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P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)

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P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. M. Opinion No. 55-06WC
By: Margaret A. Mangan
v. Hearing Officer
Bennington Convalescent Center
and FGB Corporation For: Patricia Moulton Powden
Commissioner
State File No. A-25839 & U-00957
Hearing held in Montpelier on August 29, 2006
Record closed on October 2, 2006
APPEARANCES:
Patrick Biggam, Esq., for the Claimant
Tammy Denton, Esq., for Defendant NH Insurance Co./American Health Care.
Jeffrey W. Spencer, Esq. for Defendant FGB
ISSUES:
1. Was Claimant’s spinal surgery on April 14, 2003 reasonable?
2. Did Claimant suffer an aggravation or a recurrence of her previous work related back injury while working for FGB Corporation?
3. What, if any, benefits is the Claimant entitled to receive?
CLAIM:
1. Medical expenses in the amount of $57,854.11 for treatment of back injury, including surgery on April 14, 2003;
2. Legal fees in the amount of 20% of the value awarded, not to exceed $9,000;
3. Costs.
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EXHIBITS:
Joint I: Medical Records
Defendant NH Insurance Co./American Health Care:
A Verne Backus, M.D.’s Curriculum Vitae
B Kuhrt Wieneke, M.D.’s Curriculum Vitae
Defendant FGB Corp.: Photographs
Claimant’s 1: Medical Billing Packet
FINDINGS OF FACT:
1. On June 2, 1988, Claimant injured her low back while working as a nurse’s aid for American Health Care (“AHC”). The injury occurred as she bent over to catch a patient to prevent a fall. The workers’ compensation insurer for AHC accepted the claim.
2. Claimant’s attempts to return to light duty as a nurse’s aid failed.
3. In May of 1989, Dr. Gates performed a partial discectomy at L4-5, but Claimant’s pain and numbness persisted postoperatively. Later she was diagnosed with a failed back syndrome.
4. In November 1989 Claimant was released to work with a lifting restriction of ten to twelve pounds.
5. In 1990, Claimant had reached medical end result. Dr. Gates assessed permanency at 34%; Dr. Ford assessed a 28% impairment.
6. In the summer of 1991, Claimant’s work for AHC ended because she was unable to do the work.
7. Claimant continued to treat for back and leg pain and weakness. She received prescriptions for pain medication and a TENS unit.
8. A July 1992 CT scan revealed a herniated disc on the left at L4-5. Steroid therapy and facet injections followed.
9. In November 1992, Dr. Gates recommended further surgery to relieve her symptoms that he opined were related to a slow exacerbation of her work related injury. He later explained that with the disc pathology from the original injury, she had continued degeneration in the spine, narrowing the lateral recess and causing her pain.
10. The carrier refused to pay for the recommended surgery or other continued care, although it paid for medication.
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11. By November 1998, the Claimant had been babysitting children in her home for four to five years.
12. In November of 1998, Claimant began working for Defendant FGB at a Laundromat, six hours per day, five days per week. The Laundromat was self-serve. Her pain continued at the level it had been, an eight on a scale of one to ten.
13. Claimant loaded washers and dryers and folded clothes. She lifted only weight she was comfortable lifting, asking for help from coworkers for heavy items. At all times, Claimant was compliant with the twenty pound lifting restriction she had been given. In addition, she was free to take breaks and sit as needed.
14. Work at the Laundromat did not change the progression of Claimant’s pain. It worsened, but in the same way it had when she was not working. Nothing at work affected the pain.
15. Claimant missed some time from work for a shoulder injury in December 2002. When she returned in February 2003, no mention was made of any back problems. During her time out of work for the shoulder, her back symptoms progressed in the same way they did when she was working.
16. On April 14, 2003, Dr. Lapinsky performed back surgery on Claimant. The procedures were laminectomies, foraminotomies and a fusion.
17. AHC denied payment for the back surgery, arguing that the surgery was not reasonable or causally related to Claimant’s work as a nurses’ aid. Further it pointed to her later work at the Laundromat as the cause.
18. Dr. Lapinsky wrote that the basis for the fusion surgery was to address the spinal instability that would result from the decompression aspects of the surgical procedure. It was also intended to “stabilize the motion segments that have degenerated.”
19. AHC denied payment for surgery based on the opinion of Dr. Verne Backus, Occupational Medicine expert, that the fusion was not a reasonable procedure because it was performed for pain alone, without evidence of instability. However, Dr. Backus agreed that the medical community differs on this subject, with many surgeons recommending fusion surgery for pain.
20. Dr. Kuhrt Wieneke, certified in orthopedic surgery and spine surgery, performed and independent medical examination of the Claimant on November 8, 2004. Dr. Wieneke opined that the Claimant suffered a series of aggravations while working at the laundromat because her back pain was more severe at the end of the workday.
21. Dr. Christopher Brigham, an expert hired by FGB Corporation to conduct a review of the Claimant’s medical records, supported the compensability of the fusion surgery, noting that it was performed “because of the instability created by the removal of so much bone structure.”
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22. Furthermore, Dr. Brigham opined that Claimant’s condition has followed a natural history since she was injured as a nurses’ aid. That history is that of waxing and waning. He opined that nothing about the job at the Laundromat aggravated her back condition. In fact, he thought the light work there was therapeutic, as contrasted with completely sedentary work.
23. Medical records demonstrate that Claimant’s back problems began in 1988 when she hurt her back helping a patient. She developed a failed back syndrome after the first surgery. Another surgical procedure was recommended before she ever started working at the Laundromat. Claimant lived with a level of back pain that slowly increased, but with no relationship with work. Claimant continued to treat unabated from the time she was hurt in 1988 to the present. Nothing happened at the Laundromat that worsened her condition.
24. Claimant incurred $57,854.11 in expenses for treatment related to the back injury, including the surgery.
25. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 33 and 1/3% Fee Agreement with the Claimant. The Claimant has included an itemized list of litigation costs totaling $810.75.
CONCLUSIONS OF LAW:
1. In a worker’s compensation case, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1962). The claimant 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).
2. 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 inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
Compensability of Surgery
3. On the reasonableness of the surgery, Claimant has the burden of proof pursuant to 21 V.S.A. § 640(a). “In determining what is reasonable under § 640(a), the decisive factor is not what the claimant desires or what [he] believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s back symptoms and maintain [his] functional abilities.” Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000).
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4. The strong opinions of Dr. Lapinsky and Dr. Brigham convince me that the surgery performed by Dr. Lapinksy was reasonable and, therefore, compensable. 21 V.S.A. § 678 (a). The argument against compensability comes from Dr. Backus who opined that a fusion is performed only for spinal instability. The other experts amply address this concern by explaining that bone loss from the other surgical procedures put the Claimant at risk for instability, supporting the decision for a fusion. Further, degeneration in the Claimant’s spine also led to the need to stabilize motion segments with a fusion.
5. Therefore, the responsible carrier must pay the medical bills related to Claimant’s back injury, including costs of the surgery Dr. Lapinsky performed on April 14, 2003, subject to the fee schedule in Workers’ Compensation Rule 40.000. That total is $57,854.11.
Aggravation or recurrence
6. Next is the question whether Claimant’s current condition is a recurrence, making AHC the responsible employer; or whether it is an aggravation, with FBG as the responsible party. “Generally, when two employers or insurers dispute liability for a workers’ compensation claim arising out of successive injuries, the liability remains with the first insurer or employer if the second injury is a recurrence of the first.” Farris, 177 Vt. at 458, citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997) (mem.). “If, however, the second incident aggravated, accelerated, or combined with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, the second incident is an ‘aggravation,’ and the second employer becomes solely responsible for the entire disability at that point.” Id.
7. “[T]he employer or insurer at the time of the most recent personal injury …shall have the burden of proving another employer’s or insurer’s liability.” 21 V.S.A. § 662(c). Farris v. Bryant Grinder, 177 Vt. 456, 461 (2005). Therefore, FGB has the burden of proving AHC’s liability.
8. The question turns on the medical evidence. Dr. Backus and Dr. Wieneke believe that Claimant’s work at the Laundromat accelerated her back condition, making it an aggravation under the law of Vermont. On the other side are Dr. Brigham and Dr. Lapinsky, each of whom opined that Claimant’s current condition is the natural progression of her underlying condition.
9. Where medical experts disagree, the Department considers the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Jul. 20, 1998).
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10. Dr. Lapinsky’s opinion carries greater weight for several reasons. First, the Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). This case is no exception; Dr. Lapinsky’s education and experience as an orthopedic surgeon grant him a greater understanding of the Claimant’s condition than either occupational medical expert. Also, while Doctors Wieneke and Lapinsky are both experienced orthopedic surgeons, Doctor Lapinsky’s first-hand knowledge again tips the balance in his favor.
11. The evidence further strengthens Dr. Lapinsky’s opinion regarding the diagnosis and treatment of the Claimant. First, Dr. Gates initially recommended a second surgery to treat the Claimant’s destabilized and degenerating condition six years before the Claimant ever began working for Defendant FGB. Second, the Claimant’s pain and disability continued steadily from the early 1990’s until the 2003 surgery. Finally, the Claimant continued to experience pain in the same manner whether or not she was performing work related activities.
12. Therefore, the evidence supports recurrence in this case.
Attorney Fees and Costs
Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Defendant NH Insurance Co./American Health Care is ORDERED to pay:
1. Medical expenses related to the back injury, including the April 2003 surgery, in the amount of $57, 854.11;
2. Interest from the date each medical expense was incurred;
3. Litigation costs of $810.75;
4. Attorney fees of 20% or $9,000.00, whichever is less.
Dated at Montpelier, Vermont this 2nd day of January 2007.
________________________________
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.

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)

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

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.

Mary Ellen Cross v. State of Vermont, Dept. of Corrections (June 6, 2012)

