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L. M. v. Woodridge Nursing Home (December 6, 2006)

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L. M. v. Woodridge Nursing Home (December 6, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. M. Opinion No. 46-06WC
By: Margaret A. Mangan
v. Hearing Officer
Woodridge Nursing Home For: Patricia Moulton Powden
Commissioner
State File No. W-51502
Hearing held in Montpelier on September 1, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq., for the Defendant
ISSUES:
1. Is Claimant’s current condition caused by her work-related injury?
2. When did Claimant reach medical end result for her work-related injury?
3. To what benefits, if any, is Claimant entitled?
EXHIBITS:
Medical Records
STIPULATION:
1. On August 15, 2004 Claimant was an employee of Defendant within the meaning of the Vermont Workers’ Compensation Act (Act).
2. On August 15, 2004, Defendant was the employer of Claimant within the meaning of the Act.
3. On August 15, 2004, Claimant suffered an injury by accident arising out of and in the course of her employment.
4. At the time of the injury, Claimant had an average weekly wage of $394.17 resulting in an initial compensation rate of $305.
5. At the time of her injury and thereafter, Claimant has had no dependents within the meaning of the Act.
6. Effective July 23, 2005, Defendant terminated temporary partial disability benefits on the basis that Claimant had reached medical end result. It also terminated medical treatment alleging that the treatment Claimant was receiving was unrelated to the work injury.
7. Claimant seeks reinstatement of her benefits and, if successful, an award of attorney fees and costs of the litigation process.
FINDINGS OF FACT:
1. In 2002, before the event at issue here, Claimant hurt her back lifting a patient. She sought medical attention, missed a few days at work and returned to work full time, full duty.
2. In August of 2004, Claimant was working as a licensed nursing assistant (LNA) at the Woodridge Nursing Home. She had been an LNA for five years.
3. On Friday August 15, 2004, Claimant was using a Hoyer lift to help a patient return to bed from a wheelchair. In the process, she leaned, slipped, and then fell back striking her right side (in the area over the kidney) against a nightstand. Claimant completed her task; she then reported the incident to her supervisor.
4. Claimant went to hospital emergency department the day of the incident where she was seen by a nurse and physician’s assistant (PA). The PA noted costo vertebral tenderness. Diagnoses were back contusion and possible compression fracture of the spine. Claimant was given an out of work note stating that she fell at work and sustained a lumbar sacral strain.
5. Claimant iced her back over the weekend and took anti-inflammatory medications.
6. On Monday, August 18, 2004, Claimant consulted with her primary care physician at the Health Center. Her pain was described as “right paralumbar pain and right SI [sacroliliac] joint pain.” The straight leg raise (SLR) on the right was negative. Claimant was referred to physical therapy (PT).
7. Stedman’s Medical Dictionary (25th ed.) defines lumbar as “[r]elating to the loins, or the part of the back and sides between the ribs and the pelvis.” The paralumbar muscles; sacroiliac joint; and costovertebral angle, higher in that area, are in the general lumbar region of the back.
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8. An August 28, 2004 PT note indicates that Claimant had fallen on her right side pelvis. The SLR test on the right was positive, which suggests nerve involvement.
9. On September 3, 2004, the physical therapist noted that Claimant was “sore on the other side now.”
10. On October 15, 2004, Dr. Rohan noted that Claimant still had a tender area where she was bumped. She had point tenderness in paraspinal muscles.
11. Tests performed in October of 2004—a CT scan and MRI—revealed multi level degenerative disc disease in Claimant’s lower back and facet arthrosis.
12. Claimant returned to work on a part time (three hours per day), light duty basis in September, 2004.
13. In July 2005, Dr. Boucher, Board Certified in Environmental Medicine, evaluated Claimant for the defense in June 2005. Dr. Boucher opined that Claimant’s only work related injury was a contusion to the right side of her lumbar area as documented in the original emergency department notes. He described her current complaints in paraspinal muscles as anatomically distinct from the area of injury and, therefore, unrelated. The straight leg raise test was negative at the time of Dr. Boucher’s evaluation.
14. Dr. Boucher noted that Claimant magnifies symptoms, a conclusion that is consistent with the medical records. He placed her at medical end result, an accurate assessment because her symptoms had reached a plateau. He found no permanent partial impairment.
15. Based on Dr. Boucher’s report, Claimant was informed that she would be fired from her job if she did not return full time. Claimant did not return to work full time.
16. A Functional Capacity Evaluation of Claimant, performed in September 2005, indicated that Claimant had a work capacity of “less than sedentary.”
17. In October 2005 Claimant was fired for not returning to work full time.
18. The carrier terminated temporary total and medical benefits based on Dr. Boucher’s evaluation.
19. Claimant has not looked for work within her restrictions.
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20. Dr. Davignon evaluated Claimant in February 2006. The evaluation included an examination of the Claimant and review of medical records, although he did not have her pre-injury records. He opined that her current symptoms are causally related to her work related injury. Unlike Dr Boucher, he did not find that the ED note regarding costovertebaral angle pain and subsequent notes documenting sacroiliac and low back pain indicated different phenomena. From the outset, Claimant’s pain has been in her lower back on the right. Her large body habitus makes precise location impossible.
21. Dr. Davignon opined that Claimant has a part time sedentary to light work capacity based on the FCE and physical examination. He acknowledged that Claimant had pre-existing degenerative conditions of the back, conditions aggravated by her work related injury.
22. No evidence had been produced to suggest that Claimant injured her back in any way other than at work.
23. Claimant submitted support for a claim for attorney fees based on 73.1 attorney hours at $90.00 per hour and 3.7 paralegal hours at $60.00 per hour as well as costs to $828.95.
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. With an obscure injury and causation beyond the ken of a layperson, expert testimony is necessary to lay the foundation for an award. Lapan v. Berno’s Inc., 137Vt. 393 (1979).
4. In this case, as in many others, the medical evidence on which an order depends is in conflict. To resolve the differences, this Department traditionally has looked at several factors: 1) whether the expert has had a treating physician relationship with the claimant; 2) the professional education and experience of the expert; 3) the evaluation performed, including whether the expert had all medical records in making the assessment; and 4) the objective bases underlying the opinion. Yee v. IBM, Opinion No. 38-00WC (2000).
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5. Neither of the experts has a treating physician relationship with the Claimant. Both are well versed in the area of occupational medicine, although Dr. Boucher has an edge with his board certification. Both had available to them records and history relevant to this claim. Although Dr. Davignon had not seen the pre-injury records, he was well aware of preexisting degenerative disc disease. The difference lies with the interpretation of the symptoms and understanding of medical end result.
6. To accept Dr. Boucher’s opinion on causation, I would have to accept that the precise location of one’s pain is always clearly documented in the medical records and that it remains in that precise location at all times. Dr. Davignon’s opinion to the contrary is more logical. Claimant hurt her lower back on the right side at work. She described it as over her kidney at one time and in her lower back, which is slightly lower and more central, at other times. The areas are within inches of one another. No intervening events have been identified that would account for Claimant’s continuing symptoms. Although Claimant had a preexisting degenerative condition, that condition was asymptomatic prior to the injury at issue. It is well established that aggravation from a preexisting condition is compensable. Jackson v. True Temper Corp., 151 Vt. 592, 595-596 (1989). (citing to Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35-36 (1980); Laird v. State Highway Dep’t, 112 Vt. 67, 86 (1941); Gillespie v. Vermont Hosiery & Machinery Co., 109 Vt. 409, 415 (1938)).
7. On the question of ongoing disability, however, Dr. Boucher provided the more persuasive opinion. This claim fails for two reasons: medical end result and failure to conduct a job search.
8. “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 2.1200. The fact that some treatment such as drug or physical 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 (1996). “[A] claimant may reach medical end result, relieving the employer of temporary disability benefits, but still require medical care associated with the injury for which the employer retains responsibility.” Pacher v.Fairdale Farms, 166 Vt. 626, 629 (1997); Coburn, 165 Vt. at 532. The necessity of treatment such as physical therapy or medications is not inconsistent with finding medical end result. Pacher, 166 Vt. at 626. Claimant had reached a medical end result at the time Dr. Boucher had examined her, as demonstrated by the plateau in her symptoms, thereby justifying the termination of her temporary total disability benefits.
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9. Furthermore, Claimant has not proven that she is incapable of working. Claimant had been released to work yet failed to pursue any employment on her personal belief that she could not work. Such a subjective belief, however, cannot support such a claim for TTD. See Davis v. The Journal Co., Op. No. 31-92WC (1992).
10. However, since this is a compensable claim, Claimant’s medical benefits must be reinstated pursuant to 21 V.S.A. § 640(a).
11. The carrier must adjust the claim with payment of medical benefits and permanent partial disability benefits if so assessed, although it was justified in terminating temporary total disability benefits in July 2005 because Claimant had reached medical end result.
12. Because Claimant has prevailed on her claim for compensability and medical benefits, claims that depended on the same core set of facts as the claim for TTD that is denied, she is entitled to the requested attorney fees and costs pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000. See also The Electric Man, Inc. v. Charos 2006 VT 16. ¶ 9-12.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to adjust this claim, including payment of:
1. Medical Benefits;
2. Attorney fees and costs;
3. Permanent partial disability benefits, if so determined.
The claim for temporary total disability benefits is DENIED.
Dated at Montpelier, Vermont this 6th day of December 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.
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Gilles Boutin v. United Parcel Service (August 5, 2011)

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

Gilles Boutin v. United Parcel Service (August 5, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gilles Boutin Opinion No. 21-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
United Parcel Service
For: Anne M. Noonan
Commissioner
State File No. W-52535
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 6, 2011
Record closed on May 9, 2011
APPEARANCES:
Michael Green, Esq., for Claimant
Jason Ferreira, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s cervical spondylotic myelopathy causally related to his September 14, 2004 work injury?
