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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.

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

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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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