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

Mary Ellen Cross v. State of Vermont, Dept. of Corrections (June 6, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Mary Ellen Cross Opinion No. 16-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
Department of Corrections For: Anne M. Noonan
Commissioner
State File No. CC-60304
OPINION AND ORDER
Hearing held in Montpelier on February 21, 2012
Record closed on March 27, 2012
APPEARANCES:
William Skiff, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s current right knee condition causally related either to her April 5, 2011 incident at work and/or to her September 11, 2000 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Robert Beattie, M.D., November 11, 2011
Claimant’s Exhibit 2: Various workers’ compensation forms
Claimant’s Exhibit 3: Curriculum vitae, Robert Beattie, M.D.
Defendant’s Exhibit A: Letter from Kathie Kretzer with attached Denial of Workers’ Compensation Benefits, September 8, 2003
Defendant’s Exhibit B: Curriculum vitae, Verne Backus, M.D., M.P.H.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s files relating to this claim, including both State File No. R-5641 and CC-60304.
3. Claimant has worked for Defendant as a corrections officer since June 2000. Her current position includes both supervisory and training responsibilities. She typically works a 40-hour work week plus overtime. She enjoys her job.
4. Claimant’s average weekly wage as of April 5, 2011 was $1,050.51, which yields an initial compensation rate of $700.34 weekly.
Claimant’s September 2000 Injury
5. On September 11, 2000 Claimant was instructing another officer at a computer. She knelt down to demonstrate something, and when she arose her right knee locked and would not straighten. Claimant immediately felt excruciating pain. She reported the injury to her supervisor and went directly to the hospital emergency room.
6. Claimant treated with Dr. Beattie, an orthopedic surgeon. On October 3, 2000 she underwent arthroscopic surgery. Dr. Beattie’s post-operative diagnosis was grade IV chondromalacia patella with large chondral flap tears. In laymen’s terms, this means that some time prior to her injury, a portion of the articular surface cartilage under Claimant’s kneecap had softened, leaving a significant area of exposed bone. With the cartilage in her knee thus predisposed to injury, the act of rising from a squatting position likely caused a loose flap to flip and become caught in the joint.
7. Consistent with this analysis, Dr. Beattie determined that Claimant’s cartilage tear was directly related to her work for Defendant, and was not due to her pre-existing chondromalacia. Presumably with that in mind, Defendant accepted the injury, referred to in the parties’ Agreement for Temporary Total Disability Compensation (Form 21) as a “locked knee,” as compensable.
8. The purpose of Dr. Beattie’s arthroscopic surgery was to remove the loose flap of cartilage and any other unstable fronds that might catch in the joint. Doing so eliminates the acute symptoms, but does not normalize the joint. Removing a portion of the articular surface cartilage in a weight-bearing joint decreases the surface area over which the force created by moving the joint can be distributed. As a result, the remaining cartilage is subjected to increased stress. This leads to ongoing, progressive deterioration.
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Claimant’s July 2001 Re-Injury
9. Claimant did well for approximately 10 months after her October 2000 surgery. In August 2001 she returned to Dr. Beattie, reporting that her knee had locked up momentarily in July when she arose from her desk at work. Although the knee had released on its own, since that time she had had multiple locking episodes, accompanied by pain, swelling and stiffness.
10. This time Dr. Beattie treated Claimant’s symptoms with viscosupplementation, a series of injections designed to lubricate the joint. Claimant responded well, to the point where after a time Dr. Beattie relaxed the modified duty work restrictions he previously had imposed, and allowed Claimant to resume negotiating at least short flights of stairs.
11. Defendant accepted responsibility for the medical treatment and time out of work necessitated by Claimant’s July 2001 re-injury. In August 2001 it submitted a Form 21 in which it referenced the injury (described this time as “soreness – knee”) as having occurring on September 11, 2000 and having resulted in a second period of temporary total disability beginning on July 20, 2001. The Department approved this agreement on October 15, 2001.
Claimant’s June 2003 Re-Injury
12. Although Claimant continued to experience some niggling symptoms after her 2001 re-injury, her knee functioned reasonably until June 26, 2003 when it again locked up. The incident occurred at home, when she arose from a squatting position after retrieving from a file cabinet some papers relating to her union steward responsibilities. As had been the case in 2001, Dr. Beattie successfully treated her symptoms with viscosupplementation.
13. This time, however, Defendant denied responsibility for Claimant’s re-injury claim. It did so on two grounds: first, that the incident had occurred at home, while Claimant was performing activities unrelated to her employment; and second, that her need for treatment was related not to her September 2000 work injury but rather to her underlying, pre-existing knee pathology.
14. As support for its second argument, Defendant cited to an independent medical examination performed by Dr. Backus, a board certified specialist in occupational medicine, in August 2003. Dr. Backus concluded, to a reasonable degree of medical certainty, that all of Claimant’s knee symptoms, including both the original locking episode in September 2000 and the more recent incident in June 2003, were the result of pre-existing chondromalacia and patellofemoral arthritis and thus were not work-related at all.
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15. In reaching this conclusion, Dr. Backus found significant the fact that Claimant’s work activities did not involve any unusual stress to her knee. Rather, each of the locking episodes Claimant suffered occurred in the context of normal everyday movements, such as arising from a squatting position or getting up from a chair. In his view, therefore, that any of these incidents occurred at work was purely a matter of coincidence. Their root cause was the natural progression of her underlying degenerative joint disease.
16. Even if the September 2000 incident were characterized as a work-related aggravation of Claimant’s underlying condition, Dr. Backus continued, in his analysis the June 2003 incident would be an aggravation of the same condition, and thus still unrelated to the first locking episode. In this respect, his opinion conflicts with Dr. Beattie’s analysis, as it disregards the increased stress on the surrounding cartilage that likely resulted once the cartilage flap created by the first incident was removed.
17. Having missed only three or four days from work following the June 2003 re-injury, Claimant decided that it was not worth the effort to appeal Defendant’s denial. As a result, the Department never ruled on either of the grounds Defendant asserted in support of its position.
Claimant’s April 2011 Re-Injury
18. Although her knee continued to ache occasionally, after June 2003 Claimant did not experience any additional locking episodes for almost eight years, until April 5, 2011. On that date, she was sitting in a swivel chair at her work station and when she turned to get up so that she could attend to another work task, her knee locked.
19. As with the prior two episodes, Dr. Beattie treated this most recent incident with another series of viscosupplementation injections. Claimant also underwent a course of physical therapy. Although her acute symptoms have since abated, her knee continues to ache, and she still has difficulty negotiating stairs. For the time being, at least, she has concluded treatment.
20. Following this most recent locking episode Claimant was totally disabled from working from April 5, 2011 through August 2, 2011.
21. Defendant has denied responsibility for Claimant’s April 2011 re-injury on the grounds that it is not work-related. As support for this position, it cites again to Dr. Backus’ opinion. Dr. Backus conducted a second independent medical examination of Claimant in July 2011.
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22. As he had in the context of her 2003 re-injury, Dr. Backus concluded that Claimant’s re-injury was causally related to her pre-existing degenerative joint disease rather than to any work event. In reaching this conclusion, his analysis was essentially the same as that propounded in 2003 – that moving one’s knee to get up from a chair is a normal activity not specific to work and therefore does not constitute a new injury. Again, Dr. Backus did not address from a medical perspective whether Claimant’s knee had been rendered more susceptible to subsequent locking episodes once the cartilage flap created by the original episode in September 2000 had been removed.
23. In contrast, Dr. Beattie has continued to maintain that Claimant’s most recent re-injury is a direct consequence of her original September 2000 injury. His deposition testimony illustrates how strongly he holds that opinion:
I don’t usually word things quite so emphatically, directly, and definitively because there’s often gray zones, but in this case she had such a significant and clear-cut traumatic [cartilage] injury that sets her up for ongoing and . . . progressive post-traumatic degenerative change that I thought there was no doubt in my mind, so I actually used more definitive wording than I often use and said that this is a direct consequence of her original injury. That was a function of the clarity of causation that would allow me to make that statement.
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 April 2011 re-injury is compensable. With Dr. Beattie’s expert medical opinion as support, Claimant asserts that this most recent locking episode is a direct consequence of her compensable September 2000 knee injury. Defendant raises three arguments in defense: first, that the mechanism of injury was insufficiently connected to work to be deemed to have arisen out of it; second, that Claimant’s 2003 re-injury broke any causal link that might otherwise have related back to the original compensable event; and third, that the more credible medical evidence fails to establish a causal connection between the April 2011 re-injury and any prior work-related injury or event.
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Positional Risk Analysis
3. Defendant’s first argument requires consideration of the “arising out of” component for determining compensability under Vermont law. Satisfying this factor requires a causal connection between an employee’s injury and his or her work – not necessarily in the sense of proximate or direct cause, but rather as an expression of origin, source or contribution. Lehneman v. Town of Colchester, Opinion No. 10-12WC (March 13, 2012), and cases cited therein.
4. Vermont has long adhered to the “positional risk” doctrine in interpreting and applying the “arising out of” prong of the compensability test. Miller v. IBM, 161 Vt. 213 (1993), citing Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993). According to this doctrine, an injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Id., quoting 1 A. Larson, Workmen’s Compensation Law §6.50 (1990) (emphasis in original).
5. Positional risk analysis thus differs in important respects from the “neutral risk” rule applied in many other states. In order to satisfy the “arising out of” component of compensability under a neutral risk analysis, the conditions of employment must expose the employee to a risk of injury “greater than that to which the general public is exposed.” Illinois Consolidated Telephone Co. v. Industrial Commission, 732 N.E.2d 49, 56-57 (2000) (Rakowski, J., concurring). No such “greater-than-the-general-public” type exposure is required in a positional risk state. Id., citing 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law §7.04(1) at 7-15 (1999).
6. Viewed in this context, I cannot accept the essence of Defendant’s first argument – that even if it occurs at work, the mere act of arising from a chair is insufficient to establish the employment connection necessary to support a finding of compensability. To the contrary, it was the conditions and obligations of Claimant’s employment that placed her in the position where she was injured. That she might – or might not – have injured her knee while arising from a chair at home is irrelevant. Boucher v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008); Singer v. S.B. Collins/Jolly Associates, Opinion No. 32-04WC (August 19, 2004).
7. The facts in Boucher are strikingly similar to those presented here. The claimant there injured his knee when he twisted it while turning to walk around a desk. As here, the mechanism of injury was such that it easily could have occurred outside of work. Also as here, the claimant was found to have pre-existing, but asymptomatic, degenerative joint disease. The employer argued that because there was no exceptional work activity or abnormal work condition to explain why the claimant’s knee twisted and gave out when it did, the cause must have been purely personal rather than employment-related, and therefore the “arising out of” component was not satisfied.
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8. The commissioner disagreed, concluding that the claimant’s injury resulted from a confluence of both personal and employment risks. The personal risk was a pre-existing condition that likely predisposed the claimant to an acute injury. The employment risk was the route he needed to traverse in order to accomplish his work tasks. The two together were sufficient to establish work-related causation.
9. The commissioner’s recent decision in Lehneman, supra, to which Defendant cites in support of its position, is not inconsistent with this reasoning. In that case, the connection between the claimant’s injury – breaking a tooth while eating at his desk – and his work was deemed insufficient to establish that one arose out of the other. The key fact was that the instrumentality by which the claimant was injured – a piece of hard, overcooked food – was neither supplied nor suggested by the employer. Thus, while the conditions and obligations of his employment may have required that he eat while on duty, the source of his injury was his own, purely personal menu decision.1
10. In contrast, it was the conditions of employment that supplied both the desk around which the claimant in Boucher had to maneuver and the chair from which Claimant here had to arise. This might be considered too tenuous a connection to support compensability in a neutral risk state, but I conclude that it is sufficient for positional risk purposes. I therefore conclude that Claimant’s April 2011 re-injury arose out of her employment.
Claimant’s 2003 Re-injury as an Intervening Cause
11. Defendant’s second argument – that Claimant’s 2003 re-injury broke the causal link back to her original injury in September 2000 – is also unpersuasive. Having accepted the prior injury as compensable, Defendant remains responsible for the direct and natural consequences that flow from it. Bower v. Mount Mansfield, Opinion No. 03-12WC (January 18, 2012), citing 1 Lex K. Larson, Larson’s Workers’ Compensation §10 (Matthew Bender, Rev. Ed.) at p. 10-1. For an intervening, non-work-related event to sever the connection back, the claimant must be shown to have acted unreasonably under the circumstances. Bower, supra; McNally v. State of Vermont Department of PATH, Opinion No. 37-11WC (November 15, 2011). That was not the case here. I conclude that the 2003 incident did not break the causal link back to the original compensable injury.
Medical Causation
12. Defendant’s third argument is that the more credible medical evidence fails to establish a causal connection between Claimant’s most recent re-injury and any of her prior work injuries. Rather, it argues that the sole cause, not only of this knee injury but of all of her prior injuries as well, is her pre-existing degenerative joint disease.
1 To illustrate the difference between these two concepts, had the claimant in Lehneman, a police officer, choked on his food while rushing to his cruiser to answer an emergency call, the origin of any resulting injury may well have been deemed work-related rather than personal, and therefore compensable.
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13. The parties presented conflicting expert testimony on medical causation, both as to Claimant’s most recent re-injury and as to her prior locking episodes. 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).
14. Applying these factors here, I conclude that Dr. Beattie’s opinion is the most credible. He has been Claimant’s treating orthopedic surgeon since her original injury, and therefore is well positioned to evaluate how her condition has progressed through subsequent locking episodes. He provided a clear, concise and thorough analysis of the manner in which surgically removing the flap created by Claimant’s September 2000 injury caused additional stress to the surrounding cartilage, thus increasing the potential for exactly the type of re-injuries that she has since experienced. Dr. Beattie’s training and experience as an orthopedic surgeon lend an extra measure of credibility to his analysis.
15. Dr. Backus’ analysis was less clearly stated. He focused solely on Claimant’s pre-existing chondromalacia as the origin of her injuries, and thus failed to address whether removing the cartilage flap created by the first, compensable locking episode may have weakened the joint and thereby contributed to her subsequent episodes. His opinion is less persuasive as a result.
16. As for the cause of Claimant’s April 2011 re-injury, furthermore, Dr. Backus’ opinion failed to provide the very perspective for which his expertise was solicited. The medical question presented by the pending claim is whether the act of getting up from a chair likely caused Claimant’s knee to lock and if so, why. Dr. Backus’ opinion – that because the act of arising from a chair is a normal work activity, it does not constitute a new injury – states a legal conclusion, not a medical one.
17. I conclude that Claimant has sustained her burden of proving that her April 2011 re-injury arose out of and in the course of her employment. Consistent with Dr. Beattie’s opinion, I further conclude that it occurred as a natural and direct consequence of her original compensable injury in September 2000 and that therefore it is itself compensable.
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18. In reaching this conclusion, I reject Defendant’s assertion that the only injuries it acknowledged as compensable were the September 2000 and July 2001 locked knee episodes, and not the underlying medical diagnoses to which those episodes were attributable. Defendant was well aware of Dr. Beattie’s diagnosis – a traumatic cartilage tear superimposed on pre-existing chondromalacia – at the time it executed the compensation agreement relating to Claimant’s first injury. Less than a year later, it reaffirmed the compensability of that condition, specifically referencing the original date of injury in the compensation agreement referable to her second locking episode. Once approved by the Department, those agreements became binding contracts. Workers’ Compensation Rule 17.000; Coronis v. Granger Northern, Inc., Opinion No. 16-10WC (April 27, 2010). Defendant has long since waived its right to contest the material portions of those agreements, and cannot now attempt to limit its exposure for further episodes arising from the same diagnosis.
19. As a result of her April 2011 injury, Claimant has established her right to temporary total disability benefits from April 5, 2011 through August 2, 2011. She also is entitled to medical benefits covering all reasonable medical services and supplies causally related to treatment of that injury. Claimant’s entitlement to additional benefits, including permanent partial disability, must await further proof.
20. As Claimant has prevailed on her claim for benefits, she 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 her itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from April 5, 2011 through August 2, 2011, in accordance with 21 V.S.A. §642, with interest as calculated in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s April 5, 2011 compensable injury, in accordance with 21 V.S.A. §640; and
3. Costs and attorney fees in amounts to be submitted, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 6th day of June 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.

Semka Mujic v. Vermont Teddy Bear Factory (February 7, 2012)