2. If yes, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Curriculum vitae, Leon Ensalada, M.D., M.P.H.
Defendant’s Exhibit B: Cervical spondylosis diagram
Defendant’s Exhibit C: Cervical MRI diagram
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant is 57 years old, and has worked for Defendant since 1978. For the first ten years he was a delivery package driver. For the past 22 years he has been a feeder driver, driving 18-wheel tractor-trailer trucks through the night from hub to hub within Defendant’s system. Claimant’s assigned route takes him from Barre to Burlington, Vermont, then to Chelmsford, Mass., and then back to Barre by way of White River Junction. He typically works ten to eleven hours nightly.
Claimant’s September 2004 Work Injury
4. On September 14, 2004 Claimant was backing his tractor up to connect it to a trailer. He was traveling at approximately five miles per hour, with his head turned to the right so that he could see behind him. The coupling did not go smoothly, and the truck jarred as it came together with the trailer. Claimant’s head snapped back and he immediately felt pain in his neck and numbness and tingling in his elbows and hands bilaterally.
5. Claimant reported the injury to his supervisor and sought treatment the next day from Geoffrey Robinson, a physician’s assistant. By that time, the numbness and tingling in Claimant’s elbows and hands had improved, and was limited primarily to his middle and ring fingers bilaterally. Mr. Robinson diagnosed a mild cervical strain with nerve root irritation.
6. Defendant accepted Claimant’s injury as compensable and began paying medical benefits accordingly. As Claimant did not miss any time from work, no indemnity benefits were paid.
7. At subsequent visits in October and November, Mr. Robinson reported that Claimant’s neck pain still persisted, as did the paresthesias in his third and fourth fingers, more so on the right than on the left. At Mr. Robinson’s referral, Claimant underwent a course of physical therapy. He also treated with Dr. Peterson, an osteopath. By January 2005 Dr. Peterson reported that Claimant’s cervical range of motion was improved and his discomfort had decreased. He advised Claimant as to a home exercise program and anticipated that he would be at end medical result within three or four months.
8. Claimant did not treat for any cervical spine-related symptoms between January 2005 and August 2008. He continued to experience neck pain during this period, but self-treated with stretching, ice and heat. His wife often rubbed the “knot” in the back of his neck. Claimant also continued to experience paresthesias in his right middle and ring fingers. He was constantly dropping his keys and had difficulty picking up small objects, such as coins or a cup of coffee.
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9. At some point in 2008 both Claimant and his wife noticed that he was experiencing balance issues while walking. His legs felt weak and he was clumsy on his feet, often tripping over sidewalks or stubbing his toes. Claimant thought he was just becoming more uncoordinated as he aged. His wife suspected an inner ear infection.
10. As his balance problem gradually worsened, in April 2009 Claimant sought treatment with Dr. Stafford, his primary care provider. Based both on Claimant’s complaints, which included sharp, shooting pains when turning his neck, and on his physical exam, which revealed overly responsive reflexes, Dr. Stafford immediately suspected a spinal source for his symptoms. These suspicions were confirmed by MRI testing, which documented both impingement and swelling in Claimant’s spinal cord at multiple cervical levels. The MRI showed nerve root impingement at various cervical levels as well.
11. The MRI testing thus revealed that Claimant suffered from two separate conditions in his cervical spine. The first one, called cervical spondylotic myelopathy, involves compression on the spinal cord itself. The second one, called cervical radiculopathy, involves pressure on the nerve roots that exit the spinal canal at each disc level.
12. Cervical spondylotic myelopathy is the most common spinal cord disorder in persons 55 years of age and older. Spondylosis refers to the degenerative changes that occur in the spine. With aging, intervertebral discs dry out. Osteophytic spurs, or bony growths, develop, and depending on the direction in which these grow they can cause compression either on the spinal cord (myelopathy) or on one or more nerve roots (radiculopathy).
13. Trauma also can contribute to the development of either myelopathy or radiculopathy. When the spine is insulted by injury, it is part of the body’s natural healing process to lay down calcium. This then is another source of bony buildup around the spine.
14. It typically takes years for cervical spondylotic myelopathy to develop. Symptoms in the early stages include both neck stiffness and numbness or tingling in the hands or fingers. Other characteristic signs and symptoms include weakness or clumsiness in the legs or hands, unsteadiness of gait, and overly responsive reflexes. By 2008 Claimant was exhibiting almost all of these.
15. As treatment for his cervical spondylotic myelopathy, on November 9, 2009 Claimant underwent a three-level cervical discectomy and fusion. Since then he has recovered well with almost complete resolution of his symptoms, including his neck pain, the numbness and tingling in his fingers and the weakness and unsteadiness in his legs. He was cleared to return to work on March 15, 2010.
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Claimant’s Prior Medical History
16. Claimant’s prior medical history includes the following:
• An evaluation by his primary care provider in August 2000 for a chronic cervical strain of two months’ duration, with an additional complaint that his hands tended to stiffen up and sometimes fall asleep while truck driving;
• Evaluations by his primary care providers in July and October 2002 for right arm and/or elbow pain, diagnosed as tendinitis secondary to overuse;
• Treatment for a work-related low back injury that occurred in April 2003, following which Claimant was disabled from working until January 2004.
17. Claimant testified that the neck, right arm and hand symptoms he experienced in 2000 and 2002 were qualitatively different from what he felt after the February 2004 injury. He characterized his earlier symptoms as being sharper, and as not involving the same type of numbness, tingling or weakness that he later experienced. The contemporaneous medical records corroborate this testimony, and I find it credible.
Expert Medical Opinions
18. Each party presented its own expert medical testimony as to the causal relationship, if any, between Claimant’s February 2004 work injury and his cervical spondylotic myelopathy. Testifying on Claimant’s behalf, Dr. Bucksbaum concluded that such a relationship existed. Testifying for Defendant, Dr. Ensalada came to the opposite conclusion. Both witnesses are well known to this Department as experts with training in occupational medicine, and I find that both are equally qualified to render opinions as to causation. Both doctors rendered their opinions after physically examining Claimant and reviewing his relevant medical records. Both stated their opinions to the required reasonable degree of medical certainty.
(a) Dr. Bucksbaum
19. In formulating his opinion as to causation, Dr. Bucksbaum first considered the mechanism of Claimant’s February 2004 injury. He found significant the fact that Claimant had his head turned to look behind him at the moment of impact. This combination of events – force being applied to a mechanically rotated spine – would have resulted in an unusual amount of stress, and thus provided an adequate explanation as to why he might later develop cervical myelopathy. I find this analysis to be persuasive.
20. Dr. Bucksbaum credibly discounted Claimant’s pre-2004 symptoms as in any way indicative of cervical spondylotic myelopathy. Claimant complained of stiffness in his neck and hands in 2000, but these symptoms did not progress and likely were due to completely separate anatomical issues. And although he demonstrated decreased grasp strength in conjunction with his right arm and elbow complaints in 2002, this was noted to be secondary to pain; it was not due to any loss of power to the muscle itself.
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21. In contrast, Claimant’s complaints after his February 2004 injury were entirely consistent with a shock to the spinal cord. Claimant complained immediately of numbness and tingling from his elbows down to his fingers. Over time these symptoms progressed to include the classic signs of cervical spondylotic myelopathy, most notably clumsiness in his legs, gait unsteadiness and overly responsive reflexes.
22. Having (1) eliminated Claimant’s prior medical history as causative, and (2) identified the mechanism of his February 2004 injury as consistent, Dr. Bucksbaum concluded that Claimant’s cervical spondylotic myelopathy most likely was causally related to the latter event.
23. Dr. Bucksbaum supported fusion surgery as both reasonable and necessary treatment for Claimant’s cervical spondylotic myelopathy.
24. Dr. Bucksbaum determined that Claimant had reached an end medical result as of the date of his examination, September 22, 2010.
25. As for permanency, initially Dr. Bucksbaum rated Claimant with a 25% whole person permanent impairment using the Diagnosis-Related Estimates (DRE) method provided for in the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”). However, on cross-examination he acknowledged that because Claimant had undergone a multi-level fusion, it was more appropriate to use the range of motion methodology instead. Using that method, Dr. Bucksbaum recalculated Claimant’s whole person permanent impairment at 24%.
(b) Dr. Ensalada
26. Dr. Ensalada disagreed with Dr. Bucksbaum’s analysis, both as to the relevance of Claimant’s prior medical history and as to the impact of his February 2004 injury. According to Dr. Ensalada, the constellation of symptoms that Claimant exhibited in 2000 – a stiff neck accompanied by symptoms in his hands as well – were indicative of cervical degenerative disc disease. In his opinion, the natural progression of that disease was strictly age-related, and was neither caused nor accelerated by trauma. That the condition ultimately developed into cervical spondylotic myelopathy was a result that would have occurred even without the February 2004 incident, therefore.
27. In reaching this conclusion Dr. Ensalada relied heavily on the fact that Claimant did not seek treatment for any symptoms indicative of cervical spondylotic myelopathy until April 2009, more than four years after he stopped treating for his February 2004 injury. In Dr. Ensalada’s view, this time frame did not allow for a causal relationship back to that injury.
28. Dr. Ensalada did not credit Claimant’s testimony that neither his neck pain nor the paresthesias in his right fingers – both symptoms indicative of cervical spondylotic myelopathy – ever abated during the period when he was not treating. Claimant’s wife corroborated this testimony, and I find it to be credible. Dr. Ensalada’s opinion is somewhat undermined as a result.
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29. Dr. Ensalada acknowledged that no matter what the cause of Claimant’s cervical spondylotic myelopathy, the fusion surgery he underwent in November 2009 clearly was a reasonable and necessary treatment. In this respect, his opinion is consistent with Dr. Bucksbaum’s.
