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David Auclair v. GW Savage Corp., Revera Inc. (April 29, 2011)

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David Auclair v. GW Savage Corp., Revera Inc. (April 29, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
David Auclair Opinion No. 09-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
G.W. Savage Corporation,
Revera, Inc. (Liberty Mutual Insurance For: Anne M. Noonan
Co.) and Revera, Inc. (ESIS, Inc.) Commissioner
State File Nos. P-16967/CC-209/BB-60688
OPINION AND ORDER
Hearing held in Montpelier, Vermont on January 26, 2011
Record closed on February 25, 2011
APPEARANCES:
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant G.W. Savage Corporation
James O’Sullivan, Esq., for Defendant Revera, Inc. (Liberty Mutual Insurance Co.)
Jason Ferreira, Esq., for Defendant Revera, Inc. (ESIS, Inc.)
ISSUES PRESENTED:
1. Are Claimant’s current right ankle symptoms and condition causally related to his February 2000 compensable work injury, such that Defendant G.W. Savage Corporation remains responsible for benefits?
2. Alternatively, if Claimant’s current right ankle symptoms and condition are causally related to his employment for Revera, Inc., which of the two insurers for that employer are responsible for benefits?
3. If Claimant’s current right ankle symptoms and condition are causally related to his employment for Revera, Inc., is his claim time barred pursuant to 21 V.S.A. §§656(a) and/or 660(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant Cincinnati Exhibit 1: Curriculum vitae, John Johansson, D.O.
Defendant ESIS Exhibit 1: Curriculum vitae, Leon Ensalada, M.D.
Defendant ESIS Exhibit 2: Letter from Michael Green, Esq., March 22, 2010
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Defendant ESIS Exhibit 3: Letter from Marnie Marrier, April 7, 2010
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendants were his employers 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 files relating to this claim.
Claimant’s February 2000 Injury and Initial Medical Course
3. On February 1, 2000 Claimant was employed as a roofer for Defendant G.W. Savage Corporation (“Savage”). On that date, Claimant was sweeping off an icy roof when he fell 8 to 10 feet to the ground, landing on his right ankle and leg. Claimant suffered a severe ankle injury, which included three fractured bones.
4. Defendant Savage accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
5. Claimant underwent surgery to repair his ankle fractures on the date of the injury. Thereafter he was followed by Dr. Kaplan, his treating orthopedic surgeon.
6. Following the surgery Claimant experienced ongoing pain, stiffness and decreased range of motion in his ankle. For support, he wore a lace-up ankle corset. Even with that, because he lacked dorsiflexion (the movement by which the toes are brought closer to the shin), he walked with his right foot pointed out so that his ankle would clear the ground. Extended standing or walking more than a block or two caused both pain and swelling. Stair climbing also exacerbated his symptoms.
7. In November 2000 Dr. Kaplan performed a second surgery. The goal was to decrease Claimant’s pain and increase his range of motion by extracting the screws that previously had been placed, removing inflamed tissue and manipulating the joint under anesthesia.
8. Unfortunately, even after the second surgery Claimant continued to experience pain, stiffness, swelling, decreased range of motion and occasional episodes of giving way in his ankle. Dr. Kaplan determined that it was fruitless to pursue further attempts to increase mobility, and decided instead to focus on maximizing Claimant’s ability to function. To that end, in January 2001 he prescribed a rigid AFO (ankle-foot orthosis) brace. The brace is permanently affixed to the sole of Claimant’s shoe, with metal rods extending up both sides of his lower leg and held in place mid-calf with a leather strap.
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Its purpose is to support the ankle and position the foot in such a way as to allow a more normal gait.
9. At Defendant Savage’s request, in March 2001 Claimant underwent an independent medical evaluation with Dr. White, an occupational medicine specialist. Dr. White reported that Claimant continued to experience constant pain in his right ankle and foot, that his ankle sometimes gave way, that he walked with a limp and that he wore an ankle brace.
10. Dr. White determined that Claimant had reached an end medical result, and rated him with a 15% whole person permanent impairment on the basis of his gait disturbance. In addition, given the severity of his ankle fractures Dr. White noted the “substantial possibility” that as time went on Claimant might develop post-traumatic arthritis.
11. Also in March 2001 Claimant completed a work hardening program and was determined to have a medium duty work capacity. His primary functional limitations were in the areas of walking, carrying and stair climbing. These limitations effectively precluded him from returning to work as a roofer.
12. With Dr. White’s end medical result determination as support, in April 2001 Defendant Savage terminated temporary disability benefits. Thereafter it paid permanency benefits in accordance with Dr. White’s 15% impairment rating.
Claimant’s Post-Injury Work and Subsequent Medical Course
13. From 2001 until 2004 Claimant worked as a truck driver for Merriam Graves, delivering oxygen tanks. He routinely worked more than 40 hours weekly. Driving the truck caused the pain in his ankle to increase, however, as the positioning required to depress the accelerator was problematic. Loading and pushing dollies also was difficult. Claimant left the job because of these issues.
14. From 2004 until 2006 Claimant worked as a Licensed Nursing Assistant (LNA) at Starr Farm Nursing Home, having studied for his certificate while still at Merriam Graves. The career change proved to be a much better fit for him. Not having to drive a truck eased the stress on his ankle. In addition, because he routinely worked evening and/or night shifts he found the work to be far less strenuous. Such shifts involve significantly more sitting than walking, in contrast to what typically is required during a day shift. Indeed, once the residents are fed, bathed and safely in bed, usually by 8 or 9 PM, the remainder of the night is spent completing chart notes, responding to calls and conducting quick rounds. Claimant estimated that he spent no more than 50 percent of an 8-hour evening shift on his feet, and only 2 to 2-1/2 hours on his feet during a night shift. As he described it, his primary responsibility on the latter shift was merely to sit at the nurse’s station and stay awake.
15. Claimant routinely worked overtime at Starr Farm, sometimes as much as 72 hours weekly. This was in keeping with his custom through the years. Growing up, he worked long hours on his family’s farm, and as noted above, he typically worked overtime while at Merriam Graves as well.
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16. In May 2006 Claimant left Starr Farm to take a similar job at Burlington Health & Rehabilitation Center (“BH&R”), owned by Defendant Revera, Inc. As he had at Starr Farm, Claimant worked either evening (3 to 11 PM) or night (11 PM to 6 AM) shifts, performing essentially the same functions. Also as he had previously, Claimant often worked overtime, sometimes combining evening and night shifts consecutively. Even though he logged many hours, Claimant credibly described the work as “pretty easy duty.” Most of his time was spent sitting down rather than standing or walking.
17. In addition to his LNA shifts, beginning in 2009 Claimant occasionally took on minor maintenance projects at BH&R as well, such as painting rooms and fixing wheelchairs. Claimant credibly described this work as not strenuous. Larger maintenance jobs were contracted out.
18. Claimant left BH&R in May 2010, for reasons unrelated to the current litigation. He continues to work as an LNA, but at another facility whose residents are somewhat more independent.
19. Between March 2001 and June 2007 Claimant treated for ankle pain only once. This was in April 2004, when he returned to Dr. Kaplan complaining of aching pain. X-rays documented only mild degenerative changes. As treatment, Dr. Kaplan prescribed Vioxx for pain relief. He also suggested that Claimant either lock up his AFO brace more stiffly so as to further decrease his ankle motion, or consider an ankle fusion “in the future.” Dr. Kaplan reported that Claimant did not yet feel ready for the latter option.
20. Claimant next sought treatment for ankle pain in June 2007. By this time he had been working as an LNA for approximately 3 years – the first two at Starr Farm and the most recent one at BH&R. Claimant reported to his physician’s assistant that while his ankle had always ached since the original injury, in the past month the pain had increased. There had been no new inciting event or injury.
21. Claimant was referred back to Dr. Kaplan for treatment. An MRI study showed evidence of degenerative changes, with irregular, thinned and depressed cartilage at the site of his prior fractures. Such findings are consistent with post-traumatic arthritis. Damaged cartilage rarely heals back to its pre-injury condition, which often results in a joint that is slightly misaligned. Even a minute misalignment will cause abnormal wear and tear on the joint.
22. Dr. Kaplan attempted to treat Claimant’s worsening symptoms with steroid injections, but these proved unsuccessful. The only remaining treatment options are arthroscopic surgery (to remove dense scar tissue) and if that fails, then surgical fusion.
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23. At the hearing, Claimant described his current symptoms and corresponding limitations. Although not specifically reflected in the medical records, his account of chronic ankle pain, restricted motion and occasional swelling, all gradually worsening since the original injury, was consistent and credible. Claimant has continued to wear his metal AFO brace throughout. At some point during his Starr Farm employment, he began wrapping his ankle with an Ace bandage at night, to reduce swelling. Within the past two years or so, he also has taken to wearing his lace-up ankle corset under his AFO brace, for added support. Claimant continues to refrain from many of the recreational activities he enjoyed prior to the February 2000 injury, including hiking, swimming, skiing and soccer coaching.
24. Claimant was adamant that his decision to seek renewed treatment in 2007 was not precipitated by any new incident or change in work conditions at his BH&R job. He testified that the reason he had not sought treatment earlier was because he understood that the only remaining option was fusion surgery, and that until he was ready to take this step, there was no point in returning to Dr. Kaplan. I find this testimony to be credible.
Medical Opinions as to Causation of Claimant’s Current Condition
(a) Dr. Kaplan
25. Although Dr. Kaplan did not testify at the hearing, his medical records reflect his very strong opinion that Claimant’s current condition, which is marked by significant scar tissue, damaged cartilage and degenerative changes in his ankle, is directly attributable to his original injury.
(b) Dr. Johansson
26. Defendant Savage’s medical expert, Dr. Johansson, stated a different opinion. Dr. Johansson is an osteopathic physician who is well experienced in treating occupational injuries involving the lower extremities. Dr. Johansson conducted an independent medical examination of Claimant in May 2008.
