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S. S. v. Consolidated Memorials (January 9, 2007)

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S. S. v. Consolidated Memorials (January 9, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. S. Opinion No. 49-06WC
By: Margaret A. Mangan
v. Hearing Officer
Consolidated Memorials For: Patricia Moulton Powden
Commissioner
State File No. U-12011
Hearing held in Montpelier on July 27, 2006
Record closed on August 30, 2006
APPEARANCES:
Heidi Groff, Esq. for the claimant
Corina Schaffner-Fegard, Esq. for the defendant
ISSUES:
1. Are the Claimant’s left knee and hip injuries causally related to his accepted right foot injury which occurred at work on July 16, 2003, or was there a non-work related aggravation?
2. To what benefits is the Claimant entitled?
3. Whether the Claimant’s alleged inability to work more hours was a material misrepresentation of his work capacity sufficient to terminate benefits and or require reimbursement for benefits paid.
EXHIBITS:
Joint I: Medical Records
Claimant’s I: Preservation Testimony and C.V. of Dr. Lynch, MD
Defendant’s I: Surveillance videotape from 2003
Defendant’s II: Surveillance videotape from 2004
Defendant’s III: Surveillance videotape from 2005
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STIPULATED FACTS:
1. At all relevant times, the Claimant was an employee as defined under the Vermont Statutes.
2. At all relevant times, the Defendant was an employer as defined under the Vermont Statutes.
3. The Claimant suffered a work related fracture to his right foot on July 16, 2003.
FINDINGS OF FACT:
1. During high school, the Claimant had surgery on his left knee as the result of a football injury, but he did not have any further difficulties until after the July 16, 2003 work injury.
2. By July 2003, the Claimant had been employed by Consolidated Memorials as a sawyer for approximately nine years.
3. The job of sawyer includes running granite saws, programming saws, cleaning saws, standing for long periods, climbing ladders, heavy lifting, and other similar tasks. This position also requires that the sawyer be on-call twenty-four hours per day.
4. On July 16, 2003, the Claimant sustained a work related injury to his right foot after tripping on a hose while coming down some stairs and landing on the outside of his right foot. The Claimant continued working until the end of his shift that day.
5. On July 22, 2003, the Claimant saw Dr. Bean at Green Mountain Orthopaedic Surgery. At this visit, the Claimant complained of significant soreness and swelling in his right foot. Dr. Bean noted that both feet showed signs of possible untreated preexisting deformities and degenerative changes in his feet. The Claimant’s feet also showed pseudoarthrosis at the base of the fourth and fifth Metatarsal, along with evidence of an acute fracture at the Claimant’s old fifth nonunion. At this time, the Claimant was fitted with a short-leg fiberglass walking cast.
6. Dr. Bean’s office released the Claimant to light duty office work for two hours per day beginning on July 28, 2003. Then, on July 31, the Claimant was released to work for 8 hours per day on light duty.
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7. On August 22, 2003, Dr. Bean noted that the Claimant was finding it difficult to work “light duty” and, while the radiographs showed that the Claimant’s foot was beginning to heal, it had not healed to a point where the cast could be removed. At that time, the Claimant was given a walking cast with a toe plate and taken out of work until the next follow-up visit.
8. On September 19, 2003, Dr. Bean performed a follow up examination. After the Claimant’s cast was removed, Dr. Bean noted that the fracture site was remarkably tender and that the Claimant could not tolerate weight bearing on that side at all because of the level of discomfort. The radiograph indicated that while the fracture site had some early bone forming in the gap, the shaft was particularly sclerotic at the slowest healing portion of the bone. This information, combined with the clinical examination, led Dr. Bean to believe that an increase in weight bearing or function would be problematic. The Claimant was then put back in a short-leg cast and given a bone stimulator. The Claimant was again taken out of work until November 1, 2003.
9. On October 8, 2003, the Claimant was observed driving to an auto body shop and stopping at a gas station. There, the Claimant was observed walking with a device on his foot.
10. Around October 21, 2003, the Claimant shot a deer out of his tree stand during archery season. He walked 300 yards without the aid of crutches or other assistance to get to the tree stand. He also climbed twelve feet up, carrying his archery equipment, to access the tree stand.
11. On October 24, 2003, the Claimant again visited Dr. Bean. The motion and pain at the fracture sites continued. The radiographs showed no significant bone healing despite frequent use of the bone stimulator. Dr. Bean ordered more months of bone stimulation and limited weight bearing. He did not release the Claimant back to work at this time.
12. On November 13, the Claimant was observed driving his truck.
13. On the morning of November 14, 2003, the Defendant’s private investigator observed the Claimant shoveling snow from his driveway, driving, and running errands.
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14. Regardless of this observed activity, on November 21, 2003, Dr. Bean noted marked improvement as a result of increased use of a bone stimulator. The radiograph showed interval healing although the fracture site was still quite visible. Manipulation of the fracture site was still painful and the foot remained very sensitive. Dr. Bean hypothesized that the slow healing was due to the foot’s altered morphology. Dr. Bean then added that the Claimant’s foot should have a complete union in, at most, two months. At this time, Dr. Bean released the Claimant to work on December 1, 2003. This note read, “computer program limit walking.”
15. On December 22, 2003, Dr. Bean noted that the Claimant’s foot might be somewhat less sensitive and, although there was tenderness and percussion over the fracture sites, the Claimant tolerated bending and manipulation of the fracture fairly well. Radiographs showed that the fracture site was improving at a glacial pace. Dr. Bean stated that continued standing was not possible, and the Claimant had no standing work capacity. However, Dr. Bean noted that a fully seated sedentary job would have been appropriate.
16. On February 02, 2004, the Claimant again saw Dr. Bean. At this visit, Dr. Bean found that there had been minimal improvement, the injury should be classified as a “nonunion,” and a change in treatment was required. Dr. Bean surmised that bone grafting and plates would be the appropriate course for treating the Claimant’s foot, but believed that a second opinion was reasonable. Dr. Bean also noted that the Claimant could not stand fulltime because the bones in his foot had not healed.
17. On February 6, 2004, the Claimant saw Dr. Lynch for a second opinion. Dr. Lynch noted that the Claimant had developed nonunions during the six months he had been casting. He also remarked that the Claimant had some ability to mobilize in the cast. Upon physical examination, Dr Lynch noticed the Claimant’s pre-existing foot deformity and found that the Claimant had been “loading hard” on the lateral border of his foot. It was Dr. Lynch’s impression that the use of the bone stimulator had not really improved the condition of the Claimant’s foot. He also surmised that surgery would likely be required.
18. The Claimant next saw Dr. Lynch on February 25, 2004. Dr. Lynch described plans for future surgery on the Claimant’s foot.
19. On March 5, 2004, Dr. Lynch performed surgery on the Claimant’s injured right foot. The surgery consisted of a calcaneal slide and posterior tibial tendon lengthening, an open reduction with bone grafting, as well as plates and screws being added to the foot.
20. During a follow up visit on March 18, 2004, the Claimant reported to Dr. Lynch’s office that he was doing well and having minimal pain. However, he found the need to elevate his foot after being upright after a period of time.
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21. On March 25, 2004, the Claimant saw Dr. Bean to discuss his left knee and left hip. The Claimant reported that pain, snapping and clicking in his left knee and hip had gotten progressively worse during the prior year. Radiographs revealed a bone spurring and loss of medial joint space. In his assessment, Dr. Bean believed that the left knee and hip problems were caused by osteoarthritis that was exacerbated because of the Claimant’s need to wear a short-leg cast. Dr. Bean recommended that the Claimant treat the above symptoms, and try to delay joint replacements because of the Claimant’s young age.
22. On April 6, 2004, the Claimant saw Dr. Lynch for a post-surgery follow up. At this time, the Claimant reported some trouble sleeping due to the pain in his foot, and also that he felt insecure without the cast. Dr. Lynch replaced the cast that day. The Claimant also complained of increasing stiffness and pain in his left knee and hip. After examining the left hip, Dr. Lynch found that there was almost no rotational motion, and the hip made a creaking catching sound. It was Dr. Lynch’s impression that the Claimant might be able to return to work in 4-6 weeks if the foot was feeling better and the hip was not too troublesome.
23. On April 30, 2004, Dr. Lynch noted that the Claimant’s wounds were healing nicely and there was no sign of infection. Dr. Lynch also noted that the calcaneal slide and posterior tibial tendon lengthening appeared to have been effective. However, the Claimant was experiencing “marked hypersensitivity” in his right foot. Dr. Lynch believed that this hypersensitivity was a result of coming out of the cast. The Claimant was placed in an air cast walker boot. The Claimant was also given a prescription to alleviate the pain in his right foot, left knee, and left hip.
24. On June 30, 2004, Dr. Lynch recorded that the Claimant was able to bear weight on both legs with bilateral air cast walker boots with rocker-bottom soles. However, the Claimant’s hypersensitivity persisted and he was having difficulty putting weight on the right foot without shoes or support.
25. On July 29, 2004, Dr. Lynch noted that the Claimant was still experiencing hypersensitivity and pain. X-rays showed that one nonunion had healed and the other was healing. Dr. Lynch stated that the Claimant needed to continue to desensitize and begin wearing shoes.
26. On September 28, 2004, the Claimant went back to work for the Defendant for seven hours, but found the assigned work intolerable and phoned Dr. Lynch. Dr. Lynch’s office then faxed an out-of-work note to the Defendant. The note stated that the Claimant was not to return to work until November 2, 2004.
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27. In response to a letter sent from the Claimant dated October 1, 2004, Dr. Bean indicated that there was no causal connection between the symptoms in the Claimant’s left hip and knee and his work injury to the right foot. However, Dr. Bean also stated that he thought that the altered gait resulting from the long casting my have a relationship to the Claimant’s hip and knee symptoms.
28. In response to a letter sent from the Claimant dated October 1, 2004, Dr Lynch stated that he believed that the arthritis was causally related to the Claimant’s original work injury. Dr. Lynch also opined that, while the arthritis may have preexisted, the long casting resulted in an abnormal gait that aggravating the Claimant’s arthritis. In his testimony, Dr. Lynch also added that the Claimant’s prolonged period of deconditioning was a large part of the reason that the preexisting arthritis became symptomatic.
29. On the morning of October 2, 2004, the Defendant’s private investigator observed the Claimant driving in his truck on a rural road. The Claimant saw the investigator and informed the investigator that he was going to be hunting in his nearby tree stand. After exiting the woods, the Claimant drove away in his truck, and made one stop before returning home.
30. On October 8, 2004, Dr. Lynch again released the Claimant to return to light duty work for three-to-four hours per day, three days per week. The Claimant stated that he could spend two to four hours a day on his feet and could walk a couple of hundred yards in reasonable comfort. To strengthen and rehabilitate, Dr. Lynch encouraged the Claimant to walk, hunt or stand.
31. On November 18, 2004, at Dr. Lynch’s request, the Claimant underwent a Functional Capacity Evaluation. The FCE determined that the Claimant had a maximum light level work capacity. The physical therapist that performed the evaluation was concerned about the Claimant’s poor balance skills, need for support when standing, and high pain levels.
32. On December 16, 2004, the Claimant saw Dr. McClellan at the request of his nurse case manager. Dr. McClellan determined that the left hip and knee symptoms most probably stemmed from pre-existing osteoarthritis that was aggravated by the gait disturbance brought on by his work related injury to his right foot. Furthermore, Dr. McClellan found that the Claimant would have substantial difficulty doing any substantive walking or carrying because his gait disturbance would aggravate his pain and underlying hip and knee condition. Dr. McClellan determined that the Claimant had a sedentary and part time work capacity.
33. On January 11, 2005, Dr. Davignon performed an IME on the Claimant. It was Dr. Davignon’s opinion that the lengthy casting could have changed his gait pattern, causing the aggravation in the left hip and knee.
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34. On February 1, 2005, Dr. Lynch listed that the Claimant had persistent pain consistent with chronic regional pain syndrome, degenerative joint disease of the left hip, degenerative joint disease of the left knee, persistent disability and limitation secondary to all of the above. The Claimant was also now describing symptoms of foraminal encroachment or spinal stenosis. Dr. Lynch noted that the Claimant’s spinal problems and degenerative arthritis were likely related to chronic repetitive stress over time in someone with a propensity for arthritis. The Claimant continued working three days a week during this period.
35. On March 7, 2005, Dr. Lynch noted multiple levels of some degree of spinal stenosis with no clear foraminal encroachment. The Claimant continued to suffer chronic pain in his right foot, and was easily fatigued. Dr. Lynch described the left hip as the major problem. There was some discussion of joint replacement. The Claimant continued to work at light duty three days per week, for four hours each day.
36. In a letter dated March 25, 2005, Dr. Davignon wrote that the radiographic findings of the Claimant’s hip and knees were a pre-existing condition which could have been aggravated by compensatory mechanisms of his gait pattern and could cause the symptoms he was experiencing. Dr. Davignon also noted that the Claimant’s symptoms could progress due mostly to age related findings of osteoarthritis than injury.
37. In a letter dated May 2, 2005, Dr. Davignon stated that he could not say that the radiographic changes in the Claimant’s hip and knee, and the impending joint arthroplasty of the hip and knee, were more likely than not related to the original work injury.
38. On May 20-21, 2005, the private investigator hired by the Defendant observed the Claimant walking at an antalgic gait, driving his truck on various errands, assisting another person carry three, eight-foot tables then place the tables in the bed of his truck, attaching a fishing boat to his truck, putting the fishing boat into the water, and fishing for long periods of time. At this time, the Claimant was still working at light duty three days per week, for four hours each day.
39. On May 25, 2005, the Department entered an Interim Order, ordering the Defendant’s insurance carrier to pay benefits related to the Claimant’s left hip and knee injuries.
40. After reviewing the 2003 and 2005 surveillance, Dr. Davignon noted that the Claimant continued engaging in the filmed activities even though his gait became progressively more pronounced. Dr. Davignon opined that these activities certainly could have aggravated the left hip and knee symptoms. Dr. Davignon also surmised that it would not have been unreasonable for the Claimant to have gradually progressed to a full-time work schedule.
41. On July 13, 2005, Dr. Lynch performed a successful left total hip replacement. On November 2, 2005, Dr. Lynch performed a left total knee replacement. As a result of these procedures, the Claimant has improved functioning, improved range of motion, and decreased pain.
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42. Dr. Glick, an orthopedic surgeon, stated that hunting and fishing were not non-weight bearing and that he would have advised the Claimant against those activities. Furthermore, Dr. Glick opined that the Claimant’s extracurricular activities were likely to aggravate the left knee and hip symptoms. Dr. Glick did not view the videotapes or the Claimant’s diagnostic films.
43. After viewing most of the tapes, Dr. Lynch stated that he did not see anything in the videos that the Claimant should not have been doing during the time he was treating the Claimant. Dr. Lynch also noted that the later films showed that “his hip was bothering him badly because of his antalgic gait and his tendency to lurch to the left, and the hips are usually more troublesome up and around and walking.” He also noted that when viewing videos taken on consecutive days that the claimant was visibly limping worse the second day. Dr. Lynch also noted that while “walking and moving and doing things were part of any rehab activity,” the first tapes were made during the time before he was treating the Claimant.
44. Neither of the Claimant’s doctors recommended that the Claimant use a cane, crutch or other supportive device.
45. The Claimant is currently receiving treatment for his ongoing back problems; however, the Claimant has reached a medical end result for his right foot, left hip, and left knee.
46. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 25% Fee Agreement with the Claimant and an approved Attorney Lien. The Claimant has included an itemized list of litigation costs totaling $ 1,891.80.
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 (1962). 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. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. 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 Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
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Causation
4. The Workers’ Compensation Act, having benevolent objectives is remedial in nature and must be given liberal construction; no injured employee should be excluded from coverage under the Act unless the law clearly intends such exclusion or termination of benefits. S. H. v. State of Vermont, Opinion No. 19-06WC, (2006) (citing Montgomery v. Brinver Corp., 142 Vt. 461 (1983).
5. An employer takes each employee as is and is responsible under workers’ compensation for an injury which disables one person and not another. Paton v. State of Vermont, Dep’t of Corrections, Opinion No. 47-04WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935); Perkins v. Community Health Plan, Opinion No. 39-98WC (1998); and Winckler v. Travelers & Foley Rail Co., Opinion No. 29-01WC (2001)).
6. “Recurrence” means the return of symptoms following a temporary remission. WC Rule 14.9242.
7. Larson’s Workers’ Compensation Law § 10.syn Synopsis to Chapter 10 provides in the section captioned “Range of Compensable Consequences” as follows:
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. More specifically, the progressive worsening or complication of a work-connected injury remains compensable so long as the worsening is not shown to have been produced by an intervening nonindustrial cause.
J.D. v. Agency of Human Servs., Opinion No. 11-06 WC (2006).
8. The Claimant has shown that his left knee and hip injuries are causally related to the July 16, 2003 work injury, rather than the result of any intervening cause. Although the Defendant has put forth some evidence that the Claimant’s own activities may have caused left hip and knee symptoms, this evidence raises no more than an inference that anything but the work-related foot injury caused the underlying arthritis to worsen.
9. There has been insufficient evidence to show that the Claimant’s own conduct delayed the healing process or prolonged the casting. The Defendant makes much of the seven days, fanned out over a period of roughly three years, where the Claimant was shown to have been hunting, fishing, shoveling snow, driving, or running errands. However, this small amount of documented activity spread over a much longer period is insufficient to amount to a non-industrial, intervening event. Furthermore, even if there were undocumented periods where the Claimant was engaged in similar activities, Claimant had been encouraged by his physicians to participate in his normal activities, none of which rose to the level of a work capacity.
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10. The expert medical evidence also supports this conclusion. When qualified medical experts disagree, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all the relevant records. J.C. v. Richburg Builders. Opinion No. 37-06WC (2006). (citing Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Gardner v. Grand Union, Opinion No. 24-97WC (1997)).
11. The Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). While all of the medical experts in this case are qualified to give credible medical testimony, Dr. Lynch has treated the Claimant for his foot injury beginning in February 2004, and performed the right foot, left hip and left knee surgeries on the Claimant. As such, Dr. Lynch’s opinion carries the most weight with the Department.
12. While the Defendant’s medical experts believed that the Claimant’s activities were not non-weight bearing and would have advised against them, neither of the Claimant’s treating physicians prohibited these activities. In fact, Dr. Lynch recommended that the Claimant go hunting and spend more time standing to strengthen and rehabilitate. Also, after viewing the surveillance video, Dr. Lynch stated that he did not see any activity that would have been prohibited while the Claimant was under his care. While it seems ill advised for an individual with a sedentary work capacity to engage in some of these activities, it would be unreasonable to penalize a Claimant for following the advice of his physician.
13. Although there were varying medical opinions in this case, not a single medical expert could testify with a reasonable degree of medical certainty that the Claimant’s left hip and knee injuries were caused by the Claimant’s extracurricular activities.
Material Misrepresentation
14. The Defendant has fallen far short of the clear and convincing evidence standard required to prove material misrepresentation. See Harrington v. Department of Employment and Training, 152 Vt. 446, 448-49 (1989). The Claimant’s treating physicians, as well as the Defendant’s medical experts concurred that the Claimant had a sedentary to light, part-time work capacity. Hence, the Claimant did not have a work capacity beyond the sedentary to light capacity represented by the Claimant.
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Attorney Fees and Costs
Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Defendant is ORDERED to adjust this claim, including payment of:
1. Medical benefits for the Claimant’s left hip and knee injuries;
2. Temporary total disability benefits;
3. Interest from the date each benefit became due;
4. Litigation costs of $1,891.80;
5. Attorney fees of 20% or $9,000.00, whichever is less.
Dated at Montpelier, Vermont this 9th day of January 2007.
______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

