, Flimlin and Bicknell all testified, to a reasonable degree of medical certainty, that this is what occurred in Claimant’s case and what ultimately led to her 2008 disc herniation. Dr. Kristiansen’s testimony was particularly credible. As Claimant’s treating orthopedist for the many years since her initial knee injury, Dr. Kristiansen has been well able to observe the lasting impact that her inability to fully flex her knee has had on her body mechanics. Dr. Kristiansen specifically noted that Claimant’s initial injury was “very severe,” that she endured a lengthy rehabilitation period afterwards and that her altered gait affected her both when walking and when standing.
21. In further support of his conclusion that Claimant’s abnormal gait pattern likely has caused the degenerative process in her lower back to accelerate, Dr. Kristiansen referred to a medical discussion paper authored by a doctor who also has training in biomechanics.1 Although not peer-reviewed, I agree with Dr. Kristiansen that the paper is well-reasoned and makes logical sense.
22. Defendant’s medical expert, Dr. Levy, testified that there is no scientific basis for concluding that an abnormal gait pattern can either accelerate disc degeneration or cause a disc to herniate. Dr. Levy is a board-certified neurologist. He reviewed Claimant’s medical records and performed an independent medical examination in November 2008. In the course of his examination, Dr. Levy personally observed Claimant’s abnormal gait.
23. Dr. Levy cited to two peer-reviewed medical journal articles he had read in which the relationship between limping and low back pain was studied. One study involved patients with congenital club foot, the other involved amputees. According to Dr. Levy, low back pain was not established to be more prevalent in either study group than it was in the general population. From this research, as well as his own experience with gait dysfunction patients, Dr. Levy determined that it was impossible to conclude, to the required degree of medical certainty, that Claimant’s abnormal gait either caused or accelerated the disc degeneration in her lumbar spine.
24. Dr. Levy agreed that the biomechanical effect of an abnormal gait pattern would be to cause the body’s center of gravity to shift, but disagreed that this would result in either mechanical back pain or lumbar disc degeneration. Instead, Dr. Levy cited a 25-year history of cigarette smoking as the most significant risk factor for degenerative disc disease in Claimant’s case. Smoking decreases the blood supply to the area and causes the discs to become dessicated and more susceptible to cracking.
1 Harrington, Ian J., M.D., Limping and Back Pain, Medical Discussion Paper presented to The Workplace Safety and Insurance Appeals Tribunal, March 2004 (Claimant’s Exhibit 5).
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25. Drs. Kristiansen, Flimlin and Bicknell all testified that although degenerative disc disease is a multi-factorial process, in Claimant’s case her gait abnormality was a primary contributing cause. Of note, although smoking might contribute to disc degeneration throughout one’s spine, the L4-5 disc is in an area that is specifically affected by gait mechanics. Claimant had evidence of degenerative disease at other levels in her spine, but only her L4-5 disc degenerated to the point of herniation. This is a strong indication that Claimant’s abnormal gait was a more significant factor in accelerating the disease there than just her history of smoking alone.
26. As for the specific cause of Claimant’s L4-5 disc herniation, in Dr. Levy’s opinion this most likely was precipitated not by her gait abnormality, but by the episode of severe coughing she experienced in early February 2008. A particularly forceful cough can put increased stress on the abdominal muscles. When transferred to the spinal column, the increased force can cause an already degenerated disc to begin to herniate.
27. A disc is comprised of a hard outer layer, the annulus fibrosis, surrounding a jelly-like inner material, the nucleus pulposus. When the outer layer cracks, the jelly-like material inside may be pushed out, either gradually or all at once. If the extruded material compresses a nerve, the patient will experience radicular symptoms. Depending on the extent of the herniation, it may take some time for this to occur. Thus, the fact that Claimant had a severe coughing episode in early February 2008 but did not experience symptoms indicative of a disc herniation until some time later does not necessarily mean that the two events were unrelated. It is impossible to know definitively whether this is what happened, however.
28. Drs. Kristiansen, Flimlin and Bicknell all discounted the coughing episode as being in any way related to Claimant’s disc herniation. Rather, they attributed the cause to the gradual progression of Claimant’s degenerative disc disease, accelerated as it was at the L4-5 level by her abnormal gait pattern.
29. Claimant’s physical therapist, Michael DiPalermo, also testified as to the causal link, if any, between Claimant’s altered gait pattern, her low back pain and her L4-5 disc herniation. Claimant has undergone extensive courses of physical therapy since her 2001 injury, and Mr. DiPalermo has had the opportunity to assess her gait on multiple occasions over the years.
30. After reviewing the medical records concerning Claimant’s coughing episode in early February 2008, Mr. DiPalermo testified that it was impossible to tell, to the required degree of medical certainty, exactly what caused Claimant’s subsequent disc herniation. He admitted, however, that her abnormal gait pattern put her at greater risk for low back pain and made her more susceptible to a disc herniation, whether from coughing or otherwise. In this respect, Mr. DiPalermo’s opinion coincided with that of Claimant’s other medical experts.
