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Joseph Rivers v. University of Vermont (February 10, 2009)

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Joseph Rivers v. University of Vermont (February 10, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Joseph Rivers Opinion No. 05-09WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
University of Vermont
For: Patricia Moulton Powden
Commissioner
State File No. P-16044
OPINION AND ORDER
Hearing held in Montpelier on March 18, 2008
Record closed on May 2, 2008
APPEARANCES:
Frank Talbott, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s low back condition causally related to his January 27, 2000 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit A: Workers’ Compensation Incident Checklist
Claimant’s Exhibit B: Facsimile from Debbie Tamayo to Nancy Bogue, February 4, 2000
Claimant’s Exhibit C: Two-page memo (undated) from Jeanne Deslauriers, RN
Claimant’s Exhibit D: Letter from Dave Rogers to Thomas Gustafson, February 3, 2000
Claimant’s Exhibit E: Undated letter from Dave Rogers
Defendant’s Exhibit 1: Deposition of H. James Forbes, MD, taken on March 10, 2008
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, attorney’s fees and costs pursuant to 21 V.S.A. §§664 and 678(a)
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s Employment Background and Prior Medical History
3. Claimant began working at Defendant’s athletic facility in 1995. His responsibilities were varied, but primarily revolved around the Gutterson Field House ice rink. Among other tasks, Claimant operated and maintained the Zamboni. During the six months per year that the ice rink was active, Claimant typically worked 60 hours weekly; during the off-season, he worked 40 hours per week.
4. In addition to his work for Defendant, in 1996 Claimant began working part-time for another local ice rink. By 1997 Claimant was working 7 days, as much as 70 hours per week.
5. Claimant also cared for his wife, who suffered from multiple sclerosis. On a daily basis Claimant had to assist her with multiple transfers, lifting her, for example, from bed to wheelchair or from wheelchair to bath, and then back again as well. Claimant regularly performed these tasks for his wife until the couple separated in 2002.
6. Claimant’s prior medical history was significant for both knee and back pain. Claimant suffered from osteoarthritis in his knees, for which ultimately he underwent a total knee replacement in 2003. As for his back, Claimant had fractured his third and fourth lumbar vertebrae in 1977. Medical records document that he suffered from “chronic low back pain” at least as early as 1998. Claimant occasionally took pain medications for these symptoms, but did not actively treat for them otherwise. At one point Dr. Gunther, his primary care physician, recommended a book, “Care for Your Back,” to help Claimant deal with his low back pain, which Dr. Gunther attributed largely to “body mechanics.”
The Work Injury
7. On January 27, 2000 Claimant was exiting the field house when a large amount of snow slid off the roof, hit the door and propelled Claimant some distance back into the building. Claimant landed on his buttocks, back and knee. The force of the impact caused his neck to snap back.
8. Claimant reported the incident to his supervisor and, a few days later, sought medical treatment with his primary care provider.
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9. Claimant testified that his symptoms immediately after the incident included low back and neck pain as well as headaches. The early medical records documented these symptoms, but focused primarily on neck pain as the most troublesome complaint. For example, Claimant’s primary care provider, Dr. Gunther, described the injury as “whiplash.” Dr. Tverras, the chiropractor who treated Claimant in early February 2000, reported subjective complaints of “moderate to severe neck, shoulder and lower back pain,” but specifically diagnosed only a “cervical-thoracic strain/sprain.” Likewise, the physical therapist who treated Claimant in February and March 2000 noted some complaints of low back pain, but categorized the diagnosis as “cervical strain.”
10. Defendant accepted Claimant’s injury, which it described as a “pinched nerve neck,” as compensable and paid workers’ compensation benefits accordingly.
11. Following the January 2000 incident, Claimant was totally disabled from working until mid-March 2000, when he returned to work part-time. By the end of that month, Claimant had returned to work full-time.
Claimant’s Medical Treatment
12. Claimant testified that although his early treatment after the January 2000 incident focused on his neck injury, his low back pain also was troublesome. He stated that he was surprised that none of his treatment providers suggested x-rays of his back.
13. After he returned to work, Claimant treated informally for his low back pain with Defendant’s athletic trainers, to whom he had access by virtue of his job. Claimant acknowledged that he occasionally had visited the athletic trainers for heat treatments prior to January 2000, but had not done so regularly. After the January 2000 incident, however, he visited the training room on a daily basis for heat, ice and electrical stimulation treatments. Both Claimant’s supervisor and the Athletic Room Trainer corroborated this testimony.
14. Claimant did not seek formal treatment for his low back complaints until September 2000, when he presented again to Dr. Gunther. Claimant testified that he did so because his symptoms had failed to abate despite his efforts to treat them informally with Defendant’s athletic trainers. Dr. Gunther’s office note reflects a slightly different situation, however. It states that Claimant’s back had “stiffened up recently” and was “much worse.” Dr. Gunther made no reference to the January 2000 incident as the precipitating event for Claimant’s complaints of low back pain, and instead mentioned that Claimant had been lifting his wife more of late. He diagnosed degenerative joint disease with chronic low back pain “from activity.”
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15. In December 2000 Dr. Gunther reported for the first time that Claimant was experiencing radicular symptoms, including pain radiating into his groin and difficulty sitting. An MRI revealed multi-level degenerative disc disease, with some foraminal narrowing at various levels. In an effort to treat Claimant’s symptoms conservatively, Dr. Gunther referred him for physical therapy. Dr. Gunther also referred Claimant for further evaluation with Dr. Davignon, an orthopedist, who in turn referred Claimant for a neurological evaluation with Dr. Ciongoli. Interestingly, both doctors’ reports focused on Claimant’s neck pain as the area of his primary complaints, not his low back pain. As to the latter, both doctors mentioned Claimant’s lifting activities in the context of caring for his wife, but neither mentioned the January 2000 work accident as a contributing factor or relevant event.
16. Also in December 2000 Claimant began to pursue workers’ compensation benefits for his low back complaints, alleging that they were causally related to the January 2000 work accident. In March 2001 Defendant formally denied its responsibility for any such benefits.
17. Aside from the course of physical therapy prescribed by Dr. Gunther, Claimant did not treat formally for his low back pain from early 2001 until 2004. During that time, he continued to receive informal treatments from Defendant’s athletic trainers on a regular basis. He also continued to work his customary long hours, as much as 7 days a week and 70 hours weekly between his job for Defendant and his job at the other local ice rink. Until 2002, when Claimant and his wife separated, he continued to lift and transfer her many times daily.
18. Claimant’s medical records reflect that his low back pain never abated during this period, but did seem to wax and wane at times. In 2002 Dr. Gunther reported that Claimant’s back pain was “doing much better.” In 2004, however, he reported that it was “still troubling.”
19. By 2005 Claimant’s low back pain was radiating down his leg and into his right foot. A repeat MRI again revealed multi-level degenerative disc disease, but this time with severe foraminal narrowing at L5-S1 and compression of the L5 nerve root. These findings document that Claimant’s degenerative disc disease had progressed significantly from the time of his earlier MRI in December 2000.
20. In October 2005 Claimant underwent surgery for an unrelated medical problem. He filed for long-term disability benefits, citing both that problem and his chronic low back pain as precluding him from continuing to work. Claimant has not worked since.
21. In an effort to treat Claimant’s worsening symptoms of radiating low back pain, in September 2005 Dr. Gunther referred him to Dr. Musman, an anesthesiologist and pain management specialist. From September 2005 until March 2008 Dr. Musman treated Claimant with a variety of injections and other interventional procedures in an attempt to reduce nerve inflammation and control Claimant’s pain. None of these procedures resulted in long-term pain relief.
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22. Ultimately Claimant underwent two surgeries, both at the L5-S1 level, to address his low back pain, the first in June 2007 and more recently in January 2008. As of the date of the formal hearing, he had not yet been released to return to work and had not been declared at end medical result.
Expert Medical Opinions
23. All of the physicians who have evaluated and/or treated Claimant’s low back pain agree that he suffered from degenerative disc disease that most likely predated the January 2000 work incident. Disagreement exists, however, as to the extent, if any, to which that incident aggravated or accelerated the progression of the disease to the point where it required medical treatment and became disabling.
24. Dr. Gunther believes that the January 2000 work incident did in fact aggravate Claimant’s pre-existing degenerative disc disease. In his opinion, the incident caused more than a mere muscle strain or soft tissue injury. Dr. Gunther testified that although Claimant had suffered from chronic low back pain previously, it had been a stable condition, and had never interfered with either work or other daily activities. After the January 2000 incident, Dr. Gunther testified, the condition became unstable, with increased symptoms that required daily attention from Defendant’s athletic trainers. These symptoms ultimately progressed to the point where they interfered with previously manageable activities and precluded Claimant from continuing to work.
25. Dr. Gunther acknowledged that he did not examine Claimant’s low back after the January 2000 incident and that his medical records do not even reflect any complaints of low back pain until some months later. Dr. Gunther admitted that it was “unusual” for him not to have mentioned Claimant’s complaints of low back pain in his office notes. The omission is particularly troublesome given Dr. Gunther’s training, which included a residency under the tutelage of Dr. Rowland Hazard at the Spine Institute of New England. As part of that training, Dr. Gunther assisted in developing a spine injury protocol for primary care providers that encompassed techniques for taking a relevant history from patients complaining of low back pain, conducting a thorough physical examination and making appropriate specialist referrals.
26. Dr. Musman, the pain management specialist who treated Claimant from 2005 until 2008, shared Dr. Gunther’s opinion as to causation. Dr. Musman testified that the January 2000 event was definitely a contributing factor in the development of Claimant’s radicular symptoms and ultimately his need for surgery.
27. Dr. Musman admitted that his opinion was based primarily on Claimant’s recollection of how his symptoms had progressed rather than on his own personal examinations. He further admitted that there likely was a strong genetic component to Claimant’s degenerative disc disease, particularly given that it existed at multiple levels in Claimant’s spine. Last, Dr. Musman acknowledged that the natural progression of degenerative disc disease can be affected by lifting and twisting activities, such as those that Claimant performed while caring for his wife.
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28. Dr. Forbes, an orthopedic surgeon, performed a medical records review and testified on Defendant’s behalf. In Dr. Forbes’ opinion, the January 2000 incident had no effect whatsoever on the natural progression of Claimant’s pre-existing degenerative disc disease. Central to Dr. Forbes’ opinion was the fact that Dr. Gunther’s office notes did not reflect any complaints of low back pain immediately after the January 2000 incident, and that whatever pain complaints were documented by Claimant’s other early treatment providers did not even rise to the level of necessitating x-rays. Dr. Forbes noted that the natural progression of degenerative disc disease is such that with or without trauma it gradually worsens and produces more symptoms over time. Thus, he attributed Claimant’s ultimate disability in 2005 and need for surgery thereafter entirely to the underlying disc disease and not at all to the January 2000 work incident.
CONCLUSIONS OF LAW:
Statute of Limitations
1. As a preliminary matter, Defendant argues that Claimant’s claim for workers’ compensation benefits for his lower back complaints is time-barred because he failed to pursue it within the applicable limitations period, six years from the date of injury. 21 V.S.A. §660(a).1 This argument lacks merit. Claimant’s injury occurred in January 2000 and he initiated his claim for benefits related to his lower back pain in early 2001. Defendant denied the claim in March 2001. Claimant retained counsel in 2006, and filed a Notice and Application for Hearing in October 2006. All of these actions occurred within the six-year limitations period provided by statute. Claimant’s claim is not time-barred.
Compensability
2. In workers’ compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
3. At issue in this claim is whether Claimant’s January 2000 work accident aggravated or accelerated the progression of his pre-existing degenerative disc disease so as to entitle him to workers’ compensation benefits. Vermont law is clear that “the aggravation or acceleration of a pre-existing condition by an employment accident is compensable.” Stannard v. Stannard, 175 Vt. 549 (2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 595 (1989).
1 The statute since has been amended to reduce the limitations period to three years, but that amendment does not apply to the current claim.
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4. As the Vermont Supreme Court stated in Stannard, when considering a progressively degenerative disease, “where ‘the disease, if left to itself, and apart from any injury, would, in time, have inevitably caused a complete disability,’ the causation test becomes whether, due to a work injury or the work environment, ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard, supra at ¶11, quoting Jackson, supra at 596.
5. The question in the current case, therefore, is whether Claimant’s degenerative disc disease would not have progressed to the point of first becoming disabling in 2005 and subsequently requiring surgery were it not for the January 2000 work accident. Credible medical evidence is required to make this determination. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
6. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
7. With a five-year delay between the allegedly accelerating event and the resulting disability, it is difficult to draw the required causal connection. Neither Dr. Gunther’s testimony nor Dr. Musman’s is sufficiently convincing. The basis for Dr. Gunther’s conclusions – that Claimant’s symptoms increased after the January 2000 accident, required daily attention and interfered with previously manageable activities – is not even reflected in his own office notes. This is an oversight I cannot reconcile with either his training or the thoroughness of his notes in other areas.
8. As for Dr. Musman, his opinion suffers from too much reliance on Claimant’s own recollections as to causation. Dr. Musman testified that he believed the January 2000 accident to be a contributing factor in the progression of Claimant’s degenerative disc disease primarily because Claimant himself had emphasized the event when reporting his history. Again, however, Dr. Gunther’s contemporaneous medical records do not substantiate Claimant’s recollections. As the critical component of Dr. Musman’s opinion, therefore, they are shaky at best.
9. Even though Dr. Forbes’ opinion was based solely on a medical records review rather than a physical examination, I find it to be the least speculative and therefore the most credible. The medical records tell the story here, and Dr. Forbes’ reliance on them strengthens rather than weakens his opinion.
10. I conclude, therefore, that Claimant has failed to sustain his burden of proving that the January 2000 work incident aggravated or accelerated his pre-existing degenerative disc disease such that his disability came on earlier than otherwise would have occurred. For that reason, his claim for benefits must fail.
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ORDER:
Based on the foregoing findings and conclusions, Claimant’s claim for workers’ compensation benefits is hereby DENIED.
DATED at Montpelier, Vermont this 10th day of February 2009.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