James Pawley v. Booska Movers/Zurich North America (February 19, 2014)

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

James Pawley v. Booska Movers/Zurich North America (February 19, 2014)
And York Risk Services Group
STATE OF VERMONT
DEPARTMENT OF LABOR
James Pawley Opinion No. 02-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Booska Movers/Zurich North
America and York Risk Services For: Anne M. Noonan
Group Commissioner
State File Nos. CC-52769 and DD-00576
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 13, 2013
Record closed on December 16, 2013
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
David Berman, Esq., for Defendant Zurich North America
Erin Gilmore, Esq., for Defendant York Risk Services Group
ISSUES PRESENTED:
1. What is the appropriate average weekly wage upon which to base an award of
indemnity benefits to Claimant, either on account of his August 30, 2010 work
injury and/or on account of his August 5, 2011 work injury?
2. To what temporary partial disability benefits, if any, is Claimant entitled on
account of his August 30, 2010 work injury?
3. To what temporary partial disability benefits, if any, is Claimant entitled on
account of his August 5, 2011 work injury?
4. Does the maximum weekly compensation cap on temporary total disability
benefits apply as well to temporary partial disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Transactions by Payroll Item, August 30, 2010 through November
30, 2012
Claimant’s Exhibit 1: Wage statement (Form 25), 4/23/12
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CLAIM:
Temporary partial disability benefits from February 6, 2011 through April 10, 2011 and from
December 18, 2011 through February 12, 2012, pursuant to 21 V.S.A. §646
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
3. Claimant has worked for Defendant Booska Movers (Booska) since 2003. He began as a
laborer, then graduated successively to local driver, straight truck interstate driver and,
since 2008, tractor-trailer interstate driver.
4. Even as an interstate tractor-trailer driver, Claimant’s duties include both long-haul trips
and local, in-state deliveries. A long-haul trip typically consists of numerous individual
jobs, and to complete all of them the driver might be on the road for as long as two or
three weeks. Long-haul trips are assigned to interstate drivers according to a senioritybased
rotation. Compensation is commission-based, with the driver receiving a
percentage of the line haul upon completion of each job.
5. If no long-haul jobs are available, and/or if Booska’s business needs require it, interstate
drivers may be assigned local moves instead. They are compensated for this work on an
hourly basis, and as a consequence these jobs are far less lucrative than long-haul
assignments. In Claimant’s case, at an hourly rate of between $16.00 and $17.00, the
difference in pay between long-haul and local work is substantial. For this reason,
though he acknowledged that his regular job duties include both types of assignments, he
much prefers long-haul assignments.
6. Booska pays its drivers on a weekly basis. The pay period runs from Wednesday to
Tuesday. Paychecks are issued every Friday, and include all wages earned, for both
completed long-haul jobs and local deliveries, during the most recent pay period.
Claimant’s August 2010 Work-Related Injury
7. On August 30, 2010 Claimant was in the midst of a long-haul trip when he began to
experience pain and swelling in his left calf. Upon his return to Vermont, he sought
treatment and was diagnosed with a deep vein thrombosis (DVT), or blood clot, in his
lower leg. Defendant Zurich North America (Zurich) was Booska’s workers’
compensation insurance carrier at the time; it accepted Claimant’s injury as compensable
and paid workers’ compensation benefits accordingly.
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8. As treatment for his DVT, Claimant was placed on a six-month regimen of warfarin, an
anticoagulant, or blood thinning, medication. The goal of such treatment is both to stop
existing clots from growing larger and to prevent new ones from forming. Without such
treatment, the risk is that a clot will move to the lungs and cause a pulmonary embolism,
which can be life-threatening.
9. In addition to prescribing warfarin, in order to further reduce his risk of future DVTs,
Claimant’s treating providers (primarily Steven Rolleri, a nurse practitioner, and later Dr.
Zakai, both at the Fletcher Allen Health Care thrombosis clinic) strongly encouraged him
to wear compression stockings during the day and, while truck driving, to stop every two
hours and walk around for approximately ten minutes. Aside from these
recommendations, Claimant’s providers did not restrict him in any way from continuing
to work as a truck driver, on either long-haul or local assignments.
10. Claimant credibly testified that between August 30, 2010 and early February 2011,
treatment for his work-related DVT did not in any way affect the manner in which he was
assigned trucking jobs, whether long-haul or local. The contemporaneous medical
records reflect that during this time he was able to continue working full time and without
any difficulties.
11. According to Claimant’s recollection, he completed his six-month course of warfarin in
early February 2011. At that point, he testified, his doctors advised him to stay close to
the area so that if he experienced any problems as a result of discontinuing his blood
thinners they would be able to retest and treat him expeditiously. Claimant recalled that
he was given a note to that effect by his doctor, which he in turn gave to Booska’s
interstate dispatcher. As a consequence, according to Claimant he was assigned only
local deliveries for some ten weeks thereafter, until mid-April 2011 when his doctor
released him to return to interstate driving.
12. The contemporaneous medical records tell a different story. As to when Claimant
discontinued warfarin, I find that this likely occurred not in early February 2011 as he
alleged, but rather on February 28, 2011, as reported in the summary of his April 8, 2011
thrombosis clinic follow-up visit.1 Assuming Claimant began taking warfarin shortly
after first seeking medical treatment in early September 2010, this date would have been
consistent with a six-month course, as his treating providers had prescribed. Reports of
blood work done on February 9th and again on February 15, 2011 provide further
corroboration, as both indicate that Claimant was still taking Coumadin (the brand name
for warfarin) as of those dates.2
1 Joint Exhibit I, p. 000125.
2 Joint Exhibit I, pp. 000091 and 000097.
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13. Nor do the contemporaneous medical records offer any corroboration for Claimant’s
assertion that he was restricted to local driving only between early February and April
2011. Specifically:
 At his December 28, 2010 follow-up visit to the thrombosis clinic, Claimant was
advised to anticipate a full complement of blood work and imaging studies in
March 2011, that is, after completing his six-month course of warfarin.3 At that
point, the office note reflects, recommendations would be made regarding
whether to continue anticoagulant medications for the long term or not. No
mention was made of any anticipated work restrictions in the interim.
 As noted above, Claimant underwent two blood draws to test his iron count in
mid-February 2011, but was not otherwise evaluated or treated at the thrombosis
clinic at any time during the month; nor is there any record of a note from his
treatment providers restricting him to local driving during this time.
 The medical note from Claimant’s final follow-up visit on April 8, 2011 makes no
mention of any prior restriction to local driving; to the contrary, in it Dr. Zakai
reports that, as previously recommended, Claimant was driving with his
compression garment, stopping every two to four hours and doing leg pumps
while in cruise control, all modifications that implicate long-haul rather than local
driving.
14. Claimant relies on Booska’s payroll records (Joint Exhibit II) to corroborate his assertion
that he was restricted to local job assignments only between February 6th and April 10th,
2011. The largest weekly paycheck he received during this period was for $688.00,
which is far less than what he typically received for a long-haul assignment.
Furthermore, many of the payroll entries reflect two amounts combined and paid via the
same check number, which according to the testimony of Booska’s general manager,
Adam Booska, indicates payment for a local job rather than a long-haul one. Thus,
though the evidence is not entirely clear, I find that Claimant likely did not undertake any
long-haul jobs during this period.
15. As for the reasons why this occurred, Mr. Booska credibly testified that the peak season
for long-haul movers is from May through October, and that typically there is more local
work to be done from January through March.4 I find from this credible evidence that the
fact Claimant did not receive any long-haul job assignments between February and April
2011 most likely was due to Booska’s business needs rather than any injury-related
medical limitation.
3 The report of these lab studies confirms that as of March 18, 2011 Claimant was no longer on Coumadin. Joint
Exhibit I, p. 000107.
4 This assertion is borne out as well by the payroll records for the following year, which indicate that from January
through March 2012 Claimant undertook substantially more local runs than long-haul ones.
5
16. Having completed his six-month course of anticoagulant medication, in April 2011 Dr.
Zakai considered whether to maintain Claimant on long-term warfarin. He concluded
that it would be difficult for Claimant to do so, given his profession as a long-haul driver.
Instead, he recommended that Claimant travel with a supply of Lovenox, (an injectable
anticoagulant), and that he contact the thrombosis clinic and/or seek medical attention
immediately if he experienced symptoms indicative of either another DVT or a
pulmonary embolism. In addition, Dr. Zakai encouraged Claimant to continue to adhere
to the previous recommendations he had been given – wearing his compression garment
while driving, stopping periodically to walk around and doing leg pumps while in cruise
control – with a follow-up evaluation in one year’s time.
17. Between April and August 2011 Claimant undertook both long-haul and local job
assignments without incident.
Claimant’s August 2011 Work-Related Injury
18. On August 5, 2011 Claimant returned to Vermont after a long-haul trip complaining of a
one-week history of chest pain and shortness of breath. Upon informing his supervisor,
he was sent first to Booska’s preferred provider and then immediately to the hospital
emergency room, where he was diagnosed with bilateral pulmonary emboli and admitted
overnight for anticoagulation. Defendant York Risk Services Group (York) was
Booska’s workers’ compensation insurance carrier at the time of this event.5
19. On August 10, 2011 Claimant presented to Dr. Zakai for follow-up. Noting that
Claimant had not been fully compliant with his prior recommendations, Dr. Zakai
impressed upon him how close he had come to a potentially fatal event. Given his
condition, Dr. Zakai determined that it would not be prudent for him to continue working.
When ordered by the Department to do so, York commenced paying temporary total
disability benefits accordingly.
20. Claimant remained totally disabled from working until at least December 16, 2011. On
that date, Emily Parenteau, a nurse practitioner at the thrombosis clinic, released him to
return to work full duty, with the proviso that if he found himself unable to keep up, a
more graduated return would be implemented.
21. Claimant credibly testified that after being released by Ms. Parenteau, he returned to
work for Booska for one day, December 18, 2011. Thereafter, Adam Booska informed
him that he needed a written release from his doctor, which he procured from Dr. Zakai
on December 21, 2011. The release clearly indicated that Claimant was able to work
with no physical activity restrictions.
5 York has disputed its responsibility for this event, on the grounds that it represents a recurrence for which Zurich
should remain liable. It has paid benefits pursuant to the Department’s interim order. The aggravation/recurrence
issue has been referred to arbitration pursuant to 21 V.S.A. §662(e), and therefore is not before me now.
6
22. Claimant acknowledged that notwithstanding Dr. Zakai’s full-duty release, after
December 18, 2011 he elected to take unused vacation time through the end of the year,
as otherwise he would have lost it. I find that he thus removed himself from Booska’s
work force for the period from December 19, 2011 through January 1, 2012 for reasons
unrelated to his work injury.
23. Claimant testified that he could not resume interstate driving until he underwent a
Department of Transportation physical and obtained an updated Medical Examiner’s
Certificate. Mr. Booska corroborated this testimony. According to the medical records,
the required certificate was issued on December 30, 2011 with an expiration date of
December 30, 2012. Other than a requirement that he drive with corrective lenses, the
certificate did not restrict Claimant in any way on account of either his DVTs or his use
of anticoagulant medication.
24. With both his doctor’s full duty release and the necessary Medical Examiner’s Certificate
in hand, I find that as of December 30, 2011 Claimant was fully able to resume interstate
driving.
25. Although a January 27, 2012 thrombosis clinic record reports that, according to Claimant,
Booska had been restricting him to local deliveries only, in his formal hearing testimony
Claimant could not recall whether this was accurate or not. In contrast, Mr. Booska
credibly testified that as soon as Claimant was medically cleared to return to work full
duty, he put him back into the long-haul rotation. It being the slow time of year, no
interstate work was available, however. I find that for this reason, and not on account of
his work-related DVTs, from January 2, 2012 through mid-February 2012 Claimant was
assigned only local delivery jobs.
Average Weekly Wage Referable to Claimant’s August 30, 2010 Work Injury
26. Mr. Booska submitted the following Wage Statement (Form 25) for the 26 weeks
preceding Claimant’s August 30, 2010 work-related DVT:6
6 According to Mr. Booska’s credible testimony, he used a zero in the “Number of Hours or Days Worked” column
to connote long-haul jobs; because these were paid on a commission basis, the company did not keep track of the
number of hours required to complete them. With the exception of Week 2, the amounts stated in the “Extras”
column were simply transferred over from the “Gross Wages” column; they do not represent additional payments
made.
7
27. Although the wage statement purports to reflect 26 weeks of wages, upon closer
inspection it contains only 22. This is because, though recorded separately, weeks 12 and
13, 14 and 15, 16 and 17 and 19 and 20 all actually reflect both local and long-haul wages
paid in the same week.
8
28. Combining the weeks that should not have been stated separately, the proper recitation of
Claimant’s weekly wages is as follows:
# Week
Ending
Number
of Hours
or Days
Worked
Gross Wages
1 8/27/10 30 480.00
2 8/20/10 17 + 0 272.00 + 2,867.24
3 8/13/10 0 3,256.36
4 8/6/10 0 3,392.60
5 7/30/10 0 4,761.14
6 7/23/10 17 272.00
7 7/16/10 0 2,033.69
8 7/9/10 8 128.00
9 7/2/10 0 6,126.26
10 6/25/10 22 352.00
11 6/11/10 0 3,040.00
12 6/4/10 20.5 + 0 328.00 + 2,433.60
13 5/28/10 0 + 12 761.34 + 192.00
14 5/21/10 12 + 0 192.00 + 3,004.37
15 5/14/10 0 1,687.83
16 5/7/10 0 + 3.5 5,329.78+ 56.00
17 4/30/10 38.75 620.00
18 4/23/10 38.75 620.00
19 4/16/10 55 1,000.00
20 4/9/10 53.5 1,034.00
21 4/2/10 46.5 796.00
22 3/26/10 43.5 724.00
29. From these entries, weeks 6 and 8 must be disregarded, as the hours stated were less than
one-half of Claimant’s normal workweek. The wages paid over the remaining 20 weeks
total $45,360.21, which yields an average weekly wage of $2,268.01.
9
Average Weekly Wage Referable to Claimant’s August 5, 2011 Work Injury
30. Mr. Booska submitted the following Wage Statement (Form 25) for the 26 weeks
preceding Claimant’s August 5, 2011 work-related DVT:
31. In this wage statement as well, Mr. Booska separately recorded the wages paid for local
and long-haul jobs undertaken during the same week. To correct the error, weeks 7 and 8
and 17 and 18 should have been combined.
10
32. In addition, comparing the wages stated on the wage statement with those reflected in
Booska’s payroll records (Joint Exhibit II) reveals the following omissions:
 The wages reportedly paid in week 3 (the week ending July 15, 2011) should have
included an additional $1,203.16 paid for long-haul jobs;
 The wages reportedly paid in week 13 (the week ending May 13, 2011) were
actually paid on May 20, 2011, and therefore should have been combined with the
wages reported for week 12;
 The wages actually paid for the week ending May 13, 2011 ($3,467.83) were
omitted;
 The wages paid in week 19 (the week ending April 8, 2011) were for local
delivery assignments, and therefore should have reflected 37.5 hours worked.
11
33. With these errors corrected, the proper recitation of Claimant’s weekly wages is as
follows:
# Week
Ending
Number
of
Hours
or Days
Worked
Gross Wages
1 7/29/11 0 7,541.77
2 7/22/11 0 1,309.25
3 7/15/11 13 + 0 221.00 + 1,203.16
4 7/8/11 42.25 718.25
5 7/1/11 0 4,792.00
6 6/24/11 0 4,654.27
7 6/17/11 3 + 0 48.00 + 3,846.93
8 6/10/11 0 5,770.39
9 6/3/11 24 384.00
10 5/27/11 0 3,317.28
11 5/20/11 10 + 0 160.00 + 1,544.20
12 5/13/11 0 3,467.83
13 5/6/11 0 407.86
14 4/29/11 0 3,183.67
15 4/22/11 0 4,699.98
16 4/15/11 22.5 + 0 360.00 + 603.07
17 4/8/11 37.5 600.00
18 4/1/11 41.75 682.00
19 3/25/11 29.5 472.00
20 3/18/11 36 576.00
21 3/11/11 35 560.00
22 3/4/11 42 688.00
23 2/25/11 30 480.00
24 2/18/11 30.25 484.00
25 2/11/11 29.5 472.00
26 2/4/11 ? 456.837
7 The wages stated for weeks 25 and 26 are derived from Booska’s payroll records (Joint Exhibit II), as these were
not included on the Wage Statement. It is unclear whether the wages paid for week 26 were for local or long-haul
jobs; if local, assuming Claimant’s hourly rate at the time of $16.00, they would have represented approximately
28.55 hours.
12
34. The wages paid over the 26 weeks stated total $53,703.74, which yields an average
weekly wage of $2,065.53.
Claimant’s Claim for Temporary Partial Disability Benefits Referable to his August 30, 2010
Work Injury
35. Claimant seeks temporary partial disability benefits referable to his August 30, 2010
DVT for the period from February 6, 2011 through April 15, 2011. According to
Booska’s payroll records, he was paid the following wages during these weeks:
Week Ending Gross Wages
Paid
2/11/11 472.00
2/18/11 484.00
2/25/11 480.00
3/4/11 688.00
3/11/11 560.00
3/18/11 576.00
3/25/11 472.00
4/1/11 682.00
4/8/11 600.00
4/15/11 963.07
Claimant’s Claim for Temporary Partial Disability Benefits Referable to his August 5, 2011
Work Injury
36. Claimant seeks temporary partial disability benefits referable to his August 5, 2011 DVT
for the period from December 18, 2011 through February 12, 2012. According to
Booska’s payroll records, he was paid the following wages during these weeks:
Week Ending Gross Wages
Paid
12/23/11 150.00
12/30/11 0
1/6/12 263.50
1/13/12 599.25
1/20/12 718.25
1/27/12 807.50
2/3/12 686.38
2/10/12 658.75
2/17/12 671.50
13
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 here seeks compensation for separate periods of alleged temporary partial
disability following each of his work-related DVTs. The disputed issues raised by his
claim involve the proper computation of his average weekly wage as well as his
entitlement to indemnity benefits for any portion of the periods identified.
Average Weekly Wage Calculation
3. Average weekly wages are calculated in accordance with 21 V.S.A. §650(a), which states
as follows:
Average weekly wages shall be computed in such manner as is best
calculated to give the average weekly earnings of the worker during the 26
weeks preceding an injury . . . .
4. Workers’ Compensation Rule 15.4000 provides further guidance:
15.4100 The Wage Statement (Form 25) shall be filed and will include
the wages paid and/or due the claimant for each of the [26] weeks
preceding the injury not including the week of the injury.
. . .
15.4200 The following shall not be included when determining the gross
wages:
15.4210 Any week(s) during which the claimant worked and/or
was paid for fewer than one-half of his or her normally scheduled
hours.
14
5. Claimant raises two issues with respect to the proper calculation of his average weekly
wage. First, he argues that because his “primary position” was as a long-haul driver, only
those wages, and not the hourly wages attributable to his local delivery work, should be
included in computing his average wage. Second, he asserts that the average weekly
wage calculation should include the long-haul wages he was paid in the week of his
August 30, 2010 injury, as those earnings most likely reflect jobs that were completed in
the preceding week.
6. In support of his position on these issues, Claimant cites both to the language of §650(a)
and to the Supreme Court’s oft-quoted instruction that the Workers’ Compensation Act is
to be “liberally construed” in favor of injured workers. See, e.g., St. Paul Fire & Marine
Ins. Co. v. Surdam, 156 Vt. 585, 590 (1991); Montgomery v. Brinver Corp., 142 Vt. 461,
463 (1983). According to his interpretation, a liberal construction of the statute’s
requirement that average weekly wages be computed in such manner as is “best
calculated” to represent the injured worker’s average weekly earnings requires a
“flexible” approach. Not coincidentally, the flexibility for which he advocates here
would cause higher paying weeks to replace lower paying ones, thus significantly
inflating his average weekly wage.
7. I can find neither factual nor legal support for Claimant’s argument as to the first issue he
has raised. Factually, the undisputed evidence establishes that Claimant’s regular job
duties include both long-haul and local work. It is true, as Mr. Booska testified, that
Claimant was hired primarily for long-haul work. It is also true, as Claimant testified,
that because long-haul work pays more, he much prefers it over local work. Neither of
these facts changes the bottom line in any respect, however. As Mr. Booska and
Claimant each acknowledged, he was hired to perform both functions, and his average
weekly wage appropriately reflects that. Nothing in either the statute or the rule permits
any other interpretation. Wages are wages, no matter how earned.
8. Nor is there legal support for Claimant’s assertion that the wages he was paid during the
week of his injury should be included in his average weekly wage calculation. Certainly
a relationship exists between work that is performed (and completed) and wages that are
paid, but both statute and rule look to the latter event as the operative one, not the former.
The statute references “earnings,” which Merriam-Webster defines as “money received
as wages or gained as profit.” The rule refers to wages “paid and/or due,” which
according to the parties’ employment contract in this case did not occur until the Friday
following the immediately preceding Wednesday-to-Tuesday pay period. Under either
phrasing, the wages Claimant seeks to include fell in the week of his injury, not the week
before. By the plain language of both statute and rule they are excluded from the average
wage calculation.
15
9. “While the [Workers’] Compensation Act is to be construed liberally to accomplish the
humane purpose for which it was passed, a liberal construction does not mean an
unreasonable or unwarranted construction.” Herbert v. Layman, 125 Vt. 481, 485-86
(1966), cited with approval in King v. Snide, 144 Vt. 395, 404 (1984). The purpose of the
act, which represents a public policy compromise between employees and employers,
Gerrish v. Savard, 169 Vt. 468, 470 (1999) is not only to provide injured workers with an
expeditious, no-fault remedy, but also to provide employers with limited and determinate
liability. Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 441 (1980). Though
asserted under the guise of flexibility, the arguments Claimant has put forth to support his
claim for a higher average weekly wage would require me to interpret the statute in
whichever way results in the maximum recovery to the injured worker.8 In a system
intended to balance the interests of both employees and employers, I do not consider that
construing the statute liberally mandates such an obvious bias.
10. Consistent with Finding of Fact Nos. 29 and 34 supra, I conclude that the average weekly
wage referable to Claimant’s August 30, 2010 work injury is $2,268.01, and that the
average weekly wage referable to his August 5, 2011 work injury is $2,065.53.
Temporary Partial Disability Benefits Referable to Claimant’s August 30, 2010 Work Injury
11. Temporary disability benefits are awarded on the basis of an injured worker’s incapacity
for work. Bishop v. Town of Barre, 140 Vt. 564 (1982). Unlike permanency benefits,
which are intended to compensate for a probable future reduction in earning power,
temporary disability benefits are designed to counteract the injured worker’s immediate
or present loss of wages during the period of physical recovery. Orvis v. Hutchins, 123
Vt. 18, 22 (1962). Once the worker either regains full earning power or reaches an end
medical result, his entitlement to temporary disability benefits, whether total or partial,
ends. Id. at 24; 21 V.S.A. §§643 and 647.
12. Claimant’s claim for temporary partial disability benefits for the period from February 6,
2011 through April 10, 2011 rests on his assertion that he was medically precluded on
account of his August 30, 2010 DVT from undertaking any long-haul jobs during those
weeks. As I have already found, Finding of Fact No. 13 supra, the medical evidence
provides no support for this assertion. As a result, the most essential component of
temporary partial disability – a showing that the injured worker’s reduced earnings were
due to reduced earning power rather than other factors – is lacking. See, e.g., Knoff v.
Josef Knoff Illuminating, Opinion No. 25-12WC (October 15, 2012) (insufficient support
found for higher compensation rate where reduced average weekly wage was due to
personal choices or economic factors rather than injury-related sequellae); Griggs v. New
Generation Communications, Opinion No. 30-10WC (October 1, 2010) (same). For that
reason, I conclude that Claimant has not proven his entitlement to temporary partial
disability benefits for any of the weeks claimed during this period.
8 I presume that had Claimant been hired “primarily” as a local driver rather than a long-haul one, he would not now
be advocating for exclusion of his long-haul wages from the average weekly wage calculation. Similarly, I presume
that had the wages he was paid in the week of his injury been lower, he would not be advocating that they be
included in place of another, higher paid week.
16
Temporary Partial Disability Benefits Referable to Claimant’s August 5, 2011 Work Injury
13. Claimant’s claim for temporary partial disability benefits for the period from December
18, 2011 through February 12, 2012 also lacks the necessary factual support. The more
credible evidence establishes that, after successfully returning to work for one day on
December 18, 2011, Claimant voluntarily removed himself from the workforce from
December 19, 2011 through January 1, 2012 so as to make use of accumulated annual
leave time. His reduced earnings during that period resulted not from any injury-related
disability, but rather from his own personal choice, therefore. For that reason, no
temporary partial disability benefits are owed.
14. Similarly, the more credible evidence establishes that Claimant’s reduced earnings from
January 2, 2012 through February 12, 2012 also were not caused by any injury-related
disability, but rather resulted from fluctuations in Booska’s business needs and the
scarcity of long-haul jobs during the winter months. Again, therefore, the necessary
causal link between the work injury and the period of reduced earnings is lacking. I thus
conclude that no temporary partial disability benefits are owed for this period either.
Maximum Cap on Temporary Partial Disability Benefits
15. In their briefs, the parties have raised a final disputed issue – whether temporary partial
disability benefits payable under 21 V.S.A. §646 are subject to the same maximum
weekly cap as is applied under §642 to temporary total disability benefits. Having
concluded that Claimant is not entitled to temporary partial disability benefits for either
of the periods under consideration, it is not essential that I address this issue. However,
should Claimant appeal and prevail, many of the weeks claimed will exceed the cap, and
for that reason it is instructive to clarify the Department’s position.
16. The temporary total disability section of the statute, §642, reads as follows:
Where the injury causes total disability for work, during such disability . .
. the employer shall pay the injured employee a weekly compensation
equal to two-thirds of the employee’s average weekly wages, but not more
than the maximum nor less than the minimum weekly compensation.9
[Emphasis supplied].
9 The maximum and minimum weekly compensation amounts are determined annually on July 1st. 21 V.S.A.
§§601(18) and (19).
17
17. The temporary partial disability section, §646, makes no mention of either the maximum
or minimum weekly compensation. It reads:
Where the disability for work resulting from an injury is partial, during the
disability . . . the employer shall pay the injured employee a weekly
compensation equal to two-thirds of the difference between his or her
average weekly wage before the injury and the average weekly wage
which he or she is able to earn thereafter.
18. The temporary total disability section of the statute thus includes specific language to
effectuate a cap on weekly benefits, while the temporary partial disability section does
not. “Where the Legislature includes particular language in one section of a statute but
omits it in another section of the same act, it is generally presumed that the Legislature
did so advisedly.” In re Munson Earth Moving Corp., 169 Vt. 455, 465 (1999)); see also,
Archer v. Department of Employment Security, 133 Vt. 279, 281 (1975) (court “not at
liberty to read into the statute provisions which the legislature did not see fit to
incorporate”), quoted with approval in Longe v. Boise Cascade Corp., 171 Vt. 214, 223
(2000). Given the plain language of both sections, I cannot discern a basis for concluding
that the Legislature intended anything other than what it said – that temporary total
disability benefits are capped, but temporary partial disability benefits are not.
19. Defendants argue that unless the cap is presumed to apply to both types of benefits, a
claimant who is only partially disabled from working would be able to receive more in
weekly compensation payments than one who is totally disabled, a result they
characterize as illogical. I disagree. There is nothing illogical about encouraging an
injured worker to return to work as soon as he or she is medically cleared to do so, in
whatever limited initial capacity is deemed appropriate. Using temporary partial
disability benefits to help subsidize a claimant’s return to part-time work is an essential
strategy in the workers’ compensation arena, to the benefit of employees and employers
alike. See “Best Practices for Employers,” www.labor.vermont.gov/Businesses/Workers’
Compensation. Were there a cap on temporary partial disability benefits, high wage
earners in particular would face a disincentive to returning to work, because doing so
would yield no additional financial reward than remaining at home. I doubt the
Legislature would condone such a result.
20. Consistent with both the plain language of the statute and the Legislature’s presumed
intent, I conclude that temporary partial disability benefits are not subject to the
maximum weekly cap applicable to temporary total disability benefits.
Summary
21. For the reasons stated above, I conclude that Claimant has failed to establish his
entitlement to temporary partial disability benefits for either of the periods claimed.
22. As Claimant has failed to prevail on his claim for benefits, he is not entitled to an award
of costs or attorney fees.
18
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for temporary
partial disability benefits for the period from February 6, 2011 through April 10, 2011 and/or for
the period from December 18, 2011 through February 12, 2012 is hereby DENIED.
Dated at Montpelier, Vermont this 19th day of February 2014.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

