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K. C. v. Windham Northeast Supervisory Union (November 17, 2006)

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K. C. v. Windham Northeast Supervisory Union (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
K. C. Opinion No. 45-06WC
By: Margaret A. Mangan
v. Hearing Officer
Windham Northeast Supervisory Union For: Patricia Moulton Powden
Commissioner
State File No. X-01602
Hearing held in Bellows Falls on March 21, 2006
Record closed on June 30, 2006
APPEARANCES:
J. Christopher Callahan, Esq. for the claimant
Keith J. Kasper, Esq. for the defendant
ISSUE:
Did the claimant suffer an injury at work on September 2, 2005?
OFFICIAL DEPARTMENT FORMS:
1. Form 1, Employee’s Claim and Employer First Report of Injury, for September 2, 2005 injury, reported September 6, 2005 and filed on September 8, 2005.
2. Form 2, Denial of Workers’ Compensation benefits by the carrier.
3. Form 6, Claimant filed written Notice and Application of Hearing in the form of a letter filed on September 28, 2005.
EXHIBITS:
Joint I: Medical Records
Defendant’s A: Letter of Resignation
Employment Records
School Schedule
OTHER EXHIBITS:
Claimant’s A: Witness Statements
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THE CLAIM:
The Claimant seeks Temporary Total Disability Benefits, medical benefits related to her back injury, and attorneys’ fees.
FINDINGS OF FACT:
1. Claimant began working for Defendant as a para-educator on August 29, 2005.
2. As a para-educator, the Claimant worked with a special needs child and was required to assist her in walking short distances and lift the child in and out of a wheelchair.
3. The Claimant’s average weekly wage was $403.98.
4. The Claimant offered a letter of resignation to the school principal on August 31, 2005.
5. Claimant agreed to continue working for the Defendant until a replacement could be found.
6. There were no witnesses to the Claimant’s alleged work-related injury.
7. The school recorded no seizures in the school health records for September 2, 2005.
8. On Friday, September 2, 2005, the school schedule reflected that there were no extracurricular gym activities after lunch.
9. The Claimant worked until the end of the school day on September 2, 2005.
10. On the morning of Tuesday, September 6, 2005, the Claimant called the school to report that she would be taking a sick day. Because this was late notice, the Claimant worked for a brief time that morning until a replacement could be located.
11. After leaving the school, the Claimant was seen at Urgent Care in Bellows Falls where she was diagnosed with lower back strain.
12. The Claimant then returned to the school to fill out workers’ compensation paperwork.
13. The Claimant saw Dr. Peake, her primary care physician, September 9 and again on September 16, 2005. Dr. Peake wrote notes excusing the Claimant from work after each examination.
14. After conservative treatment was unsuccessful at relieving the Claimant’s pain, Dr. Peake referred the Claimant to Dr. Gugliemo at Upper Valley Neurology on September 20, 2005.
15. An MRI taken September 21, 2005 revealed that the Claimant had disk herniation at L4-5 with right L5 nerve root impingement.
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16. On September 26, 2005, Dr. Guglielmo diagnosed the Claimant with significant right L5 radiculopothy secondary to a herniated right L4-5 disk. Ultimately, the Claimant and Dr. Guglielmo agreed that surgery would best resolve the Claimant’s condition.
17. Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing.
18. Soon after Dr. Guglielmo’s diagnosis, the Claimant learned that she was pregnant. Because the surgery could harm the Claimant’s unborn child, the Claimant’s doctors have recommended that she wait until she is postnatal before having the surgery.
19. The Claimant has not worked since September 6, 2005.
Allegations:
The Claimant alleges that: she injured her back at work on Friday, September 2, 2005 while lifting the special needs child from the floor into her wheelchair. She then wheeled the child into the lunchroom. Next, she exited the building and ate lunch alone in her car. After lunch, she reentered the building and wheeled the child from the lunchroom into the gym. Then, the Claimant wheeled the child into a classroom with other students and teachers until the end of the school day. She then drove herself home. The Claimant also testified that she experienced a very high level of pain as she performed all of the activities mentioned above. The Claimant did not report the alleged injury until the following Tuesday.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. 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 proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. Furthermore, in unwitnessed cases where the claimant does not report the injury for a period of time, “the trier of fact must weigh carefully the credibility of witnesses, the initial medical reports, and explore any inconsistencies and hidden or not-so-hidden motivations.” Fanger v. Village Inn, Opinion No. 5-95WC (1995).
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4. Several factors discredit the Claimant’s description of events. First, there are no witnesses to the alleged accident. Second, the Claimant testifies here that she injured her back lifting the child into a wheelchair, but Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing. Third, the school schedule shows that there were no gym activities after lunch that day. Fourth, the Claimant spent the latter part of the school day in the company of students and teachers, supposedly in excruciating pain, yet no one noticed any outward manifestation of her discomfort. Fifth, the Claimant waited until the following Tuesday, after a long Labor Day weekend, before notifying the school of the injury or seeking medical attention. Furthermore, the Claimant had given her resignation just a few days prior to this incident.
5. The Claimant’s medical evidence clearly shows that she suffers from a back injury. However, the high number of inconsistencies combined with the fact that the alleged injury was unwitnessed and not reported in a timely fashion cast a high level of doubt on whether that injury was connected to the Claimant’s employment. Consequently, the Claimant has shown no more than a possibility that the injury may have happened in connection with her employment.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the Claimant’s claim for Temporary Total Disability Benefits, medical benefits related to the Claimant’s back injury, and the Claimant’s attorneys’ fees are DENIED.
Dated at Montpelier, Vermont this 17th day of November 2006.
______________________________
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.

N. B. v Verizon (June 12, 2008)

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N. B. v Verizon (June 12, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
N. B. Opinion No. 24-08WC
By: George K. Belcher
v. Hearing Officer
Verizon For: Patricia Moulton Powden
Commissioner
State File No. J-13315
OPINION AND ORDER
Hearing held on May 2, 2008 in Montpelier, Vermont.
Record Closed, May 21, 2008
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
J. Christopher Callahan, Esq., for the Defendant
EXHIBITS:
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit 1: Photo of Claimant’s vehicle following accident
Defendant’s Exhibit 1: Curriculum Vitae of Dr. Tony Tannoury
ISSUE:
Is Claimant’s proposed double disc replacement and single level fusion surgery, to be performed by Dr. Delamarter in Santa Monica, California, a reasonable and necessary treatment option and should such treatment be authorized under Vermont Workers’ Compensation Law?
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FINDINGS OF FACT:
1. This matter was heard as an expedited hearing under Rule 7.4000 or the Workers’ Compensation and Occupational Disease Rules.
2. The Claimant, Nicholas Bonanno, suffered a work-related injury in a motor vehicle accident during the scope of his employment on December 22, 1995. Following the accident the Claimant had increasing lower back and leg pain. He received extensive, conservative treatment including injections and physical therapy for pain.
3. In November of 1998 the Claimant was in another motor vehicle accident on his way to physical therapy. The second accident was accepted as work related by the Defendant.
4. The Claimant continued to have lower back and right leg pain and, over time, the injections for pain became less effective. Despite many attempts at conservative treatment, the Claimant’s back pain has persisted to the current date.
5. In February of 2004 the Claimant had a “discogram”. This is a procedure which tests the structural integrity of the discs within the spine. This test determined that he had disc problems at the L5-S1 level and the L4-L5 level. It was proposed that he have a “two-level, 360 degree fusion surgery”. This type of surgery greatly concerned the Claimant because the fusion surgery was said to be irreversible with an 80% chance of success. Moreover, the Claimant was concerned that a result of the spinal fusion surgery would be a loss of spinal flexibility. The rigid spine caused by a fusion surgery transmits shocks and vibrations to the next level of spine above or below the fused disc.
6. In August of 2005, the Claimant went out of work despite accommodations. He had constant pain and trouble sitting or standing for long periods of time. He has not returned to work since August of 2005.
7. In 2007 additional tests were done on the L5-S1 level and it was determined that there was a mild spondylolithesis (slippage) at this level. Likewise it was determined that there were additional disk problems at the L4-L5 and L3-L4 levels. Dr. Rand proposed a three level fusion surgery. (Tab 26, Joint Medical Exhibit)
8. The Claimant has researched various back treatments. He learned of Dr. Rick Delamarter who is an expert in synthetic disc replacement surgery. In March of 2007, Dr. Delamarter evaluated the Claimant in California. Additional diagnostic tests were done in August of 2007. Dr. Delamarter determined that the Claimant was a good candidate for synthetic disc replacement surgery in the L4-L5 and L4-L3 levels of his spine. Dr. Delamarter determined that the Claimant would need a fusion surgery of his L5-S1 level. Dr. Delamarter proposed to do a hybrid surgery (one which combines a fusion of one level of the spine with disc replacements at other levels of the spine). The Claimant was scheduled for this surgery to be done on January 22, 2008.
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9. In mid-November, 2007, the Defendant scheduled the Claimant to be evaluated by Dr. Tony Tannoury. Dr. Tannoury gave the Claimant the recommendation that he have a fusion surgery to the L5-S1 level but that he not have disc replacement or fusion to the other two levels.
10. Based upon the opinion of Dr. Tannoury, the Defendant refused to pay for the surgery offered by Dr. Delamarter and the scheduled surgery was cancelled. Thus, the issue in this case is essentially whether the proposed surgery by Dr. Delamarter is reasonable.