30. Having found no causal relationship between Claimant’s condition and his February 2004 work injury, Dr. Ensalada did not calculate a permanency rating. He concurred that Dr. Bucksbaum should have used the range of motion rather than the DRE method for doing so. Beyond that, however, he offered no comment as to the accuracy of Dr. Bucksbaum’s 24% rating.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The question here is whether Claimant’s February 2004 work injury caused, aggravated or accelerated the cervical spondylotic myelopathy with which he was diagnosed in April 2009. Each party offered its own medical evidence on this issue.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Neither of the experts here was a treating physician. Both examined the pertinent records and conducted a comprehensive evaluation. Both were well qualified to render an opinion.
5. One area where the two experts diverged was as to the credit each gave to Claimant’s own testimony. Consistent with this testimony, Dr. Bucksbaum determined that Claimant’s prior medical history was essentially non-contributory. Instead, he accepted as valid Claimant’s assertion that both his neck pain and the paresthesias in his fingers – symptoms indicative of the early stages of cervical spondylotic myelopathy – began with his February 2004 injury and never abated thereafter. Dr. Ensalada chose to disregard this testimony. Having myself concluded that Claimant’s account was credible, I favor Dr. Bucksbaum’s analysis.
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6. I also find persuasive Dr. Bucksbaum’s explanation as to how the mechanism of Claimant’s February 2004 injury caused traumatic force to be applied to his cervical spine in such a way as was likely to precipitate bone spurs as part of the body’s healing process.
7. I conclude that Dr. Bucksbaum’s opinion was better supported than Dr. Ensalada’s, and therefore is the most credible. I thus conclude that Claimant has established a causal connection between his February 2004 work injury and his cervical spondylotic myelopathy sufficient to render the latter condition compensable.
8. I also accept as credible Dr. Bucksbaum’s determination that Claimant has suffered a 24% whole person permanent impairment as a result of his condition. Although Defendant argues that Dr. Bucksbaum applied the range of motion method erroneously and therefore reached the wrong result, it produced no expert testimony in support of its assertion. Navigating the AMA Guides is a complex process. As between Claimant’s medical expert and Defendant’s attorney, in this case I defer to the doctor. See Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964).
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,542.47 and attorney fees totaling $9,557.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from November 9, 2009 through March 14, 2010, in accordance with 21 V.S.A. §642;
2. Permanent partial disability benefits as compensation for a 24% permanent impairment referable to the spine, in accordance with 21 V.S.A. §648;
3. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
4. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s cervical spondylotic myelopathy, in accordance with 21 V.S.A. 640;
5. Costs totaling $3,542.47 and attorney fees totaling $9,557.00, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 5th day of August 2011.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Barbara Grimes v. City of Burlington (June 6, 2012)

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Barbara Grimes v. City of Burlington (June 6, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Barbara Grimes Opinion No. 17-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
City of Burlington
For: Anne M. Noonan
Commissioner
State File No. AA-59038 OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 27, 2012
Record closed on May 1, 2012
APPEARANCES:
Patrick Biggam, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s right shoulder pain and discomfort causally related to the compensable work injuries that she suffered on October 16, 2008?
2. If so, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Photo of steps
Claimant’s Exhibit 2: Curriculum vitae, Philip Davignon, M.D.
Claimant’s Exhibit 3: First Report of Injury, October 17, 2008
Defendant’s Exhibit A: Photo of steps
Defendant’s Exhibit B: Curriculum vitae, George White, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. § 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant is the general manager of Defendant’s electric department. She has held this position for the last 12 years.
Claimant’s October 16, 2008 Work Injuries
4. On October 16, 2008 Claimant attended a work-related meeting at the Farmhouse, which is off-site from the electric department. When she left, it was raining. She slipped on the top concrete step and fell down the other two. She landed on a concrete walkway on her outstretched arms. She skinned her right wrist and bruised her right elbow and knees.
5. Claimant got up and brushed herself off. She did not seek medical treatment that day and she did not lose any time from work. In fact, she continued with the rest of her work day. At the time, she was mainly embarrassed. Claimant filed a First Report of Injury with Defendant the next day.
6. Claimant’s right arm became uncomfortable in the ensuing weeks. In addition, her right wrist swelled to the point where she could not wear her bracelets. However, the Thanksgiving holiday was approaching and her family planned to gather in California. Thereafter, she hosted her family for the Christmas holiday here in Vermont. Therefore, she delayed seeking medical treatment until her life calmed down. I find this explanation very credible.
Claimant’s Course of Treatment
7. Claimant first sought treatment from her primary care provider, Dr. Moore, on December 30, 2008. She complained of bilateral elbow and neck pain. Claimant underwent x-rays of her cervical spine, which revealed moderate multilevel degenerative disc changes. Dr. Moore referred her for physical therapy.
8. Claimant attended physical therapy during January and early February. She experienced a notable reduction in her pain levels in all areas. Defendant referred Claimant to Champlain Valley Urgent Care, its workers’ compensation medical provider, on February 6, 2009. Dr. Fitzgerald ordered x-rays of Claimant’s right wrist and elbow. Additionally, he referred her for more physical therapy. Defendant accepted this claim and paid benefits accordingly.
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9. Claimant continued her physical therapy with a different therapist on February 27, 2009. During her initial assessment, Claimant indicated that her wrist felt better but that her right upper arm was bothering her. Claimant had no prior injuries to her right shoulder. She described the pain as a “noogie,” like knuckles rotating into the skin.
10. Dr. Fitzgerald ordered an MRI scan of Claimant’s right wrist. The results suggested a tear of the scapholunate ligament, which joins two bones in the wrist. Dr. Fitzgerald referred Claimant to Dr. Frenzen, an orthopedist who specializes in hand, wrist and elbow surgery.
11. In May 2009 Claimant underwent surgery to repair her right wrist, followed by another course of physical therapy. At her August 2009 follow up appointment with Dr. Frenzen, Claimant indicated that she was pleased with the course of treatment for her wrist. However, she reported continuing problems with her right shoulder and elbow. X-rays taken that day revealed a well located shoulder joint with no evidence of osteoarthritis. There was evidence of osteoarthritis with bone spurs in the elbow.
12. Claimant’s shoulder was still symptomatic at her next follow up visit with Dr. Frenzen, in October 2009. Dr. Frenzen referred her for physical therapy for her shoulder. Defendant denied coverage for this therapy, on the grounds that Claimant’s right shoulder symptoms were not causally related to the accepted wrist and elbow injuries, but rather were the result of pre-existing degenerative conditions.
13. Dr. Frenzen advised otherwise. In a letter to the Department he stated that Claimant’s shoulder pain was likely due to altered motion resulting from the pain in her elbow and wrist. Therefore, it was causally related to the accepted injuries. He also indicated that the physical therapy to date was effectively treating Claimant’s shoulder. The Department upheld Defendant’s denial.
14. In February 2010, Dr. Moore referred Claimant to Dr. Libman, a rheumatologist, for further evaluation of her continued complaints of pain. Dr. Libman ordered lab tests and bilateral x-rays of Claimant’s wrists, elbows and shoulders. Based on the results of those tests, she diagnosed Claimant with rheumatoid arthritis. As treatment, Claimant began a course of medication.
15. One of the classic symptoms of rheumatoid arthritis is joint stiffness upon awakening in the morning. People who suffer from the disease report that it typically takes one to two hours to work the stiffness out. Claimant does not experience morning stiffness in her shoulder, elbow or wrist. To the contrary, she credibly testified that she feels great in the morning and as the day wears on she gets sore.
16. In July 2010 Claimant underwent surgery on her right elbow. During the course of the surgery Dr. Frenzen observed loose bodies and large osteophytes, or bone spurs, in the joint, which he removed with no complications. Thereafter, he referred Claimant to physical therapy for her elbow.
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17. In an August 2010 post-operative appointment, Claimant reported to Dr. Frenzen that she was not experiencing any pain in her elbow or her shoulder.
18. Claimant was persuasive in her testimony that the pain from the rheumatoid arthritis was a “slight throbbing” pain. In contrast, the pain she felt from her right shoulder was like a knife in the joint, what she termed a “noogie.”
Expert Medical Opinions
19. The parties presented conflicting expert opinions as to the causal relationship, if any, between Claimant’s October 2008 work injuries and her right shoulder pain.
(a) Dr. Frenzen
20. Dr. Frenzen testified by deposition. He credibly testified to the following: (a) Claimant’s wrist injury was caused by the October 2008 fall because rheumatoid arthritis does not cause a torn ligament; and (b) what he observed during Claimant’s elbow surgery, the large osteophytes, are not consistent with rheumatoid arthritis.1
21. Dr. Frenzen opined to a reasonable degree of medical certainty that Claimant’s right shoulder pain and discomfort were caused by her wrist and elbow injuries for the following reasons:
• Claimant compensated for the pain she was experiencing from her wrist and elbow injuries by altering the way she moved her shoulder to reduce the possibility of increasing her pain; and
• This altered way of moving her shoulder caused Claimant to develop a right shoulder pain syndrome.
I find Dr. Frenzen’s reasoning persuasive.
1 Rheumatoid arthritis typically has few osteophytes. If they do appear in a joint, they are very small, akin to rice.
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22. Dr. Frenzen further opined to a reasonable degree of medical certainty that Claimant’s right shoulder pain and discomfort were not caused by the later diagnosed rheumatoid arthritis. He based his opinion on the following:
• Rheumatoid arthritis affects the joints;
• Rheumatoid arthritis does not cause muscle spasms;
• He observed muscles spasms near Claimant’s right biceps tendon at her January 2010 office visit;
• Biceps tendonitis is caused by an overuse or altered use injury;
• The August 2009 x-ray of the right shoulder showed there was no arthritis; and
• The type of pain Claimant was describing, a stabbing pain in the joint, is not a classic complaint of rheumatoid arthritis patients.
