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Kathryn Lopez v. The Howard Center (August 7, 2014)

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Kathryn Lopez v. The Howard Center (August 7, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Kathryn Lopez Opinion No. 12-14WC
v. By: Jane Woodruff, Esq.
Hearing Officer
The Howard Center For: Anne M. Noonan
Commissioner
State File No. FF-51946
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 24, 2014
Record closed on June 16, 2014
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s right upper extremity injury arise out of and in the course of her
employment?
EXHIBITS:
Claimant’s Exhibit 1: Three photographs of the exterior of Claimant’s townhouse
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to
this claim.
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Claimant’s Duties
3. Claimant has worked as a case manager for Defendant for the past 17 years. She carries a
caseload of between 30 and 32 clients, all of whom suffer from a major mental illness.
She provides supportive counseling to help her clients remain in the community.
Claimant sees her clients both in their homes and at her place of work.
4. Claimant has an office on the first floor of Defendant’s premises on Flynn Avenue in
Burlington, Vermont. She enters the building through a rear door. The public enters
through a different door, which opens into a lobby. The public normally cannot gain
further access to the inner offices where Claimant’s office is located. Entry to that area
is via a locked door with a key code that is only available to Defendant’s employees.
However, Claimant credibly testified that at times clients have discovered what the code
is, which necessitates a code change.
5. Claimant does not meet with her clients in her office, nor do the two colleagues with
whom she shares office space. There are rooms specially designated for client meetings
in the area behind the key-coded door. Claimant testified credibly that at times clients
will mill about the hallway outside her office unsupervised, waiting either for their
caseworker or for an appointment.
6. Claimant self-directs her daily schedule and every day presents her with a different mix
of duties. Defendant allowed her discretion to decide how to best assist and counsel her
clients.
Client Resource Materials
7. Claimant credibly testified that Defendant permitted her to use its funds to purchase
resource materials that would assist her work with her clients. Typically these materials
included self-help books and compact discs, which Claimant would lend to clients who
she thought would benefit from them. Claimant kept the more expensive books and CDs
at her home to protect them from theft at the office.
8. Claimant credibly testified that she was not aware of any policy, written or otherwise,
whereby Defendant mandated that the resource materials were to be kept on its premises.
Claimant’s supervisor, Cathy Cashman, and Ms. Cashman’s supervisor, Elaine Soto, both
corroborated this testimony.
Claimant’s Trip Home
9. On August 12, 2013 Claimant went about her workday as usual. She saw clients at her
office in the morning and had appointments scheduled into the afternoon. At noontime
she realized that she had forgotten a book at home that she wanted to loan to her 1:00 PM
client. As she only saw this client every other week and he was in what Claimant
credibly described as “a crisis,” she decided to return to her home to retrieve the book.
The use of this book was part of her treatment plan for this client. I find Claimant’s
testimony credible.
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10. Claimant also had a client scheduled for 12:30 PM that day; however, she had reason to
believe that client might not keep the appointment. At 12:15 PM she told the secretary
she needed to run an errand and she might be a little late for her 12:30 PM appointment.
At that point she left Defendant’s premises to retrieve the resource book from her home.
I find this testimony credible.
11. Claimant traveled directly to her home from work. She ran no other errands on the way,
nor did she stop to have lunch at her home. Her sole reason for returning home was to
retrieve the book for her client. She entered her townhouse, got the book and
immediately put it in her vehicle. Being security conscious, before she left to return to
work, she wanted to make sure her townhouse was locked. Claimant was credible in this
testimony in all regards.
12. Claimant left her vehicle to check her door. As she opened it, her dog escaped into the
backyard. Knowing that time was of the essence, she thought she could lure her dog
inside with a ball. She went up on her deck to retrieve a ball. As she hurried to the top of
the stairs and across the deck, her feet got tangled in a hammock. Claimant lost her
balance and fell very hard into her sliding glass door. She credibly testified that she spent
only a matter of minutes at her home before she fell.
13. Claimant knew she was hurt seriously, as she could not feel her right arm and shoulder.
She called 911 and was taken to the hospital. Claimant sustained a spiral fracture of her
humerus, which was surgically repaired that same night. Thereafter, she underwent
physical therapy and acupuncture. Her physical therapy was ongoing at the time of the
formal hearing.1
14. Defendant did not discipline Claimant in any way, either for returning home to retrieve
the book or for safekeeping resource materials at her home.
CONCLUSIONS OF LAW:
1. To establish a compensable claim under Vermont’s workers’ compensation law, a
claimant must show both that the accident giving rise to his or her injury occurred “in the
course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161
Vt. 213, 214 (1993); 21 V.S.A. §618.
2. An injury occurs in the course of employment “when it occurs within the period of time
when the employee was on duty at a place where the employee was reasonably expected
to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215,
quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
1 Claimant was temporarily totally disabled from work from August 12, 2013 until the middle of November 2013.
The parties are not litigating either the reasonableness of Claimant’s medical treatment or her time out of work.
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3. An injury arises out of the employment “if it would not have occurred but for the fact that
the conditions and obligations of the employment placed claimant in the position where
[claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1
Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called
“positional risk” analysis lays responsibility on an employer when an employee’s injury
would not have occurred “but for” the employment and the worker’s position at work.
Id.
4. Putting these two prongs of the compensability test together, the “in the course of”
requirement establishes a time and place connection between the injury and the
employment, while the “arising out of” requirement establishes a causal connection
between the injury and the employment. See Walbridge v. Hunger Mountain Co-op,
Opinion No. 12-10WC (March 24, 2010), citing Spinks v. Ecowater Systems, WC 04-217
(Minn. Work.Comp.Ct.App., January 21, 2005). Both connections are necessary for a
claim to be compensable. Carlson v. Experian Information Solutions, Opinion No. 23-
08WC (June 5, 2008).
The “In the Course Of” Prong
5. Defendant argues that Claimant was under no work-related duty to retrieve the resource
book from her home, during the lunch hour, away from Defendant’s premises. For these
reasons, Defendant asserts that Claimant has failed to satisfy the first half of the
compensability test.
6. A key component of what constitutes an employee’s work-related “duty” is whether the
activity benefits the employer. If it does, then it fits within the parameters of the term,
even if the employer did not specifically direct the employee to undertake the activity.
Kenney v. Rockingham School District, 123 Vt. 344 (1963).
7. In this case, Claimant managed cases and delivered direct services to Defendant’s clients.
She self-directed her schedule and more important, she used her discretion to decide how
best to counsel her clients. All of her clients had some diagnosis of a major mental
illness. In her approach to case management, she lent resource materials to clients who
she believed would benefit from that type of service. Here, she reasonably concluded
that retrieving a book from home would assist a client in crisis, and in that way would
benefit her employer as well. At least initially, her trip home thus occurred within a
period of time when she was on duty at a place where she was reasonably expected to be
while fulfilling the duties of her employment contract. Miller, supra.
8. Generally speaking, an employee is not within the scope of employment when he or she
is injured while traveling to and from work, unless the injury occurs on the employer’s
premises. Miller, supra at 216. There is an exception to this rule, however, in cases
involving traveling employees – those who either have no fixed place of employment or
who are engaged in a special errand or business trip at the time of their injuries. 1 Lex K.
Larson, Larson’s Workers’ Compensation §17.01 et seq. (Matthew Bender Rev. Ed.). As
Claimant was engaged in a special errand to retrieve the resource book, she falls within
this exception.
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9. There is as well, however, an exception to the exception. If a traveling employee
deviates substantially from a journey’s business purpose in order to pursue personal
interests instead, an injury sustained during the deviation will no longer be deemed to be
within the course of employment. Estate of Rollins v. Orleans Essex Visiting Nurses
Assn., Opinion No. 19-01WC (June 5, 2001); Larson’s, supra at Chapter 17, p. 17-1.
10. The inquiry does not end there, however. Not every personal deviation will justify a
denial of workers’ compensation coverage. Rather, the question in each case is whether,
under all the circumstances, the deviation is substantial enough to take the worker out of
the course and scope of his or her employment. Estate of Rollins, supra. Factors bearing
on this question include:
(1) The amount of time taken up by the deviation;
(2) Whether the deviation increased the risk of injury;
(3) The extent of the deviation in terms of geography; and
(4) The degree to which the deviation caused the injury.
Id.; see generally, Larson’s Workers’ Compensation, supra; Estate of Carr v. Verizon
New England, Opinion No. 08-11WC (April 29, 2011).
11. Applying these concepts in this case, the question becomes, did Claimant deviate so
substantially from the business purpose of her trip as to remove her actions from the
course and scope of her employment, first when she decided to check to make sure her
door was locked, and subsequently, when she fell while attempting to lure her dog back
inside?
12. Considering the first and the third factors, Claimant’s deviation took place over only a
matter of minutes, and covered only the distance from her car to her front door, and then
to her deck. In terms of both time and geography, I conclude that it was not substantial.
13. As for the second factor, the deviation occurred solely on Claimant’s property, an area
that presumably she knew well. She did nothing to increase the risk of injury, as might
have been the case, for example, had her dog strayed into a busy street rather than into
her yard. Hers was a momentary diversion, insubstantial in terms of risk. See Larson’s,
supra at §17.06[3] and cases cited therein. I conclude that the second factor favors
compensability.
14. As to the fourth and final factor, I conclude that Claimant’s deviation did play a role in
causing her injury. By the time she ran up onto her deck to retrieve the ball for her dog,
the business purpose for her trip home had ended. Had she not deviated, she would not
have fallen. That the deviation played a role in causing her injury is inescapable. See,
e.g., Ogren v. Bitterroot Motors, Inc., 222 Mont. 515 (1986) (deviation directly caused
injury where, after business purpose for employee’s trip had ended, he travelled on to
pick up his daughter and then fell asleep while driving through the night), cited with
approval in Estate of Rollins, supra.
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15. Given the particular facts of this case, I conclude nonetheless that Claimant’s failure to
satisfy the fourth prong of the “course of employment” test is not fatal to her claim. The
nature and extent of her deviation as a whole was temporally brief, geographically short
and reasonable under the circumstances. Considering all four factors together, it was not
substantial. For that reason, I conclude that it did not take her out of the course of her
employment.
The “Arising Out Of” Prong
16. Defendant next asserts that Claimant’s injuries did not arise out of her employment.
Given that it did not specifically direct the manner in which Claimant delivered services
to her clients, it argues first, that it did not require her to travel home to retrieve the book
she wanted for her 1:00 PM client, and second, that she could have brought the book in at
another time.
17. As the Supreme Court noted in Shaw, supra at 598, ordinarily if an injury occurs in the
course of employment, it also arises out of it, “unless the circumstances are so attenuated
from the conditions of employment that the cause of the injury cannot reasonably be
related to the employment.” That is not the case here.
18. To satisfy the requirements of the “arising out of” prong, a causal connection must exist
between an employee’s injury and his or her work; not necessarily in the sense of
proximate or direct cause, but rather as an expression of origin, source or contribution.
Snyder v. General Paper Corp., 152 N.W.2d 743, 745 (Minn. 1967); see, Shaw v. Dutton
Berry Farm, 160 Vt. 594, 597-98 (1993) (overruling Rothfarb v. Camp Awanee, Inc., 116
Vt. 172 (1950), and characterizing tort-type proximate causation in the workers’
compensation context as narrow, unduly restrictive and contrary to the remedial purpose
of the statute).
19. Vermont has long adhered to the “positional risk” doctrine in interpreting and applying
the “arising out of” component of compensability. Miller, supra at 214, citing Shaw,
supra at 599. Under Vermont law, an injury arises out of the employment “if it would
not have occurred but for the fact that the conditions and obligations of the employment
placed claimant in the position where [claimant] was injured.” Id., quoting Larson’s,
supra at §6.50 (emphasis in original). Phrased alternatively, the positional risk doctrine
asks simply whether an injury would or would not have occurred but for the claimant’s
employment and his or her position at work. Shaw, supra.
20. In this case, the conditions and obligations of Claimant’s employment included providing
counseling and support services in a manner that she directed. In reasonably exercising
the discretion Defendant afforded her as to how best to provide these services, Claimant
found it necessary to retrieve a book from home in order to share it with a client in crisis.
Had she delayed doing so, it would have been to her client’s detriment, and by extension,
to Defendant’s as well. Were Claimant to have raced home on her lunch hour to play
with her dog, her activities would not have merited workers’ compensation coverage.
But because her actions were necessitated by her job responsibilities, it is appropriate to
consider her subsequent injury as having arisen out of her employment.
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Summary
21. I conclude that Claimant has sustained her burden of proving that her injury arose out of
and in the course of her employment with Defendant. Thus, her August 13, 2013 injuries
are compensable.
22. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs
and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days
from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Temporary total disability benefits from August 12 , 2013 through November 15,
2013 in accordance with 21 V.S.A. §642, with interest as calculated in accordance
with 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally
related to treatment of Claimant’s right upper extremity injury, in accordance with
21 V.S.A. §640; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21
V.S.A. §678.
DATED at Montpelier, Vermont this 7th day of August 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.