11. Dr. Rick Delamarter is a board certified orthopedic surgeon. He became board certified in 1989. He has been an Associate Clinical Professor at the UCLA School of Medicine. He is the co-founder and director of the West Coast Spine Institute. He is credited in over 68 professional publications and has presented numerous times concerning artificial disc replacement. He is an instructor for surgeons who desire to be certified in the use of “Prodisc” artificial discs. He participated as a surgeon in one of the 17 centers that studied artificial discs for the U. S. Food and Drug Administration (FDA) approval in the United States.
12. The use of synthetic discs in back surgery has been studied in the United States following its use in Europe for some time. Dr. Delamarter is quite familiar with the use of synthetic discs because his workplace was a FDA approved site for the FDA study. The study had one “arm” which studied single level synthetic disc replacement. That study is complete and the FDA has approved the use of single-level, synthetic disc replacements in the United States. The use of synthetic discs in more than one level was another “arm” of the study and has not been acted upon by the FDA because the conclusions of that “arm” of the study have not been completed. The FDA action on this part of the study might not be complete for another 18 months.
13. Dr. Delamarter testified that the use of synthetic discs has been approved for single level disc replacements and that double synthetic disc replacements can be done legally “off-label”. The term “off-label” refers to the practice of prescribing drugs for a purpose outside of the scope of the drug’s label as approved by the FDA. While the FDA approves drugs and medical devices which are safe and effective, once a drug or device is approved, physicians may prescribe the drug or use the device as they deem medically effective. According to Dr. Delamarter, use of devices and drugs “off-label” is a common practice and is legal.1
14. Dr. Delamarter has performed several hundred double disc replacements with synthetic discs. His conclusions are that the synthetic disc replacements are significantly superior to fusions because the resulting range of motion is greater, the recovery time is one-third of the recovery time of fusion surgery, and the cost is less. The disc replacement decreases the “adjacent level process” significantly. According to Dr. Delamarter, under almost every measure, the outcome of synthetic disc replacement is better than fusion for those candidates who qualify. He characterized both the single level and double level synthetic disc replacements as safe and efficacious.
1 For a discussion of the legal effect of “off-label” practice see Conclusion of Law number 5.
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15. Dr. Delamarter examined the Claimant and is in a treating-physician role with him. He found that the Claimant needed a fusion at the L5-S1 level but that he would benefit from a synthetic disc replacement at levels L4-L5 and L4-L3. Dr. Delamarter was asked whether it might be possible to do the fusion first and then the disc replacements if the fusion surgery did not resolve the Claimant’s pain. Dr. Delamarter was unequivocal. His firm opinion was that both the L4-L5 level and L3-L4 were “pain generators” and needed disc replacement. He was also of the opinion that it would not be good practice to do the surgery twice. The scarring and lesions, which would result from the first surgery, would increase risk to the Claimant if the surgery were done in stages.
16. Dr. Tony Tannoury is an orthopedic surgeon who became board certified in July of 2005. He completed medical school in 1993. He has been an assistant professor of Orthopedic Surgery at the University of Virginia and Boston University.
17. Dr. Tannoury examined the Claimant and his medical records. His examination took place on November 28, 2007. He reviewed two discographies which appear to be those dated February 2, 2004 and March of 2007. (It does not appear that he reviewed the discogram of March of 2008 and it was unclear whether he reviewed the August 2007 discogram since that test report was not referred to by date as were the other discograms referenced in his report.) The CAT scan of March 18, 2008 showed abnormal morphology of the disc at L4-L5. The discogram of March 18, 2008 indicated abnormal disc morphology at L4-L5 and typical central burning pain with pressure (indicating “concordant” pain).
18. Dr. Tannoury determined that the L5-S1 level needed a fusion. (In this he agreed with Dr. Delamarter.) He concluded however that the L4-L5 was “mildly degenerative” and not the source of pain. He also concluded that the L3-L4 level was normal. He felt that disc replacement at both of the upper levels would be “excessive”.
19. Dr. Tannoury has never performed disc replacement surgery although he has attended conferences concerning it, including at least one in which Dr. Delamarter was a presenter. Dr. Tannoury performs a form of minimally invasive, interior fusion surgery which he recommended to the Claimant.
20. Counsel for the Claimant expended 128.1 hours of work in representation of the Claimant in this claim and incurred costs in the amount of $1,314.55.
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CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963).
2. When choosing between conflicting medical opinions, the Department has looked at several factors: (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. 37-03 WC (Sept. 17, 2003).
3. Applying these criteria to the competing medical opinions of Dr. Tannoury and Dr. Delamarter, it is clear that Dr. Delamarter is the more experienced of the two. He has a longer history of practice, and a wider breadth of practice than that of Dr. Tannoury. Dr. Delamarter is experienced in both fusion surgery and disc replacement, whereas Dr. Tannoury has not performed disc replacement surgery and has no direct experience with it. Dr. Delamarter is the treating surgeon for the Claimant while Dr. Tannoury is not. Dr. Tannoury did not have the benefit of the March 18, 2008 discogram and CAT scan, although portions of it were read to him during his testimony. Dr. Delamarter did have access to this test report before his testimony.
4. An employer is required to furnish reasonable surgical and hospital services to an injured employee. 21 VSA Sec. 640(a). The employee may select a health care provider upon notice to the employer of his or her dissatisfaction with any provider selected by the employer. 21 VSA Sec. 640(b). The commissioner retains authority to determine issues of reimbursement and medical necessity. e.g. 21 VSA Sec. 640(b) and (d). See also Kobel v. C&S Wholesale Grocers, Opinion No. 28-99 WC (August 2, 1999); Bertrand v. McKernon Group, Opinion No. 20-03 WC (April 16, 2003)(expedited hearing regarding cervical fusion surgery); Morrisseau v. State of Vermont, Opinion No. 19-04 (May 17, 2004)(expedited hearing denying gastric by-pass surgery).
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5. A proposed surgery may be found to be reasonable where it is recommended by the treating physician and where the surgery has an objective basis or foundation. Beaudin v. H.P. Hood, Inc. Opinion No. 39-99 WC (September 3, 1999). Surgical treatment for the Claimant’s spine has been recommended for three levels by both Dr. Rand and Dr. Delamarter. Dr. Rand, Dr. Delamarter and Dr. Tannoury all recommend fusion surgery for the L5-S1 level of the spine. Dr. Delamarter’s recommendation of the hybrid surgery with artificial disc replacement at the L3-L4, and L4-L5 levels has an objective basis and foundation. With significant experience in both types of surgery, his opinion is that the proposed hybrid surgery would have a better result, a quicker recovery period, and a lower cost. Moreover, the argument that this particular type of surgery is beyond the FDA approval, does not mean that the proposed surgery is not reasonable. This same argument was made in the case of State ex rel. Bax Global, Inc v. Indus. Comm., 2007 Ohio 695 (Ohio App. 10th Dist., Feb. 20, 2007). In that case, the court refused to set aside a ruling of the Industrial Commission that the Claimant should have a Charite artificial disc replacement at L3-L4, even though that artificial disc had been approved by the FDA for use at the L4-L5 or L5-S1 levels. The employer argued that the use of an artificial disc at the L3-L4 level was “off-label” and not approved by the FDA. The court approved the Commissioner’s determination that the FDA “neither regulates practice of medicine nor restricts uses to those which have been officially approved.” Id. Page 10, para. no. 37. An “off-label” use of a FDA approved device can be approved where the claimant’s need for the surgery and the propriety of the proposed surgery are shown by competent medical opinions. Id.
6. I conclude that the proposed surgery offered by Dr. Delamarter (a hybrid, fusion and double disc replacement) is a reasonable and necessary surgery for the Claimant and that the defendant is obligated to pay for the reasonable costs associated with it.
7. The Defendant argues in its Proposed Findings of Fact that the Department has “no jurisdiction to order pre-authorization of medical treatment”. (See page 2, Defendant’s Proposed Findings of Fact and Conclusions of Law.) This issue has been ruled on in the case of Bebon v Safety-Kleen/Sedgwick at both the Department and the Superior Court levels (See Bebon v. Safety-Kleen/Sedgwick, State File No. T-19416, Denial of Motion For Summary Judgement dated August 21, 2007 and Bebon v. Safety-Kleen/Sedgwick, CMS, Chittenden Superior Court Docket No. 1286-05, Entry Order dated January 9, 2007.)
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ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that:
1. The Claimant’s proposed hybrid surgery with Dr. Delamarter is reasonable medical treatment and should be paid for by the Defendant, if performed;
2. Attorney’s fees of 128.1 hours be awarded to the Claimant at the rate of $90.00 per hour pursuant to the Department’s fee schedule. Costs in the amount of $1,314.55 are also awarded to the Claimant.
Dated at Montpelier, Vermont this 12th day of June 2008.
____________________________
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. Sec. 670, 672.

V. O. v. Windsor Hospital (March 27, 2008)

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V. O. v. Windsor Hospital (March 27, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. O. Opinion No. 12-08WC
By: David J. Blythe, Esq.
Hearing Officer
v.
For: Patricia Moulton Powden
Commissioner
Windsor Hospital
State File No. T-00023
FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER
I. INTRODUCTION
Claimant presents three distinct issues in her claim:
(1) Are Claimant’s lower back pain and right leg problems causally related to her workplace injury of June 25, 2002 and thereby compensable in this claim?
(2) Was Claimant at medical end result between August 20, 2005 and June 4, 2006?
(3) Is Claimant’s massage therapy reasonable and necessary treatment for her compensable injury/ies?