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

Semka Mujic v. Vermont Teddy Bear Factory (February 7, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Semka Mujic Opinion No. 04-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Vermont Teddy Bear Factory
For: Anne M. Noonan
Commissioner
State File No. AA-56037
OPINION AND ORDER
Hearing held in Montpelier on November 2, 2011
Record closed on December 13, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant’s work for Defendant cause or aggravate her current cervical spine condition?
2. Does Dr. Jewell’s proposed fusion surgery represent reasonable medical treatment under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Stipulation
Claimant’s Exhibit 1: Deposition of Ryan Jewell, M.D., November 2, 2011
Defendant’s Exhibit A: Personnel file
Defendant’s Exhibit B: Site visit video, May 20, 2011
Defendant’s Exhibit C: Video evaluation by Dr. Sobel
Defendant’s Exhibit D: Curriculum vitae, Jonathan Sobel, M.D.
Defendant’s Exhibit E: Curriculum vitae, George White, Jr., M.D., M.S.
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
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 Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s Work from 1996 to 2010
3. Claimant, a Bosnian native, immigrated to the United States in 1996 and settled in Vermont. She began working as a sewer for Defendant in November 1996. Her job was to assemble component parts for teddy bears. The work was fast-paced and somewhat strenuous. It required her to force thick material through an industrial sewing machine for the whole of her eight-hour day. Claimant testified that sitting in a bent-over position as she worked the sewing machine she often felt strain in her neck, upper back and shoulders. She never reported any injury to her supervisors, however, and never sought medical treatment for these complaints during her tenure at this job.
4. Claimant worked at the sewing job for three years. In September 1999 she left to take a job assembling cable at Huber+Suhner. Claimant found this job to be much easier, as it was not as fast-paced or as stressful physically as her work for Defendant had been.
5. Claimant worked at Huber+Suhner for two years. She was laid of in September 2001. Thereafter, she was unemployed for approximately one year. In October 2002 she again sought employment at Defendant’s facility and was rehired.
6. Upon returning to work for Defendant, initially Claimant resumed her old job sewing teddy bear parts. In May 2004 she transferred to the order fulfillment department. Claimant welcomed the transfer, as she anticipated that this job would be less taxing physically.
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7. Claimant’s duties in order fulfillment were varied.1 Her primary responsibility was packing pajamas. As a cardboard shipping box containing whichever products a customer had ordered came down the conveyor belt from the picking line, Claimant would remove the products, fold and place them into a decorative organza container, then return them to the shipping box and send it down the line to the shipping department. Claimant typically spent six to eight hours daily at this task, and typically met the expected quota of 20 boxes packed per hour.
8. During her tenure in the order fulfillment department, Claimant spent most of her time on the pajama packing line. Depending on Defendant’s needs, at times she worked on the bear packing line instead. This was a similar process, with the added step of dressing the bears in accordance with the customer’s order prior to sending the box down the line to be shipped.
9. At other times Claimant worked on the picking line – on busy days, for up to three or four hours, less on slower days. This task involved manually moving several shipping boxes at a time down a conveyor belt, picking the products required to fulfill each customer’s order as she went. The products were stored in cardboard boxes arranged on shelves to her side, from floor level to above-shoulder height. Once each order was completed, Claimant would move its shipping box from the manual conveyor to a mechanical one, where it would travel to the packing line.
10. With cross-training, Claimant sometimes performed other functions as well. One or two days per week she worked in the print room, printing and sorting incoming order forms. Other assignments included hand-checking boxes for quality control, embroidering personalized bears and hand-wrapping boxes for storage. Monthly she would have to assist with inventory, which required removing the boxes in the picking area from their shelves, counting the product inside and then placing the boxes back on the shelves.
11. One of the tasks with which Claimant experienced the most difficulty was stocking product in the picking area. She used a small box cutter to open the front of each box so that it could be accessed easily from the picking line. The cardboard was thick, and cutting through it caused pain in her right arm. It is unclear from the evidence presented how often Claimant had to perform this task.
12. Claimant worked in the order fulfillment department from May 2004 until October 1, 2010. She terminated her employment with Defendant on that date and moved to Massachusetts, where her husband had taken a job. She has not worked since. In July 2011 she was determined eligible for social security disability benefits on account of an unrelated medical condition.
Claimant’s Prior Medical History
1 Some of Claimant’s job assignments were depicted on Defendant’s Exhibit B, a videotaped demonstration by her supervisor of the various tasks involved on each line, albeit not at the same pace that Claimant would have had to perform them. Claimant described other job assignments, not depicted on the video, in her formal hearing testimony.
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13. As documented by her medical records, Claimant has a history of neck and right upper extremity complaints dating back at least to July 2000. The symptoms she reported at that time included constant neck pain, discomfort extending into her right shoulder and arm, headaches and right-sided facial numbness. Notably, during the time when Claimant underwent evaluation and treatment for these symptoms, from July 2000 through July 2001, she was working not for Defendant but in her cable assembly job at Huber+Suhner. Claimant herself described this job as lacking the stress and strain on her neck, upper back and right arm that she had attributed to her sewing job.
14. Despite diagnostic testing, the etiology of Claimant’s symptoms was never definitively established. An MRI study in April 2001 revealed a degenerative C5-6 disc herniation, which the evaluating physician thought could account for her neck pain, but likely was not the cause of her right-sided facial numbness. Nor did either the MRI findings or subsequent electrodiagnostic studies explain her right shoulder and upper extremity complaints, which were diffuse rather than radicular in nature.
15. As treatment for her neck pain, Claimant underwent a cervical epidural steroid injection, but this failed to provide any significant relief. Given the diffuse nature of her symptoms, she was deemed not to be an appropriate surgical candidate. Rather, in light of her “broad spectrum of discomfort,” the evaluating physician recommended instead that she consider evaluation by a physiatrist or rheumatologist. From the medical records, it does not appear that Claimant ever pursued this recommendation.
16. Claimant next sought treatment for symptoms similar to those described above between February and November 2004. By this time she had been back to work for Defendant for more than a year. Claimant complained of right-sided neck pain, occasional weakness in her right arm and right-sided headaches and head numbness. Dr. Siegel, her primary care physician, diagnosed her neck pain as an “exacerbation of [her] C5-6 disc.” Her headache pain and numbness Dr. Siegel attributed to occipital neuralgia, an irritation of the occipital nerve. This nerve extends from one of the upper nerve roots in the cervical spine up into the base of the skull. Dr. Siegel did not attribute the cause of either of the conditions she diagnosed to Claimant’s work for Defendant.
17. Claimant did not treat again for neck, shoulder or right upper extremity pain until May 2007. During the intervening years, she did seek treatment for other medical issues, including low back pain, abdominal pain, asthma and sinusitis. Among the symptoms she reported at times were headaches, right ear pain and right-sided numbness and discomfort in her throat, ear and head. The medical records do not document that either Claimant or her providers related these symptoms in any way to her work for Defendant.
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Claimant’s May 2007 Injury Claim
18. In May 2007 Claimant sought treatment with Dr. Fitzgerald for complaints of right-sided pain and numbness in her neck, head and face, as well as pain, numbness and occasional paresthesias in her right hand and wrist. Dr. Fitzgerald is board certified in both family practice and urgent care medicine. At the time he was Defendant’s designated physician for treatment of its occupationally injured employees. In that capacity Dr. Fitzgerald had toured Defendant’s facility on at least two occasions, though not more recently than 2004.
19. Dr. Fitzgerald reported that Claimant’s symptoms began in February 2007, around the busy Valentine’s Day holiday, and that her job duties involved “repetitive packaging.” Based in part on his familiarity with the type of work performed at Defendant’s facility, Dr. Fitzgerald determined that Claimant’s condition was causally related to repetitive overuse at work. Defendant thus accepted it as compensable and began paying medical benefits accordingly.
20. Of note, Claimant reported to Dr. Fitzgerald that she had no prior history of neck or upper extremity injury, and it does not appear that Dr. Fitzgerald ever reviewed her prior medical records. Apparently he did not know, therefore, that at least some of the symptoms of which Claimant complained in May 2007 had been troubling her on occasion for several years.
21. At Dr. Fitzgerald’s referral, in June 2007 Claimant underwent electrodiagnostic studies with Dr. Roomet, a neurologist. These studies failed to reveal any discrete nerve damage or entrapment in Claimant’s right arm, such as carpal tunnel syndrome or ulnar neuropathy, nor any clear evidence of cervical radiculopathy. Dr. Roomet concluded that Claimant’s symptoms were multi-factorial, with elements of cervical pain, right-sided occipital neuralgia and possibly tendonitis. As treatment for her neck, head and shoulder symptoms he recommended trigger point injections and an occipital nerve block. For her forearm, hand and wrist pain he recommended workplace modifications, rest, anti-inflammatory medications and physical therapy.
22. Claimant continued to work over the course of the ensuing months, albeit with modified-duty limitations imposed by Dr. Fitzgerald. These included restrictions against lifting more than twenty pounds or reaching above her shoulders.
23. Consistent with Dr. Roomet’s recommendation, in October 2007 Claimant underwent a right occipital nerve block. By this time she was reporting that her right arm symptoms, which previously had extended from her shoulder down into her hand, thumb and first two fingers, had resolved. Following the injection Claimant reported 80 percent relief of her neck pain.
24. In November 2007 Dr. Fitzgerald determined that Claimant’s occipital neuralgia had resolved. He therefore placed her at end medical result, with no permanent impairment and no further work restrictions.
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Claimant’s September 2008 Exacerbation
25. Ten months later, in September 2008 Claimant returned to Dr. Fitzgerald, again complaining of symptoms consistent with occipital neuralgia, including neck and right shoulder pain and right-sided numbness in her face and head. As before, Dr. Fitzgerald noted that Claimant “does repetitive use at work.” He characterized her symptoms as an exacerbation of her 2007 work-related injury.
26. In the months that followed Claimant underwent numerous evaluations, diagnostic studies and courses of treatment. If nothing else, the results appear to support Dr. Roomet’s analysis in 2007 – that Claimant’s condition was multi-factorial and therefore not amenable to singular diagnosis or treatment. Among the findings reported:
• In addition to the symptoms she reported to Dr. Fitzgerald, during the course of her physical therapy and work hardening sessions Claimant complained of such varied symptoms as tingling in the third and fourth fingers of her right hand, occasional dizziness when moving her head or neck away from a neutral position, numbness around and behind her right ear, shooting pain down her right arm, achiness in her right hand, pain in her right shoulder blade and constant “whole body fatigue.”
• A cervical MRI study in November 2008 documented moderate degenerative disc space narrowing at C5-6 and mild narrowing of the spinal canal at this level as well, but no disc herniation or spinal cord compression;2
• As was the case with Dr. Roomet’s diagnostic studies, electrodiagnostic testing conducted by Dr. Haq in December 2008 was negative for both cervical radiculopathy and carpal tunnel syndrome;
• A third electrodiagnostic study, this one conducted by Dr. Starr in July 2009, again failed to reveal sufficient evidence of carpal tunnel syndrome, radiculopathy or plexopathy to explain Claimant’s right shoulder, arm or hand complaints, and instead suggested an underlying myofascial pain syndrome as more likely causative;
• Evaluation and treatment by Dr. Landrigan, an ear, nose and throat specialist, in 2009 revealed that Claimant likely suffered from chronic rhinosinusitis, a condition that might account for at least some of her craniofacial pain complaints.
27. In June 2010 Claimant requested that her primary care physician, Dr. Siegel, refer her for an evaluation with Dr. Jewell, a neurosurgeon whom her attorney had suggested she consult. Dr. Siegel complied, and made the requested referral for evaluation of Claimant’s reported neck, right shoulder and right upper extremity symptoms.
2 Unfortunately, this MRI study was not compared with the earlier one completed in 2001, so there is no way to know whether or to what extent the degeneration at this level had advanced in the intervening years.