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Alleged Periods of Temporary Total Disability
31. At some point after her injury Claimant began working at the Wayberry Inn. She was terminated from her job there in May 2009, for reasons unrelated to her injury. Subsequently, Claimant collected unemployment benefits continuously up through the date of the formal hearing. She was anticipating starting a new job with the census bureau the day following.
32. Claimant testified that by the time she was laid off from work in May 2009 her low back pain had worsened to the point that it likely would have disabled her within another month. She further testified that her doctors told her “to do nothing” for twelve weeks following her December 2009 disc surgery. Last, Claimant alleged in her pleadings that she was disabled from working on August 28, 2008 and again on May 28, 2009, the days when she underwent epidural steroid injections at Dr. Flimlin’s referral. Claimant’s testimony notwithstanding, no medical evidence was introduced to substantiate her disability for any of these time periods.
Claimant’s Medical Expenses and Mileage Reimbursement Claim
33. Claimant submitted into evidence a chart detailing the medical expenses that have been incurred relative to treatment for her low back pain and disc herniation. The billed charges total $54,603.37. Of this amount, Claimant has paid $1,465.91. Various group health insurance carriers covered most of the remaining charges; approximately $3,500.00 remains unpaid. None of the billed charges have been processed in accordance with the Workers’ Compensation Medical Fee Schedule.
34. Although Claimant alleged in her post-hearing submissions that “her life and credit” have been impacted negatively as a result of Defendant’s refusal to pay her outstanding medical bills, she failed to produce any evidence whatsoever to establish the truth of this assertion.
35. Claimant also alleged in her post-hearing submissions an entitlement to mileage reimbursement totaling $494.37, covering trips to and from medical appointments between 2008 and 2010. Again, Claimant failed to submit any evidence at the hearing relevant to this claim. In particular, there is no evidence as to her regular commute distance to and from work.
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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).
Compensability of Claimant’s Disc Herniation
2. At issue in this claim is whether there is a causal link connecting Claimant’s initial work-related knee injury, her abnormal gait, the progression of her degenerative disc disease and her L4-5 disc herniation. If yes, then the latter condition is compensable as a natural consequence flowing directly from the original compensable injury. A.B. v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008); see generally, 1 Larson’s Workers’ Compensation Law §10.01.
3. There is no dispute among the medical experts that Claimant developed an abnormal gait as a direct result of her initial knee injury. I conclude that at least this much of a causal link has been established, therefore.
4. Where the experts diverge is as to the impact, if any, that Claimant’s abnormal gait had on the development and progression of degenerative disc disease in her lumbar spine. Drs. Kristiansen, Flimlin and Bicknell all opined, to a reasonable degree of medical certainty, that Claimant’s altered gait accelerated the progression of the disease, thereby making her more susceptible to a lumbar disc herniation. Dr. Levy opined that her altered gait had no effect whatsoever.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Applying this test to the expert opinions rendered here, I conclude that Claimant’s experts are the most persuasive. Dr. Kristiansen’s opinion was particularly compelling. As Claimant’s treating orthopedic surgeon for many years, Dr. Kristiansen has been able to observe the impact that her abnormal gait has had on her body mechanics over time. The basis for his opinion was clear and thorough. His testimony as to the biomechanical forces that likely cause lumbar disc degeneration lent further support to his conclusion.
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7. Although Claimant’s cigarette smoking likely contributed to her degenerative disc disease, I am unconvinced that this was the primary factor, as Dr. Levy concluded. Nor can I accept his conclusion that Claimant’s altered gait played no role whatsoever. Rather, I am persuaded by Dr. Flimlin’s testimony that the fact that Claimant’s disc herniation occurred at a disc level that is specifically affected by gait mechanics indicates that her abnormal gait most likely was the primary contributing cause of the degeneration there.
8. I conclude, therefore, that the gait abnormality that resulted from Claimant’s initial knee injury either caused or accelerated the progression of degenerative disease at the L4-5 level of her lumbar spine. The disc herniation that followed was the natural consequence of that accelerated degeneration, and likely occurred sooner than it otherwise would have had Claimant not suffered from an abnormal gait. Stannard v. Stannard Co., Inc., 175 Vt. 549, 552 (2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989).
9. In reaching this conclusion, I must reject Dr. Levy’s opinion that the coughing episode Claimant reported in early February 2008 was the likely cause of a disc herniation that did not become symptomatic until some weeks later. Although I understand how such a chain of events might be possible, I cannot discern from Dr. Levy’s testimony why it would have been probable in Claimant’s case.
10. I conclude that Claimant has sustained her burden of proving that her L4-5 disc herniation was causally connected to her original work-related injury, and is therefore compensable.
Temporary Disability Benefits
11. Claimant asserts entitlement to temporary total disability benefits for a period extending from some time in June 2009 (one month after her most recent employment terminated) until approximately mid-March 2010 (twelve weeks after her December 2009 disc surgery). Claimant also asserts entitlement to disability benefits for two days on which she underwent epidural steroid injections at Dr. Flimlin’s referral.