Robert Ryan v. Dale Martin, Ronald Martin, Martin Brothers Trucking (November 19, 2009)

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

Robert Ryan v. Dale Martin, Ronald Martin, Martin Brothers Trucking (November 19, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Ryan Opinion No. 44-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Dale Martin, Ronald Martin
and Martin Brothers Trucking For: Patricia Moulton Powden
Commissioner
State File No. X-04332
OPINION AND ORDER
Hearing held in Montpelier on June 5, 2009
Record closed on July 8, 2009
APPEARANCES:
Thomas Nuovo, Esq., for Claimant
Frank Talbott, Esq., for Defendants Dale Martin and Martin Brothers Trucking
ISSUE PRESENTED:
To what workers’ compensation benefits is Claimant due as a result of his March 25, 2006 work injury?
EXHIBITS:
Claimant’s Exhibit 1: First Report of Injury
Claimant’s Exhibit 2: Wage Statement
Claimant’s Exhibit 3: Interim Order of Benefits
Claimant’s Exhibit 4: Claimant’s calculation of outstanding benefits due
Claimant’s Exhibit 5: Copies of checks paid by Ronald Martin
Claimant’s Exhibit 6: Dr. White Independent Medical Evaluation, June 20, 2008
Claimant’s Exhibit 7: William Farrell, Ph.D. psychological evaluation, January 10, 2009
Claimant’s Exhibit 8: Summary of medical costs
Claimant’s Exhibit 9: Medical records and bills
Claimant’s Exhibit 10: Fee agreement
Defendant’s Exhibit A: Invoice book
Defendant’s Exhibit B: Summary of invoices for 2007
Defendant’s Exhibit C: 2007 IRS Form 1099
Defendant’s Exhibit D: 2007 IRS Form 1040
Defendant’s Exhibit E: Copies of checks paid by Ronald Martin
2
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendants were his employers as those terms are defined in Vermont’s Workers’ Compensation Act.1
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s Compensable Injury, Subsequent Treatment and Permanent Impairment
3. Claimant began working for Defendants as a truck driver in 1994. On March 25, 2006 he was operating a tractor-trailer truck in the course of his employment when he lost control of the vehicle and hit a tree. Claimant fractured both of his ankles in the accident. His wife, who was accompanying him at the time, suffered a severe head injury and later died.
4. Claimant actively treated for his ankle fractures with Dr. Foerster, an orthopedic surgeon, throughout the summer of 2006. By July 2006 he had made gradual progress with physical therapy and was fully weight-bearing on both feet. Dr. Foerster anticipated at that time that Claimant would be able to return to work by September 2006.
5. Dr. Foerster last treated Claimant for his work-related injuries on October 19, 2006. At that visit he reported that Claimant’s ankles were still sore and intermittently swollen, but that his progress had reached a plateau. Dr. Foerster determined that no further treatment was necessary for Claimant’s physical injuries and therefore released him to return only on an as-needed basis.
6. Dr. Foerster noted in his October 19, 2006 record that Claimant appeared to have emotional issues related to the accident for which psychological counseling might be appropriate. Claimant never sought psychological treatment, however, apparently due to financial constraints.
1 In her April 29, 2009 Ruling on Claimant’s Motion for Summary Judgment, the Commissioner determined that Defendants Dale Martin and Martin Brothers Trucking were precluded from defending Claimant’s claim on the grounds that they were not his employer on the date of injury, but rather that Claimant was working solely for Ronald Martin. Based on Defendants’ own prior admissions, both before the Department and in Superior Court enforcement proceedings, all three Defendants are jointly considered to be Claimant’s employer.
3
7. Claimant later reported that as a result of the accident he avoided driving a truck for almost two years. He experienced anxiety, a rapid heart rate, racing thoughts and intrusive memories of his wife sitting in the passenger seat. Ultimately Claimant overcame these issues and in July 2008 he returned to full-time truck driving work.
8. At the referral of Defendant Ronald Martin’s attorney, Claimant underwent an independent medical evaluation with Dr. George White on June 20, 2008. Dr. White determined that Claimant had reached an end medical result as of that date, and rated him with a 12% whole person permanent impairment attributable to his ankle injuries.
9. William Farrell, Ph.D., a psychologist retained by Claimant’s attorney to evaluate Claimant in January 2009, determined that Claimant suffered from chronic post traumatic stress disorder and depression as a result of the accident. Using the Colorado rating scale, Dr. Farrell determined that Claimant suffered a 5% whole person permanent psychological impairment attributable to the March 2006 accident.
Claimant’s Concurrent Employment
10. Concurrent with his employment for Defendants, since 2004 Claimant also was involved in a small pallet sales business. Claimant operated this business from a facility known as “the mill,” which was located on Defendants’ property. Claimant had contracted to pay Defendants $300 monthly as rent for the use of this facility, but failed to do so after July 2004.
11. No evidence was produced as to Claimant’s specific job responsibilities in conjunction with the pallet business prior to the March 2006 truck accident. After the accident, there is evidence that at some point in the fall of 2006 Claimant resumed his activities at the mill, but again few details were provided as to his duties there. At a minimum, it appears that he spent some time at the facility monitoring his partners’ work. He also received telephone orders and prepared payment invoices from his home office.
12. On his 2007 federal income tax return Claimant declared a net profit from the pallet business of $4,397.00. Claimant testified that this amount was consistent with what the business had generated annually since its inception in 2004. Specifically, Claimant testified that his net profit from the business was approximately the same after his March 2006 accident as it had been before.
13. The pallet business closed in June 2007.
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Defendants’ Workers’ Compensation Benefit Payments
14. Defendants were uninsured for workers’ compensation at the time of Claimant’s injury. Initially they did not file a First Report of Injury. Instead, Claimant initiated his claim for benefits in June 2006 by filing a Notice of Injury and Claim for Compensation (Form 5) with the Department.
15. On July 27, 2006 the Department issued an Interim Order against Defendants. The Order noted that Claimant had provided evidence both of his injury and of his employment, and that Defendants had failed to produce any evidence in dispute. Accordingly, the Order mandated that Defendants immediately commence paying temporary total disability benefits at Claimant’s compensation rate of $463.77 weekly. The Order also mandated that Defendants pay all causally related medical bills.
16. Even before the Department’s Order issued, on March 30, 2006 Defendant Ronald Martin began making weekly payments to Claimant and/or on his behalf.2 Defendant Martin testified that he did so “to carry [Claimant] through, to help him” while he was injured.
17. In all, from March 30, 2006 through February 1, 2007 Defendant Ronald Martin made weekly payments totaling $18,808.41. He testified that he stopped making payments both because he could no longer afford to do so and because he frequently had observed Claimant’s vehicle at the mill by that point and presumed that he was working at his pallet business again.
18. Defendant Ronald Martin did not increase Claimant’s weekly payments to account for the July 1, 2006 cost of living adjustment. Nor did he file the required Notice of Intention to Discontinue Payments (Form 27) with either the Department or with Claimant prior to discontinuing Claimant’s weekly checks.
19. Claimant has received no permanent partial disability benefits, nor have Defendants paid any of his causally related medical bills. He does not dispute that his temporary total disability ended on or about June 20, 2008. Dr. White declared him to be at end medical result as of that date, and Claimant returned to full-time work shortly thereafter.
20. There is no medical evidence specifically releasing Claimant to return to work, in either a full- or modified-duty capacity, at any time prior to Dr. White’s end medical result date. Even if Dr. Foerster’s July 2006 note, which recommended a September return to work date, is interpreted as a specific release, there is no evidence that Defendants notified Claimant thereafter that he was obligated to seek suitable work.
2 As he had done when issuing Claimant’s paycheck prior to his injury, Defendant Martin issued two checks weekly – one directly to Claimant, and one to the Office of Child Support on his behalf.
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CONCLUSIONS OF LAW:
1. The claimant in a workers’ compensation claim has the burden of establishing all of the facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). Once the claim is accepted and benefits are paid, however, the burden shifts to the defendant to establish a sufficient basis for terminating compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974); Chamberlain v. Kinney Drugs, Opinion No. 18-08WC (May 9, 2008).
2. There can be no doubt here but that Defendants accepted Claimant’s claim. They produced no evidence to dispute either the injury or its causal relationship to employment, and they began making weekly indemnity payments within days, even before the Department’s Interim Order mandated that they do so. The burden is squarely on them, therefore, to establish both the proper basis and the proper procedure for discontinuing benefits.
Claimant’s Entitlement to Temporary Total Disability Benefits
3. The undisputed evidence establishes that Claimant was temporarily totally disabled from March 26, 2006 at least until sometime that fall. Defendants assert that Claimant resumed working at his pallet business at that point, but the evidence in support of that claim is woefully deficient. There is no indication as to what, specifically, Claimant was doing there, nor is there any indication that he was paid wages, as opposed to profits, for his activities. Profits from a business are not the equivalent of wages. Hotaling v. St. Johnsbury Trucking Co., 153 Vt. 581, 584 (1990). The mere fact that Claimant’s business generated profits during that time does not prove that he had returned to work. Absent additional evidence establishing specifically that Claimant had a work capacity and was employed, this does not provide a sufficient basis for terminating his temporary disability benefits.
4. Nor does Dr. Foerster’s July 2006 recommendation that Claimant return to work in September provide sufficient grounds for Defendants to have terminated Claimant’s benefits. Putting aside whether Dr. Foerster’s note would have been adequate substantively, procedurally Defendants failed to follow the requirements of Workers’ Compensation Rule 18.1000. They failed to notify Claimant either of his obligation to seek work or of their intention to discontinue benefits when he allegedly failed to do so.
5. The only appropriate basis for discontinuing Claimant’s temporary disability benefits is Dr. White’s June 20, 2008 end medical result determination. Claimant testified that he returned to full-time work shortly thereafter and therefore does not dispute that it was appropriate for his temporary disability benefits to terminate at that time. I agree.
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6. Claimant’s period of temporary total disability, therefore, ran from March 26, 2006 through June 20, 2008. Defendants owe a total of $37,477.18 for this period, calculated as follows:
• For the period from March 26, 2006 through June 30, 2006, a total of 13.85 weeks at $463.77, or $6,423.21;
• For the period from July 1, 2006 through June 30, 2007, a total of 52 weeks at $475.36, or $24,718.72;
• For the period from July 1, 2007 through June 20, 2008, a total of 50.86 weeks at $494.37, or $25,143.66;
• Less credit for temporary disability benefits already paid, totaling $18,808.41.
7. Had Defendants maintained workers’ compensation insurance, as the law clearly obligated them to do, and had this claim been properly adjusted, their responsibility to pay temporary disability benefits very well might have ended sooner. Perhaps an adjuster knowledgeable in workers’ compensation would have secured a release to return to work from Claimant’s treating doctor, and would have notified Claimant of his obligation to search for suitable work. Perhaps he or she would have followed up on the recommendation that Claimant undergo treatment for his psychological issues, such that he might have recovered sooner. Perhaps there would have been a more specific inquiry into Claimant’s activities at the pallet business. Perhaps a vocational rehabilitation counselor would have been assigned to assist in the return-to-work process. For the fact that none of these steps were ever taken Defendants have only themselves to blame.
Claimant’s Entitlement to Permanent Partial Disability Benefits
8. As for permanent partial disability benefits, the undisputed evidence establishes that Claimant suffered a 12% whole person permanent impairment referable to his physical injuries. This equates to 48.6 weeks of benefits, a total of $24,959.53, calculated as follows:
• For the period from June 21, 2008 through June 30, 2008, a total of 1.4 weeks at $494.37, or $692.12;
• For the period from July 1, 2008 through May 27, 2009, a total of 47.2 weeks at $514.14, or $24,267.41.
9. Claimant also has been rated with a 5% permanent impairment referable to his psychological injuries. Defendants assert that these injuries relate primarily to the loss of Claimant’s wife, who was a passenger in his truck at the time of the accident. Because there was no evidence that her presence in the truck was serving any business purpose in conjunction with Claimant’s employment, Defendants argue that Claimant’s psychological injury claim is not compensable.
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10. Defendants cite no legal authority in support of their position, and I find it unconvincing. Claimant was injured, both physically and psychologically, as a result of an accident that occurred while he was fulfilling the duties of his employment for Defendants. The fact that his wife was accompanying him at the time does nothing to negate this causal relationship. Claimant need establish nothing more in order to be entitled to benefits for his permanent psychological impairment.
11. Claimant’s 5% permanent psychological impairment equates to 20.25 weeks of benefits, a total of $10,705.19, calculated as follows:
• For the period from May 28, 2009 through June 30, 2009, a total of 4.8 weeks at $514.14, or $2,467.87;
• For the period from July 1, 2009 through October 17, 2009, a total of 15.45 weeks at $533.16, or $8,237.32.
Claimant’s Medical Bills
12. Defendants also are obligated to pay for all reasonably necessary medical services and supplies causally related to treatment of Claimant’s accident-related injuries. Claimant has produced evidence establishing a total of $18,236.39 in billed medical services. It is unclear, however, whether Claimant paid any or all of these bills, whether some or all remain outstanding, and whether the charges submitted have been audited against the workers’ compensation medical fee schedule. Defendants are liable for the audited amounts, either to Claimant or to his providers.
Defendants’ Entitlement to Offset for Unpaid Rent
13. Defendants seek an offset for the amount of Claimant’s unpaid rent on the mill property from August 2004 until June 2007 against whatever workers’ compensation benefits they are determined to owe. Again, Defendants cite no legal authority for this claim. In fact, it runs directly counter to the provisions of 21 V.S.A. §682, which provide for liens to be approved against a claimant’s workers’ compensation benefits only in favor of medical providers and attorneys. It is not for me to decide whether and to what extent Claimant owes Defendants back rent; other legal forums exist for that purpose. In this forum, Defendants are not entitled to any set-off.
14. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $89.07 and attorney fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute, 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, Defendants are hereby ORDERED to pay:
1. Temporary total disability benefits in the amount of $37,477.18;
2. Permanent partial disability benefits in accordance with a 12 % permanent impairment referable to Claimant’s ankle injuries, a total of $24,959.53;
3. Permanent partial disability benefits in accordance with a 5% permanent impairment referable to Claimant’s psychological injuries, a total of $10,705.19;
4. Interest on the above amounts in accordance with 21 V.S.A. §664;
5. Medical costs associated with all reasonably necessary medical services and supplies causally related to Claimant’s March 25, 2006 work injury, all as audited in accordance with the Vermont Workers’ Compensation Fee Schedule;
6. Costs totaling $89.07 and attorney fees totaling $9,000.00.
DATED at Montpelier, Vermont this 19th day of November 2009.
________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Daniel Lambert v. Caspian Arms (October 6, 2009)