II. HEARING
This matter came on for final evidentiary hearing on May 2, 2007 before David J. Blythe, Hearing Officer and designee of the Commissioner of Labor for this case. Claimant was present and was represented by Attorney Christopher J. McVeigh. Defendant Windsor Hospital and its workers’ compensation insurer, Royal & Sunalliance Insurance Company (“Carrier”) were represented by Attorney Keith J. Kasper. Claimant presented testimony and called the following witnesses (who all appeared and testified telephonically): Mark Bucksbaum, MD, Stephen W. Gordon, Karen Curran and Mark Hamilton, MD. Defendant and Carrier did not present witness testimony at the hearing.
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III. EVIDENTIARY EXHIBITS; JUDICIAL NOTICE
(a) The following Exhibits were admitted by stipulation of the parties:
Joint Exhibit 1: Medical Records (provided electronically on CD);
Joint Exhibit 2: Supplemental Medical Records (paper copies);
Joint Exhibit 3: Letter from Mark Hamilton, MD, dated April 19, 2007;
Claimant’s Exhibit 1: Deposition of Dr. Joseph Phillips, dated March 12, 2007;
Defense Exhibit A: Letter from Attorney McVeigh relating to Claimant’s subsequent earnings; and
Defense Exhibit B: Deposition of Victor Gennaro, DO, dated April 23, 2007.
(b) Judicial notice may be taken of all forms filed by any party with the Commissioner of Labor (Commissioner) in connection with this case.
IV. FINDINGS OF FACT Stipulated Facts
The parties stipulated to the following facts, which are here FOUND and are here incorporated verbatim as presented as paragraphs 1 through 4 in a written Stipulation dated May 9, 2007 and May 11, 2007 by the parties:
1. On June 21, 2002, Claimant suffered a personal injury by accident arising out of and in the course of her employment with Defendant within the meaning of the Vermont Workers Compensation Act (hereinafter, “Act”).
2. On June 25, 2002, and at all relevant times thereafter, Claimant has had one dependent within the meaning of the Act.
3. On August 5, 2005, Defendant filed a Form 27, with an effective date of August 20, 2005. This was approved by the Commissioner terminating Claimant’s total temporary disability benefits on the basis of Dr. Wing’s report finding Claimant had reached medical end result, and Defendant began advancing permanency benefits based upon this determination by Dr. Wing.
4. After Dr. Gennaro found the surgery Dr. Phillips proposed to be reasonable medical treatment, Defendant reinstated temporary disability benefits as of June 4, 2006. On July 13, 2006, Claimant underwent cervical surgery by Dr. Phillips. While initially denying the compensability of Claimant’s ongoing massage therapy, Defendant did agree to pay for twice monthly massage therapy sessions.
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Additional Findings of Fact
General History; Causal Relationship Between Workplace Injury and Lower Back and Leg Pain
5. In August 1999 (almost three years before the workplace injury), Claimant consulted with Dr. Nancy Bagley, to discuss her chronic cervical neck problems. Dr. Bagley determined that Claimant was suffering from C-7 radiculopathy on the right side. Later, Claimant underwent a C-7 block which provided complete, but only temporary, pain relief. A follow up MRI revealed that Claimant suffered from cervical stenosis (degenerative disk disease) at multiple levels. Joint Medical Exhibit – Report of Dr. Bagley dated May 1, 2001.
6. In January 2000, Claimant consulted with Dr. Kimberly Harbaugh due to neck and right arm pain. Claimant informed Dr. Harbaugh that she had been suffering from neck and arm pain for several years prior to this consultation. In 2000, Claimant underwent physical therapy and took medication in an attempt to reduce the pain. Joint Medical Exhibit – Dr. Harbaugh’s notes dated January 27, 2000.
7. In the medical history portion of Dr. Harbaugh’s neurosurgical consultation report, Claimant reported having a “history of intermittent right sciatica.” At that time, Dr. Harbaugh found that Claimant had “no significant toe response with plantar simulation on either foot.” Id.
8. In her neurosurgical consultation report, Dr. Harbaugh concluded that Claimant suffered from cervical stenosis and had posterior disc bulges at C4/5, C5/6 and C6/7. Claimant also had a small central disc bulge at C4/5. Dr. Harbaugh further concluded that Claimant’s pain symptoms were consistent with the “rupture of a cervical disc with resultant C7 radiculitis.” Dr. Harbaugh, however, did not see significant nerve root compromise at C7 and, thus, she opined that Claimant may be suffering from a “fibrous band in the region of the enlarged C7 costal element.” If Claimant had this fibrous band, Dr. Harbaugh concluded that it is likely that Claimant would suffer from lower trunk dysfunction. Id.
9. In a follow up appointment with Dr. Bagley in May 2001, Claimant continued to complain of chronic cervical neck pain. Dr. Bagley reiterated her conclusion that Claimant suffered from degenerative disk disease. Joint Medical Exhibit – Report of Dr. Bagley, dated May 1, 2001.
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10. At the time of her injury, Claimant was working as a nurse at Windsor Hospital. When the injury occurred, Claimant was assisting a stroke patient who was on the toilet. When Claimant opened the door to the patient’s bathroom, the patient fell forward off the toilet towards Claimant. Claimant testified that she attempted to break the patient’s fall and when she did so, the patient landed on her chest and knocked her back into the wall. Claimant’s Testimony.
11. As a result of the incident described above, Claimant was in a great deal of pain and was taken to the emergency room. Id.
12. Claimant recalled that she took the brunt of the blow near her left shoulder. Claimant testified that her whole upper body hurt, but that the acute pain was in her neck, left shoulder and left arm. Id.
13. Windsor Hospital emergency room records indicate that Claimant was seen for left shoulder and neck pain. The emergency room assessment was that Claimant suffered a left trapezius strain and that she was to treat it by applying ice and heat. Joint Medical Exhibit – Dr. Mark Bucksbaum, Permanency Evaluation at 2 (October 6, 2005).
14. Claimant testified that approximately one month later, sometime in July of 2002, her right foot began to go numb. Claimant testified that she began stumbling and having difficulty walking due to the numbness in her foot. Claimant’s Testimony.
15. In July 2002, Claimant began seeing a chiropractic physician, Dr. Donald Anderson, for treatment of her neck and shoulder. Claimant treated with Dr. Anderson from July 2002 through May 2005. Joint Medical Exhibit – Dr. Donald Anderson’s notes generally.
16. In an initial interview with Dr. Anderson on July 10, 2002, Claimant described her pain as being located in her neck, shoulders and arm. At that time, Claimant did not describe any right leg pain. Id. at July 10, 2002 notes.
17. Claimant testified that sometime in the Winter of 2002-2003, she told Dr. Anderson of her right leg pain because he noticed she was limping. Claimant’s Testimony.
18. Dr. Anderson noted on February 26, 2003 that Claimant had “no leg complaints.” Joint Medical Exhibit – Dr. Anderson’s notes at February 26, 2003.
19. Dr. Anderson’s notes make no mention of Claimant suffering leg pain until August 30, 2004. Id. generally and at August 30, 2004.
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20. Karen Curran became Claimant’s medical case manager in February of 2003 and worked with her until July of 2004. Karen Curran’s Testimony. As Claimant’s case manager, Ms. Curran was responsible for helping Claimant coordinate her medical care and obtain appropriate treatment. Id.
21. Ms. Curran worked closely with Claimant on her case and testified to having significant contact with her – sometimes talking to her more than once a day. The first time Claimant mentioned to Ms. Curran that she (Claimant) was having difficulty with her right foot, such that it was causing her to trip and fall, was July 2003. Id. The first reference in Ms. Curran’s medical notes to Claimant tripping due to her right foot was in August 2003. Id.
22. In May 2003, Claimant met with Dr. Hulda Magnadottir to discuss her continuing neck pain. At that time, Dr. Magnadottir noted that Claimant did not have any difficulties with her gait. Joint Medical Exhibit – Neurosurgical Consultation with Dr. Magnadottir dated May 19, 2003; Dr. Phillips’ Deposition at 34 (Claimant not complaining of leg pain in May 2003).
23. In May 2003, Claimant also met with Dr. Dennis Coombs to discuss her neck pain. Dr. Coombs examined Claimant and, in pertinent part, found that Claimant had a normal gait. Joint Medical Exhibit – Dr. Coombs’ notes dated May 30, 2003.
24. On June 3, 2003, Claimant met with and was examined by Dr. William Abdu to discuss the possibility of having disk fusion surgery. At this initial meeting, Claimant told Dr. Abdu that she suffered from “neck pain with some pain in her arms radiating down to the elbow, with occasional distal pain.” Joint Medical Exhibit – Office Notes of Dr. Abdu dated June 3, 2003. Claimant did not relate having any lower extremity pain at that time. During Dr. Abdu’s physical examination of Claimant, he found that her gait was normal and that her toe walking and heel walking were normal. Id.
25. On August 25, 2003, Dr. Abdu performed a surgical procedure to fuse Claimant’s cervical spine at C4-5. The purpose of this procedure was to alleviate pain in both of Claimant’s arms and her neck. Joint Medical Exhibit – Dartmouth Hitchcock Medical Center notes generally and Dr. Abdu’s notes of August 1, 2003; Claimant’s Testimony.
26. In his notes from a post-surgical examination of Claimant on November 11, 2003, Dr. Abdu noted that Claimant’s gait was normal. Joint Medical Exhibit – Dartmouth Hitchcock Medical Center – Dr. Abdu’s notes dated November 11, 2003.