R. O. v. Buttura & Sons (December 15, 2008)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

R. O. v. Buttura & Sons (December 15, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. O. Opinion No. 52-08WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
Buttura & Sons
For: Patricia Moulton Powden
Commissioner
State File No.X-03956
OPINION AND ORDER
Hearing held in Montpelier on September 5, 2008
Record closed on October 10, 2008
APPEARANCES:
Craig Jarvis, Esq., for Claimant
Eric Johnson, Esq., for Defendant
ISSUE:
Is Claimant’s right shoulder injury causally related to his employment and if so, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Claimant’s Exhibit 1: Medical records
Claimant’s Exhibit 2: Photographs of exterior of Claimant’s home
Defendant’s Exhibit A: Medical records
Defendant’s Exhibit B: Dr. Landvater’s fee schedule
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642;
Medical benefits pursuant to 21 V.S.A. §640;
Permanent partial disability benefits pursuant to 21 V.S.A. §648;
Interest pursuant to 21 V.S.A. §664;
Attorney’s fees and costs pursuant to 21 V.S.A. §678;
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FINDINGS OF FACT:
1. At all times relevant to these proceedings Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms contained in the Department’s file relating
to this claim.
3. Defendant is a granite shed business. Claimant is a monumental granite draftsperson and worked for Defendant for several years.
4. Defendant has a lay-off period in the winter. When work slows down Defendant’s workers clean up the facility in part by disposing of file boxes or by filling boxes with old files and moving them upstairs for storage.
5. On January 9, 2006 Claimant returned from vacation. He helped move file boxes from the first floor to the second floor.
6. Claimant was over fifty and was told he did not need to help move boxes. However, he was not explicitly prohibited from doing so.
The Incident
7. Claimant helped move four boxes. He raised the first three boxes from desk level and carried them upstairs. The last box was on the floor. When Claimant bent down to pick it up he tossed it up to get a better grip on it and then held it by its sides.
8. Claimant testified that when the box landed in his arms from the toss, he felt pain in his right shoulder. He stated that upon placing the box down, he told his co-workers that he had hurt his shoulder. All of the men present with Claimant at that time testified at hearing. Only one stated that he heard Claimant say something about the box but he did not recall exactly what was said.
9. Claimant continued to work for the next two weeks without mentioning any pain or shoulder complaints to his co-workers. After this incident but within the next several weeks Claimant lifted one or two boxes of frozen chicken at work for reasons unrelated to this claim. He testified that he did so with his left arm and shoulder so that he would not hurt his right arm.
10. On January 23, 2006 Claimant informed his supervisor, Michael Piro, that he had injured his right shoulder while moving boxes at work on January 9th and that he was going to see a doctor.
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Medical History
11. Claimant saw his primary care provider, Dr. Peter Dale, on January 23, 2006. Dr. Dale’s office note for that date states: “1/9/06 – lifting boxes at work 30-40 lbs – new pain on top of shoulder [increased pain at night, minor pain during the daytime].” In his assessment, Dr. Dale wrote, “lifting related acute onset pain.” Dr. Dale ordered an MRI, which revealed a rotator cuff tear, and then referred him to Dr. Stephanie Landvater for surgical treatment.
12. On March 9, 2006 Dr. Dale took Claimant out of work pending his examination with Dr. Landvater. Dr. Landvater examined Claimant on March 14, 2006 and determined that he was totally disabled from working.
13. Claimant underwent surgical repair of his right shoulder rotator cuff tear on March 20, 2006. Dr. Landvater stated that when she viewed the injury during surgery it appeared to have an “acute” look and that its location was more consistent with a chronic tear. Relying primarily on Claimant’s account of the January 9th lifting incident, Dr. Landvater determined that the rotator cuff tear was work-related. Later Claimant had a recurrent tear due in part to possible infection of the previous wound. He underwent a second surgical repair on April 27, 2006.
14. At Defendant’s request, Dr. John Peterson saw Claimant for an independent medical examination on May 7, 2006. Based on the reported mechanism of injury, Dr. Peterson found that Claimant’s right shoulder rotator cuff tear was work-related. Later, however, Dr. Peterson reviewed Dr. Leon Ensalada’s IME report, which found Claimant’s injury to be unrelated to his employment. After reading the report, Dr. Peterson then changed his opinion on causation and stated that he agreed with Dr. Ensalada.
15. Given the circumstances of this claim, the fact that both Dr. Landvater and Dr. Peterson relied on Claimant’s subjective report of how the injury occurred in determining it to be work-related is troublesome. First, the alleged incident was unwitnessed, and Claimant’s co-workers could not even corroborate his testimony that after lifting the box he told them he had hurt his shoulder. Second, Claimant delayed reporting his injury, continued to work and did not seek medical treatment for two weeks after the January 9th incident. Last, as noted infra, Finding of Fact 22, Claimant’s inconsistent statements, both at the hearing and in the context of other legal and financial matters, render his credibility suspect.
16. Dr. Leon Ensalada conducted an independent medical examination on November 8, 2006. Dr. Ensalada determined that Claimant’s shoulder injury was not work-related because “the manner in which the Claimant claims to have lifted the box would have no effect on his subacromial space” and thus would not cause the injury that occurred. Dr. Ensalada also disputed Dr. Landvater’s ability to discern whether an injury is acute or the result of a longstanding degenerative process merely by viewing it during surgery.
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17. Dr. Ensalada found that Claimant had chronic rotator cuff tendonitis caused by a decreased subacromial space. The decrease in the space caused chronic rubbing of the rotator cuff tendons against the subacromial arch and an abnormal configuration of his acromion in addition to arthritic spurs, inflammation and swelling. This process continued until the frayed rotator cuff tendons failed completely and tore. Dr. Ensalada found objective evidence of these findings in the February 22, 2006 MRI.
18. Dr. Ensalada also testified that if Claimant had torn his rotator cuff while lifting the box on January 9, 2006 he would not have been able to continue to work without complaint for almost three weeks thereafter, due to the amount of pain he would have had.
19. Both experts agreed that Claimant had a severe degenerative condition in his shoulder that could have caused his rotator cuff to tear at any time.
20. Dr. Landvater placed Claimant at end medical result on March 7, 2007. She rated him with a 5% whole person permanent impairment and released him to work on March 20, 2007.
21. In a medical procedure unrelated to this claim, Claimant underwent rotator cuff surgery on his left shoulder in 2008, performed by Dr. Michael Imobersteg. Of note is Dr. Imobersteg’s report stating that prior to surgery he informed Claimant that the tear might not be reparable due to the chronicity of the problem.
Claimant’s Credibility
22. Claimant has had significant legal and financial problems in the past in which his credibility reasonably might be deemed suspect. On one occasion, he was involved in a fight where he lied to the police regarding facts about a gun. Although he later corrected his statement, the fight led to a conviction for assault. There also was credible evidence that Claimant was terminated or asked to quit his former job due to some missing funds. Claimant has been sued three times for failure to pay debts. Perhaps most relevant to the current matter, Claimant made statements in his testimony regarding this claim that were inconsistent with prior statements.
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CONCLUSIONS OF LAW:
1. Unfortunately, the truth will never be known as to whether Claimant really injured his right shoulder while lifting a box at work on January 9, 2006. Given that he delayed two weeks before reporting his injury, Claimant’s credibility is a key issue in resolving the causal relationship question. With an unwitnessed accident, a late report, a delay in seeking treatment and Claimant’s inconsistent statements, the factual evidence must be evaluated with great care. K.C. v. Windham Northeast Supervisory Union, Opinion No. 45-06WC (November 17, 2006), citing Fanger v. Village Inn, Opinion No. 5-95WC (April 25, 1995). It is black-letter law, furthermore, that Claimant bears the burden of proving by competent credible evidence both the character and extent of his injury and the causal connection between the injury and the employment. Goodwin v. Fairbanks, Morse & Company, 123 Vt. 161 (1962).
2. Claimant’s credibility was damaged by both his prior conduct and his inconsistent statements at hearing. As a result, I find that he has failed to meet his burden. Dr. Dale’s report relied on Claimant’s subjective statements, as did Dr. Peterson’s initial finding. Dr. Landvater as well relied to a large extent on Claimant’s statements. When medical personnel rely on a patient’s history of a work-related incident that proves not to be credible, however, their opinions lose their crucial base. M.M. v. Mack Molding, Opinion No. 58-05WC (September 9, 2005).
3. Because Dr. Ensalada’s opinion was based on objective evidence rather than Claimant’s subjective and inconsistent report, I find his opinion to be the most credible one. I conclude, therefore, that although Claimant proved that he suffered a right shoulder rotator cuff tear, he did not provide sufficient credible evidence to establish that the January 9, 2006 work incident was what caused the tear to occur.
4. Because Claimant has not prevailed, he is not entitled to an award of costs or attorney’s fees. As a separate matter, however, Claimant has requested an award of the costs related to Dr. Landvater’s second deposition, a total of $400.00. I find that under the circumstances Defendant should bear responsibility for this cost, and I therefore award this amount.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his right shoulder injury is hereby DENIED. Defendant is ORDERED to pay $400.00 in costs in accordance with Conclusion of Law 4 above.
DATED at Montpelier, Vermont this 15th day of December 2008.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

