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Gregory de Chantel v. Sears Holding Corp. (February 28, 2013)

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Gregory de Chantel v. Sears Holding Corp. (February 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gregory de Chantal Opinion No. 08-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Sears Holding Corp.
For: Anne M. Noonan
Commissioner
State File No. DD-51137
OPINION AND ORDER
Hearing held in Montpelier on September 28, 2012
Record closed on December 26, 2012
APPEARANCES:
Heidi Groff, Esq., for Claimant
J. Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a work-related lower back injury on or about July 19, 2011?
2. If yes, to what workers’ compensation benefits is Claimant entitled as a consequence of that injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Verne Backus, M.D., M.P.H.
Claimant’s Exhibit 2: Wage verification
Claimant’s Exhibit 3: Certificate of Dependency (Form 10/10s)
Claimant’s Exhibit 4: First Report of Injury (Form 1)
CLAIM:
Temporary total disability benefits beginning on July 21, 2011 and continuing, pursuant to 21 V.S.A. §642
Permanent partial disability benefits in amounts to be determined, pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant was the assistant store manager of Defendant’s automotive shop. His duties included clerical functions (preparing employee work schedules, checking receipts, etc.), sales and hands-on automotive repair work for customers.
Claimant’s July 2011 Injury and Subsequent Course of Treatment
4. On Tuesday, July 19, 2011 Claimant assigned himself to work on a difficult automotive repair job. The work was labor intensive, and required him to bend over the hood of the vehicle for a sustained period of time in order to reach and remove various engine parts. After several hours of doing so, Claimant straightened up to stretch and felt a painful twinge or pop in his lower back. He continued working on the vehicle and left for the day at around 4:30 or 5:00 PM.
5. Claimant had had episodes of lower back pain in the past, which he typically treated with a combination of ibuprofen, rest and topical analgesics such as Tiger Balm or Bengay. In fact, on the Friday before the incident in question, his first day back to work after a week-long vacation, Claimant had mentioned to a co-worker that his lower back was sore. Claimant credibly testified that with ibuprofen, the soreness quickly resolved and he was able to work his full shifts throughout the weekend.
6. On two other occasions in the past, once in 2008 or 2009 and once in December 2010, Claimant had sought chiropractic treatment for episodes of lower back pain. Both episodes had resolved quickly.
7. On the day following the incident in question, Wednesday, July 20, 2011, Claimant awoke with some back stiffness. On his way to work he stopped at a store and purchased some Tiger Balm, which he applied to his lower back. Claimant credibly testified that while his back remained stiff, because he spent most of the day doing paperwork in his office it was manageable.
8. The next day, Thursday, July 21, 2011, was a scheduled day off. Claimant credibly testified that he awoke at around 9:00 AM when the telephone rang, but when he tried to get out of bed to answer the phone, he was unable to do so. His lower back was painful and he had no strength in his right leg. This was a new symptom, one that he had never experienced in any of his prior episodes of lower back pain.
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9. Claimant commenced chiropractic treatment that day. Shortly thereafter, he reported his injury to Defendant. Claimant credibly testified that the reason he had delayed reporting the injury until then was because he assumed his back pain would resolve as quickly as it had on prior occasions, with ibuprofen, Tiger Balm and rest on his day off.
10. Over the course of the next several months, Claimant treated on a regular and frequent basis, as much as two or three times per week, with Dr. Keefe, his chiropractor. In addition, he underwent two courses of physical therapy and a series of lumbar epidural steroid injections. None of these treatments yielded effective symptom relief. Unlike his prior episodes of lower back pain, this time Claimant suffered as well from pain, numbness and tingling down his right leg and into his foot. These symptoms were consistent with an August 2011 MRI study, which confirmed a right-sided L5-S1 disc herniation with nerve root impingement. The MRI study also revealed osteoarthritis and degenerative disc disease at multiple levels in Claimant’s lumbar spine. These latter conditions most likely pre-existed the July 19th incident at work.
11. Because his symptoms had failed to respond to extensive conservative treatment, in March 2012 Claimant underwent a neurosurgical consult with Dr. Barnum. In April 2012 Dr. Barnum surgically decompressed the affected nerve root. Since the surgery, Claimant’s symptoms have almost completely resolved. As of September 2012 he was still engaged in physical therapy, but was anticipating being released to return to work in October.
Expert Medical Opinion
12. At the request of his attorney, in May 2012 Claimant underwent an independent medical examination with Dr. Backus, a board certified specialist in occupational and environmental medicine. Dr. Backus personally examined Claimant, and also reviewed his pertinent medical records.
13. To a reasonable degree of medical certainty, Dr. Backus concluded that Claimant likely suffered a lower back strain as a result of his work activities on July 19, 2011. This caused inflammation in and around the L5 nerve root. With some preexisting degenerative disc disease already present in the area, the inflamed nerve root became pinched, causing it to become even more inflamed. Ultimately the body reacted to the inflammation by causing the muscles around it to spasm. In what Dr. Backus described as a “classic presentation,” this was the manner in which Claimant’s symptoms progressed from feeling a “twinge” or pop while engaged in a vehicle repair job at work on July 19th to being unable to get out of bed on July 21st. I find this analysis credible in all respects.