27. Mark Hamilton, MD became Claimant’s treating physician in October 2003. Although Claimant saw Dr. Hamilton on a regular basis, she apparently did not tell him about her right foot problems until September 9, 2004. Joint Medical Exhibit – Dr. Hamilton’s notes dated September 9, 2004.
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28. On July 26, 2005, Claimant met with Dr. Daniel Wing for an independent medical evaluation (hereinafter “Wing IME”). During the Wing IME, Claimant told Dr. Wing that her biggest problem was right buttock and right leg pain followed by neck and shoulder pain. Joint Medical Exhibit – report of Dr. Wing dated July 26, 2005. Relying upon his review of her medical records and his examination of Claimant, Dr. Wing concluded that Claimant’s right buttock and right leg pain were unrelated to her workplace injury on June 25, 2002. Dr. Wing concluded that Claimant’s lower extremity pain was likely caused by her extensive lumbar degenerative disk disease and spinal stenosis. Dr. Wing was influenced in his opinion that the right leg pain was unrelated to the workplace accident by the fact that Claimant did not report any right leg pain for a significant period of time after her workplace accident. Id.
29. On October 6, 2005. Claimant underwent a permanency evaluation with Dr. Mark Bucksbaum. In his report, Dr. Bucksbaum cited extensively to Claimant’s medical history and the supporting medical records. In concluding that Claimant’s lower back and right leg pain are causally related to the June 25, 2002 workplace accident, Dr. Bucksbaum acknowledged that he relied primarily on Claimant’s statements and his physical evaluation of Claimant, which examination took place more than three years after the work-related injury and after her initial surgery. Joint Medical Exhibit – Permanency Evaluation by Dr. Bucksbaum dated October 6, 2005; Dr. Bucksbaum’s Testimony.
30. In coming to the conclusion that Claimant’s right leg pain and sciatica were causally related to her workplace injury on June 25, 2002, Dr. Bucksbaum testified that he relied in part on the fact that Claimant said she began suffering right foot numbness followed by leg pain close in time to her workplace accident. In particular, Dr. Bucksbaum testified that he relied on Claimant’s statements because he “had no reason to dispute them.” Dr. Bucksbaum’s Testimony.
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31. In March 2006 on behalf of Defendants, Victor Gennaro, D.O., conducted a physical examination of Claimant (hereinafter, “Gennaro IME”). Joint Medical Exhibit – Dr. Gennaro’s IME Report dated March 14, 2006. In addition to the physical exam, Dr. Gennaro reviewed Claimant’s medical records and some (but apparently not all) of the MRIs taken of Claimant at various times. Joint Medical Exhibit – Dr. Gennaro’s IME Report dated March 14, 2006. Dr. Gennaro concluded there was no causal relationship between Claimant’s workplace accident in June 2002 and her right foot and leg problems. Joint Medical Exhibit – Deposition Testimony of Dr. Gennaro dated April 23, 2007, at 12. Dr. Gennaro did not believe the two were related as he did not “see any evidence [in the record] that [Claimant’s right leg problems] were occurring at the time of her injury or even in close proximity.” Id. Dr. Gennaro testified that in his opinion, if Claimant’s workplace injury had been sufficient to cause “either myelopathy or issues with her cervical spine” that resulted in lower extremity problems, he would expect to see the onset of these problems immediately following the accident. Id. at 13. Dr. Gennaro concluded that there was no evidence that Claimant was significantly myelopathic. Significant myelopathy would cause compression of her spinal cord at the level of her neck and could result in lower extremity problems. Id.
32. Moreover, Dr. Gennaro concluded that if Claimant’s right leg problems were caused by significant spinal cord compression as a result of the workplace accident, he would expect to see on the MRI changes within the substance of her spinal cord in her neck. Dr. Gennaro found no such changes in his review of Claimant’s MRIs. Id. at 12. Dr. Gennaro concluded that Claimant’s current right leg problems are more likely a logical progression of the degenerative disk disease which existed prior to her workplace accident. Id. at 13; see also Findings 5-9 supra.
33. In September 2005, Dr. Joseph Phillips recommended an additional surgical procedure to alleviate pain in Claimant’s arms and neck. Joint Medical Exhibit – Dr. Phillips’ Deposition dated March 12, 2007, at 19-20.
34. Claimant underwent the second surgical procedure on July 13, 2006. Joint Medical Exhibit – Dr. Phillips’ Deposition, at 21.
35. As a result of the July 13, 2006 surgery, Claimant obtained significant relief from the pain and limited mobility in her arms and neck. Joint Medical Exhibit – Dr. Phillips’ Deposition, at 25; Claimant’s Testimony.
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Massage Therapy
36. Claimant has been blind in her right eye since the age of three years. Claimant’s Testimony.
37. Claimant has been receiving massage therapy from Steve Gordon and Heidi Smertz since June 2004. Joint Medical Exhibit – notes of Steve Gordon; Joint Medical Exhibit – notes of Heidi Smertz.
38. Currently, Claimant receives massage therapy on a bi-weekly basis. She usually alternates between seeing Steve Gordon and Heidi Smertz. Claimant’s Testimony.
39. Claimant began massage therapy treatment in June 2004 based on the advice of her medical case manager, Karen Curran. Karen Curran’s Testimony.
40. Ms. Curran testified that she recommended massage therapy for Claimant to help reduce her muscle spasms. Id.
41. Ms. Curran further testified that she believes physical therapy and massage therapy work as complementary treatments for Claimant. However, Ms. Curran acknowledged that she has not been involved in Claimant’s case for nearly three years and does not know Claimant’s current medical status. Id.
42. Claimant’s treating physician, Dr. Mark Hamilton, recommended that Claimant receive massage therapy in part because Claimant reported that the massage therapy helped reduce her muscle spasms and overall pain. Although Dr. Hamilton specifically testified that the massage therapy is useful treatment for Claimant’s present condition, he did not offer a specific expert opinion that it is a necessary complement to the physical therapy Claimant receives or is independently medically necessary. Dr. Hamilton’s Testimony.
43. Steve Gordon is a licensed massage therapist in the State of New Hampshire. Steven Gordon’s Testimony.
44. Mr. Gordon is not licensed in Vermont, as Vermont does not license massage therapists. Id.
45. Claimant testified that she receives considerable relief from discomfort and increased range of motion in her neck as a result of regular massage therapy. Claimant’s Testimony.
46. Claimant also testified that because she is blind in one eye, maximizing the range of motion in her neck is especially important for both professional and personal activities. Id.
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47. In the Gennaro IME report, Dr. Gennaro opined that massage therapy would not have any medical benefit for Claimant’s condition. Dr. Gennaro testified that under certain circumstances he uses massage therapy in his clinical practice, but that Claimant’s condition is not one of those circumstances. Dr. Gennaro testified that in his opinion massage therapy is not medically necessary as it is unlikely to change Claimant’s clinical condition over time. Joint Medical Exhibit – Deposition Testimony of Dr. Gennaro at 10.
Medical Endpoint – August 20, 2005 to June 4, 2006
48. In a follow up appointment with Dr. Abdu on March 1, 2004, Claimant reported that she was doing reasonably well, but was beginning to have some pain again in her right shoulder and right paraspinal region. Claimant also had some numbness in her upper right arm. Joint Medical Exhibit – Dr. Abdu’s notes dated March 1, 2004.
49. Claimant testified credibly that beginning in April 2004 and continuing into 2005, the pain and numbness in her neck, shoulders, arms and right leg began to increase substantially. Claimant’s Testimony.
50. Claimant met with Dr. Phillips in November 2004 to discuss medical options to relieve her neck and arm pain. Dr. Phillips advised that one option was to have an additional disk surgery. He also advised that more conservative therapies (specifically physical therapy and massage therapy) were reasonable under the circumstances. Joint Medical Exhibit – Dr. Phillips’ Deposition Testimony at 12 and at 16-17.
51. Dr. Phillips said that this proposed surgery was not imperative and, in fact, he could not be sure it would effectively relieve Claimant’s symptoms unless she was first willing to undergo a diagnostic nerve block. Id at 12-13.
52. Claimant told Dr. Phillips that she was “very, very uninterested in surgery” and did not undergo the nerve block. Id. at 14, 29.
53. On July 26, 2005, at Defendant’s request Claimant underwent an independent medical examination with Dr. Daniel Wing. Dr. Wing reviewed Claimant’s medical records and conducted a physical exam of her. Following his examination, Dr. Wing concluded that Claimant was at medical end result. Joint Medical Exhibit – Independent Medical Examination of Dr. Daniel Wing dated July 26, 2005.
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54. Additionally, Dr. Wing concluded that as of that time, the therapies she was receiving (massage therapy, acupuncture, and chiropractic therapy) were for palliative and maintenance purposes only and would not lead to a significant improvement in her medical condition. Id. at 61. Additionally, Dr. Wing concluded that because in his opinion Claimant’s lower back and right leg problems were not causally related to her June 25, 2002 workplace injury, these pain issues did not factor into his finding that Claimant was at medical end result. Id.
55. Based upon Dr. Wing’s IME report, the Defendant filed a Form 27 alleging medical end result as of August 20, 2005.
56. Claimant met with Dr. Phillips again in September 2005. Dr. Phillips testified that during this appointment Claimant described having pain in both her right and left arm. Dr. Phillips decided to order an MRI to determine the cause of this pain. Joint Medical Exhibit – Deposition of Dr. Phillips at 18.