J. H. v. NSK Corporation (December 3, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. H. Opinion No. 50-08WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
NSK Corporation
For: Patricia Moulton Powden
Commissioner
State File No. Y-03544
OPINION AND ORDER
Hearing held in Montpelier on August 18, 2008
Record closed on October 1, 2008
APPEARANCES:
Erin Gallivan, Esq. for Claimant
David Cleary, Esq. for Defendant
ISSUES:
1. Are Claimant’s left shoulder and arm complaints causally related to her employment and if so, to what workers’ compensation benefits is she entitled?
2. Is Claimant’s right elbow injury causally related to her employment and if so, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Video of NSK employee simulating Claimant’s work duties
Joint Exhibit III: Video of Claimant simulating her work duties
Claimant’s Exhibit A: Photograph of L-shaped desk
Claimant’s Exhibit B: Photograph of “problem desk”
Claimant’s Exhibit C: Photograph of “problem desk”
Claimant’s Exhibit D: Photograph of “problem desk”
Claimant’s Exhibit F: E-mails between Claimant and Nurse LaTour, November 2-3, 2006
Claimant’s Exhibit G: E-mail from Claimant to Nurse LaTour, November 6, 2006
Claimant’s Exhibit H: E-mails between Claimant and Nurse LaTour, November 8, 2006
Claimant’s Exhibit I: E-mail from Cindy Knapp to Willis Conklin, November 10, 2006
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Claimant’s Exhibit J: E-mails between Claimant and Nurse LaTour, November 20, 2006
Claimant’s Exhibit L: Letter from Dr. Timura to Dr. Storey, June 12, 2007
Defendant’s Exhibit 1: Transcribed interview between Claimant and Michelle Haussmann
Defendant’s Exhibit 2: Note from Dr. Timura to Claimant regarding causes of rotator cuff injuries
CLAIM:
1. Temporary partial disability benefits from September 13, 2007 until end medical result pursuant to 21 V.S.A. §646;
2. Medical benefits for treatment of Claimant’s left shoulder and right elbow pursuant to 21 V.S.A. §640;
3. Vocational rehabilitation benefits pursuant to 21 V.S.A. §641;
4. Attorney’s fees and costs pursuant to 21 V.S.A. §678.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee of Defendant and Defendant was an employer within the meaning of Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant for more than fifteen years. For the past several years, her job was Data Entry/Control Clerk. Part of this job involved checking a daily transaction register against a pile of lot control sheets for accuracy. To do so, Claimant had to sort 100-150 pieces of paper multiple times into anywhere from two to fifteen piles on her desk. This part of her job took between two and four hours daily and had to be completed as soon as possible every morning.
The injury
4. Historically Claimant had worked at an L-shaped desk where she was able to spread the piles of paper comfortably within her reach. However, in April or May 2006 Claimant’s work station was changed – the L-shaped desk was removed and replaced with a smaller rectangular desk. With this new work station, Claimant could fit only seven piles of paper on the rectangular desk in front of her, and therefore had to put some piles on a small end table to the left of her desk. Claimant brought in the end table because her work station was no longer large enough to accommodate her work assignments.
5. Placement of the piles of paper on the small end table on the left required a significant reach for Claimant with her left arm. On an average day, she would have to lean over to her left with her left arm fully extended approximately 75 to 100 times.
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6. In the summer of 2006 Claimant started having pain in her left arm at the end of the work week. By the end of September 2006, the pain was occurring daily and she was taking ibuprofen several times a day. The pain would be worse by the end of work week and feel somewhat better after the weekend.
7. Claimant’s arm felt weighted down as if a toddler was pulling on it and she also had some numbness and tingling. The pain had begun to interfere with her ability to sleep. By the end of October and early November Claimant was in significant pain that interfered with her daily life.
First Report of Injury
8. In early November 2006 Claimant reported to Defendant’s “in-house” nurse, Bonnie LaTour, that she was having left arm pain that she believed was work-related. Initially, Nurse LaTour advised Claimant to see her primary care physician. However, after speaking with Human Resources personnel, Claimant realized that Nurse LaTour did not understand that she believed her pain was work-related. She informed Nurse LaTour of this fact and an appointment was scheduled with Defendant’s company doctor, Dr. Timura.
9. Although Claimant had reported her injury as work related, Nurse LaTour did not file a First Report of Injury with the Department of Labor until two and a half months later, in late January 2007. The date of injury on the First Report was back-dated to the time it was initially reported.
10. The delay in filing the First Report of Injury may have been due in part to Claimant’s own doubts as to work-relatedness. Initially, Claimant ascribed the cause of her pain to her altered work station. After meeting with Nurse LaTour and Dr. Timura, however, Claimant herself began to question whether an activity as innocuous as moving pieces of paper from one pile to another could cause an injury. Nevertheless, Claimant had experienced no prior shoulder or arm injuries, and ultimately concluded, in her own mind at least, that her work could be the only cause of her injury.
Medical Treatment
11. Claimant first saw Defendant’s company physician, Dr. Timura, on November 9, 2006. Dr. Timura received his medical degree from Tufts Medical School and is certified in internal medicine. As Defendant’s company doctor, he is experienced in evaluating the types of injuries employees there typically suffer. He also has attended a variety of seminars on both orthopedic and other types of injuries.
12. Dr. Timura diagnosed Claimant with left upper extremity pain of unclear etiology, though probably originating from her shoulder. He refrained from making any conclusion as to whether the injury was work-related until Nurse LaTour completed an ergonomic evaluation of Claimant’s work station. Nurse LaTour has attended some work shops in ergonomics, and has undertaken work station evaluations for Dr. Timura in the past.
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13. After viewing Claimant’s work station, Nurse LaTour concluded that the arm reach to the left end table was “uncomfortable” for Claimant. Therefore, she strongly recommended changes to Claimant’s desk setup. Nurse LaTour moved articles on Claimant’s desk to make additional room and suggested pulling out desk drawers in front of her to make space for sorting piles of paper. Nurse LaTour took no measurements of either the distance Claimant had to reach with her left arm or the height of her work station.
14. Despite the problems she noted with Claimant’s work station and the suggestions she made to address them, Nurse LaTour nevertheless concluded that Claimant’s shoulder problem had not been caused by repetitive reaching with her left arm over to the left end table. Nurse LaTour reported the results of her evaluation to Dr. Timura.
15. With the results of Nurse LaTour’s evaluation of Claimant’s work station in hand, Dr. Timura concluded that Claimant’s left shoulder pain was not causally related to her job duties. Dr. Timura again stated that he did not know what was causing Claimant’s pain.
16. In late November 2006 Dr. Timura referred Claimant to Dr. Whittum, an orthopedic surgeon. Claimant reported to Dr. Whittum that the shoulder and arm pain she was experiencing was caused by her work. Dr. Whittum administered a subacromial injection in her shoulder which temporarily alleviated most of her arm and shoulder pain.
17. Dr. Whittum’s opinion as to the cause of Claimant’s left shoulder pain was somewhat inconsistent. In his January 7, 2007 office note he remarked that upon his first examination of her, Claimant had stated that she believed her injury was causally related to her job duties. Dr. Whittum stated that he agreed with that assessment and on those grounds he requested that Defendant pay for the MRI he was recommending through its workers’ compensation program.
18. Following his request, however, Dr. Whittum had telephone conferences with both Nurse LaTour and Dr. Timura. Dr. Timura advised Dr. Whittum that based on Nurse LaTour’s ergonomic assessment of Claimant’s work station and job duties, he had concluded that Claimant’s injury was not work-related. Subsequently, in his January 13, 2007 note Dr. Whittum wrote that he concurred with Dr. Timura’s and Nurse LaTour’s conclusions. Notably, Dr. Whittum did not ask Claimant for further information regarding her work station or job duties before changing his opinion on the causation issue.
19. In January 2007 Claimant underwent an MRI of her left shoulder at Southwestern Vermont Medical Center. The results showed “mild undersurface hypertrophic change and some other inflammatory change in the AC joint.” The MRI did not show any rotator cuff tear, bursitis or acromial spur – all findings that later were seen on the MRI done at Dartmouth Hitchcock Medical Center.
20. Claimant continued to have pain. In March 2007 she underwent an evaluation with Dr. Joseph Kratzer, a neurologist, to determine if her pain might be related to a nerve injury. Dr. Kratzer diagnosed a left brachial plexopathy involving the left medial nerve. Based on Claimant’s description of her job duties and work station, Dr. Kratzer concluded that this problem was work-related. Claimant continued working even though her symptoms were painful.
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21. At Defendant’s request, in June 2007 Claimant underwent an independent medical evaluation with Dr. James Storey, a neurologist. Dr. Storey disputed Dr. Kratzer’s conclusion that Claimant had suffered a neurological injury. Instead, he diagnosed left-sided tendonitis, which in his opinion was not work-related.
22. Dr. Storey’s causation opinion was based in part on a video Nurse LaTour had made that purported to simulate Claimant’s paper-sorting job duty. Although Nurse LaTour had represented to Dr. Storey that the individual in the video was of the same or similar stature as Claimant, in fact it depicted a gentleman who was seven inches taller than Claimant, with what appears to be a significantly longer arm span.
23. At some later point Dr. Storey did view a video of Claimant herself at her work station, simulating the movements involved in her paper sorting task. After seeing this video, Dr. Storey stated that he could understand how Claimant could develop tendonitis from the repetitive reaching to the left that that task required. Dr. Storey testified that he still did not believe that the task involved sufficient torque on Claimant’s upper arm to cause a partial rotator cuff tear, but admitted that as a neurologist, he would defer on that issue to an orthopedist.
24. Continuing to have problems with her shoulder, and confused about whether she had a neurological or orthopedic injury, Claimant saw both a neurologist and an orthopedist at Dartmouth Hitchcock Medical Center in September 2007. The neurologist, Dr. Lawrence Jenkyn, confirmed that Claimant did not have a neurological injury but rather an overuse syndrome of her left shoulder, which in his opinion was work-related. Dr. Jenkyn took Claimant out of work for eight weeks beginning September 13, 2007 and placed her in the care of Nikki Gerwitz, PA.
25. Dr. John-Eric Bell, an orthopedic surgeon, also evaluated Claimant at DHMC. He obtained a new MRI study, which showed both bursitis and a partial rotator cuff tear. It also revealed “a slightly inferior tilt to the acromion with curved undersurface.” In Dr. Bell’s opinion, this anatomical feature should have been visible in the prior MRI done at Southwestern Vermont Medical Center, but due to the poor resolution of the images produced by the machine there it was not discernable.
26. Dr. Bell testified that people with acromial spurs on the top of their shoulders have a greater frequency of partial rotator cuff tears and other shoulder problems than do those without that anatomical feature.
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27. In March 2008 Dr. Bell performed arthroscopic surgery on Claimant’s left shoulder. After viewing her shoulder arthroscopically, Dr. Bell concluded that Claimant had suffered a partial tear of her left rotator cuff, partial subacromial bursitis, and a degenerative “slap” tear in her left shoulder – a fraying of the cartilage, or labrum, surrounding the shoulder socket. Dr. Bell determined that these injuries resulted from the repetitive reaching Claimant did with her left arm at work. In his opinion, Claimant’s need for surgery was due to wear and tear on her shoulder causally related to her long work history with Defendant and the reaching she had to do after the configuration of her work station changed in the spring of 2006. Absent evidence of a trauma, Dr. Bell found no other reason for Claimant’s condition.
28. Dr. Bell was adamant in his testimony that Claimant’s injury “more likely than not” was causally related to the amount of reaching she had to do with her left arm at work. He testified that he was not familiar with the term “to a reasonable degree of medical certainty.”
29. Following Dr. Bell’s surgery, Claimant has experienced significant relief of her left arm and shoulder pain. She has been referred to physical therapy, with a goal of twelve to twenty weeks before engaging in full active motion. There was no evidence presented at hearing that she is yet at end medical result.
30. Defendant did not present any evidence of other specific trauma or injuries that could have caused Claimant’s shoulder to be injured. Defendant noted that Claimant did some lifting when her mother moved in 2007 and also did some raking in the summer of 2006. There was some evidence that Claimant had to ice her shoulder after these events, but there is no evidence that either of these incidents necessitated medical treatment.
31. At some point after she stopped using her left arm at work, Claimant’s right elbow began to bother her. Physician’s Assistant Gerwitz diagnosed Claimant with right elbow epicondylitis, causally related to the overuse that resulted when Claimant was instructed not to use her left arm. Claimant’s right elbow pain resolved with physical therapy, and no further treatment was advised.
32. Claimant was terminated from her employment with Defendant on September 13, 2007 due to her work limitations.
33. Claimant testified that she liked her job, and did not want to leave Defendant’s employment. She kept working for a full year even though she was experiencing a significant amount of pain. She only stopped working when Dr. Jenkyn advised her to do so. Thereafter, she tried to return to work but was terminated by Defendant due to her physical limitations. Claimant did not submit any testimony as to either her job search efforts or employment thereafter.
34. There was no evidence submitted that Claimant was dishonest or did not testify accurately. Nurse LaTour corroborated that Claimant was honest and agreed that there was no reason to doubt the accuracy of Claimant’s description of her work duties.
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CONCLUSIONS OF LAW:
1. It is the claimant’s burden to establish all facts essential to support a workers’ compensation claim. In order to do so, he or she must establish a medical condition arising out of and in the course of employment. Goodwin v Fairbanks, Morse and Co., 123 Vt. 11 (1963).
2. Sufficient competent medical evidence must be admitted verifying the character and extent of the injury and disability, as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 592 (1989).
3. As in the instant case, when the causal connection is obscure and a lay person would have no well-grounded opinion as to causation, there must be expert medical testimony to sustain the burden of proof. Jackson v True Temper Corporation, 151 Vt. 592 (1989).
4. Claimant argues that when her work station was changed in the spring of 2006, she had to stretch beyond her normal reach almost a hundred times daily in order to complete the paper sorting task involved in her job. There are conflicting medical opinions as to whether this work-related activity caused her left shoulder and right elbow injuries.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
6. I find Dr. Bell’s opinion to be the most credible in this case. Not only was he Claimant’s treating physician, but as an orthopedic surgeon he fully understood the unique physiology of Claimant’s shoulder, particularly the anatomical defect in her acromion, and how the types of movements her work tasks required of her, when superimposed on that anatomy, likely caused her injuries. Dr. Bell reached his conclusions as to causation after having viewed Claimant’s shoulder surgically and therefore having confirmed the findings of the higher quality MRI taken at Dartmouth Hitchcock Medical Center. All of these factors combine to make his opinion the most persuasive.
7. In contrast, the causation opinions propounded by the other medical experts are problematic. Although Dr. Whittum is an orthopedic surgeon, his opinion is somewhat tainted by the fact that he relied on the poorer quality MRI taken at Southwestern Vermont Medical Center, which did not reveal any of the findings apparent on the MRI that Dr. Bell reviewed. It is troubling, furthermore, that Dr. Whittum apparently changed his causation opinion based solely on Dr. Timura’s and Nurse LaTour’s assertions that Claimant’s work station and job tasks did not cause her injury, without investigating further what the basis of these assertions was and whether Claimant might have provided further illumination on the matter. His conclusion is rendered less credible as a result.
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8. As for Dr. Storey, he admitted that as a neurologist he would have to defer to an orthopedic expert as to the causation of what ultimately was determined to be an orthopedic injury. On those grounds, his opinion must be discounted as well.
9. Defendant argues that Claimant’s injury must have occurred between the dates of the two MRI examinations because the later one showed the rotator cuff tear when the first one did not. This argument is unpersuasive. The first MRI was of such poor quality that it showed almost nothing. In particular, it did not even depict the peculiar formation of Claimant’s acromion, a finding that even Defendant’s expert agreed was anatomical and therefore must have existed all along. It is far more likely than not, therefore, that findings revealed on the later MRI were not “new” per se, merely more observable because of the higher quality images produced by a better MRI scan.
10. Defendant also argues that Dr. Bell’s use of the “more likely than not” standard for his opinion as to causation rather than the “reasonable degree of medical certainty” standard is problematic. I find no reason to conclude that Dr. Bell’s use of the standard with which he was more familiar necessarily means that the standard typically used in workers’ compensation matters has not been met. There is nothing magical about using one phrase over the other unless the expert intends that such a distinction be made.
11. I find, therefore, that Claimant has sustained her burden of proving that her left shoulder injuries were causally related to her work station and job activities, and that therefore she is entitled to workers’ compensation benefits.
12. As to Claimant’s right elbow epicondylitis, the medical evidence substantiates that this condition resulted from her treating physician’s instruction that she not use her left arm, which in turn precipitated an overuse injury in her right elbow. Thus, I find this injury to be compensable as well.
13. The evidence establishes that Claimant reached an end medical result for her right elbow injury following a course of physical therapy. As to the left shoulder injury, however, Claimant has not yet reached an end medical result. Depending on her job search efforts and employment after Defendant terminated her, Claimant may be entitled to temporary disability benefits. Insufficient evidence was submitted from which to fashion an award of these or other workers’ compensation benefits, however, including permanency and/or vocational rehabilitation benefits. Claimant is left to her further proof on these issues, which can be addressed through the informal process if necessary.
14. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,625.00 and attorney’s fees totaling $14,328.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find that they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby ORDERED to pay:
1. Workers’ compensation benefits causally related to Claimant’s compensable left shoulder injury, in amounts to be proven in accordance with Conclusion of Law 13 above;
2. Medical benefits related to Claimant s compensable left shoulder and right elbow injuries; and
3. Costs in the amount of $2,625.00 and attorney’s fees in the amount of $14,328.00.
DATED at Montpelier, Vermont this 3rd day of December 2008.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