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14. Dr. Backus acknowledged the possibility that the progression of Claimant’s symptoms might actually have begun on Friday, July 15th, the day he complained to his co-worker of soreness in his lower back following the prior week’s vacation. However, in Dr. Backus’ opinion it was far more likely that Claimant’s work activities on July 19th, which involved a specific task, a sustained posture likely to cause low back strain, and then immediate and acute symptoms, triggered the chain of events that led him to seek treatment. For this reason, Dr. Backus concluded that Claimant’s lower back pain and associated radicular symptoms were work-related. I find this reasoning persuasive.
15. Dr. Backus determined that Claimant had not yet reached an end medical result as of the time of his May 2012 evaluation. Once he does so, Dr. Backus anticipates that under the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), his permanent impairment likely will fall in the 10-13 percent range.
16. I find from the medical evidence that Claimant was temporarily totally disabled as of July 21, 2011. Claimant’s average weekly wage for the 26 weeks preceding his injury was $800.47. This yields an initial weekly compensation rate of $533.91, updated to $544.59 as of July 1, 2012.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue here is whether Claimant’s work activities on July 19, 2011 caused the disabling lower back injury for which he ultimately underwent surgery in April 2012. With Dr. Backus’ expert opinion as support, Claimant asserts that the required causal link has been established. In response, Defendant contends that Dr. Backus’s opinion was based on an erroneous assumption, that is, that Claimant’s preexisting lumbar spine disease had been asymptomatic prior to July 19, 2011 when in fact it was not. As a result, Defendant argues, Dr. Backus’ causation opinion is fatally flawed and must be rejected.
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3. I cannot accept Defendant’s argument, for two reasons. First, contrary to Defendant’s assertion, Dr. Backus did consider whether Claimant’s symptoms might have been more directly related to the lower back soreness he complained of on Friday, July 15th than they were to his work activities on July 19th, see Finding of Fact No. 14, supra. However, he rejected that scenario in favor of the one he found more probable – that Claimant’s work on that day caused him to suffer a lower back strain, which in turn caused his L5 nerve root to become inflamed and, ultimately, impinged. His reasoning in this regard was clear, thorough and analytically sound.
4. Second, Defendant’s analysis ignores the fact that the symptoms Claimant suffered after July 19th were markedly different from those he had experienced during any prior episode of lower back pain, including the soreness he reported on July 15th. The radicular pain, numbness and weakness he reported in the days after the July 19th episode indicated a significant worsening of the preexisting degeneration in his lumbar spine. True, such symptoms might have occurred even if he had not been doing the work that he did on that day. However, the test for work-related causation is not what might have occurred; rather, it is what likely occurred to a reasonable degree of medical certainty. Burton, supra.
5. Through Dr. Backus’ expert testimony, Claimant has presented a credible chain of causation from the preexisting structural degeneration in his lumbar spine to specifically aggravating work activities, and then new, disabling symptoms that ultimately required surgical correction to resolve. I conclude that he has sustained his burden of proving that the injury he suffered, and the resulting disability and medical treatment that followed, are compensable.
6. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,605.58 and attorney fees based on a contingent fee of 20 percent of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits pursuant to 21 V.S.A. §642, commencing on July 21, 2011 and continuing until appropriately discontinued in accordance with 21 V.S.A. §643 and Workers’ Compensation Rule 18.0000;
2. Interest on the above amounts as calculated pursuant to 21 V.S.A. §664;
3. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s lumbar spine condition since July 19, 2011, in accordance with 21 V.S.A. §640;
4. Permanent partial disability benefits in amounts to be determined, pursuant to 21 V.S.A. §648; and
5. Costs totaling $3,605.58 and attorney fees based on a contingent fee of 20 percent of the recovery not to exceed $9,000.00, in accordance with 21 V.S.A. §678 and Workers’ Compensation Rule 10.1220.
DATED at Montpelier, Vermont this 28th day of February 2013.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Estate of A. G. v. VLCT as Insurer for City of Burlington (January 31, 2007)

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

Estate of A. G. v. VLCT as Insurer for City of Burlington (January 31, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
Estate of A. G. Opinion No. 51-06WC
By: Margaret A. Mangan
v. Hearing Officer
VLCT as Insurer for For: Patricia Moulton Powden
City of Burlington Commissioner
State File No. U-00900
Hearing held in Montpelier on September 13, 2006
Record closed on October 25, 2006
APPEARANCES:
Joseph C. Galanes, Esq., for the Claimant
John T. Leddy, Esq., for the Defendant
ISSUES:
Was this firefighter’s non-Hodgkins lymphoma causally related to his work?
EXHIBITS:
Claimant:
1. Personnel File
2. Medical record
3. James Edward Lockey, M.D., Original report
4. CV of Dr. Lockey
5. Doctors LeMasters and Lockey Supplemental Report of May 3, 2006
6. CV of Grace LeMasters, Ph.D
7. Tee Guidotti, M.D., M.Ph. Original Report
8. Dr. Guidotti CV
9. Dr. Guidotti Bibliography
10. Dr. Guidotti Rebuttal of April 27, 2006
11. Dr. Guidotti Publications
12. Dr. Guidotti Manitoba Report
30. Lockey and LeMasters Study
31. IARC Classification
33. Final Draft of Meta Analysis
36. JOEM Review
38 Guidotti on Chaudry et. al
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13. Deposition of James Edward Lockey, M.D., M.S.