57. In March 2006, Dr. Gennaro concluded that Claimant was at medical end result. In defining medical end result, Dr. Gennaro explained that in his opinion, medical end result means that the patient’s condition has stabilized and that it is unlikely to change in the foreseeable future regardless of any additional medical treatment. Joint Medical Exhibit – Deposition of Dr. Gennaro at pg. 7. Dr. Gennaro said that a finding of medical end result does not mean that a patient’s condition will not change or that other medical care can never be appropriate. It simply means that for the foreseeable future, the patient’s condition has plateaued. Id.
58. Under this definition, Dr. Gennaro concluded that Claimant had reached medical end result. Id.
59. Although Dr. Gennaro was aware of Dr. Phillips’ recommendation that further surgery was an option, this fact did not change his opinion regarding medical end result because the surgery was not imperative and there was no guaranty that it would be effective. Moreover, at that point in time, all indications were that Claimant had no interest in further surgery. Therefore, Dr. Gennaro concluded that Claimant was at medical end result in March 2006 and the fact that she subsequently underwent surgery in July 2006 does not change his opinion. Id. at pg. 7-9.
60. Claimant underwent a permanency evaluation with Dr. Bucksbaum on October 6, 2005. Dr. Bucksbaum issued his report from this evaluation in March 2006, in which he concluded that Claimant was at medical end result Joint Medical Exhibit – Permanency Evaluation by Dr. Bucksbaum; Dr. Bucksbaum’s testimony.
61. Significantly, Dr. Bucksbaum further testified that at the time he issued his March 2006 report he did not have all of Dr. Phillips records from 2006, and that if he had had those
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records he would not have found Claimant to be at medical end result. Dr. Bucksbaum’s Testimony. Dr. Bucksbaum testified that these more recent medical records clearly demonstrated that Dr. Phillips was actively treating Claimant and considering further surgery. Id.
62. In January 2006, Claimant met with Dr. Phillips to review an MRI. Dr. Phillips again recommended surgery. This surgery called for a two-level decompression spanning from the C5/6 and C6/7 area. Joint Medical Exhibit – Deposition of Dr. Phillips at 20-21.
63. Dr. Phillips performed the second disk surgery on Claimant on July 13, 2006, after which Claimant’s condition significantly improved. Id. at 21.
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); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166 (1962); Nutbrown v. Roadway Express, Opinion No. 2-93, at 4 (June 7, 1993).
2. In this case, the issue of causation is a complicated one. Under these circumstances, Vermont law requires the use of expert medical evidence. It is well established that the trier of fact may not speculate as to an obscure injury which is beyond the ken of laymen. Laird v. State Highway, Dep’t., 110 Vt. 981 (1938). Where the Claimant’s injury is obscure, and the layman could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s Inc., 137 Vt. 393 (1979); Jacquish v. Bechtel Corp., Opinion No. 30-92WC (Dec. 29, 1992).
3. Expert medical testimony is required to make the causal connection between employment, an injury and the resulting benefits sought. Martin v. Woodridge, Opinion No. 11-97WC (June 13, 1997); Cushing v. Just Good Builders, Opinion No. 68-96 WC (Nov. 25, 1996). A party who bears the burden of proof cannot meet that burden without providing such evidence, and possibility, suspicion or surmise are insufficient to carry that burden. Id.
4. 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); see also Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
5. In cases where the Department must choose among conflicting medical opinions with regard to Claimant’s condition, the following factors are considered: 1) the nature of treatment and length of time there has been a patient-provider relationship; 2) whether
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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. See Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
Causal Connection – Lower Back and Leg Pain
6. In this case, Claimant has not met her burden of proving that there is a causal link between her current right leg pain and her June 2002 workplace accident. Claimant’s statements regarding her leg pain and its connection to her workplace accident are not supported by the medical documents in this case. Moreover, Claimant’s medical expert, Dr. Mark Bucksbaum, relied largely on Claimant’s statements regarding her accident and subsequent right leg pain in conjunction with his evaluation in October 2005 in concluding that there was a causal connection between the two. In so doing, Dr. Bucksbaum did not fully consider the medical documents in this case that contradicted Claimant’s statements and provided other plausible explanations for Claimant’s current right leg pain. Therefore, Dr. Bucksbaum’s expert opinion in this regard must be given limited weight because he failed to consider all of the evidence in the case. Id.
7. Because Claimant has failed to meet her burden of demonstrating a causal connection between her June 2002 workplace injury and her lower back and leg pain, the Commissioner does not reach or address Defendants’ argument that this aspect of the claim is contractually barred.
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Compensability of Massage Therapy
8. 21 VSA §640(a) provides, in pertinent part, that in connection with a compensable claim under the Act an employer is required to provide “reasonable surgical, medical, and nursing services to an injured employee. 21 VSA §640(a). Reasonable medical treatment is what competent medical evidence proves will relieve symptoms from a work-related injury or restore a claimant’s functioning capacity. Morrisseau v. Vermont Agency of Transportation, Opinion No. 19-04WC (May 27, 2004). Most of the expert witnesses, including those offered by Defendants, agreed that massage therapy was helpful for Claimant in this particular case. Dr. Hamilton testified that massage therapy was beneficial to Claimant. However, he did not offer any specific opinion or evidence that massage therapy is medically necessary either as a complementary therapy with physical therapy or as an independent therapy. Reasonable (and therefore, compensable) treatment is typically that which is necessary for a particular claimant. Raymond v. Grand Union Stores of Vermont, Opinion No. 13-99 (March 24, 1999). In light of the statute, Morrisseau and Raymond, Defendant offered the only specific expert testimony on the issue of whether or not massage therapy is both reasonable and medically necessary. That evidence, from Dr. Gennaro, compels the conclusion that Claimant has not established that weekly massage therapy is reasonable and compensable.
9. Although the massage therapy is not compensable, the Commissioner nonetheless addresses Defendants’ argument that because the massage therapists providing therapy to Claimant are not licensed in the State of Vermont, citing WC Rule 40 and Miller v. IBM (III), Opinion No. 53-95WC (August 18, 1995), services provided by massage therapists are not compensable. Vermont does not license or certify massage therapists. If Defendant’s view were law, then only health care providers actually licensed in this state would be able to provide compensable care. Steve Gordon is licensed in the State of New Hampshire, which unlike Vermont does require licensure for massage therapists. There has been no allegation that by practicing massage therapy in Vermont, Mr. Gordon is engaging in any illegal or unethical conduct. For the purposes of the Act, a “health care provider” is “a person, partnership, corporation, facility or institution, licensed or certified or authorized by law, to provide professional health care services in this state to an individual during that individual’s medical care, treatment, or confinement.” WC Rule 40.012(F); 18 VSA §9432(8) (emphasis supplied). The Vermont General Assembly has not required licensure or certification for the practice of massage therapy in this State. Neither is there any evidence that providing massage therapy in Vermont is contrary to law. Therefore, the provision of massage therapy by persons not affirmatively shown to be incapable of so doing is authorized by law within the meaning of the Act when that therapy is part of compensable medical treatment.
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Medical End Result- August 20, 2005 – June 4, 2006
10. Under the Act, medical end result means “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” WC Rule 21.2100. See also Sargent v. Town of Randolph, Opinion No. 37-02WC (November 5, 2002).
11. The “fact that some treatment, such as physical or drug therapy, continues to be necessary does not preclude a finding of medical end result if the underlying condition causing the disability has become stable and if further treatment will not improve that condition.” Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). However, “the proper test is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement.” Id.
12. Defendant argues that Claimant was at medical end result between August 20, 2005 and June 4, 2006 because her condition had stabilized and she was not interested in pursuing further surgery. Defendants rely on the IME opinions of Drs. Gennaro, Wing and Bucksbaum. However, Dr. Bucksbaum revised his opinion in this regard, and his explanation for his revised opinion was credible. Significantly, Dr. Phillips, who was Claimant’s treating surgeon during this period and to whose opinion considerable weight is given, testified that as of November 2004 and thereafter, he discussed the possibility of surgery with Claimant who declined to undergo surgery at that time because, based upon Dr. Phillips’ advice, non-surgical alternative, conservative treatment was appropriate. Dr. Phillips again discussed surgery as a treatment option with Claimant in January 2006, and Claimant again declined surgery, preferring to continue with conservative treatment in the form of massage and physical therapy. Dr. Phillips specifically testified credibly that in January 2006 Claimant was not at medical end result because there existed both surgical and conservative treatment options. The second surgery, performed in July 2006, resulted in significant relief for Claimant.
13. In effect, Defendant argues that because Claimant did not choose to have the surgery when it was proposed as a treatment option in November 2004 and in January 2006, she declined appropriate treatment and therefore placed herself at medical end result. However, the credible evidence is that the specific surgery which was performed in July 2006 was, in the months preceding, not the only reasonable treatment available. The fact that in retrospect it proved to be effective does not necessarily lead to the conclusion that it was the only reasonable option between the effective date of the Form 27 (August 20, 2005) and the point of election for the surgery (June 4, 2006). Because in the months which preceded the July 2006 surgical procedure Claimant was actively treating with conservative treatment consistent with the advice of her physicians, and because she continued to at least keep open the possibility of surgery, she had not, as a matter of law, reached medical end result as of the date of the Form 27.
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Attorney’s Fees and Costs
14. Under WC Rule 10 and 21 VSA §678(a), the Commissioner, in her discretion, may award reasonable attorney’s fees to the prevailing party. Claimant’s attorney has submitted an itemized statement of services rendered showing 172.9 hours of professional services and costs of $2,819.73. Under WC Rule 10.1210, the award for services rendered on an hourly basis is limited to $90.00 per hour. At the allowed rate, the fees for professional services would be $15,561.00. Claimant’s total request for attorney’s fees and costs is therefore $18,380.73.