M. P. v. NSK Steering Systems America, Inc. (May 22, 2007)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

M. P. v. NSK Steering Systems America, Inc. (May 22, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. P. Opinion No. 14-07WC
v. By: Phyllis Severance Phillips, Esq.
Hearing Officer
NSK Steering Systems
America, Inc. For: Patricia Moulton Powden
Commissioner
State File Nos. U-10801 & M-10876
OPINION AND ORDER
Hearing held in Manchester, Vermont on November 21, 2006
APPEARANCES:
James Dingley, Esq. for Claimant
Jason Ferreira, Esq. for Defendant Royal & Sun Alliance
Frank Talbott, Esq. for Defendant Wausau Insurance Companies
Kaveh Shahi, Esq. for Defendant Sompo Insurance Company
ISSUES PRESENTED:
1. Whether Claimant’s bilateral shoulder injuries are compensable; and
2. If so, which carrier is responsible for workers’ compensation benefits.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Joint Medical Exhibit
Joint Exhibit II: First Report of Injury, November 13, 1998
Joint Exhibit III: Quick Fax Report, November 13, 1998
Joint Exhibit IV: First Report of Injury, October 15, 2003
Joint Exhibit V: Accident Report, October 15, 2003
Claimant’s Exhibits:
Claimant’s Exhibit 1: Deposition of William Ketterer, M.D., May 10, 2006
Claimant’s Exhibit 2: Curriculum Vitae of William Ketterer, M.D.
Claimant’s Exhibit 3: SOP Documents
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Defendant’s Exhibits:
Defendant’s Exhibit A: Deposition of Todd Lefkoe, M.D., July 27, 2006
Defendant’s Exhibit B: Curriculum Vitae of Todd Lefkoe, M.D.
Defendant’s Exhibit C: Bonnie Latour, R.N., progress notes, 10/15/03-7/1/05
CLAIM:
Workers’ compensation benefits under 21 V.S.A. §601 et seq.
Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. Claimant was born on September 10, 1938. At the time of the formal hearing she was 68 years old.
2. NSK Steering Systems of America, Inc., and its predecessor company, NASTECH, is a manufacturer of automotive steering parts.
3. Claimant began working on the assembly line at NSK in January 1994. Over the course of her employment there, spanning almost ten years, she performed production and line work on a variety of machines. Her job tasks required her to lift, carry, push, pull and manipulate steering column components. The extent of force and exertion required to do so varied from machine to machine, but all of the work involved repetitive movements of her shoulders, arms and hands.
4. Three different workers’ compensation insurance carriers provided coverage for NSK during Claimant’s employment tenure there. These were:
(a) Wausau Insurance Companies, from April 8, 1994 through April 7, 2000;
(b) Sompo Insurance Company, from April 8, 2000 through October 31, 2002;
(c) Royal & Sun Alliance, from November 1, 2002 through October 31, 2003; and
(d) Sompo Insurance Company, from November 1, 2003 through date of the formal hearing.
5. Claimant suffered a variety of injuries during the ten years of her employment at NSK, some work-related and some not. These included:
(a) A November 1994 motor vehicle accident following which Claimant wore a cervical collar for a brief period of time;
(b) A slip-and-fall at work on July 25, 1995 in which Claimant suffered a left elbow abrasion; in the course of being evaluated for that injury she also complained of right shoulder pain with overhead reaching;
(c) An October 1995 motor vehicle accident in which Claimant injured her right shoulder;
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(d) A right upper extremity injury in November 1998 causally related to Claimant’s assembly work at NSK;
(e) A right shoulder injury in December 1998 causally related to an agility test Claimant was required to take in conjunction with her work at NSK;
(f) A slip-and-fall in the parking lot at work in May or June 2001 in which Claimant suffered a right shoulder injury; and
(g) A July 27, 2001 low back injury causally related to lifting boxes of parts at work.
6. Claimant did not treat extensively for any of the right shoulder injuries listed in Paragraph 5 above. Specifically:
(a) For the right shoulder pain associated with overhead reaching on July 25, 1995, Claimant treated at the Southwestern Vermont Medical Center Emergency Department. She was diagnosed with a right shoulder strain, prescribed Ibuprofen and referred to Dr. Michl, her primary care provider, for follow-up, but there is no record that she did so;
(b) For the right shoulder injury caused by the October 1995 motor vehicle accident, diagnosed as a shoulder contusion and possible rotator cuff tear, Claimant again treated at the Southwestern Vermont Medical Center Emergency Department. She was prescribed Ibuprofen, Flexeril and bed rest as needed;
(c) For the November 1998 right upper extremity injury causally related to her assembly work at NSK, Claimant treated with her primary care physician, Dr. Michl. Dr. Michl prescribed Advil for pain and modified-duty restrictions against heavy reaching and pressing. At a follow-up visit two weeks later, Dr. Michl reported significant improvement in Claimant’s right shoulder, with minimal soreness and full range of motion. He released Claimant to full-duty work with no restrictions;
(d) For the December 1998 right shoulder injury caused by the agility test that NSK required of Claimant, she again treated with Dr. Michl. Dr. Michl diagnosed right shoulder and rotator cuff tendonitis. He administered an injection that produced significant improvement. Dr. Michl advised Claimant to follow up in one week if her symptoms did not continue to improve and he would refer her to physical therapy; there is no record that Claimant did so;
(e) For the fall in NSK’s parking lot that occurred in May or June 2001, Claimant sought treatment with Dr. Michl in July 2001 for right upper extremity pain. As with the December 1998 injury, Dr. Michl diagnosed right shoulder and rotator cuff tendonitis. X-rays revealed calcific tendonitis and degenerative changes in the right AC joint. Dr. Michl recommended physical therapy, but Claimant did not pursue this treatment.
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7. Claimant did not lose any time from work for any of the right shoulder injuries listed above. In fact, some of the injuries, including both the July 1995 complaint of shoulder pain with overhead reaching and the December 1998 agility test injury, she did not even report to NSK, notwithstanding that they clearly were work-related.
8. Interspersed with the medical appointments Claimant had related to her various right shoulder injuries over the course of her ten-year employment at NSK were numerous medical examinations for other reasons. Most of these were with Dr. Michl. Some concerned specific complaints or medical problems Claimant was experiencing, and some were routine annual general health evaluations. Aside from the treatments noted in Paragraph 6 above, Claimant did not complain of any right shoulder pain or symptoms at any of these other office visits. Thus, there were several significant gaps in treatment for any right shoulder symptoms. Specifically:
(a) From October 1995 until November 1998, Claimant did not seek treatment for any right shoulder symptoms;
(b) From December 1998 until July 2001, Claimant did not seek treatment for any right shoulder symptoms; during this time frame, she saw Dr. Michl three times – May 1999, November 2000 and March 2001;
(c) From July 2001 until February 2004, Claimant did not seek treatment for any right shoulder symptoms; during this time frame, she saw Dr. Michl eighteen times, for both specific medical problems such as low back pain and for routine physical examinations.
9. The medical records do not reflect any complaints of left shoulder pain, injury or treatment at any time during the ten years of Claimant’s employment at NSK.
10. Claimant testified that the repetitive work she performed at NSK caused her to suffer constant pain in both her right and left shoulders from at least 1998 on. She testified that Dr. Michl advised her numerous times to quit her job because the repetitive work was too hard for her. Claimant did not follow Dr. Michl’s advice, however, nor did she ever file a formal injury report as to bilateral shoulder pain either with her supervisors or with the NSK plant nurse.1
11. Claimant stated that her reason for not reporting her constant, ongoing shoulder pain as a work-related injury was that she was afraid that if the claim were denied she would lose her job. Her wages at NSK were significantly higher than what she would have been able to make working for other local employers, and she had no other source of income. Fearful for her job, Claimant decided to work through the pain rather than report it.
1 As noted above, Claimant did file an injury report for right upper extremity pain in November 1998, but according to the medical records that injury resolved quickly and Claimant did not follow through with any additional treatment recommendations.
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12. Claimant testified that during the last two years of her employment she was assigned to work on the Toyota line. Claimant testified that her supervisor on this production line was aware of her shoulder pain and assigned her to work on a machine that required less overhead reaching and therefore was less stressful to her shoulders. When she worked at this assignment, her shoulder pain abated.
13. Claimant testified that the reason she did not mention her shoulder pain during routine annual office visits with Dr. Michl was because the NSK plant nurse had strongly warned her against “commingling” medical appointments. Claimant understood this to mean that she would need to schedule a separate medical appointment with Dr. Michl for treatment of a work-related shoulder injury. This would have required her to take time off from work, which she did not want to do.
14. In addition to the injuries listed in Paragraph 5 above, Claimant suffered from carpal tunnel-like symptoms in both hands, causally related to her repetitive work at NSK. To alleviate these symptoms, Claimant wore bilateral wrist braces for many years. Ultimately, however, these symptoms, which included bilateral pain, weakness and numbness, disabled her from continuing with assembly work. Claimant was taken out of work for these symptoms in October 2003 and has not returned to work since.
15. Claimant treated for her carpal tunnel symptoms with William Ketterer, M.D., an orthopedic surgeon. Dr. Ketterer performed endoscopic carpal tunnel release surgery on Claimant’s right wrist in January 2004 and on her left wrist in May 2004.
16. Claimant testified that she had been led to believe that the pain in her shoulders was related to her carpal tunnel syndrome, and that therefore once she underwent carpal tunnel surgeries her shoulder pain would resolve. The medical records do not reflect that a relationship between Claimant’s carpal tunnel symptoms and her shoulder pain was ever considered.
17. Claimant testified that when her shoulder pain did not abate following her carpal tunnel surgeries she became more insistent with her medical providers that her shoulder pain be addressed. Thus, Dr. Michl reported in his June 8, 2004 office note that Claimant’s carpal tunnel surgery had gone well but that her shoulders were “killing her.” Dr. Michl listed “5 years of bilateral shoulder pain” in Claimant’s problem list and remarked that Claimant “feels it’s work related.”
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18. Bonnie LaTour, R.N., the occupational health nurse at NSK since May 2002, testified that the first time Claimant complained of or reported bilateral shoulder pain to her was in February 2004, some four months after Claimant’s employment terminated. Ms. LaTour testified that since she began working at NSK she had occasion to observe Claimant at work at various times and never observed her to have difficulties due to shoulder pain. Ms. LaTour testified that had Claimant complained of work-related shoulder pain, Ms. LaTour would have completed an incident report and/or First Report of Injury and then would have referred Claimant to Dr. Timura, NSK’s occupational medicine specialist, for evaluation. Ms. LaTour also would have considered modifications to Claimant’s work station or job assignments had she reported any work-related shoulder symptoms.
19. On June 21, 2004 Claimant was seen for follow up on her left carpal tunnel by Janene Carol, a physician’s assistant in Dr. Ketterer’s office. Ms. Carol noted that Claimant “states that we have ignored her complaints of bilateral shoulder pain, which she also wishes evaluated today.” Ms. Carol scheduled an appointment with Dr. Ketterer for further evaluation of Claimant’s shoulder complaints.
20. Dr. Ketterer examined Claimant on June 25, 2004. He noted that Claimant reported a five- to six-year history of bilateral shoulder pain, causally related to repetitive abduction at work. Dr. Ketterer remarked that Claimant’s symptoms “clinically are from rotator cuff impingement, and given her age and length of time with symptoms, probable rotator cuff tears as well. By history, these are work-related problems.”
21. Interestingly, although Dr. Ketterer initially reported that Claimant ascribed her shoulder pain to the repetitive work she did at NSK, at a subsequent follow-up visit in June 2005 he reported that Claimant now recalled a specific incident at work, but could not remember the year or date. Claimant did not refer to any such specific incident in her formal hearing testimony, but rather maintained, consistent with Dr. Ketterer’s earlier report, that years of repetitive stress caused her shoulder pain.
22. Ultimately, following MRI testing Dr. Ketterer diagnosed Claimant with bilateral shoulder impingement and rotator cuff tears complicated by cuff arthropathy.
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23. As to the cause of Claimant’s shoulder pain and specifically the rotator cuff tears evidenced by MRI, Dr. Ketterer testified as follows:
(a) Rotator cuff tears are common in people aged 55 and over who are engaged in production line or assembly work, as the combination of age and repetitive trauma cause the shoulder tendon fibers to break;
(b) From reviewing Claimant’s MRI results, it is likely that her rotator cuff tears were not recent, and probably were at least two years old;
(c) Based both on Claimant’s self-report of the progression of her shoulder pain over the previous five years and on Dr. Ketterer’s thirty years of experience seeing patients who are engaged in repetitive work, it is likely that Claimant’s rotator cuff tears were caused by repetitive use at work.
24. Dr. Ketterer testified that in reaching his conclusions he did not review any medical records other than his own treatment notes. Specifically, he was unaware that the emergency room records relating to Claimant’s October 1995 motor vehicle accident referenced a possible rotator cuff tear. Dr. Ketterer also acknowledged that it was “odd,” though not “medically unlikely” that Claimant was able to continue working at a job involving repetitive shoulder motion for as long as she did without reporting symptoms or seeking treatment.
25. In September 2004 Claimant underwent an independent medical evaluation with Todd Lefkoe, M.D., a physiatrist. Dr. Lefkoe reported Claimant to be a “limited historian” who was able to give few details as to the timing and progression of her shoulder symptoms. In Dr. Lefkoe’s opinion, such details are “critically important” to determining the causal relationship between a patient’s symptoms and his or her work.
26. As part of his independent medical evaluation, Dr. Lefkoe reviewed all of Claimant’s medical records and relevant medical history.
27. Dr. Lefkoe concurred with Dr. Ketterer’s diagnosis of bilateral rotator cuff tears, but disagreed as to their causal relationship to Claimant’s work. Dr. Lefkoe testified that given both the lack of a clear-cut mechanism of injury and the absence of any consistent strain of complaints and/or treatment over time, it was impossible to determine how the rotator cuff tears occurred, much less to relate them definitively to Claimant’s work at NSK.
28. Both Dr. Ketterer and Dr. Lefkoe testified that events or conditions other than repetitive work can cause rotator cuff tears. Age can be a factor, even without repetitive stress, as can be a person’s unique anatomy, specific trauma or simply normal wear and tear from activities of daily living.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. In addition to establishing the facts necessary to a finding of compensability, in order to maintain a claim for workers’ compensation benefits a claimant must show that he or she has complied with the applicable statute of limitations. Vermont’s workers’ compensation statute includes two statutes of limitations – a six-month notice of claim, 21 V.S.A. §656(a), and a six-year statute of limitations, 21 V.S.A. §660(a)2; Longe v. Boise Cascade, 171 Vt. 214 (2000).
3. As to the first statute of limitations, the statute requires that notice of an injury be given to an employer “as soon as practicable after the injury occurred” and that a claim for compensation be made “within six months after the date of the injury.” 21 V.S.A. §656(a). The statute further provides that the date of injury “shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.” 21 V.S.A. §656(b); Longe v. Boise Cascade, 171 Vt. 214 (2000); Hartman v. Ouellette Plumbing and Heating, 146 Vt. 443 (1985). Last, the statute provides that “[w]ant or delay in giving notice, or in making a claim, shall not be a bar to proceedings under the provisions of this chapter, if it is shown that the employer . . . 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).
4. In the current case, Claimant testified that her repetitive work at NSK caused her to suffer constant shoulder pain from at least 1998 on. This is consistent with Dr. Michl’s June 8, 2004 office note, in which he noted Claimant’s complaint as “5 years of bilateral shoulder pain” and remarked that she “feels it’s work related.” Claimant further testified that Dr. Michl advised her many times over the years to quit her job because of the repetitive stress it required. Claimant opted not to quit her job because she enjoyed the higher wages it paid. She also opted not to inform her employer of the ongoing, constant nature of her shoulder pain, because she was afraid doing so would impact negatively upon her job. Ultimately, Claimant did report her bilateral shoulder pain to her employer as a work-related injury, but not until February 2004, some four months after she stopped working and years after the notice period required by 21 V.S.A. §656(a) had expired.
2 Six years was the applicable statute of limitations at the time of Claimant’s injury. The statute since has been amended to reduce the limitations period to three years.
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5. Claimant did report one instance of right shoulder pain to her employer, in November 1998. According to the medical records, this injury resolved with minimal treatment, following which Claimant returned to work with no restrictions. There is no medical evidence that her symptoms continued and became constant, nor is there any evidence that this injury involved her left shoulder in any way. I cannot conclude, therefore, that this injury is so closely connected to Claimant’s current complaints as to constitute the notice required by §656(a).
6. Claimant testified with great emotion as to how stressful certain work assignments were to her shoulders and how other assignments caused less stress and therefore less shoulder pain. When she described her job duties to her physician, he advised her that the repetitive stress was problematic and recommended that she quit her job. I can only conclude from this evidence that Claimant knew her constant, ongoing shoulder pain was work-related for years before she finally reported it to NSK, and that therefore she has failed to meet the notice requirements of 21 V.S.A. §656(a). Her claim for benefits fails unless she can prove either that NSK had knowledge of the “accident” that gave rise to her injury or that it was not prejudiced by the delay in reporting it.
7. It is easier to ascertain whether an employer had knowledge of the “accident” giving rise to a workers’ compensation claim when the injury at issue was caused traumatically rather than as a result of cumulative trauma or repetitive stress, as is the case here. Claimant did testify that at least one of her supervisors was aware of her shoulder pain and assigned her to work at machines that caused less repetitive shoulder stress. The evidence does not reflect whether the supervisor understood Claimant’s shoulder pain to have been caused by work as opposed to other non-work-related causes. Nor does the evidence reflect exactly when these alternative assignments occurred and for how long they lasted. As such, the evidence is insufficient to constitute “knowledge” on NSK’s part of a repetitive micro-trauma type “accident” so as to bring Claimant under the protection of 21 V.S.A. §660.
8. Can Claimant establish that NSK was not prejudiced by her delay in reporting her bilateral shoulder injury? In this context, lack of prejudice is demonstrated in two ways: first, by showing that the employer was not hampered in making its factual investigation and preparing its case, and second, by showing that the claimant’s injury was not aggravated by reason of the employer’s inability to provide early medical diagnosis and treatment. Lowell v. Rutland Area Visiting Nurse Association, Opinion No. 42-99WC (Oct. 12, 1999), citing 7 Larson, Workers’ Compensation Law, §78.32(c).
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9. I find that the delay was prejudicial. First, given the lack of documentation of any ongoing complaints of bilateral shoulder pain in Claimant’s medical records, NSK’s ability to investigate the timing, extent and progression of Claimant’s symptoms has been severely hampered. Second, it is reasonable to assume that Claimant’s injury was aggravated by her unilateral decision to continue working despite both her ongoing pain and her doctor’s recommendation that she stop. See Holmes v. James Gold, D.D.S., Opinion No. 31-00WC (Oct. 2, 2000) (no employer prejudice found where employee did not give notice of cumulative trauma injury, but incorporated the workplace modifications suggested by her doctor on her own initiative). Third, as Ms. LaTour testified, it is likely that had Claimant reported her injury, NSK would have modified her work station or assigned her to different job duties so as to minimize any ongoing stress and promote prompt healing.
10. Vermont’s Workers’ Compensation Act provides a statutory scheme for balancing the interests of both injured workers and employers. By holding employers responsible for work-related injuries regardless of fault, it encourages them to provide and maintain a safe work environment so that the risk of injury is minimized. See Gerrish v. Savard, 169 Vt. 468, 473 (1999). But the statute places responsibilities upon employees as well. An injured worker is obligated to report injuries promptly so that the employer can respond appropriately, by correcting the unsafe condition that gave rise to the injury and taking the necessary steps to minimize the risk of aggravation or re-injury. As sections 656 and 660 provide, when the injured worker fails to do so, and when the failure causes prejudice to the employer, the employee must bear responsibility for the consequences, not the employer.
11. I find, therefore, that Claimant failed to give notice of her injury within the time frame mandated by 21 V.S.A. §656(a), that the employer had no knowledge of the accident giving rise to her injury and that the lack of notice was prejudicial. Her claim for workers’ compensation benefits, therefore, must fail.
12. Having determined that Claimant’s claim fails for lack of timely notice, I need not address the question whether Claimant sufficiently established the causal relationship between her injury and her work at NSK and if she did, which insurance carrier is liable.
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ORDER:
1. Claimant’s claim for workers’ compensation benefits associated with her bilateral rotator cuff tears 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 _____ day of May 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.