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

Daniel Lambert v. Caspian Arms (October 6, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Daniel Lambert Opinion No. 39-09WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
Caspian Arms
For: Patricia Moulton Powden
Commissioner
State File No. Y-61498
OPINION AND ORDER
Hearing held in Montpelier on June 3, 2008
Record closed on July 14, 2008
APPEARANCES:
Steven Robinson, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant’s work for Defendant cause and/or aggravate his cervical condition?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit I: Medical records
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 has worked as a machine operator for Defendant since April 2006. Defendant manufactures component parts for handguns. Initially Claimant worked on a milling machine that made small parts for pistols. The work was repetitive, but not strenuous.
4. In August or September 2006 Claimant was reassigned to the CNC machine. His job entailed tightening and releasing the bolts that held the parts to be machined in place. To access the bolts, Claimant had to lean forward into the machine with his neck flexed in an awkward position for one to two minutes at a time. Claimant estimated that he repeated this procedure up to 350 times per day.
5. In January 2007 Claimant began experiencing pain in his neck, radiating into his right shoulder and arm. As time went on, the pain worsened. Claimant noticed that if he held his neck in an extended position the pain would radiate down to his hand and his right thumb would feel numb. Claimant associated these symptoms with his work on the CNC machine, but did not report any work-related injury to his foreman for fear of being sent home.
6. In mid-March 2007 Claimant took an unpaid one-week leave from work so that he could apply himself instead to a kitchen remodeling project at home. He removed old cabinets and installed new ones and also did some plumbing and electrical work. Some of the work required awkward positioning and overhead reaching. Nevertheless, Claimant testified credibly that his neck and arm pain did not worsen at all during this week, and in fact may even have abated somewhat.
7. Claimant returned to work on March 20, 2007. He did little work on his kitchen remodeling project over the next few weeks, as he was waiting for cabinets to be delivered.
8. On the morning of April 5, 2007 Claimant was working at the CNC machine. He pulled “just right” on a bolt and felt first a stabbing pain and then numbness and tingling in his right shoulder and arm. Claimant walked away, “shook it off,” and continued working. At noon, he called his primary care provider, Dr. Kellogg, and made an appointment for later that day.
9. Dr. Kellogg diagnosed cervical radiculopathy. An MRI scan subsequently confirmed cervical spondylosis, or degenerative disc disease, at C5-6 and C6-7.
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10. Cervical spondylosis is a degenerative condition characterized by bone spurs that form at the margin of the vertebral bodies in the neck. As the bone spurs take up more space, they may cause the nerve roots in the area to become impinged, which in turn can cause radicular symptoms into the upper extremities. Because spondylosis occurs as part of the natural aging process, it is a common finding among people over forty, but it is not always symptomatic. In fact, most people with evidence of bone spurs on MRI scan or x-ray do not develop symptoms, nor is it even inevitable that they will.
11. Claimant’s prior medical records document evidence of cervical spondylosis as early as 1997, when he treated for neck and left-sided radicular symptoms. Claimant suffered another episode of neck pain, again with symptoms radiating into his left arm, in 2000. X-rays taken at that time documented degenerative narrowing of the disc spaces at both C5-6 and C6-7. Later, in 2002 Claimant experienced another episode of left-sided neck and arm pain associated with a work injury at his prior employment. Each of these episodes resolved with conservative treatment and home exercise. After concluding physical therapy for the last injury in May 2002, Claimant did not seek any medical treatment for neck pain until the episode now under consideration.
12. This time Claimant’s symptoms radiated from his neck into his right arm, and this time they did not resolve adequately with conservative care. Ultimately Claimant was referred for further evaluation and treatment to Dr. Phillips, a neurosurgeon, who surgically decompressed the C6 nerve root in April 2008. As of the date of the formal hearing, Claimant was very pleased with his post-surgical progress and was progressively improving. Although he was still undergoing physical therapy, he was confident that he would soon be released to return to work.
13. Dr. Phillips testified that Claimant’s work for Defendant involved the type of repetitive neck, shoulder and arm movements that were likely to irritate his C6 nerve root and cause his underlying spondylosis to become symptomatic. Thus, while Dr. Phillips acknowledged that Claimant had a pre-existing degenerative condition in his neck, in his opinion but for his work for Defendant Claimant would not have developed the symptoms that he did beginning in January 2007. These symptoms culminated in the April 5, 2007 episode and eventually required surgical treatment.
14. Dr. Phillips acknowledged that the kitchen renovation project Claimant undertook in March 2007 may have required him to work in awkward positions, to reach overhead and to perform other tasks that potentially could have been the cause of his symptoms thereafter. Dr. Phillips noted, however, that Claimant had been complaining of symptoms in his neck and right arm well before he began remodeling his kitchen, that his symptoms actually seemed to abate somewhat while he was so engaged, and that they suddenly worsened again while he was at work on the CNC machine. With these observations in mind, Dr. Phillips concluded that Claimant’s work for Defendant was the more probable cause of his symptoms.
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15. At Defendant’s request Claimant underwent an independent medical evaluation with Dr. Ensalada in August 2007. Dr. Ensalada concurred with the diagnosis of Claimant’s treating physicians – cervical spondylosis with C6 radiculopathy – and acknowledged as well that the treatment Claimant had undergone, including Dr. Phillips’ surgery, was reasonable. Dr. Ensalada disagreed, however, as to the causal relationship between Claimant’s work for Defendant and any aggravation or acceleration of his underlying condition. In his opinion, Claimant’s job played no role whatsoever in causing his preexisting spondylosis to become symptomatic.
16. As support for his opinion, Dr. Ensalada cited to a work risk analysis of Claimant’s job for Defendant that a licensed occupational therapist had conducted in June 2007. The therapist concluded that the tasks Claimant performed in the context of his job were not sufficiently repetitive as to be considered a risk factor for developing a repetitive strain disorder in either his right shoulder or neck. Nor did the awkward postures Claimant had to sustain qualify as risk factors in her opinion. In reaching these conclusions, the therapist referred both to an “Ergonomics Rule” apparently codified in the state of Washington and to a “2001 draft version of the Ergonomic Protection Standard.” No evidence was introduced as to the basis for either of these standards, their intended purpose or the extent to which they currently are accepted as valid.
17. Dr. Ensalada concluded that the symptoms Claimant began experiencing in January 2007 represented the natural progression of his pre-existing underlying degenerative disc disease. In Dr. Ensalada’s opinion, the most likely culprit for any aggravation or acceleration of this disease would have been the kitchen remodeling work Claimant undertook in March 2007, not his work for Defendant.
18. At Defendant’s request, in May 2008 Dr. Gennaro reviewed Claimant’s medical records and issued an opinion as to causation. Dr. Gennaro agreed with Dr. Phillips’ observation that not all patients with cervical spondylosis develop radicular symptoms. He noted as well, however, that many patients do experience symptoms absent any injury at all. Dr. Gennaro believed that to be the case here. In his opinion, it was not possible to draw a causal link between Claimant’s work for Defendant and his cervical radiculopathy. Rather, Dr. Gennaro attributed Claimant’s symptoms to the natural progression of his preexisting degenerative disc disease.
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. The parties do not dispute that Claimant already had developed cervical spondylosis long before April 5, 2007. The question is whether his work for Defendant aggravated or accelerated this condition in such a way as to result in his inability to work and need for medical treatment after that date.
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. Here, I find Dr. Phillips’ opinion to be the most credible. He adequately considered the possible reasons why Claimant’s cervical disc disease became symptomatic when it did, and reasonably explained why his work for Defendant was the most likely culprit.
5. In contrast, by its heavy reliance on ergonomic standards for its primary support, Dr. Ensalada’s causation opinion misses the mark. Such standards may establish that statistically, the risk of injury for a worker who performs a particular job task is no greater than it is for one who does not. They do not necessarily establish, however, that the cause of an injury can never be attributed to that job task. Bodies differ, and the way one body reacts to a particular task may be different from the way some, or even most, bodies react. Certainly, in appropriate circumstances standards and statistics may provide some support either for or against medical causation in the workers’ compensation context, particularly when considered along with other relevant factors that are pertinent to the issue. See, e.g., Daignault v. State of Vermont, Economic Services Division, Opinion No. 35-09WC (September 2, 2009). Standing alone, however, they may not be enough to carry the day. See, e.g., Brace v. Jeffrey Wallace, DDS, Opinion No. 28-09WC (July 22, 2009).
6. In fact, it is troublesome that Dr. Ensalada relied so heavily on ergonomic standards to discount completely the role that Claimant’s work for Defendant may have played in accelerating the course of his underlying disc disease, without conducting a similar analysis of the activities in which Claimant engaged while renovating his kitchen. I cannot ignore this gap in his reasoning, and find that it weakens his ultimate conclusion significantly.
7. I conclude, therefore, that Claimant has sustained his burden of proving that his work for Defendant aggravated, exacerbated and/or accelerated the progression of his underlying cervical disc disease to the point where he became unable to work after April 5, 2007. Defendant is responsible for temporary total disability benefits from that date forward. There being no dispute as to the reasonable necessity of the medical treatment that Claimant has undergone since April 2007, including ultimately Dr. Phillips’ surgery, Defendant also is responsible for paying the associated medical costs. Last, Defendant bears responsibility for whatever permanent impairment, if any, is determined to be causally related.
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8. Claimant has submitted a request under 21 V.S.A. 678 for costs totaling $535.96 and attorney fees totaling $9,522.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from the date these were discontinued until appropriately terminated in accordance with 21 V.S.A. §643 and Workers’ Compensation Rule 18.0000, with interest as computed in accordance with 21 V.S.A. §664;
2. Medical benefits in accordance with 21 V.S.A. §640;
3. Permanent partial disability benefits in amounts to be determined in accordance with 21 V.S.A. §648; and
4. Costs totaling $535.96 and attorney fees totaling $9,522.00 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 6th day of October 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.

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.