15. However, Claimant has prevailed on only one of the three claims. Because the body of medical and other evidence is, in large part, common to all three issues, it is reasonable, and within the Commissioner’s discretion, to conclude that Claimant is entitled to recover attorney’s fees based upon the efforts of counsel to the extent that those efforts may be allocated among the issues. Such allocation is entirely within the Commissioner’s discretion. In this case, the Commissioner concludes that an award of one-half of the hourly fees is warranted. Therefore, Claimant is awarded one-half of the requested attorney’s fees, in the amount of $7,780.50. Claimant’s request for costs in the amount of $2,819.73, is granted in full.
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ORDER
Based upon the foregoing, it is hereby ORDERED as follows:
1. Claimant’s claim for benefits related to her lower back and leg pain is denied.
2. Claimant’s claim for weekly massage therapy treatments is denied.
3. Claimant had not achieved medical end result as of August 20, 2005 or at any time relevant to this claim. Defendant is ordered to re-characterize benefits paid between August 20, 2005 and June 4, 2006 as temporary, rather than permanency, benefits.
4. Claimant, having substantially prevailed on one of her three claims, is entitled to an award of attorney’s fees in the amount of $7,780.50 and of costs in the amount of $2,819.73, both of which are reasonable.
Dated at Montpelier, Vermont this 27th day of March 2008.
________________________________
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.

E. D. v. Colchester School District (March 13, 2008)

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

E. D. v. Colchester School District (March 13, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
E. D. Opinion No. 09-08WC
By: George K. Belcher
v. Hearing Officer
Colchester School District For: Patricia Moulton Powden
Commissioner
State File No. M-21476
Hearing held on September 13 and 14, 2007, and October 12 and 19, 2007 in Montpelier, Vermont
Record Closed, January 19, 2008
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
Joshua Simonds, Esq., for the Defendant
EXHIBITS:
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit 1: Form 1, First Report of Injury
Claimant’s Exhibit 2: Calendar of January 1999
Claimant’s Exhibit 3: Record of bomb threats from school/dates of school closure
Record of insurance payments for the Claimant’s medical care
Deposition of Dr. John Johansson of October 9, 2006
Deposition of Dr. Nancy Binter of October 3, 2006
Deposition of Dr. James Cummings of October 9, 2006
Legal bill of Claimant’s counsel
ISSUES:
1. Whether the Claimant suffered a slip and fall injury on January 22, 1999 or on January 26, 1999, while the Claimant was at work?
2. What, if any, injuries the Claimant had as a result of the alleged work-related injury?
3. To which, if any, Workers’ Compensation benefits is the Claimant entitled as a result of the alleged work-related injury?
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FINDINGS OF FACT:
1. The Claimant was born on March 13, 1944. She holds an Associate’s degree in Medical Terminology and Medical Records. She has worked in a medical doctor’s office for about ten years from 1964 to 1974. She holds a BA degree in the field of education from Potsdam State University, a Master’s in Education Administration degree from St. Lawrence University, and an Educational Doctorate degree from Columbia University in Organizational Leadership. The Claimant was a contract employee of the Colchester School District from January 4, 1999 until June 20, 1999. Her position was interim Superintendent. The Claimant was an employee as defined in the act and the Defendant was an employer as defined in the act.
2. In October of 1997 (well before the work-place fall) the Claimant reported having a ten-year history of neck pain. Joint Medical Exhibit, Page 22. She likewise had a twelve-year history of migraine headaches. Joint Medical Exhibit, Pages 10-11. She began treatment with Dr. Gordon Ahlers in or around the summer of 1997. She had significant and continuous neck pain during her treatment with Dr. Ahlers. Dr. Ahlers also treated her for a back condition, migraine headaches, menopause symptoms, sleeping problems and depression.
3. On December 17, 1998 the Claimant was bending to attend to her shoe and she felt pain in her left hip. (Testimony of Claimant.) On December 23, 1998 she had a recurrence of the pain. She reported to Dr. Ahlers that she had pain radiating down her leg, with no trauma except she lifted a large suitcase. Joint Medical Exhibit, Page 45. During her next examination with Dr. Ahlers on December 29, 1998, she had a positive straight leg-raising test on her left leg. She appeared to be in more pain from her back and leg during this visit than she had been in previously. On December 29, 1998 (less than a month before the fall) she had a CAT scan as ordered by Dr. Ahlers. The CAT scan was done because of “Severe LBP” (understood to be severe low back pain). Joint Medical Exhibit Page 47. The CAT scan showed a small “right-sided disc herniation which is of uncertain clinical significance”. Medical Record, Page 47. Because the small bulge was on the right side it was not thought to be causing her left sided leg pain. On January 4, 1999 she began her work at the Colchester School District.
4. The Claimant’s job was a stressful job, in part because the school district was the target of numerous bomb threats during the period of the winter of 1999.
5. The Claimant described her injury as follows. On January 22, 1999 she was entering the Colchester High School in response to a bomb threat. The entrance to the school was icy due to an ice storm. The Claimant slipped and fell. It was a serious fall in which the Claimant went up in the air. The Claimant tore her suit when she “slammed on the ice”. For a moment she thought she might have broken her ankle or her pelvis. She felt immediate numbness but no immediate pain. According to the Claimant, a witness, Ray Bezio, helped her off of the ground. She entered the school and continued her duties associated with the bomb threat.
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6. According to the Claimant, on the day of the fall she knew that she seriously injured herself. She felt pain towards the end of the day. She telephoned Dr. Ahler’s office and reported that she had a serious fall. The receptionist told her that Dr. Ahler was not in the office, but she should go to a hospital emergency room. Despite this direction, she did not go to the emergency room. The Claimant did not explain why she did not go. Instead, according to her testimony, she was called by Dr. Johansson’s office and told that he had ordered a prescription for a “Med Dose Pack” and valium. Medical Exhibit, Page 49. The prescription made the Claimant “very surprised” since she had never met Dr. Johansson and she did not know who requested this prescription. Despite her surprise, she arranged for her partner to pick up the medication that day.
7. According to the Claimant, her back and left leg became a “severe medical problem for me”. She could do very little work. On February 3, 1999 she told the school board that she was “very sick” and was not sure that she would be able to continue with her job.
8. The Claimant continued to work at her job as Superintendent throughout the rest of her contract term (into June of 1999). She testified that she was in pain much of this time and often had to work from home or with pain medication. It does not appear that she missed work due to her condition. According to the Claimant she left her job as Superintendent because the injury prevented her from doing the job.
9. Joan Wood was the business manager of the Colchester School District in the winter and spring of 1999. Ms. Wood delivered to the Claimant a First Report of Injury form shortly after the alleged fall. She asked the Claimant several times to fill out a first report of injury associated with the alleged fall. Despite the Claimant’s testimony that the Claimant knew on the day of the fall that she had “seriously injured herself”, she did not complete a Form 1 (Employees Claim and Employer’s First Report of Injury) until April 16, 1999 (almost three months after the fall). The injury as described by the Claimant in the First Report of Injury is “Reinjury to herniated disks and ruptured disk.” Claimant’s Exhibit 11. There was no evidence presented to show that the Claimant had ever been diagnosed with a “ruptured disk.” Ms. Derocher stated on the same form that the date of the injury was January 26, 1999.
10. The Claimant seeks temporary and permanent disability benefits as well as medical benefits. The Defendant denies that there is any compensable injury or work-related impairment. The Claimant has a complex medical history before and after the date of the injury. The Claimant also has a complex history of physical activity before and after the injury.
1 The injury section of the Form One, Employer’s First Report of Injury, was completed by Ms. Durocher in black ink. (Testimony of Ms. Wood).
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11. On January 7, 1999, January 25, 1999 and February18, 1999 the Claimant had epidural injections by Dr. James Cummings. Dr. Cummings was doing these injections as an attempt to alleviate the pain of the Claimant associated with her back. The first injection occurred before the date of the fall. Dr. Ahlers had referred the Claimant to Dr. Cummings because of the back condition as he understood it (with no reference to the fall). Dr. Cummings’ medical records do not reflect that the Claimant reported a recent traumatic fall despite the fact that he gave her a treatment for low back pain just three days after the alleged fall. Medical Record Exhibit, Page 50.2
12. Dr. Ahler referred the Claimant for a surgical consult with Dr. Nancy Binter, which occurred on February 9, 1999. Dr. Binter made no mention of an alleged fall in her consultation note. What she did state was, “She is not a surgical candidate given the fact that she has a minimal bulge, which is actually on the opposite side to that of her symptoms and with no correlating physical findings.” Joint Medical Exhibit, Page 53. (emphasis added). Dr. Binter was quite clear in her testimony that the Claimant did not tell her about the fall and that it would have been reflected in Dr. Binter’s records if it had been reported. Likewise, Dr. Binter testified that she would have required additional testing if she had known about the fall. The Claimant contradicted Dr. Binter on this point quite strenuously. The Claimant testified that she told Dr. Binter about the injury and was “dragging her left leg and using a cane” when she saw Dr. Binter. As between Dr. Binter and the Claimant, I find Dr. Binter to be more credible.
13. According to Dr. Ahler, the Claimant never mentioned the fall to him either. His medical chart notes do not report anything about the fall and, it was his opinion that if he had been told of a traumatic fall associated with the Claimant’s back, he would have recorded it in his notes. After the date of the fall, Dr. Ahler treated her twenty different dates between February 8, 1999 and April 30, 1999 and made notes of the visits without any mention of a slip and fall. According to Dr. Ahler, she never mentioned the fall to him during the entire time that he was her primary, treating physician, despite the fact that he was treating her for low back pain.