27. Dr. Johansson concluded that Claimant’s work activities at BH&R during the weeks leading up to his decision to seek treatment in June 2007 aggravated and accelerated the progression of osteoarthritis in his right ankle. As support for his opinion, Dr. Johansson relied on his experience regarding the pace at which arthritis typically develops, which he felt was much slower than what Claimant exhibited. To a reasonable degree of medical certainty, Dr. Johansson identified Claimant’s work at BH&R as the most likely cause for this acceleration.
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28. Dr. Johansson made a number of assumptions in reaching this conclusion. Most notably, he assumed that the overtime hours Claimant routinely worked involved significant time on his feet, which as Claimant credibly testified was not the case at all. Dr. Johansson identified these extra shifts as “the key” to his opinion, yet mistakenly assumed that at least some of them were more strenuous day shifts. When questioned on cross-examination, he acknowledged that his opinion was based primarily on what he understood to be “standard LNA work,” and that actually he knew none of the specifics of Claimant’s job duties. I find that these assumptions appreciably weaken Dr. Johansson’s causation opinion.
29. There were other gaps in Dr. Johansson’s knowledge as well. At the time he rendered his opinion, for example, Dr. Johansson was unaware that Claimant had been in the habit of working substantial overtime hours at least since 2001, long before he began working at BH&R. What he identified as a recent increase in work hours, therefore, actually had been Claimant’s norm for more than 6 years. I find that this gap as well significantly undermines the persuasiveness of Dr. Johansson’s opinion.
30. Dr. Johansson expressed no opinion as to whether Claimant’s work at BH&R after 2007 also might have contributed to his current condition and need for treatment. His conclusions as to causation, therefore, do not implicate Defendant ESIS, Inc. (“ESIS”) in any way, as it did not begin providing workers’ compensation insurance coverage for BH&R until March 1, 2008. Prior to that time, Defendant Liberty Mutual Insurance Co. (“Liberty”) provided coverage.
(c) Dr. Ensalada
31. Defendant ESIS’ medical expert, Dr. Ensalada, strenuously disagreed with Dr. Johansson’s analysis. Dr. Ensalada is board certified in both pain management and occupational medicine. He conducted an independent medical examination of Claimant in September 2010.
32. As Dr. Kaplan had, Dr. Ensalada concluded that Claimant’s current condition and need for treatment are directly attributable to his original injury, and have not been aggravated or accelerated in any way by his employment at BH&R.
33. Dr. Ensalada used a relatively simple analysis to reach this conclusion. As the medical records well document, Claimant suffered a severe right ankle injury when he fell from the roof in February 2000. With such a significant injury, it was entirely predictable that subsequently he would develop post-traumatic arthritis; indeed, Dr. White anticipated this as early as 2001. Claimant described a credible history of ongoing pain, range of motion deficits and functional limitations in the years since then. Over time, the natural progression of his post-traumatic arthritis led to worsening symptoms and now, the need for more invasive treatment, either arthroscopy or fusion.
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34. Dr. Ensalada disputed Dr. Johansson’s conclusion that Claimant’s arthritis progressed at a faster rate than would be expected had he not worked at BH&R. In Dr. Ensalada’s experience, 6 years is a not an unusual period of time for the condition to have worsened, even absent any external factors such as work.
Procedural Posture of Current Claim
35. Consistent with its statutory obligation, Defendant Savage continued to pay medical benefits for Claimant’s ongoing treatment even after Dr. White’s end medical result determination in 2001. It paid for Claimant’s return visit to Dr. Kaplan in 2004, and also for the various replacement braces Claimant required from time to time as his old ones wore out.
36. When Claimant resumed treatment in June 2007, however, Defendant Savage denied responsibility for the charges. It asserted that there was no medical evidence to connect the treatment back to the February 2000 injury.
37. Claimant appealed the denial in April 2008, through his attorney at the time. In response, in May 2008 Defendant Savage scheduled Dr. Johansson’s independent medical evaluation. As noted in Finding of Fact No. 27 supra, Dr. Johansson concluded that Claimant’s current symptoms were causally related to his employment for BH&R, and not to his February 2000 injury. With that opinion in mind, on July 18, 2008 the Department’s workers’ compensation specialist upheld Defendant Savage’s denial and directed Claimant’s attorney to file a Notice of Injury and Claim for Compensation (Form 5) against BH&R instead.
38. Believing that his condition was in no way related to his job duties at BH&R, Claimant declined to file a claim against it until March 22, 2010. On that date, Claimant’s current attorney notified BH&R’s human resources coordinator, Marnie Marrier, of Claimant’s claim for benefits.
39. Ms. Marrier testified that she was confused by the situation, as she was not aware that Claimant had suffered any injury while at BH&R. Her confusion was compounded by the fact that Claimant as well asserted that his condition was not causally related to his work there. Nevertheless, Ms. Marrier completed a First Report of Injury and forwarded it to Defendant ESIS for review. As noted above, see Finding of Fact No. 30 supra, Defendant ESIS has provided coverage for BH&R since March 1, 2008.
40. Defendant ESIS denied Claimant’s claim for benefits on the grounds that (a) Claimant’s symptoms were causally related to his original injury in 2000; (b) there had been no aggravation causally related to his BH&R employment in 2007; (c) even if an aggravation had occurred, Defendant ESIS was not on the risk at that time; and (d) any aggravation claim was barred by the applicable notice requirement and/or statute of limitations. Claimant appealed this denial in June 2010.
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41. In July 2010 Defendant Liberty was put on notice of Claimant’s claim. Defendant Liberty provided workers’ compensation insurance coverage for BH&R from the time of Claimant’s hiring in May 2006 through February 29, 2008. It thus was on the risk at the time of Claimant’s alleged 2007 aggravation.
42. Defendant Liberty denied Claimant’s claim in August 2010, on the grounds that there was insufficient evidence to establish that his LNA duties at BH&R had aggravated his previous injury. Claimant seasonably appealed this denial as well.
CONCLUSIONS OF LAW:
1. This is an aggravation-versus-recurrence dispute. Defendant Savage asserts that Claimant’s work at BH&R in the weeks prior to June 2007 aggravated and accelerated the post-traumatic arthritis in his right ankle, such that the disease progressed at a faster rate than it would have otherwise. On those grounds, it argues, the responsibility for treating Claimant’s current condition now rests with one or the other of BH&R’s workers’ compensation insurers.
2. Defendants Liberty and ESIS disagree with this analysis. They argue that Claimant’s current condition is directly attributable to his original injury, and has not been aggravated or accelerated in any way by his subsequent employment.
3. Vermont’s workers’ compensation rules define an aggravation as “an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events.” Workers’ Compensation Rule 2.1110. A recurrence is defined as “the return of symptoms following a temporary remission.” Workers’ Compensation Rule 2.1312.
4. In Trask v. Richburg Builders, Opinion No. 51-98WC (August 25, 1998), the Commissioner identified five factors that typically will support a finding of aggravation, thus severing the causal connection back to an earlier injury:
(1) Whether there has been a subsequent incident or work condition which destabilized a previously stable condition;
(2) Whether the claimant had stopped treating medically;
(3) Whether the claimant had successfully returned to work;
(4) Whether the claimant had reached an end medical result; and
(5) Whether the subsequent incident or work condition contributed independently to the final disability.
In accordance with the Vermont Supreme Court’s holding in Pacher v. Fairdale Farms, 166 Vt. 626 (1997), the fifth factor – whether the subsequent incident or work condition contributed independently to cause the final disability – is accorded the greatest weight. Id.
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5. Applying these factors here, there is no question that (a) Claimant had stopped treating medically for some years after his original injury and prior to June 2007; (b) he had long since successfully returned to work; and (c) he previously had reached an end medical result.
6. That Claimant did not suffer any specific new injury, incident or inciting event while working at BH&R also is undisputed. The disputed question, therefore, is whether Claimant’s work conditions at BH&R, particularly the extent of his overtime hours, either (a) destabilized a previously stable condition; and/or (b) contributed independently to his current disability and need for treatment.
7. Both employers presented expert medical testimony on this question, Dr. Johansson on behalf of Defendant Savage and Dr. Ensalada on behalf of Defendants Liberty and ESIS. 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).
8. Dr. Johansson identified extra work shifts and overtime hours as the “key” to his conclusion that Claimant’s employment at BH&R had aggravated and accelerated the arthritis in his ankle. At the same time, however, he failed to consider the specifics of Claimant’s shift work – how much time he spent standing and walking as opposed to sitting, or how strenuous the work was, for example. Instead he made assumptions as to what “standard LNA work” entailed and then used those as the basis for his opinion. Dr. Johansson demonstrated a similar lack of familiarity with Claimant’s work history, particularly the extent to which his overtime hours in the weeks leading up to June 2007 differed – or not – from the amount of overtime he had worked for the many years previous to that time period.
9. When considering a progressively degenerative disease in the context of an aggravation-versus-recurrence dispute, one “where ‘the disease, if left to itself, and apart from any injury, would, in time, have inevitably caused a complete disability,’ the causation test becomes whether, due to a work injury or the work environment, ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard v. Stannard Co, Inc., 175 Vt. 549, 552 (2003), quoting Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989).
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10. Given the deficiencies in Dr. Johansson’s understanding of the specific facts relative to Claimant’s work for BH&R during the time period in question, I cannot conclude that his post-traumatic arthritis progressed any faster than it would have had he not been employed there. The fact that Claimant’s symptoms worsened during his tenure at that job establishes nothing more than a temporal relationship, not a causative one. S.D. v. State of Vermont, Economic Services Division, Opinion No. 35-09WC (September 2, 2009). Dr. Johansson’s aggravation opinion is based on speculation alone, with no objective corroboration. For that reason, I find it to be unpersuasive.
11. In contrast, Dr. Ensalada’s causation analysis was based not only on Claimant’s credible history of how his symptoms had progressed through the years, but also on a comprehensive understanding of Claimant’s specific job duties at BH&R. His opinion was clear, thorough, straightforward and convincing. For these reasons, I accept it as the most persuasive.
12. I conclude that Claimant’s current condition is the result of progressively worsening post-traumatic arthritis, directly attributable to his original February 2000 work injury, and not aggravated or accelerated in any way by his employment at BH&R. Defendant Savage remains responsible for whatever medical treatment is determined to be reasonable and necessary as a consequence of that injury.