I find this reasoning persuasive as well.
23. In Dr. Frenzen’s opinion, although it was possible that Claimant’s shoulder injury was the result of a “FOOSH” fall, that is, a fall on outstretched hands, he could not state that to the required degree of medical certainty.
24. Dr. Frenzen acknowledged that Claimant’s rheumatoid arthritis likely contributed to her shoulder pain, but doubted that it was the sole cause.
(b) Dr. Davignon
25. Dr. Davignon is board certified in occupational medicine, and also has training in orthopedics. At Claimant’s request, he performed an independent medical examination in February 2011. While Dr. Davignon did not have Claimant’s rheumatology reports at the time of his evaluation, he did review them prior to his testimony at the formal hearing. He also reviewed all of Claimant’s other pertinent medical records. Dr. Davignon has treated patients with rheumatoid arthritis in the past.
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26. Dr. Davignon opined to a reasonable degree of medical certainty that Claimant’s right shoulder symptoms are causally related to her October 2008 work injury. He based his opinion on the following:
• Claimant suffered a traumatic fall, resulting in injuries to both her right wrist and elbow and necessitating surgery on both joints;
• Claimant’s right shoulder was asymptomatic prior to the work injury;
• After each surgery, Claimant altered the way she moved her shoulder to protect against increasing her wrist and elbow pain; and
• Claimant’s August 2009 x-ray showed no abnormal pathology in her right shoulder.
Dr. Davignon’s testimony concurs with that of Dr. Frenzen and I find it credible.
27. In Dr. Davignon’s opinion, it was conceivable that Claimant had suffered a FOOSH fall.
28. Dr. Davignon did note that it was possible that Claimant’s rheumatoid arthritis could have contributed to her right shoulder symptoms. However, he could not opine to the requisite degree of medical certainty that rheumatoid arthritis actually caused Claimant’s right shoulder symptoms. I find this testimony credible.
29. Dr. Davignon also testified to a reasonable degree of medical certainty that physical therapy can correct Claimant’s symptoms and it did so. Therefore it was reasonable and necessary medical treatment. I find this reasoning persuasive.
(c) Dr. White
30. Dr. White is board certified in occupational medicine. At Defendant’s request he performed two independent medical examinations of Claimant, each with individual addenda. His first examination occurred in November 2009; the second was performed in March 2011. Dr. White interviewed Claimant, examined her and reviewed the pertinent medical records.
31. In November 2009 Dr. White diagnosed Claimant with a torn ligament in her right wrist, osteoarthritis in her right hand, wrist and elbow and right shoulder pain of unknown etiology. Significantly, Dr. White acknowledged that Claimant had no history of right upper extremity problems.
32. In March 2011 Dr. White evaluated Claimant again to ascertain if she suffered any impairment from her work injuries. He opined that she was at end medical result and that she suffered a 15 percent whole person impairment with respect to her wrist and elbow injuries.
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33. In October 2011 Dr. White supplemented his March 2011 report. In the new report Dr. White opined that Claimant’s rheumatoid arthritis was unrelated to her work injuries. He based his opinion on the fact that rheumatoid arthritis is not a disease that is caused by either trauma or overuse.
34. During his formal hearing testimony, Dr. White attributed all of Claimant’s right upper extremity problems to her rheumatoid arthritis, including her wrist and elbow injuries. Dr. White’s reasoning was that with the now known diagnosis of rheumatoid arthritis, there was one diagnosis to explain all three injuries.
35. Dr. White did not see Claimant after she was diagnosed with rheumatoid arthritis. He conceded that he did not ask Claimant how any of her pain manifested itself. Dr. White further conceded that knowing the type of pain from which Claimant was suffering at a given point in time would be an important tool in diagnosing the underlying problem. Thus, Dr. White did not know that Claimant’s shoulder pain manifested as a knife-like jab or “noogie” and that her rheumatoid arthritis pain manifested itself as a slight throbbing.
36. I find that this lack of knowledge as to how Claimant’s pain manifested itself undermines Dr. White’s conclusions. In addition, his review of the medical records was deficient in that he thought all of Claimant’s symptoms occurred simultaneously. In fact, the first mention of right shoulder pain occurred in February 2009. This was two months after her first medical appointment for her pain.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue in this case is whether Claimant’s right shoulder pain and discomfort are causally related to her accepted work injuries of October 16, 2008. Claimant argues that her right shoulder symptoms were caused either at the time of her original FOOSH fall, or as a result of altered motion to compensate for her right wrist and elbow pain. Defendant contends that Claimant’s shoulder pain is the result solely of her rheumatoid arthritis.
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3. The parties presented conflicting expert opinions on the issue of causation. In such cases, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Here I conclude that the first factor favors Dr. Frenzen. He performed two surgeries on Claimant’s right upper extremity. Thus he was the only medical professional who had occasion to view Claimant’s pathologies from the inside. His opinion carries great weight. Matheny v. Best Food Baking Co., Opinion No. 17-11WC (July 20, 2011).
5. The second factor disfavors Dr. White. His review of the medical records failed to reveal that Claimant’s shoulder pain did not occur simultaneously with her wrist and elbow pain, as he assumed, but rather presented two months later.
6. I conclude that the third factor favors Dr. Frenzen. The presence of the torn ligament in the wrist and the large osteophytes in the elbow were objective support for Dr. Frenzen’s opinion that Claimant’s pain was not caused solely by rheumatoid arthritis. Rather, her pain was caused by altering the movement of her shoulder to minimize wrist and elbow pain. The August 2009 x-ray of Claimant’s right shoulder, which failed to reveal any evidence of arthritis, provides further objective support for this opinion.
7. The fourth factor disfavors Dr. White. Once he knew of Claimant’s diagnosis of rheumatoid arthritis, he did not ask Claimant how her pain manifested itself. Even Dr. White conceded this information is an important tool in diagnosing what a patient’s underlying problem is.
8. The fifth factor favors Dr. Frenzen. His training as an orthopedic surgeon, with a particular focus on hand, wrist and elbow injuries, lends extra weight to his opinion in this case.
9. As neither Dr. Frenzen nor Dr. Davignon could state to a reasonable degree of medical certainty that Claimant’s shoulder injury was the direct result of a FOOSH fall, I cannot conclude that her injury occurred in this manner. I do conclude, however, that Dr. Frenzen’s opinion is more credible than Dr. White’s as to the causal relationship between Claimant’s elbow and wrist pain and her altered shoulder motion. I therefore conclude that Claimant has sustained her burden of proving the compensability of her right shoulder injury.
10. I further conclude that Claimant has sustained her burden of proving that the course of physical therapy she underwent for her right shoulder symptoms constituted reasonable treatment and is therefore compensable.
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11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s right shoulder injury, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 6th day of June 2012.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Beth Holmes v. State of Vermont (June 21, 2012)

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Beth Holmes v. State of Vermont (June 21, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Beth Holmes Opinion No. 18-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
For: Anne M. Noonan
Commissioner
State File No. AA-00186
OPINION AND ORDER
Hearing held in Montpelier on April 9, 2012
Record closed on April 24, 2012
APPEARANCES:
Beth Holmes, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for her compensable July 2008 work injury and if so, when did this occur?
2. Are Claimant’s cervical spine complaints causally related to her compensable July 2008 work injury and if so, to what workers’ compensation benefits is she entitled?
3. Did Claimant willfully make a false statement or representation for the purpose of obtaining a workers’ compensation benefit, in violation of 21 V.S.A. §708(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
Defendant’s Exhibit B: Curriculum vitae, Richard Levy, M.D.
Defendant’s Exhibit C: Curriculum vitae, William Boucher, M.D.
Defendant’s Exhibit D: Independent Medical Evaluation Questionnaire
Defendant’s Exhibit E: Surveillance videos (2 DVDs)
Defendant’s Exhibit F: Deposition of Beth Holmes, February 3, 2010 (excerpted pages)
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640(a)
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s files relating to this claim.
3. Claimant worked as a licensed practical nurse at Defendant’s Vermont Veterans’ Home. Her responsibilities included administering medications and other general duties.
4. On July 11, 2008 Claimant slipped and fell down the last two stairs of a stairway at work. As reflected in the contemporaneous medical records, Claimant reported that she grabbed the banister with her right hand and struck her left buttock and lower back on the stairs. She did not report striking her neck in the fall, nor did she report any complaints or injury referable to that area. To the contrary, she complained solely of low back pain, which her primary care physician, Dr. Friscia, diagnosed as a left buttock contusion. As treatment, Dr. Friscia prescribed narcotic pain medications and physical therapy.
5. Over the course of the next three months, Claimant began complaining of more diffuse aches, not just in her lower back but also in her hips, groin, upper back, elbows and shoulders. Concerned about her ongoing symptoms, particularly in the context of continued narcotic pain medications and physical therapy, Dr. Friscia referred her to Dr. Robbins, an orthopedic surgeon, for further consultation.
6. Claimant previously had treated with Dr. Robbins in September 2000, for a two-month history of neck pain with radicular-type symptoms in her right arm. Claimant underwent little if any treatment for these complaints, which she described at hearing as a “horrible” stiff neck and which Dr. Robbins diagnosed as C6 radiculopathy.1 Apparently her symptoms resolved on their own. In the intervening years leading up to her July 2008 fall at work, Claimant did not seek medical treatment for any further cervical spine-related complaints.
7. Dr. Robbins evaluated Claimant on October 27, 2008. During that evaluation, for the first time Claimant complained of neck pain in addition to her other symptoms, reporting that she felt her body had been “out of alignment” since her fall at work some three months earlier.