L. R. v. Fletcher Allen Health Care (January 4, 2007)

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

L. R. v. Fletcher Allen Health Care (January 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. R. Opinion No. 57-06WC
By: Margaret A. Mangan
v. Hearing Officer
Fletcher Allen Health Care For: Patricia Moulton Powden
Commissioner
State File No. W-03811
Hearing held in Montpelier on October 17, 2006
Record closed on November 20, 2006
APPEARANCES:
William B. Skiff, II, Esq., for the Claimant
Stephen D. Ellis, Esq., for the Defendant
ISSUES:
1. Is the treatment Claimant has received after she was placed at maximum medical improvement compensable?
2. If this is a compensable claim, what degree of permanent partial impairment is due?
EXHIBITS:
Joint I: Medical Records
Claimant:
1. Form 2 6/13/05
2. Form 2 5/23/05
3. Form 25 1/3/05
4. Interim Order
Defendant:
A Letter from Staff Attorney 3/24/06
B Department’s Referral to Hearing Notice
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STIPULATED STATEMENT OF UNCONTESTED FACTS:
1. Claimant is an employee within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. Fletcher Allen Health Care (FAHC) is an employer within the meaning of the Act.
3. Claimant has no dependents within the meaning of the Act.
4. On November 14, 2004, Claimant suffered an injury while in the employ of FAHC.
5. At the time of her injury, Claimant was making $23.60 per hour.
6. Claimant’s average weekly wage for the twelve weeks prior to the injury was $981.44.
7. Claimant’s compensation rate as of December 6, 2004 was $654.45.
FINDINGS OF FACT:
1. Claimant is a CT scan technician at FAHC. Her daily routine includes preparing for a scan, starting intravenous fluids, injecting dyes, and sliding or lifting patients to and from the table.
2. In November 2004, Claimant worked four ten-hour days per week, including one weekend a month.
3. During a particularly busy weekend shift in November 2004, Claimant left work with neck and arm pain and numbness in her hands. She assumed the symptoms would resolve. However, when the symptoms persisted, she sought care from Dr. Pierre Angier on November 19, 2004.
4. On examination, Dr. Angier noted “some weakness of the right bicep and the right grip strength” and some diminished sensation in the C5-6 distribution (in the arm and thumb side of the hand). He diagnosed “cervicalgia with right upper extremity pain and paresthesias consistent with bulging or herniated disk” and he released Claimant to work in a sedentary capacity until rechecked. Later that day Susan Anderson, a Physician’s Assistant, also examined Claimant, noting tenderness at the trapezius and top of shoulder. Carpal tunnel testing was negative. Ms. Anderson diagnosed right upper extremity overuse strain.
5. A November 19, 2004 MRI revealed central disc protrusions at C2-3, C5-6, C6-7, with the most prominent at C6-7. The C6 nerve supplies the forearm and the radial (thumb) side of the hand; stimulation from C7 goes to the middle finger.
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6. In late November 2004, Claimant was referred for physical therapy with Heather Berg who identified specific goals for Claimant. They were: 1) to abolish right upper extremity radicular symptoms; 2) to decrease neck pain by 75% or more; 3) that she would be able to resume full duty work and sleep consistently without neck and arm pain; 4) that her upper back strength would be five out of five and right shoulder range of motion would reach normal limits. Time set for the goals was six to eight weeks.
7. By January 10, 2005 Claimant was back to her regular 10-hour shift with continued light duty restrictions.
8. On January 17, 2005, Claimant reported to Dr. Angier that she was having very little pain and stiffness in her neck. Range of motion was free. The doctor detected no spasm or tenderness.
9. Claimant then went to the Austrian Alps for a ski vacation for two weeks.
10. On January 31, 2005, shortly after her return, Claimant visited Dr. Angier with complaints of discomfort in her neck. On examination, she had guarding. Dr. Angier told her she could work without restrictions. She had stopped taking pain medication.
11. On February 11, 2005, Dr. Angier placed Claimant at medical end result. On examination, he found some restriction with range of motion, palpable guarding and a C7 “rib complex” on the right. He assessed her with a 5% whole person impairment based on DRE Category II from the AMA Guides to the Evaluation of Permanent Impairment, 5th edition.
12. On March 13, 2005 Claimant fell while skiing at Stowe. Afterwards she treated for an injury to her left leg; denying any injury to head or neck.
13. On April 19, 2005, Claimant returned to Dr. Angier for treatment for a flare up of her neck and shoulder symptoms. Dr. Angier noted sensory deficits in both hands and muscle guarding in the cervical spine. Claimant began taking pain medication. Muscle guarding was detected on examination. Range of motion was decreased.
14. Although Claimant is convinced that she did not hurt her neck and shoulders when she fell at Stowe, her report of symptoms and result of physical examination prove otherwise.
15. Dr. Angier assessed Claimant’s permanent partial impairment at 5% based on DRE category 2. That assessment is based on a diagnosis of a disc herniation. He uses the terms “disc herniation” and “disc bulge” interchangeably. However, Dr. Angier opined that Claimant would still be entitled to a 5% without proof of herniation because she had palpable guarding in the paracervical muscles extending to the trapezius.
16. On May 12, 2005, Dr. McLean opined that Claimant had no permanent partial impairment. Dr. McLean noted that the MRI ordered by Dr. Angier does not show a frank disc herniation; it shows only disc bulges.
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17. In July 2006, Dr. John Johansson, an osteopathic physician with an emphasis on orthopedic medicine, examined the Claimant at the request of the insurance carrier. He agreed with Dr. McLean that there was no permanent impairment related to the work related injury.
18. Dr. Johansson agrees that Claimant’s symptoms suggested a herniated disc, but that the MRI failed to confirm it. The MRI report states that disc protrusions were identified at C2-3, C5-6 and C6-7, with no cord compression and no compromise of the foramen. Dr. Johansson determined that Claimant met none of the criteria that would support a DRE Category 2.
19. In March 2006, Dr. Angier noted that Claimant had thoracic outlet syndrome that was “only symptomatic with specific activities.”
20. The carrier accepted that Claimant suffered a work related injury. However, it denies that she is entitled to any permanent partial impairment or to any benefits after she reached medical end result because a non work-related event intervened to break that causal connection.
21. Claimant submitted a claim for attorney fees of $5,499.00 and costs of $1,528.38.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
Causation
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. The objective evidence shows that Claimant had reached medical end result in February of 2005, that is: she had reached a substantial plateau in the recovery process such that significant further improvement was not expected, regardless of treatment. See Workers’ Compensation rule 2.1200.
4. After Claimant’s skiing that winter, she presented to her physician with symptoms that were different from what she had before she reached medical end result. Pain levels were higher than they had ever been. Guarding was detected on examination. Some time later, she had thoracic outlet symptoms related to activities.
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5. Although progressive worsening of a work related condition is compensable, that is only “so long as the worsening is not shown to have been produced by an intervening nonindustrial cause.” 1 A. Larson and L.K. Larson, Larson’s Workers’ Compensation Law § 10.
6. In this case, a nonwork related worsening occurred, thereby severing the causal connection between Claimant’s symptoms and her work related injury.
7. Next, is the question of the degree of permanency, if any, due the Claimant. Even if I were to accept Dr. Angier’s 5% rating, it cannot be awarded because the permanency is not related to the work related injury. Dr. Angier based that rating on muscle guarding and diminished range of motion, symptoms that had resolved before she took the ski vacation. Again, the causal connection is lacking.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim is DENIED.
Dated at Montpelier, Vermont this 4th 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.

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.