13. Having determined that Claimant’s employment at BH&R has played no role in his worsened condition, there is no need to consider Defendant ESIS’ notice and/or statute of limitations defense.
14. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $1,124.98 and attorney fees totaling $7,011.00.1 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.
1 Of the hourly charges submitted, 2.5 were incurred prior to June 15, 2010, the effective date of amended Workers’ Compensation Rule 10.1210. Those charges are limited to the maximum rate in effect at the time they were incurred, or $90.00 per hour. Charges incurred after June 15, 2010 are subject to the amended rate, $145.00 per hour. Erickson v. Kennedy Brothers, Inc., Opinion No. 36A-10WC (March 25, 2011).
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ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Defendant Savage is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his right ankle condition since June 2007; and
2. Costs totaling $1,124.98 and attorney fees totaling $7,011.00.
DATED at Montpelier, Vermont this 29th day of April 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.

Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , , Author:

Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arthur Saffold Opinion No. 15-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Palmieri Roofing, Inc. For: Anne M. Noonan
Commissioner
State File No. H-22526
OPINION AND ORDER
ATTORNEYS:
David Williams, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s lumbar spine condition since 2006 compensable as a direct and natural consequence of his September 1994 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical summary
Claimant’s Exhibit 1: Workers’ Compensation Rule 14.9240
Claimant’s Exhibit 2: Operative procedure, November 30, 1994
Claimant’s Exhibit 3: Operative report, June 30, 2006
Claimant’s Exhibit 4: Dr. McLellan office note, July 3, 2008
Claimant’s Exhibit 5: Letter from Dr. Ross, December 15, 2008
Claimant’s Exhibit 6: Letter from Dr. Ross, February 19, 2010
Defendant’s Exhibit A: Medical records reviewed by Dr. Ross
Defendant’s Exhibit B: Radiology report, March 17, 1997
Defendant’s Exhibit C: Curriculum vitae, Victor Gennaro, D.O.
CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his lumbar spine condition since 2006
Costs and attorney fees pursuant to 21 V.S.A. §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 1994 Injury and Subsequent Treatment
3. Claimant worked for Defendant as a general laborer and roofer. On September 30, 1994 he injured his back while carrying a heavy roll of roofing paper.
4. Claimant presented to Littleton Orthopaedics on November 8, 1994 with complaints of low back and right-sided radicular pain. A subsequent myelogram revealed findings suggestive of an L4-5 disc herniation.1 On November 30, 1994 Claimant underwent a laminectomy and discectomy at that level.
5. Initially Claimant recovered well from the November 1994 surgery. His low back pain lessened significantly, and the pain, numbness and tingling in his right lower extremity abated as well.
6. Claimant underwent physical therapy in early 1995, during which he made steady progress but continued to complain occasionally of numbness in his thigh and/or foot. His therapy was interrupted for a time after he suffered a heart attack in March 1995. After his recovery from that event, Claimant continued to experience some residual low back pain, as well as radicular symptoms into his right lower extremity.
7. In December 1996 Claimant’s treating physician, Dr. Howard, determined that he had reached an end medical result and rated him with a 20% whole person permanent impairment. Even at that time, Claimant continued to experience symptoms in his low back and right leg, particularly with prolonged standing or sitting. Claimant also complained of ongoing weakness, numbness and tingling from his right leg down into his foot.
8. At Defendant’s request, in February 1997 Claimant underwent an independent medical examination with Dr. Jennings, who rated his permanent impairment at 10% whole person. Subsequently, the parties executed an Agreement for Permanent Partial Disability Compensation (Form 22) that reflected a compromise of the two impairment ratings, which the Department approved in July 1997.
1 Claimant has six lumbar vertebrae, which can lead to some confusion when counting disc levels. Early radiological studies and operative reports referred to the lowest (most inferior) lumbar disc level as L5-6; this corresponds to what later is referred to as the L4-5 level.
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9. Despite having reached an end medical result, Claimant continued to experience both low back pain and radicular symptoms down his right leg. For the most part, for the nine-year period between early 1997 and April 2006 he opted not to seek medical treatment for these symptoms. While always somewhat problematic, furthermore, they did not preclude him from working.
10. Claimant held a variety of jobs during this time, though none after March 2004. From July 1996 until some time in 1997 he worked at Hitchener’s, a golf club manufacturing company. For approximately two years thereafter, he owned and operated a small coffee shop; that business closed in 2000. From 2001 until 2004 he worked as a lathe operator at NSA Industries.
11. Following triple-bypass surgery in September 2001, Claimant was disabled from working at NSA Industries for six months. Upon returning to work he continued to experience cardiac symptoms. As a result, in March 2004 his doctors again advised him to stop working, which he did.
12. There is no credible evidence that Claimant’s work activities from 1997 through 2004 either caused or aggravated his low back pain or radicular symptoms.
13. In addition to his cardiac condition, which has required fairly constant medical vigilance since 2001, in 2004 Claimant also began experiencing pain in his upper extremities. These were diagnosed as repetitive stress injuries, arguably related to his employment at NSA, and for which he underwent multiple surgeries in 2005. Claimant testified that during the periods when these other medical conditions were requiring active treatment, his low back and leg pain “took a back seat.” I find this testimony credible.
14. Claimant has not worked since March 2004. He has been receiving social security disability benefits since that time, primarily due to his cardiac condition.
Claimant’s 2006 Surgery
15. In April 2006 Claimant experienced the spontaneous onset of low back pain with radicular symptoms down his right leg. Contemporaneous medical records reflect that Claimant was “simply walking along” when he felt a “spasm” in his back, followed by worsening pain, tingling, numbness and weakness down his right lower extremity. The symptoms were exactly the same as those he had experienced prior to his 1994 surgery.
16. Claimant testified that although he had never been symptom-free since his original injury in 1994, the pain he felt in April 2006 was significantly worse. Contemporaneous medical records corroborate this testimony, which I find credible.
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17. A May 2006 MRI revealed a right-sided disc herniation at L4-5, the same level as had been operated on in 1994. There also was evidence of scar tissue at the site. Upon reviewing the MRI, Dr. Sengupta, the orthopedic surgeon to whom Claimant had been referred, observed that the disc herniation “appears to be moderate in size, but it appears that because of the scar tissue around the right L5 nerve root it is producing significant symptoms on the right leg.”
18. As treatment for Claimant’s symptoms, Dr. Sengupta recommended a repeat L4-5 discectomy, which Claimant underwent on June 29, 2006. In his operative findings, Dr. Sengupta reported “scar tissue identified from prior surgery.” Dr. Sengupta removed some of this scar tissue in order to better release the nerve root.
19. The medical records reflect that after the June 2006 surgery Claimant initially experienced good relief of his symptoms, but by the following year his radicular complaints had returned. A June 2007 MRI study showed disc degeneration at both L4-5 and L5-S1, but no evidence of disc herniation at either level. In addition, once again there was significant scar tissue around the L5 nerve root.
20. Claimant’s symptoms still persist. Having failed to realize significant relief from two prior surgeries, it is unlikely that a third surgery will prove successful.
Expert Medical Opinions
(a) Dr. Gennaro
21. At Defendant’s request, in October 2006 Claimant underwent an independent medical examination with Dr. Gennaro, an orthopedic surgeon. In addition to personally examining Claimant and taking his history, Dr. Gennaro also reviewed Claimant’s entire medical record and his deposition testimony as well. The question put to him was whether Claimant’s June 2006 surgery represented a recurrence causally related to his 1994 work injury and subsequent disc surgery or alternatively, whether it reflected an unrelated aggravation or new injury.
22. Dr. Gennaro concluded that Claimant’s 2006 surgery reflected neither an aggravation nor a recurrence. As Claimant had not identified any specific work or other activity that might have provoked a disc herniation, Dr. Gennaro discarded the possibility of an aggravation or new injury. Given the number of years that had passed since Claimant’s original surgery, furthermore, Dr. Gennaro deemed it unlikely that the 2006 surgery would have been caused by a recurrent disc herniation, as those typically occur within a relatively short period of time (6 to 36 months) after the original injury and surgery.2
2 Dr. Gennaro acknowledged his use of the term “recurrent disc herniation” referred to its medical definition – a reherniation of disc material at the same level and the same side as previously. As discussed infra, Conclusion of Law No. 5, the term “recurrence” as defined in Workers’ Compensation Rule 2.1312 has a somewhat different legal meaning.
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23. Having discarded both aggravation and recurrence as likely causes, Dr. Gennaro concluded that the symptoms Claimant began experiencing in 2006 most likely represented the manifestation of longstanding chronic degenerative disc disease in his lumbar spine. The natural progression of this disease is evidenced not only by worsening degeneration at the L4-5 disc level (the site of Claimant’s 1994 surgery), but also at other levels as well.
24. Degenerative disc disease is an evolving process. As a disc begins to degenerate, the jelly-like central portion, or nucleus pulposus, becomes less elastic and begins to flatten out. This causes the harder exterior covering, or annulus, to bulge. As the process continues, the annulus may weaken and crack, allowing disc material to herniate through the opening.
25. When a disc herniates, enzymes are released, which irritate the nerve root. This chemical irritation is the primary cause of most nerve root, or radicular, symptoms. Once irritated, the nerve root becomes inflamed and is less able to tolerate a smaller space within the spinal canal. Scar tissue from a previous surgery can make this small space even smaller, but does not itself cause the nerve root to become irritated or inflamed.
26. It is quite typical for patients with degenerative disc disease to experience episodic flare-ups and remissions. According to studies cited by Dr. Gennaro, furthermore, disc surgery does not alter the natural progression of the condition. That is, over the long term patients who have undergone disc surgery are just as likely to experience recurrent symptoms as those who have not had surgery. The presence or absence of scar tissue from a prior surgery appears not to be a relevant factor, therefore.3
27. To summarize, Dr. Gennaro concluded that Claimant’s condition since 2006 has been the consequence solely of “aging and time.” Notwithstanding some residual symptoms over the years, his 1994 surgery was successful – his condition markedly improved from its pre-surgery state, and then stabilized to the point where he was able to return to work and resume normal activities for many years thereafter. The degenerative disease in his spine continued to progress naturally, however, until worsening symptoms attributable entirely to that condition led to repeat surgery in 2006.