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28. In preparation for Dr. Jewell’s evaluation, in July 2010 Claimant underwent a third cervical MRI study. The results described more advanced degeneration at the C5-6 level than what was apparent on Claimant’s 2008 MRI study, and for the first time revealed a small dent, or effacement, in the spinal cord itself.
29. Dr. Jewell diagnosed Claimant with both cervical radiculopathy and early myelopathy. The two diagnoses describe different conditions, though in Dr. Jewell’s analysis both arose from the same source, namely, Claimant’s C5-6 disc. Radiculopathy refers to the condition that results when the nerve at a particular level of the spine becomes pinched, resulting in symptoms that radiate down an extremity. A pinched nerve at the C-6 level can cause pain from the neck, down the arm and into the thumb and forefinger. Dr. Jewell characterized the symptoms Claimant described as a “classic distribution” of C-6 radiculopathy.
30. In contrast, myelopathy refers to the condition that results when the spinal cord itself becomes pinched. In its early stages myelopathy can be asymptomatic, but it can become a serious problem over time. In Claimant’s case, Dr. Jewell found evidence of myelopathy in two aspects of his clinical examination, both of which indicated spinal cord compression.
31. Both radiculopathy and myelopathy are to be distinguished from occipital neuralgia, the diagnosis given previously by Drs. Siegel, Roomet and Fitzgerald to account for at least some of Claimant’s head and neck symptoms. Dr. Jewell did not mention occipital neuralgia in either his evaluation or in his deposition testimony, and thus did not explain how that diagnosis might fit into his analysis of Claimant’s symptomatology, if at all.
32. Dr. Jewell attributed the cause of both Claimant’s C-6 radiculopathy and her early myelopathy to the C5-6 disc herniation indicated on her July 2010 MRI study. He did not offer any explanation as to how the herniation occurred, nor did he state any opinion as to whether it was causally related to Claimant’s work for Defendant. Notably, he was unaware that Claimant had been complaining of neck, shoulder and right arm symptoms as far back as 2000, and that prior MRI studies had documented degenerative changes at the C5-6 level as early as 2001. To the contrary, from the history that Claimant reported to him, he understood that her symptoms first arose in 2008.
33. As treatment for Claimant’s condition Dr. Jewell has recommended C5-6 fusion surgery. The purpose of this surgery is both to halt the further progression of her myelopathy and to take the pressure off of the C-6 nerve. Relieving the pressure will not “fix” the nerve itself, but hopefully it will alleviate Claimant’s radicular pain.
34. Claimant has not treated for her neck, right shoulder or arm symptoms since moving to Massachusetts in October 2010. At the formal hearing, she described her current symptoms as including pain in her right shoulder and neck, pain and weakness throughout her right arm and numbness in her palm and first three fingers on her right hand. As recently as July 2011 she also was complaining of constant facial numbness and numbness and tingling on the right side of her head.
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35. Claimant testified that she left her job not only because her husband had moved but also because due to her pain she could no longer tolerate the work. No medical provider ever disabled her totally from working, however, and there is no evidence that Defendant was not accommodating the modified-duty restrictions that Dr. Fitzgerald imposed after her 2008 exacerbation.
Expert Medical Opinions
36. The parties each presented expert medical opinions as to (1) whether Claimant’s current condition is causally related to her work for Defendant; and (2) whether Dr. Jewell’s proposed fusion surgery is reasonable and necessary.
(a) Dr. Fitzgerald
37. Dr. Fitzgerald was Claimant’s treating physician from May 2007 until August 2009. As noted above, Finding of Fact No. 18 supra, he was familiar with Defendant’s operation, having toured the facility previously, and presumably understood the general nature of Claimant’s job duties there. He was less familiar with Claimant’s medical history, however, and as noted above, Findings of Fact Nos. 19-20 supra, was unaware that her symptoms did not originate in 2007 but rather dated back at least to 2000.
38. Dr. Fitzgerald asserted that the repetitive nature of Claimant’s work for Defendant caused or contributed to her current condition. In stating this conclusion, Dr. Fitzgerald did not specify which of Claimant’s job tasks were so repetitive as to result in the particular injury from which she now suffers. This is a significant omission. The undisputed evidence showed that Claimant’s job responsibilities were diverse and varied. As demonstrated on the video (which Dr. Fitzgerald did not view), Claimant clearly had to use her right upper extremity throughout her work day in order to accomplish her assigned job tasks. Dr. Fitzgerald did not offer any explanation, however, as to the mechanism by which using her right arm repetitively translated either to advanced degeneration in Claimant’s cervical spine or to inflammation of her occipital nerve.
39. Dr. Fitzgerald did not voice an opinion as to whether Dr. Jewell’s proposed fusion surgery is reasonable and necessary. Rather than making specific treatment recommendations, he has suggested instead that Claimant be retrained for an occupation that does not require repetitive use of her right arm.
(b) Dr. White
40. At Defendant’s request, in April 2009 Claimant underwent an independent medical examination with Dr. White, a board certified specialist in occupational medicine. Dr. White conducted a physical examination and initially, reviewed Claimant’s medical records dating back to Dr. Fitzgerald’s May 2007 examination. Later, he reviewed additional records dating back to April 2005. Dr. White also viewed the videotaped demonstration of Claimant’s primary job responsibilities.
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41. In Dr. White’s opinion, it is impossible to state to the required degree of medical certainty that Claimant’s work for Defendant caused or contributed to her current cervical condition. Chronic neck pain is a relatively common ailment, and the degenerative disc disease in Claimant’s cervical spine is typical for her age. Her job duties did not involve activities typically associated with cervical spine injury, such as sustained static neck posture, high static loads or repetitive heavy overhead lifting. Thus, while anything is possible, there is no basis for concluding definitively that Claimant’s C5-6 disc herniation was in any way work-related. I find Dr. White’s analysis in this regard to be credible.
42. As for the etiology of the symptoms in Claimant’s right arm, hand and fingers, Dr. White was unconvinced that they represented C5-6 radiculopathy. To him they appeared somewhat non-specific, and were not verified electrodiagnostically. Nevertheless, he acknowledged the possibility that they still could be radicular in origin, as Dr. Jewell had concluded.
43. Dr. White stopped short of characterizing Dr. Jewell’s proposed fusion surgery as an unreasonable treatment option for Claimant, although that would not have been his recommendation. If in fact Claimant’s right arm, hand and finger symptoms represent radiculopathy, then surgery might alleviate them. Given its chronic nature, however, surgery likely will not resolve her neck pain.
(c) Dr. Sobel
44. At Defendant’s request, in July 2011 Claimant underwent an independent medical examination with Dr. Sobel, a board certified orthopedic surgeon. Dr. Sobel described his current practice as a general orthopedic one. Cervical conditions are not a particular focus, and in fact he has not performed a cervical spine surgery for at least ten years. At least 50 percent of his practice involves independent medical evaluations.
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45. Dr. Sobel physically examined Claimant and reviewed her medical records dating back to 2001. He also viewed the video demonstration of her primary job assignments. According to his analysis of the medical evidence:
• Claimant’s hand pain does not correlate entirely with her cervical spine symptoms, and has never been definitively diagnosed;
• Claimant’s shoulder and neck pain is likely referred rather than radicular in nature, meaning that although the body perceives it as radiating it does not follow a specific dermatomal pattern along the nerve root itself;
• Claimant exhibited signs of symptom magnification during her physical examination, including non-specific pain complaints and facial grimacing;
• Claimant’s work activities did not consist of a single repetitive motion but rather involved multiple varied movements, most of which were conducted at waist level; and
• Despite not having worked for almost a year at the time of his examination, Claimant still complained of pain with motion of her neck or shoulder.
46. I find credible Dr. Sobel’s observations regarding the nature of Claimant’s work and the absence of repetitive activities typically associated with cervical spine injury or disease. I find less credible his determination that Claimant was exaggerating her symptoms. Neither Claimant’s primary care physician, Dr. Siegel, nor Dr. Fitzgerald, who treated her neck and shoulder symptoms for more than two years, ever reported evidence of symptom magnification over the course of their many office visits with Claimant.
47. Dr. Sobel conceded that Claimant likely suffered a work-related overuse injury to her shoulder in 2007, which he diagnosed as an episode of subacromial bursitis or tendonitis.3 In his analysis, however, her current symptoms most likely represent cervical degenerative disc disease, which according to the medical records has been progressing for many years. In Dr. Sobel’s opinion, to a reasonable degree of medical certainty, this condition is not causally related in any way to Claimant’s work activities for Defendant.
48. Dr. Sobel does not believe that Dr. Jewell’s proposed fusion surgery is medically indicated, and doubts that Claimant will realize any long-term relief of symptoms from it. In his opinion, therefore, the surgery is neither reasonable nor necessary.
3 Of note, in June 2007 Dr. Roomet posited a similar diagnosis as one component of what he considered to be a multi-factorial problem. See Finding of Fact No. 21 supra.
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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 primary disputed issue in this claim is whether Claimant’s work for Defendant either caused or aggravated her current cervical condition. If it did, then the secondary disputed issue is whether Dr. Jewell’s proposed fusion surgery represents reasonable and necessary medical treatment.4 Claimant bears the burden of proof on both of these issues. Egbert, supra; Johnson v. Oly Equinox Holding Company, Opinion No. 25-10WC (August 5, 2010).
3. As to the first issue, the parties presented conflicting expert medical evidence. 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. I conclude here that the Dr. Fitzgerald’s causation opinion was not sufficiently credible to sustain Claimant’s burden of proof. In reaching this conclusion, I acknowledge his familiarity both with the type of work that Defendant’s employees generally perform and with Claimant’s medical course over the two years during which he treated her. Ordinarily this would lend significant weight to his opinion.
5. Here, however, Dr. Fitzgerald’s familiarity with Claimant’s condition was undermined by his failure to acquaint himself with her prior medical history. As a result, he did not consider how the complaints she presented as work-related from May 2007 forward may have fit into the broader context of similar, non-work-related complaints documented some years earlier.
4 Claimant seeks other workers’ compensation benefits as well, though primarily these all flow from her claim that Dr. Jewell’s surgery is compensable.
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6. Perhaps more disturbing, despite Dr. Fitzgerald’s general familiarity with the type of work Defendant’s employees perform he failed adequately to explain how Claimant’s specific job tasks either caused or aggravated the cervical condition for which she now requests surgery. Given Claimant’s complicated medical history and multi-factorial symptom presentation, to say simply that Claimant’s “repetitive work” caused her injury raises more questions than it answers. How do job tasks that involve primarily upper extremity use cause or aggravate cervical disc degeneration? Is Claimant’s occipital neuralgia related to repetitive work as well? Where do her complaints of right-sided head and facial numbness fit in? If her symptoms are work-related, why have they not improved in the year since she left her job? Without answers to these questions, Dr. Fitzgerald’s opinion is so conclusory as to be unpersuasive.
7. In contrast, both Dr. White and Dr. Sobel analyzed Claimant’s specific job activities for the purpose of identifying whether they involved any of the stressors typically associated with cervical injury or disease, and found none. I accept as credible their determination that absent such a link, there is no basis for concluding to the required degree of medical certainty that Claimant’s cervical condition is work-related.
8. I conclude that Claimant has failed to sustain her burden of proving that her work for Defendant caused or aggravated either her C5-6 disc herniation or her occipital neuralgia. Neither of these conditions is compensable, therefore.
9. As for the proposed fusion surgery, based on Dr. Jewell’s expertise as a neurosurgeon I accept as credible his determination that medically it is a reasonable and necessary treatment option for Claimant to pursue. In the workers’ compensation arena, however, to be reasonable a treatment must be causally related to a compensable work injury as well. Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). That is not the case here. I conclude, therefore, that Dr. Jewell’s proposed surgery does not represent reasonable treatment for which Defendant can be held responsible under 21 V.S.A. §640(a).
10. Having failed to prevail on her claim for benefits, Claimant is not entitled to an award of costs and 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 her current cervical condition is hereby DENIED.
DATED at Montpelier, Vermont this 7th day of February 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.