14. Deposition of Grace LeMasters, Ph.D.
Defendant:
A. CV of Richard D. Gerkin, Jr., M.D.
B. Report of Dr. Gerkin dated March 20, 2006
C. Supplemental Report of Dr. Gerkin dated June 30, 2006
D. CV of Kevin L. Wallace, M.D.
E. Report of Dr. Wallace dated March 20, 2006
F. Supplemental report of Dr. Wallace dated June 27,2006
FINDINGS OF FACT
1. The City of Burlington hired A. G. (“Claimant”) to work as a firefighter on August 2, 1963. He was 25 years old when hired. Over the next forty years Claimant held most of the jobs in the department. He rose through the ranks first to firefighter first class then lieutenant, captain, battalion chief, chief in charge of fire suppression and finally to assistant chief.
2. Claimant worked until July 14, 2003 when he passed away due to the effects of non-Hodgkin’s lymphoma (“NHL”).
3. Claimant smoked cigarettes for most of his life, but smoking has not been linked to NHL.
Firefighting and its Link to Carcinogens
4. All of the experts agreed that all firefighters that work in fire suppression encounter a host of agents known to be carcinogenic.
5. The International Agency on Research on Cancer located in Geneva, Switzerland compiled a short list of some of the chemicals firefighters are exposed to while fighting fires. These chemicals include Acetaldehyde, Acrolein, Acrylonitrile, Asbestos, Benzene, (1, 3) Butadiene, Chloroform, Crystalline silica, Formaldehyde, Glycidaldehyde, Soot, Styrene, Vinyl chloride, Wood dust, PAHs. These chemicals are all known carcinogens.
6. All of the experts agree that it is virtually impossible to know how all of the carcinogens react when they are mixed together as a result of combustion.
The Epidemiological and Medical Analysis
7. Epidemiology is the field of public health and medicine that studies the incidence, distribution, and etiology of disease in human populations. Epidemiology addresses whether an agent can cause a disease. It focuses on the question of general causation (i.e., is the agent capable of causing disease?) rather than that of specific causation (i.e., did it cause disease in a particular individual?).
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8. The first question an epidemiologist addresses is whether an association exists between exposure to the agent and disease. An association between exposure to an agent and disease exists when they occur together more frequently than one would expect by chance.
9. In order to establish causation in such occupational disease cases as this case it is necessary to demonstrate that there is an association, which is plausibly causal, and that in the individual case the disease arose out of work. This can be achieved either by demonstrating that in the individual case there are risk factors that indicate probable causation or that, absent such individual circumstances, the epidemiological literature suggests that among firefighters in general it is “more likely than not” that the condition arose out of work.
Expert Opinions
10. The occupational health problems of firefighters have been extensively studied. The evidence available today is the best evidence obtainable.
11. Dr. Wallace and Dr. Gerkin agreed that, given the relative infrequency of NHL in the general population and the relatively small number of firefighters, it is virtually impossible to obtain more accurate information than the studies that exist and as summarized in Dr. Lockey and Dr. LeMasters’ meta-analysis and in the testimony of Dr. Guidotti.
Dr. Lockey
12. Dr. Lockey opined, within a reasonable degree of medical probability that Claimant’s work as a firefighter was the cause of his NHL. Dr Lockey has significant background, training and experience in occupational epidemiology, which is a significant part of his daily work. He has frequently acted as lead investigator on many epidemiology studies. He has published many peer-reviewed articles, which are based on epidemiological evidence.
13. In his work at the University of Cincinnati Dr. Lockey does clinical research in the field of occupational environmental exposures. His practice in environmental occupational epidemiology focuses on the relationship between occupational environmental exposures and the potential to cause disease in human populations. That work ranges from exposures that may be associated with cancer, exposures that may be associated with allergic rhinitis and allergic asthma, exposures that may be associated with pulmonary disorders, as well as mental disorders.
14. Dr. Lockey was retained by Claimant to consider the question whether firefighting caused A. G.’s cancer.
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15. Dr. Lockey’s analysis is based on the following:
• An examination of potential exposures experienced by firefighters on a regular and ongoing basis. He noted that it is a diverse list.
• An examination of potential agents to which a firefighter may be exposed and asked whether any of those agents are known to be carcinogenic. He concluded that the answer to this question was yes.
• He asked whether there were any other potential factors as it applies to Mr. G. that would be known to be associated with a risk for the occurrence of non-Hodgkin’s lymphoma. He could not identify any other known risk factors based on the information that was available.
• He examined the medical literature as it applied to firefighters, where he found consistency, across that medical literature, based on epidemiology studies of a cause-effect relationship between this profession and the occurrence of non-Hodgkin’s lymphoma.
16. Dr. Lockey opined that the medical research showed a clear association between firefighting and NHL and he noted a lack of any confounders. Smoking is not an issue in this case; and there was no known immune deficiency disorder. Finally, he took into consideration that Claimant worked as firefighter for 40 years and didn’t work in other professions.
17. The majority of the human studies either demonstrated a significantly elevated risk from a statistical perspective, or a risk estimate that was substantially higher than the referenced population, but not at a statistically significant level. He noted consistency across the epidemiology studies in relationship to a cause-effect relationship between working as a firefighter and the occurrence of non-Hodgkin’s lymphoma.