1 Claimant acknowledged this prior episode of neck pain at hearing, and explained that she failed to do so in her deposition either because she forgot or because she did not consider a stiff neck to be an “injury.” No matter what the specific explanation, I find that Claimant’s deposition testimony did not indicate a willful attempt to defraud or mislead for the purpose of obtaining a workers’ compensation benefit.
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8. In addition to her increasingly diffuse pain complaints, in the years since her injury Claimant has suffered from anxiety and depression as well. The medical records reflect that she had long treated for these conditions in the past, as a consequence of stress related to financial difficulties and the responsibilities of single parenting. Those stressors have continued, and now include chronic pain and decreased function as well. Claimant has not worked since her injury. She has been receiving social security disability benefits for the past two years.
9. Notwithstanding that the contemporaneous medical reports do not reflect it, Claimant has become convinced that she likely struck her neck in the course of her July 2008 fall down the stairs at work, and that this accounts for both the neck pain and the diffuse upper extremity symptoms of which she has complained since. Based in part on the varying descriptions of the fall to which Claimant testified at formal hearing and in part on the clear and concise history reported in the earliest, most reliable medical records, I find that Claimant’s recollection of events is likely no longer accurate. For that reason, I question the extent to which some of her treating doctors, most notably her osteopath, Dr. Woodworth, and her neurologist, Dr. Edwards, have relied upon this version of events in formulating their theories as to the etiology of Claimant’s current complaints.
10. Though neither testified at formal hearing, both Dr. Woodworth and Dr. Edwards have stated their causation opinions in writing. Both believe that Claimant’s cervical condition is a direct result of her July 2008 fall at work. Dr. Edwards in particular is convinced that Claimant’s neck and upper extremity symptoms are attributable to a free disc fragment compressing on her spinal cord at the C6-7 level, as indicated in a May 2011 MRI study. Two prior MRI studies, one in March 2009 and one in September 2009, had documented disc degeneration and/or protrusion at that level, but no extruded disc fragments.
11. Aside from stating that Claimant’s cervical disc herniation is “consistent with” her July 2008 fall, Dr. Edwards provided no other rationale for his conclusion that the two are causally related. In fact, previously Dr. Edwards had acknowledged that because he had not reviewed Claimant’s prior medical records, he lacked sufficient information to make any determination at all as to causation. In his earlier statement, Dr. Edwards also had noted the lack of a temporal relationship between Claimant’s fall and her neck pain as a further barrier to establishing causation. With no explanation for the apparent shift from these prior statements to his current opinion, I find it difficult to credit Dr. Edwards’ position as to causation.
12. As treatment for her cervical disc herniation, and particularly given his concern that she was exhibiting symptoms of myelopathy, or spinal cord compression, Dr. Edwards strongly recommended that Claimant undergo a neurosurgical evaluation. This she did, with Dr. Simmons in November 2011. Interestingly, although Dr. Simmons stated that he was “not overly impressed” with the amount of spinal cord deformation evidenced on MRI, nevertheless he recommended that Claimant undergo a C6-7 disc fusion. The purpose of that surgery, which Claimant was scheduled to undergo in the weeks following the formal hearing, is primarily to prevent any myelopathy from progressing, not necessarily to improve her current symptoms.
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13. Credible medical evidence exists in support of another explanation for Claimant’s diffuse complaints, including those involving her neck and upper extremities – fibromyalgia, possibly exacerbated by a bout of Lyme disease in 2009. Among the medical professionals propounding this theory was Dr. Friscia, Claimant’s primary care physician from 2003 through 2010. In Dr. Friscia’s opinion, the disc disease documented on Claimant’s MRI studies was not nearly severe enough to account for her varied symptoms. Coupled with the fact that Claimant’s neck and upper extremity complaints did not arise until some months after her initial injury, Dr. Friscia concluded that a causal relationship between the two was unlikely. I find Dr. Friscia’s reasoning credible in all respects.
14. Not surprisingly, all of Defendant’s independent medical examiners have concluded likewise. The first of these, Dr. Boucher, an occupational medicine specialist, examined Claimant in February 2009. Among his pertinent findings:
• Claimant exhibited only minimally decreased cervical range of motion, with no evidence of radiculopathy;
• Claimant did not complain of any tenderness in her left buttock, and exhibited normal low back and hip motion, all of which indicated that her original injury – a left buttock contusion – had resolved;
• Claimant’s diffuse complaints, which included statements such as “all over pain” and “everything is different than before my injury,” were almost certainly psychogenic in origin and completely unrelated to her work injury; and
• Claimant exhibited a high degree of symptom magnification and somatic overlay, as well as possible drug-seeking behavior.
15. Dr. Boucher concluded to a reasonable degree of medical certainty that Claimant had reached an end medical result for her work-related injury, with no permanent impairment and an unrestricted work capacity.
16. Claimant underwent a second independent medical examination, this time with Dr. Levy, a board certified neurologist, in March 2010. As Dr. Boucher had, Dr. Levy concluded that Claimant’s work-related injury consisted solely of a left buttock contusion, which had long since resolved. In addition, according to Dr. Levy:
• There is no scientific evidence that fibromyalgia is traumatically induced; therefore, there is no basis for concluding that Claimant’s buttock contusion evolved in that manner;
• Had Claimant traumatized a cervical disc in her July 2008 fall, she likely would have experienced significant neck pain and radicular symptoms shortly thereafter, not three months or more later; and
• Claimant’s cervical radiculopathy is likely due to the natural progression of age-related degenerative disc disease, not trauma.
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17. I find the rationale underlying Dr. Levy’s opinions persuasive in all respects.
18. Most recently, at Defendant’s request Dr. Binter, a board certified neurosurgeon, conducted a medical records review in January 2012.2 Dr. Binter concluded to a reasonable degree of medical certainty that Claimant’s current cervical complaints are not causally related to her July 2008 fall at work in any respect. Her rationale was essentially the same as that propounded variously by Drs. Friscia, Boucher and Levy, that is:
• With a prior medical history of cervical complaints dating back to 2000, and no mention of new cervical symptoms until many months after her July 2008 fall, it is unlikely that the fall caused a cervical injury;
• Neither the March 2009 nor the September 2009 MRI studies showed pathology significant enough to explain the global pain and diffuse symptoms of which Claimant was complaining at the time;
• More than two years later, the May 2011 MRI study revealed a new disc herniation, which given the passage of time would not likely be related to Claimant’s original injury; furthermore, even that herniation is not causing enough cord compression to account for her symptoms; and
• Claimant’s longstanding history of anxiety, depression and Lyme disease might explain her hypersensitivity to pain and subsequent fibromyalgia-type symptoms.
19. In formulating her opinion, Dr. Binter particularly noted that some of her observations would not have been apparent to those who had not reviewed Claimant’s prior medical records, including both Dr. Woodworth and Dr. Edwards. I concur that analyzing Claimant’s prior medical history is critical to a full understanding of the causation issues in this case.
20. Dr. Binter recommended against fusion surgery as treatment for Claimant’s current condition. With a longstanding history of smoking, global pain complaints and narcotic medications, in Dr. Binter’s opinion the prognosis for post-surgical improvements in either pain or function is poor. I find this reasoning credible, though I acknowledge that a treating neurosurgeon, in close consultation with his or her patient, might weigh the potential risks and benefits differently.
2 Claimant had been scheduled to undergo an independent medical examination, but failed to appear.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The primary disputed issue here is whether Claimant’s current cervical condition is causally related to her July 2008 work injury. The parties presented conflicting medical opinions on this issue. In such circumstances, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. I conclude that the opinions of Drs. Friscia, Boucher, Levy and Binter are more credible than those of Drs. Woodworth and Edwards. In reaching this conclusion, I note the following:
• As Claimant’s treating primary care provider for many years both before and after her July 2008 fall, Dr. Friscia was best positioned to evaluate her symptoms from a global perspective, more so than either Dr. Woodworth or Dr. Edwards;
• Drs. Friscia, Boucher, Levy and Binter reviewed all of Claimant’s prior medical records, whereas Drs. Woodworth and Edwards failed to do so; this omission is particularly relevant in a case such as this, where the prior records contain information pertinent to other possible causes for her current condition; and
• Drs. Woodworth and Edwards’ causation opinions relied in large part on Claimant’s recollection as to the mechanism of her fall, which I have found to be unreliable; in contrast, Drs. Friscia, Boucher, Levy and Binter’s opinions were more objectively based and accounted more completely for the global symptoms she reported.
4. I conclude that Claimant has failed to sustain her burden of proving that her current cervical condition is causally related to her July 2008 fall at work. I further conclude that Claimant had reached an end medical result for her work injury – a left buttock contusion – at least as of the date of Dr. Boucher’s independent medical examination, February 2, 2009, with no permanent impairment and no need for further medical treatment.
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5. Having found that Claimant’s cervical condition is not work-related, I need not decide whether Dr. Simmons’ proposed fusion surgery is reasonable. Under the particular circumstances of this case, this is a matter best left to Claimant and her treating providers to decide.
6. To the extent that Claimant now suffers from anxiety and depression causally related to her chronic pain and decreased function, I conclude that these conditions were neither caused nor aggravated by her July 2008 work injury and are not compensable.
7. Last, I conclude that Defendant has failed to establish that Claimant’s deposition testimony, in which she denied having treated previously for neck pain, constituted a willful intent to defraud or misrepresent for the purpose of obtaining a workers’ compensation benefit. Therefore, there has been no violation of 21 V.S.A. §708(a).
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional workers’ compensation benefits causally related to her July 2008 work injury, and specifically for benefits referable to her current cervical condition, is hereby DENIED.
DATED at Montpelier, Vermont this 21st day of June 2012.