J. H. v. NSK Corporation (December 3, 2008)

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

J. H. v. NSK Corporation (December 3, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. H. Opinion No. 50-08WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
NSK Corporation
For: Patricia Moulton Powden
Commissioner
State File No. Y-03544
OPINION AND ORDER
Hearing held in Montpelier on August 18, 2008
Record closed on October 1, 2008
APPEARANCES:
Erin Gallivan, Esq. for Claimant
David Cleary, Esq. for Defendant
ISSUES:
1. Are Claimant’s left shoulder and arm complaints causally related to her employment and if so, to what workers’ compensation benefits is she entitled?
2. Is Claimant’s right elbow injury causally related to her employment and if so, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Video of NSK employee simulating Claimant’s work duties
Joint Exhibit III: Video of Claimant simulating her work duties
Claimant’s Exhibit A: Photograph of L-shaped desk
Claimant’s Exhibit B: Photograph of “problem desk”
Claimant’s Exhibit C: Photograph of “problem desk”
Claimant’s Exhibit D: Photograph of “problem desk”
Claimant’s Exhibit F: E-mails between Claimant and Nurse LaTour, November 2-3, 2006
Claimant’s Exhibit G: E-mail from Claimant to Nurse LaTour, November 6, 2006
Claimant’s Exhibit H: E-mails between Claimant and Nurse LaTour, November 8, 2006
Claimant’s Exhibit I: E-mail from Cindy Knapp to Willis Conklin, November 10, 2006
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Claimant’s Exhibit J: E-mails between Claimant and Nurse LaTour, November 20, 2006
Claimant’s Exhibit L: Letter from Dr. Timura to Dr. Storey, June 12, 2007
Defendant’s Exhibit 1: Transcribed interview between Claimant and Michelle Haussmann
Defendant’s Exhibit 2: Note from Dr. Timura to Claimant regarding causes of rotator cuff injuries
CLAIM:
1. Temporary partial disability benefits from September 13, 2007 until end medical result pursuant to 21 V.S.A. §646;
2. Medical benefits for treatment of Claimant’s left shoulder and right elbow pursuant to 21 V.S.A. §640;
3. Vocational rehabilitation benefits pursuant to 21 V.S.A. §641;
4. Attorney’s 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 of Defendant and Defendant was an employer within the meaning of Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant for more than fifteen years. For the past several years, her job was Data Entry/Control Clerk. Part of this job involved checking a daily transaction register against a pile of lot control sheets for accuracy. To do so, Claimant had to sort 100-150 pieces of paper multiple times into anywhere from two to fifteen piles on her desk. This part of her job took between two and four hours daily and had to be completed as soon as possible every morning.
The injury
4. Historically Claimant had worked at an L-shaped desk where she was able to spread the piles of paper comfortably within her reach. However, in April or May 2006 Claimant’s work station was changed – the L-shaped desk was removed and replaced with a smaller rectangular desk. With this new work station, Claimant could fit only seven piles of paper on the rectangular desk in front of her, and therefore had to put some piles on a small end table to the left of her desk. Claimant brought in the end table because her work station was no longer large enough to accommodate her work assignments.
5. Placement of the piles of paper on the small end table on the left required a significant reach for Claimant with her left arm. On an average day, she would have to lean over to her left with her left arm fully extended approximately 75 to 100 times.
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6. In the summer of 2006 Claimant started having pain in her left arm at the end of the work week. By the end of September 2006, the pain was occurring daily and she was taking ibuprofen several times a day. The pain would be worse by the end of work week and feel somewhat better after the weekend.
7. Claimant’s arm felt weighted down as if a toddler was pulling on it and she also had some numbness and tingling. The pain had begun to interfere with her ability to sleep. By the end of October and early November Claimant was in significant pain that interfered with her daily life.
First Report of Injury
8. In early November 2006 Claimant reported to Defendant’s “in-house” nurse, Bonnie LaTour, that she was having left arm pain that she believed was work-related. Initially, Nurse LaTour advised Claimant to see her primary care physician. However, after speaking with Human Resources personnel, Claimant realized that Nurse LaTour did not understand that she believed her pain was work-related. She informed Nurse LaTour of this fact and an appointment was scheduled with Defendant’s company doctor, Dr. Timura.
9. Although Claimant had reported her injury as work related, Nurse LaTour did not file a First Report of Injury with the Department of Labor until two and a half months later, in late January 2007. The date of injury on the First Report was back-dated to the time it was initially reported.
10. The delay in filing the First Report of Injury may have been due in part to Claimant’s own doubts as to work-relatedness. Initially, Claimant ascribed the cause of her pain to her altered work station. After meeting with Nurse LaTour and Dr. Timura, however, Claimant herself began to question whether an activity as innocuous as moving pieces of paper from one pile to another could cause an injury. Nevertheless, Claimant had experienced no prior shoulder or arm injuries, and ultimately concluded, in her own mind at least, that her work could be the only cause of her injury.
Medical Treatment
11. Claimant first saw Defendant’s company physician, Dr. Timura, on November 9, 2006. Dr. Timura received his medical degree from Tufts Medical School and is certified in internal medicine. As Defendant’s company doctor, he is experienced in evaluating the types of injuries employees there typically suffer. He also has attended a variety of seminars on both orthopedic and other types of injuries.
12. Dr. Timura diagnosed Claimant with left upper extremity pain of unclear etiology, though probably originating from her shoulder. He refrained from making any conclusion as to whether the injury was work-related until Nurse LaTour completed an ergonomic evaluation of Claimant’s work station. Nurse LaTour has attended some work shops in ergonomics, and has undertaken work station evaluations for Dr. Timura in the past.
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13. After viewing Claimant’s work station, Nurse LaTour concluded that the arm reach to the left end table was “uncomfortable” for Claimant. Therefore, she strongly recommended changes to Claimant’s desk setup. Nurse LaTour moved articles on Claimant’s desk to make additional room and suggested pulling out desk drawers in front of her to make space for sorting piles of paper. Nurse LaTour took no measurements of either the distance Claimant had to reach with her left arm or the height of her work station.
14. Despite the problems she noted with Claimant’s work station and the suggestions she made to address them, Nurse LaTour nevertheless concluded that Claimant’s shoulder problem had not been caused by repetitive reaching with her left arm over to the left end table. Nurse LaTour reported the results of her evaluation to Dr. Timura.
15. With the results of Nurse LaTour’s evaluation of Claimant’s work station in hand, Dr. Timura concluded that Claimant’s left shoulder pain was not causally related to her job duties. Dr. Timura again stated that he did not know what was causing Claimant’s pain.
16. In late November 2006 Dr. Timura referred Claimant to Dr. Whittum, an orthopedic surgeon. Claimant reported to Dr. Whittum that the shoulder and arm pain she was experiencing was caused by her work. Dr. Whittum administered a subacromial injection in her shoulder which temporarily alleviated most of her arm and shoulder pain.
17. Dr. Whittum’s opinion as to the cause of Claimant’s left shoulder pain was somewhat inconsistent. In his January 7, 2007 office note he remarked that upon his first examination of her, Claimant had stated that she believed her injury was causally related to her job duties. Dr. Whittum stated that he agreed with that assessment and on those grounds he requested that Defendant pay for the MRI he was recommending through its workers’ compensation program.
18. Following his request, however, Dr. Whittum had telephone conferences with both Nurse LaTour and Dr. Timura. Dr. Timura advised Dr. Whittum that based on Nurse LaTour’s ergonomic assessment of Claimant’s work station and job duties, he had concluded that Claimant’s injury was not work-related. Subsequently, in his January 13, 2007 note Dr. Whittum wrote that he concurred with Dr. Timura’s and Nurse LaTour’s conclusions. Notably, Dr. Whittum did not ask Claimant for further information regarding her work station or job duties before changing his opinion on the causation issue.
19. In January 2007 Claimant underwent an MRI of her left shoulder at Southwestern Vermont Medical Center. The results showed “mild undersurface hypertrophic change and some other inflammatory change in the AC joint.” The MRI did not show any rotator cuff tear, bursitis or acromial spur – all findings that later were seen on the MRI done at Dartmouth Hitchcock Medical Center.
20. Claimant continued to have pain. In March 2007 she underwent an evaluation with Dr. Joseph Kratzer, a neurologist, to determine if her pain might be related to a nerve injury. Dr. Kratzer diagnosed a left brachial plexopathy involving the left medial nerve. Based on Claimant’s description of her job duties and work station, Dr. Kratzer concluded that this problem was work-related. Claimant continued working even though her symptoms were painful.
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21. At Defendant’s request, in June 2007 Claimant underwent an independent medical evaluation with Dr. James Storey, a neurologist. Dr. Storey disputed Dr. Kratzer’s conclusion that Claimant had suffered a neurological injury. Instead, he diagnosed left-sided tendonitis, which in his opinion was not work-related.
22. Dr. Storey’s causation opinion was based in part on a video Nurse LaTour had made that purported to simulate Claimant’s paper-sorting job duty. Although Nurse LaTour had represented to Dr. Storey that the individual in the video was of the same or similar stature as Claimant, in fact it depicted a gentleman who was seven inches taller than Claimant, with what appears to be a significantly longer arm span.
23. At some later point Dr. Storey did view a video of Claimant herself at her work station, simulating the movements involved in her paper sorting task. After seeing this video, Dr. Storey stated that he could understand how Claimant could develop tendonitis from the repetitive reaching to the left that that task required. Dr. Storey testified that he still did not believe that the task involved sufficient torque on Claimant’s upper arm to cause a partial rotator cuff tear, but admitted that as a neurologist, he would defer on that issue to an orthopedist.
24. Continuing to have problems with her shoulder, and confused about whether she had a neurological or orthopedic injury, Claimant saw both a neurologist and an orthopedist at Dartmouth Hitchcock Medical Center in September 2007. The neurologist, Dr. Lawrence Jenkyn, confirmed that Claimant did not have a neurological injury but rather an overuse syndrome of her left shoulder, which in his opinion was work-related. Dr. Jenkyn took Claimant out of work for eight weeks beginning September 13, 2007 and placed her in the care of Nikki Gerwitz, PA.
25. Dr. John-Eric Bell, an orthopedic surgeon, also evaluated Claimant at DHMC. He obtained a new MRI study, which showed both bursitis and a partial rotator cuff tear. It also revealed “a slightly inferior tilt to the acromion with curved undersurface.” In Dr. Bell’s opinion, this anatomical feature should have been visible in the prior MRI done at Southwestern Vermont Medical Center, but due to the poor resolution of the images produced by the machine there it was not discernable.
26. Dr. Bell testified that people with acromial spurs on the top of their shoulders have a greater frequency of partial rotator cuff tears and other shoulder problems than do those without that anatomical feature.
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27. In March 2008 Dr. Bell performed arthroscopic surgery on Claimant’s left shoulder. After viewing her shoulder arthroscopically, Dr. Bell concluded that Claimant had suffered a partial tear of her left rotator cuff, partial subacromial bursitis, and a degenerative “slap” tear in her left shoulder – a fraying of the cartilage, or labrum, surrounding the shoulder socket. Dr. Bell determined that these injuries resulted from the repetitive reaching Claimant did with her left arm at work. In his opinion, Claimant’s need for surgery was due to wear and tear on her shoulder causally related to her long work history with Defendant and the reaching she had to do after the configuration of her work station changed in the spring of 2006. Absent evidence of a trauma, Dr. Bell found no other reason for Claimant’s condition.
28. Dr. Bell was adamant in his testimony that Claimant’s injury “more likely than not” was causally related to the amount of reaching she had to do with her left arm at work. He testified that he was not familiar with the term “to a reasonable degree of medical certainty.”
29. Following Dr. Bell’s surgery, Claimant has experienced significant relief of her left arm and shoulder pain. She has been referred to physical therapy, with a goal of twelve to twenty weeks before engaging in full active motion. There was no evidence presented at hearing that she is yet at end medical result.
30. Defendant did not present any evidence of other specific trauma or injuries that could have caused Claimant’s shoulder to be injured. Defendant noted that Claimant did some lifting when her mother moved in 2007 and also did some raking in the summer of 2006. There was some evidence that Claimant had to ice her shoulder after these events, but there is no evidence that either of these incidents necessitated medical treatment.
31. At some point after she stopped using her left arm at work, Claimant’s right elbow began to bother her. Physician’s Assistant Gerwitz diagnosed Claimant with right elbow epicondylitis, causally related to the overuse that resulted when Claimant was instructed not to use her left arm. Claimant’s right elbow pain resolved with physical therapy, and no further treatment was advised.
32. Claimant was terminated from her employment with Defendant on September 13, 2007 due to her work limitations.
33. Claimant testified that she liked her job, and did not want to leave Defendant’s employment. She kept working for a full year even though she was experiencing a significant amount of pain. She only stopped working when Dr. Jenkyn advised her to do so. Thereafter, she tried to return to work but was terminated by Defendant due to her physical limitations. Claimant did not submit any testimony as to either her job search efforts or employment thereafter.
34. There was no evidence submitted that Claimant was dishonest or did not testify accurately. Nurse LaTour corroborated that Claimant was honest and agreed that there was no reason to doubt the accuracy of Claimant’s description of her work duties.
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CONCLUSIONS OF LAW:
1. It is the claimant’s burden to establish all facts essential to support a workers’ compensation claim. In order to do so, he or she must establish a medical condition arising out of and in the course of employment. Goodwin v Fairbanks, Morse and Co., 123 Vt. 11 (1963).
2. Sufficient competent medical evidence must be admitted verifying 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. 592 (1989).
3. As in the instant case, when the causal connection is obscure and a lay person would have no well-grounded opinion as to causation, there must be expert medical testimony to sustain the burden of proof. Jackson v True Temper Corporation, 151 Vt. 592 (1989).
4. Claimant argues that when her work station was changed in the spring of 2006, she had to stretch beyond her normal reach almost a hundred times daily in order to complete the paper sorting task involved in her job. There are conflicting medical opinions as to whether this work-related activity caused her left shoulder and right elbow injuries.
5. 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).
6. I find Dr. Bell’s opinion to be the most credible in this case. Not only was he Claimant’s treating physician, but as an orthopedic surgeon he fully understood the unique physiology of Claimant’s shoulder, particularly the anatomical defect in her acromion, and how the types of movements her work tasks required of her, when superimposed on that anatomy, likely caused her injuries. Dr. Bell reached his conclusions as to causation after having viewed Claimant’s shoulder surgically and therefore having confirmed the findings of the higher quality MRI taken at Dartmouth Hitchcock Medical Center. All of these factors combine to make his opinion the most persuasive.
7. In contrast, the causation opinions propounded by the other medical experts are problematic. Although Dr. Whittum is an orthopedic surgeon, his opinion is somewhat tainted by the fact that he relied on the poorer quality MRI taken at Southwestern Vermont Medical Center, which did not reveal any of the findings apparent on the MRI that Dr. Bell reviewed. It is troubling, furthermore, that Dr. Whittum apparently changed his causation opinion based solely on Dr. Timura’s and Nurse LaTour’s assertions that Claimant’s work station and job tasks did not cause her injury, without investigating further what the basis of these assertions was and whether Claimant might have provided further illumination on the matter. His conclusion is rendered less credible as a result.
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8. As for Dr. Storey, he admitted that as a neurologist he would have to defer to an orthopedic expert as to the causation of what ultimately was determined to be an orthopedic injury. On those grounds, his opinion must be discounted as well.
9. Defendant argues that Claimant’s injury must have occurred between the dates of the two MRI examinations because the later one showed the rotator cuff tear when the first one did not. This argument is unpersuasive. The first MRI was of such poor quality that it showed almost nothing. In particular, it did not even depict the peculiar formation of Claimant’s acromion, a finding that even Defendant’s expert agreed was anatomical and therefore must have existed all along. It is far more likely than not, therefore, that findings revealed on the later MRI were not “new” per se, merely more observable because of the higher quality images produced by a better MRI scan.
10. Defendant also argues that Dr. Bell’s use of the “more likely than not” standard for his opinion as to causation rather than the “reasonable degree of medical certainty” standard is problematic. I find no reason to conclude that Dr. Bell’s use of the standard with which he was more familiar necessarily means that the standard typically used in workers’ compensation matters has not been met. There is nothing magical about using one phrase over the other unless the expert intends that such a distinction be made.
11. I find, therefore, that Claimant has sustained her burden of proving that her left shoulder injuries were causally related to her work station and job activities, and that therefore she is entitled to workers’ compensation benefits.
12. As to Claimant’s right elbow epicondylitis, the medical evidence substantiates that this condition resulted from her treating physician’s instruction that she not use her left arm, which in turn precipitated an overuse injury in her right elbow. Thus, I find this injury to be compensable as well.
13. The evidence establishes that Claimant reached an end medical result for her right elbow injury following a course of physical therapy. As to the left shoulder injury, however, Claimant has not yet reached an end medical result. Depending on her job search efforts and employment after Defendant terminated her, Claimant may be entitled to temporary disability benefits. Insufficient evidence was submitted from which to fashion an award of these or other workers’ compensation benefits, however, including permanency and/or vocational rehabilitation benefits. Claimant is left to her further proof on these issues, which can be addressed through the informal process if necessary.
14. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,625.00 and attorney’s fees totaling $14,328.00. 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 that they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby ORDERED to pay:
1. Workers’ compensation benefits causally related to Claimant’s compensable left shoulder injury, in amounts to be proven in accordance with Conclusion of Law 13 above;
2. Medical benefits related to Claimant s compensable left shoulder and right elbow injuries; and
3. Costs in the amount of $2,625.00 and attorney’s fees in the amount of $14,328.00.
DATED at Montpelier, Vermont this 3rd day of December 2008.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