K. J. v. Northern Power Systems (October 6, 2008)

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

K. J. v. Northern Power Systems (October 6, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
K. J. Opinion No. 39-08WC
v. By: Phyllis G. Phillips, Esq.,
Hearing Officer
Northern Power Systems, Inc.
For: Patricia Moulton Powden,
Commissioner
State File No. X-60104
OPINION AND ORDER
Hearing held in Montpelier on July 23rd and 24th, 2008
APPEARANCES:
Brendan Donahue, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUE PRESENTED:
1. Did Claimant suffer a compensable work-related injury to his cervical spine on August 1, 2005 and/or December 20, 2005?
2. If yes, to what benefits is Claimant entitled?
3. In issuing its May 9, 2007 interim order, did the Department apply an inappropriate standard of review or otherwise violate Defendant’s constitutional rights?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Claimant’s Exhibit 1: Patrick Towbin statement
Claimant’s Exhibit 2: Seth Beck statement
Claimant’s Exhibit 3: Steven Emmerling statement
Claimant’s Exhibit 4: E-mail correspondence between Claimant and Karl Johnson
Claimant’s Exhibit 5: Various e-mail correspondence
Claimant’s Exhibit 6: January 18, 2006 Transition Agreement
Claimant’s Exhibit 7: January 23, 2006 Transition Agreement
Claimant’s Exhibit 8: Earnings Statements
Claimant’s Exhibit 9: Curriculum Vitae, Kuhrt Wieneke, MD
Claimant’s Exhibit 10: Curriculum Vitae, Bruce Tranmer, MD
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Defendant’s Exhibit A: Employee’s Injury Report, March 11, 2006
Defendant’s Exhibit B: Deposition of William F. Boucher, MD, August 8, 2008
CLAIM:
Temporary 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
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. Defendant’s business involves building and installing large power systems. Claimant began working for Defendant as a construction manager in 2003. His duties included supervising on-site subcontractors and otherwise directing operations so as to ensure that the projects to which he was assigned were completed on time and within budget.
4. In 2005 Claimant was assigned to a steam energy project in Racine, Wisconsin that involved constructing and installing two gas turbines and generators. Claimant had been involved in the sale of this project to the client and was to receive an incentive bonus upon its timely completion within budget.
5. On August 1, 2005 Claimant was at the construction site when he bent over to pick up a package weighing 40-60 pounds that had been delivered to his trailer. He immediately felt a deep burning sensation in the area of his upper back, neck and/or left shoulder. Claimant set the package down and sat at his desk. Within a short time thereafter, the pain grew much worse and started stabbing, shooting and burning down his left arm.
6. Steve Emmerling, a subcontracted carpenter, witnessed this event. He recalled that Claimant groaned when he picked up the package and seemed to be in pain. Mr. Emmerling asked Claimant what was wrong and Claimant replied that he had hurt his left shoulder. Mr. Emmerling then asked Claimant if he wanted to go to the on-site medical clinic and Claimant responded, “No; maybe later.”
7. Later in the day Claimant informed both Patrick Towbin, the project engineer, and Seth Beck, the project manager, of his injury during telephone conversations with each of them. Claimant acknowledged that in his role as construction manager he was aware of OSHA requirements for reporting work-related injuries, and that is why he told both Mr. Towbin and Mr. Beck that he had hurt himself. Claimant did not believe it his responsibility to take any further action beyond that, as he assumed others would take care of filing the appropriate forms or notices.
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8. Upon learning of Claimant’s injury, both Mr. Towbin and Mr. Beck recommended that he see a doctor, but Claimant declined to do so. Instead, he left work early, returned to his hotel and retired to the bar in an attempt to self-medicate his pain.
9. Claimant also informed his wife (who had remained in Vermont during Claimant’s assignment to the Racine, Wisconsin project) of his injury when he telephoned her that night.
10. Claimant continued to experience radiating pain from his left shoulder down into his left arm for the remainder of his time on the Racine, Wisconsin project. He neither sought medical attention nor missed time from work, however, but instead continued to self-medicate nightly with alcohol. The project was in a crucial phase at that point and Claimant felt that his presence on site was imperative to its timely completion. As noted above, Claimant’s compensation included an incentive or commission for the project’s completion on time and within budget. Claimant had both a professional interest and a personal financial stake in seeing that it did so, therefore.
11. Over time the pain in Claimant’s left shoulder and arm subsided somewhat, but it never went away. Claimant and his wife spoke about it almost daily during their regular telephone conversations. During this time Claimant began to notice other troublesome symptoms as well. He had difficulty raising his left hand overhead, started stumbling on occasion and noticed that his watch, which had been sized tight, was beginning to slide around his left wrist.
12. The Racine, Wisconsin project was completed in late November or early December 2005, and Claimant returned home to Vermont. Claimant’s wife testified that she noticed that Claimant had lost weight and that his left arm was so weak that he could not use it to dry his hair. Both Claimant and his wife testified that Claimant decided to have his symptoms evaluated medically, but that they had difficulty securing an appointment. Ultimately Claimant scheduled an appointment for a physical examination with Dr. Rapaport, a primary care provider at Montpelier Health Center, on January 26, 2006.
13. On December 20, 2005 Claimant was working at Defendant’s Waitsfield, Vermont office when he slipped and fell in the snow. A co-employee attempted to help him up by pulling on his left arm. Claimant felt increased pain and also, for the first time, numbness and tingling down his left arm and into his hand. As before, Claimant did not seek medical attention but rather self-medicated with alcohol.
14. On January 11, 2006 Claimant treated with Dr. Burdick, a primary care provider at Montpelier Health Center, for tobacco abuse, various dermatological issues and borderline high blood pressure. Of note, the medical record makes no mention of any upper back, neck, left shoulder or arm problems. Claimant testified that he did not discuss his symptoms with Dr. Burdick because he already had an appointment scheduled with Dr. Rapaport later in the month and intended to do so then. Notwithstanding this explanation, the omission is somewhat perplexing.
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15. Claimant’s prior medical history includes two neck injuries. The first one occurred in 1973, when Claimant dove into a swimming pool and either fractured or sprained his C3-4 vertebrae. Claimant was hospitalized for a period of time and wore a soft collar on his neck for some months thereafter. He completely recovered within one year and experienced no residual after-effects. Claimant also injured his neck in a 2000 motor vehicle accident but recovered within three months and again, experienced no residual symptoms thereafter. In neither of these prior accidents did Claimant experience the kind of stabbing, shooting pain radiating down his left arm as he felt after the August 1, 2005 event, or the numbness and tingling he experienced after the December 20, 2005 incident in the snow.
16. On Friday, January 13, 2006 Claimant learned from Karl Johnson, Defendant’s Project Management Director, that Defendant likely would be laying him off the following week because there were no ongoing projects for him to work on. Claimant was shocked and disappointed, and initially responded to Mr. Johnson’s news with anger.
17. On Monday morning, January 16th, Claimant sent Mr. Johnson an e-mail in which he apologized for his angry response the previous Friday and suggested that he be temporarily reassigned to another department or even given part-time duties as an alternative to being laid off. Claimant also made the following comment:
I have been injured on several projects and have never complained. But … neither myself or my family have been able to go to the doctor or dentist due to my work schedule or being out of town. Now, for the first time that my family and I have a chance to address our health needs, I am faced with being out of a job, and therefore not having the health insurance to cover it.
18. Mr. Johnson responded to Claimant’s e-mail at 3:00 PM on Monday afternoon, indicating that he would discuss Claimant’s situation with Darren Jamison, Defendant’s president, and get back to him with more information the following day.
19. At some point during the day on Monday Claimant began to experience chest pains and numbness in his left arm. He presented to the Central Vermont Hospital Emergency Department Monday evening, thinking that he was having a heart attack. Claimant was hospitalized for two days, during which time he was attended by Dr. Rapaport, his primary care physician.
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20. Dr. Rapaport determined that the origin of Claimant’s symptoms was musculoskeletal, not cardiac. In Dr. Rapaport’s opinion, Claimant’s 1973 swimming pool injury caused degenerative changes in Claimant’s cervical spine, which likely accounted at least for his shoulder pain, though not the numbness and tingling in his left arm and fingers. Dr. Rapaport noted that Claimant had reported experiencing these latter symptoms for the past several weeks, which would date them to the approximate time of his slip-and-fall in the snow on December 20, 2005. As for next steps, Dr. Rapaport anticipated further diagnostic work-up and treatment of Claimant’s cervical condition on an outpatient basis. Last, Dr. Rapaport determined that Claimant was temporarily totally disabled from working and recommended that he not return to work until January 23, 2006.
21. Following his release from the hospital, on January 18, 2006 Claimant telephoned Mr. Jamison to inquire whether Defendant had had an opportunity to consider further the alternatives to lay-off Claimant had proposed in his January 16th e-mail. Mr. Jamison advised that it was Defendant’s position that Claimant had quit the previous Friday, January 13th. Claimant expressed shock at this news. Claimant maintained then, and continues to maintain now, that he did not voluntarily terminate his employment with Defendant.
22. Also on January 18, 2006 Defendant sent Claimant a proposed “Transition Agreement and General Release,” essentially an employment severance package. Claimant objected to the terms of the package and refused to sign it. Subsequently, on January 23, 2006 Defendant proposed a second severance package with somewhat more favorable terms. Claimant rejected this proposal as well.
23. Claimant has continued to treat with Dr. Rapaport since January 2006. In Dr. Rapaport’s opinion, Claimant aggravated his underlying degenerative disc disease and suffered a cervical disc herniation when he lifted the heavy package at work on August 1, 2005. The December 20, 2005 incident in the snow aggravated this condition even further.
24. On January 10, 2007 Claimant underwent cervical disc surgery, including fusions at both C3-4 and C4-5, performed by Dr. Tranmer, a board-certified neurosurgeon. In Dr. Tranmer’s opinion, Claimant’s condition clearly represented a degenerative chronic problem that had been acutely exacerbated by the August 1, 2005 lifting incident at work.
25. Following surgery Claimant experienced complete relief of his left shoulder pain. Within six weeks thereafter, however, he began to feel pain, tingling and muscle spasms in his neck. In Dr. Tranmer’s opinion, these symptoms resulted from nerve root compression at C2-3 caused both by the August 2005 disc injury and by the prior disc fusion at C3-4 and C4-5. To address these symptoms Claimant underwent a second neck surgery on March 10, 2008. Since that time, many of his more troublesome symptoms have abated. Claimant continues to treat conservatively for those that remain, and has not yet been declared at end medical result. The record does not reflect his current work status. It is likely that he will have some residual permanent impairment.
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26. Claimant has undergone two independent medical evaluations, one at his own behest with Dr. Wieneke and one at Defendant’s request with Dr. Boucher. Dr. Wieneke’s opinion comports with those of Drs. Rapaport and Tranmer – the August 1, 2005 work injury precipitated an acute cervical pain syndrome and aggravated Claimant’s underlying chronic cervical degenerative disc disease. According to Dr. Wieneke, the symptoms Claimant exhibited thereafter – including muscle weakness and shooting pains radiating down his left arm – were consistent with an injury to the neck, not the shoulder. The December 2005 incident caused further damage to the cervical nerve roots, resulting in additional symptoms, including numbness, tingling and muscle atrophy, all indicative of a cervical disc herniation. With that diagnosis in mind, Dr. Wieneke concluded that both the January 2007 and the March 2008 cervical surgeries were causally related to the August and December 2005 work injuries.
27. In contrast, Dr. Boucher believes that Claimant suffered an acute muscular injury to his left shoulder in August 2005 but that that injury resolved and did not cause any cervical disc herniation. In Dr. Boucher’s opinion, Claimant’s underlying degenerative disc disease finally progressed to the point of becoming symptomatic, resulting in the need for treatment and ultimately, surgery. To Dr. Boucher’s mind, therefore, neither the January 2007 surgery nor the March 2008 surgery was causally related to Claimant’s work injury.
28. Although Claimant notified both the project engineer and the project manager of his August 1, 2005 injury on that same day, he did not take any action to pursue a workers’ compensation claim until mid-March 2006. Claimant admitted that he never would have filed a claim had his employment with Defendant not terminated, but denied that he did so to “get even” with Defendant. He testified that he did not appreciate in January 2006 how badly he had been hurt.
29. Defendant denied Claimant’s claim for workers’ compensation benefits upon receipt, on the grounds that he had failed to sustain his burden of proving that either the medical treatment he received beginning in January 2006 or his claimed inability to work thereafter were causally related to any work injury. Defendant particularly noted that Claimant did not seek medical treatment or lose time from work after the August 2005 incident, and also that the medical records relating to Claimant’s treatment in January 2006 did not mention specifically the December 2005 fall in the snow as an instigating event for his symptoms. Defendant also questioned Claimant’s credibility, noting that it was only after his employment with Defendant terminated that he alleged any work-related injury and resulting inability to work.
30. Claimant objected to Defendant’s denial and requested that the Department issue an interim order for benefits. Following an informal conference with the attorneys for both parties, in July 2006 the Department’s Workers’ Compensation Specialist rejected Claimant’s request, finding that Dr. Rapaport’s medical records were too ambiguous on the question of causation to support an interim order.
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31. Subsequently, in November 2006 Claimant submitted additional medical documentation from Dr. Rapaport and renewed his request for an interim order. The Specialist again determined that the medical evidence was insufficient to support an interim order and therefore, in February 2007 she again denied Claimant’s request.