12. Defendant argues that because Claimant was receiving unemployment compensation for these time periods she is disqualified from receiving temporary total disability benefits. I agree that by asserting that she was available for and able to work for unemployment compensation purposes, see 21 V.S.A. §1343(a)(3), Claimant cast doubt on any claim that she was at the same time temporarily totally disabled for workers’ compensation purposes. See, e.g., Clay v. Precision Valley Communication, Opinion No. 38-02WC (August 28, 2002); Savage v. International Cheese Company, Inc., Opinion No. 60-95WC (November 30, 1995). Even more troublesome, Claimant did not produce any medical evidence at all to substantiate her claim. I conclude that she has failed to sustain her burden of proof on this issue, and therefore is not entitled to temporary disability benefits for any of the periods she claims.
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Medical Expenses and Mileage
13. Having concluded that Claimant’s low back pain and L4-5 disc herniation are compensable, Defendant is obligated to pay for all reasonable and necessary medical services and supplies causally related to treatment of these conditions. 21 V.S.A. §640(a). To the extent Claimant has paid some of these charges herself, I conclude that she is entitled to full reimbursement, with interest in accordance with 21 V.S.A. §664.
14. As for charges that were either paid by other insurance or remain outstanding, I conclude that Defendant is obligated to reimburse and/or pay these in accordance with the workers’ compensation medical fee schedule, Workers’ Compensation Rule 40, with interest as charged by the providers and in accordance with §664. Claimant’s assertion to the contrary, there is no legal basis for requiring Defendant to pay at anything other than the applicable fee schedule rates.
15. I conclude that Claimant is not entitled to an award of mileage reimbursement for her travel to and from medical appointments at this time. She failed to present this claim at hearing, and it is unclear even from her post-hearing submissions whether she has correctly calculated the amount she claims is due. Claimant is free to present Defendant with a revised, substantiated claim, but not in the context of the current proceeding.
Costs and Attorney Fees
16. Claimant successfully established the compensability of her L4-5 disc herniation, and in that respect I conclude that she has substantially prevailed. Hodgeman v. Jard, 157 Vt. 461, 465 (1991). She is entitled to an award of costs and attorney fees commensurate with the extent of her success. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion to submit evidence of her claim for allowable costs and attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits in accordance with Conclusions of Law Nos. 13 and 14 above, with interest as required under 21 V.S.A. §664;
2. Allowable costs and attorney fees in accordance with Conclusion of Law No. 16 above; and
3. Such other workers’ compensation benefits as Claimant shall prove her entitlement as causally related to her November 23, 2001 compensable injury and/or her May 2008 L4-5 disc herniation.
DATED at Montpelier, Vermont this 14th day of December 2010.
___________________________
Valerie Rickert
Acting 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.

Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Pamela (Barrett) Simmons Opinion No. 07-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Landmark College, Inc.
For: Anne M. Noonan
Commissioner
State File No. W-59833
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 1, 2012
Record closed on January 7, 2013
APPEARANCES:
Thomas Bixby, Esq., for Claimant
Bonnie Shappy, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s May 2011 cervical surgery constitute reasonable medical treatment for her compensable March 2005 work injury?
EXHIBITS:
Joint Exhibit I: Medical Records
Claimant’s Exhibit 1: First Report of Injury
Claimant’s Exhibit 2: Agreement for Permanent Partial Disability Compensation (Form 22)
Claimant’s Exhibit 3: Ergonomic Work Site Evaluation, February 11, 2008
Claimant’s Exhibit 7: Letter from Attorney Bixby to Claimant, August 18, 2011
Claimant’s Exhibit 8: Summary of invoices from Attorney Bixby, July 31, 2011
Claimant’s Exhibit 9: Handwritten notes taken by Dr. Wieneke
Claimant’s Exhibit 10: Dr. Magnadottir deposition, September 14, 2012
Defendant’s Exhibit A: Curriculum vitae, Dr. Wieneke
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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)
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
RULING ON POST-HEARING MOTIONS:
Motion to Strike Dr. Wieneke’s Post-Hearing Report
Because Claimant’s expert witness, Dr. Magnadottir, was not available to testify at the formal hearing, Defendant agreed to present its own expert witness, Dr. Wieneke, out of turn, with the proviso that he be allowed an opportunity to comment on Dr. Magnadottir’s testimony once her deposition was proffered post-hearing. Claimant asserts that the written report in which he did so merely restated his hearing testimony and therefore should be stricken as irrelevant. I disagree. The report contained opinion evidence germane to Dr. Magnadottir’s testimony. Claimant’s Motion to Strike is DENIED.