J. F. v. Fletcher Allen Health Care (November 19, 2008)

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

J. F. v. Fletcher Allen Health Care (November 19, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. F. Opinion No. 47-08WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
Fletcher Allen Health Care
For: Patricia Moulton Powden
Commissioner
State File No. Y-53181
OPINION AND ORDER
Hearing held in Montpelier on November 16, 2007
Record closed on December 12, 2007
APPEARANCES:
Ron Fox, Esq., for Claimant
Wesley Lawrence, Esq., for Fletcher Allen Health Care
ISSUE:
Was Claimant’s March 2005 back surgery causally related to his August 2003 work injury?
EXHIBITS:
Claimant’s Exhibit 1: Medical records
Claimant’s Exhibit 2: FAHC Emergency Services Clinical Records, 05-11-02
Claimant’s Exhibit 3: Curriculum vitae, Philip Davignon, M.D.
Defendant’s Exhibit 1: Medical records
Defendant’s Exhibit 6: Letter to Claimant, July 1, 2003
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Interest, attorney’s fees and costs pursuant to 21 V.S.A. §§664 and 678(a)
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim.
3. Claimant began working for Defendant in July 2003. His job was in the kitchen, assembling patients’ meal trays and also cleaning dishes and pots.
4. Claimant’s prior medical history includes morbid obesity, depression, gouty arthritis and migraine headaches. For at least a year prior to his employment with Defendant Claimant had been prescribed narcotic pain medications for these ailments.
5. Claimant also has a prior history of low back pain dating back at least to a motor vehicle accident in 1998. No medical records relating to that incident were produced, and Claimant recalled no details other than being treated and released at the hospital emergency room. At some point thereafter, Claimant had an episode of back pain while lifting bags of coins in the course of his employment for an armored car service. Again, no medical records relating to that incident were produced; Claimant recalled a brief course of physical therapy, following which his symptoms resolved and he returned to work.
6. Claimant had another episode of low back pain in May 2002, when he slipped against a waterbed. Claimant testified at the formal hearing that he had no recollection whatsoever of that incident. The medical records document that he was treated at the FAHC Emergency Department. In describing Claimant’s symptoms, the emergency room record reports that Claimant “felt something ‘pop’ in his back,” following which he experienced severe low back pain radiating into his hip and down his thigh, as well as numbness in his thigh in a stocking/glove distribution. Of note, the record also reports that Claimant had a “long history” of low back pain. Claimant was treated with pain medications and muscle relaxants, and discharged home feeling “much improved.”
7. On August 8, 2003 while at work for Defendant, Claimant was preparing to clean a very large mixing bowl, weighing 20-30 pounds and measuring 2-1/2 to 3 feet across. As he lifted the bowl and twisted to put it on the counter he felt a twinge in his back. That night, his back started to hurt.
8. Claimant continued to work, and did not seek medical attention following the August 8th incident until August 18, 2003. On that date he sought treatment at Defendant’s Walk-In Care Center. The record of that treatment states that Claimant had been experiencing low back pain for ten days, but denied any radiating pain, weakness, numbness or tingling in his legs.
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9. There is some discrepancy as to whether Claimant suffered a second episode of back pain under virtually the same circumstances as the August 8th incident – lifting a large kettle and twisting to put it on a counter – on the day he finally sought treatment, August 18, 2003. Claimant testified to that effect at the formal hearing, but at his deposition, which had been taken only days earlier, he recalled that there had been only one incident, on August 8, 2003. Neither the August 18th treatment record nor Defendant’s First Report of Injury, completed on August 19th, make any mention of an August 18th incident, but rather refer solely to the August 8th incident as the inciting event for Claimant’s back pain.
10. Claimant treated conservatively for his back pain, diagnosed as a lumbar muscular strain, with Susan Anderson, PA-C. He continued to deny any radicular symptoms, and instead reported that his pain was focused in his low back rather than in his legs. For treatment, Ms. Anderson prescribed physical therapy and the same narcotic pain medications Claimant had been taking for his other ailments. She released Claimant to return to work half days, with a 10-pound lifting restriction.
11. Claimant realized only minor improvement with physical therapy. He continued to take narcotic medications for pain relief. Ms. Anderson noted that Claimant’s large girth probably contributed to his back pain, as did the “unfortunate set-up” of his bed at home, which presumably did not offer optimal support for his spine.
12. In December 2003 Claimant underwent a neurosurgical consult with Dr. Penar. An MRI taken in October 2003 had revealed disc herniations at L4-5 and L5-S1, but given Claimant’s symptom complex Dr. Penar suspected more of a disc injury as opposed to ongoing radiculopathy. For that reason, Dr. Penar was hesitant to recommend disc excision surgery. Such surgery generally is undertaken to relieve radicular complaints in the lower extremities; its success rate in relieving symptoms of back pain alone without corresponding radiculopathy is less than fifty percent.
13. In early January 2004 Ms. Anderson released Claimant to return to work full time, with a 5-pound lifting restriction. A few days later Defendant terminated Claimant’s employment for “inappropriate behavior following multiple written corrective actions.”
14. After Defendant terminated Claimant’s employment, its workers’ compensation insurance adjuster instructed him to seek alternative employment within his modified duty restrictions. Claimant declined to do so, however, because he felt his pain was too limiting.
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15. In March 2004 Claimant revisited Dr. Penar, who again expressed his reluctance to perform disc excision surgery given the absence of any radicular component to Claimant’s symptoms. As an alternative treatment option, Claimant’s primary care physician, Dr. Willingham, suggested physical therapy and/or work restoration. Notably, Dr. Willingham remarked that Claimant was “more interested in disability” and did not appear motivated to become actively involved in a treatment plan. Other providers also have made similar observations. In any event, there is no evidence that Claimant pursued either of Dr. Willingham’s recommendations. Instead, he continued to control his symptoms with narcotic pain medications.
16. On November 3, 2004 Claimant reported to the FAHC Emergency Department with a chief complaint of chronic back pain. The record of that visit relates the onset of Claimant’s pain back to the approximate time of the August 2003 lifting incident, but also notes the onset of gradually worsening pain occurring about one week prior. Significantly, for the first time Claimant reported radicular symptoms, specifically pain in the right lumbar and buttock region radiating to the right thigh and calf.
17. In December 2004 Claimant returned to Dr. Penar. In contrast to his earlier visit, when Claimant had complained solely of back pain, this time he reported primarily radicular symptoms, with pain extending from his right buttock and thigh into his right calf and ankle. With these complaints in mind, Dr. Penar reconsidered disc excision surgery as a reasonable treatment option. Claimant elected to proceed.
18. On March 24, 2005 Dr. Penar performed a two-level disc excision at L4-5 and L5-S1. His operative report notes that the disc herniation at L4-5 was “very firm and partially calcified,” and also documents “findings of a calcified disc herniation” at L5-S1. Dr. Penar reiterated these findings three weeks later in his first post-operative note, April 13, 2005, stating, “At both levels [L4-5 and L5-S1], he is found to have calcified disc herniation rather than soft tissue disc herniation. A good decompression of the nerve root was thought to be accomplished at both levels.”
19. Reference to a calcified disc herniation connotes a finding of hard disc material, and indicates tissue damage that probably occurred more than a year previously. In contrast, a soft tissue herniation indicates a more recent injury. There is no way to know exactly when a herniation calcified, only that it probably did so more than a year ago.
20. Following the March 2005 surgery Claimant’s low back pain gradually improved, and his radicular symptoms resolved. Claimant experienced aggravated symptoms in September 2006 causally related to lifting a bag of dog food at work. His employer at the time paid workers’ compensation benefits and is not a party to the current proceedings.
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Expert medical opinions
21. In support of its position that the March 2005 surgery was not causally related to Claimant’s August 2003 work injury, Defendant presented evidence from Dr. Levy, a board-certified neurologist. Dr. Levy did not examine Claimant personally, but rather conducted a medical records review. He also reviewed Claimant’s deposition.
22. In Dr. Levy’s opinion there is insufficient medical evidence to establish that Claimant’s March 2005 surgery was necessitated by his August 2003 lifting injury. Dr. Levy noted that the symptoms of which Claimant complained after the August 2003 incident were not radicular and did not suggest any nerve root pain, as would be expected in the case of either an acute disc herniation or the aggravation of a pre-existing herniation. Rather, it is far more likely that the August 2003 incident caused nothing more than a musculoskeletal injury with resulting mechanical low back pain. In Dr. Levy’s opinion, this injury likely resolved within a few months’ time, following which Claimant returned to his baseline condition, which at least since 1998 had included an element of occasional low back pain. Dr. Levy estimated that Claimant reached an end medical result from the August 2003 injury no later than April 2004.
23. Dr. Levy stated that it would be impossible, furthermore, to attribute with any certainty Claimant’s radicular complaints, which did not appear until November 2004, to the August 2003 injury. Claimant’s obesity and age both are known risk factors for disc herniation. Claimant’s prior history of low back pain, which included documented radicular symptoms suggestive of disc herniation as early as May 2002, is another risk factor. According to Dr. Levy, there is no reasonable basis for concluding that the symptoms Claimant exhibited in November 2004, which ultimately led him to undergo the March 2005 surgery, were causally related to the August 2003 lifting incident as opposed to any of these other risk factors.
24. In support of his position that the March 2005 surgery was in fact necessitated by the August 2003 work injury, Claimant presented evidence from Dr. Davignon, an occupational medicine specialist. Dr. Davignon performed an independent medical evaluation in September 2007.
25. In Dr. Davignon’s opinion, Dr. Penar’s operative finding of a “partially calcified” disc herniation should be interpreted to indicate that the herniation was partially soft as well. Thus, Dr. Davignon concluded, even if the calcified herniation occurred before the August 2003 work injury, that injury most likely caused additional soft tissue to herniate. According to Dr. Davignon, this additional herniation led to increased symptoms and ultimately the need for the March 2005 disc excision surgery.
26. Notably, Dr. Davignon testified at the formal hearing that he had been unaware that Claimant had a history of low back pain related either to the 1998 motor vehicle accident or to the 2002 waterbed incident. Dr. Davignon admitted that the symptoms Claimant complained of following the latter incident were consistent with radiculopathy. Dr. Davignon further conceded that Claimant had not presented with any such radicular symptoms after the August 2003 work injury.
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27. Dr. Davignon found Claimant to have reached end medical result as of the date of his evaluation. He rated Claimant’s permanent partial impairment at 15% whole person, 13% of which he attributed to the August 2003 injury and 2% to the injury Claimant suffered in September 2006 while lifting a bag of dog food for a subsequent employer.
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. At issue here is the causal relationship between Claimant’s March 2005 surgery and his August 2003 work injury. If the medical evidence establishes that, more likely than not, the August 2003 injury either caused Claimant’s discs to herniate or aggravated pre-existing though asymptomatic disc herniations to the point where disc excision surgery became necessary, then he will have proven his entitlement to workers’ compensation benefits. If the medical evidence establishes other equally likely causes for his worsening condition, however, then Claimant will have failed to sustain his burden of proving, to a reasonable degree of medical certainty, that the August 2003 work injury was the catalyst for the March 2005 surgery.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003). 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).
4. I find that Dr. Davignon’s opinion suffers from an incomplete review of the medical records documenting Claimant’s prior history of low back pain. As a result, it places too much weight on the August 2003 injury as the instigating cause of Claimant’s worsening condition in November 2004, specifically the radicular symptoms that ultimately led to the March 2005 surgery. Dr. Davignon did not account for the role that other significant risk factors probably played in causing Claimant’s symptom complex to change in this manner. His failure to do so renders his opinion too speculative for me to accept.
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5. In contrast, Dr. Levy’s opinion credibly accounts for both the progression of Claimant’s symptoms, which did not include any radicular component until more than a year after the August 2003 incident, and the presence of other equally likely risk factors for such symptoms to develop. For that reason, I find Dr. Levy’s opinion to be the more credible one here.
6. I conclude, therefore, that Claimant has failed to sustain his burden of proving that the March 2005 surgery was necessitated by the August 2003 work injury.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to the March 2005 surgery is hereby DENIED.
Dated at Montpelier, Vermont this 19th day of November 2008.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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.