18. When Dr. Lockey first examined the question presented by this case he advised that he could not reasonably conclude that firefighting legally caused NHL. He explained that the initial data he examined did not seem to reach a threshold for legal causation.
19. But as he got more into the medical literature and looked at more of the articles and put the articles side by side, he saw a much more consistent relationship between the outcomes of the various epidemiology studies and working as a firefighter. He found upon reexamination that the vast majority of the studies demonstrated statistically elevated risk ratios or elevated risk ratios, but not at a statistical level, with a few exceptions. Based on the individual articles, he concluded that in fact there is a cause-effect relationship.
20. During the same time frame, he received a grant from the Ohio Bureau of Workers’ Compensation and he became involved with the meta-analysis of firefighters. The results of that study confirmed that there is a statistically significant association between working as a firefighter and a risk for non-Hodgkin’s lymphoma.
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21. In anticipation of Defendant’s first line of defense (i.e. that the epidemiological evidence needs to demonstrate at least a doubling of risk before one can consider the question of causation) Dr. Lockey acknowledged that doubling of risk is a research convention, but that “there’s no golden rule that a doubling effect is actually valid or not valid.” However, that theory focuses on individual epidemiological studies, in contrast with the multiple studies he evaluated in this case, which increased the rigor of the analysis. Furthermore, he was evaluating data for an individual, not for a group population.
Dr. Tee Guidotti
22. Dr. Guidotti opined “within reasonable medical certainty and given the weight of evidence, [that] Mr. G.’s non-Hodgkin’s lymphoma arose from his work as a firefighter and was caused by exposures in the course of his occupation as a firefighter.”
23. Dr. Guidotti is a Professor of Occupational and Environmental Medicine and Chair of the Department of Environmental and Occupational Health in the School of Public Health and Health Services at George Washington University Medical Center in Washington, D.C. He has published dozens of peer-reviewed articles in the field of occupational and environmental medicine many of which include analysis of epidemiological evidence.
24. The question of cancer and firefighting has been of interest to Dr. Guidotti since he began studying the link between cancer and firefighting in the 1980s, at first rejecting causation after reviewing the literature available at the time.
25. Since that initial work, Dr. Guidotti published several papers and three books on the subject and has written one book chapter for a separate volume. He has also published on the topic of lymphomas and was a member for two terms of the Vietnam Veterans and Agent Orange Update Committee of the Institute of Medicine (National Academy of Sciences), which has extensively considered lymphomas in another context.
26. In response to his retention in this case Dr. Guidotti updated his review of the medical scientific literature regarding firefighting and NHL and gathered all relevant evidence regarding A. G. He concluded that there was a strong association between cancer and firefighting. Dr. Guidotti then concluded that the association was causal in this case. He based this conclusion on all of the available literature; the fact that A. G. worked for forty years as a firefighter and the fact that there was no evidence of confounders such as immunologic deficit.
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27. Dr. Guidotti considered the convention that a doubling of risk was necessary in order to reach a conclusion that an occupation exposure was causally related to a disease process. He explained that with respect to NHL it was probably statistically impossible for any scientific study to obtain a risk ratio the equaled or exceeded a doubling of the risk. Non-Hodgkin’s lymphoma is a collection of widely disparate diseases that are not commonly separated in epidemiological studies, for reasons of practicality. Any particular non-Hodgkin’s lymphoma that may have a risk elevated substantially above two will be diluted by the inclusion of those that do not. The effect of this is to obscure the association that may exist and to render nearly impossible the demonstration of an association sufficient to satisfy the criterion of “more likely than not” on epidemiological grounds, even when there is evidence that it is present.
28. Dr. Guidotti explained that the cancer contracted by A. G., small lymphocytic cell lymphoma, a B-cell lymphoma, is known to be associated with different occupational risk factors such as solvent exposure and herbicide exposure. As a result, the risk ratio for this particularly type of cancer is probably diluted by inclusion with all the other types of lymphoma that have no association with the exposure. He opined that the true risk for small lymphocytic cell lymphoma, a B-cell lymphoma probably exceeds 2.0.
Dr. LeMasters
29. Dr. LeMasters has a bachelor’s and master’s degree in nursing and a Ph.D. from the Department of Environmental Health at the College of Medicine, University of Cincinnati. She is a Professor in the Division of Epidemiology and Biostatistics.
30. Based on both a quantitative and qualitative evaluation of the scientific research questioning the causal link between firefighting and NHL she and her coauthors determined that it was a probable risk for firefighters to contract non-Hodgkin’s lymphoma. Dr. Grace LeMasters did not render an opinion on specific causation in this case. She is not a medical doctor and did not feel it was within the realm of her expertise to address specific causation. She primarily testified in order to respond to certain criticisms of the meta-analysis she and Dr. Lockey were involved with.
Dr. LeMasters’ and Dr. Lockey’s Meta-Analysis
31. The meta-analysis undertaken by Dr. Lockey and Dr. LeMasters and their coauthors was funded by the Ohio Workers’ Compensation Bureau. They were asked to examine whether the scientific literature supported a causal link between firefighting and cancer.
32. A meta-analysis combines observed and expected risk across a multitude of studies, and then estimates risk. Meta-analysis is helpful when one has particularly rare disease outcomes, such as cancer, and most of the scientific studies have difficulty accumulating sufficient number of cancers for each cancer type. The meta-analysis in this case examined thirty-two studies, eight of which dealt with NHL.