Motion for Directed Verdict
Claimant filed a motion for directed verdict on the issue of causal relationship. A motion for directed verdict was a form of pleading under both the civil and criminal rules of procedure. It has since been abolished and replaced, in the civil context with a Motion for Judgment as a Matter of Law, V.R.C.P. 50(a), and in the criminal context with a Motion for Judgment of Acquittal, V.R.Cr.P. 29. The purpose of such motions is to remove a case from consideration by a jury in situations where judgment for the moving party is required as a matter of law. Where there is no jury, as is the case in administrative proceedings such as this one, a post-hearing motion for judgment serves no purpose. Claimant’s Motion for Directed Verdict is therefore DENIED.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim as well as the Commissioner’s prior decision in this claim, Barrett-Simmons v. Landmark College, Inc., Opinion No. 35-10WC (November 16, 2010). In addition, judicial notice is taken of the December 9, 2010 vocational rehabilitation report prepared by Claimant’s vocational rehabilitation counselor, Jay Spiegel.
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Claimant’s Work Injury and Prior Medical History
3. Claimant worked for Defendant as a housekeeper. On March 18, 2005 she slipped and fell on a wet floor. Claimant injured her neck and right shoulder in the fall. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
4. Over the course of the next three years Claimant underwent three surgeries, including fusions at two cervical spine levels. Unfortunately, all of these surgeries failed. Her symptoms, which include pain, muscle spasms and limited range of motion in her neck and right shoulder, have persisted.
5. Following her third surgery, in February 2009 Claimant’s treating neurosurgeon, Dr. Magnadottir, determined that she had reached an end medical result. The Department later approved the parties’ proposed Agreement for Permanent Partial Disability Compensation (Form 22), by the terms of which Claimant received compensation for a 23.5 percent whole person permanent impairment referable to her cervical spine. The compensable injury was described in the Agreement as “right shoulder/upper back, C4-7.”
Claimant’s Fourth Cervical Surgery
6. In February 2011 Claimant returned to Dr. Magnadottir for another neurosurgical consult. She reported that over the course of the prior year her neck pain had been constant and her right shoulder pain had worsened. In addition, her symptoms now involved her right hand. Claimant described dropping things, making messes and burning her right hand while cooking. She had not suffered any new injuries, falls or motor vehicle accidents to account for these new and/or worsening symptoms.
7. Dr. Magnadottir’s physical examination revealed that Claimant exhibited symmetric motor function (except for some give-way weakness in the right deltoid) and symmetric reflexes and sensation, but a substantial amount of myofascial pain1 and tenderness bilaterally in the trapezoids and rhomboids. A review of Claimant’s cervical spine and right shoulder MRI at this office visit showed tendonitis and significant narrowing of the C5 foramen.
8. Dr. Magnadottir discussed Claimant’s potential treatment options with her. These included exercises, physical therapy and surgery. Claimant took some time to decide, and ultimately chose to pursue surgery. Once her decision was made, Dr. Magnadottir described Claimant as being “very strong” in her desire to proceed in this manner. I find that Claimant elected surgical treatment with full knowledge and understanding that it would not alleviate her major complaint of persistent myofascial right shoulder pain.
1 Myofascial pain is muscular pain that is very non-specific and difficult to diagnose. It is a non-radicular pain that does not follow a nerve root pattern. The affected muscle often has “trigger points,” that is, hyper-irritable spots and associated palpable nodules in skeletal muscle.
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9. In May 2011, Claimant underwent the fourth surgery, a procedure to decompress the C5 nerve root. As expected, the surgery did not alleviate the persistent myofascial pain in her right shoulder. The symptoms in her right hand have abated, though it is unclear why. Medically, there is no reason why nerve compression at the C5 level would have resulted in the symptoms Claimant reported, and therefore no reason why surgical decompression would have caused them to resolve.
Expert Medical Opinions
(a) Dr. Magnadottir
10. Dr. Magnadottir testified by deposition. She is a board certified neurosurgeon. She performed Claimant’s third cervical surgery in 2009, and her fourth surgery (the subject of the pending compensability dispute) in May 2011. In formulating her opinion as to the reasonableness of the latter surgery, Dr. Magnadottir did not review Claimant’s entire medical history, but rather relied on her knowledge of Claimant’s condition since she began treating her.
11. In Dr. Magnadottir’s opinion, Claimant’s May 2011 surgery was causally related to her compensable work injury. Claimant suffered from disc disease at the C5, C6 and C7 levels, and had undergone cervical fusion at the C5-6 level. According to the accepted medical literature, disc disease in one joint significantly contributes to the development of disc disease in adjacent joints as well.
12. As to the medical necessity of a fourth surgery, Dr. Magnadottir relied primarily on the fact that Claimant’s recent MRI showed her C5 foramen to be significantly narrowed. With this finding in mind, Dr. Magnadottir anticipated that repeat surgery at that level might relieve at least some of Claimant’s pain. However, Dr. Magnadottir did not refer Claimant for electrodiagnostic studies in order to determine whether there were objective signs of nerve damage at C5. Nor did she recommend that Claimant undergo diagnostic epidural injections in the C5 root, to see if she would experience any relief from pain at this root level. Dr. Magnadottir reasoned that even if there was relief, it would be short lived.