32. Claimant made a third request for an interim order shortly after the second one was denied. By the time the Specialist responded to this request, she had before her a complete medical record from Claimant’s treatment providers, the same written statements from Patrick Towbin, Seth Beck and Steve Emmerling that were admitted as Claimant’s Exhibits 1, 2 and 3 in the current proceeding and a copy of Claimant’s January 3, 2007 deposition. In support of Defendant’s position, the Specialist had Dr. Boucher’s independent medical evaluation.
33. This time the Specialist granted Claimant’s request and on May 9, 2007 issued an interim order for benefits. In explaining her reasons for doing so, the Specialist noted that she had reviewed all of the evidence that had been submitted and had concluded that Dr. Boucher’s expert medical opinion against work-related causation was less credible than the opinions Claimant’s treating providers had posited in favor of such causation. With that in mind, the Specialist determined that Claimant “has met his burden of proof by submitting sufficient credible evidence” to support a finding of compensability, and that therefore an interim order was appropriate. Defendant has been paying workers’ compensation benefits in accordance with the Specialist’s interim order ever since.1
34. Claimant did not work for many months after his employment relationship with Defendant ended. From June through November 2006 he worked for a New Hampshire engineering firm, overseeing a steam turbine installation project in Cambridge, Massachusetts. Although his employer paid to relocate him temporarily to an apartment in New Hampshire, Claimant still had a long daily commute, and he had to discontinue the pain medications he had been using because they interfered with his ability to drive. As a result of both these and other personal stressors, Claimant suffered an emotional and physical breakdown for which he was hospitalized briefly on November 30, 2006. Claimant’s employer terminated his employment on that date.
35. In December 2007 Claimant began working as a construction project manager for another employer. He did not immediately report his employment to Defendant’s workers’ compensation insurance carrier, with the result that for a period of time thereafter he received temporary total disability benefits to which he was not entitled. The parties have agreed to credit this overpayment against any future permanent partial disability benefits to be paid.
1 At Defendant’s request, in July 2007 the Department’s Staff Attorney reviewed the Specialist’s determination. She concluded that Defendant’s evidence did not provide “reasonable support” for its denial and therefore declined to rescind the interim order.
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CONCLUSIONS OF LAW:
Compensability
1. At issue in this claim is compensability. Defendant argues two alternative grounds for finding that Claimant’s injury is not compensable. First, Defendant contends that Claimant failed to satisfy the six-month notice requirement of 21 V.S.A. §656(a) and that therefore his claim is time-barred. Second, Defendant contends that Claimant failed to satisfy his burden of proof as to either factual or medical causation.
2. As to the notice issue, the statute requires that an injured worker give notice of an injury to his or her employer “as soon as practicable” after the injury occurs. 21 V.S.A. §656(a). The statute further requires that a claim for workers’ compensation benefits be made within six months of the injury. Id. Notwithstanding these requirements, however, a claim is not time-barred “if it is shown that the employer, the employer’s agent or representative, had knowledge of the accident or that the employer has not been prejudiced by the delay or want of notice.” 21 V.S.A. §660(a).
3. Claimant introduced uncontradicted evidence to the effect that he notified both Patrick Towbin, Defendant’s project engineer, and Seth Beck, its project manager, of the August 1, 2005 injury on that same day. Defendant failed to allege any basis for discrediting that evidence. The evidence establishes that Defendant had knowledge of the accident when it occurred. Under 21 V.S.A. §660(a), therefore, the claim is not time-barred.
4. On the issue of factual causation, Defendant argues that Claimant’s account of the August 1, 2005 incident as the cause of his injury lacks credibility because he did not seek medical treatment or lose time from work for many months thereafter. Defendant also makes much of the fact that Claimant delayed filing a workers’ compensation claim and admitted that he never would have done so at all had his employment with Defendant not terminated in January 2006.
5. It is true that a claimant may have difficulty sustaining his or her burden of proof when he or she delays filing a workers’ compensation claim for a significant period of time after an alleged injury. In such instances, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies, investigate possible intervening causes and evaluate “hidden or not-so-hidden motivations.” Russell v. Omega Electric, Opinion No. 42-03WC (November 10, 2003), citing Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995).
6. The Commissioner has enumerated four questions to assist in this process. 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? And fourth, is there persuasive medical evidence supporting causation? Larrabee v. Heavensent Farm, Opinion No. 13-05WC (February 4, 2005), citing Seguin v. Ethan Allen, Opinion No. 28S-02WC (July 25, 2002).
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7. Here, although there are no contemporaneous medical records, there is a credible, consistently reported history of continuing complaints, all relating directly back to the August 1st and December 20th, 2005 incidents as the precipitating cause of Claimant’s symptoms. There also is evidence that although Claimant was aware generally of work-related injury reporting requirements, he did not claim any knowledge of the specific steps necessary to report a workers’ compensation claim beyond advising his supervisors that he had been hurt, which he did. I do not find, therefore, that consideration of the first two questions posed above fatally undermines Claimant’s credibility.
8. I also find that the work performed was consistent with Claimant’s complaints. Significantly, there is no evidence that Claimant engaged in any intervening non-work-related activities that otherwise might have accounted for his symptoms. This has been a key factor in denying compensability in other late-reported claims. See Pratt v. Fletcher Allen Health Care, Opinion No. 69-05WC (November 29, 2005); Larrabee, supra; Russell, supra; Fanger, supra.
9. Last, applying the oft-quoted factors to be considered in weighing conflicting medical evidence, Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003), I find that the medical evidence propounded by Claimant’s experts in favor of work-related causation is more persuasive than that put forth by Defendant’s medical expert against such a finding. I conclude that the fourth question posed above also merits a response in Claimant’s favor.
10. I also am persuaded that for Claimant to acknowledge that he never would have filed a workers’ compensation claim had his employment with Defendant not terminated reflects a sense of loyalty rather than a desire for revenge. Perhaps it would appear differently in the context of more damning facts, but I do not find those to be present here.
11. I conclude, therefore, that Claimant has sustained his burden of proving that he suffered a compensable work-related injury on August 1, 2005.
Temporary Total Disability
12. Claimant having been paid most of the workers’ compensation benefits owed him to date pursuant to the Department’s interim order, the only outstanding claim he presented at formal hearing was for temporary disability benefits from January 16, 2006 through January 26, 2006.2 I find that Claimant has proven his entitlement to these benefits, but only through January 23, 2006, the date on which Dr. Rapaport’s out-of-work slip expired. See Joint Medical Exhibit at CVH 610. Contrary to Defendant’s assertion, furthermore, the three-day waiting period referred to in 21 V.S.A. §642 does not apply, as over the course of this claim Claimant was disabled for more than seven consecutive calendar days after the first three.
2 Although it is likely that Claimant will be seeking permanent partial disability benefits, he has not yet been determined to be at end medical result, and therefore this claim is not yet ripe.
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Appropriateness of Interim Order
13. Defendant has raised the appropriateness of the Department’s May 9, 2007 interim order as a corollary issue in this claim. Defendant argues that the Department violated its constitutional right to due process by applying the incorrect standard of review to the evidence before it. Had the Department analyzed the evidence before it correctly, Defendant argues, it would have concluded that there was insufficient basis for an interim order and would have denied Claimant’s request.
14. When a dispute arises as to the compensability of an injured worker’s claim for benefits, the statute provides for a formal dispute resolution process. 21 V.S.A. §663. It also empowers the Commissioner to act in the meantime, however, by issuing an interim order that benefits be paid until such time as the claim can be adjudicated formally. Specifically, 21 V.S.A. §662(b) states:
In the absence of an agreement [to pay workers’ compensation benefits], the employer or insurance carrier shall notify the commissioner and the employee in writing that the claim is denied and the reasons therefore. Upon the employee’s application for a hearing under section 663 of this title, the commissioner may review the evidence upon which denial is based and if the evidence does not reasonably support the denial, the commissioner may order that payments be made until a hearing is held and a decision is rendered. [Emphasis added].
15. The “reasonable support” standard is further defined as follows:
“Evidence that reasonably supports an action” means, for the purposes of section . . . 662(b) of this title, relevant evidence that a reasonable mind might accept as adequate to support a conclusion that must be based on the record as a whole, and take into account whatever in the record fairly detracts from its weight.
21 V.S.A. §601(24).
16. The proper analysis for determining whether an interim order should issue under §662(b) differs in two important respects from the analysis used to determine compensability at a formal hearing. First, the statute directs the commissioner to apply a “reasonable support” standard for reviewing the evidence at the interim order stage, rather than the “preponderance” standard used at the formal hearing level, see Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
17. Second, by directing the commissioner to enter an interim order only when “the evidence does not reasonably support the denial,” the statute looks to the employer to produce sufficient evidence that on its face conceivably could support a finding against compensability. In contrast, at the formal hearing stage of proceedings the burden is on the claimant in the first instance to produce the evidence necessary to establish a prima facie case in favor of compensability, see Goodwin v. Fairbanks, 123 Vt. 161 91962).
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18. The distinction is fine, perhaps even dicey. Notably, the burden of producing evidence is met “when one with the burden of proof has introduced sufficient evidence to make out a prima facie case, though the cogency of the evidence may fall short of convincing the trier of fact to find for him.” Black’s Law Dictionary 178 (5th ed. 1979).
19. In the current context, therefore, an employer might produce sufficient evidence to defend successfully against an interim order, and yet still lose at the formal hearing level. This is as it should be. There is a qualitative difference between the evidence submitted for and against a proposed interim order and that produced later at a formal hearing. Witnesses do not appear in person and are not sworn, discovery often is still ongoing and sometimes neither the facts nor the issues are fully developed. With that in mind, a statutory scheme that places the burden of production on the employer at the same time that it imposes a lower standard of proof represents an ingenious compromise.
20. I find that the Specialist in this claim failed to evaluate Claimant’s request for an interim order with an eye towards whether sufficient evidence had been produced which on its face reasonably could support a finding against compensability. By focusing instead on whether Claimant had established a sufficient case in favor of compensability, she allocated the burden of producing evidence inappropriately and applied the wrong evidentiary standard.
21. Although the Specialist may have erred in her analysis, however, I cannot conclude that her decision was so “arbitrary, irrational or conscience-shocking” as to amount to an unconstitutional denial of due process. See T.B. v. University of Vermont, Opinion No. 06-08WC (February 12, 2008), and cases cited therein. Furthermore, as I now have determined that Claimant’s claim is in fact compensable, the Specialist’s error has been rendered harmless. What clarification this claim offers as to the appropriate standard for reviewing a request for an interim order, therefore, is for the future.
Attorney’s Fees and Costs
22. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $7,510.60 and attorney’s fees totaling $23,686.00. An award of costs to a prevailing claimant is mandatory under the statute. Charges for expert medical testimony must comply with the limits set by Workers’ Compensation Rule 40.110, however, and it appears that the charges submitted for both Dr. Wieneke’s and Dr. Tranmer’s hearing testimony do not do so. In addition, charges relating to time spent by an expert witness conferring with Claimant’s attorney and preparing his or her testimony also are not recoverable under 21 V.S.A. §678. Hatin v. Our Lady of Providence, Opinion No. 21S-03WC (October 22, 2003). With those limits in mind, costs in the amount of $3,010.60 are hereby awarded. Claimant shall have 30 days from the date of this decision to supplement his request for reimbursement with a more detailed statement relating to Dr. Wieneke’s and Dr. Tranmer’s charges, at which time additional costs may be awarded.
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23. As for attorney’s fees, these lie within the Commissioner’s discretion. Factors to be considered in fashioning an award of attorney’s fees include the necessity of representation, difficulty of issues presented, time and effort expended, clarity of time reports, agreement with the claimant, skill of counsel and whether fees are proportional to counsel’s efforts. T.K. v. Green Mountain Steel Erectors, Opinion No. 29-08WC (July 3, 2008), citing L.W. v. NSA Industries, Inc., Opinion No. 27A-05WC (April 27, 2005). Here, Claimant has submitted a detailed 32-page statement of time spent pursuing Claimant’s claim. As Defendant has not voiced any objection to the charges I presume it agrees they are reasonable, and they are hereby awarded.
ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from January 16, 2006 through January 23, 2006;
2. Additional workers’ compensation benefits as proven to be causally related to the injuries incurred on August 1, 2005 and/or December 20, 2005;
3. Costs in the amount of $3,010.60, to be supplemented as provided in Conclusion of Law No. 22 above, and attorney’s fees totaling $23,686.00.
DATED at Montpelier, Vermont this 6th 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.