___________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Dzevad Karabegovic v. Monahan SFI (September 29, 2009)

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

Dzevad Karabegovic v. Monahan SFI (September 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dzevad Karabegovic Opinion No. 37-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Monahan SFI
For: Patricia Moulton Powden
Commissioner
State File No. Y-63633
OPINION AND ORDER
Hearing held in Montpelier on May 1, 2009 and May 4, 2009
Record closed on June 5, 2009
APPEARANCES:
John Swanson, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a work-related injury on June 14, 2007?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Karen Nepveu, M.D.
Defendant’s Exhibit A: Curriculum vitae, Leon Ensalada, M.D.
Defendant’s Exhibit B: Photographs (4) of Claimant’s chest
Defendant’s Exhibit C: Curriculum vitae, Steven Mann, Ph.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant is a Bosnian immigrant who came to this country in 1997. His native language is Bosnian. Claimant speaks and understands English, though by no means fluently.
4. Claimant has worked for Defendant or its predecessor, Specialty Filaments, since 1999. Defendant manufactures synthetic fibers. Claimant’s job involves cutting hanks of fibers as they come off a machine, then clamping, pulling and wrapping them in PVC tubing and packaging the final product in a box. The job entails constant bending, twisting and lifting while working with melting plastics and sharp tools.
5. On June 14, 2007 Claimant was at work. He had cut a hank of fibers, and as he bent, twisted and pulled them up to clamp them he felt pain in his right chest. Claimant finished the hank, then went first to his desk and then to the break room to rest. When the pain did not abate after an hour or so, Claimant drove himself to the Emergency Room. He thought he was having a heart attack.
6. After cardiac issues were ruled out, the Emergency Room physician diagnosed musculoskeletal chest pain and prescribed ibuprofen for treatment. Claimant’s chest pain continued, however, and on June 18, 2007 he sought further evaluation and treatment with Dr. Hebert, his primary care physician. Dr. Hebert as well diagnosed musculoskeletal chest pain and again recommended rest, no work and Advil as treatment.
7. Claimant’s chest pain continued. Further testing was negative, and although Dr. Hebert continued to believe that the pain was musculoskeletal, he was at a loss to explain why it was not improving with time. By August 2007 Dr. Hebert noted that Claimant was depressed, which likely was contributing to his pain. At this point, Claimant was taking narcotic pain medications, but still to no avail.
8. Also in August 2007 at Defendant’s request Claimant underwent an independent medical evaluation with Dr. Ensalada. Dr. Ensalada is board certified in pain management and anesthesiology. As part of his evaluation, Dr. Ensalada palpated Claimant’s chest, including his costochondral junctions, where the ribs connect to the sternum, but did not elicit any complaints of tenderness. In fact, Dr. Ensalada found that Claimant’s examination was entirely normal, with no objective signs of injury whatsoever. From this he concluded that Claimant’s pain was not musculoskeletal in nature, that it was not generated by any objectively verifiable underlying physical disorder, that it was not work-related and that further treatment was neither reasonable nor necessary.
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9. In March 2008 Dr. Hebert referred Claimant to Dr. Nepveu, a rheumatologist, for further evaluation. Dr. Nepveu is board certified in internal medicine, with a sub-specialty in rheumatology. Rheumatology involves the study of both rheumatic and auto-immune diseases and musculoskeletal conditions.
10. As part of her evaluation, Dr. Nepveu conducted a meticulous, fingertip-by-fingertip examination of Claimant’s costosternal joints. Once she palpated the right spot, between the third and fourth joints, she was able to reproduce Claimant’s pain fairly easily. The site was exquisitely tender, such that Claimant winced and tried to withdraw. Dr. Nepveu observed that the second and fifth joints also were tender, but not exquisitely so.
11. Based on her examination, Dr. Nepveu diagnosed costochondritis, an inflammation of the cartilage between the rib and the sternum. Costochondritis is a condition that rheumatologists usually treat; in Dr. Nepveu’s practice she sees four or five patients per year who suffer from it. Because the tissues, ligaments and cartilage in the area do not have a good blood supply, the condition can be very slow to heal, even with limited activity.
12. In Dr. Nepveu’s opinion, the mechanism of injury Claimant described – lifting with some degree of torque – involves the type of movement that could strain the rib muscles and bring on costochondritis. Thus, based on Claimant’s history she firmly believes that his work activities on June 14, 2007 caused the condition to develop.
13. Dr. Nepveu testified that she was somewhat surprised that neither Dr. Hebert nor Dr. Ensalada was able to discern that Claimant was suffering from costochondritis, as in her opinion the diagnosis was fairly straightforward. She theorized that they may not have conducted the kind of exacting, pinpoint palpation of Claimant’s costosternal joints necessary to locate the source of his pain. In addition, she postulated that perhaps Claimant had lost some muscle mass in the intervening months between their examinations and her own, which would have made it easier for her to palpate the involved joints.
14. For treatment, Dr. Nepveu injected the involved joints with corticosteroids. When she did so, Claimant’s pain disappeared, which in her opinion further substantiated her diagnosis. Over time, with further injections and topical anesthetics, Claimant has made considerable progress. He no longer takes narcotic pain medications and is able to participate in physical therapy. Dr. Nepveu anticipates that he will continue to improve; in her opinion, therefore, he is not yet at end medical result. She expects that he will be able to return to work, but probably only in a sedentary or light capacity, and therefore not at the level at which he was working before. Although admittedly she is not a vocational rehabilitation expert, in Dr. Nepveu’s opinion Claimant’s limited English language skills will hamper his ability to find suitable work at this level.
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15. With Dr. Nepveu’s diagnosis in hand, Dr. Ensalada re-evaluated Claimant in September 2008. He found no objective signs of costochondritis. Notably, however, Claimant had undergone a corticosteroid injection in his costosternal joints just one week prior to Dr. Ensalada’s exam, which may have masked his pain somewhat. Nevertheless, Dr. Ensalada concluded that Dr. Nepveu’s diagnosis was incorrect. Rather, he continued to maintain that Claimant had not suffered any physical injury as a result of his work activities on June 14, 2007.
16. In Dr. Ensalada’s opinion, Claimant’s symptoms are entirely psychogenic in origin, and have no physical basis whatsoever. Dr. Ensalada believes that Claimant’s presentation represents somatization, the unconscious use of physical symptoms for psychological purposes. The symptoms are not voluntarily controlled, and therefore Claimant should not be perceived as malingering, but because they result from his longstanding psychological makeup rather than any single event, they are not work-related in any way.
17. Dr. Ensalada recommended that Claimant undergo a psychological evaluation to further delineate the nature, extent and cause of his condition. To that end, at Defendant’s referral Claimant underwent an evaluation with Dr. Mann, a licensed psychologist doctorate, in October 2008. Drs. Mann and Ensalada are professional colleagues; they have discussed forming a clinical practice to allow them to work together in a multidisciplinary program, but to date they have not established any formal business relationship.
18. Dr. Mann administered an extensive battery of psychological tests. All were in English except for the MMPI-2, which was available in Croatian. Dr. Mann testified that based on his observation Claimant was sufficiently fluent in English to be able to understand the tests administered in that language. At the formal hearing, however, Claimant often spoke haltingly, searched for the appropriate words with which to express himself and at times appeared not to comprehend fully the questions put to him.
19. As for the Croatian version of the MMPI-2, Dr. Mann testified that he believed that language to be as similar to Bosnian, Claimant’s native tongue, as American English is to British English. However, Claimant testified that Dr. Mann’s understanding was incorrect, that the two languages are in fact dissimilar, and that he is far less fluent in Croatian than he is in Bosnian.
20. Claimant testified that because of the language difficulties he encountered trying to comprehend Dr. Mann’s tests, it took him a total of 17.5 hours, spread over a three-day period, to complete them all. At one point, he testified, he asked permission to use a Bosnian-English dictionary to translate the words on a test, a process that was extremely time-consuming. Dr. Mann could neither confirm nor deny the amount of time it took Claimant to finish the testing battery, but acknowledged that typically his testing takes only four or five hours to complete.
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21. Based on the results of the battery of tests he administered, Dr. Mann diagnosed Claimant with an undifferentiated somatoform pain disorder, a psychological condition characterized by physical complaints that after appropriate investigation cannot be fully explained by a known general medical condition. In other words, as Dr. Ensalada also had concluded, Dr. Mann deduced that Claimant’s condition was entirely psychogenic in origin and not organically caused at all.
22. As support for his opinion, Dr. Mann pointed to Claimant’s responses to the MMPI-2, which in his analysis evidenced extremely strong patterns of hysteria, defensiveness, hypochondriasis and neurotic denial. Dr. Mann described Claimant as a person who is incapable of expressing his emotions psychologically; he suppresses them and they manifest physically instead. In Dr. Mann’s opinion, this personality trait is representative of Claimant’s long-standing psychological makeup. It is not related in any way, therefore, to any work injury or incident.
23. Dr. Mann could cite to no other incidents in Claimant’s personal history that might be interpreted as indicative of this longstanding psychological response pattern. Dr. Hebert, who has been Claimant’s primary care physician since 2005 and sees him regularly for diabetes control, testified that in his experience Claimant was not one either to seek treatment for multiple physical issues or to exaggerate his complaints.