(b) Dr. McLellan
28. At Dr. Sengupta’s referral, in July 2008 Claimant underwent an evaluation with Dr. McLellan, a physician at Dartmouth Hitchcock Medical Center. Upon reviewing Claimant’s June 2007 MRI Dr. McLellan remarked that it revealed evidence of a disc herniation and post-operative changes at L4-5, and also “considerable scar tissue around [the] right L5 nerve root.”
3 Claimant correctly notes that one of the studies cited by Dr. Gennaro, published by Drs. Cinotti and Roysam in 1998, may have limited applicability to patients whose symptoms recurred as shortly after surgery as Claimant’s did. Dr. Gennaro cited additional studies as well, but these were not made available for the hearing officer’s review.
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29. Absent a more comprehensive review of Claimant’s medical records, Dr. McLellan declined to issue a final opinion as to the causal relationship, if any, between Claimant’s 1994 surgery and the symptoms that led to his 2006 surgery. Speaking “in a more generic way,” however, Dr. McLellan stated:
[Claimant] clearly had a disc herniation back in 1994. Individuals who have had disc herniations are at high risk of recurrence. In the absence of an intervening injury, recurrent symptoms on the same side at the same level are more probably than not related to the original injury. Given insidious onset of [symptoms] in the same dermatomal pattern as before and given the MRI results, the current radicular symptoms are also more probably than not related to the original injury.
30. Dr. McLellan did not conduct any further review of Claimant’s medical records, did not issue a final opinion specific to Claimant’s case and did not testify at the formal hearing. I find it difficult, therefore, to accord much weight to his generic statement as to the cause of Claimant’s recurrent symptoms.
(c) Dr. Ross
31. At the request of Claimant’s attorney, Dr. Ross, an orthopedic surgeon, conducted a medical records review in December 2008. Although his initial report was somewhat confusing, ultimately Dr. Ross concluded that Claimant’s 2006 disc herniation, subsequent surgery and current condition most likely were causally related to his 1994 injury and surgery. Dr. Ross testified to this effect at the formal hearing.
32. From his review of a select portion of Claimant’s medical records, Dr. Ross gleaned that Claimant never fully recovered from the 1994 surgery, that his pain began to recur within a matter of weeks, and that his clinical course for years thereafter was punctuated by frequent exacerbations and only temporary remissions. From this, Dr. Ross concluded that the 1994 surgery had been unsuccessful. Thus, he would have advocated for repeat surgery to more fully relieve the L5 nerve root compression much sooner, certainly well before 2006.
33. From his review of Dr. Sengupta’s surgical findings in 2006, Dr. Ross concluded that the scar tissue that resulted from Claimant’s 1994 surgery was itself compressing his L5 nerve root. To a reasonable degree of medical certainty, therefore, in his opinion the 1994 surgery was a “major factor” in causing the symptoms for which Claimant underwent surgery in 2006.
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34. Dr. Ross acknowledged that there was no radiological evidence that Claimant’s 1994 surgery had failed to decompress his L5 nerve root adequately. Rather, his conclusion in this regard was based on his understanding of Claimant’s clinical presentation in the weeks, months and years thereafter. Dr. Ross never reviewed Claimant’s entire medical record, however, which is voluminous, nor did he ever interview Claimant personally or read his deposition. Given these omissions, it is difficult to understand how Dr. Ross was able to appreciate Claimant’s clinical course and pattern of recurrent symptoms accurately. I find that his conclusions are rendered less credible as a result.
35. Dr. Ross disagreed with Dr. Gennaro’s assertion that a patient who has undergone prior disc surgery is no more likely to suffer a recurrent herniation than one who hasn’t. According to Dr. Ross, both because a prior surgery is likely to cause scar tissue to form and because an annulus that has torn once is more likely to tear again, recurrent symptoms are more prevalent in the surgical population.
36. Dr. Ross also disagreed with Dr. Gennaro as to the expected progression of Claimant’s degenerative disc disease. In his opinion, there was no basis from which to conclude that the natural history of Claimant’s disc degeneration would have caused his symptoms to recur in 2006 had the 1994 surgery not predisposed him to further deterioration. At the same time, however, Dr. Ross admitted that he had no specific knowledge or opinion as to whether Claimant’s 1994 surgery actually accelerated the progression of his degenerative disc disease in any way.
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. The disputed issue in this claim is one of causation. Claimant asserts that his condition since 2006 represents a recurrence of symptoms causally related to his compensable 1994 injury and subsequent surgery. Defendant asserts that Claimant’s condition has resulted from the natural progression of his degenerative disc disease, and that his symptoms are not causally related at all to his 1994 injury and surgery.
3. When a primary injury is determined to be compensable, all of the medical consequences and sequelae that flow from it are deemed compensable as well. 1 Larson’s Workers’ Compensation Law §10.01 at p. 10-3 (Matthew Bender, Rev. Ed.). Thus, once the work-connected character of an injury or condition has been established, its subsequent progression remains compensable, so long as the worsening is not shown to have been produced by an independent nonindustrial cause. Id., §10.02 at p. 10-3.
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4. For the purposes of determining workers’ compensation liability, it is critical to distinguish between a condition that has worsened as a direct and natural result of a compensable primary injury and one that has worsened independently from any work-related event. In the first instance, the causal link back to the primary injury remains intact, and the employer on the risk at the time remains responsible for whatever treatment and/or disability results from the worsening. See, e.g., Jackson v. True Temper Corp., 151 Vt. 592 (1989). In the second instance, the causal link is severed, and the employer is no longer liable. See 1 Larson’s Workers’ Compensation Law, supra at §10.02D, n.9 and cases cited therein.
5. Both parties here have framed their arguments at least partially as a dispute as to whether Claimant’s 2006 surgery and current condition should be characterized as a “recurrence.” Workers’ Compensation Rule 2.1312 defines a recurrence as “the return of symptoms following a temporary remission.” This term most often is distinguished from an “aggravation,” which Rule 2.1110 defines as “an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events.”
6. I do not consider the issue presented by this claim as one involving either a recurrence or an aggravation. Although Claimant credibly testified that he suffered from residual symptoms continuously from the time of his 1994 surgery forward, he also testified that they did not worsen to the point of requiring medical treatment until 2006. I cannot characterize these facts as a “return” of symptoms following a “temporary” remission.
7. Nor can I characterize Claimant’s worsening symptoms in 2006 as the type of intervening “event” that would trigger an aggravation analysis. The more appropriate question, therefore, is simply to determine whether Claimant’s condition since 2006 has flowed directly from his compensable 1994 injury, or whether it has resulted from some entirely independent cause. See Pacher v. Fairdale Farms, 166 Vt. 626, 628 (1997) (finding of new injury, distinct from prior injury, does not have to be either aggravation or recurrence).
8. Each party here presented its own expert testimony on this issue. Dr. Ross concluded that scar tissue from Claimant’s 1994 surgery was a “major factor” in causing the symptoms for which he underwent surgery in 2006, and from which he continues to suffer currently. Dr. Gennaro concluded that the 1994 surgery was irrelevant to the process, and that Claimant’s degenerative disc disease worsened independently to the point where the 2006 surgery became necessary.
9. 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).
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10. The first factor does not favor either expert, as neither was a treating provider. The fifth factor is also neutral, as both experts are well-qualified to render opinions on the causation issue presented here.
11. The second and fourth factors favor Dr. Gennaro. He reviewed Claimant’s entire medical record, read his deposition and most importantly, interviewed Claimant personally as to the history of his injury and the progression of his symptoms from 1994 forward. In contrast, Dr. Ross reviewed only a portion of Claimant’s medical record. From this he determined that Claimant’s 1994 surgery had failed completely, that he never fully recovered and that his symptoms were almost as troublesome in the years thereafter as they became in 2006. From the records Dr. Ross reviewed, I cannot discern how he could have reached these conclusions.
12. The third factor weighs in Dr. Gennaro’s favor as well. His opinion was clear, thorough and objectively supported. It adequately accounted for the presence of disc degeneration at other levels in Claimant’s lumbar spine at the same time that it discounted scar tissue as a contributing factor. The fact that Dr. Gennaro’s conclusions were consistent with findings reported in the medical literature, while by no means determinative, also lends support to his opinion. See, e.g., Kurant v. Sugarbush Soaring Association, Inc., Opinion No. 17-10WC (May 4, 2010).
13. I conclude that Dr. Gennaro’s opinion was more persuasive than Dr. Ross’. I also conclude, therefore, that Claimant has failed to establish the required causal link back to his compensable 1994 injury so as to render either his 2006 surgery or his current condition compensable. Claimant’s current condition is not the direct and natural result of his compensable primary injury. It is the result of degenerative disc disease, which has progressed independently from any work-related injury or sequelae of treatment.
14. Claimant having failed to prevail on his claim, he is not entitled to an award of costs or attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his 2006 surgery and subsequent condition is hereby DENIED.
DATED at Montpelier, Vermont this 21st day of June 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.

Gregory Bower v. Mount Mansfield (January 18, 2012)

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Gregory Bower v. Mount Mansfield (January 18, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gregory Bower Opinion No. 03-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Mount Mansfield For: Anne M. Noonan
Commissioner
State File No. BB-57124
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 9, 2011
Record closed on December 9, 2011
APPEARANCES:
Steven Robinson, Esq., for Claimant
Marion Ferguson, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant responsible for the surgical repair of Claimant’s anterior cruciate ligament tear as a natural and direct consequence of Claimant’s December 2009 work injury, or does the October 2010 apple-picking incident qualify as an independent intervening event sufficient to break the causal link back to that injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Huber’s November 8, 2011 deposition (with attached exhibits)
Claimant’s Exhibit 2: Letter to Dr. Wieneke, October 12, 2011
Defendant’s Exhibit A: Dr. Wieneke curriculum vitae
Defendant’s Exhibit B: Dr. Wieneke report, October 25, 2011
CLAIM:
Medical benefits pursuant to 21 V.S.A. § 640
Costs and attorney fees pursuant to 21 V.S.A. § 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 worked as a volunteer ski host at Defendant’s various mountain slopes. His responsibilities included helping skiers define where they wanted to ski. Claimant was an expert skier and knew Defendant’s slopes well. He was otherwise unemployed.