L. G. v. Chittenden County Transportation Authority (November 25, 2008)

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

L. G. v. Chittenden County Transportation Authority (November 25, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. G. Opinion No. 48-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Chittenden County For: Patricia Moulton Powden
Transportation Authority Commissioner
State File No. Y-55221
OPINION AND ORDER
Hearing held in Montpelier on August 1, 2008
Record closed on September 15, 2008
APPEARANCES:
Richard Cassidy, Esq. for Claimant
Jason Ferreira, Esq. for Defendant
ISSUES PRESENTED:
1. Is Claimant at end medical result for her November 9, 2006 low back injury and if so, to what permanency benefits is she entitled?
2. Is Claimant’s left shoulder injury compensable and if so, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Deposition of Susan LaBarge, R.P.T., taken on July 22, 2008
Claimant’s Exhibit 1: Deposition of Philip Davignon, MD, taken on May 15, 2008
Claimant’s Exhibit 2: Curriculum vitae, Philip Davignon, MD
Claimant’s Exhibit 3: Report of Dr. Davignon, July 2, 2007
Claimant’s Exhibit 4: Employee’s Incident Report, November 9, 2006
Claimant’s Exhibit 5: Employee’s Statement of Injury Facts, November 24, 2006
Claimant’s Exhibit 6: Concentra Health Services medical records
Claimant’s Exhibit 7: Physical therapy records
Claimant’s Exhibit 8: Hand drawing (not to scale) of angle of lift platform tilt
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Defendant’s Exhibit A: Curriculum vitae, John Johansson, D.O.
Defendant’s Exhibit B: Letter from Graydon Wilson to Dr. Davignon, June 22, 2007
Defendant’s Exhibit C: Concentra “Presenting Problem Information” questionnaire, November 9, 2006
Defendant’s Exhibit D: Report of Dr. Johansson, April 14, 2007
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
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
FINDINGS OF FACT:
1. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
2. At all times relevant to these proceedings Claimant was an employee and Defendant was an employer as defined in Vermont’s Workers’ Compensation Act.
3. Claimant is 34 years old and resides in Plattsburgh, New York. Beginning in 2004 she was employed by Defendant as a bus driver in Burlington, Vermont.
Claimant’s Work-Related Injury
4. On November 9, 2006 Claimant was using an elevator platform to off-load a wheelchair-bound passenger from the bus she drove. The passenger was a large man, and including both his wheelchair and the duffel bag he held on his lap, Claimant estimated his total weight to be more than 350 pounds.
5. The platform jammed as Claimant was lowering it to street level. She tried several times to get it to descend properly, but without success. Finally the platform tilted downward. Afraid that the passenger would roll or fall forward, Claimant pulled both him and his wheelchair back onto the bus. As she did so, she immediately felt back pain.
6. After reporting the incident to the Assistant Manager of Operations, Claimant ended her route and was instructed to go to Concentra Health Services for medical treatment.
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Claimant’s Medical Treatment
7. Claimant treated initially with Dr. Richard Pembrook. On her patient intake form she complained of pain in her middle to lower back on both the right and left sides. Dr. Pembrook diagnosed a lumbar strain. He restricted her from bus driving, prescribed ibuprofen and instructed her to begin intensive physical therapy immediately.
8. Claimant’s pain worsened overnight. She returned to Dr. Pembrook the following day. Although she continued to complain primarily of back pain, Dr. Pembrook also noted some tenderness “up in the interscapular region,” a reference to the area in Claimant’s upper back between her shoulder blades. Notwithstanding this notation, however, Dr. Pembrook maintained the diagnosis of lumbar strain. As treatment, he prescribed a narcotic pain medication and a heating pad.
9. Claimant maintained during her testimony that she complained of left shoulder pain to her doctors throughout her treatment history. However, none of the many professionals with whom she treated noted shoulder pain until almost two months after her injury.
10. Specifically, throughout November and December 2006 Claimant treated with numerous primary care providers at Concentra, including Drs. Mercia and Waldman. She underwent two courses of physical therapy, one with Eduardo Plantilla and one with Susan LaBarge, and also was evaluated by Dr. John Peterson, an osteopath. None of these providers’ notes make any mention whatsoever of left shoulder pain. All of their reported findings were consistent with Dr. Pembrook’s initial diagnosis of lumbar strain. Some noted positive Waddell’s signs, possibly indicating a psychological component to Claimant’s pain. At least one provider also noted that Claimant voiced additional pain complaints in her hips and knees.
11. In addition, Claimant herself failed to make any mention of left shoulder pain in the “Employee’s Statement of Injury Facts” form she completed for Defendant on November 24, 2006.
12. The first report of left shoulder pain documented in the medical records was on December 20, 2006 when Claimant saw Dr. Elizabeth White. Dr. White reported that Claimant recently had experienced some left shoulder pain and right inguinal discomfort while undergoing physical therapy. Dr. White diagnosed Claimant with lumbar strain, shoulder strain and inguinal ligament strain. She concluded that Claimant’s left shoulder pain “likely” was due to physical therapy.
13. Susan LaBarge, the physical therapist with whom Claimant treated beginning in late November 2006, questioned Dr. White’s conclusion that Claimant’s shoulder pain “likely” was due to physical therapy. Ms. LaBarge testified that Claimant did not complain of shoulder pain at any point during her therapy. The physical therapy treatment notes confirm that testimony.
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14. In January 2007 Claimant asked that her care providers at Concentra begin treating her for a left shoulder injury. Dr. Waldman questioned the causal relationship between her shoulder complaints and the work injury. He noted that Claimant now was wearing a splint for right wrist pain and complained of right groin tenderness as well. Dr. Waldman suggested that Claimant might be exhibiting signs of a “chronic pain syndrome.” Certainly Claimant’s pain complaints were confusing. Initially she appeared to be focused on her left shoulder, but many of the subsequent symptoms she reported were on her right side.
15. Throughout Claimant’s treatment for the lumbar strain that was diagnosed following the November 2006 work injury, it was never suggested that anything but conservative treatment was necessary for Claimant’s back injury. As of the formal hearing, no further treatment has been recommended for this injury.
16. Delores Burroughs-Biron at Concentra also treated Claimant. Dr. Burroughs-Biron diagnosed Claimant with chronic lumbar strain, groin strain and a “questionable” shoulder injury. She observed that Claimant moved well in and out of her examination chair and noted positive Waddell’s signs as well.
17. Dr. Burroughs-Biron placed Claimant at end medical result on August 2, 2007. Neither of the independent medical evaluators who examined Claimant has disputed this determination.
18. In January 2008 Claimant returned to full-time employment as a convenience store manager in the Plattsburgh, NY area.
Claimant’s Expert Medical Opinion
19. At Claimant’s request, Dr. Philip Davignon conducted an independent medical evaluation on August 7, 2007. Dr. Davignon has retired from direct patient care and his primary focus now is conducting independent medical examinations, permanency evaluations, second opinions and records reviews. Dr. Davignon has been a licensed occupational medicine provider for more than twenty years. In addition to maintaining his own private practice, he has been associated with Fletcher Allen Health Care and the Spine Institute of New England.
20. Although Dr. Davignon essentially agreed that the primary diagnosis for Claimant’s work injury was a lumbar strain, he also concluded that her left shoulder injury most likely was causally related as well. In support of this conclusion, Dr. Davignon noted that a left shoulder injury was consistent with the mechanism of how Claimant’s work injury had been sustained, and also that there was no evidence of any other incident or injury involving the left shoulder. Dr. Davignon did acknowledge that there was a behavioral component to Claimant’s pain complaints, but also observed that her upper extremities had never been evaluated. Last, Dr. Davignon admitted that he had based his determination, at least in part, on Claimant’s subjective representations and assumed that they were true and correct.
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21. As to Claimant’s lumbar injury, Dr. Davignon did not comment on either end medical result or the extent of any permanent impairment.
Defendant’s Expert Medical Opinion
22. At Defendant’s request, Dr. John Johansson, an osteopathic physician, conducted an independent medical evaluation of Claimant on March 28, 2007. Dr. Johansson is the medical director and co-founder of the Vermont Center for Occupational Rehabilitation (VCOR) and Champlain Sports Medicine.
23. During the course of his examination, Dr. Johansson observed positive Waddell’s signs. He determined that Claimant’s pain symptoms were very exaggerated, and that her subjective complaints outweighed the objective findings.
24. Dr. Johansson stated that normally a complaint of shoulder pain from the type of injury Claimant experienced would have become evident within 72 hours to a week. In Claimant’s case, however, he observed that the medical records did not document any complaints of shoulder pain until almost two months after the work injury. Dr. Johansson noted in this regard that the interscapular pain reported by Dr. Pembrook on the day after Claimant’s work injury cannot be interpreted to refer to shoulder pain, as this area of the back is not directly related to the shoulder at all.
25. Dr. Johansson further noted that aside from her left shoulder, Claimant’s complaints were focused primarily on her right side. Last, Dr. Johansson determined from his own examination that there was nothing wrong with Claimant’s left shoulder. Considering all of these factors, Dr. Johansson concluded that Claimant’s complaints of left shoulder pain were not causally related to her work injury.
26. Dr. Johansson reevaluated Claimant on October 11, 2007. After doing so, he concurred with Dr. Burroughs-Biron’s finding of end medical result as of August 2, 2007. Dr. Johansson rated Claimant with a 2% permanent impairment referable to her low back injury.
CONCLUSIONS OF LAW:
1. Claimant asserts that she injured both her left shoulder and her low back in the November 9, 2006 work incident. As to the low back injury, she seeks permanent partial disability benefits. As to the left shoulder, she seeks a finding of compensability.
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2. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993). Sufficient competent evidence must be submitted verifying the character and extent of the injury and disability, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
Permanent Partial Disability for Claimant’s Low Back Injury
3. The medical experts agree that Claimant suffered a compensable low back injury on November 9, 2006. Both Dr. Burroughs-Biron and Dr. Johansson opined that she reached an end medical result for that injury on August 2, 2007. There is no medical evidence to refute that conclusion, only Claimant’s continued subjective complaints, which I find to be insufficient. I conclude, therefore, that the appropriate end medical result date for Claimant’s low back injury is August 2, 2007.
4. As for permanency, the only expert medical evidence produced was Dr. Johansson’s 2% whole person rating. I accept this calculation as the appropriate impairment.
Compensability of Left Shoulder Injury
5. As to the left shoulder, Claimant has the burden of establishing the causal relationship between her claimed injury and the November 9, 2006 work accident. Expert testimony is the sole means of laying a foundation for an award of compensability. Lapan v. Berno’s, Inc., 137 Vt. 393 (1970).
6. 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).
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7. In the instant case, Dr. Johansson reviewed all of the medical records, including those subsequent to his first independent medical evaluation, some of which Dr. Davignon did not review. Given the mechanism of injury, Dr. Johansson determined that had Claimant injured her left shoulder in the November 2006 work incident, she would have felt symptoms there within a short period of time thereafter. Yet none of the many physicians who saw Claimant during the six-week period after her work injury noted any symptoms indicative of a left shoulder injury. This fact renders Claimant’s testimony that she repeatedly told her doctors of her concern about her left shoulder less credible. Although it is conceivable that one physician could fail to note the left shoulder injury, it is not conceivable that four or five doctors would fail to do so.
8. I find that the other medical opinions that arguably establish causation are flawed. Dr. White’s assumption that Claimant’s left shoulder symptoms resulted from her participation in physical therapy was contradicted by the physical therapist herself, whose testimony I find credible. As for Dr. Davignon, his opinion suffers from too great a reliance on Claimant’s subjective statements, and does not adequately account for the lack of corroboration in the medical records themselves.
9. Thus, viewing the medical record as a whole, and based as well on Dr. Johansson’s credible testimony, I find that Claimant has failed to meet her burden of proving that her left shoulder injury was causally related to the November 9, 2006 work accident.
10. As Claimant has prevailed on her claim for permanency benefits for her low back injury, she is entitled to an award of only those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). As for attorney’s fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of her allowable costs and attorney’s fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits for her left shoulder injury is DENIED. As for the low back injury, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with a 2% whole person impairment referable to the spine, commencing as of the date of end medical result, August 2, 2007;
2. Medical benefits covering all reasonably necessary medical services and supplies related to treatment of Claimant’s low back injury;
3. Interest on the above in accordance with 21 V.S.A. §664; and
4. Costs and attorney’s fees in accordance with Conclusion of Law 10 above.
DATED at Montpelier, Vermont this 25th day of November 2008.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