L. M. v. C.G. McCullough Insurance (July 2, 2008)

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

L. M. v. C.G. McCullough Insurance (July 2, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. M. Opinion No. 27-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
C.G. McCullough Insurance For: Patricia Moulton Powden
Commissioner
State File No. Y-62069
OPINION AND ORDER
Hearing Held in Montpelier, Vermont on April 8, 2008
Record closed on May 9, 2008
APPEARANCES:
Jeffrey Spencer, Esq. for Defendant
Michael Green, Esq. for Claimant
Todd Kalter, Esq. for Claimant
ISSUES:
Whether the Claimant’s injuries were work related and occurred in the course of her employment.
CLAIM:
Decision on Causation
Attorneys Fees and Costs
FINDINGS OF FACT:
1. On April 23, 2007, the Claimant was seriously injured in a motor vehicle accident on Route 4, near Pico Peak in Mendon, Vermont.
2. At the time of the collision, the Employer was an employer under the Workers’ Compensation Act and the Claimant was an employee under the Act. The Claimant’s responsibilities at her work were to take photographs of properties to assist the insurance company.
3. According to a police report, the Claimant’s vehicle crossed the center line and struck an oncoming tractor trailer. As a result of her serious injuries, the Claimant has no recollection of the events prior to the incident.
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4. The week preceding this accident, a historic storm with violent winds and rain struck the Rutland Area. Trees were uprooted and there were significant power outages. Road conditions were affected by the storm the week prior to the accident.
5. The Claimant and the owner of the company where she was employed were married but separated when the accident occurred.
6. The employer testified that the Claimant kept her notebooks, cameras and road maps in her shoulder bag which she would put in her car only when she was on a work assignment. After she completed taking the pictures, she would remove her bag from the car and e-mail the photographs from her home. The fact that her bag was used strictly for her work and was only placed in her vehicle when she was on assignment was verified by her son and her friend.
7. The Claimant’s only employment was for McCullough Insurance.
8. The Claimant, through the credible testimony of witnesses, is found to have been concerned about taking photographs of a certain property in Killington. This was due to the fact that the insurance company for which she was employed was making serious efforts to get the property owner’s insurance policy covered by his business. There was some urgency to get this work done. On the day of the accident the Claimant was in the vicinity of the Killington property with her work bag.
9. There were a number of e-mails back and forth between the employer and the Claimant regarding photographs of the Killington property mentioned above. Those photographs which were needed had not been received by the Insurance Agency at the time of the accident. The Claimant knew the photographs were needed immediately.
10. The Claimant told at least two friends, Sharon Brown and Susan Burnett, who credibly testified, that she was unable to attend a flower show in Boston the day of the accident, for which she already had tickets, because she was behind in her work due to the storm. Neither friend knew of any reason why she would be headed toward Killington the day she was injured except for her work assignment.
11. The day after the accident the Claimant was supposed to pick up her dogs at a dog caretaker’s home. However, the Claimant was driving away from the dog caretaker’s home when she had the accident. Therefore, there is no reason to believe that the Claimant’s location would have anything to do with the location of her two dogs.
12. The Claimant had many interests such as yoga, a gourmet club and also had many responsibilities the week prior to her accident due to storm damage to her home and power outages. She was staying with a friend prior to the accident since she was having work done on her home. However, she was very clear to the few friends that she had spoken to prior to the accident that she was going to be working on the 23rd, the day of her accident. She had her work bag with her. Her son testified that the Claimant had asked him about the roads in Killington a few days prior to the accident to see if the road conditions had improved after the storm.
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13. The Claimant had taken some pictures in the Killington area on the 20th of April and had e-mailed the photographs to her employer. The fact that she e-mailed the photographs would mean that she had to remove her work bag on the 20th from her vehicle. She had to deliberately replace her work bag in the car on the 23rd of April, the day of the accident.
14. The Claimant, herself, due to her severe injuries, could not testify as to whether she was working or not on the day of the accident. The only information regarding why she was in the area came from the testimony of her friends, family and her husband/employer and through her e-mails and location.
15. Claimant’s fees are 54.7 hours paid at $90.00 per hour and costs of $1,461.73. These fees and costs have not been challenged.
CONCLUSIONS OF LAW:
1. In the instant case, the question is whether the Claimant was driving to reach a destination to take photographs of a property for her employer, the insurance company.
2. A claim is compensable if the accident both arose out of the Claimant’s employment and occurred in the course of her employment. An accident occurs in the course of employment when it occurs within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling her duties. 21 V.S.A. § 618; Miller v. IBM, 161 Vt. 213 (1993).
3. An injury arises out of employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed the claimant in the position where she was injured. Shaw v. Dutton Berry Farm, 160 Vt. 594, 598 (1993).
4. Claimant, of course, has the burden of proof. King v. Snide, 144 Vt. 395 (1984). Through her witnesses she has demonstrated that she only put her work bag in her vehicle when she was working for the insurance agency. The bag contained her cameras and maps. Her work bag was in the car on the day of the accident.
5. There was also evidence presented that the Claimant had told her friends she was behind on her work and cancelled other plans so she could work on the day of the accident. Her only “work” was for the Defendant. Further, she was in the area of where she had to take pictures of a Killington property for the insurance agency. No other plausible reason was given for her to be in this area with her work bag on the 23rd of April.
6. The burden of proof the Claimant has to meet is a preponderance of the evidence. This means the inference from the facts in the case must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
7. I find the Claimant has met the burden under the preponderance of the evidence standard in that the more probable hypothesis, when considering all of the evidence presented, that she was in the course of her employment when the accident occurred.
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8. Thus, the Claimant is entitled to reasonable fees and costs.
ORDER:
1. The Claimant’s causal connection between her work and her accident have been met making her claim compensable.
2. Attorney’s fees of 54.7 hours paid at $90.00 per hour and costs of $1,461.73 are awarded.
DATED at Montpelier, Vermont this 2nd day of July 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.