4. On December 30, 2009 Claimant caught a ski tip while skiing in the course of his host duties. He rotated around the ski and fell backwards down the mountain. After coming to a stop, he took five minutes to compose himself before attempting to get up. When he did so he was unable to bear any weight on his left leg. Claimant skied down to the bottom of the mountain using only his right leg.
5. Claimant experienced significant swelling in his left knee to the point where he could not bend it. Defendant accepted this injury as compensable and paid medical benefits accordingly.
Treatment for the Accepted Ski Injury
6. After waiting a few days to allow the swelling in his knee to subside, Claimant sought treatment at Stowe Urgent Care. He was examined for a possible anterior cruciate ligament (ACL) injury, but both anterior drawer and Lachman’s tests were negative. These are the two most sensitive tests for detecting an ACL injury, but they are far less accurate in the early stages of a knee injury, when the patient is likely to be experiencing increased swelling, pain and guarding. Claimant was diagnosed with a knee sprain and released to return to work with restrictions.
7. Claimant followed up with Stowe Urgent Care on January 11, 2010. By then his knee felt better, but was still slightly unstable. As a protective measure, the physician advised him to wear a knee brace for stability. As before, he was released to return to work with restrictions.
8. Claimant next treated with Pierre Delfausse, a physician’s assistant, on February 2, 2010. He complained of continuing discomfort in the left knee, reported that he did not completely trust it and that he was limiting his activities accordingly. Upon examination, Mr. Delfausse noted mild looseness in the left leg compared to the right and also that the left ACL was not attached solidly. Neither the anterior drawer nor Lachman’s tests produced positive results, though Claimant was not relaxed during the exam and therefore these findings likely were affected by pain and guarding.
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9. From March to the end of the ski season, Claimant performed some hosting duties for Defendant, but when he did so he wore both a knee brace and four ace bandages on his left knee. He could only ski five runs per day, whereas before he could ski twenty runs. Claimant’s activity level after the ski season ended was similarly diminished. He played tennis only three times, and could not play golf at all. Both of these activities involve twisting and torque to the knee, a motion that he was unable to manage. Claimant was able to swim, perform landscaping work around his four-acre home, and chop and stack wood.
10. Claimant did not seek any treatment for his knee between February and September 2010. On September 16, 2010 he sought treatment at Stowe Urgent Care for a respiratory ailment. While he was there, he remarked to Mr. Delfausse that his left knee “was just not right.” Upon reexamining the knee Mr. Delfausse noted both positive anterior drawer and positive Lachman’s test findings. As treatment, he recommended physical therapy. From the evidence submitted it is unclear whether Claimant took any steps to pursue this recommendation.
The Apple-Picking Incident
11. On October 6, 2010 Claimant took his family to a private apple orchard across the street from his house. He reached up for an apple and could just barely touch the bottom of it. He then hopped approximately one to two inches straight up to pick the apple. When he landed, his left leg gave out beneath him, he felt excruciating pain and he crumpled to the ground.
12. Claimant sought treatment with Mr. Delfausse on that same day. Of note, Mr. Delfausse reported that Claimant heard a “pop” in his knee when he jumped for the apple, an observation that Claimant strenuously and credibly denied at formal hearing. In any event, as he had in mid-September Mr. Delfausse noted positive findings in his clinical exam on both anterior drawer and Lachman’s tests. He ordered an MRI of Claimant’s left knee and referred him to Dr. Huber, an orthopedic surgeon.
13. Claimant next treated with Leah Hartenstein, Dr. Huber’s physician’s assistant, on November 2, 2010. Ms. Hartenstein reported increased laxity in Claimant’s knee, as evidenced by positive findings with both the anterior drawer and Lachman’s tests. Subsequent diagnostic testing, both MRI and x-ray, revealed a full thickness ACL tear, and a medial meniscus tear as well. In consultation with Dr. Huber, Claimant elected to undergo surgical repair. Surgery was scheduled, but then cancelled when Defendant advised that it would not voluntarily pay. Claimant has yet to undergo the procedure.
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Expert Medical Opinions
14. Both parties presented expert medical testimony regarding the causal relationship between Claimant’s ACL injury and either his December 2009 fall while skiing or the October 2010 apple-picking incident. Dr. Huber concluded that more likely than not the December 2009 fall while skiing caused Claimant’s ACL injury. Dr. Wieneke concluded that more likely than not the October 2010 apple-picking incident was the cause.
(a) Dr. Huber
15. Dr. Huber is a board certified orthopedic surgeon. His practice focuses on the full spectrum of knee issues. He performs 20 to 25 knee surgeries per month. Given his clinic’s proximity to a major ski resort, he sees knee injuries every day.
16. Dr. Huber testified credibly in his deposition, to a very high degree of medical certainty, that Claimant’s December 2009 skiing mishap was the cause of his injured ACL. Dr. Huber based his opinion on the following facts:
• Although Claimant initially was not diagnosed with an ACL tear immediately after his skiing-related fall, this does not mean that one had not occurred. Due to significant patient guarding, pain and swelling, it can take several weeks to a couple of months to diagnose a torn ACL. The fact that in January 2010 the treating physician recommended that Claimant wear a brace to stabilize his knee is an indication that Claimant’s knee was unstable even at that early stage.
• On two occasions prior to the apple-picking incident, Mr. Delfausse reported signs indicative of an ACL injury – looseness and laxity on February 2, 2010 and positive anterior drawer and Lachman’s tests on September 16, 2010.
• Claimant never felt his knee was stable after his December 2009 fall, and as a result significantly curtailed his activities thereafter.
• Claimant’s skiing mishap was such that it generated a significant amount of force, of a type that can cause an ACL to tear. In contrast, the apple-picking incident likely did not generate sufficient force, in either type or degree, to cause an ACL tear.
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17. According to Dr. Huber, even if Claimant’s ACL was not actually torn as a result of his fall while skiing, it clearly was injured to the point that it was unstable. It thus prohibited Claimant from engaging in many of the activities he enjoyed, including golf, tennis and aggressive skiing, because he was unable to manage the required cutting, twisting or torque movements. Surgical reconstruction is the treatment most likely to remedy the knee’s deficient function in this respect. In Dr. Huber’s view, therefore, whether the December 2009 fall actually caused an ACL tear or not, clearly it caused sufficient instability to require surgical repair in a patient with Claimant’s active lifestyle. I find Dr. Huber’s reasoning in this regard to be credible.
(b) Dr. Wieneke
18. Dr. Wieneke is a board certified orthopedic surgeon. His practice currently is limited to performing independent medical examinations. At Defendant’s request, Dr. Wieneke performed a medical records review.
19. Dr. Wieneke concluded, to a reasonable degree of medical certainty, that Claimant’s need for surgical repair of his ACL tear stems from the October 2010 apple-picking incident rather than from his December 2009 fall while skiing. Dr. Wieneke based his conclusion on the following facts:
• Claimant did not initially exhibit any signs indicative of an ACL injury when he first reported to Stowe Urgent Care. His station and gait were normal, he had only mild swelling with grossly stable ligaments and both his anterior drawer and Lachman’s tests were negative.
• Claimant was released to return to work in early February 2010, finished the ski season without incident, and was able to play tennis during the summer.
• As he jumped for the apple in October 2010, Claimant reportedly felt a “pop,” which was accompanied immediately by sharp pain and rapid swelling. The ensuing MRI documented a full thickness ACL tear.
20. It is unclear whether Dr. Wieneke actually reviewed all of Claimant’s relevant medical records prior to rendering his opinion. Of particular note, he appears not to have reviewed the record of Mr. Delfausse’s September 16, 2010 examination, in which Claimant was reported to have both positive anterior drawer and Lachman’s findings. This omission is critical. Dr. Wieneke himself admitted that the anterior drawer and Lachman’s tests are accurate indicators of an ACL injury. The positive results in September provide strong evidence, therefore, that Claimant’s injury predated the October 2010 apple-picking incident. Dr. Wieneke’s opinion suffers from its failure to address this important finding.
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21. I note other deficiencies in Dr. Wieneke’s opinion as well. He does not appear to have accounted for the likelihood that Claimant’s negative findings on anterior drawer and Lachman’s tests in January 2010 occurred in the context of increased swelling, pain and guarding, all of which may have masked the extent of an ACL injury. In addition, his statement that Claimant was able to ski and play tennis after the December 2009 fall does not accurately reflect Claimant’s testimony, which I find credible, as to his limitations when engaging in those activities. Last, as Dr. Wieneke acknowledged, his opinion was based solely on a records review, whereas having the opportunity physically to examine the patient is typically a better approach.
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. The disputed issue here is whether Claimant’s current ACL injury, which now requires surgical repair, is a consequence of his December 2009 work-related fall while skiing, for which Defendant is liable, or whether it arose instead as a result of the non-work-related apple-picking incident in October 2010. The parties have briefed their respective positions as if the claim thus presents an aggravation-versus-recurrence dispute. The more appropriate analysis is to ask whether the apple-picking incident constituted an independent intervening cause sufficient to break the causal link back to the primary work-related injury.
3. The parties presented conflicting expert testimony as to the cause of Claimant’s current knee injury and need for surgical treatment. Dr. Huber concluded that it very likely relates back to his December 2009 fall while skiing, and definitely is not causally related to the October 2010 apple-picking incident. Dr. Wieneke reached the opposite conclusion.