24. Both Dr. Hebert and Dr. Nepveu testified that in their opinion Claimant had been totally disabled from working as a result of his June 2007 injury from the time it first occurred, and that he remains so now. In contrast, Dr. Ensalada testified that at most Claimant would have been unable to work for a period of two weeks after the June 2007 incident, at which point he would have reached end medical result for whatever minor injury he may have suffered. Dr. Ensalada believes that Claimant is fully capable of returning to his prior job, and that the only “treatment” he requires is reassurance.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. The disputed issue here is one of medical causation. With Dr. Hebert’s and Dr. Nepveu’s expert medical opinions as support, Claimant contends that his work activities on June 14, 2007 caused him to develop costochondritis, a physical injury that requires physically based treatment. Defendant, on the other hand, cites to the expert medical opinions of Drs. Ensalada and Mann in support of its assertion that Claimant does not suffer from costochondritis or any other physically based injury, but rather that his condition is entirely psychogenic in origin and is not work-related in any respect.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
4. In this case, I find Dr. Nepveu’s opinion to be the most credible. As a rheumatologist, she has the most experience in diagnosing and treating costochondritis, a condition that requires an exacting, pinpoint examination to discern. Her diagnosis adequately accounts for Claimant’s symptoms and convincingly explains their causal relationship to work.
5. In contrast, I find good reason to be skeptical of the theory that Claimant’s symptoms are indicative of a long-standing psychological compulsion to suppress his emotions and manifest them as physical complaints instead, as Drs. Ensalada and Mann assert. Not only is there no support for this analysis in Claimant’s prior medical history, but it rests primarily on the results of psychological testing that is suspect given what must have been a significant language barrier.
6. I conclude, therefore, that Claimant has sustained his burden of proving that his work activities on June 14, 2007 caused him to develop costochondritis, a physical injury for which he continues to treat. As Claimant has not yet reached end medical result, and as his condition continues to disable him from work, he is entitled to temporary total disability benefits from the date of the injury forward. As Claimant’s temporary total disability has extended for more than 90 days, furthermore, Defendant is obligated to undertake the vocational rehabilitation screening process mandated by 21 V.S.A. §641 and Workers’ Compensation Rule 30.0000 in order to determine whether he is entitled to vocational rehabilitation assistance.
7. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits beginning on June 15, 2007 and continuing until properly discontinued pursuant to 21 V.S.A. §§643 and 643a, with interest in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s compensable injury;
3. Permanent partial disability benefits in amounts to be proven;
4. Vocational rehabilitation benefits in accordance with 21 V.S.A. §641;
5. Costs and attorney fees in amounts to be established in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this ____ day of September 2009.
________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Cathy Chartier v. Central Vermont Medical Center (June 26, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Cathy Chartier v. Central Vermont Medical Center (June 26, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cathy Chartier Opinion No. 22-09WC
By: Jane Dimotsis, Esq.
v. Hearing Officer
Central Vermont Medical Center For: Patricia Moulton Powden
Commissioner
State File No. X-05232
OPINION AND ORDER
Hearing held in Montpelier on December 12, 2008
Record closed on January 21, 2009
APPEARANCES:
William Skiff, Esq. for Claimant
John Valente, Esq. for Defendant
ISSUE:
Did Claimant suffer a work-related injury on November 28, 2005 and if so, to what benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Claimant’s Exhibit 1: Green’s Operative Hand Surgery (4th ed. 1999-2000), CRPS
chapter
Claimant’s Exhibit 2: Curriculum Vitae, Stephanie Landvater, M.D.
Claimant’s Exhibit 3: Claimant’s fee agreement
Claimant’s Exhibit 4: Deposition of Stephanie Landvater, M.D.
Defendant’s Exhibit A: Dr. Ensalada Independent Medical Evaluation report
Defendant’s Exhibit B: Curriculum Vitae, Leon Ensalada, M.D.
Defendant’s Exhibit C: Photographs of Claimant’s hands
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §§642 and 646
Medical benefits pursuant to 21 V.S.A. §640
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Interest pursuant to 21 V.S.A. §664
Attorney fees and costs pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (the “AMA Guides”).
3. Claimant is now 43 years old. She has worked as a registered nurse for Defendant for approximately nineteen years. Her regular work schedule has always been 32 hours per week plus “on-call” emergency work.
4. On November 28, 2005 Claimant was working in the post-operative unit when she had an emergency situation with a young patient. In order to keep the child’s airway open and clear, she had to hold his jaw open, thrust it forward and keep his tongue out of his breathing path. Usually this procedure lasts only three or four minutes, but in this case Claimant had to maintain her position, using both hands with some strain, for fifteen to twenty minutes. Claimant alleges that her left arm and hand were strained and that the injury later developed into reflex sympathetic dystrophy (RSD).1
Claimant’s 1997 Work Injury
5. Claimant suffered a work-related left arm strain while employed by Defendant in July 1997. When the pain from this injury increased, she treated primarily with Dr. Landvater, an orthopedic surgeon, but also saw Drs. Abajian and Rathmell, both pain specialists. During the course of their treatment Claimant’s doctors all agreed that her condition had developed from a musculotendonous injury or ulnar neuropathy to RSD in her left upper extremity. All observed objective symptoms indicative of that condition, including temperature changes in her left arm, red and mottled skin, sensitivity to palpation and loss of grip strength.
6. Over the following months, Claimant’s symptoms waxed and waned. Dr. Abajian administered stellate ganglion blocks, an injection of local anesthetic into the sympathetic nerve tissue, which afforded her some pain relief. At various times Claimant also was prescribed medications such as Flexeril, Ultram, Nortriptyline and Vicodin to address her left upper extremity pain issues. She found these medications to be helpful, but her pain still persisted. Ultimately, Dr. Rathmell performed a cervical catheter treatment, following which her pain symptoms dramatically decreased. Claimant reached an end medical result shortly after concluding this treatment. She returned to work successfully in 1998.
1 The AMA Guides now refer to RSD as complex regional pain syndrome (CRPS), Type I.
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7. Defendant accepted Claimant’s July 1997 injury as compensable and paid workers’ compensation benefits accordingly. Claimant did not treat for her left arm area again until the incident that gave rise to the current claim, some seven years later.
Diagnosis and Treatment of Claimant’s November 2005 Injury
8. As noted above, Claimant claims to have suffered a new work-related injury on November 28, 2005 when she had to maintain her arms and hands in a strained position for an extended period of time in order to keep a young patient’s airway open.
9. Claimant testified that after the November 2005 incident her left arm was red and swollen, and she was experiencing burning pain. She believed her symptoms were the same as those she had experienced in the aftermath of her 1997 work injury.
10. As she had in 1997, Claimant treated again primarily with Dr. Landvater. Dr. Landvater is a board certified practicing orthopedic surgeon. Over the course of her career, she has diagnosed and treated many patients with RSD. Dr. Landvater has been Claimant’s treating physician for approximately nine years.
11. Dr. Landvater confirmed that Claimant’s symptoms were in fact the same as the ones she had experienced in 1997. She observed objective signs of RSD, including temperature changes in Claimant’s left upper extremity, left hand discoloration, significant loss of grip strength, extreme skin sensitivity and complaints of burning pain.
12. In Dr. Landvater’s opinion, Claimant suffered a left upper extremity strain as a result of the November 2005 work incident, which resulted in ulnar neuritis that in turn triggered a recurrence of RSD. In making this diagnosis Dr. Landvater relied in part on the chapter relating to CRPS in Green’s Operative Hand Surgery (4th ed. 1999-2000). According to that treatise, it is proper to diagnose CRPS clinically. To do so, the practitioner should evaluate the patient’s pain, trophic changes, autonomic dysfunction and functional deficits. Dr. Landvater testified that according to the signs and symptoms she observed Claimant met the text’s criteria for a diagnosis of CRPS.
13. Dr. Landvater’s treatment plan mirrored what had proven successful when Claimant had suffered from RSD in 1997 – stellate ganglion blocks, acupuncture, physical therapy and other modalities as needed for pain.
14. As she had done in 1997, Claimant underwent a series of stellate ganglion blocks with Dr. Abajian beginning in November 2005. These provided only temporary relief, however. Dr. Abajian concurred with the diagnosis of RSD.
15. From January through March 2006 Claimant treated with Dr. Tarver, a pain specialist. Dr. Tarver noted that Claimant’s left upper extremity was very red and swollen from her fingertips to her mid-forearm. He initially agreed that Claimant possibly was suffering from RSD or CRPS triggered by underlying ulnar neuropathy, as Dr. Landvater had concluded. Later, however, Dr. Tarver discounted the RSD diagnosis and concluded that the only appropriate diagnosis was ulnar neuropathy.
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16. Claimant also underwent a neurological evaluation with Dr. Krantz, in February 2006. Dr. Krantz agreed with Dr. Landvater’s diagnosis of both ulnar neuropathy and RSD. Among the objective findings she observed were mottling, redness and mild swelling in the left upper extremity and diminished sensation in the left ulnar distribution.
17. Last, Claimant’s primary care provider, Dr. Atkinson, also evaluated Claimant in early 2006 and concurred with Dr. Landvater’s RSD diagnosis. Dr. Atkinson observed objective symptoms in Claimant’s left arm, noting that her skin was mottled and that she was unable to wear rings on her left hand because it was swollen. Dr. Atkinson agreed that Claimant’s RSD had resulted from the November 2005 work incident.
18. In summary, then, all of Claimant’s treating physicians – Drs. Landvater, Abajian, Tarver, Krantz and Atkinson – observed objective signs of RSD in the months following the November 2005 work incident. Except for Dr. Tarver, all concurred in the diagnosis of RSD stemming from ulnar neuropathy caused by that event.
Independent Medical Evaluation
19. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Ensalada in May 2007. Dr. Ensalada has extensive academic training and experience treating pain syndromes, and is a specialist in RSD and CRPS. He authored the section on CRPS and co-authored the chart used to rate permanency for that condition in the AMA Guides.
20. According to Dr. Ensalada, the mechanism that allegedly caused Claimant’s November 2005 injury – holding a young patient’s jaw open for fifteen to twenty minutes – was a simple procedure that should not have caused left arm neuropathy or ulnar neuritis. In his opinion, that activity may have resulted in a soft tissue injury, which should have resolved quickly thereafter.