J. C. v. Passumpsic Savings Back (March 11, 2008)

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

J. C. v. Passumpsic Savings Back (March 11, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No. 08-08WC
v. Phyllis Phillips, Esq.,
Hearing Officer
Passumpsic Savings Bank
Patricia Moulton Powden
Commissioner
State File No. X-56484
OPINION AND ORDER
Hearing held in St. Johnsbury on January 9th and 10th, 2008.
APPEARANCES:
Patricia Turley, Esq. for Claimant
Jeffrey Spencer, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant suffered a compensable psychological injury as a result of extraordinary work-related stress, and if so, to what benefits is she entitled.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Defendant’s Exhibits:
Defendant’s Exhibit A: DSM-IV Section 309.81, “Posttraumatic Stress Disorder”
Defendant’s Exhibit B: Application letter and resume, January 15, 2004
Defendant’s Exhibit C: Claimant performance evaluations
Defendant’s Exhibit D: Cynthia Wheeler performance evaluations
Defendant’s Exhibit E: Dr. Fine progress notes, 3/22/02
Defendant’s Exhibit F: Dr. Fine progress notes, 4/2/03
CLAIM:
Temporary total disability benefits under 21 V.S.A. §642
Medical benefits under 21 V.S.A. §640(a)
Attorney’s fees and costs under 21 V.S.A. §678
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FINDINGS OF FACT:
1. Claimant is a native of St. Johnsbury, Vermont. She received an associate’s degree from Endicott College and attended the University of Vermont.
2. Claimant’s employment history is quite varied. She has held a variety of secretarial and administrative positions for numerous employers, both in Vermont and elsewhere, across a broad spectrum of businesses, including the ski industry, an oil exploration company, an international retailer and a university. Many of her jobs Claimant obtained through temporary employment agencies, which exposed her to constantly changing work environments and office settings. Claimant testified that she enjoyed the diverse nature of her work experiences. She liked meeting new people, learning new skills and addressing new challenges.
3. In October 1996 Claimant was hired through a temporary agency to work as a secretary/receptionist in the loan department at Defendant’s main bank branch in St. Johnsbury. Her job duties included greeting customers from her seat at the department’s front desk, sorting and distributing the department’s mail, answering the phone, typing, filing and performing other secretarial and administrative support tasks for loan officers and loan department staff. Claimant’s supervisor at the time was Karla Wilbur. Karla Wilbur’s supervisor was Peter Crosby, a Senior Vice President.
4. Among the loan department personnel Claimant worked with was Cynthia Wheeler, the underwriting/loan supervisor. Ms. Wheeler was not Claimant’s direct supervisor, but Claimant did have to work with her on one recurring task, that of typing up the weekly loan rate sheet for local realtors. Claimant prepared this sheet using information supplied by Ms. Wheeler.
5. In January 1997 Mr. Crosby offered Claimant a permanent full-time position, doing the same job she had been doing since October but now directly for the bank rather than through a temporary agency. Claimant accepted Mr. Crosby’s offer on one condition, that Ms. Wheeler not be her direct supervisor. Claimant testified that she did so because she felt that Ms. Wheeler was a “mean-spirited person.” Claimant testified that she had felt this way about Ms. Wheeler from the time she first started working at the bank in October 1996. Claimant also testified that she perceived from the beginning that Ms. Wheeler did not like her.
6. Claimant worked for three different supervisors during her tenure as loan department secretary/receptionist. From 1997 until some time in 1999, Karla Wilbur was her supervisor. Ms. Wilbur’s performance evaluations of Claimant during that period were favorable. She had excellent attendance, worked with minimal direction and had excellent rapport with customers. Ms. Wilbur did note, however, that Claimant needed to focus on accuracy in her work and also that she needed to utilize voice mail better. In addition, Ms. Wilbur repeatedly suggested that Claimant focus on learning more about both the loan department and the bank in general so that she would be better able to answer basic questions and direct customer inquiries.
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7. In 1999 both Ms. Wilbur and Mr. Crosby were promoted and Tom Robinson, a Vice President, became Claimant’s supervisor. Cynthia Wheeler also was promoted, to the position of loan servicing department supervisor. As part of these promotions Ms. Wheeler moved to a new office situated directly across from Claimant’s work station. Mr. Robinson’s new office was next to Ms. Wheeler’s.
8. Because Mr. Robinson was busy with his other responsibilities, he asked Ms. Wheeler to assist him with the task of supervising Claimant. Then, at some point in 2000 Mr. Robinson and Ms. Wheeler agreed that it made more sense for Ms. Wheeler to become Claimant’s direct supervisor, and this change was implemented. Ms. Wheeler remained Claimant’s direct supervisor for the duration of Claimant’s employment.
9. As reflected in their testimony as well as their written performance evaluations of Claimant, both Mr. Robinson and Ms. Wheeler found Claimant to be proficient in some aspects of her job and needing improvement in others. Her attendance was good, she was polite and courteous to customers and cooperative with co-employees. She did an excellent job preparing documents and transcribing dictation. However, the deficiencies that Ms. Wilbur had noted in her early evaluations of Claimant persisted. For example, both Mr. Robinson and Ms. Wheeler counseled Claimant about making better use of voice mail so that she could perform her receptionist duties more efficiently and without having to leave her desk as frequently to deliver telephone messages. As Ms. Wilbur had suggested previously, they also advised Claimant to focus on learning to answer basic loan questions so that she could better respond to customer inquiries and direct their calls more specifically. At one point Ms. Wheeler suggested that Claimant compile a list of “frequently asked questions” so that together they could devise appropriate responses, but Claimant did not do so.
10. Both Mr. Robinson and Ms. Wheeler also counseled Claimant repeatedly that because she was the first point of contact for customers it was very important that she keep her desk as clean and neat as possible and refrain from eating or drinking while seated there. It also was important that Claimant minimize her time away from her desk so customers entering the department would be greeted properly. These concerns were recurrent themes in Claimant’s annual performance evaluations throughout her tenure as loan department secretary/receptionist.
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11. It is clear from Claimant’s testimony that she did not take well to Ms. Wheeler’s supervision. As noted above, Claimant perceived from the beginning that Ms. Wheeler did not like her and Claimant felt that because of this Ms. Wheeler often treated her unfavorably and with disrespect. Given the location of Ms. Wheeler’s office directly across from Claimant’s workstation, Claimant felt that Ms. Wheeler was constantly watching her and subjected her to far greater scrutiny than she did any of Claimant’s co-employees. Claimant testified that Ms. Wheeler purposely took away tasks that Claimant did well and reassigned them to other employees. As to the remaining tasks, Claimant stated that “no matter what I did, it wasn’t right.” Claimant testified that Ms. Wheeler told her that Claimant’s co-employees did not like her, and chastised her in front of them for mistakes that Claimant believed were not her responsibility. She testified that Ms. Wheeler reprimanded her for reading the mail before distributing it, even though she needed to do so in order to sort it properly. Claimant felt singled out as the only employee who was not allowed to eat or drink at her desk, and the only employee who could not participate in lunchroom birthday cake or pizza events because she was not allowed to leave her workstation. Claimant also testified to different treatment from Ms. Wheeler as to her ability to work through lunch on occasion so as to leave an hour earlier at the end of the day. While other employees were allowed to use their “combined time off” hours in order to do so from time to time, Ms. Wheeler denied Claimant’s request to do the same. Claimant perceived that Ms. Wheeler’s motivation for treating her in this way was that she wanted “total control of me” and that she “set me up to fail.” Overall, Claimant testified that Ms. Wheeler treated her in a hostile, disrespectful and demeaning manner.
12. For her part, Ms. Wheeler testified that the supervisory decisions she made were not personally motivated at all but rather were required due to Claimant’s role as the first point of customer contact in the loan department. Because Claimant worked at the front desk and not at a cubicle, it would be unseemly for customers to arrive and find her workstation untidy, for example. For the same reason, it would not do for Claimant to “work through lunch” by eating at her desk and thereby gain the right to leave an hour earlier at the end of the day, as her co-employees in cubicles might have been able to. Last, because the front desk had to be manned at all times, for Claimant to leave it – whether to deliver a written phone message, to chat with customers or co-employees or to attend a lunch room pizza break – was problematic. It meant that either the desk remained empty while Claimant was gone or that other employees had to be found to cover in her absence.
13. In January 2004 Claimant became so unhappy working under Ms. Wheeler’s supervision that she contemplated leaving the bank altogether. She applied for an administrative position with another local employer, but did not get the job.
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14. The deteriorating relationship between Claimant and Ms. Wheeler further worsened in June 2004, when Claimant’s job duties changed as a result of a reorganization within the loan servicing department. Claimant’s receptionist duties were reassigned to another employee, and Claimant assumed more loan processing functions instead. In particular, Claimant now was responsible for entering the loan department’s daily “block balances.” This task required Claimant to computer enter the data as to each day’s lending transactions so that it could be faxed to the bank’s processing center for overnight processing.
15. In preparation for and as part of the loan servicing department reorganization Ms. Wheeler asked all department employees, Claimant included, to keep a daily log of the job-related tasks they performed and the estimated time spent on each task. Claimant did not produce her log initially, and when she did so Ms. Wheeler criticized it in front of a co-employee as being incomplete. Claimant testified that once again, she felt singled out by Ms. Wheeler’s criticism. Claimant testified that because many of the job functions were new to her she was not able to estimate accurately how much time each task would take, or how many tasks she could complete in a day. Nevertheless, Claimant testified that she felt tremendous pressure from Ms. Wheeler to complete the tasks within the time periods Claimant had estimated.
16. Claimant testified that Ms. Wheeler informed her of her new job responsibilities one afternoon in June 2004, in the presence of a co-employee and just before Claimant was to leave for the day for an appointment. Claimant felt that Ms. Wheeler handled the matter unprofessionally, given the significant changes to be implemented in Claimant’s job. Claimant also testified that she received minimal training from Ms. Wheeler prior to assuming responsibility for performing the daily “block.” Claimant testified that she was slow but accurate with this type of numerical data entry. She recalled an instance when Ms. Wheeler reprimanded her for her slowness, informing her that “nobody can go home until you finish” and that others could do the job much faster than Claimant could.