4. When faced with conflicting expert medical evidence, 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).
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5. I conclude here that Dr. Huber’s opinion is the most credible. In addition to reviewing all of Claimant’s pertinent medical records, Dr. Huber also conducted a comprehensive physical examination. He adequately addressed the reasons why Claimant’s anterior drawer and Lachman’s tests were negative immediately after the December 2009 fall, but positive thereafter. He clearly explained how the mechanism of that fall was far more likely to cause an ACL injury than the apple picking activity that Claimant described. His experience with skiing-related knee injuries is impressive. Taken together, these factors render Dr. Huber’s causation opinion highly persuasive.
6. Dr. Wieneke’s opinion is lacking in important respects. It is based on a records review only, with no physical examination. It does not account for a significant objective finding – positive anterior drawer and Lachman’s tests in September 2010 – that established Claimant’s ACL injury to have occurred before the apple-picking incident, not after. It mischaracterizes the extent to which Claimant limited his activities following his skiing-related fall. These omissions render it unpersuasive.
7. In accordance with Dr. Huber’s view, therefore, I conclude that Claimant’s current ACL injury is a natural and direct consequence of his December 2009 work-related fall while skiing. Either that event caused the ACL tear itself, or it caused sufficient laxity in the joint to require surgical repair in a patient with Claimant’s active lifestyle.
8. In reaching this result, I do not conclude that Claimant suffered a “recurrence” as that term is defined in the workers’ compensation rules. There was no “temporary remission” here following which Claimant’s symptoms returned. Workers’ Compensation Rule 2.1312. Rather, the facts establish that Claimant suffered a compensable work-related knee injury, resulting in symptoms that continued to plague him to the point where additional treatment became necessary.
9. Notwithstanding Dr. Huber’s opinion that given both Claimant’s lifestyle and the laxity in his knee he would have been an appropriate candidate for surgical treatment even before the October 2010 apple-picking incident, the fact remains that no such surgery was proposed until after that event occurred. It is necessary to inquire, therefore, whether the October 2010 apple-picking incident qualifies as an independent intervening event sufficient to break the causal link back to the December 2009 work injury.
10. Once an injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from it likewise is deemed to have arisen out of the employment. 1 Lex K. Larson, Larson’s Workers’ Compensation §10 (Matthew Bender, Rev. Ed.) at p. 10-1. Had there been no apple-picking incident, it is at least possible, if not likely, that in accordance with this general principle Defendant would have been obligated to pay for the treatment Mr. Delfausse recommended in September 2010, upon learning that Claimant’s knee still was “not right” since his December 2009 fall.
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11. An exception to the general rule exists as to consequences that result from an independent intervening non-industrial cause attributable to the claimant’s own intentional conduct. Lushima v. Cathedral Square Corp., Opinion No. 38-09WC (September 29, 2009), citing Larson’s Workers’ Compensation, supra. Such an event may be sufficient to break the chain of causation back to the primary injury and thereby may relieve the employer of further workers’ compensation liability.
12. Not all intervening events are sufficient to fall within the exception and thus sever the link between the work injury and any ongoing disability or need for treatment. It is only in instances where the claimant, knowing of certain weaknesses arising from the primary injury, “rashly undertakes activities likely to produce harmful results” that the causal connection disintegrates. Lushima, supra, quoting Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12 (Fla. 1960); Larson’s Workers’ Compensation, supra at §10.06[3], p. 10-17. In other words, for an intervening, non-work-related event to sever the connection back to a compensable injury the facts must establish that the claimant acted negligently under the circumstances.
13. I cannot conclude here that Claimant’s apple-picking endeavor was so rashly undertaken as to amount to negligent conduct. He stretched to pick an apple, and finding it just beyond his grasp hopped up an inch or two to reach it. Perhaps with the benefit of hindsight he would have chosen another apple instead. For him to choose this apple may have been momentarily thoughtless, but it still was not so unreasonable a decision as to be negligent. See, Larson’s Workers’ Compensation, supra at §10.06, p. 10-13 (characterizing certain spontaneous, impulsive or momentarily thoughtless human acts as instinctive rather than negligent); compare McMillan v. Bertek, Inc., Opinion No. 95-95WC (January 29, 1996) (reaching for branch while falling from tree was spontaneous act not rising to level of negligence), with Lushima, supra (engaging in extended physical altercation with border patrol agents deemed deliberately rather than momentarily thoughtless).
14. I conclude that Claimant has sustained his burden of proving that his current ACL condition is a direct and natural consequence of his compensable December 2009 injury. I further conclude that the October 2010 apple-picking incident does not qualify as an intervening non-work-related event sufficient to sever the causal link back to that primary injury. Consequently, I conclude that Defendant remains responsible for all reasonable and necessary medical treatment causally related to Claimant’s ACL injury, including surgical reconstruction as indicated by Dr. Huber.
15. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $1,825.71 and attorney fees totaling $5,916.00. An award of costs to a prevailing party is mandatory under the statute. As Claimant has prevailed, these are awarded.
16. As for attorney fees, these lie within the commissioner’s discretion. I conclude that 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. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s ACL injury, including surgical repair as indicated by Dr. Huber, in accordance with 21 V.S.A. §640; and
2. Costs totaling $1,825.71 and attorney fees totaling $5,916.00, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 18th day of January 2012.
__________________________
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.

Douglas Cain v. New Penn Motor Express Inc (April 9, 2013)

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Douglas Cain v. New Penn Motor Express Inc (April 9, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Douglas Cain Opinion No. 12-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
New Penn Motor Express, Inc.
For: Anne M. Noonan
Commissioner
State File No. DD-57222
OPINION AND ORDER
Hearing held in Montpelier on December 19, 2012
Record closed on January 28, 2013
APPEARANCES:
Patrick Biggam, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s July 19, 2011 work-related injury cause and/or aggravate his cervical myelopathy, thus necessitating surgery?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Stipulation
Claimant’s Exhibit 1: Photograph of motorcycle
Claimant’s Exhibit 2: Deposition of Paul Penar, M.D., December 10, 2012 (with attached curriculum vitae)
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as a consequence of his cervical myelopathy and resulting surgery
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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STIPULATED FACTS:
The parties have stipulated to the following facts:
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 and correspondence contained in the Department’s file relating to this claim.
3. On July 19, 2011 Claimant suffered a personal injury by accident arising out of and in the course of his employment for Defendant. Claimant reported the accident to his employer, and continued to work for a period of time thereafter.
4. On August 13, 2011 Claimant presented to the Fletcher Allen Health Care Emergency Department with complaints of severe upper and lower extremity weakness and balance issues. He was diagnosed with cervical myelopathy, a condition caused in his case by a herniated cervical disc impinging upon his spinal cord. Claimant underwent surgery the following day with Dr. Penar, a neurosurgeon, who performed a C3-4 discectomy and fusion.
5. Claimant has not returned to work since his cervical surgery.
6. Claimant had a prior compensable work injury to his lower back, which resulted from a fall on December 14, 2010 (State File No. CC-56141). He underwent an L5-S1 laminectomy on January 17, 2011. Ongoing problems necessitated a second surgery, which Claimant underwent on April 25, 2012. Following this second surgery he suffered a stroke, and is currently unable to work.
7. Defendant commenced paying temporary total disability benefits following Claimant’s April 25, 2012 lower back surgery, as this surgery was causally related to his compensable December 14, 2010 injury.
8. Claimant’s average weekly wage as of July 19, 2011 was $1,151.72, which results in an initial compensation rate of $767.81. As of July 19, 2011 Claimant had one dependent.
9. Claimant seeks a determination from the commissioner that his July 19, 2011 work-related injury either caused or aggravated his cervical condition, which resulted in the August 14, 2011 cervical discectomy and fusion and subsequent disability.
10. If Claimant is successful in his claim, the parties stipulate that he is entitled to the following benefits: (a) 36.57 weeks of temporary total disability benefits; (b) reasonable and necessary medical benefits related to treatment of his cervical myelopathy, commencing on August 13, 2011 and thereafter, in accordance with Workers’ Compensation Rule 40; (c) an award of costs and attorney fees; and (d) permanent partial disability benefits in an amount to be determined.
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FINDINGS OF FACT:
In addition to the above stipulated facts, I find the following:
11. Claimant worked for Defendant as a short-haul general freight truck driver. His typical routes were regional – from Defendant’s Williston, Vermont facility to Albany, New York and/or Boston, Massachusetts, for example. As of July 19, 2011 Claimant was 60 years old.
12. On Tuesday, July 19, 2011 Claimant was at Defendant’s Williston terminal, preparing his truck for a trip to Springfield, Mass. After hooking his trailer to the tractor, he squatted down and crept underneath the truck to make sure that the locking pin was securely in place. He then turned around and, still in a squatting position, began moving out from under the trailer. As he did so, he hit his head forcefully on the underside of the trailer. The impact drove his neck backwards and dropped him to his knees.
13. Claimant felt dazed. He took a moment to compose himself, then crawled out from under the truck and proceeded inside the office to report the injury to Defendant’s dispatcher. A co-worker gave him a band-aid to apply to the top of his head, which was scraped and bleeding. Other than that, Claimant felt no immediate effects from the accident. He headed out in his truck and completed his run to Springfield and back.
14. When he got home that evening, Claimant told his wife that he had “whacked his head really good.” She applied Neosporin to the scrape and changed the band-aid. Neither of them thought much of the event.
15. Claimant worked his regular shifts for the next several days without incident. Then, as he was making a run to Albany on the following Tuesday evening (July 26th), his left leg became numb and “picky,” as if it had fallen asleep. He stopped, got out and walked around his truck for a few minutes. The feeling went away and he continued on his run.
16. The following night, Claimant was again en route to Albany when the numb and “picky” sensations returned, this time in both legs, from his waist to his feet. As he had the previous evening, Claimant stopped, got out and walked around. This time the sensations persisted somewhat longer, about ten minutes. When they were gone, he resumed driving and completed his run.
17. The next incident occurred two days later, on Friday, July 29th. Claimant was preparing to embark the next day on a long-planned motorcycle trip to South Dakota with two of his friends. He was at the bank, signing travelers’ checks. As he did so, both of his arms began to feel heavy and weak. His hands felt numb and unresponsive, to the point where he had a difficult time holding the pen and completing the task. Again, after walking around for a bit, the symptoms dissipated.