Al Waters Jr. v. Commonwealth Dairy LLC (August 28, 2012)

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

Al Waters Jr. v. Commonwealth Dairy LLC (August 28, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Al Waters, Jr. Opinion No. 22-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Commonwealth Dairy, LLC
For: Anne M. Noonan
Commissioner
State File No. DD-00357 OPINION AND ORDER
Hearing held in Montpelier, Vermont on June 12, 2012
Record closed on July 13, 2012
APPEARANCES:
Sharon Gentry, Esq. and Thomas Costello, Esq., for Claimant
Jennifer Moore, Esq., for Defendant
ISSUES:
1. Did Claimant’s venous stasis ulcer and/or cellulitis infection arise out of and in the course of his employment with Defendant?
2. Was Claimant’s venous stasis ulcer and/or cellulitis infection aggravated by his employment for Defendant?
3. If so, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Gregory Gadowski, M.D.
Defendant’s Exhibit A: Claimant’s time records
Defendant’s Exhibit B: Claimant’s short term disability application
Defendant’s Exhibit C: Claimant’s job description
Defendant’s Exhibit D: Claimant’s Employment Physical Exam Report
Defendant’s Exhibit E: Claimant’s employment application
Defendant’s Exhibit F: Claimant’s resume
Defendant’s Exhibit G: Curriculum vitae, Stuart Glassman, M.D.
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant began work for Defendant in January 2011. Defendant was then a start up dairy manufacturing plant that planned to produce yogurt. Claimant was hired as a packager. Before Defendant could go into a production phase, the machinery had to be set up and the employees had to be trained.
Claimant’s Job Duties from January through March 2011
4. For the first four weeks of Claimant’s employment for Defendant, he received classroom-type training on how to set up and use the machines in the plant. During this period, he sat at a table or desk for most of the day. Employees were allowed two 15-minute breaks during the day, as well as one hour for lunch.
5. Even after the first four weeks of its operation, Defendant still had yet to receive its first delivery of milk. Because it had promised its work crew 40 hours of work per week, the employees were kept busy with snow shoveling, landscaping, learning how to run a forklift and cleaning the floors.
6. In late March 2011, Defendant was ready to start test production runs. Thereafter, employees’ lunch breaks were reduced from one hour to only 30 minutes.
7. By April 2011 Defendant’s production runs were to the point where it was anticipating that the plant would soon be fully operational. The employees began to assume their own job duties on a regular basis.
8. Claimant’s specific job duties as a packager consisted of filling boxes on a conveyor belt with small containers of yogurt. For that portion of his job he stood at the conveyor belt. However, he was also expected to work at the end of the belt and load the boxes of yogurt onto a pallet. When the pallet was full, Claimant then carried it to the cooler for storage. As Claimant credibly described it, “I bounced around between machines.”
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9. Based on Claimant’s own credible testimony, I find that there were no extended periods of static standing during the pre-production phase of his employment for Defendant. I further find that once the plant became fully operational the production line workers, including Claimant, moved around frequently and interchanged positions.
Claimant’s 2010 and 2011 Venous Stasis Ulcers
10. Claimant suffers from venous stasis deficiency disease. This disease occurs when the valves in one’s veins become incompetent or defective. As a result, the normal flow of blood back to the heart is impaired. Gravity causes a reversal of blood flow, which leads to pooling of blood in the lower legs.
11. In April 2010, Claimant was treating with Dr. Park, a primary care provider at the Deerfield Valley Health Center, for an unrelated medical condition. At this routine appointment he reported that he had a wound on his right lower leg that had been there for almost a year. The wound was diagnosed as a venous stasis ulcer. By their very nature, such ulcers are slow to heal.
12. A common form of treatment for venous stasis ulcers is an Unna boot. This is a treated dressing that applies compression to the area wrapped. In Claimant’s case, the boot was applied from his right foot up his leg to just below his knee. Dr. Park instructed Claimant to keep the Unna boot dry and clean.
13. Claimant returned in May 2010 to have the boot changed, and again in June 2010. At the latter visit, Dr. Park reported that the ulcer was improving and was less deep. When Claimant returned in July 2010, he reported to Dr. Park that he had taken the Unna Boot off a week earlier. Dr. Park noted that the ulcer looked worse.
14. In September 2010 Claimant reported that the ulcer continued to be a problem and that he wanted to restart the Unna Boot. Thereafter, the ulcer improved, to the point where it was almost completely closed by the time of his October 19, 2010 appointment. From October 2010 to the end of March 2011, Claimant had medical appointments for other reasons, but the ulcer was not mentioned.
15. At an April 12, 2011 appointment, however, Claimant was noted to have developed a venous stasis ulcer on his right lower leg that was surrounded by dead tissue. The dead tissue was removed and an Unna boot was applied. It was clear to both Claimant and his providers that this was a new ulcer, located approximately three inches away from the site of his 2010 ulcer.
16. When Claimant returned on April 21, 2011 to have his Unna boot changed, the boot was noted to be intact, but wet. The ulcer was measured to be 1.5 centimeters by one centimeter by .25 centimeters deep. Claimant described it as very painful. The doctor removed the dead tissue and applied a new Unna boot.
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17. On April 28, 2011 Claimant self-referred to Dr. Gadowski, a board certified surgeon, for further treatment of his condition. At this appointment, he reported that the new ulcer on his right lower leg had developed over the course of the past several weeks, that is, at some point after he had commenced working for Defendant.
18. Claimant returned to see Dr. Gadowski on May 5, 2011. The ulcer was a bit larger. As the previous ulcer had healed with compression, Dr. Gadowski thought this one would as well. However, he cautioned Claimant that he needed to leave the Unna boot on in order for the treatment to be successful.
19. From May 5 through June 6, 2011 Claimant had weekly appointments with Dr. Gadowski. These appointments were primarily to change Claimant’s Unna boot. Dr. Gadowski also monitored the size of the ulcer and the degree of Claimant’s pain.
20. In early June 2011 Claimant had his Unna boot changed every three or four days. This was first prompted by the fact that Claimant did not protect the Unna boot and it got wet. Dr. Gadowski was also concerned that the ulcer was becoming larger.
21. Dr. Gadowski credibly testified that the reason the ulcer increased in size was because of cellulitis. Cellulitis is an infection of the skin and the deeper tissues beneath it that occurs when bacteria enters a wound. In the context of venous stasis ulcers, removing one’s Unna boot may contribute to the development of cellulitis. Smoking can also be a contributing factor.
22. Dr. Gadowski credibly opined, and I find, that the bacteria at Defendant’s dairy plant did not cause or worsen Claimant’s cellulitis.
23. As June progressed into July, Claimant continued to have his boot changed every three or four days. During this period, he continued to complain of significant pain as well. At his July 26, 2011 appointment, Claimant reported that he had removed the Unna boot a week earlier. The ulcer appeared larger.
24. Claimant next saw Dr. Gadowski on July 29, 2011. At this visit, he complained of more pain in the ulcer. Dr. Gadowski observed fluid oozing out of it and superficial dead tissue around the wound. He determined that Claimant needed intravenous drugs to fight the cellulitis infection. Therefore, he had Claimant admitted to the hospital immediately for further treatment of what had become a very serious infection. In the hospital admission chart, Dr. Gadowski described three reasons for Claimant’s in-patient treatment: deterioration of the wound, noncompliance with compression and smoking.
25. Claimant responded well to the in-patient intravenous drug treatments. He was discharged from the hospital on August 1, 2011 and was followed very closely thereafter by the wound clinic.
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26. Claimant was totally disabled from working as a consequence of his April 2011 ulcer and subsequent cellulitis infection from the time he was admitted to the hospital, July 29, 2011, until November 3, 2011. Claimant could not be released to return to work sooner because he needed to keep his leg elevated as much as possible in order for the ulcer to heal properly.
27. Claimant never returned to work at Defendant’s dairy plant. He did return to work at a local brewery in March 2012.
Nature of Claimant’s Job Duties from Mid-April 2011 forward
28. Claimant testified that once yogurt production started at Defendant’s plant in mid- to late April, employees were often denied their 15-minute breaks, overtime became mandatory and he was required to work every other Saturday. I find that the more credible evidence belies this testimony, however. For example, Defendant’s time cards show that Claimant only worked one Saturday from at least March 2011 until the time he left Defendant’s employ at the end of July. In addition, Claimant’s supervisor, Berthold Grüber, testified that employees were never denied their scheduled breaks, even if production had to be shut down temporarily in order to do so, and also that overtime work was always strictly voluntary. I find Mr. Grüber’s testimony more convincing than Claimant’s on this issue.
29. Claimant testified credibly that during both his lunch and his shorter breaks, he would either elevate his right leg, have a cigarette, or both. Mr. Grüber, himself a smoker, often witnessed Claimant smoking during his breaks and corroborated this testimony.
30. Regarding how the venous stasis ulcer developed, Claimant was both emphatic and convincing when he testified that he did not know what caused either the ulcer for which he was treated in 2010 or the one that developed in April 2011. Both ulcers simply appeared. Claimant was certain that he did not suffer any trauma at Defendant’s plant that would have caused the 2011 ulcer to develop.
Expert Medical Opinions as to Causation
(a) Dr.Gadowski
31. As noted above, Dr. Gadowski began treating Claimant in April 2011 and as of the formal hearing continued to be Claimant’s treating physician.
32. In Dr. Gadowski’s opinion, the venous stasis ulcer that developed in mid-April 2011 was caused by Claimant’s employment for Defendant. In reaching this conclusion, Dr. Gadowski assumed that Claimant’s work required him to be standing constantly for seven to eight hours every day. If this assumption were accurate, this would be a substantial contributing factor in causing the ulcer to develop, because standing increases the pressure in the veins in the lower legs, which in turn causes more blood to pool there.
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33. In fact, however, Dr. Gadowski conceded that he did not know the specific requirements of Claimant’s job. He was unaware that Claimant had two fifteen-minute breaks and one thirty-minute lunch period daily, during which he often sat with his right leg elevated. Dr. Gadowski acknowledged that with this information, his causation opinion likely would change.
34. Dr. Gadowski also did not understand the extent to which Claimant’s job required him to move about among various machines rather than just maintaining a static standing position. He agreed that having the ability to move around while on the job likely would have promoted healing.
35. Last, Dr. Gadowski confirmed that Claimant had been non-compliant with both his and Dr. Park’s treatment recommendations on numerous occasions, by removing his Unna boot and also by continuing to smoke. A patient who is non-compliant with treatment is more likely to develop an infection.
36. I find that Dr. Gadowski’s causation opinion is significantly weakened, both by the fact that it appears to have been based on faulty assumptions as to the functional components of Claimant’s job and also considering Claimant’s own non-compliance with treatment as a likely causative factor.
(b) Dr. Glassman
37. Dr. Glassman is board certified in physical medicine and rehabilitation and is the Director of Occupational Medicine at Concord Hospital. At Defendant’s request, Dr. Glassman performed an independent medical examination of Claimant in March 2012. Prior to his testimony in this matter, Dr. Glassman reviewed Claimant’s medical records, his deposition, his job description, copies of his time records from the dairy plant and Dr. Gadowski’s deposition.
38. Dr. Glassman opined that Claimant‘s venous stasis ulcer neither arose out of and in the course of his employment nor was worsened by it. He based this opinion on the following:
• Claimant’s job duties, both as he described them and as portrayed in Defendant’s written job description, did not involve static standing for any length of time;
• There was no evidence that Claimant suffered any trauma to his leg at Defendant’s plant to cause the wound;
• There was no indication that any condition at the plant or specific job duty made the wound worse; and
• Claimant was noncompliant with his treatment, by taking the Unna boot off and by continuing to smoke.
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39. Dr. Glassman concurred with Dr. Gadowski’s opinion that moving around typically enhances the healing process, whereas static standing impedes it. In Dr. Glassman’s opinion, therefore, Claimant’s job duties actually had the effect of promoting healing of his ulcer rather than worsening or prolonging it. I find this analysis persuasive.
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 case is whether Claimant’s venous stasis ulcer was either caused or aggravated by his employment for Defendant. Claimant asserts that the constant standing required by his job as a packager first caused and then aggravated the ulcer that developed in April 2011. Defendant contends that Claimant’s job duties did not involve either static standing or any other causative factors that reasonably could be associated with his condition.
3. The parties presented conflicting medical evidence on these issues. 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. Based primarily on the second and third factors, I conclude that Dr. Glassman’s causation opinion is the most persuasive. Not only did he examine Claimant’s medical records, but he also reviewed Claimant’s deposition, his time cards and his written job description. From these sources, he derived independent, objective proof (a) that Claimant’s job duties were not at all static, but rather involved moving about frequently and “bounc[ing] around between machines”; and (b) that Claimant did not work extended overtime hours during the period in question. Dr. Gadowski lacked this specific knowledge about Claimant’s job duties, and instead based his opinion on what I have found to be erroneous assumptions. His opinion is significantly undermined as a result.
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5. I conclude that Claimant has not presented sufficient evidence to prove that his April 2011 venous stasis ulcer initially arose out of and in the course of his employment. There is no evidence to suggest that he suffered any trauma at work to cause the ulcer. Nor is there any evidence to suggest that any other work condition caused the ulcer. To the contrary, the fact that much of Claimant’s time at work was spent moving about likely enhanced rather than inhibited healing.
6. I further conclude that Claimant’s job duties were not responsible for any aggravation of either his venous insufficiency disease or of his April 2011 venous stasis ulcer. 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. Here, although Claimant’s ulcer may have worsened during the period during which he worked for Defendant, there is insufficient credible evidence to establish either his job duties or his work environment as the cause of such exacerbation.
7. Rather, I conclude that it is more likely that non-work-related factors caused Claimant’s ulcer to worsen. Against medical advice, he removed the Unna boot for at least a week on two different occasions, after which his ulcer noticeably deteriorated each time. He also continued to smoke, which likely further impeded the healing process. Beyond that, by their very nature venous stasis ulcers are slow to heal, as was evident when Claimant was treating for the ulcer from which he suffered in 2010. That ulcer took more than a year to resolve, despite ongoing treatment. The ulcer at issue in this case followed essentially the same course. That the healing period was prolonged was likely a function of the condition’s natural course and resistance to treatment, not of any work-related circumstance.
8. I conclude that Claimant has not sustained his burden of proving that his April 2011 venous stasis ulcer was either caused or aggravated by his work for Defendant. As his injury is not compensable, his claim for workers’ compensation benefits must fail.
9. As Claimant has failed to prevail on his claim for benefits, 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 April 2011 venous stasis ulcer is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of August 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)

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

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.

Jeanann Haskin v. Green Mountain Coffee Roasters (March 18, 2013)