M. A. v. Ben & Jerry’s (November 5, 2008)

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

M. A. v. Ben & Jerry’s (November 5, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. A. Opinion No. 44-08WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
Ben & Jerry’s/Broadspire
Ben & Jerry’s/NovaPro Risk For: Patricia Moulton Powden,
Commissioner
State File Nos. X-52456 & M-17136
OPINION AND ORDER
Hearing held in Montpelier on April 28th and 29th, 2008
Record closed on May 16, 2008
APPEARANCES:
Steven Cusick, Esq., for Claimant
David McLean, Esq., for Defendant Broadspire
David Berman, Esq., for Defendant NovaPro Risk
ISSUES PRESENTED:
1. Was Claimant’s meralgia paresthetica aggravated by his 2005 injury, and if so, is it compensable?
2. Was Claimant’s post-hernia pain syndrome aggravated by his 2005 injury, and if so, what benefits are due?
3. Is Claimant’s genital pain and erectile dysfunction causally related to injuries sustained at work and thus compensable?
4. Has Claimant reached an end medical result for his compensable injuries?
5. If not, what reasonably necessary medical procedures are compensable?
6. Which insurer is responsible for payment of whatever benefits are determined to be due?
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EXHIBITS:
Joint Medical Exhibit
NovaPro Risk Exhibit A: Form 22, March 25, 2002
Broadspire Exhibit 1: Selected Medical Records
Broadspire Exhibit 2: Dr. White 3/21/08 IME report and addendum
Broadspire Exhibit 3: FCE report from IHMS
Broadspire Exhibit 4: Surveillance videos
Broadspire Exhibit 5: Marriage certificate
Broadspire Exhibit 6: Imago web pages
Broadspire Exhibit 7: Selections from AMA Guides, 5th ed.
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
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 files relating to this claim.
2. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as defined in Vermont’s Workers’ Compensation Act.
3. Claimant is a 52 year old male who worked for Defendant for approximately 18 years until he was terminated in December 2006.
The 1999 Injury
4. The first injury related to this case occurred on February 13, 1999. Claimant was performing maintenance work when he suffered pain in his lower back, groin and right lateral leg. The insurance carrier on the risk at that time, NovaPro Risk, accepted that the injuries to Claimant’s lower back, groin and right lateral leg were compensable and paid benefits accordingly.
5. As a result of the work injury, Claimant suffered bilateral inguinal hernias, which were repaired surgically in May 1999.
6. Claimant’s treating physician at the time of his 1999 injuries was Dr. Verne Backus. Dr. Backus prescribed physical therapy for Claimant’s lower back injury and narcotics for his pain. In addition, following his hernia repair surgery Claimant suffered post-hernia repair pain for which he underwent nerve blocks in February 2000.
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7. The medical records indicate that Claimant first mentioned having pain prior to an erection to his surgeon in December 1999.
8. Claimant also mentioned scrotal pain in 2000 to Dr. Elke Pinn, who was treating him with bilateral trigger point injections in his groin. The purpose of the injections was to relieve pain associated with his post hernia condition. However, the relief was only temporary.
9. On January 1, 2001 Claimant had a release of the right lateral femoral cutaneous nerve at the inguinal ligament performed by Dr. Bruce Tranmer for pain relief. However, again there was no success in relieving Claimant’s pain.
10. In 2001 Dr. Backus determined that Claimant’s back injury was at end medical result, and rated him with an 8% whole person impairment. In October 2001 Dr. Backus determined that Claimant had reached end medical result as to his other injuries as well. Dr. Backus rated 2% permanent impairment for the pain and numbness in Claimant’s right thigh, the medical term for which is meralgia paresthetica, and 5% for his hernias.
11. Claimant returned to work full-time for Defendant.
The 2005 Injury
12. In September 2005 Claimant suffered a second work injury while lifting a box. As had occurred following the 1999 injury, Claimant experienced immediate pain in his back, groin area and right leg. In addition, Claimant asserted that this time he experienced immediate pain in his genitals as well.
13. Broadspire was the insurer on the risk at the time of this second injury. It accepted Claimant’s claim for what it deemed to be a low back strain and began paying benefits accordingly.
14. Genital pain was not reported to a medical professional until two weeks after the injury. On September 29, 2005 Claimant told Dr. Mercia that he felt like his penis “broke” when he was injured at work. Dr. Mercia reported that Claimant had acute and chronic low back pain with an overall change in pain pattern in both the right lower extremity and the back. A physical therapy report on September 20, 2005 stated that both hernias were aggravated by the new injury.
15. In October 2005 Claimant underwent a lumbar spine MRI, which documented a tiny broad based protrusion and annulus tear at L5-S1, unchanged since a prior MRI performed on July 17, 2001.
16. Dr. Backus had been treating Claimant since 1999 for his low back pain, post bilateral hernia repair pain and right thigh meralgia paresthetica. On November 21, 2005 Dr. Backus stated that in his opinion Claimant had suffered an aggravation to his back, right leg and hernia repairs as a result of the September 2005 lifting incident, as well as new pain in his genitals. As a result of these injuries, Dr. Backus determined that Claimant was limited to working a maximum of four hours per day.
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17. Dr. Backus has continued to treat Claimant for pain in his low back, right leg, hernia repair area, and genitals until the present date. Broadspire has covered the costs of these treatments.
18. In late 2005 and early 2006, Claimant attended a functional restoration program at the Vermont Center for Occupational Rehabilitation (VCOR) under the care of Dr. John Johansson. In January 2006 Dr. Johansson noted that Claimant had increased pain particularly in his testicles. Dr. Johansson stated that Claimant’s greatest pain complaint at that time was in his groin and that his back pain was secondary.
19. In general, the VCOR program offered Claimant only limited relief. Upon Claimant’s completion of the program in February of 2006 Dr. Johansson determined that Claimant had a 5% whole person permanent impairment referable to the spine. Dr. Johansson did not know at this time that Dr. Backus previously had rated Claimant with an 8% impairment referable to the spine as a result of Claimant’s 1999 injury.
20. After completing the VCOR program Claimant returned to work full-time light duty. However, he soon became incapable of full time work due to the level of pain he suffered. Dr. Backus again reduced Claimant’s work capacity to four hours per day. On December 31, 2006 Claimant’s employer terminated him because it was no longer able to accommodate his work restriction. Dr. Backus subsequently determined that Claimant’s condition had deteriorated to the point where he had no meaningful work capacity.
21. On January 19, 2007 Dr. Backus stated that he did not have a good anatomical basis to fully understand all of Claimant’s pain symptoms. However, he made a referral for pain treatment at a comprehensive inpatient facility at the Spaulding Clinic in Boston for pain rehabilitation. Broadspire denied payment for the referral.
22. The Department issued an Interim Order approving the Spaulding Clinic for payment by Broadspire and awarded Claimant temporary disability payments until April 2007, when he would have completed the program. Unfortunately, by the time the interim order issued, the Spaulding program had been discontinued.
23. With the Spaulding program no longer available, in the summer of 2007 Dr. Backus referred Claimant to a urologist and a neurosurgeon in order to determine whether there might be any other medical conditions that possibly could be causing Claimant’s pain. Claimant still consistently complained of lower back pain, groin pain and leg pain.
24. In May and October of 2007 Claimant was videotaped by surveillance persons hired by Broadspire. He appears on two videotapes walking either to or from buildings. In one tape he is seen to have his hands on his lower back as he walks slowly toward the building and in the other tape he seems to walk better and does not exhibit pain symptoms.
25. No further diagnostic information was gleaned by the referral physicians except that Claimant’s condition was neither neurological nor urological. In particular, Dr. Tranmer, the neurosurgeon, noted that Claimant’s MRI showed no cause for his genital pain.
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26. In January 2008 Claimant saw Dr. Ralph Beasley and Dr. Amy Gjerde at Dartmouth-Hitchcock Hospital Pain Clinic for his back, groin and testicle pain.
27. Dr. Beasley requested prior authorization for a spinal cord stimulator to treat Claimant’s chronic pain. In Dr. Beasley’s opinion, Claimant’s genital pain is neuropathic, secondary to ilioinguinal neuralgia. Dr. Beasley believed that Claimant was an excellent candidate for spinal cord stimulator therapy to address his low back pain. As for Claimant’s groin pain, both Dr. Beasley and Dr. Gjerde thought that it would be difficult to alleviate this pain with the stimulator.
28. At Broadspire’s request, Dr. George White conducted independent medical evaluations of Claimant on March 29, 2005 and March 21, 2008. Dr. White concluded that the September 13, 2005 lifting incident caused an aggravation of Claimant’s pre-existing low back injury. Even though Claimant’s groin pain had increased, Dr. White did not find a new inguinal hernia or damage to either the abdominal muscles or the fascia. Dr. White opined that the increase in groin pain Claimant experienced related back to the 1999 work injury.
29. Dr. White also suggested that Claimant’s use of opioid analgesics since the 1999 injury might have had the paradoxical effect of increasing his overall pain sensitivity. Alternatively, Dr. White conjectured that Claimant could have a somatization disorder.
30. Dr. Penar, a pain management specialist, examined Claimant on December 7, 2007. Dr. Penar has a special interest in ilioinguinal and genitofemoral nerves. In reference to Claimant’s left groin pain, Dr Penar noted that “one could consider that some of this pain would be referred to the groin from any level of lumbar disc disease.”
31. At NovaPro Risk’s request, Dr. William Boucher conducted an independent medical examination of Claimant on April 10, 2008. Dr. Boucher was unable to offer any explanation for Claimant’s genital pain. In his opinion, such isolated genital pain could not be caused by spinal pathology except in extreme cases involving cauda equina syndrome. Dr. Boucher observed signs of symptom magnification in Claimant’s examination, and opined that Claimant’s motivation for such exaggerated pain complaints could be narcotic dependence.
32. Aside from Dr. Boucher, no other medical expert found signs of symptom magnification while evaluating Claimant. Notably, Dr. Backus never observed any evidence of symptom magnification during the nine years he has been treating Claimant.
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33. Claimant has asked different providers, including local emergency room physicians, for narcotic pain medications on a fairly consistent basis for many years. He has taken narcotic medications for many years. After the 1999 injury he was on Valium, Percocet and Ultram. Claimant has a history of migraine headaches dating back to his late teens. He has been taking Fiorinal, a barbiturate, for migraine control at least since 1974. Presently he takes three Fiorinal daily. In 2000 Claimant sought treatment from Dr. Ciongoli for his headaches. Dr. Ciongoli opined that Claimant was drug seeking and wanted Demerol and Phenergan. A March 4, 2002 record from Claimant’s primary care provider contains the notation “[u]sed 60 Fiorinal in <2 mos!!!”
34. Claimant continued to work while on these medications until 2006. The narcotic medication Oxycontin prescribed by Dr. Backus later was changed to a Duragesic patch, which contains fentanyl.
Impairment Rating for Meralgia Paresthetica
35. In October 2007 the Department approved Broadspire’s discontinuance of temporary disability benefits on the grounds that Claimant had reached an end medical result. Even though he disagreed with the Department’s determination, Dr. Backus then completed another permanency evaluation. He assigned an additional 1% whole person permanent impairment for Claimant’s meralgia paresthetica. Drs. Boucher and White both agree that this rating was appropriate, although they do not agree that it was causally related to either of Claimant’s work injuries.
Impairment Rating for Post-Hernia Pain
36. Dr. Backus also assigned Claimant an additional 4% whole person impairment referable to Claimant’s post-hernia pain. Dr. Backus’ conclusion was based both on his interpretation of the relevant section of the AMA Guides and on his understanding of prior Department decisions. See Estabrook v. New England Precision, Opinion No.10-00WC (May 16, 2000); Knapp-Bowen v. Equinox Terrace, Opinion No. 4-98WC (January 19, 1998).
37. The relevant section of the AMA Guides, Table 6-9, lists the criteria for rating a Class 1 permanent impairment due to herniation, for which the rating range is 0-9% whole person, as follows:
Palpable defect in supporting structures of abdominal wall
and
slight protrusion at site of defect with increased abdominal pressure; readily reducible
or
occasional mild discomfort at site of defect but not precluding most activities of daily living. (Emphasis in original).
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38. Dr. Backus found Claimant to be at the high end of Class 1. In his opinion, a surgically repaired hernia is still a defect even if it is neither palpable nor protruding. Thus, Claimant’s surgically repaired hernia, combined not only with occasional discomfort but also with intermittent pain “so strong that it takes him to his knees,” qualified him for a Class 1 impairment under the third phrase quoted above. As Dr. Backus already had rated Claimant with a 5% impairment following the original 1999 injury, he added an additional 4% for Claimant’s post-hernia pain to bring the final rating up to the maximum of 9%.