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18. On Saturday morning, July 30th, Claimant and his friends embarked on their motorcycle trip. Claimant was driving a Harley Davidson Super E, a smooth-riding motorcycle equipped with adjustable shock absorbers and a custom seat. Approximately two hours into the ride, he began to feel the numb and “picky” sensations in his legs again, from his waist down to his feet. He stopped and walked around for a few minutes, and as they had on the prior occasions, after a few minutes the feeling went away.
19. Claimant and his friends traveled as far as Buffalo, New York on their first day of travel. Because one of his friends had blown a tire, they were forced to remain there for two days. On Monday afternoon, August 1st, they headed out again. Traveling by way of Interstate 90, and sleeping in hotels at night, they arrived at their South Dakota destination on Wednesday, August 3rd. During this time, Claimant had not experienced any additional symptoms in either his legs or his arms.
20. Claimant and his friends stayed at a campground in South Dakota, sleeping on air mattresses in a tent they pitched themselves. They rode scenic day trips on Thursday and Friday, August 4th and 5th, during which Claimant felt fine. However, on Saturday, August 6th he awoke feeling unwell. His back hurt and his legs felt “picky.” While his friends went touring that day, Claimant remained behind at the campsite.
21. Claimant felt even worse on Sunday, August 7th. His balance was off and he could not walk well. He knew he would be unable to make the return motorcycle trip in this condition, so he called his wife and asked her to come and get him. Claimant’s wife and son left Vermont the following day, arriving in South Dakota on Tuesday, August 9th. In the meantime, Claimant’s condition had continued to deteriorate. His legs and feet were “picky” and numb, his balance was impaired and his friends had to assist him when entering and leaving restaurants. His wife credibly testified that he looked weak, thin and unwell when she saw him. They left for Vermont the next day.
22. Immediately upon returning to Vermont, on Saturday, August 13th Claimant’s wife took him to the hospital emergency room. His presenting complaints included bilateral upper and lower extremity weakness and sensory losses as well as severe balance problems. Cervical spine x-rays documented extensive degenerative changes. More significantly, a cervical MRI study revealed a large central C3-4 disc herniation with cord compression and signal cord changes. Upon evaluation, Dr. Penar, a neurosurgeon, diagnosed cervical spondylotic myelopathy, meaning that the disc herniation was compressing the spinal cord itself rather than just a nerve root. As treatment, on the following day (August 14th) Claimant underwent urgent surgery, during which Dr. Penar excised the herniated disc and fused his cervical spine at the C3-4 level.
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Expert Medical Opinions as to Causation
23. The parties each presented expert testimony as to the causal relationship, if any, between Claimant’s July 19, 2011 work injury and his cervical spondylotic myelopathy.
(a) Dr. Penar
24. Dr. Penar is a board certified neurosurgeon with more than 25 years of experience. He testified on Claimant’s behalf by deposition.
25. In Dr. Penar’s opinion, Claimant’s case presents a “very strong medical story” of an initial disc herniation that occurred when he struck his head on the underside of his truck,1 followed by a progressive cervical myelopathy that developed over the course of the ensuing three weeks. That Claimant did not experience symptoms immediately after hitting his head was not inconsistent with this explanation, as it is not unusual for a patient to report delayed neurological deterioration in such circumstances. Nor is it uncommon for symptoms initially to appear only intermittently, as Claimant’s did in the days leading up to his motorcycle trip. According to Dr. Penar, of greater significance was the manner in which the symptoms indicative of central cord compression developed – first in one leg, then in both legs, and then into both arms as well. Such a progression clearly indicates dysfunction in the cervical spinal cord.
26. Because Claimant already was experiencing both sensory and motor deficits indicative of cervical myelopathy even before embarking on his motorcycle vacation, Dr. Penar discounted the possibility that the trip either caused or aggravated the condition. In Dr. Penar’s words, the mechanism of Claimant’s work injury, during which his neck went into an extension posture, would “easily” explain the large, cohesive “chunk” of disc material that comprised his C3-4 herniation. A “relevant complaint” involving his arms (the episode while signing travelers’ checks) placed his cervical cord compression at a point in time before the motorcycle trip. Emphasizing these elements of Claimant’s clinical history, in Dr. Penar’s opinion to a very high degree of medical certainty the work injury likely caused the myelopathy. I find this analysis compelling.
(b) Dr. Backus
27. Dr. Backus is a board certified specialist in occupational medicine. As such, his training has included a greater focus on causation, epidemiology and statistical analysis than most other specialized areas of medical practice. At Defendant’s request, Dr. Backus reviewed Claimant’s pertinent medical records and deposition testimony.2
1 In the context of a February 2012 letter to Claimant’s attorney, Dr. Penar mistakenly referred to Claimant’s injury as having occurred as a result of hitting his head on the roof of a truck he was driving. Considering the more accurate description he previously had stated in the context of his August 2011 operative report, as well as the one he provided subsequently during his deposition testimony, I find this error inconsequential.
2 Due to unforeseen circumstances, Dr. Backus was unable to personally examine Claimant prior to rendering an opinion as to causation. I find that his opinion is not weakened in any respect as a result, because the evidence relevant to causation concerns Claimant’s condition as of July and August 2011, not more recently.
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28. Dr. Backus concurred with Dr. Penar’s diagnosis of cervical spondylotic myelopathy. He also concurred that the condition developed as a consequence of Claimant’s C3-4 disc herniation. However, he disagreed that the herniation was either caused or aggravated by Claimant’s July 2011 work injury.
29. According to Dr. Backus, there is no medical literature establishing that relatively minor trauma causes discs to herniate. Thus, in his opinion it was more likely that Claimant’s C3-4 disc herniation occurred as part of the natural degenerative process in his cervical spine. As evidenced by cervical spine x-rays taken at the time of his work injury, this process was already quite advanced by then.
30. Nor did Dr. Backus find sufficient evidence from which to conclude, to the required degree of medical certainty, that Claimant’s work injury caused his cervical myelopathy. In his opinion, that condition as well was likely a long-standing, chronic process that had been progressing over a period of years, if not decades.
31. Dr. Backus conceded the possibility that Claimant’s work injury might have been an aggravating factor in hastening the progression of his cervical myelopathy, but did not consider the evidence sufficient to establish this to the required degree of medical certainty. Rather, given the closer temporal relationship between Claimant’s motorcycle trip and his rapidly worsening myelopathy, in Dr. Backus’ opinion the trip was a far more likely cause of any aggravation.
32. I find ample basis in the evidence to discount Dr. Backus’ opinions. First, in concluding that Claimant’s cervical myelopathy had been developing over a period of years Dr. Backus initially recalled that Claimant had reported a twenty-year history of symptoms, when in fact this was not the case. Later, he acknowledged the error and stated that it did not impact his opinion as to causation, but I find that difficult to accept.
33. Second, at the same time that he attributed Claimant’s worsening myelopathy to his motorcycle trip, Dr. Backus admitted that he had little knowledge as to the specifics of that journey, including either the type of motorcycle Claimant rode or the route he traveled. Aside from what he considered to be a strong temporal relationship, he did not specify any other basis for the causal relationship he asserted, such as excessive vibration, rough roads or sleeping on an air mattress rather than in a bed, for example.
34. Third and most important, Dr. Backus’ opinion fails to account for the worsening signs of cervical myelopathy that Claimant had begun to exhibit even before leaving on his vacation. As a result, I find it difficult to discern why in his opinion the evidence is sufficient to establish the motorcycle trip, but not the work injury, as an aggravating factor for his condition.
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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).
2. The disputed issue in this claim involves medical causation. Supported by Dr. Penar’s expert opinion, Claimant asserts that his July 2011 work injury either caused or aggravated his cervical disc herniation and resulting myelopathy. Supported by Dr. Backus’ opinion, Defendant asserts that such a causal relationship is possible but not probable, and that Claimant’s motorcycle trip presents a more likely explanation.
3. 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).
4. With primary reliance on the third factor, I conclude here that Dr. Penar’s opinion is the most credible. His analysis as to the causal relationship between Claimant’s work injury and his cervical myelopathy was clear and thorough. Dr. Penar adequately explained why Claimant’s initial post-injury symptoms, while intermittent, clearly indicated a worsening cervical myelopathy in the days prior to his motorcycle trip. Thus, it adequately accounted for the progression of Claimant’s symptoms both before and after his vacation began.
5. In contrast, Dr. Backus failed to explain adequately how the motorcycle trip could be the likely cause of Claimant’s worsening myelopathy notwithstanding that by the time the trip began he already was exhibiting signs of an aggravation. Nor did he identify which specific elements of the trip were likely responsible for the causal relationship he claims resulted. For those reasons, I conclude that his opinion is unpersuasive.
6. I conclude that Claimant has sustained his burden of proving that his cervical disc herniation and resulting myelopathy were caused and/or aggravated by his July 19, 2011 work injury and are therefore compensable. In accordance with the parties’ stipulation, I thus conclude that he is entitled to workers’ compensation benefits as specified in Finding of Fact No. 10, supra.
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7. 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.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits for a period of 36.57 weeks, in accordance with 21 V.S.A. §642;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s C3-4 disc herniation and cervical myelopathy, including his August 14, 2011 surgery, in accordance with 21 V.S.A. §640(a);
3. Permanent partial disability benefits in an amount to be determined, in accordance with 21 V.S.A. §648;
4. Interest on the above amounts as calculated in accordance with 21 V.S.A. §664; and
5. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §§664 and 678.
DATED at Montpelier, Vermont this 9th day of April 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.

Paul Baldwin v. Velan Valve (November 19, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , , , , , Author:

Paul Baldwin v. Velan Valve (November 19, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Paul Baldwin Opinion No. 45-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Velan Valve
For: Patricia Moulton Powden
Commissioner
State File No. W-04562
OPINION AND ORDER
Hearing held in Montpelier on October 2, 2009
Record closed on October 26, 2009
APPEARANCES:
Ron Fox, Esq., for Claimant
Gregory Boulbol, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional workers’ compensation benefits causally related to his March 15, 2005 compensable injury?