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

Jeanann Haskin v. Green Mountain Coffee Roasters (March 18, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeanann Haskin Opinion No. 10-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Green Mountain Coffee Roasters
For: Anne M. Noonan
Commissioner
State File No. DD-57471
OPINION AND ORDER
Hearing held in Montpelier on December 7, 2012
Record closed on January 14, 2013
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Jeffrey Dickson, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant’s work for Defendant cause and/or aggravate her bilateral carpal tunnel syndrome?
2. If yes, to what workers’ compensation benefits is Claimant entitled as a consequence of that injury?
EXHIBITS:
Joint Exhibit I: Medical records
CLAIM:
All workers’ compensation benefits to which Claimant proves her entitlement as a consequence of her alleged work-related injury
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
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2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant has worked for Defendant since 1998. She has held various managerial, customer service and sales positions in Defendant’s Waterbury, Vermont call center, all of which have required extensive computer work. For the past five years, she has been the call center’s support services team manager.
Claimant’s Prior History of Upper Extremity Complaints
4. Claimant has a history of relatively minor right upper extremity complaints, consistent with carpal tunnel syndrome, dating back at least to 2008. In August of that year, she treated with her primary care provider, Dr. Gelbstein, for numbness and tingling in her right wrist and forearm. Dr. Gelbstein prescribed medications and a wrist splint. Claimant also underwent a short course of deep tissue massage treatment with her chiropractor, Dr. Schaller, following which her symptoms resolved.
5. At work, Claimant sometimes used the physical therapy and ergonomic assessment resources that Defendant provided through its association with Injury and Health Management Solutions (IHMS). At one point, after the computer software program she used became more mouse- rather than keyboard-driven, Claimant began to experience pain in her right hand and wrist. Louise Lynch, an IHMS physical therapist, recommended ergonomic adjustments to her work station, which when implemented alleviated her symptoms.
6. Except for a brief period of time in early 2011 when she had to swap work stations with another manager, for roughly three years prior to August 2011 Claimant did not experience any significant right hand, wrist or arm pain. Her work station allowed her to either stand or sit, and with her mouse positioned at a lower level she manipulated it comfortably by reaching down with her right arm and hand rather than up.
Tropical Storm Irene
7. On August 28, 2011 Tropical Storm Irene hit Vermont with ferocious intensity, causing severe flooding in many communities, including Waterbury. In the aftermath of the storm, Defendant was forced to move large segments of its Waterbury operation elsewhere. Its 50-employee wholesale call center, which included Claimant’s six-person team, was relocated to a facility in Essex Junction.
8. The move to Essex Junction was very stressful. Many of Claimant’s co-employees lived in the Waterbury area, and on a personal level the storm had greatly disrupted their lives – they faced property damage, repair expenses, childcare issues and a significantly longer commute to and from work. At work, their “offices” were shared tables in a conference room. The accommodations were cramped and lacking in privacy, and the team had difficulty accessing the files and supplies they needed to do their jobs. As their supervisor, Claimant’s attempts to troubleshoot and problem-solve were exhausting, both physically and mentally.
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9. Claimant’s workspace at the Essex Junction facility consisted of a small table in the conference room. She had a straight, non-ergonomic keyboard and a small area for her mouse. Unlike her Waterbury workstation, which was configured so that she reached down with her right arm and hand for the mouse, at this workspace she had to reach up for it. When she typed, her wrists rubbed uncomfortably against the edge of the table.
10. Within a couple of weeks after moving to the Essex Junction facility, Claimant started to experience discomfort in her right wrist. After about a month, her right hand was sore and tingly, and her left hand was beginning to hurt as well. Claimant managed her symptoms as best she could, by walking around, shaking her hands out and wearing her right wrist splint at night. She did not seek medical treatment.
11. For its part, Defendant consulted with IHMS as to how to improve the ergonomics of Claimant’s and her team’s workstations, but there was little to be done given the cramped conference room space. After a time, Defendant did provide Claimant with a larger table, but even with that she still was unable to position her mouse comfortably. In fact, she found that she experienced less discomfort in her hands when she worked from home in the evenings. By positioning herself in an armchair, with her computer in her lap and her mouse resting on the arm of the chair, she was better able to support her right hand than she could while sitting at her table at work.
12. As compared with her symptoms in September 2011, by mid-November the numbness and tingling in Claimant’s right hand had worsened considerably, and was now almost constant. Her left hand hurt as well, though not as much. Claimant felt mentally stressed and physically exhausted.
Claimant’s December 2011 Hospitalizations
13. Claimant did not feel well in the days leading up to Friday, December 2, 2011. She felt weak and thought she might be coming down with a cold. Also during that week she had begun taking a course of oral steroids as treatment for a recurrent skin rash.
14. On Friday evening, December 2, 2011 Claimant went to bed early, at around 6:00 PM. She did not wear her wrist splint. At approximately 10:30 PM, she awoke. Both of her hands were numb and she felt pain in both arms. Claimant became very anxious, and feared that she was having a heart attack or stroke. Her husband took her to the hospital emergency room.
15. As described in the emergency room records, Claimant presented with hypotension, tachycardia and a primary complaint of severe (ten-out-of-ten) pain in her right arm, with stiffness, numbness and tingling extending down to her fingers. She also reported pain between her shoulder blades and generalized weakness throughout her body. Emergency room doctors were unable to arrive at a clear diagnosis. Claimant was admitted for further observation and testing.
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16. Claimant was hospitalized for three days (two in the intensive care unit), during which she underwent a battery of tests and was evaluated by specialists in internal medicine, neurology and cardiology. In addition to pain and paresthesias in her right arm, her symptoms also included swelling in her arms and over the tops of her feet bilaterally and tenderness in her shoulder blades, trapezius and biceps. The differential diagnoses included cervical spine degenerative disc disease, brachial plexopathy, septic shock, endocarditis, epidural abscess and/or systematic inflammatory response syndrome, a non-specific diagnosis used to signify an inflammatory condition affecting the entire body.
17. Claimant was discharged from the hospital on December 5, 2011 with her diagnosis still unclear. The discharge summaries reflect that she still had some swelling in her arms and “the same distribution of discomfort (though much improved)” with which she had presented on admission.
18. Claimant worked from home for most of the week following her discharge, during which her symptoms persisted. On Friday, December 9, 2011 she drove to Waterbury, attended a morning meeting and took notes on her laptop computer. As the meeting progressed, Claimant’s hands became increasingly painful. By the time the meeting concluded and she got into her car to drive home, the pain was intense. Later that day, her husband took her back to the hospital emergency room.
19. This time, Claimant was hospitalized for five days. Her presenting complaints included “unbearable” pain and paresthesias in her arms and hands (right worse than left), profound weakness in both arms and labile blood pressure. Again she underwent a variety of tests and consultations, this time including rheumatology and clinical immunology as well as neurology. During this hospitalization, in addition to aching and swelling in her wrists, Claimant reported severe dull, achy pains throughout her body, swelling in her arms, fingers and feet, weakness in her right shoulder and tenderness in her trapezius and cervical spine. The differential diagnosis remained broad, and included autoimmune or infectious diseases, gout or pseudo-gout, musculoskeletal disorders and/or nerve irritation.
20. Faced with uncertainty as to the etiology of Claimant’s complaints, her doctors treated her symptoms systemically, with a course of oral steroids to reduce pain and inflammation. When discharged on December 14, 2011 Claimant was still complaining of pain and numbness in her arms and hands, but was much improved from when she first presented. Her diagnosis was still unclear, and despite additional post-hospitalization blood work has never been positively determined.
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21. Claimant did not think to mention the upper extremity symptoms she had been experiencing at work since September 2011 during either of her December hospitalizations. Neither she nor her providers considered carpal tunnel syndrome as a possible diagnosis for the complaints with which she presented at that time.
Claimant’s Symptoms and Treatment since January 2012
22. After being discharged from her second hospitalization, on December 19, 2011 Claimant sought treatment with Dr. Mahoney, a chiropractor, for continued complaints of pain and weakness in her wrists, hands and arms bilaterally, and also neck and back pain. During this visit, for the first time she described her upper extremity symptoms in conjunction with her work activities. From this description, Dr. Mahoney concluded that Claimant was suffering from work-related carpal tunnel syndrome. As treatment, he performed various spinal manipulations, none of which successfully alleviated her symptoms. Claimant did not return for additional treatment.
23. On December 20, 2011 Claimant underwent electrodiagnostic testing. The results were consistent with mild to moderate bilateral carpal tunnel syndrome. There was no evidence of either cervical radiculopathy or ulnar nerve entrapment.
24. In early January 2012 Claimant began treating with Dr. Schaller, the same chiropractor who had treated her carpal tunnel symptoms in 2008. Over the course of the next several months, Dr. Schaller performed deep tissue massage, electrical stimulation and ultrasound. In addition, Claimant wore wrist splints bilaterally at night. Though her symptoms remained stable, she realized no sustained relief from Dr. Schaller’s modalities. For that reason, in May 2012 she discontinued treatment.
25. As to the causal relationship between Claimant’s carpal tunnel syndrome and her work, Dr. Schaller acknowledged that one “can never be 100% sure.” However, given the temporal relationship between her office relocation in September and the onset of her symptoms, in his opinion there was “little doubt” that her carpal tunnel injury was work-related.
26. Claimant has been back to work since January 9, 2012. Her symptoms, which consist primarily of pain, numbness and tingling in her hands bilaterally, have remained persistent but stable – somewhat worse than they were in September 2011, but much improved from when she was hospitalized in December. Since discontinuing her treatment with Dr. Schaller in May 2012, she has not sought additional medical care directed specifically at her carpal tunnel syndrome. At the formal hearing, she indicated her willingness to consult with a hand surgeon, but is concerned about the cost of surgery should it not be covered under workers’ compensation.
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27. Claimant first sought workers’ compensation coverage for her bilateral carpal tunnel syndrome in late December 2011, following her second hospitalization. Defendant has denied her claim on the grounds that her condition is not work-related.
Expert Medical Opinions
28. Two witnesses provided expert medical testimony at the formal hearing – Dr. Gelbstein on Claimant’s behalf and Dr. Backus in support of Defendant’s position.
(a) Dr. Gelbstein
29. Dr. Gelbstein is a board certified family practitioner, and has been Claimant’s primary care physician for many years. She is familiar with the symptoms of carpal tunnel syndrome, and has diagnosed many patients with the condition over the years. Typically, she refers patients out for focused treatment rather than providing it herself. Dr. Gelbstein has no specialized training or expertise in assessing the causes of carpal tunnel syndrome. She is only generally familiar with recent medical literature on the subject.
30. To a reasonable degree of medical certainty, in Dr. Gelbstein’s opinion Claimant’s current upper extremity complaints are attributable to carpal tunnel syndrome, a condition that was either caused or exacerbated by the change in her work environment after Tropical Storm Irene. By moving to a workstation that was not ergonomically adjusted specifically for her, Dr. Gelbstein theorized, Claimant likely found herself performing computer-related tasks with her hands in a flexed position. Maintaining that position over a period of time would have compromised the carpal canal and caused painful symptoms to develop.
31. Dr. Gelbstein acknowledged that she has never personally viewed either Claimant’s Essex Junction workstation or her Waterbury office. In formulating her opinion as to causation, she thus relied solely on Claimant’s descriptions of the two in comparison to one another. Claimant having verbally described the two workstations with sufficient clarity at formal hearing, I find it likely that she was able to do so for Dr. Gelbstein as well.
32. Dr. Gelbstein also acknowledged that the diagnosis of work-related carpal tunnel syndrome does not explain the severe pain, generalized weakness and systemic complaints that prompted Claimant’s two December 2011 hospitalizations. The possibility that those symptoms might have been attributable to some autoimmune disorder or inflammatory condition has been neither ruled in nor ruled out at this point. In any event, Dr. Gelbstein admitted that had Claimant been suffering solely from carpal tunnel syndrome, she likely would not have required hospitalization.
33. Last, Dr. Gelbstein acknowledged that she had not been aware that Dr. Schaller offered carpal tunnel syndrome treatment as part of his chiropractic practice until Claimant began seeing him for that purpose. Other than endorsing him generally as a competent provider, she did not state an opinion as to whether the treatment he provided was medically necessary.
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(b) Dr. Backus
34. At Defendant’s request, in March 2012 Claimant underwent an independent medical examination with Dr. Backus, a board certified specialist in occupational medicine. Dr. Backus took Claimant’s history, conducted a physical exam and also reviewed the medical records available to him at the time. These included only some of the records relating to her December 3, 2011 hospitalization, and none at all relating to her December 9th hospitalization.
35. Consistent with her treating providers’ opinions, Dr. Backus diagnosed Claimant with bilateral carpal tunnel syndrome. According to his analysis, Claimant likely had an underlying propensity for the condition, as evidenced by the relatively minor right hand and arm complaints for which she had treated in 2008. With stretching, splinting and ergonomic adjustments at work, her symptoms were well controlled. However, in the aftermath of Tropical Storm Irene the deficient ergonomics of her Essex Junction workstation1 probably led first to some awkward postures and then to some musculoskeletal pain in her arms and thorax. With continued exposure and repetitive use, the tendons in the area likely became inflamed, which caused the median nerve to become irritated and swollen within the small confines of the carpal canal. Ultimately, this led to the constant pain, numbness and tingling that she was experiencing by November 2011.
36. Dr. Backus thus determined that by causing her underlying susceptibility to carpal tunnel syndrome to flare up into a clinical presentation, Claimant’s work at the Essex Junction facility thereby exacerbated the condition. This conclusion flies somewhat in the face of what has become well established in the medical literature. According to the research, non-occupational risk factors such as age, gender and body mass correlate strongly with the development of carpal tunnel syndrome. Job-related factors such as force, repetition, posture and/or vibration may also present an increased risk, but only when they appear in combination with one another. With this research in mind, Dr. Backus acknowledged that Claimant’s gender and age were strong risk factors. Nevertheless, at least initially he concluded that her keyboarding activities, combined as they were with the awkward postures necessitated by her workstation, were likely causative as well.
37. Three weeks after issuing his first report, in early April 2012 Dr. Backus issued a supplemental report. By this time he had reviewed the complete record of Claimant’s December hospitalizations. He thus learned how serious her condition had been at that time. This new information caused him to reconsider his opinion as to the relationship, if any, between Claimant’s work and her carpal tunnel syndrome.
1 As Dr. Gelbstein had, in formulating his causation opinion Dr. Backus relied solely on Claimant’s verbal description of her workstation; he did not view it personally.
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38. Dr. Backus found particularly significant that during her hospitalizations Claimant had been noted to have swelling, weakness and sensory changes in all four of her extremities, not just in her hands or arms. As her doctors had, Dr. Backus theorized that these findings were indicative of a systemic inflammatory response or autoimmune disorder. To a reasonable degree of medical certainty, he now believes that this condition was what likely caused Claimant’s carpal tunnel syndrome to flare up in December 2011, not her work activities.
39. Dr. Backus acknowledged that the systemic inflammation with which Claimant presented in December 2011 has never been definitively diagnosed. It is not uncommon for systemic or autoimmune disorders to present in unusual manners that only become clarified with time. Thus, the fact that no provider has yet identified a particular disorder from which she suffers does not necessarily mean that she does not have one.
40. While expressing certainty that the symptoms that immediately preceded Claimant’s December hospitalizations were causally related to a systemic inflammatory response or autoimmune disorder, Dr. Backus was far less certain as to the cause of the wrist and hand symptoms that she had begun to experience in September. He could not state to the required degree of medical certainty that Claimant likely was already suffering from any such disorder at that time, and agreed that her symptoms might just as easily have been attributable to a developing tendinitis or mild carpal tunnel syndrome.
41. As for treatment of Claimant’s current carpal tunnel syndrome symptoms, Dr. Backus stated that conservative modalities such as stretching, splinting, deep tissue massage, ultrasound and iontophoresis would all be appropriate, followed by injections, electrodiagnostic testing and surgery if these proved ineffective. There are no evidence-based treatment guidelines to justify chiropractic manipulation of the wrist as an effective approach. On the assumption that this was the type of treatment Dr. Schaller had provided between January and May 2012, Dr. Backus dismissed it as not medically reasonable. In fact, however, Dr. Schaller’s treatment included at least some of the modalities Dr. Backus cited as appropriate, including both deep tissue massage and ultrasound. For that reason, I find his opinion in this regard suspect.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. In this claim, the disputed issue is simply whether Claimant’s carpal tunnel syndrome was either caused or aggravated by her work activities for Defendant since September 2011. The parties presented conflicting expert medical opinions on this question. In such cases, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. Applying these factors to the expert opinions offered here is challenging. On the one hand, Dr. Gelbstein is Claimant’s treating physician. She is thus more familiar with Claimant’s medical history, both as it concerns her carpal tunnel symptoms and as it relates to the possibility that she might be suffering from some systemic inflammatory or autoimmune disorder. On the other hand, Dr. Backus testified to greater familiarity with the recent medical literature and evidence-based research as to occupational versus non-occupational risk factors for carpal tunnel syndrome.
4. Having closely considered each expert’s opinion, I conclude that Dr. Gelbstein’s is the most credible. Her analysis of how the deficiencies in Claimant’s Essex Junction workstation likely required her to maintain her wrists in a flexed position over a period of time, thus compromising the carpal canal, is actually quite similar to the analysis Dr. Backus initially advanced. That the combination of repetitive activities and awkward postures is what caused Claimant’s preexisting propensity for carpal tunnel syndrome to flare up into a clinical presentation is consistent with both the medical literature and the chronology of her symptoms. I conclude that it is persuasive.
5. In contrast, Dr. Backus’ opinion failed to account adequately for the manner in which Claimant’s symptoms developed. Had there been evidence from which he could determine, to the required degree of medical certainty, that the carpal tunnel symptoms Claimant was exhibiting from September through November 2011 were due to a burgeoning systemic inflammatory response or autoimmune disorder, I might have found his opinion persuasive. In that event, a clear relationship would have been established between Claimant’s initial, relatively minor complaints and the far more severe ones that prompted her December hospitalizations. It would have made sense to attribute all of those complaints to the same disease process.
6. As it is, however, Dr. Backus’ opinion falls short. The fact is the carpal tunnel symptoms for which Claimant is now seeking treatment are essentially the same as those she began experiencing in September 2011. It is reasonable to assume the same root cause, therefore. The evidence does not establish a systemic disorder or autoimmune disease that might have triggered carpal tunnel syndrome prior to December 2011, but it does establish occupational risk factors.
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7. I conclude that Claimant has sustained her burden of proving that her bilateral carpal tunnel syndrome is causally related to her work activities and is therefore compensable.
8. As for the compensability of the medical treatment Claimant has received to date, in accordance with Dr. Backus’ opinion I conclude that the electrodiagnostic testing Claimant underwent on December 20, 2011 was medically appropriate and is therefore compensable. I accept as credible Dr. Backus’ opinion that chiropractic manipulation is not a reasonable technique for treating carpal tunnel syndrome symptoms, and therefore I conclude that Dr. Mahoney’s January 2012 treatment is not compensable. To the extent that the treatments Dr. Schaller rendered between January and May 2012 involved modalities that Dr. Backus identified as appropriate, such as deep tissue massage, ultrasound and/or iontophoresis, I conclude that the costs associated with those specific therapies are compensable.
9. Claimant does not appear to be claiming either medical or indemnity benefits relative to her December 2011 hospitalizations. As both Dr. Gelbstein and Dr. Backus agreed that those hospitalizations were not in any way causally connected to her work activities, I conclude that she is not entitled to workers’ compensation benefits referable to them.
10. As Claimant has prevailed on her claim for benefits, she 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 her itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering Claimant’s December 20, 2011 electrodiagnostic testing, as well as the cost of deep tissue massage, ultrasound and/or iontophoresis modalities provided by Dr. Schaller as treatment for her bilateral carpal tunnel syndrome, in accordance with 21 V.S.A. §640(a);
2. Such other workers’ compensation benefits to which Claimant proves her entitlement as causally related to her compensable carpal tunnel syndrome, including future indemnity and/or medical benefits; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 18th day of March 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.