13. Dr. Magnadottir acknowledged that the May 2011 surgery would not address the persistent myofascial pain in Claimant’s right shoulder. She also acknowledged that Claimant’s pain complaints were all subjective in nature. Last, Dr. Magnadottir acknowledged that damage to the C5 nerve root would not in any way manifest itself in the type of hand symptoms Claimant was reporting. I find that these facts significantly undermine Dr. Magnadottir’s opinion that Claimant’s May 2011 surgery constituted reasonable and necessary medical treatment.
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(b) Dr. Wieneke
14. At Defendant’s request Dr. Wieneke, a board certified orthopedic surgeon, performed an independent medical examination of Claimant for the purpose of determining whether a fourth surgery would have constituted reasonable treatment for her 2005 work injury. Dr. Wieneke had evaluated Claimant previously and therefore was familiar with her medical history.2 Before performing his most recent examination, Dr. Wieneke also reviewed all of Claimant’s past and current medical records.
15. In Dr. Wieneke’s opinion, Claimant’s fourth surgery did not constitute reasonable and necessary medical treatment. He based this opinion on the following:
• Prior to 2011, all of Claimant’s EMG studies were negative, indicating no C5 nerve root damage that would warrant surgery;
• There was no current electrodiagnostic evidence of radiculopathy to confirm Claimant’s current complaints of pain;
• Claimant’s give-way weakness in her right deltoid was a Waddell sign, which suggested a psychological component to her pain complaints;
• The C5 nerve root distribution does not manifest itself in the hand, and therefore damage or compression at that level would not explain Claimant’s most recent symptoms; and
• Claimant had already undergone three major cervical surgeries with virtually no improvement and little likelihood of success with a fourth surgery.
16. I find Dr. Wieneke’s review and knowledge of Claimant’s medical condition extensive and his opinions well supported by objective evidence.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2 Dr. Wieneke evaluated Claimant’s case on four different occasions. He performed independent medical examinations of Claimant in 2006, 2009 and October 2011. He performed a records review in May 2011.
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2. At issue here is whether Claimant’s May 2011 surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2011).
3. Here, the condition for which Claimant sought surgery in 2011 involved significant narrowing of her C5 foramen and persistent right shoulder pain. Both of these conditions were well within the terms of the approved Form 22 agreement pursuant to which Defendant paid permanency benefits in 2009. Claimant did not suffer any other injuries subsequently, such as a motor vehicle accident or new slip and fall incident, that might account for her ongoing and/or worsening symptoms. Considering all of the credible evidence, I conclude that the neck and right shoulder pain for which she sought additional treatment in 2011 was causally related to her accepted work injuries.
4. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatment at issue was medically necessary. This determination is based on evidence establishing the likelihood that it would improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
5. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fourth cervical surgery. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Here, based primarily on the second and third factors, I conclude that Dr. Wieneke’s opinion was more persuasive than Dr. Magnadottir’s. Dr. Wieneke had the advantage of reviewing Claimant’s entire medical history. More important, his opinions were clear, thorough and corroborated by objective evidence. Given that (1) the C5 nerve root distribution does not manifest itself in the hand; (2) no objective tests were performed to identify the C5 level as the pain generator for Claimant’s complaints; and (3) surgery clearly would not relieve the myofascial pain in Claimant’s shoulder, Dr. Wieneke credibly concluded that surgery was not a reasonable treatment option for the symptoms of which she complained. The fact that Claimant already had undergone three failed surgeries with no significant pain relief was a strong contraindication as well.
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7. In contrast, given both Claimant’s medical history and the nature of her ongoing complaints, Dr. Magnadottir failed to explain adequately why a fourth surgery was justified.
8. I conclude that Claimant has failed to sustain her burden of proving that her May 2011 cervical surgery constituted reasonable medical treatment, such that Defendant should be obligated to pay for it. Therefore, her claim for workers’ compensation benefits must fail.
9. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for workers’ compensation benefits referable to her May 2011 cervical surgery is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of February 2013.
________________________
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.

William Boyd v. Kennametal Inc. (December 29, 2010

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William Boyd v. Kennametal Inc. (December 29, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
William Boyd Opinion No. 33S-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kennametal, Inc.
For: Valerie Rickert
Acting Commissioner
State File No. S-14574
RULING ON CLAIMANT’S MOTION FOR SUPPLEMENTAL ORDER FOR LUMP SUM PAYMENT
The Commissioner previously decided this claim on November 10, 2010. The opinion determined that Claimant was permanently and totally disabled, and ordered that permanent total disability benefits be paid in accordance with 21 V.S.A. §645 commencing on May 18, 2008 (with credit for any permanent partial disability benefits paid since that date).
Claimant now requests that the minimum amount payable under §645(a) – 330 weeks at the applicable compensation rate – be paid in a lump sum in accordance with 21 V.S.A. §652(b), and prorated in accordance with 21 V.S.A. §652(c). The purpose of the latter section is to protect a claimant’s ongoing entitlement to Social Security benefits by minimizing the offset that otherwise would occur were workers’ compensation permanency benefits not prorated over his or her life expectancy.