14. Shaun O’Connor is a physical therapist with Timberlane Physical Therapy. He treated the Claimant in physical therapy for nine sessions in August and September of 1997 (before the fall) and again from July 1998 to October 1998 (before the fall). The purpose of these two series of treatments was to treat cervical spine degenerative joint disease.
2 Dr. Cummings in his deposition indicated that a report of a fall might not make it into his records and that he was a technician doing a procedure at the request of the treating physician. Nonetheless, it would seem that a traumatic fall without treatment, if reported, would at least be investigated.
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15. Physical Therapist O’Connor saw her again on February 10, 1999 for her condition of low back pain and left leg pain. In the intake, the Claimant told Mr. O’Connor that the date of the onset of this problem was January 6, 1999 (16 days before the fall at school). Mr. O’Connor reported the Claimant was in “severe” low back pain. He noted, “Mechanism insidious onset. I woke up one day and had this pain.” See Joint Medical Exhibit, Page 55. In Mr. O’Connor’s closing report of July 22, 1999 he continued the diagnosis of “low back pain with lumbar disc disease/OA“. Medical Exhibit, Page 97. No mention of traumatic injury or fall was reflected by Mr. O’Connor.
16. The first definitive report of the fall in the medical records was when the Claimant appeared at the Littleton Regional Hospital on May 15, 1999 seeking treatment for back pain. That record reported, “She states that she fell down in January, 1999 hitting her back and she was diagnosed with nonsurgical disc disease.” The examining emergency room doctor questioned her symptoms and noted, “Clearly there are not the symptoms of a herniated disc and what the symptoms are is not at all clear but since the woman appears in distress we will give her the benefit of the doubt.” Joint Medical Exhibit, Page 72. She again reported to an emergency room for treatment of her low back pain at the York Hospital in York, Maine, on May 29, 1999. She received pain medication. Joint Medical Exhibit, Pages 79-81.
17. On June 10, 1999 the Claimant was evaluated by orthopedic surgeon Dr. Stanley Grzyb. His notes state in part, “She can’t remember any incident directly relating to the onset of her low back discomfort. She had indicated when I was obtaining her history that she had a fall on some ice at the school while investigating a bomb threat in the Winter of 1999. She thinks that her symptoms may have increased after that but she cannot really attribute the onset of her discomfort to that fall.” Joint Medical Exhibit, Page 88.
18. She visited the emergency room at Fletcher Allen Health Care on September 27, 1999 complaining that the original injury was in January of 1999 and that she was out of her pain medication. She visited the Fletcher Allen Health care emergency room again on November 26, 1999 and reported that her January fall had damaged her vertebrae and her sciatic nerve. Medical Record Exhibit, Pages 119-124. She also reported that she had been doing quite a bit of lifting around the house associated with houseguests. She was given a prescription for Percocet from the Fletcher Allen Emergency room.
19. A similar emergency room visit occurred at the Copley Hospital Emergency room in December of 1999 in which the Claimant was seen due to sciatic pain aggravated by a cough while she was on a ski vacation. The chart notes state in part, “[She] has come to the emergency room for assistance; primarily because of the dry hacking cough that she is experiencing is aggravating a sciatic nerve injury which has been recovering since she injured it two months ago.” Joint Medical Exhibit, Page 133. She was prescribed Phenergan with Codeine and discharged.3
3 The medical records show a history of the Claimant going to emergency rooms for treatment for pain. The emergency room visits in 1999 often referred to the fall, but they were inconsistent as to whether the fall was the origin of the problem or not. The visits were at four different hospitals. It is peculiar that the falls were reported to emergency room doctors but not to the treating physician or the consulting specialists who were treating her back pain. (Dr. Ahler, Dr. Binter, Shaun O’Connor).
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20. In August of 2001 she was evaluated by Carol Blattspeiler, Orthopedic Nurse Practitioner. By this time, Dr. Ahler was no longer her treating physician and she was under the care of Dr. Frank Landry. Carol Blattspeiler found that the Claimant had a “multitude of problems” including right shoulder pain, neck pain, a periformis problem, hip problems. The Claimant reported to Carol Blattspeiler “a recent episode in October of 2000 when she fell during a bomb threat at the Colchester schools.” She reported that she was taking Loricet, Soma, Atenolol, Zyrtec, Prozac, and hormone replacement therapy. Nurse Blattspeiler expressed the concern, “She is on at least two Loricets a day and has been taking this for almost a year. This is quite worrisome to me additionally.” Joint Medical Exhibit, Page 170.
21. In January of 2002 the Claimant started a program of walking. In March of 2002 the Claimant decided that she would travel to Spain to hike the El Camino de Santiago Trail. In preparation for this event, she was walking six days per week, about 20 miles per day in the City of Burlington. Testimony of Claimant and Toni Bouchard. In July of 2002 she reported slipping in her bathtub and having back pain and leg pain. Joint Medical Exhibit, Page 184.
22. Between August 19, 2002 and September 27, 2002 the Claimant went on an extended hiking trip in Spain as a “pilgrimage”. (Testimony of Claimant.) During this period she was off all her pain medications and was hiking from 13 to 23 miles per day with a backpack. She did this for 37 days continuously, six days per week, for a total of about 500 miles.
23. When she returned from her trip to Spain in October 2002, she was pain free and off all medications. In December, 2002, the pain returned and was the same as it had been before her trip. (Testimony of Claimant.)
24. The Claimant appeared at the Emergency Room of Fletcher Allen Health Care on June 4, 2004 and wanted to enter a detoxification program. She reported to the emergency room staff that she had been abusing narcotics and sedative hypnotics for one and one-half years. She reported that she had abused Soma and narcotics as prescribed by her primary care physician (Dr. Landry) and then started ordering other drugs on the internet, taking Ativan, Soma, and Loricet. The Claimant completed a rehab program at Act 1 in the Burlington area. The Claimant discussed the medication problem with her psychologist, Dr. Robert Keith on June 15, 2004, June 25, 2004, and June 29, 2004. In those meetings she admitted some abuse of her prescribed drugs and reported that Dr. Landry wanted to limit her drug use. She terminated her relationship with Dr. Landry soon thereafter because of “a communication issue” and began treatment in August, 2004 with Dr. Patricia Whitney. (Medical Exhibit, Page 258).
25. By December of 2004 she was again receiving significant pain medication including morphine and valium. Her psychologist noted slurred speech during an appointment. (Joint Medical Exhibit, Page 287)
26. This same month she reported to Dr. Whitney that she had fallen in the bathroom and was having increased back pain. (Joint Medical Exhibit, Page 288A)
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27. Dr. Bruce Tramner, Professor of Neurology at the University of Vermont and at the Fletcher Allen Health Center examined MRI films of the Claimant on July 6, 2004. He stated, “I see no evidence of nerve root impingement or spinal cord impingement.” He recommended conservative treatment.
28. On January 28, 2005 the Claimant appeared at the Fletcher Allen Emergency room and was examined by Dr. Stephen Leffler who noted negative straight leg raising tests on both legs.
29. On March 3, 2005 the Claimant was examined by Dr. Jonathan Fenton, D.O. He concluded that she was not a good candidate for interventional procedures because, “She is extremely pain amplified with abnormal responses in terms of mood/affect appropriateness. As was discussed by Dr. Waddell, the presence of such signs makes the outcomes for spinal surgery (which includes anesthesia procedures) in doubt.” (Joint Medical Exhibit, page 343.)
30. While the medical records vary greatly concerning the nexus between the fall and the Claimant’s back pain, testimony from Joan Wood and Antonia (Toni) Bouchard was more consistent. Joan Wood is an accountant who worked with the Claimant at the Colchester School District at the time of the Claimant’s fall. She was aware that the Claimant had neck and back problems before the fall but she noticed that the Claimant seemed to be in much greater pain after the fall. While Ms. Wood noted a change in the apparent pain and function of the Claimant after the fall, she did not know whether the increased pain was due to her neck problem or her back problem or some other problem. Ms. Wood also had limited opportunity to evaluate the Claimant’s condition before the alleged fall. She worked with her for about one month before the fall during a period where the medical records indicate that the Claimant’s back condition was worsening, even before the fall.
31. Ms. Wood is a personal friend of the Claimant and worked with her for several months at Applied Earth Technologies in Winooski, Vermont, after both women had left the Colchester School District. Likewise, she visited the Claimant in 2006 in Arizona (where the Claimant now lives).
32. Antonia Bouchard is the partner of the Claimant and they have lived together (except for a period in 2005-2006) since 1996. She testified that before the fall the Claimant had mostly neck pain with some back pain. After the fall she testified that the Claimant had much greater pain, less physical function and reduced activity. She also testified that the Claimant had concealed from her the drug abuse.
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Medical Opinions
33. Dr. Patricia Whitney was the treating physician for the Claimant for about two years from August, 2004, to October, 2005. Dr. Whitney is a graduate of UVM Medical School and is Board Certified in Family Practice. She completed her residence in 2003. Dr. Whitney treated the Claimant for neck problems, migraine headaches, and other problems but the low back pain was prominent as a problem. Dr. Whitney testified that, in her opinion, the Claimant suffered a major exacerbation during the fall at school. She also opined that the Claimant had no work capacity during the period of treatment with Dr. Whitney because of the great pain that she suffered. Dr. Whitney had not spoken with Dr. Landry about the Claimant’s medical or medication history. Dr. Whitney was also not aware of the Claimant’s history of emergency room visits. Likewise, the Claimant did not disclose a history of substance abuse to Dr. Whitney when she first became her patient.