21. Dr. Ensalada believes that Claimant now suffers from left ulnar neuropathy due to entrapment of the ulnar nerve around the elbow, but that that condition was neither caused nor aggravated by her work activities. With reference to the current medical literature, Dr. Ensalada stated that Claimant did not engage in the type of repetitive movements or high-force use of her arm at work that would cause ulnar nerve entrapment.
22. Dr. Ensalada believes that Claimant is engaging in somatization, consciously or unconsciously displaying symptoms for psychological purposes or secondary gain. In his opinion, she has no current impairment or disability causally related to her work for Defendant.
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23. Dr. Ensalada does not believe that the November 2005 incident caused either RSD or CRPS. Under the AMA Guides, in order to make a proper diagnosis of CRPS a patient must exhibit at least eight of eleven listed criteria, including changes in skin color, temperature or texture, swelling, joint stiffness and hair or nail changes. Dr. Ensalada stated that at the time of his examination Claimant did not exhibit any of the listed criteria. On those grounds he determined that it would be inappropriate to diagnose her with RSD or CRPS.
24. Dr. Ensalada admitted that the manifestation of RSD is quite variable and that its symptoms can wax and wane over time.
25. The stated purpose of the AMA Guides is to rate work-related permanent impairments. The fifth edition updated the diagnostic criteria and evaluation process used in impairment assessment, incorporating both available scientific evidence and prevailing medical opinion. The authors were encouraged to use the latest scientific evidence.
26. The AMA Guides are statutorily designated as the standard to use for rating the extent of an injured worker’s permanent impairment. Treating doctors do not necessarily refer to the AMA Guides to diagnose patients, however. None of Claimant’s treating physicians did so in making their diagnoses.
Claimant’s Periods of Temporary Disability
27. Neither Claimant nor Defendant addressed specifically the dates that Claimant was taken out of work following the November 28, 2005 incident. From the available evidence, it appears that Claimant was disabled from working during the following periods:
• Totally disabled from November 29, 2005 until April 3, 2006;
• Returned to work half-days from April 4, 2006 until April 17, 2006;
• Returned to work full-time from April 17, 2006 until March 8, 2007;
• Totally disabled from March 9, 2007 until July 31, 2007;
• Returned to work half-days from August 1, 2007 until August 14, 2007.
28. Claimant returned to her regular 32-hours-per-week work schedule on August 15, 2007 and added her normal on-call duties in September 2007. She has not missed any additional time since then.
29. Claimant continues to treat for her left upper extremity pain and symptoms with medication and acupuncture.
30. Citing Dr. Ensalada’s independent medical evaluation as support, Defendant discontinued both indemnity and medical benefits on July 6, 2007.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. Claimant relies primarily on Dr. Landvater’s diagnosis of ulnar neuropathy, triggered by the November 2005 work incident and later developing into RSD, as support for her claim. Defendant relies on Dr. Ensalada’s opinion to establish first, that Claimant’s ulnar neuropathy was not caused by work and second, that she does not meet the diagnostic criteria for CRPS.
4. Dr. Landvater has enjoyed a lengthy treating relationship with Claimant, one that includes a previous diagnosis and successful treatment of RSD in 1997. Dr. Abajian as well had the opportunity to treat Claimant both in 1997 and again in 2005. These providers’ familiarity with Claimant’s presentation over time gives them an advantage in terms of being able to observe symptoms that wax and wane. In contrast, Dr. Ensalada’s evaluation was limited to a single visit.
5. Although Dr. Ensalada’s credentials are impressive, in this case I find Dr. Landvater’s conclusions to be more credible. I conclude, therefore, that Claimant has sustained her burden of proving that the November 2005 work incident caused left ulnar neuropathy and RSD, as a result of which she is entitled to both indemnity and medical benefits.
6. As Claimant has prevailed, she is entitled to an award of costs and attorney fees.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits in accordance with Findings of Fact Numbers 27 and 28 above, with interest from the date such benefits became due and payable in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to Claimant’s compensable injury;
3. Costs and attorney fees in an amount to be determined based on Claimant’s timely submission.
DATED at Montpelier, Vermont this 26th day of June 2009.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Donald Patch v. Jan Co., Inc. (April 15, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Donald Patch v. Jan Co., Inc. (April 15, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Donald Patch Opinion No. 12-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Jan Co., Inc.
For: Patricia Moulton Powden
Commissioner
State File No. AA-52776
OPINION AND ORDER
Hearing held in Montpelier on March 2, 2009
Record closed on March 13, 2009
APPEARANCES:
Frank Talbott, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUE PRESENTED:
1. Did Claimant suffer a compensable work-related injury on September 6, 2008?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Claimant’s Exhibit A: Medical records
Claimant’s Exhibit B: Deposition of Daniel Robbins, M.D. taken on February 11, 2009
Claimant’s Exhibit C: Curriculum Vitae, Daniel Robbins, M.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest pursuant to 21 V.S.A. §664
Attorney’s fees and costs pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Defendant is the parent corporation for a local Burger King restaurant. Claimant has worked there as an assistant manager since 1999. As a “hands-on” manager, Claimant’s duties include not only running the shift and supervising employees, but also taking, filling and bagging customer orders.
4. On September 6, 2008 Claimant was working the drive-through window. This assignment involves a significant amount of bending, lifting, twisting and moving in awkward positions in order to pass items to waiting customers. It was a busy Saturday afternoon. Within a few hours of starting his shift, Claimant began to feel low back and groin pain. Later the pain intensified and began radiating down the inside of his right leg and into his calf. Ultimately the pain became so unbearable that Claimant called his supervisor to report that he was leaving early to go to the hospital emergency room.
5. Claimant has a prior medical history of occasional low back pain and lumbar stiffness, for which he has treated on a fairly regular basis with Dr. Marco, a chiropractor. Claimant testified credibly that his previous episodes of low back pain were not nearly as intense as what he experienced on September 6, 2008, that they did not involve radicular pain and that they resolved fairly quickly. Claimant characterized his ongoing treatment with Dr. Marco as a type of “fitness care.” Dr. Marco’s treatment notes corroborate this testimony.
6. Claimant treated conservatively for his September 6, 2008 injury. When his symptoms lingered, in December 2008 he sought a consultation with Dr. Robbins, an orthopedic surgeon. Based both on Claimant’s description of the mechanism of injury and the symptoms that followed and on his review of an MRI scan taken shortly after the incident, Dr. Robbins concluded that Claimant had suffered an annular tear at L5-S1. To a reasonable degree of medical certainty Dr. Robbins testified that the tear most likely had been caused by Claimant’s work activities on September 6, 2008. Dr. Robbins felt “strongly” that Claimant’s symptoms did not represent a continuation of any underlying chronic problem. To the contrary, he stated that Claimant’s presentation was “absolutely textbook” for an acute annular tear.
7. As treatment Dr. Robbins prescribed aggressive physical therapy, a core stabilization and stretching regimen and non-steroidal anti-inflammatories. Claimant has progressed well with this program. At this point, although Dr. Robbins has not yet declared him at end medical result, he does not anticipate any substantial long-term impairment.
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8. Defendant’s medical expert, Dr. Davignon, performed an independent medical evaluation in November 2008. In Dr. Davignon’s opinion, assuming that the prior medical history Claimant gave was accurate – and the evidence reveals no reasonable basis for concluding that it was not – the September 6, 2008 incident most likely resulted in an aggravation of the pre-existing chronic low back pain for which he had received chiropractic treatment in the past. On those grounds, Dr. Davignon concluded that Claimant’s current symptoms were causally related to his work for Defendant.
9. As a result of his September 6, 2008 injury Claimant was totally disabled from September 7, 2008 until mid-December 2008. Defendant delayed putting Claimant back on the work schedule, however, until January 24, 2009 at which point Claimant returned to work full-time and full-duty.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Claimant alleges that his work activities on September 6, 2008 resulted in an annular tear at L5-S1, causing disabling symptoms that required medical treatment and precluded him from working for some time thereafter. Claimant presented Dr. Robbins’ expert opinion in support of his position. Defendant countered with Dr. Davignon’s expert opinion.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
4. Applying this test to the current claim, Claimant clearly prevails. Dr. Robbins credibly synchronized the mechanism of the injury with the MRI findings to conclude that Claimant’s symptoms were in fact related to his work activities on September 6, 2008. His opinion was persuasive in every respect.
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5. Indeed, Dr. Davignon reached essentially the same conclusion, albeit by way of a somewhat different medical path. The only disclaimer he appended to his opinion was his assumption that Claimant had reported his medical history accurately, which in fact he had. With that fact established, Dr. Davignon concluded that Claimant’s ongoing symptoms amounted to a work-related aggravation of his pre-existing condition and thus were causally related to his employment for Defendant.
6. I conclude, therefore, that Claimant has sustained his burden of proving that his low back pain and radicular symptoms after September 6, 2008 were causally related to his work activities on that date. Defendant is responsible to pay for all associated workers’ compensation benefits to which Claimant proves his entitlement. These include payment for all reasonably necessary medical services and supplies as well as indemnity benefits. As to the latter, Claimant has proven his entitlement to temporary total disability benefits from September 7, 2008 until January 24, 2009. Whether Claimant will be entitled to permanent partial disability benefits as well remains to be seen.
7. Claimant’s attorney has submitted a request under 21 V.S.A. §678 for costs totaling $1,740.75 and attorney’s fees totaling $5,904.00. An award of costs to a prevailing claimant is mandatory under the statute and therefore these are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find they are more than appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from September 7, 2008 through January 24, 2009;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s September 6, 2008 injury;
3. Additional workers’ compensation benefits, including permanent partial disability benefits, proven to be causally related to Claimant’s September 6, 2008 injury;
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs of $1,740.75 and attorney’s fees of $5,904.00 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 15th day of April 2009.
______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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