In keeping with §652(b), Workers’ Compensation Rule 19.3000 allows the commissioner to approve a claimant’s request for lump sum payment of permanent disability compensation “if it is in the best interests of the claimant.” The rule lists four “positive factors” to be considered in evaluating such a request:
19.3010 The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit;
19.3011 The lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment;
19.3012 The lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation;
19.3013 The claimant presents other evidence that the lump sum award is in their best interests.
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Workers’ Compensation Rule 19.5000 states that a lump sum payment shall not be approved if:
19.5010 The award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or
19.5011 The claimant is best served by receipt of periodic income benefits; or
19.5012 The payment is intended to pay everyday living expenses; or
19.5013 The lump sum payment is intended to pay past debts.
It is notable that while the language of Rule 19.5000 is mandatory, prohibiting a lump sum award if any of the four enumerated circumstances exist, the language of Rule 19.3000 is discretionary, in which the four enumerated circumstances are merely “positive factors” to be considered.
In support of his request here, Claimant asserts that since he began receiving permanency compensation his monthly Social Security Disability Income (SSDI) benefit has been reduced. Claimant’s SSDI benefit represents a regular source of household income under Rule 19.3010, and it is in his best interests to maximize his income from that source. On those grounds, I conclude that there is good reason to approve the payment of the first 330 weeks of Claimant’s permanent total disability award in a lump sum.1
I further conclude that there is no basis under Rule 19.5000 for rejecting Claimant’s request. Defendant has not appealed the formal hearing decision, and the appeal period has now run. Claimant is better served not by the receipt of periodic income benefits from workers’ compensation, but by the maximization of his income from Social Security Disability. Neither party asserts that the proposed lump sum is intended to pay either everyday expenses or past debts.
1 Having concluded that Claimant’s SSDI benefit constitutes a regular source of alternative household income sufficient to satisfy Rule 19.3010, there is no need to consider the factual issues Defendant has raised as to whether Claimant’s spouse is or is not regularly supplying additional household income so as to provide even further support for the request.
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ORDER:
Based on the foregoing, Defendant is hereby ORDERED as follows:
1. Defendant shall pay as a lump sum 330 weeks of permanent total disability benefits in accordance with 21 V.S.A. §645 commencing on May 18, 2008 (with credit for any permanent partial disability benefits paid to date);
2. The award of benefits in this case, totaling $239,085.41, is lump sum compensation for a permanent impairment that will affect Claimant for the rest of his life. Claimant’s remaining life expectancy, based on the National Vital Statistics Reports, Vol. 54, No. 14 (April 19, 2006), is 36.3 years, or 435.6 months. Therefore, even though paid in a lump sum, Claimant’s net benefit is $189,336.68 (after the Commissioner’s award of $13,363.50 for attorney fees and deduction of attorney fees of $63,112.23 from the total award), which shall be considered to be $434.66 per month beginning on May 18, 2008.
DATED at Montpelier, Vermont this 29th day of December 2010.
____________________
Valerie Rickert
Acting 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.

Dennis LaFarr v. Trapp Family Lodge (November 15, 2010)

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Dennis LaFarr v. Trapp Family Lodge (November 15, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dennis LaFarr Opinion No. 34-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Trapp Family Lodge
For: Valerie Rickert
Acting Commissioner
State File No. BB-52069
OPINION AND ORDER
Hearing held in Montpelier on July 14, 2010
Record closed on August 31, 2010
APPEARANCES:
Stephen Cusick, Esq., for Claimant
Jeffrey Spencer, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a compensable work-related injury on August 11, 2009?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit A: Social Security records
Joint Exhibit B: Medical records
Joint Exhibit C: Additional records from Dr. Sullivan
Defendant’s Exhibit 1: Dr. Adamo report and curriculum vitae
Defendant’s Exhibit 2: Transcribed telephone interview with Claimant, August 27, 2009
Defendant’s Exhibit 3: Letter to Julie Charonko and Stephen Cusick, November
9, 2009 (first page only)
Defendant’s Exhibit 4: Approved Form 22 (with supporting documents) relating to
Claim #U-16938
Defendant’s Exhibit 5: Dr. Backus report, February 3, 2005
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §§642 and/or 646
Medical benefits pursuant to 21 V.S.A. §640
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Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney’s 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 his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant began working as a housekeeper for Defendant in 2004. In 2007 he was promoted to a position as the leader of a housecleaning crew.
Claimant’s Prior Medical History
4. Claimant has an extensive prior medical history. He has suffered from chronic neck pain since a motor vehicle accident in 1974. In 1986 he was diagnosed with bipolar disorder, which is currently under good control with medication. Claimant also has a history of recurrent symptoms related to a painful, chronic condition in his left foot. He had contemplated surgery to remedy the condition in 2007, but decided against it due to the amount of time he would have had to take off work in order to recover.