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33. Based on their systematic scientific review the researchers concluded that non-Hodgkin’s lymphoma showed approximately a 50 percent increase in risk for firefighters over those people who do not engage in firefighting, and this finding was statistically significant.
34. The researchers conclude based upon the quantitative as well as the qualitative assessment of the data and the individual studies that firefighting probably caused non-Hodgkin’s lymphoma.
Other Evidence in Support of Finding Causation
35. The Industrial Disease Standards Panel (IDSP) of the Ontario Workers’ Compensation Board which reports to the provincial government for Ontario conducted a review of relevant research and reported that “a probable connection exists between firefighting and primary lymphatic and hematopoietic cancers.” The IDSP recommended that cancers of the lymphatic and hematopoietic systems be made a rebuttable presumption in cases before the Ontario Workers Compensation Board; its recommendation was accepted.
Defendant’s Experts
36. In its defense of this case Defendant offered the opinions of Dr. Michael Wallace and Dr. Richard Gerkin.
37. Dr. Gerkin is Board Certified in Internal Medicine, Medical Toxicology and Cardiology. He practices in Phoenix, Arizona in Internal Medicine, Medical Toxicology and Medical Biostatistics. From 1987 to 2001 he was the Medical Director of the Phoenix Fire Department. Dr. Gerkin opined that there is insufficient medical scientific evidence to support the conclusion that there exists general causation of non-Hodgkin’s lymphoma by the occupation of firefighting.
38. Dr. Wallace is Board Certified in Emergency Medicine and Medical Toxicology. He is a Staff Physician at the Banner Good Samaritan Medical Center in Phoenix, Arizona. He is also in the Department of Medicine Divisions of Clinical Pharmacology, Toxicology and Occupational Medicine; Associate Director, Center for Environmental Health Sciences; and Leader, Clinical and Translational Toxicology Group at Dartmouth-Hitchcock Medical Center. In his opinion, when one fails to apply a systemic evidence-based approach to toxicologic causal determination, the results are limited to speculation and/or non-evidence based presumption regarding the presence or absence of a cause-effect relationship.
39. In Dr. Wallace’s opinion, none of the scientifically accepted criteria that are applied to toxicologic causation had been satisfied in this case to support a general causal association between firefighting and non-Hodgkin’s lymphoma.
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40. Dr. Wallace and Dr. Gerkin both assert that there is insufficient evidence to support a causal link between firefighting and cancer. However, neither Wallace nor Gerkin have a working knowledge of occupational epidemiology. Neither has conducted a single retrospective study similar to the ones evaluated in this case and neither has published a single peer reviewed article that addresses issues even remotely similar to the issues presented in this case. Neither has performed medical research examining occupational causes of non-Hodgkin’s lymphoma or even occupational causes of cancer generally.
41. Dr. Gerkin based his opinions in this case on his education, training, and experience as a medical toxicologist, and as a biostatistician-epidemiologist. However, Dr. Gerkin has not published an epidemiological study that dealt with cancer risk. Nor has he published epidemiological work assessing the risk of contracting occupational disease. He authored one book chapter, which reviewed three of the relevant studies and concluded that there was not enough evidence at that point to make a conclusion regarding causation.
42. Dr. Gerkin criticized the methodology and conclusions set forth in the meta-analysis. He first claimed that meta-analyses comprising observational studies are considered weaker than clinical studies. Dr. LeMasters responded that Gerkin was comparing these to clinical trials, which divide populations into treatment and non-treatment groups. With epidemiological mortality studies, the firefighters are dead. They cannot be divided into a clinical trial of treatment versus non-treatment group. Furthermore, no occupational environmental study can ethically divide individuals into groups (exposed and unexposed) and then expose half of the study population to suspected carcinogens.
43. Gerkin next pointed out that there are no estimates of exposure in most of the seven studies. Dr. LeMasters points out that comparing subjects as exposed or unexposed, firefighter or not, is a valid surrogate measure of exposure and is often the best available. There is practically speaking no way to consistently measure exposures at each and every fire.
44. Both Dr. Wallace and Dr. Gerkin decry the use of death certificates in the studies used in the meta-analysis. However, all of Claimant’s experts in this case and, all experienced in epidemiology, agreed that death certificates are reliable when consider in large numbers. Any errors are probably equally distributed on either side of the equation and as a result the errors offset one another in the final analysis. In this case the studies that utilized death certificates looked at tens of thousands of death certificates.
45. Finally, Dr. Gerkin claimed that the qualitative analysis section of the meta-analysis could cause risk to be overestimated. However, the qualitative analysis could only downgrade the risk estimate connected to any particular study. Under no set of circumstances did the qualitative analysis result in a higher estimate of risk.
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46. Dr. Wallace also criticized the studies on which Claimant relied, stating “taken as a whole, the available epidemiologic evidence is of limited internal validity, strength, and consistency and fails to reach or surpass the threshold of more likely than not.” Dr. LeMasters, on the other hand, responded that there was consistency in all seven studies with elevated risk estimates. Further, “these were SMR studies, proportional mortality studies, incidence studies and 10 case control type odds ratio mortality studies.”