Jeffrey Wimble v. Green Mountain Coffee Roaster/ MEMIC and (May 2, 2014)

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Jeffrey Wimble v. Green Mountain Coffee Roaster/ MEMIC and (May 2, 2014)
Green Mountain Coffee Roasters/Liberty Mutual Ins. Co.
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeffrey Wimble Opinion No. 08-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Green Mountain Coffee Roasters/MEMIC
and Green Mountain Coffee Roasters/ For: Anne M. Noonan
Liberty Mutual Insurance Co. Commissioner
State File Nos. X-60513 and DD-61994
RULING ON DEFENDANT MEMIC’S MOTION FOR RELIEF FROM ARBITRATION
ORDER
APPEARANCES:
John Valente, Esq., for Defendant MEMIC
Keith Kasper, Esq., for Defendant Liberty Mutual Insurance Co.
Background:
This claim originated as an aggravation/recurrence dispute between two successive insurers for
the same employer. Claimant initially suffered a compensable injury to his left elbow in 2006.
As the carrier on the risk at the time, Defendant MEMIC paid workers’ compensation benefits
accordingly, including a period of temporary total disability following surgery in October 2006.
Claimant returned to work and was determined to have reached an end medical result in May
2007.
In October 2011 Claimant sought additional treatment, which culminated in a second surgery on
April 11, 2013. By that time, he was working for another employer, his employment for Green
Mountain Coffee Roasters (GMCR) having terminated as of February 29, 2012. On March 3,
2012 GMCR had filed a new First Report of Injury, with an injury date of February 28, 2012.
Defendant Liberty Mutual Insurance Co. was the carrier on the risk as of that date.
Liberty denied responsibility for the additional workers’ compensation benefits Claimant sought
on the grounds that no new injury had occurred on February 28, 2012. To the contrary, it
asserted that he had suffered a recurrence of his 2006 injury, such that MEMIC remained liable
for any benefits due him.
Faced with an aggravation/recurrence dispute, the Department issued an interim order under 21
V.S.A. §662(c) requiring Liberty, as the more recent carrier on the risk, to pay benefits.
Concurrently, it ordered both carriers to submit to arbitration as to which of them bore ultimate
responsibility for Claimant’s renewed treatment, pursuant to 21 V.S.A. §662(e).
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Notwithstanding that he had resumed treatment as of October 2011, Claimant did not lose time
from work until his April 2013 surgery. Thereafter, Liberty calculated his compensation rate for
temporary total disability based on the wages he had earned prior to February 28, 2012, the date
of injury alleged in GMCR’s March 3, 2012 First Report of Injury.
On February 6, 2014 the arbitrator issued his Arbitration Decision and Order. Based on the
evidence presented, he determined that Claimant’s renewed treatment represented a recurrence of
his 2006 injury, for which MEMIC remained responsible. He thus ordered MEMIC to “assume
responsibility for the current medical treatment and ancillary workers’ compensation benefits.”
In addition, he ordered MEMIC to “reimburse Liberty Mutual for all sums paid, by Liberty
Mutual, to or on behalf of [Claimant] in this matter.”
MEMIC does not question the arbitrator’s finding of recurrence, and therefore does not assert
any error as to the first part of his order. As to the second part, however, it argues that the
arbitrator exceeded his authority by ordering reimbursement for all of the monies Liberty
previously paid to Claimant. Specifically, it claims that because Liberty erroneously calculated
Claimant’s compensation rate for temporary total disability benefits,1 Liberty should bear full
responsibility for any resulting overpayment, and MEMIC should be excused from reimbursing
any overpaid amounts.
Discussion:
Vermont’s workers’ compensation statute authorizes the commissioner to order arbitration as to
“any dispute between employers and insurers” that arises “whenever payment of a compensable
claim is refused, on the basis that another employer or insurer is liable.” 21 V.S.A. §§662(c) and
(e). If arbitration is ordered, the statute imposes responsibility upon the arbitrator as follows:
[To] determine apportionment of the liability for the claim . . . among the
respective employers or insurers, or both. The apportionment may be limited to
one or more parties.
21 V.S.A. §662(e)(2)(A). The arbitrator also must issue a written decision, “which shall be
final.” 21 V.S.A. §662(e)(2)(B). An arbitrator’s award can only be vacated by a showing of
“corruption, fraud or partiality,” Workers’ Compensation Rule 8.6211, and can only be modified
“if there is a miscalculation of figures or mistake describing any person, thing or property
referred to in the award.” Workers’ Compensation Rule 8.7110.
As the statute specifically reflects, 21 V.S.A. §662(e)(2), arbitration thus replaces the formal
hearing process for any disputes so referred. This includes not only disputes as to which
employer or carrier bears ultimate responsibility to the claimant, as is the case in most
aggravation/recurrence claims, see, e.g., Raymond v. SD Ireland Concrete Construction Co.,
State File Nos. T-19436 and BB-01610, Arbitration Decision dated February 26, 2014, but also
disputes regarding the extent, if any, to which responsibility for specific benefits should be
1 MEMIC asserts that Claimant’s compensation rate should have been based either on his average wages prior to
April 11, 2013 (the date of his most recent disability), or on his average wages at the time of his first period of
disability in October 2006. Instead, Liberty’s payments were based on Claimant’s average wages prior to February
28, 2012, the injury date reflected on GMCR’s second First Report of Injury.
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shared among multiple employers or carriers. See, e.g., Webster v. Steven’s Gas, State File No.
S-15680, Arbitration Decision dated June 8, 2006; Bothwell v. North Country Hospital, State
File Nos. L-15688 and T-17209, Arbitration Decision dated June 2, 2006.
MEMIC argues that the second part of the arbitrator’s award here should be vacated, on the
grounds that the statutory authority granted him “to determine apportionment of the liability” for
a claim did not encompass the authority to order reimbursement of amounts already paid. Given
the statutory requirement that the commissioner order arbitration among various carriers only
“after payment to the claimant” has been made, 21 V.S.A. §662(e), by necessity one of the
parties already will have paid benefits by the time arbitration occurs. If ultimately the arbitrator
concludes that liability should have rested on another party’s shoulders instead, it follows that
the first party will have to be reimbursed for the amounts it was ordered to pay initially, see 21
V.S.A. §662(c). To limit the arbitrator’s award solely to responsibility for future benefits would
be manifestly unfair. Nothing in the statutory language supports such an interpretation, and for
this reason, I reject this basis for MEMIC’s request that the award be vacated.
Short of vacating the award, MEMIC argues in the alternative that the arbitrator’s order should
be modified under Workers’ Compensation Rule 8.7110, on the grounds of a “miscalculation of
figures or mistake describing . . . property.” It challenges the arbitrator’s failure to make
findings either as to the manner in which Liberty calculated Claimant’s compensation rate or as
to the total amount it paid. By then ordering reimbursement of an unspecified sum, it argues, the
arbitrator impliedly adopted Liberty’s “miscalculations.” And by requiring MEMIC to
reimburse Liberty in an amount greater than what Claimant actually was due, he thus mistakenly
“described” MEMIC’s “property.”
I agree that had MEMIC raised the compensation rate issue in the course of the arbitration
proceedings, the arbitrator would have been obligated to decide it. Had sufficient credible
evidence been presented to him, certainly it would have been within his authority to order
MEMIC to reimburse Liberty only for the benefits he determined Claimant should have received,
and not for any overpayments he found Liberty to have made. MEMIC failed to present any
evidence at all on the issue, however. As a consequence, there simply is no basis from which to
conclude that the arbitrator’s decision was flawed as a result of some miscalculation or mistake
in description.
In effect, the “modification” MEMIC seeks now is an opportunity to litigate before the
commissioner a question that it should have raised before the arbitrator. It asserts that it did not
have access at the time to the financial information it would have required to question Liberty’s
compensation rate calculations, but I find this argument unconvincing. Faced with potential
liability for all or a portion of the benefits Liberty had paid, it should have been a routine
exercise for MEMIC to request an itemized list of the payments made to date, along with the
wage statements and compensation agreements upon which any indemnity payments were based.
That it failed to do so is unfortunate, but it is not grounds for modifying the arbitrator’s award.
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I agree, as MEMIC asserts, that public policy favors accuracy in calculating the benefits due an
injured worker under the workers’ compensation statute. When mistakes occur, public policy
favors that the factual and legal issues be promptly raised so that they can be resolved in a timely
and effective manner. Public policy also favors that disputes not be litigated in piecemeal
fashion. Last, public policy favors respect for the arbitration process, and particularly for the
statutorily imposed finality of the arbitrator’s decision and order. Balancing all of these policy
considerations, I conclude that there is no basis for either vacating or modifying the award in this
case.
ORDER:
Based on the foregoing, Defendant MEMIC’s Motion for Relief from Arbitration Order is hereby
DENIED.
DATED at Montpelier, Vermont this 2nd day of May 2014.
_____________________
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.

Susan Tanner v. Town of Dorset (March 24, 2009)