5. Claimant also has a prior history of back pain. In 2004 he injured his mid- and lower back while working for a previous employer. As a result of this injury he missed some weeks from work and ultimately was paid permanency benefits in accordance with a 6% whole person impairment.
6. Following his 2004 injury Claimant continued to experience occasional back pain, sometimes attributable to specific activities such as lifting, sometimes not. Claimant treated for these episodes with Dr. Crowley, his primary care provider. For the most part, Dr. Crowley prescribed pain medications, both narcotic and non-narcotic. At times Dr. Crowley questioned the veracity of Claimant’s pain complaints, as they seemed excessive given the minimal findings documented on diagnostic imaging studies. Dr. Crowley also expressed uncertainty about whether Claimant’s bipolar disorder rendered him an unreliable historian. In the end, however, Dr. Crowley determined that Claimant’s requests for pain medications, though regular, were spaced sufficiently far apart that misuse was unlikely.
7. In 2001 Claimant was approved for Social Security Disability benefits on account of his bipolar disorder. To remain entitled to these benefits, Claimant was limited in the amount of wages he could earn. Defendant was aware of this limitation and accommodated Claimant accordingly.
8. In 2007 Claimant exceeded the allowable limit and his Social Security benefits were terminated. Claimant subsequently reapplied, listing not only his bipolar disorder but also his chronic neck, back and foot pain as limiting his ability to work. His claim for
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reinstatement was denied on the grounds that none of the conditions from which he suffered prevented him from working to the extent necessary to qualify for benefits.
Claimant’s August 11, 2009 Injury and Related Medical Treatment
9. On the afternoon of August 11, 2009 Claimant was leaning into an outdoor bathtub to clean it when he felt the acute onset of low back pain.1 His pain rapidly worsened, such that by the time he got home that evening he was barely able to walk. Claimant’s wife credibly confirmed that Claimant was slow to exit his vehicle when he arrived home and walked in a stooped posture.
10. Medical records verify that Claimant called Dr. Crowley’s office the next day, August 12, 2009, to report that he had hurt his back at work and could “hardly walk.” The office prescribed a muscle relaxant by telephone. On August 13, 2009 Claimant called back and reported that his symptoms had not abated and that he was unable to go to work. He was advised to increase his medications, and an office visit was scheduled for August 15, 2009.
11. Dr. Crowley was not available at the time of Claimant’s scheduled visit, so his associate, Dr. Sullivan, evaluated him instead. As a family practitioner, Dr. Sullivan is well versed in the evaluation and treatment of work-related low back injuries.
12. Dr. Sullivan reported that Claimant had hurt his back while cleaning an outdoor tub, an activity that involved “a lot of extending and scrubbing as well as his usual lifting of supplies and machines.” Dr. Sullivan observed that Claimant walked with an antalgic gait, exhibited significant spasm and experienced pain with both lateral rotation and straight leg raise. These are all objective physical findings indicative of a lower back injury.
13. Dr. Sullivan’s diagnosis was lumbo-sacral strain with significant spasm “caused by the lifting and extended position of cleaning at work.” In making this diagnosis, Dr. Sullivan specifically noted that Claimant’s current condition was “not necessarily related to his chronic back pain at all.” Dr. Sullivan did not review all of Claimant’s prior medical records, but found him to be a credible and consistent historian, particularly in distinguishing the acute nature of his current pain from his longstanding chronic back pain. Dr. Sullivan also testified that Claimant’s injury was consistent with his use of poor body mechanics when performing his work. I find this testimony credible in all respects.
14. As treatment for Claimant’s symptoms, Dr. Sullivan prescribed muscle relaxers, pain medications and rest. He determined that Claimant was disabled from working at least until the following week.
1 Defendant challenges the veracity of this account, citing to a prior recorded statement Claimant had given in which he asserted that he was bending and reaching from inside the tub, not outside, when his back pain arose. Notwithstanding this minor discrepancy, I find Claimant’s testimony to be credible and accept his version of the incident as both truthful and accurate.
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15. Claimant next treated with his regular physician, Dr. Crowley, on August 21, 2009. Claimant reported continuing pain, for which Dr. Crowley recommended physical therapy. Claimant diligently applied himself to this treatment, and overall experienced significant improvement in his low back pain, albeit with various activity-related fluctuations.
16. In October 2009 Claimant underwent surgery to remedy the chronic, painful condition in his left foot. Claimant had considered this surgery in 2007, see Finding of Fact No. 4 supra, but had not felt able to afford the necessary time out of work.
17. Claimant was totally disabled from working on account of his low back injury from August 12, 2009 through November 20, 2009. On that date Dr. Sullivan released him to return to work three days a week. Shortly thereafter Claimant notified Robyn Hark, Defendant’s human resources specialist, that he was available for part-time work. Ms. Hark advised that she would need a written release from Claimant’s doctor, which Claimant agreed to provide. He did not do so, however. Instead, Claimant secured a job elsewhere, though for reasons unrelated to his injury his employment was terminated on his first day. As of the formal hearing, Claimant remained unemployed.