47. Next, Dr. Wallace expressed the concern that the “criteria of specificity and experimental evidence/biologic plausibility are not fulfilled in the analysis of firefighting as a possible cause of NHL or any of its subtypes.” However, As Dr. LeMasters noted, “biological plausibility dictates a determination that an exposure could cause an effect.’ From that basic premise is added the fact that benzene, butadiene, styrene and vinyl chloride cause cancer and have been associated with NHL. Therefore, there is a biological plausibility that a firefighter exposed to these elements developed NHL as a result.
48. Dr. Wallace when questioned at the hearing tried to conceal his employment with an entity known as Veritox. When asked about his current employment on direct examination Dr. Wallace failed to disclose his employment with Veritox. Defendant paid Veritox for the opinions of Dr. Wallace. It is reasonable to infer that Dr. Wallace did not reveal this fact because 100% of Veritox’s work is for defendants or insurance companies.
49. Further, in his final written report Dr. Wallace touted the results of one particular governmental study that appeared to support his conclusion in this case. However, he did not know of or look for the several governmental studies that reached a conclusion consistent with Claimant’s position here.
50. Claimant’s counsel entered into a Contingency Fee Agreement with the Estate of A. G., which calls for payment of attorney fees in this matter. A copy of this agreement has been produced. In addition, the total costs of suit to date are $20,597.
CONCLUSIONS OF LAW
1. Claimant seeks to prove by a combination of epidemiological evidence and an individualized assessment that Claimant’s forty years of work as a professional firefighter caused his non-Hodgkin’s lymphoma.
2. The claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). He 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).
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3. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
4. Claimant offers opinions from three experts: Dr. James Lockey; Dr. Tee Giudotti; and Dr. Grace LeMasters (only as to the general causation and not specific causation).
5. Dr. Lockey and Dr. Guidotti concluded firefighting caused A. G.’s NHL. To reach this conclusion Dr. Lockey and Dr. Guidotti reviewed all relevant medical evidence, including studies each of them had authored; considered all of the personal information such as length of employment and absence of other risk factors for NHL; and applied their highly relevant background, experience and training as occupational environmental epidemiologists to reach their sound scientific conclusions.
6. Dr. Grace LeMasters did not offer an opinion on specific causation (whether firefighting caused cancer in this particular case). However, in the process of conducting scientific research she reviewed all of the relevant medical literature on the question presented here and she coauthored a peer reviewed scientific study on the exact question presented in this case. The peer-reviewed study concluded that there is a causal link between firefighting and NHL generally. Dr. LeMasters is not a medical doctor and did not feel qualified to render a decision on specific causation in this case.
7. By contrast, Defendant’s medical experts, Dr. Michael Wallace and Dr. Richard Gerkin, concluded that there is insufficient scientific evidence to support a causal relationship in this case.
8. None of the medical experts in this case had a treating relationship with A. G. He passed away long before any of the experts became involved in this case. All of the medical experts had all of the relevant medical records.
9. Although Claimant’s evidence is detailed and strong, it proves association, not causation. The claimant has not established a causal connection between the general activity of firefighting and NHL.
10. While the experts agree firefighters are exposed to carcinogens, there is no detail as to where those carcinogens exist, and in what amount, in industrial, residential or commercial settings. Intuitively one would expect greater exposures at commercial or industrial fires, especially at facilities where known carcinogens were stored or manufactured in large amounts. The record contains no evidence on the number of such fires attended by Claimant.
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11. There is no evidence speaking to the number of fires that Claimant fought, his level of participation in those fires, or the number of industrial or commercial fires where known carcinogens might be present. There is no evidence on the frequency of exposure or types of exposures Mr. G. may have had, respiratory, contact or otherwise. Such evidence may have drawn a clearer picture as to causation. Absent this data, we find that the NHL is possible, but not probable.
12. Even taking the opinions of Dr. Lockey, Dr. Guidotti and Dr. LeMasters as the most authoritative, I find that it is merely possible, not probable, that Claimant’s work as a firefighter caused his NHL. Unfortunately that is an insufficient basis for an award under Burton.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim is DENIED.
Dated at Montpelier, Vermont this ____ day of February 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

M. H. v. I.R.O.C., Inc. (February 6, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. H. Opinion No. 05-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
I.R.O.C., Inc For: Patricia Moulton Powden
Commissioner
State File No. X-59722
OPINION AND ORDER
Hearing held in Montpelier on October 4, 2007
Record closed on October 22, 2007
APPEARANCES:
Mark Kolter, Esq. for Claimant
Keith Kasper, Esq. for I.R.O.C., Inc. and First Comp. Insurance
ISSUES:
Whether the Claimant’s Deep Vein Thrombosis (DVT) and left thigh hemorrhage arose out of his work related injury and are compensable. Also, what is the correct whole person impairment?
EXHIBITS:
Joint Exhibit 1 – Medical Records
Claimant’s Exhibit 1 – 4
Deposition Testimony of Dr. Christopher Rickman
CLAIM:
Claimant seeks payment of all medical benefits associated with his deep vein thrombosis and left thigh hemorrhage, an award of permanency in the amount of 5% whole person and if successful, an award of attorney’s fees and the costs of litigation. All compensation benefits payable for the left hip fracture itself have been paid except for the 3% whole person impairment found by Dr. Bucksbaum for the continued risk of DVT. The permanency
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impairment rating was 2% for the hip impairment, which is included the Claimant’s request for a total of 5% whole person permanent impairment.