39. Dr. Boucher and Dr. White both interpret the AMA Guides differently, and therefore both disagree with Dr. Backus’ rating. They interpret Table 6-9 to require both a palpable defect (the first phrase noted above) and either a protrusion (the second phrase) or discomfort at the site (the third phrase) in order to qualify for a rating greater than 0%. According to this interpretation, as Claimant’s hernia was neither palpable nor protruding once it had been surgically repaired, there was no additional permanency to be rated for Claimant’s post-hernia pain beyond the 5% he had received initially.
Expert Opinions as to Sexual Dysfunction
40. The medical experts disagree as to whether Claimant’s sexual dysfunction is causally related to either of his work injuries and, for that matter, if it even exists. Although most of the experts accept the possibility that either low back or hernia pain can affect the nerves that wrap around the groin area, with the exception of Dr. Backus they do not believe these nerves affect the penis directly or create erectile dysfunction. In contrast, Dr. Backus believes that Claimant’s genital pain stems from his low back injury and therefore is causally related to the aggravation that occurred as a result of the September 2005 lifting incident.
41. Dr. White’s position was that Claimant’s sexual dysfunction was not causally related to either of his work injuries. He noted that Claimant had experienced testicular pain as early as 2000 (as indicated in the February 22, 2000 visit with Dr. Elke Penn), indicating problems many years prior to the 2005 injury. Dr. White conceded that testicular pain can interfere with sexual function but still did not relate this to Claimant’s work injuries.
42. Dr. Backus testified that Claimant’s genital pain was radiating from his lumbosacral region. He explained that spinal nerves S2, S3 and S4 enervate the penis and that an injury to that area of the back can cause penile pain.
43. Dr. Boucher disagreed with Dr. Backus and stated that only a fracture in the sacral region could cause pain radiating to the penis. Claimant does not have a fracture in this region, and therefore Dr. Boucher would not attribute his genital pain to his low back pain.
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44. Dr. Backus rated Claimant with a 9% whole person impairment referable to his sexual dysfunction. According to the AMA Guides, a permanency rating of 1% to 9% is proper if “sexual functioning is possible, but difficulty of erection or ejaculation in men or lack of awareness, excitement, or lubrication in either sex” is present. The Guides require that the patient’s previous level of sexual functioning be considered, and note in this regard that age is only one criterion for doing so.
45. Claimant testified about his sexual life after the work injury in 2005 and his short re-marriage. His testimony was inconsistent and not completely credible. It is unclear whether he simply was uncomfortable discussing sexual issues or whether he was deliberately inaccurate.
Expert Opinions as to Spinal Cord Stimulator
46. Dr. Backus advocates that Claimant undergo a trial of treatment with a spinal cord stimulator and/or spinal injections, both to address his pain issues and hopefully, to restore function as well. Dr. White testified that such a trial would not be “unreasonable,” but that it was not likely that he would direct Claimant in this fashion.
47. Despite giving permanency ratings when asked to do so, Dr. Backus strongly believes that claimant is not at end medical result. In his opinion, Claimant could achieve restored function if he attends a comprehensive pain rehabilitation and restoration program, undergoes a spinal cord stimulator trial and receives spine injections. Dr. Backus believes this treatment program also would reduce Claimant’s reliance on narcotic pain control medications.
48. It is somewhat unclear whether Claimant is committed to undergoing Dr. Backus’ proposed treatment program. No other medical provider has offered any alternative plan, however.
Claimant’s Work Capacity
49. At Defendant’s request, on March 14, 2008 Claimant underwent a functional capacities evaluation with Erica M. Galipeau, PT, CSCE, CEES. After administering a battery of tests, Ms. Galipeau determined that Claimant could work in a sedentary to light capacity for a 4-hour work day that allowed for him to change positions every twenty minutes. Ms. Galipeau found that Claimant may have given less than full effort in testing, but concluded that this may not have been intentional. Ms. Galipeau admitted that it was questionable whether it was feasible for Claimant to return to work in a position that allows for the frequent change of position he requires.
50. Dr. Backus disagreed with Ms. Gailipeau’s conclusions. In his opinion, Claimant’s work capacity is limited to a maximum of two hours per day, if at all. As noted above, Dr. Backus believes that Claimant’s level of function probably will improve with further treatment.
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Attorney’s Fees and Costs
51. Claimant has submitted a claim for attorney’s fees under 21 V.S.A. §678 totaling $25,854.00 and costs totaling $2,433.46. Defendant has challenged various aspects of the fees sought, particularly charges for conferences with other staff attorneys in Claimant’s attorney’s firm.
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. This claim presents several complex issues, all of which depend on the credibility of competing medical opinions. 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).
Is Claimant entitled to additional permanency benefits for meralgia paresthetica causally related to the September 2005 lifting incident?
3. Dr. Backus determined that Claimant’s meralgia paresthetica was aggravated by the September 2005 injury, and assigned an additional 1% for the increased pain attributable to this condition. Dr. Backus’ opinion was credible, and neither Dr. White nor Dr. Boucher disagreed with his rating. There is no dispute as to this issue, therefore.
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Is Claimant entitled to additional permanency benefits for post-hernia repair pain?
4. The dispute here centers on the proper interpretation of Table 6-9 of the AMA Guides. The Commissioner previously has determined that a hernia constitutes a defect even after it has been repaired surgically. Estabrook v. New England Precision, Opinion No. 10-00WC (May 16, 2000); Knapp-Bowen v. Equinox Terrace, Opinion No. 4-98WC (January 19, 1998). Given that precedent, Dr. Backus’ interpretation of Table 6-9 was appropriate. Based on the degree of discomfort and limitation in Claimant’s activities following the 2005 injury, Dr. Backus properly increased the impairment rating by 4% beyond what had been rated following the original 1999 injury.
Is Claimant’s genital pain and erectile dysfunction compensable?
5. Neither NovaPro Risk nor Broadspire ever accepted responsibility for Claimant’s genital pain or erectile dysfunction. The burden is on Claimant, therefore, to establish that these conditions were causally related to his work injuries. Dr. Backus believes that they are; Drs. White and Boucher maintain that they are not.
6. Although Dr. Backus has been Claimant’s treating physician for many years, I find that his opinion is not the most credible in this regard. Dr. Backus is not a specialist in this area, and admitted that he sought out other physicians’ opinions as to these conditions because he could not find objective support for Claimant’s ongoing complaints. In fact, no such objective support was produced, and Claimant’s subjective testimony was not sufficiently credible to overcome the deficiency thus created. See Bowen v. E.F. Wall, Opinion No. 17-04WC (April 20, 2004). Under these circumstances, I find that Claimant has not sustained his burden of proof, and that neither his genital pain nor his erectile dysfunction are compensable conditions.
Has Claimant reached an end medical result for his compensable injuries and if not, what reasonably necessary medical procedures are compensable?
7. Vermont’s Workers’ Compensation Rules define end medical result as “the point when a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200.
8. I find that the most credible evidence establishes that Claimant has not yet reached an end medical result as to his low back injury and that the further treatment proposed by Dr. Backus, specifically a spinal cord stimulator trial and/or spinal injections, as well as participation in a comprehensive functional restoration program, reasonably might result in significant further improvement. Notably, Dr. Backus strongly believes that Claimant’s work capacity will increase as well if he pursues this treatment plan.
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9. Broadspire has asserted that Claimant’s true motivation for seeking additional treatment and/or benefits is a desire for narcotics. This claim is without merit. There is no dispute that Claimant suffered very painful injuries. He has tried a variety of medications and treatments to manage his pain. The fact that narcotic pain medications have proven more successful in this regard than any of the other treatments neither negates the extent of Claimant’s compensable injuries nor the degree of pain from which he suffers. Indeed, it only serves to validate Claimant’s need for further treatment designed both to improve his condition and to decrease his reliance on narcotics for effective pain control.
10. Having failed yet to reach an end medical result for his low back condition, Claimant is entitled to a resumption of temporary disability benefits retroactive to their discontinuance. It is only fair, however, that Claimant demonstrate a firm commitment to pursue the treatment Dr. Backus has proposed. Thus, should Claimant fail to take the steps necessary to begin undergoing the recommended treatment within the next thirty days, he shall be deemed to be at end medical result.
11. I do find that Claimant has reached an end medical result as to his meralgia paresthetica and post-hernia repair pain conditions. None of the treatments proposed by Dr. Backus is likely to result in significant further improvement in these conditions.
Which insurer is responsible for the benefits now determined to be due?
12. Answering this question requires a determination whether Claimant suffered an aggravation of his pre-existing injuries as a result of the September 2005 lifting incident. The Department historically has used a five-part test to determine if such an aggravation has occurred: (1) whether a subsequent incident or work condition destabilized a previously stable condition; (2) whether the claimant had stopped treating medically; (3) whether the claimant had successfully returned to work; (4) whether the claimant had reached an end medical result; and (5) whether the subsequent work contributed independently to the final disability. Trask v. Richburg Buliders, Opinion No. 51-98WC (August 25, 1998). The critical question is whether the September 2005 lifting incident combined with Claimant’s pre-existing impairment to produce a disability greater than what otherwise would have occurred. Farris v. Bryant Grinder, 177 Vt. 456, 458 (2005), citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997).
13. With the Trask factors in mind, I find it significant that prior to the 2005 injury Claimant had been able to return to work without restrictions; following it he was limited at best to four hours per day. Equally telling is the fact that following the 2005 injury, Dr. Backus felt it necessary to rate additional permanency, both for Claimant’s meralgia paresthetica and for his post-hernia repair pain. I find Dr. Backus’ testimony both persuasive and credible. I conclude, therefore, that the September 2005 injury resulted in an aggravation of Claimant’s compensable low back, meralgia paresthetica and hernia conditions, for which Broadspire is the responsible carrier.
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Attorney’s fees and costs
14. Aside from his claim that his genital pain and erectile dysfunction are compensable conditions, Claimant has substantially prevailed. He is entitled to an award of those costs relating to the claims he successfully prosecuted. Hatin v. Our Lady of Providence, Opinion No. 21S-03WC (October 22, 2003). As issues of end medical result, further medical treatment, work capacity and temporary disability related to all of Claimant’s claims, however, it is difficult to separate out specific costs as referring to successful versus unsuccessful claims. Under these circumstances, I find it appropriate to award Claimant 75% of his costs, or $1,825.10.
15. The same analysis applies to an award of attorney’s fees. Thus, I find it appropriate to award Claimant 75% of his attorney’s fees, or $19,390.50. This deduction from the amount requested also takes into account Broadspire’s argument that Claimant’s attorney inappropriately billed for consultations with other staff attorneys in his firm.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant Broadspire is hereby ORDERED to pay:
1. Permanent partial disability benefits for a 1% impairment referable to Claimant’s meralgia paresthetica;
2. Permanent partial disability benefits for a 4% impairment referable to Claimant’s post-hernia repair pain;
3. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s low back pain, including a spinal cord stimulator and/or spinal injections;
4. Temporary disability benefits retroactive to their discontinuance and ongoing until properly discontinued in accordance with the workers’ compensation statute and rules, with due regard to the time frame noted in Conclusion of Law Number 10 above;
5. Interest on the above amounts in accordance with 21 V.S.A. §664; and
6. Costs of $1,825.10 and attorney’s fees totaling $19,390.50.
7. Claimant’s claim for workers’ compensation benefits related to genital pain and/or erectile dysfunction is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of November 2008.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