18. Claimant last treated with Dr. Sullivan in April 2010. He had undergone a course of aquatic physical therapy, which offered temporary relief of his symptoms, but he continued to experience low back pain, particularly with prolonged standing, walking or lifting. Diagnostic imaging results were essentially normal, indicating that these ongoing symptoms most likely are mechanical or muscular. As treatment, Dr. Sullivan adjusted Claimant’s pain medications. He also anticipated referring Claimant to a work hardening program, though there is no evidence that that has yet occurred.
Defendant’s Denial
19. Defendant has denied Claimant’s claim for workers’ compensation benefits from the outset. Initially, it asserted that Claimant’s condition was related to his pre-existing chronic low back pain rather than to a work injury. Later it asserted that Claimant’s credibility was suspect.
20. Dr. Adamo, an occupational medicine specialist, testified in support of Defendant’s position. Dr. Adamo reviewed Claimant’s medical records but did not examine him.
21. Dr. Adamo diagnosed Claimant with degenerative joint disease and chronic low back pain, neither caused nor aggravated by any work-related injury. Dr. Adamo initially cited two factors in support of this opinion: first, the absence of objective physical findings in Dr. Sullivan’s August 15, 2009 examination, and second, questions concerning Claimant’s credibility. As to the latter, Dr. Adamo expressed his understanding that Claimant had not reported the August 11, 2009 injury to Defendant until more than two weeks later.
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22. In fact, however, Dr. Sullivan did note the presence of objective physical findings in his initial examination, see Finding of Fact No. 11 supra. And while Claimant did not file a claim for workers’ compensation benefits until some time after the injury, he did telephone his supervisor the next day to report that he had hurt himself at work.2
23. Defendant pointed to other evidence that in its view indicated that Claimant had ulterior motives for claiming a work-related injury and therefore was not credible. There was evidence that Claimant did not like his new supervisor because she was “mean” and worked him “too hard.” There was a notation in Dr. Crowley’s medical records that Claimant regretted ever having returned to work after being granted Social Security Disability benefits, that he was dissatisfied with his job even before his alleged work injury and that he later told Dr. Crowley that he did not intend to work again. There was the fact that during his period of temporary total disability Claimant underwent the foot surgery he previously had delayed because he could not afford the time off from work. As much as Defendant would like to make of this evidence, I find that it is insufficient to undermine Claimant’s account of the events of August 11, 2009 as he reported them to both his supervisor and to his medical providers and as he testified to them at hearing.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where, as here, there are conflicting medical opinions 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).
2 Rather than filing a claim for workers’ compensation benefits, initially Claimant sought, and was granted, vacation time. He hoped that his back pain would abate during his time off. When Ms. Hark learned that he had done so, she took the necessary steps to begin the workers’ compensation process.
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3. Applying this test to the facts of this claim, I conclude that Dr. Sullivan’s opinion is the most persuasive. Dr. Sullivan established a treating relationship with Claimant. Although he did not review all of Claimant’s prior medical records, he determined from his own personal observation that Claimant was a credible and consistent historian. He examined Claimant only days after the injury, and noted objective physical findings that supported the mechanism of injury as Claimant had described it.
4. In contrast, Dr. Adamo’s opinion was based largely on assumptions he made as to Claimant’s credibility. Dr. Adamo never personally examined Claimant and his opinion lacked objective support.
5. I conclude that Claimant has sustained his burden of proving that he injured his lower back while engaged in the course and scope of his employment for Defendant on August 11, 2009.
6. I further conclude that Claimant has established his entitlement to temporary total disability benefits from August 12, 2009 through November 20, 2009. He is entitled as well to coverage for all reasonable and necessary medical treatment causally related to his compensable injury. Claimant has not established his entitlement to any other workers’ compensation benefits, though upon further proof he may yet do so.
7. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $453.82 and attorney fees totaling $11,443.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
8. As for attorney fees, these lie within the Commissioner’s discretion. I find an award of fees to be appropriate here. However, Claimant’s claim for fees fails to account for the fact that the amendment to Workers’ Compensation Rule 10.0000, which raised the hourly rate at which attorney fees can be assessed, applies only to fees incurred after its effective date, June 15, 2010. With that in mind, and in accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his revised claim. Defendant shall have 15 days thereafter within which to respond.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from August 12, 2009 through November 20, 2009 pursuant to 21 V.S.A. §642, with interest calculated pursuant to 21 V.S.A. §664;
2. Medical costs associated with reasonable and necessary medical treatment of Claimant’s August 11, 2009 work injury, pursuant to 21 V.S.A. §640;
3. Such other workers’ compensation benefits causally related to his August 11, 2009 work injury as Claimant proves his entitlement; and
4. Costs of $453.82 and attorney fees to be determined in accordance with Conclusion of Law No. 8 above.
DATED at Montpelier, Vermont this 15th day of November 2010.
______________________
Valerie Rickert
Acting 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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