STIPULATED FACTS:
1. On March 5, 2006, Claimant was an employee of Defendant within the meaning of the Workers’ Compensation Act.
2. On March 5, 2006, Defendant was the employer of Claimant within the meaning of the Workers’ Compensation Act.
3. On March 5, 2006, Claimant suffered a personal injury by accident arising out of and in the course of his employment with Defendant resulting in a broken left hip.
4. On March 5, 2006, Claimant had an average weekly wage of $576.92 resulting in an initial compensation rate of $384.63.
5. On March 5, 2006, and at all times relevant thereafter, Claimant had one dependant.
6. Claimant underwent surgery at Boston Medical Center for his broken left hip on March 9, 2006.
7. On May 11, 2006, Claimant was laid off by Defendant due to a lack of funding for his position.
8. Claimant was found to be at medical end result by Dr. Tornetta and a Form 27 filed effective July 31, 2006.
9. On August 17, 2006, Claimant suffered a deep vein thrombosis (DVT) in his left thigh, resulting in hospitalization.
10. On November 17, 2006, Claimant was evaluated at Claimant’s request by Dr. Mark Bucksbaum for a permanency evaluation resulting in a finding of medical end result and a permanent impairment of 2% whole person for the loss of range of motion for the left hip fracture and a 3% whole person impairment rating for Claimant’s DVT and left thigh hemorrhage.
11. On November 20, 2006, Claimant was again hospitalized due to a left thigh hemorrhage resulting in further surgery.
12. The sole issue for resolution in this matter is whether Claimant’s DVT and left thigh hemorrhage were caused by the March 6, 2006 work related injury.
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FINDINGS OF FACT:
1. The Department takes judicial notice of all forms filed in this case.
2. Claimant has been wheelchair-bound and a T-10 paraplegic for the past twenty years due to a motorcycle accident in 1988.
3. On March 5, 2006, Claimant was wheeling from the parking lot to his place of work when his wheelchair was suddenly halted by a snow hidden threshold between the parking lot and the sidewalk.
4. The impact caused Claimant to fall out of his wheelchair and land on his hip.
5. At the time, Claimant heard a pop, but felt no pain due to his paralysis.
6. Claimant got into his chair and began his work day but began to feel ill. He secured a replacement for himself at work and left. He remained in bed for two days and then went to North Country Hospital Emergency Room where he was diagnosed with an intertrochanteric fracture, a broken left hip.
7. Claimant was referred to the Boston Medical Center for surgery to repair his hip. Surgery was performed on March 9, 2006. Orthopedic hardware was installed in his femur.
8. Claimant was prescribed Lovenox as a prophylaxis for DVT until March 21, 2006 when he was advised to take aspirin. Claimant discontinued this practice after several weeks.
9. Claimant experienced significant swelling for at least two months after the surgery and could not fit in his wheelchair and thus, was bedridden until May. He never regained his full activity level prior to the DVT and resulting bleed.
10. In June, Claimant was able to return to his wheelchair full-time.
11. On July 18, 2006 Claimant’s doctor in Boston declared him at medical end result and released him to return to work full-time.
12. No further prophylaxis for DVT was prescribed to Claimant at that time.
13. On August 13, 2006 Claimant noticed his left leg was beginning to swell again and was hot to the touch. This is less than a month after being found at medical end result.
14. On August 17, 2006, Claimant called the local hospital and spoke with a nurse who suggested that he might be suffering from DVT and Claimant went to the emergency room where an ultrasound test confirmed DVT.
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15. Claimant was prescribed Lovenox and Coumadin, blood thinners, to help resolve the problem. Claimant remained on Coumadin until November 21, 2006. On the 21st of November, Claimant experienced an arterial bleed or left thigh hemorrhage. His local hospital did not have the correct blood to keep the Claimant alive so he was airlifted to Dartmouth Hitchcock Medical Center. Both Dr. Bucksbaum and Claimant’s treating physician of two years, Dr. Christopher Rickman, found the bleed the direct result of taking blood thinners for the DVT. Surgery to stop the bleed was performed and Claimant was given a Greenfield filter which is inserted to filter blood clots before they reach major organs, thus, eliminating the need for blood thinners.
16. There are numerous medical records from Dartmouth Hitchcock Medical Center regarding the hematoma or blood clot in the Claimant’s thigh. All the records state that the clot was the result of blood thinners taken after the DVT which occurred after surgery. In addition, Dr. Christopher Rickman clearly stated in his deposition that no one can be sure exactly how long after surgery the elevated risk for a DVT lasts.
17. The parties’ experts presented opposing medical opinions as to what caused the DVT. Claimant’s primary treating physician, Dr. Christopher Rickman, through his deposition testimony, stated that the DVT was caused by the hip fracture, the repair of the fracture and his long period of immobility following surgery. The Claimant did not possess other risk factors for DVT, such as being a smoker or a family history of DVT. He did, as we know, have one pre-existing factor in that he was in a wheelchair due to his paraplegia. Dr. Rickman is certified in internal medicine and is very familiar with Claimant’s case. He saw him regularly for the two years prior to the fracture and after. He was very clear that the DVT was the result of the fracture and the hemorrhage was caused by the treatment for the DVT which are blood thinners.