2. If yes, to what benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Elizabeth McLarney, M.D., September 24, 2009
Claimant’s Exhibit 2: Trash bag (offered for identification only)
Defendant’s Exhibit A: Curriculum vitae, George White, M.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 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 and correspondence contained in the Department’s file relating to this claim.
3. Claimant’s vocational training and experience is as a machinist. In January 2005 he began working for Defendant. His job required him to float from spot to spot, filling in for other employees. On any given day he might run a mill, set up a lathe or operate some other machine.
4. On March 15, 2005 Claimant was setting up a job on a lathe. Due to a programming error, a part got caught in the machine and Claimant had to remove it. As he pulled on the part, which weighed approximately 50 pounds, he injured his lower back. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
5. As a result of this injury Claimant experienced low back pain radiating into his left leg. He was diagnosed with a disc herniation at L5-S1, which affected the S1 nerve root as well. After conservative measures failed to alleviate his symptoms, Claimant underwent L5-S1 disc surgery in June 2005.
6. Claimant had only temporary pain relief following surgery, and then his symptoms recurred. He was left with chronic, constant low back pain, radiating from his left buttocks down his left leg and into his left ankle. Claimant treated for this pain with narcotic pain medications, including oxycontin and methadone, which he took daily. Later, Claimant began taking oxycodone as well for breakthrough pain.
7. Following an independent medical evaluation with Dr. Fenton in May 2006 Claimant was placed at end medical result and rated with a 13 percent whole person permanent impairment. Defendant paid permanent partial disability benefits in accordance with this rating.
8. In late 2006 Claimant returned to work, briefly first for Hayward Tyler Co. and then for Moscow Mills. Initially Claimant’s job at Moscow Mills was as a machinist; later he was promoted to a position involving purchasing, planning and quoting. Claimant enjoyed his work at Moscow Mills, and because his job responsibilities accommodated his need to change positions he was able to work full-time and full-duty notwithstanding his ongoing low back and left leg symptoms.
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9. As is common in patients with chronic low back pain, Claimant experienced occasional activity-related flare-ups. In November 2006, for example, he strained his back while playing with his children. In February 2007 he did so again after shoveling snow, and in February 2008 he reported increased pain, again after shoveling snow. Following each of these incidents Claimant briefly increased his dosage of narcotic pain medications, after which his symptoms returned to their baseline level.
10. Notably, even when his symptoms were at their baseline, Claimant required fairly high levels of narcotic pain medications to control them. With those medications, however, he was “going along with his life,” working full time and engaging in routine activities of daily living.
11. One of Claimant’s routine household-related duties was to help his wife take care of the trash. Every other day or so Claimant’s wife would leave a full 13-gallon white kitchen trash bag outside the front door of their home. When Claimant came home, he would put the bag in the back of his pickup truck, where it would stay until his next trip to the dump. The weight of each bag varied depending on its contents, but Claimant testified credibly that an “average” trash bag probably weighed about 12 pounds. Claimant testified that he regularly performed this activity with no detrimental effect on his low back or left leg pain.
12. On November 12, 2008 Claimant came home and found a trash bag waiting at the door. As was his practice, he carried the bag to his truck, dropped the tailgate and placed the bag in the truck bed. As he did so he felt a sharp pain in his lower back, radiating into his left buttocks and down his left leg. Claimant left the tailgate as it was, immediately went inside and lay down on the couch.
13. Claimant testified that the location of his pain was exactly as it had been at the time of his original injury, but that it was two to three times more intense. Unlike previous flare-ups, furthermore, this time the increased pain did not respond to additional narcotics and did not resolve back to its baseline. Instead, it has remained steady at the new, more intense level.
14. Claimant testified that the increased pain he has experienced since the trash bag incident has precluded him from engaging in almost any activity. He has not worked since the incident occurred, and spends most of his day lying on his back. His left leg gives out on him at times, so to prevent himself from falling he now walks with a cane. Clearly he no longer is “going along with his life” to the extent that he was previously.
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15. Claimant has undergone two independent medical evaluations since the trash bag incident, one at Defendant’s request with Dr. White, an occupational medicine specialist, and one at his own attorney’s referral with Dr. McLarney, an orthopedic surgeon. The areas of agreement between the two doctors far outnumber the issues upon which their opinions diverge:
• Both doctors agree that Claimant’s 2005 work injury caused his L5-S1 disc to herniate, which left his spine in a weakened condition and his disc more susceptible to future exacerbations. Both further agree that the trash bag incident resulted in an increase in symptoms emanating primarily from the same area of the back. Both agree that but for the fact that Claimant’s back already was weakened in that area, it is unlikely that lifting the bag and placing it in his truck would have been in any way problematic. In that sense, therefore, both agree that the trash bag incident somehow acted upon Claimant’s preexisting condition and thereby became the instigating event for the worsened symptoms that followed.
• Both doctors agree that whether Claimant’s worsened symptoms are due to scar tissue caused by his June 2005 disc surgery or to a new disc herniation is unclear. To clarify the diagnosis, both agree that it would be reasonable for Claimant to undergo an MRI with gadolinium, or contrast dye.
• Both doctors agree that if the MRI reveals the problem to be scar tissue, surgery will be ineffective at relieving Claimant’s symptoms. If the MRI reveals new disc material, both doctors agree that surgery might be an option, although for various reasons Dr. White believes Claimant is not a good surgical candidate.
• Both doctors agree that a multidisciplinary functional restoration or rehabilitation program may present an efficacious treatment route for Claimant. By participating in such a program hopefully Claimant would be able to decrease his dependence on narcotic pain medications, increase his exercise tolerance and improve his overall strength and conditioning level.
• Both doctors agree that Claimant should be able to return to work, at least at a sedentary work capacity. Dr. White believes that Claimant has no structurally limiting condition that would preclude him from doing so immediately. Dr. McLarney believes that it would be unrealistic to expect Claimant to transition directly back to work in his current condition, given his narcotic drug dependency, his deconditioned physical state and his extended time out of work. She is optimistic, however, that he would be able to do so after completing a functional restoration program.
• Both doctors agree that Claimant has not yet reached an end medical result from the trash bag incident.
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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).
2. This claim raises the question to what extent an intervening activity or event can operate to sever the causal link between a work-related accident and the natural consequences that flow from it. As such, its resolution depends more on legal analysis than medical analysis. Medically, there is no dispute that Claimant’s activities on November 12, 2008 – placing a 12-pound trash bag into the back of his truck – caused the low back and left leg symptoms he had experienced since his original 2005 work injury to worsen significantly. The real dispute is as to the legal ramifications of that incident in the context of this claim.
3. This Department has maintained on a fairly consistent basis that when a claimant’s condition worsens, or his or her symptoms flare, after engaging in normal, routine activities of daily living the causal link back to the original work injury remains intact, such that further medical treatment and/or periods of disability remain compensable. See, e.g., Church v. Springfield Hospital, Opinion No. 40-08WC (October 8, 2008) (climbing a single step at home does not sever causal connection); Verchereau v. Meals on Wheels, Opinion No. 20-88WC (1988) (carrying groceries); Correll v. Burlington Office Equipment, Opinion No. 64-94WC (May 1, 1995) (shoveling); but c.f. Signorini v. Northeast Cooperative, Opinion No. 36-04WC (September 1, 2004) (rising from chair; causal link severed due to nine-year gap back to original injury); Read v. W.E. Aubuchon Co., Opinion No. 24-04WC (July 13, 2004) (building rock garden and painting not properly categorized as normal activities of daily living).
4. This policy comports well with the mandate that in order to accomplish its humane purpose Vermont’s Workers’ Compensation Act must be construed liberally in favor of injured workers. Montgomery v. Brinver Corp., 142 Vt. 461 (1983). It also recognizes the practical reality that even injured workers must continue to go about their daily lives despite whatever underlying condition or weakness their work injury has caused. Were employers allowed to use reasonable, routine activities of daily living as a basis for terminating their ongoing responsibility for the natural consequences of a work injury, workers’ compensation would be a short-lived and hollow remedy indeed.
5. With those principles in mind, I find that Claimant’s activities on November 12, 2008 qualify as the type of normal, routine activities of daily living that do not operate to sever the causal link back to the original work injury. Defendant remains responsible, therefore, for all causally related workers’ compensation benefits arising from either event.
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6. As for medical benefits, I find credible Dr. McLarney’s opinion, with which Dr. White essentially concurred, that Claimant should undergo an MRI with gadolinium followed by a surgical consult. Should surgery not be indicated, I find that a multidisciplinary functional restoration program is the appropriate next step.
7. I also find that Claimant has been temporarily totally disabled since November 12, 2008 and that his disability is ongoing currently. In that respect, I accept Dr. McLarney’s opinion that Claimant is unable to transition immediately back to work, but that with the benefit of further treatment hopefully he will be able to do so soon.
8. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,217.59 and attorney fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute. To be allowable, however, costs must be reasonable and must comply with the applicable provisions of the medical fee schedule. I find it unreasonable to hold Defendant responsible for Dr. McLarney’s $350.00 no-show fee, and therefore that charge is disallowed. I also note that Dr. McLarney’s $1,050.00 deposition fee appears well in excess of the $300 hourly rate mandated by Workers’ Compensation Rule 40.110. The deposition itself took approximately one hour, and the time spent consulting with Claimant’s attorney either before or after is not recoverable. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). This charge is reduced to $600.00. The total costs awarded, therefore, are $2,417.59.
9. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded to the extent allowed by Workers’ Compensation Rule 10.1220.
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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 disability benefits beginning on November 13, 2008 and continuing until Defendant produces sufficient evidence to justify their discontinuance in accordance with Workers’ Compensation Rule 18.0000;
2. Interest on the above amounts computed in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonably necessary medical treatment causally related either to Claimant’s March 2005 work injury and/or to the November 12, 2008 incident, specifically including the treatment referred to in Conclusion of Law No. 6 above;
4. Costs totaling $2,417.59 and attorney fees computed in accordance with Workers’ Compensation Rule 10.1220.
DATED at Montpelier, Vermont this 19th day of November 2009.
______________________
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.

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