17. Claimant perceived that the loan department reorganization was a “sham” concocted by Ms. Wheeler to take away from Claimant those job responsibilities she enjoyed and was good at and replace them with duties for which she lacked skill or experience. The evidence does not support this perception, however. Both Ms. Wilbur and Mr. Robinson testified that the loan servicing department was reorganized in June 2004 and Ms. Wheeler’s performance evaluation for that year reflected her role in that process.
18. Ms. Wheeler supervised Claimant’s work product closely throughout the summer and fall of 2004, in Claimant’s view much more so than she did with other employees. For example, Ms. Wheeler required Claimant to produce the files she had worked on throughout the day so that she could review them and document how much work Claimant had accomplished. Again, Claimant felt that Ms. Wheeler was singling her out for greater scrutiny without any justification for doing so.
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19. In September 2004 Ms. Wheeler began meeting with Claimant on a weekly basis to review her progress on various job tasks. At Ms. Wheeler’s request, Kim Towle, the bank’s vice president of human resources, also attended. Ms. Towle testified that the purpose of the meetings was merely to keep track of Claimant’s progress and help her keep up, not to take corrective action against her. Claimant testified that the meetings were not constructive and that she continued to feel that no matter what she did it was not right.
20. On November 9, 2004 Claimant presented to her primary care physician, Dr. Sharon Fine, complaining of atypical chest pressure. Claimant testified that she had been experiencing stress-related symptoms all summer long, including sleep deprivation, chest pains and hair loss. Dr. Fine concurred that Claimant’s symptoms were indeed stress-related and referred her to Catherine Maier, a mental health counselor, for stress management.
21. On November 19, 2004, a Friday, Claimant left work feeling that she could not take any more. Ms. Wheeler had scheduled a weekly meeting with Claimant and Kim Towle for the following Monday or Tuesday, but Claimant felt that she was “at the end of her rope” and unable to attend. Claimant called Dr. Fine, who secured an immediate appointment for her with Catherine Maier, the mental health counselor she previously had recommended.
22. Claimant has not worked since November 19, 2004. Initially the bank placed her on medical leave, but ultimately terminated her employment effective December 1, 2005.
23. Ms. Maier first evaluated Claimant on November 22, 2004. Ms. Maier reported that Claimant was experiencing harassment in a “hostile work environment” caused by a supervisor who treated her with disrespect. As a result, Ms. Maier reported, Claimant felt emotionally battered and was exhibiting symptoms of depression and anxiety. Ms. Maier determined that Claimant was temporarily totally disabled from working, a conclusion with which Dr. Fine agreed. As treatment she recommended ongoing psychological counseling and medication.
24. Claimant has continued to undergo weekly counseling sessions with Ms. Maier since November 2004. For quite some time after November 2004 Claimant’s symptoms did not abate and in fact appeared to worsen. She became socially withdrawn and agoraphobic, experienced anxiety attacks and nightmares and had difficulty focusing on even simple tasks. She felt unable to participate in recreational activities, such as skiing, that she had enjoyed and at which she had excelled throughout her life. More recently Claimant’s symptoms have improved. She has been able to return to her volunteer ski patrol activities and feels more confident in social situations. She continues to suffer from nightmares and occasional panic attacks, however, particularly when confronted with memory triggers of her employment at the bank.
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25. Ms. Maier has diagnosed Claimant as suffering from post-traumatic stress disorder (PTSD). According to the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition), patients with PTSD develop characteristic symptoms following direct personal exposure to an extreme traumatic stressor involving actual or threatened death, serious injury or harm to one’s physical integrity. These symptoms include recurrent and intrusive recollections of the event, recurrent nightmares, intense psychological distress or physiological reactivity when exposed to triggering events, diminished interest in previously enjoyed activities, detachment from others, anxiety and hypervigilance. Ms. Maier testified that Claimant exhibited many if not most of the symptoms associated with PTSD, all signs of intense fear, helplessness and horror. In her opinion, the traumatic stressors that gave rise to these symptoms consisted in the daily scrutiny, humiliation and bullying Claimant experienced working in a “hostile work environment” with a supervisor who “she perceived was harassing her.”
26. Concurrent with Ms. Maier’s counseling therapy, Claimant has treated as well with Dr. Veva Zimmerman, a psychiatrist. Dr. Zimmerman’s treatment has included both counseling and medications. Contrary to Ms. Maier’s diagnosis, Dr. Zimmerman has diagnosed Claimant as suffering from traumatic sleep disorder, somatization disorder and adjustment reaction with physical symptoms. The latter condition involves symptoms that are similar to those present with PTSD, but are caused by a triggering stressor that is not as extreme or life-threatening.
27. Claimant also has continued to treat on occasion with Dr. Fine, her primary care provider, who manages her other health issues. Dr. Fine believes that Claimant has not yet returned to the state of health she was in prior to November 2004. Neither she nor Ms. Maier has yet released Claimant to return to work.
28. None of Claimant’s treatment providers has ever spoken directly with Ms. Wheeler or any other bank personnel as to the stressful work environment Claimant described and upon which they based their diagnoses. Thus, while all of them concur that Claimant truthfully described the hostile work conditions under which she labored exactly as she perceived them, none of them could testify to any independent verification of those conditions.
29. The record does supply some objective verification of Ms. Wheeler’s supervisory style, and the stress it might have engendered among her subordinates, including Claimant. For example, Ms. Wilbur noted in one of her performance evaluations of Ms. Wheeler that she “needed to enhance her skills in giving negative feedback in a constructive way.” In another performance evaluation, Mr. Robinson stated that Ms. Wheeler “has presented a couple of instances where people have felt it was the person and not the issue.” And Ms. Wheeler herself acknowledged that she had “made employees cry” on occasion, although the record does not establish the particulars of those situations. Generally, however, Ms. Wheeler’s performance evaluations were favorable and reflected steady growth in both supervisory responsibilities and leadership qualifications.
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30. Ms. Wheeler admitted that her relationship with Claimant was “not an easy one,” and that at times she perceived Claimant’s demeanor to be “defensive.” Ms. Wilbur, Mr. Robinson and Ms. Towle all testified that in their experiences with Claimant she was resistant to change.
31. Claimant had no significant prior medical history of depression, anxiety or other psychological issues before November 2004. As is true for most people, there have been other psychological stressors in her life since that time, but none have impacted her in the way that her experience at the bank has. I find that the evidence establishes that Claimant’s perception of her work environment was so stressful as to result in a psychological injury.
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. In the current claim Claimant alleges that the stress to which she was subjected at work caused a psychological injury that disabled her from working, a so-called “mental-mental” claim. For such a claim to be compensable, Claimant first must show that the workplace stress she faced was significant and objectively real. Bluto v. Compass Group/Canteen Vending, Opinion No. 11-02WC (February 25, 2002). In addition, she must establish that the stress was unusual or extraordinary, that it amounted to something “of significantly greater dimension” than that encountered by other employees performing similar work. Crosby v. City of Burlington, 176 Vt. 107 (2003); Bedini v. Frost, 165 Vt. 167 (1996).
3. The Vermont Supreme Court has explained in some detail the basis for applying a stricter compensability standard to mental-mental claims than the one used for claims involving a physical injury. Crosby, supra; Bedini, supra. Suffice it to say, the Court has concluded that it is reasonable to place the burden on an employee “to deal with the normal strains of his or her occupation through training, temperament and experience.” Crosby, supra at ¶23.
4. With that standard in mind, the Commissioner previously has held that stress resulting from bona fide personnel actions is not compensable. A.B. v. Vermont Department of Corrections, Opinion No. 09-06WC (February 17, 2006). Thus, decisions to hire, fire, transfer, reallocate workforce resources or impose disciplinary action cannot be used by themselves to establish a compensable mental stress claim, no matter how inherently stressful these events might be. A.B., supra; Minkler v. Town of Brattleboro, Opinion No. 29-03WC (June 23, 2003); Bluto, supra.
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5. The gist of Claimant’s stress claim is that Ms. Wheeler misused her role as Claimant’s supervisor to bully, demean and mistreat her. Were there sufficient objective evidence to establish that Ms. Wheeler’s treatment of Claimant went beyond the reasonable exercise of her supervisory authority and trespassed instead into malicious, spiteful or morally reprehensible behavior, conceivably that could form the basis of a compensable claim. Certainly all employees must expect to deal from time to time with supervisors whose management style exasperates them, or with whom they simply do not see eye to eye. Minkler, supra. No employee, however, should have to subject him- or herself to behavior that is so malevolent or deliberately harmful as to undermine any legitimate managerial motive whatsoever.
6. Claimant has failed to establish that Ms. Wheeler’s treatment crossed over that line. The supervisory actions and decisions of which she complained were based on legitimate policy considerations specific to her job duties and represented reasonable managerial responses to her job performance. And while certainly Ms. Wheeler might have delivered her message in a manner more conducive to Claimant’s personality and work style, by itself her failure to do so is not so extraordinary or outrageous as to establish a compensable stress claim.
7. The stress to which Claimant was subjected may have been both significant and objectively real. It is not difficult to believe that when one’s job duties necessitate differential treatment or when the quality of one’s job performance is questioned, work-related stress might result. Having been precipitated by bona fide business and managerial considerations, however, stress of this kind is not so unusual as to be of a “significantly greater dimension” than that experienced by other similarly situated employees. Although work-related, it is not compensable. A.B., supra.
ORDER:
1. Claimant’s claim for workers’ compensation benefits is DENIED;
2. Because Claimant has not prevailed, she is not entitled to an award of attorney’s fees or costs under 21 V.S.A. §678.
DATED at Montpelier, Vermont this 11th day of March 2008.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