34. Dr. Jay Landry is a medical doctor who received his medical degree from Tufts University. He is Board certified in Internal Medicine. From 1997 to 2000 he worked as a Professor of Medicine at Uniform Services University and from 2000 to the present he has worked in a clinical practice. He was the treating physician for the Claimant from 2001 to 2004. He treated her for a variety of problems over this period including chronic neck pain, shoulder pain, migraine headaches, foot pain, depression, and low-back pain. Her neck pain was the prominent problem. Her low back pain was not the prominent problem and only arose as an issue for treatment when specific events (such as falling off a treadmill in September of 2003) brought her back pain to the forefront again.
35. Dr. Mark J. Bucksbaum is a medical doctor with specialties in pain management and independent medical examinations. He performed an evaluation of the Claimant on May 13, 2004. He diagnosed her as having “chronic mechanical low back pain” caused by a degenerative disruption of the spine. Dr. Bucksbaum attributed the Claimant’s back problems to multiple factors including a spondylosis (slipage) defect, laxity of ligaments in the L4-5 region, and the fall. He believed the fall aggravated the Claimant’s low back problems because of: (1) the history which she gave of greater pain following the incident and (2) his belief that the spondylosis appeared after the injury. (Testimony of Dr. Bucksbaum; see also Joint Medical Exhibit, page 238). Dr. Bucksbaum attributed an eight per cent whole person impairment to the claimant based upon the magnitude of the injury, the frequency of flare-ups and the overall impact upon her life. He felt that she was capable of light duty work. The Claimant reported to Dr. Bucksbaum that the date of the injury was January 26, 1999. Medical Exhibit, Page 228. On cross-examination, Dr. Bucksbaum was confronted with an MRI report performed on July 9, 1999 and reviewed by Dr. Stanley Grzyb which showed a small right bulge at L4-5 but no spondylosis in the lumbar region.
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36. Dr. George White is a medical doctor who received his medical degree from the University of Vermont in 1982. He is Board Certified in Occupational Medicine. He is also certified by the American Board of Independent Medical Examiners to conduct independent medical examinations. His opinion was that it was not likely that the Claimant suffered an aggravation as a result of the fall. His opinion was that the Claimant was suffering from the “classic pattern” of waxing and waning of pain which often comes with degenerative disc disease and that the pain was simply cycling up and down depending upon her life events. He noted specific pain treatments being rendered after the Claimant doing some vacuuming (Nov. 15, 1999), lifting mixer (November 26, 1999), lifting and gardening (May 16, 2001), slide in tub (July 29, 2002), lifting heavy object (March 12, 2003), strain on treadmill (Sept. 9, 2003) and travel (Nov. 20, 2003). He reached this conclusion, in part, because of the long hike which the Claimant took in 2002 without pain or difficulty.4
37. Mary Louise Hymen is a Master’s level Occupational Therapist. She performed a Functional Capacity evaluation on the Claimant on June 21, 2007. In her report, she reported that the “Onset Date” of the medical history was the Claimant’s fall on January 22, 1999. It was the opinion of Ms. Hymen that the Claimant could not work full time, but that she might be able to work part time if she had frequent breaks. Ms. Hymen did not express an opinion as to causation.
38. Louise F. Lynch did a Functional Capacity Evaluation on January 31, 2005. The date of injury was reported to be January 26, 1999. Ms. Lynch determined that the Claimant had no work capacity on her bad days and that the Claimant’s pain impacted her ability to work. She did express the view that the level of incapacity was inconsistent with the Claimant’s walking 106 miles per week.
4 Claimant has argued that Dr. White’s opinion of May 23, 2005 that it was “possible” that the Claimant aggravated her back condition by the fall (Joint Medical Exhibit, Page 348), is inconsistent with his later opinion of October 2, 2006 that the Claimant’s condition, to a medical degree of certainty, was not related to her fall. Joint Medical Exhibit, Page 360. The difference was adequately explained by Dr. White. His ultimate opinion was certainly not “backtracking” or “highly disturbing” as was found in Brace v. Vergennes Auto, Inc., Addison Superior Court Docket No. 279-12-06 AnCv dated September 28, 2007. The difference between his two reports was not significant and was explained by the additional information available to Dr. White and his reflection upon it.
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CONCLUSIONS OF LAW:
39. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984). The Claimant’s version of events was suspect by reason of her inconsistent reporting of the date of the injury (January 22, 1999; January 26, 1999; October, 2000), the lack of corroboration of her fall (Mr. Belisle was not presented as a witness nor were any corroborating minutes presented by the Colchester School District of her report to them of the problem), her late report of injury (report filed in April, 1999), and her failure to report her serious fall to her treating physicians in a timely manner. Sometimes these sorts of inconsistencies can be explained if there are simple explanations. The Claimant offered none. Her answers to simple questions were indirect and unresponsive. In her testimony she gave great detail about irrelevant matters but would fail to answer simple questions such as, “What did you mean by ‘Very sick’?” She gave no plausible explanation why her recollection of facts was so inconsistent with the medical records. See Miner v The Auto Exchange, Opinion No. 8-96 WC (1996) concerning failure to report serious knee injury in a timely manner, coupled with other issues of credibility, and Reed v Fay’s Drugs, Opinion No. 65-96 (1996) where medical tests were consistently uncorroborative of subjective complaints.
40. In considering late reports of injury, the Department has evaluated the credibility of witnesses by looking at four criteria. (1) Are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? (2) Does the Claimant lack knowledge of the Workers Compensation reporting process? (3) Is the work performed consistent with the Claimant’s injury? (4) Is the persuasive medical evidence supporting causation? See Seguin v. Ethan Allen, Opinion No. 28S-02 WC (2002). In this case, the failure of the Claimant to promptly file a First Report of Injury only adds to the skepticism of any relationship between the alleged fall and the medical condition complained of. There is a stark absence of medical records contemporaneous with the fall. While there is a history of complaints, that history does not begin in the records until May of 1999. While she testified that she complained of the injury to the school board and the chair of the school board, no records of this were presented. The Claimant was the top employee in a school district with many subordinate employees. She must have been aware in her experience of the importance of filing a report of injury. Moreover, as reported by the Claimant, the injury was sudden, traumatic and life-altering. Under these circumstances one would think that the report would be promptly filed. Finally, there is no objective medical evidence of trauma as a result of the fall. The claim is completely subjective despite exhaustive testing of the Claimant over a five-year period.
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41. 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 and Martin Lumber Co. 112 Vt. 17 (1941). Here, the lower back and leg pain of the Claimant could easily be related to a number of physical events (degenerative joint disease, slipping in a bathtub, lifting a mixer, falling on a treadmill). It is difficult to reach any reasonable conclusion that the alleged fall is more probably the cause of her ailments than any of these other events.
42. Where the causal connection between the accident and the injury is obscure and a layperson would have no well-grounded opinion as to causation, expert medical opinion is necessary. Lapan v. Burno’s Inc., 137 Vt. 393 (1979).
43. When choosing between conflicting medical opinions, the Department has looked at several factors: (1) whether the expert has a treating relationship with the claimant; (2) the professional education and experience of the expert; (3) the evaluation performed, including whether the expert had all the medical records in making the assessment; and (4) the objective basis underlying the opinion. Yee v. IBM, Op. No. 38-00 WC (2000).
44. Here Drs. Bucksbaum and White have similar experience, education, and history with the Claimant. It appears that both had all the medical records, although Dr. Bucksbaum failed to highlight or recount the July 9, 1999 lumbar MRI and the report of Dr. Grzyb of July 13, 1999 in his summary of records. Joint Medical Exhibit, Page 218. This is significant because Dr. Bucksbaum relied upon the spondylosis as a physical defect which appeared after the alleged fall in order to tie the fall to a physical injury of the spine. (Testimony of Dr. Bucksbaum) The July 9, 1999 MRI (after the fall) did not show this spinal defect, thus, removing this basis for Dr. Bucksbaum’s opinion. Dr. White’s opinion, on the other hand, is well supported by the various medical records and the up and down history of the Claimant’s back problems. I find Dr. White’s opinion to be more persuasive.
45. Dr. Bucksbaum’s basis for his opinion was based in large measure upon the pain reports of the Claimant. Where the reports of a claimant are suspect and incredible, the medical opinions which are based upon them may lack the soundness to support an award. Bowen v. E. F. Wall, Opinion No. 17-04 WC (April 20, 2004).
46. Dr. Whitney treated the Claimant for about 14 months in 2004 and 2005. Dr. Whitney expressed the opinion that the Claimant’s fall exacerbated her back problem. Dr. Whitney did not have the benefit of a full review of the medical records from Dr. Ahler, or Dr. Landry. She had not talked with Dr. Landry about this patient. She was not told in the first instance by the Claimant about her substance abuse. She was unaware of the history of emergency room visits for pain medication. The impression was given that Dr. Whitney did not have all the relevant information to make a conclusive and persuasive judgment concerning the relationship between the back problems of the Claimant and all the possible causes.
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47. Because of the failure of the Claimant to prove by a preponderance of the evidence that the Claimant’s fall was the cause of her back problems, her claim for workers’ compensation benefits is denied.
ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant’s claim for workers’ compensation benefits, including attorney fees and costs is DENIED.
Dated at Montpelier, this 13th day of March 2008.
____________________________
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. Sec. 670, 672.

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