P. P. v. State of Vermont, Office of the Attorney General (February 1, 2008)

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

P. P. v. State of Vermont, Office of the Attorney General (February 1, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. P. Opinion No. 01-08WC
By: David J. Blythe, Esq.
v. Contract Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Office of the Attorney General Commissioner
State File No. J-22042
FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER
I. INTRODUCTION
Claimant’s case effectively consists of determining which medications Claimant has been prescribed or is currently being prescribed in connection with her work-related injury are compensable. Claimant also seeks an award of attorney’s fees and costs associated with this aspect of her claim.
II. HEARING
This matter came on for final evidentiary hearing on May 10, 2007 before David J. Blythe, Hearing Officer and designee of the Commissioner of Labor for this case. Claimant was present and was represented by Attorney Heidi Groff. Defendant State of Vermont was represented by Attorney Keith J. Kasper. At the hearing, Claimant presented her testimony and Defendant presented witness testimony from William Boucher, MD and Coleman Levin, MD (both by telephone).
III. FINDINGS OF FACTStipulated Facts and Judicial Notice
The parties stipulated to the following facts, which are here FOUND and which are here incorporated essentially as presented as paragraphs 1 through 8 in a written Stipulation dated May 10, 2007 (“Stipulation”) by the parties:
1. Claimant suffered a compensable work-related injury on May 1, 1996.
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2. On January 18, 2000, the parties came to a Form 14 Settlement Agreement leaving open medical benefits, including prescriptions, causally related to her work-related injuries.
3. On April 31[sic], 2003, Defendant filed a Form 27 discontinuing payment of medical benefits for all of Claimant’s treatments except for pool therapy and Oxycontin.
4. On February 7, 2005, The Department [of Labor] issued an interim order requiring retroactive payment of the following medications: Morphine Sulfate, Effexor, Methylin Omeprazole and Aspirin.
5. Subsequently Defendant voluntarily agreed to pay for additional medications based upon the expert opinions it had received in this matter.
6. Remaining at issue in this case is Claimant’s request for payment for the following medications: Amantadine, Trileptal, Kepra, Methylphenidate (Ritalin), Clonazepam, Lorazepam, Hydroxycholoquine (Plaquenil), Omeprazole (Prilosec), Lasix and Klor-con.
7. Claimant seeks payment for these outstanding contested medications (repayment to Claimant for the retail cost and she will reimburse her primary health insurer, Cigna directly), and, if successful, an award of attorney’s fees and costs.
8. The parties agree to the submission of the following exhibits:
Joint Exhibit No. 1 Relevant medical records
Joint Exhibit No. 2 Preservation testimony of Dr. John Matthew, MD
9. At the hearing, Defendant conceded the compensability of the following medications: Topomax, Pregabalin (a.k.a Lyrica), Tegretal, Flouxetine (a.k.a Prozac) and Miralax/Glycolax.
10. The Commissioner takes judicial notice of the fact and content of all forms filed by either party with the Department prior to the time and date of the hearing.
Additional Findings of Fact
11. On May 1, 1996, Claimant injured her back while in the employ of the Defendant and in connection with her employment-related activities (the workplace injury). There is no dispute as to whether this is a compensable injury. In addition to her back injury, Claimant suffers from depression related to her workplace injury. Stipulation.
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12. Claimant worked for Defendant for approximately ten years between 1990 and 2000 as an administrative assistant. She left Defendant’s employ in 2000 due to pain from her workplace injury. Claimant’s testimony.
13. At the time of the workplace injury, Claimant had several pre-existing medical conditions, including obesity, hypertension, diabetes mellitus, urinary urge and stress incontinence, gastrointestinal distress, hypothyroidism and edema. Exhibit 1, Dr. Levin’s report dated May 10, 2006.
14. John Matthew, MD has been Claimant’s primary treating physician for more than one year. He is board-certified in internal medicine and has been treating patients for over thirty four years. He frequently treats patients for chronic pain. Dr. Matthew has reviewed Claimant’s medical records, including records provided to him by other medical providers, in connection with his treatment of Claimant and with his testimony. Exhibit 2 at 3-6.
15. Dr. Matthew and Dr. Levin both testified that prescribing medications to treat chronic pain and its related conditions frequently involves a trial-and-error process in order to determine which medications, or combinations of medications, will offer a patient (including patients such as Claimant) the best treatment. Id. at 16-17; Dr. Levin’s testimony.
16. Claimant has undergone two invasive surgical procedures and continues to receive epidural blocks at three to four month intervals. Prior to the date of the hearing, the last epidural block was received in February 2007. Claimant’s testimony.
17. Claimant’s current (as of the date of the hearing) medical problems/conditions are
(a) back pain;
(b) radicular pain in her legs;
(c) depression and sleep problems;
(d) gastroesophageal reflux disease (“GERD”);
(e) constipation;
(f) edema (swelling in her ankles); and
(g) conditions which are side-effects of the medications prescribed.
Id.; Exhibit 1 generally.
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18. Claimant testified credibly that since she left her employment with Defendant she has been unable to work due to pain and the medical problems related to the workplace injury. She is currently unable to drive an automobile. Id.
19. Currently, the only narcotic medication Claimant takes (for her chronic pain) is Oxycodone, the compensability of which is not at issue. Exhibit 2 at 11.
20. Dr. Matthew and Dr. Boucher both testified that physicians commonly prescribe medications for purposes other than those officially recognized by the United States Food and Drug Administration (“FDA”). Exhibit 2 at 37-38; Dr. Boucher’s testimony.
21. Drs. Levin and Boucher both examined medical records in connection with their testimony. Dr. Boucher conducted an independent medical examination of Claimant on April 20, 2005. Dr. Levin neither personally examined nor treated Claimant. Dr. Levin’s testimony; Dr. Boucher’s testimony.
Amantadine
22. Dr. Matthew previously had prescribed Amantadine for Claimant’s chronic pain. She is not now taking Amantadine. Exhibit 2 at 17-18.
23. Amantadine is approved by FDA as an antiviral medicine for influenza and for Parkinson’s disease. Id. at 18; Dr. Boucher’s testimony; Dr. Levin’s testimony.
24. Dr. Matthew testified he prescribed Amantadine for Claimant’s chronic pain in part because of his own experience in prescribing it and, in part, based upon advice he received from another physician (a psychiatrist) that Amantadine is helpful in treating chronic pain. Exhibit 2 at 17-19.
25. Brian A. Erickson, MD, examined Claimant on behalf of Defendant in November 2005. Dr. Erickson testified that prescribing Amantadine to augment Oxycontin (which Claimant was taking at that time) was reasonable. Exhibit 1 at 365-366.
26. Dr. Levin testified that Amantadine has no efficacy for back pain and is not medically indicated for Claimant’s condition. Dr. Levin’s testimony.
Trileptal and Kepra
27. Trileptal and Kepra are both anti-epileptic (Dr. Matthew’s characterization) or anti-convulsant (Dr. Boucher’s characterization) medications. Exhibit 2 at 12; Dr. Boucher’s testimony. Dr. Matthew also referred to them as “seizure” medications. Exhibit 2 at 12.
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28. Claimant had previously been prescribed and had taken a number of anti-seizure medications, including Clonazepam, Tegretol, Topomax and Neurontin. Id.
29. Dr. Matthew prescribed Trileptal and Kepra to treat Claimant’s neuropathic pain, which he described as being pain which results when “something mechanically or chemically is bothering [a patient’s] nerves.” Id. at 4, 13.
30. Dr. Matthew also testified that he prescribed the Trileptal and Kepra to accompany the narcotic pain medication (presently Oxycodone). Id. at 13-14.
31. Dr. Boucher testified that Trileptal and Kepra are normally prescribed to treat seizures in adults, and that he had never seen them used to treat pain. Dr. Boucher’s testimony.
32. Dr. Levin testified that he was aware that Kepra was used in chronic pain clinics as an adjunct to other medications, but that he did not believe that anti-convulsants such as Trileptal and Kepra were necessary for the treatment of chronic pain or depression for Claimant in particular. Dr. Levin’s testimony.
33. Dr. Matthew acknowledged that Trileptal and Kepra are not approved by FDA for treatment of chronic pain, and that his prescribing them for Claimant is another “off-label” use. Exhibit 2 at 15; see Finding No. 20 above.
34. Dr. Matthew further testified that he had observed that Trileptal and Kepra have helped reduce Claimant’s pain. He also testified that there is no doubt in his judgment that anti-convulsants such as Trileptal and Kepra are effective in treating chronic pain when used as adjuncts to narcotic medications. Exhibit 2 at 16-17 and 26.
35. Dr. Matthew strongly disagreed with Dr. Boucher’s opinion (related to Dr. Matthew by counsel for Defendant during the deposition) that use of anti-seizure medications were not reasonable and necessary for Claimant’s treatment. Exhibit 2 at 15.
Methylphenidate/Ritalin
36. Methylphenidate/Ritalin is a stimulant. Dr. Matthew prescribed Methylphenidate/Ritalin as an adjunct medication to treat Claimant’s depression. Id. at 19.
37. Dr. Matthew testified that some patients being treated for depression don’t respond to other medications until a stimulant is added to the treatment regimen. Id. 19-21.
38. Dr. Boucher testified that Methylphenidate/Ritalin is a common medication for treating major depression, ADHD and narcolepsy, but is not indicated for simple depression such as experienced by Claimant. He stated that it can cause sleep
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deprivation, has the potential for addiction, and generally should only be prescribed by a psychiatrist. Dr. Boucher’s testimony.
39. Dr. Levin described Methylphenidate/Ritalin as a central nervous system stimulant which can be used in treating clinical depression, but is not indicated for chronic pain and simple depression such as experienced by Claimant. Dr. Levin’s testimony.
40. Dr. Matthew specifically testified that the addition of Methylphenidate/Ritalin to Claimant’s medication regimen helped her functional status. Exhibit 2 at 19.
Clonazepam and Lorazepam
41. Clonazepam and Lorazepam are sedatives which are prescribed to help patients sleep. Id. at 20.
42. Dr. Matthew prescribed Clonazepam and Lorazepam for Claimant because her pain keeps her from sleeping. Id. at 21-22.
43. Dr. Matthew also noted that Clonazepam has some antidepressant effect. Id.
44. Dr. Boucher testified that Clonazepam and Lorazepam are not normally used to treat depression. Dr. Boucher’s testimony.
45. Dr. Levin testified that Clonazepam and Lorazepam are normally prescribed to treat “true insomnia” but not for back pain. However, he also acknowledged that both are occasionally used as adjunctive medications in treating chronic pain. Dr. Levin’s testimony.
Hydroxychloroquine (Plaquenil)
46. Hydroxychloroquine (Plaquenil) is an anti-malarial medication which is sometimes used to treat inflammatory arthritis. Exhibit 2 at 23.
47. Dr. Matthew could not connect the use of Hydroxychloroquine (Plaquenil) to the treatment of Claimant’s conditions. Id.
48. Dr. Boucher testified that he could not see any reason to prescribe Hydroxychloroquine (Plaquenil) for Claimant’s conditions. Dr. Boucher’s testimony.
Omeprazole (Prilosec)
49. Omeprazole (Prilosec)is a medication which treats gastroesophageal reflux disease (GERD) and reflux esophagitis. Exhibit 2 at 9.
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50. Dr. Matthew has diagnosed Claimant as suffering from reflux esophagitis, but could not specifically relate that condition to her workplace injury or to the medications currently being prescribed for her compensable injuries. Id.
51. Dr. Levin testified that based upon his review of Claimant’s medical history, including records relating to her medical condition prior to the date of injury, he concluded that the reflux esophagitis is not causally related to the workplace injuries. Dr. Levin’s testimony.
Lasix and Klor-Con
52. Lasix is a diuretic which is prescribed to reduce edema (fluid build-up). Dr. Boucher’s testimony.
53. Dr. Matthew prescribed Lasix to treat Claimant’s edema in her ankles. He testified that the swelling in Claimant’s ankles was aggravated by her weight gain due to inactivity following the workplace injury. Exhibit 2 at 26-27 and 31-32.
54. Although she was obese prior to May 1996, Claimant did not take diuretics prior to her workplace injury. Id. at 32.
55. Klor-Con is a potassium supplement. Id. at 25; Dr. Levin’s testimony.
56. Dr. Matthew prescribed Klor-Con in connection with Lasix because diuretics such as Lasix cause the kidneys to “waste” potassium. Id.
57. Drs. Boucher and Levin agreed with Dr. Matthew’s description of Klor-Con and its use in connection with diuretic medications. Dr. Boucher’s testimony; Dr. Levin’s testimony.
CONCLUSIONS OF LAW
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166 (1962); Nutbrown v. Roadway Express, Opinion No. 2-93, at 4 (June 7, 1993).
2. In this case, Claimant has the burden of establishing that the proposed treatment is both causally related to the May 1, 1996 workplace injury and that the treatment is necessary and reasonable. Stevens v. Burlington Rent-All, Inc., Opinion No. 66-96 (November 20, 1996).
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3. In cases where the Commissioner must choose among conflicting medical opinions with regard to Claimant’s condition, the following factors are considered: 1) the nature of treatment and length of time there has been a patient-provider relationship; 2) whether the expert examined all pertinent records; 3) the clarity, thoroughness and objective support underlying the opinion; 4) the comprehensiveness of the evaluation; and 5) the qualifications of the experts, including training and experience. See Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
4. As Claimant’s treating physician, Dr. Matthew is in the best position to assess the efficacy of medications prescribed for the conditions for which he is treating Claimant. For those conditions causally related to the workplace injury, Dr. Matthew’s professional opinions are given considerable weight.
5. It is not unreasonable for a treating physician to try a variety of medications, and to do so in different combinations, in order to determine the best treatment of a particular compensable condition. See Finding of Fact No. 15, supra. So long as the medication bears a reasonable relationship to the condition, the cost of that medication is compensable.
6. Whether or not a particular medication is listed by FDA for the treatment of a specific medical condition, or is listed as such in any particular medical text or reference manual, is not dispositive of whether or not the cost that medication is compensable in connection with the treatment of a particular medical condition. Such listings may have evidentiary value, and if so are to be given appropriate weight by the finder of fact in determining the compensability of the cost of such medications.
7. The test of whether the cost of a particular medication is compensable is not a post-facto assessment of whether or not it actually achieved the purpose for which it was prescribed. To so require would place an unreasonable burden on a claimant or a physician, and could have the effect of discouraging a physician from trying different, but otherwise reasonable, treatment regimes in treating a compensable condition. Rather, the appropriate means of determining whether or not the cost of a particular medication is compensable is a determination of whether the prescription and use of that medication is reasonable and necessary under the circumstances of the condition and its treatment. In making that determination, the Commissioner may consider, inter alia, the evidence offered by the prescribing provider for the basis of the decision to prescribe a particular medication, the prescribing provider’s prior experience with the medication, the listed uses of the medication, any professional literature or studies relating to the medication, materials from the manufacturer or supplier of the medication, testimony from other qualified witnesses, the actual effect of the medication in a particular claimant’s case, and other evidence which the Commissioner finds relevant.
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Amantadine
8. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Amantadine is reasonable and necessary, and therefore the expense of Amantadine for the treatment of the workplace injury is compensable.
Trileptal and Kepra
9. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Trilepta and Kepra is reasonable and necessary, and therefore the expense of Trileptal and Kepra for the treatment of the workplace injury is compensable.
Methylphenidate/Ritalin
10. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Methylphenidate/Ritalin is reasonable and necessary, and therefore the expense of Methylphenidate/Ritalin for the treatment of the workplace injury is compensable.
Clonazepam and Lorazepam
11. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Clonazepam and Lorazepam is reasonable and necessary, and therefore the expense of Clonazepam and Lorazepam for the treatment of the workplace injury is compensable.
Hydroxychloroquine (Plaquenil)
12. Based upon the foregoing, Claimant has not met her burden of establishing that the prescription and use of Hydroxycloroquine (Plaquenil) is reasonable and necessary, and therefore the expense of Hydroxycloroquine (Plaquenil) for the treatment of the workplace injury is not compensable.
Omeprazole (Prilosec)
13. Based upon the foregoing, Claimant has not met her burden of establishing that the prescription and use of Omeprazole (Prilosec) is reasonable and necessary, and therefore the expense of Omeprazole (Prilosec) for the treatment of the workplace injury is not compensable.
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Lasix and Klor-Con
14. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Lasix and Klor-Con is reasonable and necessary, and therefore the expense of Lasix and Klor-Con for the treatment of the workplace injury is compensable.
Attorney’s Fees and Costs
15. Under WC Rule 10 and 21 VSA §678(a), the Commissioner, in her discretion, may award reasonable attorney’s fees to the prevailing party. Claimant’s attorney has submitted an itemized statement of services rendered showing 47.9 hours of professional services and costs of $778.27. This amount includes the fee paid to Dr. Matthew for his deposition. Dr. Matthew billed one and one-half hours of his time at the rate of $500.00 per hour. However, Rule 40 limits the awardable cost of expert witness deposition testimony to $300.00 per hour. Therefore, costs of Dr. Matthew’s deposition in the amount of $450.00 are recoverable if awarded. Under Rule 10.1210, the award for legal services rendered on an hourly basis is limited to $90.00 per hour. At the allowed rate, the fees for professional services in this case (if fully compensable) would be $4,311.00. Claimant’s total request for attorney’s fees and costs is therefore $5,089.27.
16. However, Claimant has not prevailed on all of her claims. Because the body of medical and other evidence is, in large part, common to all issues, it is reasonable and within the Commissioner’s discretion to conclude that Claimant is entitled to recover attorney’s fees in relative proportion to those claims upon which Claimant has prevailed.
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17. Claimant sought a determination that the medications prescribed and used to treat a total of seven medical conditions (some involving two medications) were compensable. Those conditions, and the respective medications, are:
Chronic pain…………………………………………………………………………..Amantadine
Neuropathic pain…………………………………………………………..Trilepta and Kepra
Depression…………………………………………………………….Methylphendine/Ritalin
Sleep problems………………………………………………..Clonazepam and Lorazepam
General pain………………………………………………Hydroxychloroquine (Plaquenil)
Gastroesophageal reflux disease………………………………..Omeprazole (Prilosec)
Edema (ankle swelling)………………………………………………..Lasix and Klor-Con
Of these seven conditions, Claimant has established the compensability of the medications prescribed and used to treat five. Therefore, Claimant is awarded five-sevenths of the requested attorney’s fees, in the amount of $3,079.29. Claimant’s request for costs in the amount of $778.27 (as calculated by Conclusion of Law No. 15 above), is granted in full.
18. On April 22, 2007, the Commissioner approved an attorney’s lien pursuant to Rule 10(2)(B) in favor of Claimant’s counsel. Pursuant to the Agreement between Claimant and Claimant’s counsel (“Agreement”), which Agreement was approved by the Commissioner when granting the lien, Claimant’s counsel may choose between the attorney’s fees awarded or 25% of the amounts awarded. Because this Order does not include calculation of the amounts actually awarded, no specific order is made as to which option under the Agreement Claimant’s counsel may exercise.
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ORDER
Based upon the foregoing, it is hereby ORDERED as follows:
1. Defendant is responsible for the payment of those medications the prescription and use of which have been found to be compensable. Those medications are: Amantadine, Trileptal, Kepra, Methylphenidate (Ritalin), Clonazepam, Lorazepam, Lasix and Klor-con. Defendant shall pay to Claimant those amounts which Claimant documents for the costs of those medications.
2. Claimant, having substantially prevailed on five of her seven claims (as determined by the Commissioner in her discretion), is entitled to an award of attorney’s fees in the amount of $3,079.29 and of costs in the amount of $778.27, both of which are reasonable.
3. Claimant is also entitled to statutory interest at the rate of 12% per annum on the amounts invoiced for those medications which are compensable, interest to accrue from the date each such invoice was payable or, in the instance in which Claimant actually paid for such medications and is seeking reimbursement, from the date upon which Claimant made such payment.
Dated at Montpelier, Vermont this 1st day of February 2008.
______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

S. D. v. Fletcher Allen Health Care (February 28, 2007)

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S. D. v. Fletcher Allen Health Care (February 28, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. D. Opinion No. 08-07WC
By: George K. Belcher
v. Hearing Officer
For: Patricia Moulton Powden
Fletcher Allen Health Care Commissioner
State File No. Y-00307
Hearing held in Burlington on January 4, 2007, and in Montpelier on January 12, 2007
Record closed on January 19, 2007
APPEARANCES:
William B. Skiff, Esq. for the Claimant
Wesley M. Lawrence, Esq. for the Defendant
ISSUE:
Did the Claimant suffer a work-related injury on June 25, 2006?
EXHIBITS:
Joint I: Medical Records
Joint II: State Forms
Joint III: First Report of Injury
Claimant’s II: Index and Medical Record
Claimant’s III: Incident Report
Claimant’s IV: Employee Report of Event
Defendant’s V: Orientation Checklist
Defendant’s VI: Claimant Letter to Department dated July 20, 2006
Defendant’s VII: Sketch of hospital bay/orthopod
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FINDINGS OF FACT:
1. The Claimant is an employee within the meaning of the Vermont Workers’ Compensation Act (Act).
2. The Defendant is an employer within the meaning of the Vermont Workers’ Compensation Act.
3. The Claimant has one dependant within the meaning of the Workers’ Compensation Act
4. The Claimant is 57 years old. He has a history of working in the security field. He has worked as a security officer at the Denver General Hospital and as an “interventionist” at Howard Mental Health. He is also a licensed private investigator and he is licensed to carry a firearm.
5. The Claimant was hired by the Defendant in November of 2005 to work as a “Security Officer One” at the Defendant’s hospital. He was hired for general security duties.
6. While on duty on Sunday, June 25, 2006, shortly after noon, the Claimant was asked to respond to a security situation by a nurse near the emergency room.
7. The Claimant responded to a room near the emergency room which held four beds. At one of the beds, a patient was being held by one of the doctors. The patient was standing, bent over forward onto the bed by the doctor holding him down from behind. The doctor passed the patient off to an Emergency Medical Technician, Heather Gibbs. Ms. Gibbs held the patient down by holding his hands behind his back.
8. The patient was being held down because he had refused to follow directions to return to his room by the doctor and he had tried to punch the doctor.
9. As the Claimant entered the room, EMT Gibbs asked him to apply handcuffs to the patient. He did not have handcuffs and was not authorized to use them.
10. While the patient was being held down on the bed, he was red-faced and swearing. Ms. Gibbs held his hands behind his back as she spoke to the patient, trying to calm him down.
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11. Another security officer, James Bona, responded to a call for security and he entered the area where the Claimant and Ms. Gibbs were with the patient. Mr. Bona found that the patient was not struggling at this time. Ms. Gibbs asked Mr. Bona if he had handcuffs. He had none. Mr. Bona was then asked to get four point restraints. He left the room and returned with straps. The patient was then put in four point restraints on the bed with his arms and legs tied to corners of the bed by the straps. Ms. Gibbs then dismissed the security officers.
12. At Fletcher Allen Health Care the security force and Emergency Room staff are trained in a system of Management of Aggressive Behavior (called “MOAB”). The MOAB system uses a “ladder of force” where levels of intervention such as verbal de-escalation, nonviolent contact, and incapacitation, are used in a progression. Four point restraints are the highest form of restraint, and handcuffs are just one level below the highest level of incapacitation.
13. Following the incident, the Claimant continued to work his shift. He completed an incident report of the intervention with the patient. (Claimant’s Exhibit 3). His right arm and shoulder hurt. During the afternoon of June 25, 2006, he told his co-worker, Michael Wells, that he had been hurt during an incident with a patient. During that evening, his shoulder was quite painful and the pain interfered with his sleep. He complained to his wife, Cynthia Delorme, that he had been injured at work and that he was in pain. On Monday morning he complained to his wife that he was still in pain. He worked on Monday. His shoulder was quite painful but he thought it would resolve.
14. On Tuesday, June 27, 2006, the Claimant was still in pain and he tried to get an appointment with his primary care doctor. When he could not get the appointment, he went to the Fletcher Allen Emergency Room and was evaluated. During this evaluation, he reported to the emergency room personnel that he was injured while at work restraining a patient. Joint Medical Exhibit, Page 500. He was referred to an orthopedic surgeon, Dr. John Lawliss. (Joint Medical Exhibit, Page 550.) He reported to medical providers on June 27, 2006, June 30, 2006, July 5, 2006, and July 12, 2006 that his right shoulder problem was the result of the incident with the emergency room patient. He claimed that he had injured his right arm and shoulder during a struggle with the patient.
15. The Claimant was treated by Rebecca Winokur, M.D. on July 5, 2006 for a suspected ruptured biceps rotator cuff tear. An MRI which was performed on July 18, 2006 showed a complete proximal biceps tear and abnormal supracpinatus and subscapularis tendons. Both of these problems (“rotator cuff pathology and biceps rupture”) were related to the work injury in Dr. Winokur’s report of July 25, 2006. Joint Medical Exhibit, Page 700.
16. The Claimant has improved without surgery and he has returned to work as of the date of the hearing.
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17. There was no medical evidence offered to contradict Dr. Winokur’s opinion that the injuries were related to the incident at work. The Defendant, instead, brought forward a number of inconsistencies and contradictions to show that the Claimant was not truthful. They are as follows.
18. The incident report filed by the Claimant on June 25, 2006 (Claimant’s Exhibit 3) did not mention the injury to the Claimant, nor does it specifically describe a violent struggle. Nowhere in the Claimant’s report does it say that the Claimant used force on the patient, other than to apply the four point restraints after the patient had been de-escalated.
19. The Claimant did not complete a report of injury to his employer until July 5, 2006, despite being instructed and trained to immediately report any personal injury suffered at work. (Defendant Exhibit 4).
20. Heather Gibbs, the EMT who was present during the incident, testified that she never saw the Claimant touch the patient and that the entire restraint of the patient was performed by herself and Dr. Stone, and, possibly, a medical student. She testified that Dr. Stone turned the patient over to her and that the Claimant had no role in the physical restraint of the patient. She also testified that the patient was fairly calm and compliant after he was persuaded by her to relax. The patient volunteered to lie on his back on the bed, in order to be restrained in four point restraints. The Claimant had no role whatsoever in this.
21. The Claimant’s testimony is in direct conflict with that of Ms. Gibbs. The Claimant testified quite clearly that he had taken physical control of the patient from Dr. Stone, saying, “I’ve got him!” The Claimant also told this to Dr. Lawliss, the treating orthopaedic surgeon, on August 29, 2006. (Page AOS 850, Joint Medical Exhibit). His testimony and his report to Dr. Lawliss were unequivocally contradicted by Ms. Gibbs. Likewise, Physician’s Assistant Brochu, who was also in the examining room when the patient was being restrained was quite clear in his testimony that he did not see Mr. Delorme struggling with the patient. Mr. Brochu testified that Mr. Delorme was not involved at all in the “pass off” of the patient to Ms. Gibbs.
22. When the second security officer, Mr. Bono, arrived, the patient was calm and not struggling. He testified that the Claimant did in fact have his hand resting on the patient.
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23. Michael Wells, a co-worker of the Claimant, testified that on the morning of July 25, 2006, (before the incident with the patient) the Claimant told him that he had hurt his shoulder while unloading a portable generator with his son while the Claimant was off duty several days before the hospital incident. The Claimant told Mr. Wells that his arm “hurt like hell.” Mr. Wells testified that the Claimant indicated that it was his right arm which was hurt. The Claimant himself admitted on cross examination that on June 21 or June 22, 2006, he was unloading a 250-pound portable generator from his pickup truck when his son lost his grip. The generator shifted, putting the full force of the generator on the Claimant. The Claimant testified that this incident caused some pain in his left arm for several hours, and then went away. The Claimant was again unequivocally contradicted by Mr. Wells, since Mr. Wells testified that the Claimant was still having pain on June 25, 2006 (two or three days after the generator incident) and that he was complaining of significant right arm pain, not left arm pain.
24. The Claimant wrote a letter to the Department on July 20, 2006 in support of his claim. In the letter he stated that he restrained a “280 pound individual.” Defendant’s Exhibit 6. The medical report of Dr. Grambling also states that the Claimant described the patient as “about 6 feet 2 inches and 280-pound” Heather Gibbs testified that the patient only weighed 180 pounds and was between 5 feet, 3 inches, and 5 feet, 5 inches. Dr. Grambling’s notes also indicate that the Claimant reported that he got the patient “flipped over onto his belly,” and yet none of the witnesses including the Claimant testified that the patient was flipped onto his stomach. Joint Medical Exhibit page 700.
25. According to the initial emergency room intake of the Claimant as a patient, the records report that he had a prior history of right shoulder injury, “torn cartilage” with cortisone injections. The Claimant denied saying this.
26. While some of the contradictions in the Claimant’s reports and claim are minor and would not impugn his overall credibility, the contradictions about the generator incident and the lack of a struggle with the patient are fatally damaging to the Claimant’s overall credibility in this matter. If he had hurt his arm and shoulder by lifting the generator several days before going to the emergency room, why would he have not told the treatment providers about that history? None of the treatment providers were told about the generator incident according to the records. Instead, they were told an embellished history of a major physical struggle with a large patient, which was not corroborated by any of the personnel who were present in the emergency room.
27. The Claimant was out of work completely for about one month. He made a slow but steady recovery and is now back to work full time.
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CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). 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 proven must be the more probable hypothesis. Burton v. Holden and Martin Lumber Co. 112 Vt. 17 (1941).
3. In this case the Claimant clearly had a medical injury and, from the medical reports, there seems to be no question that the injury of a ruptured biceps tendon and the other torn tendons could have been caused by a forceful struggle with a patient. The issue is primarily one of the credibility of the Claimant in light of the inconsistencies and contradictions in his version of the events.
4. The Defendant claims that the late report of injury (injury sustained on June 25, 2006 and not formally reported until July 3, 2006) is evidence that the injury was not incurred at work. In cases of late report of injury, the Department has evaluated the credibility of witnesses using a four-point analysis which is helpful in this case. The four questions which are to be evaluated are: First, are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? Second, does the Claimant lack knowledge of the workers’ compensation reporting process? Third, is the work performed consistent with the Claimant’s complaints? Fourth, is there persuasive medical evidence supporting causation? Seguin v. Ethan Allen, Opinion No. 28S-02 WC (2002).
5. In this case there are adequate medical records which document that the Claimant reasonably sought medical treatment as soon as it appeared that his arm and shoulder injuries were continuing to hurt and were not resolving. The medical records clearly and consistently show that the Claimant was claiming the incident as the source of his injury. Second, the Claimant was aware of the personnel policy of the Defendant and the process for reporting work related injury. His failure to report was inconsistent with his instructions to immediately report injuries. Third, the work involved in this claim of injury becomes basically a test of credibility between Ms. Gibbs and Mr. Delorme.
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6. It is not reasonable to believe that the Claimant suffered a ruptured biceps during a struggle with a patient as described by Ms. Gibbs because she testified that there was no struggle between the Claimant and the patient. The Claimant’s version of his involvement in the struggle with the patient is also significantly contradicted by Physician’s assistant Brochu (who testified that the Claimant was not in the room when he and Dr. Stone left the room). Likewise, it is not supported by his own incident report made on the same day as the incident.
7. The Claimant’s testimony that the generator incident was minor and that his left arm might have hurt for only several hours, is directly contradicted by Mr. Wells. He testified that the Claimant’s right arm “hurt like hell” from the generator incident, even on the morning of June 25, 2006, before the altercation with the patient. It appears that the Claimant was having significant pain from the generator incident not just “several hours” after the incident but several days after the incident.
8. Where the reports of a claimant are suspect and incredible, the medical opinions which are based upon them may lack the soundness to support an award. See Bowen v. E. F. Wall, Opinion No. 17-04 WC (April 20, 2004) (where claimant’s report of incident were so variant that physicians’ opinions concerning causation were discounted). Virtually all the medical reports which address causation in this case between the incident in the emergency room and the biceps and rotator cuff injuries are based upon the Claimant’s subjective reports to the physicians. Nowhere do these records reflect that the Claimant reported to the examiners the previous generator-lifting incident.
9. Because of the Claimant’s lack of credibility, the inconsistencies in his claim, and the strong possibility that his injury was incurred while he was off duty (which possibility was not refuted or considered in the medical evidence), it would be speculation to determine that his injuries occurred at work. The Claimant has not met his burden of proof.
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ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant’s claim for workers’ compensation benefits, including attorney’s fees and costs is DENIED.
Dated at Montpelier, Vermont this 28th day of February 2007.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. Sec. 670, 672.