M. H. v. I.R.O.C., Inc. (February 6, 2008)

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

M. H. v. I.R.O.C., Inc. (February 6, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. H. Opinion No. 05-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
I.R.O.C., Inc For: Patricia Moulton Powden
Commissioner
State File No. X-59722
OPINION AND ORDER
Hearing held in Montpelier on October 4, 2007
Record closed on October 22, 2007
APPEARANCES:
Mark Kolter, Esq. for Claimant
Keith Kasper, Esq. for I.R.O.C., Inc. and First Comp. Insurance
ISSUES:
Whether the Claimant’s Deep Vein Thrombosis (DVT) and left thigh hemorrhage arose out of his work related injury and are compensable. Also, what is the correct whole person impairment?
EXHIBITS:
Joint Exhibit 1 – Medical Records
Claimant’s Exhibit 1 – 4
Deposition Testimony of Dr. Christopher Rickman
CLAIM:
Claimant seeks payment of all medical benefits associated with his deep vein thrombosis and left thigh hemorrhage, an award of permanency in the amount of 5% whole person and if successful, an award of attorney’s fees and the costs of litigation. All compensation benefits payable for the left hip fracture itself have been paid except for the 3% whole person impairment found by Dr. Bucksbaum for the continued risk of DVT. The permanency
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impairment rating was 2% for the hip impairment, which is included the Claimant’s request for a total of 5% whole person permanent impairment.
STIPULATED FACTS:
1. On March 5, 2006, Claimant was an employee of Defendant within the meaning of the Workers’ Compensation Act.
2. On March 5, 2006, Defendant was the employer of Claimant within the meaning of the Workers’ Compensation Act.
3. On March 5, 2006, Claimant suffered a personal injury by accident arising out of and in the course of his employment with Defendant resulting in a broken left hip.
4. On March 5, 2006, Claimant had an average weekly wage of $576.92 resulting in an initial compensation rate of $384.63.
5. On March 5, 2006, and at all times relevant thereafter, Claimant had one dependant.
6. Claimant underwent surgery at Boston Medical Center for his broken left hip on March 9, 2006.
7. On May 11, 2006, Claimant was laid off by Defendant due to a lack of funding for his position.
8. Claimant was found to be at medical end result by Dr. Tornetta and a Form 27 filed effective July 31, 2006.
9. On August 17, 2006, Claimant suffered a deep vein thrombosis (DVT) in his left thigh, resulting in hospitalization.
10. On November 17, 2006, Claimant was evaluated at Claimant’s request by Dr. Mark Bucksbaum for a permanency evaluation resulting in a finding of medical end result and a permanent impairment of 2% whole person for the loss of range of motion for the left hip fracture and a 3% whole person impairment rating for Claimant’s DVT and left thigh hemorrhage.
11. On November 20, 2006, Claimant was again hospitalized due to a left thigh hemorrhage resulting in further surgery.
12. The sole issue for resolution in this matter is whether Claimant’s DVT and left thigh hemorrhage were caused by the March 6, 2006 work related injury.
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FINDINGS OF FACT:
1. The Department takes judicial notice of all forms filed in this case.
2. Claimant has been wheelchair-bound and a T-10 paraplegic for the past twenty years due to a motorcycle accident in 1988.
3. On March 5, 2006, Claimant was wheeling from the parking lot to his place of work when his wheelchair was suddenly halted by a snow hidden threshold between the parking lot and the sidewalk.
4. The impact caused Claimant to fall out of his wheelchair and land on his hip.
5. At the time, Claimant heard a pop, but felt no pain due to his paralysis.
6. Claimant got into his chair and began his work day but began to feel ill. He secured a replacement for himself at work and left. He remained in bed for two days and then went to North Country Hospital Emergency Room where he was diagnosed with an intertrochanteric fracture, a broken left hip.
7. Claimant was referred to the Boston Medical Center for surgery to repair his hip. Surgery was performed on March 9, 2006. Orthopedic hardware was installed in his femur.
8. Claimant was prescribed Lovenox as a prophylaxis for DVT until March 21, 2006 when he was advised to take aspirin. Claimant discontinued this practice after several weeks.
9. Claimant experienced significant swelling for at least two months after the surgery and could not fit in his wheelchair and thus, was bedridden until May. He never regained his full activity level prior to the DVT and resulting bleed.
10. In June, Claimant was able to return to his wheelchair full-time.
11. On July 18, 2006 Claimant’s doctor in Boston declared him at medical end result and released him to return to work full-time.
12. No further prophylaxis for DVT was prescribed to Claimant at that time.
13. On August 13, 2006 Claimant noticed his left leg was beginning to swell again and was hot to the touch. This is less than a month after being found at medical end result.
14. On August 17, 2006, Claimant called the local hospital and spoke with a nurse who suggested that he might be suffering from DVT and Claimant went to the emergency room where an ultrasound test confirmed DVT.
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15. Claimant was prescribed Lovenox and Coumadin, blood thinners, to help resolve the problem. Claimant remained on Coumadin until November 21, 2006. On the 21st of November, Claimant experienced an arterial bleed or left thigh hemorrhage. His local hospital did not have the correct blood to keep the Claimant alive so he was airlifted to Dartmouth Hitchcock Medical Center. Both Dr. Bucksbaum and Claimant’s treating physician of two years, Dr. Christopher Rickman, found the bleed the direct result of taking blood thinners for the DVT. Surgery to stop the bleed was performed and Claimant was given a Greenfield filter which is inserted to filter blood clots before they reach major organs, thus, eliminating the need for blood thinners.
16. There are numerous medical records from Dartmouth Hitchcock Medical Center regarding the hematoma or blood clot in the Claimant’s thigh. All the records state that the clot was the result of blood thinners taken after the DVT which occurred after surgery. In addition, Dr. Christopher Rickman clearly stated in his deposition that no one can be sure exactly how long after surgery the elevated risk for a DVT lasts.
17. The parties’ experts presented opposing medical opinions as to what caused the DVT. Claimant’s primary treating physician, Dr. Christopher Rickman, through his deposition testimony, stated that the DVT was caused by the hip fracture, the repair of the fracture and his long period of immobility following surgery. The Claimant did not possess other risk factors for DVT, such as being a smoker or a family history of DVT. He did, as we know, have one pre-existing factor in that he was in a wheelchair due to his paraplegia. Dr. Rickman is certified in internal medicine and is very familiar with Claimant’s case. He saw him regularly for the two years prior to the fracture and after. He was very clear that the DVT was the result of the fracture and the hemorrhage was caused by the treatment for the DVT which are blood thinners.
18. Dr. Rickman did his internship at Dartmouth Hitchcock Hospital and received his medical degree from the University of Pennsylvania. His opinions were given to a degree of medical certainty.
19. The immobility and inactivity after the surgery of the hip fracture is a known risk factor for DVT. Dr. Rickman was also familiar with the Claimant’s activity level prior to his fracture which he described as above average. The Claimant was very active at his employment which involved sporting events, such as wheelchair basketball and other sports. He also enjoyed riding his ATV and snowmobile. He was able to lift himself from his wheelchair to the examining table. He had a 60 to 70 hour a week work schedule. He was also active with his son, and did housework like vacuuming, dishes, bathroom cleaning and floor washing.
20. The Claimant appears fit and to have the upper body of a body builder.
21. Unfortunately, his hip surgery left him largely on bed rest for months. Although by June he was out of bed and back in his wheelchair, and by August he was able to resume some of his activities. The Claimant was never able to fully resume his prior activity level.
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22. Dr. Mark Bucksbaum is specifically trained and experienced in managing medical care for patients with paraplegia as well as a Certified Independent Medical Examiner. Dr. Bucksbaum is a biomedical engineer as well as being certified in physical medicine and rehabilitation, the specialty that trains doctors to deal with all areas related to patients with spinal cord injuries. Also, due to his bioengineering training, he is a specialist in fluid dynamics which, to him, is the essence of this case.
23. Dr. Bucksbaum performed a detailed permanency evaluation and physical examination of the Claimant on November 17, 2006. He found the DVT to be a direct result of his compensable injury. In his testimony, Dr. Bucksbaum listed an unbroken chain of events which he stated came together to cause the Claimant’s DVT. In addition to the risk factors already related, Dr. Bucksbaum pointed to the insertion of hardware in Claimant’s hip as a contributing fact to Claimant’s DVT. Dr. Bucksbaum opined that any device placed in the thigh puts additional pressure on surrounding blood vessels. He stated the callous which developed over the hardware in the Claimant’s thigh also added to the risk for DVT, as did the prolonged swelling from surgery and post injury recuperation. Dr. Bucksbaum opined that six of the seven risk factors for DVT were present in the Claimant’s case and were all related to the work injury. Dr. Bucksbaum believed one of the reasons the Claimant had been able to avoid blood clots after almost twenty years since the onset of his paraplegia was the high activity level he maintained prior to his surgery for his work related accident. The seventh risk factor was that Claimant had paraplegia and was in a wheelchair.
24. Dr. Bucksbaum stated that the fracture had occurred in the same compartment of the injured left thigh as the DVT implying the relationship between the fracture and the deep vein thrombosis.
25. Dr. Backus, the expert Defendant hired to do a medical record review, is also a highly qualified certified Independent Medical Examiner. He does not, however, have the same level of expertise as Dr. Bucksbaum dealing with spinal cord injury patients. He opined that the fact that Claimant was wheelchair-bound immobilized his legs which caused his DVT. Immobilization is a major risk factor for DVT. He did not consider the hip fracture sustained at work or other risk factors from Claimant’s surgery as a cause of Claimant’s injury. Dr. Backus did not consider the high level of activity that Claimant engaged in prior to his work injury particularly significant when made aware of it during his testimony. Dr. Backus did not physically examine the Claimant because he believed a physical evaluation after a DVT would provide no further insight into the causation issue.
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26. Dr. Bucksbaum determined that Claimant had a permanency rating of 2% for loss of motion and a 3% rating for a condition requiring perpetual maintenance and treatment through medication or a device. He determined the whole person permanency impairment was 5% based of the AMA Guides. Dr. Backus did not address this issue except to say that he did not believe that the Claimant had suffered further risks due to the surgery beyond the three-month period. He did, however, admit that it is conceivable that some alteration of his physiology from the fracture and surgery decreased activity level or something particular to his physiology could have contributed to his risk for DVT.
27. Of particular note to Dr. Backus was that the DVT occurred more than five months after his work-related injury. Dr. Backus opined that the literature regarding this issue introduced through Dr. Bucksbaum did not support a significant increased risk for DVT approximately five months after surgery. According to Dr. Backus’s reading of the literature, after three months recuperation from surgery, there is a decreased risk for DVT. Dr. Backus also disagreed that the surgical hardware increased Claimant’s risk for DVT and, as previously stated, he did not believe that the previous high activity level of the Claimant was significant, since he could not move his legs. He discounted any increased blood circulation that the exercise provided. The article introduced by Dr. Bucksbaum did not refer to the insertion of hardware as a risk factor. Dr. Rickman also agreed in his deposition that he was not aware that the insertion of hardware itself would have increased the risk for DVT, but he believed, more importantly, it was the surgery and trauma that increased the risk.
28. All of the doctors gave their opinions to a degree of medical certainty. The Department recognizes that all of the doctors are qualified to give expert opinions in this case.
29. Of significance to Dr. Rickman, the treating physician was the fact that the Claimant had no problem with blood clots prior to his surgery for almost twenty years. All the doctors agreed that lack of physical activity and immobility, such as a bed rest and the surgery itself, are all factors that could contribute to DVT. A major point of disagreement was whether the length of time after the surgery impacted the likelihood of the Claimant having DVT and the bleed and therefore, their relationship to the work injury.
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30. The article introduced by Dr. Bucksbaum was not written by him but used to explain the risk factors for DVT. The article, John Heit et al, Risk Factors for Deep Venous Thrombosis and Pulmonary Embolism, 160 Archives of Internal Medicine, 811-13 (March 20, 2007), stated that DVT mainly affects veins in the lower leg and thigh and quantified risk percentages. Dr. Backus stated the study referred to was limited to 90 days after surgery and there was no life long risk associated with the risk except the Claimant being in a wheelchair. The major risks listed are prolonged sitting, bed rest, recent surgery – particularly of the hip, and fractures. Dr. Bucksbaum added additional factors he felt were important based on his experience and expertise. He also stated that the point of the article was to quantify lifetime risk factors. He stated the 90 day limitation was for those participating in the study and did not limit the results of the study to 90 days. The Department finds him credible on these issues due to his expertise, training and experience caring for persons with paraplegia.
31. Dr. Bucksbaum measured range of motion and thigh measurements in his examination. He found Claimant’s left thigh larger than the right due to the hardware inserted and callous which formed over the injury site. Dr. Bucksbaum noted that the Claimant was at risk for hemorrhage due to his use of blood thinners after his DVT. At the time of his examination, three days prior to the Claimant’s bleed, Dr. Bucksbaum recommended having a Greenfield filter inserted as opposed to using blood thinners. The filter prevents blood clots from reaching vital organs.
32. Dr. Christopher Rickman, the Claimant’s treating physician stated that “without the fracture (from the work injury), he (the Claimant) would not have developed deep vein thrombosis. Without deep venous thrombosis, he (the Claimant) would not have had a spontaneous bleed which required hospitalization and transfer to a tertiary care center” in his letter dated March 20, 2007.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The Claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than possibility, suspicion, or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
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3. The trier of fact may not speculate as to an obscure injury which is beyond the ken of laymen. Laird v State Highway Dept., 110 Vt. 981 (1938). If the Claimant’s injury is obscure, expert testimony is needed as the sole means of laying a foundation for an award. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
4. Expert medical testimony is required to make the causal connection between employment, an injury and the benefits sought. Martin v. Woodridge, Op. No. 11-97WC (June 13, 1997).
5. When determining the weight to be given to expert opinions in a case, the Department has looked at several factors: (1) whether the expert has had a treating physician relationship with the claimant; (2) the professional’s qualifications, including education and experience; (3) the evaluation performed, including whether the expert had all the relevant medical records in making the assessment; and (4) the objective basis underlying the opinion. Yee v. International Business Machines, Op. No. 38-00WC (November 9, 2000).
6. In this case, factors 1and 2 are most relevant. Dr. Rickman is the treating physician and saw him regularly for at least two years. Therefore, the Department does give Dr. Rickman’s opinion some additional weight. Dr. Rickman was very clear that he believed the DVT and results from that condition were as a result of the Claimant’s compensable accident. Dr. Mark Bucksbaum agreed and gave detailed testimony as to why he held this belief. Dr. Bucksbaum’s testimony is also given some additional weight since he specializes and is certified in the care of paraplegics and is a biomedical engineer. He agreed with Dr. Rickman that Claimant’s DVT and hemorrhage were the direct result of his work injury. Only Dr. Backus disagreed and his familiarity with the patient was through records only. This, in itself, is not critical to the case because it was not necessary to physically review the patient months after the injury had occurred in this type of case but Dr. Backus did not seem as aware of all of the facts as the other doctors. Thus, the treating physician and Dr. Bucksbaum’s opinions are found to be the most credible and comprehensive.
7. Although Defendant raises some arguments about Dr. Bucksbaum’s testimony being unsupported by an article submitted by him on DVT, Defendant’s argument is not persuasive. First, Dr. Bucksbaum is an expert in this area of medicine and is found to be credible. Regardless of whether the hardware put in place had any negative effect, both Dr. Rickman and Dr. Bucksbaum credibly determined that Claimant’s subsequent problems after his compensable fall were the result of the fall. Dr. Backus disregarded the entire trauma that Claimant underwent simply because the problem with DVT occurred longer than 90 days after surgery and he was wheelchair-bound prior to the accident.
8. Dr. Bucksbaum found the Claimant was at total medical end on November 21, 2006 when the Greenfield filter was installed. The Department finds him the most credible on this issue.
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9. The Department finds, as did Dr. Rickman, the Claimant’s treating physician and Dr. Bucksbaum, that “without the fracture (from the work injury), he (the Claimant would not have developed deep vein thrombosis. Without deep venous thrombosis, he (the Claimant) would not have had a spontaneous bleed which required hospitalization and transfer to a tertiary care center” in Dr. Rickman’s letter dated March 20, 2007.
10. The Department finds, based on Dr. Bucksbaum’s testimony, that the Claimant has a permanent whole person disability of 5%.
ORDER:
Based on the foregoing findings and conclusions, the Commissioner orders the claim to be adjusted as follows:
1. The Claimant will receive payment for all medical costs related to his DVT and left thigh hemorrhage which are now determined both reasonable and necessary and as a result of his work injury in the course of his employment;
2. The Claimant will receive 5% whole person impairment permanency benefits;
3. Attorney’s fees for 118.45 hours will be awarded at the $90.00 per hour rate pursuant to the department’s fee schedule. Paralegal costs will be awarded for 19.10 hours at the $60.00 per hour rate pursuant to the department’s fee schedule. Costs will be awarded if properly adjusted. The Department’s fee schedule for Independent Medical Examiners is $300.00 per hour. The rates requested are beyond the scope of the rules which the Claimant’s attorney is already aware of. The request for costs should be adjusted and resubmitted to both opposing counsel and the Department within thirty days.
4. Interest is awarded pursuant to the relevant statutory rates.
DATED at Montpelier, Vermont this 6th 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.

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