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Susan Tanner v. Town of Dorset (March 24, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Susan Tanner Opinion No. 08-09WC
v. By: Jane G. Dimotsis
Hearing Officer
Town of Dorset For: Patricia Moulton Powden
Commissioner
State File No. F-20121
OPINION AND ORDER
Hearing held in Montpelier on October 1, 2008
Record closed on November 14, 2008
APPEARANCES:
Patrick Biggam, Esq. for Claimant
Jason Ferreira, Esq. for Defendant
ISSUES:
Is Claimant’s medical treatment after 1997 causally related to her 1993 injury and thus, compensable under the Workers’ Compensation Act?
If yes, did Claimant subsequently suffer a non-work-related intervening injury that broke the chain of causation and/or aggravated Claimant’s work injuries?
EXHIBITS:
Joint Exhibit I: Joint medical exhibit
Claimant’s Exhibit 1: Curriculum vitae, Dr. George White
Defendant’s Exhibit 1: Curriculum vitae, Dr. Dominic Belmonte
Defendant’s Exhibit 2: Police Accident Report, April 21, 2008
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney’s 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 an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim.
Summary of Claim
3. On February 13, 1993 Claimant suffered a work injury to her low back. Claimant’s back pain required her to do exercises to strengthen her back that eventually led to a second claim in 1995 related to her right knee. Defendant accepted both injuries as compensable and paid benefits.
4. On July 10, 1997 the parties signed a Form 22 Agreement for Permanent Partial Disability Compensation, stating that Claimant had reached an end medical result for her work-related back and knee conditions. In accordance with that agreement, Defendant paid permanency benefits for both her back and her right knee.
5. On April 21, 2008 in a non-work-related incident, Claimant was struck by a tractor-trailer while driving. As a result of the accident, Claimant asserts she suffered additional knee and back pain for which she is requesting workers’ compensation benefits.
Prior Medical Conditions and Treatment
Pre-existing Back Condition and Treatment
6. Claimant testified that she has experienced some form of back pain for the past 27 years. She was diagnosed with significant scoliosis of the spine at age 14, a condition that progressively worsened over the next thirty years prior to her work injury. Claimant also was involved in a head-on car collision with another vehicle when she was 17 years old. She suffered low back pain as a result, which she treated with chiropractic care. In the 1970’s Claimant suffered another injury to her low back when she fell down a flight of stairs at work. In the late 1980s she suffered a cervical spine injury while performing clerical work when she turned her head and felt a snapping sensation. This injury caused Claimant to lose time from work and to undergo temporary medical treatment. Last, in February 1987 Claimant complained of both neck and low back pain following a family altercation when she was struck and kicked.
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7. In January 1992, a year prior to her work injury, Claimant discussed working as a nurse’s aide with her primary care physician, Dr. Novotny. Dr. Novotny wrote that although Claimant had “some medical problems that will place her at increased risk of back problems . . . she has indicated a willingness to work with me to minimize her medical risk factors and . . . in reducing her risks by proper body dynamics. Her increased risk of back problems can be mitigated by appropriate attention to her medical risks and occupational attention to appropriate lifting dynamics.”
Pre-existing Knee Condition and Treatments
8. Claimant had bilateral knee injuries at an early age. She had surgery on her right knee in 1967 and on her left knee in 1969 for what was described as “loose ligaments.” After surgery and up to the present date, Claimant often wears a knee brace to give her a sense of stability. Although she was able to engage in sports prior to her work injury in 1993 she also needed Ibuprofen to control her knee pain.
Work Injury and Medical Care
9. Shortly after the consultation with Dr. Novotny noted above, Claimant began work for Defendant as a home health aide. As previously stated, she was injured at work while trying to lift a patient. In the course of doing so, Claimant felt two popping sensations in her back and was in a great deal of pain.
10. In April 1993 Dr. Block, an orthopedic surgeon, diagnosed Claimant with right S1 radiculopathy down her right leg from a “probable” L5-S1 disc injury causally related to the lifting incident at work. Eventually it was determined that Claimant had an L4-5 disc bulge.
11. In 1994 Claimant underwent a decompressive laminectomy at L4-5 with disc excision and spinal fusion that included the placement of five facet screws into her spine. Defendant accepted the surgery as compensable and paid workers’ compensation benefits accordingly. Unfortunately, the surgery did not alleviate Claimant’s back pain significantly. It subsequently was referred to as a “failed” surgery.
12. In order to treat Claimant’s continued back pain, in December 1995 Dr. Block removed the spinal hardware that previously had been inserted. Again, Defendant accepted this surgery as compensable and paid workers’ compensation benefits accordingly. Claimant had significant pain reduction following this surgery.
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Claimant’s Right Knee Injury
13. In January 1995 Claimant complained of right knee pain that she related to exercises she had been prescribed to strengthen her low back.
14. Claimant treated for her right knee pain with Dr. Vargas, an orthopedist. Dr. Vargas noted Claimant’s long history of knee pain, as well as her prior knee surgeries. He diagnosed chondromalacia of the patella. Chondromalacia of the patella is the abnormal softening of the cartilage under the kneecap. It occurs when the kneecap is aligned poorly over the femur, causing the cartilage there to deteriorate. The condition is sometimes referred to as patellofemoral syndrome or condition. In Claimant’s case, the condition relates back to the bilateral knee surgeries she underwent in the 1960’s.
15. Following the January 1995 incident of right knee pain, Claimant underwent an MRI, which showed a large congenital chondral defect in the lateral patella facet consistent with chondromalacia of the patella.
16. Based on the results of a CT scan, knee surgery was recommended and performed by Dr. Robbins in October 1996. It involved cutting and repositioning the bone in Claimant’s right knee, and then drilling and placing screws into the joint. Dr. Robbins’ post-surgery diagnosis included patellofemoral pain, arthritis and previous reconstruction of Claimant’s knees with tendonitis. Defendant accepted this surgery as a compensable outgrowth of Claimant’s original 1993 work injury as aggravated by the 1995 back strengthening exercises. It is not a subject of the current dispute.
17. Claimant continued to have knee pain after the surgery and she was observed to have degenerative arthritis bilaterally in her patellofemoral joints. Nevertheless, she was declared to be at end medical result for both the 1993 back injury and the 1995 right knee injury and returned to work part-time.
18. As noted, in July 1997 the parties signed a Form 22 Agreement for Permanent Partial Disability Compensation, pursuant to which Defendant paid permanency benefits for a 29% impairment to Claimant’s low back and a 10% impairment to her right knee.
Claimant’s Medical Treatment After July 1997
Back Treatment
19. Claimant had significant pain relief for two or three years after her 1995 back surgery. She did continue to have some pain when the weather was bad and the barometric pressure was low. However, she was able to work at a variety of jobs as a store clerk and prep cook. Medical records indicate that Claimant was the most improved she had been in a long time, and that she hoped to begin yoga and tai chi classes.
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20. Claimant did continue to complain of episodic low back pain. In November 1998 her treating osteopath, Dr. Woodworth prescribed ongoing narcotic pain medication for her chronic pain. Dr. Woodworth expected that Claimant would need these medications indefinitely. Claimant has taken Percocet and Oxycontin continuously for her back and knee pain and Soma for muscle spasms.
21. Claimant continued to treat with a variety of providers for her chronic low back pain. In 1999 she underwent nerve conduction studies with Dr. Kloman, who diagnosed her with atypical fibromyalgia syndrome and chronic pain syndrome. Dr. Kloman did not distinguish between the medical problems Claimant had as a result of her work injury and her other, non-work-related medical issues, including depression, pain from her scoliosis, and arthritis.
22. Claimant treated her chronic back pain with chiropractic manipulations. Later, when she moved to New York to live with her mother she treated with Dr. Hardies, a primary care doctor, Dr. Cecil, an orthopedist, and Dr. Whalen, an orthopedic surgeon. All of these providers attributed Claimant’s condition primarily to her scoliosis, which they described as “severe.” For example, in 2005 Dr. Hardies noted that Claimant’s scoliosis had become so severe that it was compromising her ability to have adequate respiratory function and was producing severe back and lower extremity pain. Later, in 2006 Dr. Whalen stated that Claimant’s “severe degenerative progressive scoliosis” was the “major problem” with her back.
Knee Treatment
23. Claimant also continued to suffer from right knee pain after being declared at an end medical result for her work injury. She treated with numerous orthopedists, including Dr. Boynton, Dr. Matheny and Dr. Czajka. All recommended conservative treatment, including stretching and strengthening exercises. None of the these doctors provided opinions to the necessary degree of medical certainty as to the cause of Claimant’s right knee symptoms but all agreed that that it involved patellofemoral arthritis.
24. By 2004 Claimant was experiencing pain in both knees. An MRI in September 2005 revealed degenerative osteoarthritis bilaterally.
25. Claimant continued to follow up with a number of doctors. Throughout this period she took a variety of medications for her pain, including Soma, a muscle relaxant that also reduces the way the brain perceives pain, Lyrica for muscle spasms, Oxycontin, a narcotic pain medication, and Percocet, a narcotic medication for “break-through” pain. Claimant has been taking these medications continuously since the late 1990s.
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Alleged Intervening Event and Treatment
26. On April 21, 2008 Claimant was involved in a motor vehicle accident in New York when she was struck by a tractor-trailer. Claimant was transported by ambulance and treated at the hospital Emergency Department. She testified that her lumbar spine muscles “locked up” and that she could not feel her legs.
27. Claimant’s immediate complaints were neck pain and numbness in her legs. She sought treatment for these symptoms with Dr. Hardies, her primary care provider. Dr. Hardies noted that as a result of the motor vehicle accident Claimant had sustained injuries to both her knees, right more painful than left, and to her back, primarily her cervical spine. Dr. Hardies recommended physical therapy, medications and x-rays.
28. Claimant went only twice to physical therapy and then decided she could do her exercises at home. Consistent with Dr. Hardies’ notes, the physical therapy records indicate that her primary problem areas were her cervical spine and bilateral knees.
29. In May 2008 Claimant underwent a lumbar spine MRI, which revealed a right-sided paracentral disc protrusion at L3-4. The medical experts later disagreed as to whether this finding represented a new injury causally related to the motor vehicle accident.
30. Claimant last treated for the injuries she sustained in the motor vehicle accident in June 2008. At that time, Dr. Cecil, her orthopedist, related her current bilateral knee pain to her pre-existing arthritis. Claimant testified that three months after the accident she was back to her “old rotten self.”
Independent Medical Examinations
31. At Defendant’s request, Claimant underwent an independent medical examination of her right knee with Dr. Bernini, an orthopedic surgeon, in December 2001. Dr. Bernini noted that Claimant had suffered bilateral knee pain ever since her surgeries in the 1960’s. Notwithstanding her pre-existing condition, however, Dr. Bernini concluded that Claimant still had not recovered from her more recent work-related knee surgery therefore had not yet returned to her baseline condition.
32. Claimant underwent a second independent medical evaluation in August 2002, this time with Dr. Kinley, another orthopedist. Dr. Kinley concluded that Claimant’s low back symptoms were causally related to her 1993 work injury, but that her knee complaints were not. Specifically, in Dr. Kinley’s opinion, Claimant’s knee complaints most likely were related to subluxation of her patella, a congenital condition neither caused nor aggravated by the 1995 back strengthening exercises. Dr. Kinley also noted arthritis in both of Claimant’s knees, which again he felt predated her work injuries. In September 2002 Dr. Kinley stated that Claimant had reached her “pre-accident” status and was at end medical result for any work-related injury to her knees.
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33. At Defendant’s request, in January 2007 Claimant underwent an independent medical evaluation with Dr. Belmonte, an occupational medicine specialist. Dr. Belmonte concluded that Claimant had suffered an acute lumbar strain as a result of her 1993 work injury. However, he determined that after her spinal surgery her low back condition stabilized. He therefore concluded that Claimant’s current back pain was due to her pre-existing progressive scoliosis, which over time had caused her spine to become curved and misaligned. Dr. Belmonte related all of the medical treatment Claimant received after her second spinal surgery to the natural progression of this prior condition, and not to her 1993 work injury.
34. Regarding Claimant’s right knee, Dr. Belmonte determined that following her 1996 surgery her symptoms resolved and she returned to “status quo.” Dr. Belmonte opined that Claimant’s current knee condition was related to arthritis caused by her prior knee injuries and had not been aggravated by the 1995 back strengthening exercises. On those grounds, Dr. Belmonte found that none of the treatment Claimant had undergone for her knee pain after 1996 was causally related to her work injuries.
35. Claimant argues that Dr. Belmonte did not have all of the medical records concerning her right knee when he issued his original report. However, by the time of the formal hearing, Dr. Belmonte had reviewed all of the records and his opinions remained constant.
36. In November 2007 Claimant underwent an independent medical evaluation with a doctor of her choice, Dr. White. Dr. White is an occupational medicine specialist who, like Dr. Belmonte is highly credentialed in that area. Dr. White evaluated Claimant for both her chronic back and knee conditions. At the time of his evaluation, however, he had little information about either Claimant’s prior knee injuries or her scoliosis.
37. Dr. White concluded that Claimant’s back pain was causally related to her 1993 work injury and not to her scoliosis. He noted that back fusion surgery can create a risk of adjacent disc degeneration and that therefore Claimant’s low back symptoms probably resulted from her 1994 surgery. However, at the time Dr. White issued this opinion he was not aware either that Claimant had suffered from scoliosis in both her cervical and lumbar spine prior to the 1993 injury or that she had experienced low back pain previously as well. Given that Dr. White’s conclusion was based at least in part on his assumption that Claimant’s scoliosis was confined to her cervical spine, and that therefore it would not have been responsible for lumbar pain, this gap in his understanding of Claimant’s medical history is significant.
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38. As for her right knee, Dr. White concluded that Claimant did have a pre-existing pathology of patellofemoral chondromalacia. However, he found that the March 1995 injury Claimant sustained while doing back strengthening exercises had aggravated this prior condition, and that “there [had been] no change in that situation.” Again, however, Dr. White’s conclusion in this regard was based on an inaccurate understanding of Claimant’s medical history, specifically Claimant’s representation that she had not suffered from significant knee pain prior to 1995. For example, Dr. White was not aware that Claimant often wore a knee brace prior to her work injury or that she took pain medications for her knee symptoms. Dr. White’s opinion also fails to account for the fact that while Claimant allegedly injured only her right knee in the 1995 incident she suffered from the same symptoms in her left knee as well.
IME Opinions Related to the 2008 Motor Vehicle Accident
39. After comparing the MRI study done after Claimant’s 2008 motor vehicle accident with the one taken three years prior, Dr. Belmonte concluded that the car accident had aggravated the underlying condition of her lumbar spine. In his opinion, the more recent MRI revealed an increase in pathology in that area.
40. Dr. Belmonte also found that the car accident caused an increase in Claimant’s right knee symptoms. As noted above, however, in Dr. Belmonte’s opinion Claimant’s right knee symptoms dated back to the injuries she sustained in the 1960’s and therefore were never causally related to her 1995 work injury at all.
41. Dr. White disagreed with Dr. Belmonte’s conclusions. In his opinion, Claimant’s back and knee conditions were not significantly different after the 2008 motor vehicle accident from what had existed previously. Therefore, Dr. White concluded that the car accident caused only a temporary exacerbation, following which Claimant returned quickly to her baseline condition. Again, in reaching this conclusion Dr. White stated that Claimant had not told him that she had suffered from any low back pain prior to the 1993 work injury. Dr. White admitted that had his understanding of Claimant’s prior medical history been more accurate his opinions might have changed.
42. Dr. White also concluded that the 2008 motor vehicle accident did not aggravate Claimant’s underlying knee condition. Again, however, Dr. White’s conclusion in this regard was based at least in part on his inaccurate understanding of Claimant’s prior medical history. Specifically, Dr. White testified that Claimant’s knees had been “wonderful” prior to her 1995 work injury. As noted above, he was unaware either that Claimant wore a knee brace prior to that injury or that she took pain medications.
43. Claimant’s attorney has submitted a request for costs totaling $3,582.68 and attorney’s fees totaling $7,101.00.
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CONCLUSIONS OF LAW
1. Claimant asks that all medical treatment for her low back and right knee subsequent to July 1997 be found compensable. Defendant disagrees. It argues that any such treatment was necessitated by her pre-existing scoliosis and degenerative arthritis. Defendant further argues that the 2008 motor vehicle accident aggravated her underlying conditions and broke the causal connection between her ongoing symptoms and her 1993 and 1995 work injuries.
2. 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).
3. Once the employer accepts a claimant’s injuries as compensable, as Defendant did here, the burden shifts to it to establish a sufficient basis for terminating compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974).
4. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
5. Claimant refers to Dr. White’s expert medical opinion in support of her claim, while Defendant relies on Dr. Belmonte. Both doctors performed independent medical evaluations in 2007 and then received additional information regarding the 2008 motor vehicle accident. Neither had a treating relationship with Claimant. Both were hired specifically to evaluate her knee and back injuries for the instant case.
6. Both physicians are highly credentialed in the area of occupational medicine. Dr. White has practiced occupational medicine for approximately twenty years. He is the staff physician for the Functional Capacity Evaluation Center and frequently performs independent medical evaluations. He also is the founder of Occupational Health Logic, a company that strives to provide solutions to businesses related to occupational health issues. For his part, Dr. Belmonte also has practiced in the field of occupational medicine for almost twenty years. He is board-certified both as an Independent Medical Examiner and as an occupational medicine specialist. His current practice includes consultations, occupational medicine program development and evaluations.
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7. Issues arose at hearing regarding whether either medical expert had all of the relevant medical information at the time that they issued their opinions. As previously noted, at the time Dr. White evaluated Claimant he did not have detailed information about the back and knee problems from which she suffered even prior to her work injuries. He did not know that Claimant had used a brace continuously for her knee, or that she had been diagnosed with both lumbar and cervico-thoracic scoliosis.
8. At the time Dr. Belmonte wrote his report, he did not have all the medical records regarding Claimant’s right knee. Unlike Dr. White, however, who admitted that his opinions might have changed had he had a more accurate picture of Claimant’s prior medical history, Dr. Belmonte testified that even after reviewing the medical records he originally had lacked, his conclusions as to causal relationship remained constant.
9. I find Dr. Belmonte’s opinions to be the most persuasive. He was aware of the extent of Claimant’s prior back and knee conditions and the effect that arthritis, osteoporosis and degeneration from age would have on them. He determined that any evaluation or treatment for Claimant’s back related back to her preexisting scoliosis, a progressive condition from which Claimant had suffered since the early 1960’s, and not in any way to her 1993 work injury.
10. The fact that Claimant returned to work in 1996 lends further support to Dr. Belmonte’s opinion. It shows that her back had stabilized to the point that she was able to be employed.
11. As for Claimant’s current right knee pain, Dr. Belmonte testified that she continues to suffer from patellofemoral chondromalacia, a condition that pre-existed the injury she sustained while doing back strengthening exercises in 1995. In Dr. Belmonte’s opinion, the 1995 incident aggravated Claimant’s right knee symptoms only temporarily, following which her condition stabilized and returned to baseline. This conclusion is consistent with Dr. Kinley’s findings. Dr. Belmonte therefore determined that any treatment Claimant received for her right knee after 1996 was causally related to her advanced arthritis, a condition that was neither caused nor aggravated by her work injury. Dr. Belmonte’s opinion in this regard credibly accounts for the fact that notwithstanding the injury caused to Claimant’s right knee as a result of the 1995 event, its condition subsequently was essentially the same as that of her left knee.
12. I conclude, therefore, that Claimant reached an end medical result for both her 1993 work-related back injury and her 1995 work-related right knee injury at least as of July 1997, when the parties executed a Form 22 Agreement for Permanent Partial Disability Compensation. Any medical treatment she received subsequently was causally related to her pre-existing conditions, and not to either of her compensable injuries.
13. I further conclude that Claimant’s 2008 motor vehicle accident did not aggravate her work-related injuries in any way.
14. Claimant having failed to prevail on either of her claims, she is not entitled to an award of costs or attorney’s fees.
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ORDER
Based on the foregoing findings of facts and conclusions of law, Claimant’s claim for workers’ compensation benefits covering the medical treatment she has received since July 1997 is hereby DENIED.
DATED at Montpelier, Vermont this 24th day of March 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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