T. B. v. University of Vermont

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

T. B. v. University of Vermont
STATE OF VERMONT
DEPARTMENT OF LABOR
T. B. Opinion No. 42-08WC
v. By: Phyllis G. Phillips, Esq.,
Hearing Officer
University of Vermont
For: Patricia Moulton Powden,
Commissioner
State File No. X-05627
OPINION AND ORDER
Hearing held in Montpelier on June 23rd, June 25th and July 18th, 2008
APPEARANCES:
Todd Schlossberg, Esq., for Claimant
Stephen Ellis, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for the compensable work-related injury she suffered on March 6, 2006 and if not, to what additional workers’ compensation benefits is she entitled?
2. Did Claimant suffer compensable injuries to her right elbow and/or hand causally related to her employment for Defendant, and if so, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Claimant’s Exhibit 4: July 15, 2005 First Report of Injury
Claimant’s Exhibit 5: Photographs of buffer
Claimant’s Exhibit 6: Photographs of floor cleaner
Claimant’s Exhibit 7: Photographs of vacuum cleaner and mops
Claimant’s Exhibit 8: Photographs of salt boxes
Claimant’s Exhibit 9: Photographs of entrance
Claimant’s Exhibit 10: Photographs of staircase
Claimant’s Exhibit 11: Curriculum Vitae, Jonathan Fenton, D.O.
Claimant’s Exhibit 12: Curriculum Vitae, John Macy, MD
Claimant’s Exhibit 13: Deposition of Adam Shafritz, MD taken on June 12, 2008
Claimant’s Exhibit 14: Curriculum Vitae, Adam Shafritz, MD
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Claimant’s Exhibit 15: Curriculum Vitae, Rayden Cody, MD
Claimant’s Exhibit 16: DVD, Dr. Levy IME 8/7/07
Defendant’s Exhibit A: Notice of Intent to Change Health Care Provider, March 16, 2007
Defendant’s Exhibit B: Notice of Intention to Discontinue Payments, approved 4/20/07
Defendant’s Exhibit C: Deposition of Gabrielle Mikula taken on June 12, 2008
Defendant’s Exhibit D: Deposition of Richard Morrison, MD taken on June 12, 2008
Defendant’s Exhibit E: Deposition of Cheryl Laskowski taken on June 10, 2008
Defendant’s Exhibit F: Deposition of William Farrell taken on August 25, 2006
CLAIM:
Temporary 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
FINDINGS OF FACT:
1. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
2. 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.
3. Claimant and her husband are Bosnian immigrants. They resided in Sarajevo during the Bosnian War, and emigrated to the U.S. in 1997. Both are now U.S. citizens. Claimant’s husband is proficient in English, but Claimant is not.
4. Claimant began working as a housekeeper for Defendant in 2001. Her job duties included mopping, waxing and buffing floors, vacuuming carpets, dusting, washing and other general cleaning activities.
5. On March 6, 2006 Claimant injured her right shoulder while lifting boxes of ice-melting salt at work. Claimant testified that she felt slow, gradual pain in her right chest and shoulder when she lifted the first box, and then a sudden, severe pain that “felt like it took my breath away” when she lifted the second box.
6. Claimant reported her injury to her supervisor, who completed a First Report of Injury form on March 8, 2006, stating “As she [was] lifting box of salt she felt pain at her right shoulder.”
7. Defendant accepted the claim for what it determined to be a “right shoulder strain” and began paying workers’ compensation benefits accordingly.
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Claimant’s Pre-Injury Medical History
8. In December 2001 Claimant was involved in a motor vehicle accident. She suffered injuries to her lower back, left shoulder, neck and left leg. Claimant also was diagnosed with post-traumatic stress disorder causally related to the collision. Ultimately Claimant and her husband recovered $198,000 in the personal injury litigation arising from the accident.
9. Claimant continued to complain of diffuse low back, neck, left shoulder and left arm pain for years after the motor vehicle accident. Her treating providers appear never to have pinpointed the exact source of her pain, particularly with respect to her left shoulder and neck symptoms. Many pointed to the language barrier as a complicating factor in terms of their ability to understand the nature of her complaints. It is likely that Claimant’s post-traumatic stress disorder also played a role in perpetuating her chronic pain symptoms. Claimant never was deemed an appropriate surgical candidate, and attempts at conservative therapy, including injections, physical therapy, psychological counseling, osteopathic manipulation and pain medications, all proved largely ineffective in addressing her symptoms. Despite her ongoing complaints of pain, however, for the most part Claimant continued to work throughout this period.
10. Claimant’s treatment providers consistently noted that her symptoms following the motor vehicle accident were confined entirely to her left side and did not include any right-sided neck, shoulder or arm pain. Claimant was continuing to treat for these left-sided symptoms at the time of the March 2006 work injury, and for some time thereafter as well.
11. In addition to the residual symptoms from her motor vehicle accident, in 2003 Claimant also began experiencing pain and numbness in her left wrist, hand and fingers. Electrodiagnostic studies revealed moderately severe left carpal tunnel syndrome, for which Claimant underwent endoscopic release in January 2004. Defendant accepted this injury as causally related to Claimant’s work, and paid workers’ compensation benefits accordingly.
12. At the time her left carpal tunnel syndrome was diagnosed, electrodiagnostic studies revealed mild carpal tunnel syndrome on the right as well. This condition was asymptomatic, however, and therefore was not treated.
13. In July 2005 Claimant reported to her supervisor that she felt pain and numbness in her right arm while vacuuming and mopping. The supervisor completed a First Report of Injury, but noted that Claimant did not seek medical treatment for these symptoms.
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Claimant’s Post-Injury Medical Treatment
14. Claimant continued to work following the March 6, 2006 lifting injury and did not seek medical treatment until days later. When she did, she presented to the Emergency Room on March 11, 2006 complaining of sharp right-sided chest and shoulder pain that she reported had begun “after lifting [a] heavy box of salt at work.”
15. Initially Claimant was diagnosed with cervical, thoracic and right shoulder muscle strain/sprains causally related to the lifting incident. Her symptoms did not respond to conservative treatment, however, and instead worsened and became more diffuse. Claimant complained of pain and weakness throughout her right shoulder and tightness in her neck. At times she was noted to have reduced range of motion, although this finding was not consistent. Claimant treated conservatively for these symptoms throughout 2006 and 2007.
16. Claimant also continued to complain of pain and numbness in her right elbow and hand. Electrodiagnostic studies completed on March 30, 2006 revealed nerve entrapments at both the wrist and the elbow. The medical evidence does not support any causal relationship between these entrapments and the March 6, 2006 lifting injury. Rather, Claimant’s medical providers reason that these symptoms were causally related to her repetitive use of heavy floor-cleaning machinery at work.
17. According to her treating physicians, Claimant has been unable to work since March 13, 2006.
18. In many respects, the progression of Claimant’s right-sided symptoms mirrored the progression of left-sided symptoms she had experienced following the 2001 motor vehicle accident. As had been the case before, furthermore, Claimant’s right-sided symptoms were as resistant to conservative treatment as her left-sided symptoms had been. Physical therapy, pain medications and injections all were ineffective at alleviating her symptoms.
19. In October 2007 an MRI study of Claimant’s right shoulder revealed a tear in her labrum. On March 20, 2008 she underwent arthroscopic surgery to repair the lesion, which was surgically diagnosed as a large Type II superior labrum anterior-posterior (SLAP) tear.
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20. Dr. John Macy, an orthopedic surgeon, performed the surgical repair of Claimant’s SLAP tear. Dr. Macy specializes in shoulder surgery and is the only fellowship-trained shoulder surgeon practicing in Vermont. Dr. Macy testified that he “feels very strongly” that Claimant’s SLAP tear was caused by the March 6, 2006 work-related lifting injury. In support of his opinion, Dr. Macy cited the following facts:
(a) The mechanism of injury – a sudden heavy overload to the shoulder caused by lifting – was consistent with a resulting SLAP tear;
(b) The symptoms Claimant experienced immediately after the incident, which Dr. Macy described as a “pop or snap” followed by deep-seated pain in the shoulder, decreased range of motion and weakness, all are classic signs of a SLAP tear;
(c) Claimant had no prior medical history indicating a pre-existing SLAP tear; and
(d) There is no evidence of any intervening event between the March 6, 2006 lifting incident and Dr. Macy’s discovery of the SLAP tear that might have caused such an injury to occur in the interim.
21. Both the medical records and Claimant’s testimony generally establish the facts relied upon by Dr. Macy in support of his opinion, with the possible exception of his description of Claimant’s symptoms as constituting “classic” evidence of a SLAP tear. In particular, the medical records do not substantiate Dr. Macy’s assertion that Claimant described feeling a “pop or snap” while lifting on March 6, 2006.
22. Claimant’s treating physicians all agree now that Claimant most likely suffered a SLAP tear on March 6, 2006 which remained undiagnosed until revealed via arthroscopic surgery. They cite numerous reasons why the tear was not discovered earlier. First, they note that clinical testing for labral tears often yields variable results, such that the only “gold standard” for diagnosing a tear conclusively is to view the shoulder arthroscopically. In addition, Claimant’s clinical presentation was complicated both by her language barrier and by the extreme muscle guarding she exhibited, which often precluded a thorough physical examination of her shoulder. Last, Claimant did not fit the profile of the typical SLAP tear patient, in that she was not engaged in the athletic-type throwing activities that most commonly give rise to such an injury.
23. Defendant’s expert medical witnesses agree that Claimant suffered a SLAP tear, but disagree that it was caused by the March 6, 2006 lifting incident. Drs. Backus, Levy and Nowak all opined that neither Claimant’s report of her symptoms immediately following the March 2006 incident nor her clinical picture thereafter reasonably support the existence of such a tear prior to the October 2007 MRI study. All concluded, therefore, that there must have been some intervening event, albeit unidentified, that caused the tear to occur.
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24. Drs. Backus, Levy and Nowak contend that Claimant suffered a muscle strain/sprain as a result of the March 6, 2006 lifting incident. Dr. Backus’ ultimate diagnosis was a cervical-brachial pain syndrome, which can cause referred pain from the neck and shoulder into the forearm. Dr. Backus concluded that Claimant had reached an end medical result for this injury at least by the time of his independent medical examination on August 10, 2006. Beyond that, Dr. Levy, a neurologist, found signs of “abundant symptom magnification” during his subsequent examination of Claimant, which Defendant’s psychiatric expert, Dr. Kelly, interpreted as evidence of deliberate malingering.
25. As of the date of the formal hearing, Claimant was continuing to recover from the March 2008 surgery and has not yet been determined to be at end medical result. Both Claimant and her husband testified that since the surgery Claimant has increased mobility in her shoulder. Dr. Macy’s most recent office note reflects that Claimant still complains of pain in her shoulder, but that her recovery is proceeding essentially as expected. The physical therapy notes document similar progress.
26. As for Claimant’s right elbow and wrist pain, treatment of the nerve entrapments found in the March 30, 2006 electrodiagnostic studies largely has been deferred pending her recovery from Dr. Macy’s shoulder surgery and further resolution of her shoulder symptoms. Notably, Claimant’s elbow and wrist symptoms have not improved despite being off work for more than two years. During that time, Claimant’s medical providers occasionally have remarked on repetitive non-work-related activities that reasonably might be aggravating her symptoms, such as rolling dough and vacuuming at home.
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 dispute between the parties here involves a question of medical causation. Claimant’s medical experts contend that she suffered a labral tear in the March 6, 2006 lifting incident, for which she continues to treat and as a result of which she is unable to work. In contrast, Defendant’s experts assert that the labral tear did not occur in March 2006 but rather was caused by some unspecified subsequent event, not work-related, for which it bears no responsibility. Defendant contends that the injuries Claimant did suffer as a result of the March 2006 lifting incident – either a muscle strain/sprain and/or a cervico-brachial pain syndrome – have since resolved and that therefore it owes no additional workers’ compensation benefits beyond what it already has paid.
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3. This claim presents a frustrating reminder that medical science often is inexact, particularly with respect to forensic determinations of causal relationship. Symptoms do not always progress in textbook fashion, clinical tests do not always yield consistent results, and a patient’s recovery does not always proceed linearly. It is not surprising that well-qualified medical experts may have widely divergent opinions as to causal relationship.
4. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003). With these factors in mind, the key question is which expert medical opinion is the most credible? Bonenfant v. Price Chopper, Opinion No. 13-07WC (May 8, 2007).
5. As to the causal relationship between Claimant’s labral tear and the March 6, 2006 lifting incident, I find that Dr. Macy’s opinion is the most credible. As the only fellowship-trained shoulder specialist in Vermont, his qualifications are unassailable. His theory of causation is adequately supported by the medical records, and what outlying facts there might be are not so significant as to fatally undermine his conclusions.
6. In contrast, Defendant’s expert opinions rely either on the existence of some unspecified intervening event to account for Claimant’s labral tear or on conscious, deliberate malingering to explain her ongoing complaints. I find the former explanation too speculative to accept, and the latter one unsupported by the totality of the evidence, including Claimant’s credible demeanor at the formal hearing.
7. I conclude, therefore, that Claimant has sustained her burden of proving that the March 6, 2006 work injury caused her to suffer a labral tear in her right shoulder, for which she continues to treat and as a result of which she continues to be temporarily totally disabled.
8. Claimant has not sustained her burden of proof as to the causal relationship between her work activities and her right elbow and wrist neuropathies, however. The more credible medical evidence establishes that had these conditions been work-related, Claimant’s symptoms would have abated once she stopped working in March 2006. The fact that they did not abate at all, but rather progressed, is convincing evidence that they were not caused by Claimant’s work activities. Other non-work-related factors must have acted to perpetuate and aggravate them.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs and attorney’s fees. An award of costs to a prevailing claimant is mandatory under the statute. As for attorney’s fees, these lie within the Commissioner’s discretion. As Claimant has substantially prevailed, I find that an award of both costs and attorney’s fees is appropriate. Pursuant to 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this decision within which to submit her claim for such fees and costs.
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ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Ongoing temporary disability benefits causally related to Claimant’s right shoulder labral tear until she either reaches an end medical result or returns to work, whichever occurs first, in accordance with 21 V.S.A. §§642, 643 and 643a;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s right shoulder labral tear, in accordance with 21 V.S.A. §640;
3. Additional workers’ compensation benefits, including permanent partial disability benefits and/or vocational rehabilitation benefits, proven to be causally related to Claimant’s right shoulder labral tear;
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs and attorney’s fees in an amount to be determined based on Claimant’s submission in accordance with Conclusion of Law No. 9 above.
6. Claimant’s claim for workers’ compensation benefits causally related to the nerve entrapments at her right elbow and wrist is hereby DENIED.
DATED at Montpelier, Vermont this 24th day of October 2008.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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