A. M. v. Laraway Youth and Family Services (October 30, 2008)

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

A. M. v. Laraway Youth and Family Services (October 30, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. M. Opinion No. 43-08WC
v. By: Phyllis G. Phillips, Esq.
Hearing Officer
Laraway Youth and
Family Services For: Patricia Moulton Powden
Commissioner
State File No. Y-02248
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
Beth Robinson, Esq., for Claimant
Kelly Smith, Esq., for Defendant
ISSUES PRESENTED:
1. Whether Defendant was Claimant’s statutory employer pursuant to 21 V.S.A. §601(3) at the time of her December 17, 2005 injury;
2. Whether Claimant’s claim for workers’ compensation benefits is time-barred under 21 V.S.A. §656(a).
FINDINGS OF FACT:
The following facts are undisputed:
1. Claimant suffered an injury at the hands of a foster child placed in her care pursuant to Defendant’s Substitute Care program on or about December 17, 2005.
2. Defendant has been providing therapeutic care for adolescents since the 1970’s. The nature of Defendant’s business has changed in the past forty years, including a change in the corporate nature of the business.
3. For a period of time, Defendant operated an in-house residential program for youth in its care. In 1995, Defendant closed this program, obtained a license as a child-placing agency and opened a therapeutic foster care program. In connection therewith, Defendant identifies, trains, approves and supports foster care providers while providing case-management services for the children it places. This child placement and therapeutic foster care program is known as Defendant’s “Substitute Care Program.”
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4. In addition to its child placement and therapeutic foster care program, Defendant also operates a school. This school is a licensed educational institution distinct from Defendant’s Substitute Care Program; not all foster children placed by Defendant are enrolled in the school.
5. In connection with its Substitute Care Program, Defendant is licensed by the State of Vermont Department for Children and Families (DCF) as a child-placing agency. As Defendant states on its website, this license allows Defendant to “recruit, approve, train and support our own foster homes for children who are in the custody of the State of Vermont.”
6. The Vermont Agency of Human Services regulates child placement agencies. It defines such an agency as “an organization established for the purpose of providing or arranging placement” for children in foster homes. Vt. Code R. 13 162 005, Defendant’s Opposition to Claimant’s Motion for Partial Summary Judgment and Cross Motion for Summary Judgment at Exhibit 1. A licensed child placement agency must provide orientation and training to the foster parents with which it places children, must assign a member of its social work staff to visit the foster home at least monthly and must involve the foster parent in developing both initial placement plans and discharge/aftercare plans for the child. Id., Exhibit 3.
7. Once licensed by the State as a child placement agency, Defendant was authorized to approve homes to provide foster care for children in its Substitute Care Program, even if these homes were not licensed by the State.
8. There are approximately 25 children in the Substitute Care Program, ranging in age from 8 to 18. Most of these children have been victims of trauma and exhibit “acting out” behaviors. The children carry various diagnoses, and their histories are marked by inconsistent parenting, numerous short-term placements and even residential care facilities.
9. Defendant’s website states that its Substitute Care Program “is rooted in the belief that when children are surrounded by caring adults who ensure their safety and who seek to develop their hidden potential, those children can grow to trust and to once again hope for a future free from their abusive pasts.” To this end, the website continues, “[Defendant] provides case managers, mentors, foster parents, respite providers, individual and group and family therapists who work as a team to assist the youth in regaining a sense of self by developing strategies to address each youth’s specific treatment needs.”
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10. Since 2006 Defendant has operated a “staffed foster home” as another placement alternative it can offer for children in DCF custody. Defendant’s paid, in-house employees work in the home, in around-the-clock shifts. Although the home initially was created to accommodate the needs of a specific child who required placement at the time, Defendant has continued to operate it for subsequent child placements as well. The services provided by Defendant’s employees for the children placed in this home are the same as the services provided to children in other foster homes in the Substitute Care Program, though the children placed in the staffed home tend to be the more challenging cases.
11. In April 2004 Claimant applied to work for Defendant as a substitute care provider.
12. In connection with her application, Claimant underwent an extensive background check, including checks with the Department of Motor Vehicles, Office of Child Support, Department of Corrections, various abuse registries and other state agencies.
13. Claimant also underwent in-depth personal interviews and a thorough home study. The home study included detailed investigation of Claimant’s personal and family background, regularly-scheduled trainings conducted by Defendant, physical evaluation of her home and living space and interviews with Claimant.
14. In addition, Defendant typically conducts an evaluation of a prospective foster parent’s home, looking for things like cleaning products within reach, for example.
15. On May 20, 2004 Defendant approved Claimant for placement of one child. Defendant’s home study report notes that Claimant “does not feel she could supervise family visits without support from the LYFS team.”
16. Although thus approved by Defendant, Claimant was not a state-licensed foster parent. As noted above, as a licensed child placement agency Defendant is authorized by the State to place children either in foster homes it has approved or in state-licensed foster homes.
17. In addition to direct care, Defendant’s job description for a foster care provider included case planning, documenting pertinent information and supporting efforts to establish and maintain ties to primary family as appropriate.
18. Claimant was not a licensed foster care provider in 2005. This means that she was not entitled legally to accept foster placements directly from the State of Vermont. Instead, in placing children with Claimant Defendant was operating pursuant to its legal authority to approve a home to provide foster care for children who are part of its Substitute Care Program.
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19. Depending on the needs of a particular child, Defendant may require foster parents in its Substitute Care Program to meet additional safety standards, such as requiring more smoke alarms than the state requires. In general, Defendant has weekly meetings with the foster parents it has approved, greater access to team meetings and a higher level of case manager involvement than it does with state-licensed foster parents. The level of case manager involvement varies with the needs of a particular child.
20. Foster parents like Claimant, who are approved for placement by Defendant but are not licensed by the State Department for Children and Families, can only accept foster children from Defendant.
21. Claimant was not paid directly by the State of Vermont for her foster care services. Rather, she was paid by Defendant, on a per-day basis, from funds it received from the State of Vermont and/or Medicaid.
22. Claimant’s first placement after being approved as a foster parent in its Substitute Care Program was a 16-year old girl who resided with her for a year and a half. Defendant required Claimant to provide a standard bedroom with a closet, and to ensure that the child was appropriately dressed. Claimant was not required to provide the clothing herself, however.
23. Claimant was responsible for getting the child ready for school, which included providing a nourishing meal, and for transporting her to activities on the weekend.
24. Defendant provides a good deal of support to homes in which it places children.
25. As a foster care provider in Defendant’s Substitute Care Program, Claimant was provided an emergency pager so that she could summon assistance from Defendant on a 24-hour basis. Claimant was expected to and did use this pager as needed.
26. Defendant provided instructions to Claimant regarding whether to use and where to store aerosol products in her home, and regarding where to place her dog in her home during crises.
27. Defendant’s supervision of foster parents such as Claimant typically consists of weekly home visits by the case manager, involving the foster parent in treatment and IEP meetings and providing ongoing training.
28. Foster parents such as Claimant were expected to report information relating to a child’s health care to the case manager. In non-emergency situations the case manager, not the foster parent, typically coordinated a child’s medical care. Medical decisions were within the purview of the State of Vermont, as the foster child’s guardian.
29. Defendant’s case managers often check in with foster parents more frequently than weekly – sometimes daily. Foster parents can call case managers at any time, and can use the emergency pager if they don’t reach someone.
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30. During the course of her services as a substitute care provider for her first foster child, Claimant also provided respite care for other providers in Defendant’s Substitute Care Program during vacations and so these other providers could take breaks. Sometimes Defendant arranged for such respite care, and sometimes the providers made arrangements directly among themselves. Defendant paid Claimant on a daily basis for providing such respite care.
31. In 2004 and 2005 Claimant completed at least 10 trainings required by Defendant, on such topics as self-injury, eating disorders, sexual harassment, HIPAA, blood borne pathogens and non-discrimination.
32. After her first placement ended, Claimant had a second child in her care briefly, but that placement did not work out.
33. In December 2005, after Claimant’s first placement had ended, Ken Hammond, Defendant’s case manager, asked her to care for an approximately 10-year old boy, AS. AS had come to Defendant from Community House in Brattleboro. Two prior foster placements in central Vermont had not worked out, and AS was awaiting an opening in a residential facility in Montpelier in early January 2006. In the interim, Defendant placed AS in Claimant’s home.
34. Claimant did not sign any contract with Defendant when it placed AS in her home.
35. AS required constant supervision in the home and everywhere else. He was in crisis, insofar as his behaviors couldn’t be stabilized.
36. During the time AS was with her, Claimant was in daily contact with Defendant. She carried and used her emergency pager on multiple occasions.
37. During AS’ brief time with her, Claimant called Defendant’s crisis line a number of times, and the sheriff went to her house on numerous occasions. Defendant’s crisis coordinator also may have made at least one trip to Claimant’s house.
38. The support Claimant received from Defendant during AS’ placement included case management, a crisis pager with 24-hour access, access to an expert consultant and community support.
39. Someone else from Defendant came to Claimant’s home daily to pick up or drop off AS. Sometimes Ken Hammond, Defendant’s case manager, would come to take AS out.
40. AS was not part of Defendant’s schooling program.
41. When AS was with another Defendant employee, known as a “mentor” or “community support person,” that person was expected to supervise him as closely as Claimant was.
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42. On December 17, 2005 AS was very agitated and restless. Claimant called Defendant’s emergency pager on several occasions to request help. She did not receive any assistance. That night, the child had a major violent outburst. He threw the telephone at Claimant and punched her in the left side of her jaw. Claimant does not recall losing consciousness, but she was extremely dazed and disoriented.
43. Claimant contacted the police department and Defendant’s emergency pager. She was then taken to Copley Hospital, where she stayed for two nights.
44. Claimant reported her injuries immediately to Allen McCarthy, Defendant’s employee. Defendant’s executive director, Greg Stefanski, learned about the altercation between AS and Claimant within a day or two.
45. Following her injury, Claimant kept in close contact with Defendant’s case manager, Judy Brook, who called to make sure she was alright and to see if she needed anything.
46. After Claimant was feeling better, she brought bills in to Defendant for the damages AS had caused. She reported to Defendant that her health insurer had covered her medical bills. She also mentioned that what she thought originally might have been a broken jaw was just a chipped tooth.
47. On January 5, 2006 Defendant’s Director of Substitute Care, Rebecca Hemmer, wrote Claimant, referencing Claimant’s recovery from her injuries and acknowledging that Claimant had incurred medical bills in connection with them.
48. Defendant did not file a First Report of Injury relating to the December 17, 2005 incident. Instead Claimant herself completed a First Report of Injury and filed it with the Department of Labor on November 16, 2006.
CONCLUSIONS OF LAW:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to judgment in its favor as a matter of law. Samlid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Heritage Realty of Vermont, 137 Vt. 425 (1979).
2. At issue in this claim is whether Defendant bears responsibility for Claimant’s injuries because it qualifies as her “statutory employer” under 21 V.S.A. §601(3). The facts relevant to this determination are not disputed, and therefore the question turns solely on the legal interpretation of the term.
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3. The concept of “statutory employer” is codified in 21 V.S.A. §601(3), which defines an “employer” to include “the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workers there employed.” With this definition, Vermont’s workers’ compensation law creates a statutory employer/employee relationship where no such relationship existed at common law. In re Chatham Woods Holdings, LLC, 2008 VT 70 ¶10 (May 16, 2008), citing King v. Snide, 144 Vt. 395 (1984).
4. The Vermont Supreme Court has embraced the “nature of the business” test in determining whether a statutory employment relationship exists. This test asks whether the work performed by the putative employee “is a part of, or process in, the trade, business or occupation” of the putative employer. In re Chatham Woods Holdings, LLC, supra at ¶11. The critical inquiry, therefore, is “whether the type of work being carried out by the independent contractor is the type of work that could have been carried out by the owner’s employees as part of the regular course of the business.” Frazier v. Preferred Operators, 177 Vt. 571, 573 (2004). The test is to be applied broadly, in keeping with the purposes of Vermont’s workers’ compensation laws. In re Chatham Woods, supra at ¶8.
5. In the current claim, Defendant’s business consisted in “recruit[ing], approv[ing], train[ing] and support[ing] our own foster homes for children who are in the custody of the State of Vermont.” Claimant’s Statement of Uncontested Facts, Exhibit 2 (emphasis added). In order to accomplish its mission, Defendant “provides case managers, mentors, foster parents, respite providers, individual and group and family therapists who work as a team to assist the youth in regaining a sense of self by developing strategies to address each youth’s specific treatment needs.” Id. (emphasis added). Thus, Defendant’s Substitute Care Program offered a comprehensive package of services for at-risk youth, of which the foster parents it recruited, approved, trained and supported formed an integral part.
6. To ensure the success of its business endeavor, Defendant went far beyond the minimum requirements imposed by the State for identifying and supporting appropriate foster care placements. It provided more training to its approved foster parents. It imposed more stringent home safety requirements. It involved the foster parent in team meetings and initiated more case manager contact. Last, recognizing its responsibility both for the safety of the children it placed and the foster parents with whom it did so, it provided its parents with emergency pagers to be used whenever appropriate. With all of these acts, Defendant operated not merely as a broker of foster home placements. It did more than simply match at-risk children with willing foster parents. Rather, it took additional steps to ensure that its team of case workers, mentors, therapists and foster parents acted together to provide nurturing, therapeutic substitute care.
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7. Defendant cites the Department’s Declaratory Ruling in Howard Center for Human Services, Inc. v. Commerce and Industry Insurance Co. and AIG (undated opinion) as establishing a precedent against finding statutory employer status in situations similar to the current claim. In Howard Center, the Department concluded that a community mental health center was not the statutory employer of the developmental home providers with whom it arranged placements for developmentally disabled adults. Upon careful reading of the Commissioner’s Ruling, I find that the facts at play in the current claim differ significantly from those underlying the Howard Center ruling. To be sure, the community mental health center under scrutiny in that ruling took an interest in ensuring that the adults it placed were appropriately cared for at home. Beyond addressing basic safety issues, however, it did not dictate the home environment. Nor did it supervise the home providers directly or impose rigorous requirements as to exactly what was to be provided to each client. Simply put, it did not endeavor to provide the same range of coordinated therapeutic services, in the context of an extremely structured, closely monitored setting, that Defendant provided here. This is a critical difference.
8. In keeping with the Supreme Court’s guidance in Chatham Woods, therefore, and notwithstanding the Department’s prior ruling in Howard Center, I conclude that Defendant in this claim qualifies as Claimant’s statutory employer under 21 V.S.A. §601(3). The type of work Claimant performed was work that could have been carried on by Defendant’s own employees as part of the regular course of its business.1
9. Defendant’s contention that Claimant’s claim is time-barred under 21 V.S.A. §656(a) lacks merit. Section 660(a) clearly states: “Want of or delay in giving notice, or in making a claim, shall not be a bar to proceedings under the provisions of this chapter, 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.” (Emphasis added). The undisputed facts establish that Defendant had knowledge of Claimant’s accident within days of its occurrence. This fact alone triggers the operation of §660(a) and is enough to render Claimant’s claim timely.
1 Indeed, in 2006 Defendant did decide to operate a foster home staffed by its own employees rather than by approved foster parents like Claimant. Although this home did not become operational until some months after Claimant’s injury, the fact that it functioned in all respects essentially as the other foster homes in Defendant’s Substitute Care Program did is strong evidence that the type of work performed there occurred in the regular course of Defendant’s business.
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ORDER:
Claimant’s Motion for Summary Judgment is GRANTED. Defendant’s Motion for Summary Judgment is DENIED.
Dated at Montpelier, Vermont this 30th 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.

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.

L. M. v. Home Depot USA, Inc. (October 20, 2008)

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

L. M. v. Home Depot USA, Inc. (October 20, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. M. Opinion No. 41-08WC
By: Jane Dimotsis, Esq.
v. Hearing Officer
Home Depot USA, Inc. For: Patricia Moulton Powden
Commissioner
State File No. S-04149
APPEARANCES:
Stephen Robinson. Esq., for Claimant
J. Christopher Callahan, Esq., for Defendant
ISSUE:
Should Claimant’s permanent partial impairment rating be apportioned between his work-related injury and a prior condition?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit A: AMA Guides to the Evaluation of Permanent Impairment, §1.6 (5th Ed., 2002)
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Costs and attorney’s fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Claimant worked for Defendant as a retail sales associate in the electrical department. On August 24, 2001 he injured his lower back while pulling a roll of electrical wire from a shelf. Defendant accepted the injury as compensable and paid benefits accordingly.
3. Claimant’s prior medical history includes knee replacement surgery in September 2000. Claimant testified that he suffered some back pain associated with his knee condition, but that it resolved with an epidural injection. Claimant testified that he did not experience any further back pain until the August 2001 work injury.
4. As treatment for his work injury, on December 4, 2001 Claimant underwent a lumbar laminectomy and L3-4 fusion. Unfortunately, during the surgery he suffered a dural tear, as a result of which he developed a neurogenic bladder and left foot drop. This surgical complication caused significant bladder dysfunction as well as sexual impotence.
5. At Defendant’s request, Claimant underwent an independent medical examination with Dr. John Johansson, an osteopath, on May 9, 2002. Dr. Johansson concluded that Claimant had reached an end medical result, and was left with a 33% whole person permanent impairment attributable to both the lumbar spine injury and the bladder dysfunction.
6. In calculating that portion of the impairment rating referable to the lumbar spine, Dr. Johansson considered medical records indicating that Claimant had a history of back complaints pre-dating the August 2001 work injury. He also noted a pre-injury MRI study documenting spinal stenosis with disc herniation at L1-2 and diffuse lumbar spine degenerative disc disease. Notwithstanding these pre-existing conditions, however, Dr. Johansson concluded that the August 2001 work injury “clearly aggravated this somewhat benign condition” to the point where Claimant was unable to work and required disc surgery.
7. At the time he rendered his impairment rating, Dr. Johansson did not know that the December 2001 surgery also had resulted in a loss of sexual function. Nor did he know the full extent of Claimant’s bladder dysfunction, which was not revealed until urodynamic studies were performed later.
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8. At Defendant’s request, in a September 12, 2003 letter Dr. Johansson considered how to apportion his 33% impairment rating between the August 2001 work injury and Claimant’s pre-existing lumbar spine condition. Dr. Johansson noted that although the work injury did aggravate the pre-existing condition, “most certainly [Claimant] would have progressed on to having a chronic lumbar condition even despite his work.” With that in mind, Dr. Johansson concluded that “the fair apportionment” would be to attribute one-third of his impairment rating, or 11%, to the pre-existing condition, and two-thirds, or 22%, to the work injury.
9. At his own request, Claimant underwent an independent medical examination with Dr. Victor Gennaro on August 29, 2006. Dr. Gennaro concluded that Claimant had suffered a 55% whole person permanent impairment. In doing so, Dr. Gennaro departed from Dr. Johansson’s original (pre-apportionment) 33% impairment rating in two important respects. First, Dr. Gennaro ascribed a higher impairment rating to Claimant’s bladder dysfunction than what Dr. Johansson had assessed. Second, Dr. Gennaro attributed additional permanency to account for Claimant’s sexual dysfunction, which Dr. Johansson had not considered.
10. After reviewing Dr. Gennaro’s assessment and considering new information concerning the bladder impairment, Dr. Johansson agreed that without considering the apportionment issue, Claimant’s whole person impairment rating was in fact 55%, as Dr. Gennaro had stated it. Applying his apportionment rationale to the higher rating, Dr. Johansson concluded that the portion of Claimant’s permanent partial impairment referable to his work injury was 48%.
CONCLUSIONS OF LAW:
1. The sole issue in this case is whether it is appropriate to apportion Claimant’s 55% impairment rating between his pre-existing lumbar spine condition and his August 2001 work injury. Given the Vermont Supreme Court’s prior holdings on this issue, I conclude that there is no basis to do so.
2. In Marsigli Estate v. Granite City Auto Sales, 124 Vt. 95 (1963), the claimant suffered a compensable injury when he slipped and fell on the ice and injured his hip. Doctors examining him after his fall discovered that he had prostate and bladder cancer. Four months later, following surgery and “deep x-ray therapy,” the claimant died.
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3. On appeal, the Vermont Supreme Court first addressed the issue whether the medical evidence supported the jury’s finding that the claimant’s work-related fall had accelerated the progress of his underlying disease so as to cause his death earlier than it otherwise would have occurred. Having concluded that it did, Id. at 104, the Court next turned to the issue whether the claimant’s entitlement to workers’ compensation benefits should be apportioned between the work-related injury and the cancer. The Court noted that the workers’ compensation statute then in force made “no exceptional provision for apportionment of the compensation . . . between the injury and the pre-existing disease.” Without such a provision, the Court concluded, “there is no requirement that the commissioner . . . determine the relative contribution of the accident and the prior disease to the final result.” Id. at 104; see also Stamper v. University Apartments, Inc., 147 Vt. 552, 554 (1986) (applying Marsigli ruling to preclude apportionment of permanent partial disability benefits between work injury and pre-existing condition).
4. In the current claim, there is no dispute that Claimant’s work injury aggravated or accelerated the pre-existing problems in his lumbar spine, thus hastening the onset of disabling symptoms and the need for surgical treatment. Applying the rule of Marsigli, under these circumstances the Commissioner is not required to apportion permanency.
5. It is true that the statute under which both Marsigli and Stamper were decided has since been amended. Under 21 V.S.A. §648(d), apportionment now is required in cases where a prior impairment has been both rated and paid. Absent those specific circumstances, however, in all other cases the Commissioner retains discretion whether to apportion or not. See N.K. v. State of Vermont Department of Health, Opinion No. 36-08WC (September 4, 2008).
6. The circumstances here dictate that it is more appropriate to award all of the permanency rated than it is to apportion. Notwithstanding the fact that Claimant may have had some degree of pre-existing disc disease in his lumbar spine, it was not disabling and did not require medical treatment until the August 2001 work injury. Clearly the work injury acted in such a way as to aggravate and accelerate it, and Claimant’s permanency award should fully reflect that result.
7. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $540.73 and attorney’s fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits reflecting a 55% whole person impairment referable to the spine; and
2. Costs in the amount of $540.73, and attorney’s fees totaling $9,000.00.
DATED at Montpelier, Vermont this 20th day of October 2008.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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