18. Dr. Rickman did his internship at Dartmouth Hitchcock Hospital and received his medical degree from the University of Pennsylvania. His opinions were given to a degree of medical certainty.
19. The immobility and inactivity after the surgery of the hip fracture is a known risk factor for DVT. Dr. Rickman was also familiar with the Claimant’s activity level prior to his fracture which he described as above average. The Claimant was very active at his employment which involved sporting events, such as wheelchair basketball and other sports. He also enjoyed riding his ATV and snowmobile. He was able to lift himself from his wheelchair to the examining table. He had a 60 to 70 hour a week work schedule. He was also active with his son, and did housework like vacuuming, dishes, bathroom cleaning and floor washing.
20. The Claimant appears fit and to have the upper body of a body builder.
21. Unfortunately, his hip surgery left him largely on bed rest for months. Although by June he was out of bed and back in his wheelchair, and by August he was able to resume some of his activities. The Claimant was never able to fully resume his prior activity level.
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22. Dr. Mark Bucksbaum is specifically trained and experienced in managing medical care for patients with paraplegia as well as a Certified Independent Medical Examiner. Dr. Bucksbaum is a biomedical engineer as well as being certified in physical medicine and rehabilitation, the specialty that trains doctors to deal with all areas related to patients with spinal cord injuries. Also, due to his bioengineering training, he is a specialist in fluid dynamics which, to him, is the essence of this case.
23. Dr. Bucksbaum performed a detailed permanency evaluation and physical examination of the Claimant on November 17, 2006. He found the DVT to be a direct result of his compensable injury. In his testimony, Dr. Bucksbaum listed an unbroken chain of events which he stated came together to cause the Claimant’s DVT. In addition to the risk factors already related, Dr. Bucksbaum pointed to the insertion of hardware in Claimant’s hip as a contributing fact to Claimant’s DVT. Dr. Bucksbaum opined that any device placed in the thigh puts additional pressure on surrounding blood vessels. He stated the callous which developed over the hardware in the Claimant’s thigh also added to the risk for DVT, as did the prolonged swelling from surgery and post injury recuperation. Dr. Bucksbaum opined that six of the seven risk factors for DVT were present in the Claimant’s case and were all related to the work injury. Dr. Bucksbaum believed one of the reasons the Claimant had been able to avoid blood clots after almost twenty years since the onset of his paraplegia was the high activity level he maintained prior to his surgery for his work related accident. The seventh risk factor was that Claimant had paraplegia and was in a wheelchair.
24. Dr. Bucksbaum stated that the fracture had occurred in the same compartment of the injured left thigh as the DVT implying the relationship between the fracture and the deep vein thrombosis.
25. Dr. Backus, the expert Defendant hired to do a medical record review, is also a highly qualified certified Independent Medical Examiner. He does not, however, have the same level of expertise as Dr. Bucksbaum dealing with spinal cord injury patients. He opined that the fact that Claimant was wheelchair-bound immobilized his legs which caused his DVT. Immobilization is a major risk factor for DVT. He did not consider the hip fracture sustained at work or other risk factors from Claimant’s surgery as a cause of Claimant’s injury. Dr. Backus did not consider the high level of activity that Claimant engaged in prior to his work injury particularly significant when made aware of it during his testimony. Dr. Backus did not physically examine the Claimant because he believed a physical evaluation after a DVT would provide no further insight into the causation issue.
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26. Dr. Bucksbaum determined that Claimant had a permanency rating of 2% for loss of motion and a 3% rating for a condition requiring perpetual maintenance and treatment through medication or a device. He determined the whole person permanency impairment was 5% based of the AMA Guides. Dr. Backus did not address this issue except to say that he did not believe that the Claimant had suffered further risks due to the surgery beyond the three-month period. He did, however, admit that it is conceivable that some alteration of his physiology from the fracture and surgery decreased activity level or something particular to his physiology could have contributed to his risk for DVT.
27. Of particular note to Dr. Backus was that the DVT occurred more than five months after his work-related injury. Dr. Backus opined that the literature regarding this issue introduced through Dr. Bucksbaum did not support a significant increased risk for DVT approximately five months after surgery. According to Dr. Backus’s reading of the literature, after three months recuperation from surgery, there is a decreased risk for DVT. Dr. Backus also disagreed that the surgical hardware increased Claimant’s risk for DVT and, as previously stated, he did not believe that the previous high activity level of the Claimant was significant, since he could not move his legs. He discounted any increased blood circulation that the exercise provided. The article introduced by Dr. Bucksbaum did not refer to the insertion of hardware as a risk factor. Dr. Rickman also agreed in his deposition that he was not aware that the insertion of hardware itself would have increased the risk for DVT, but he believed, more importantly, it was the surgery and trauma that increased the risk.
28. All of the doctors gave their opinions to a degree of medical certainty. The Department recognizes that all of the doctors are qualified to give expert opinions in this case.
29. Of significance to Dr. Rickman, the treating physician was the fact that the Claimant had no problem with blood clots prior to his surgery for almost twenty years. All the doctors agreed that lack of physical activity and immobility, such as a bed rest and the surgery itself, are all factors that could contribute to DVT. A major point of disagreement was whether the length of time after the surgery impacted the likelihood of the Claimant having DVT and the bleed and therefore, their relationship to the work injury.
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30. The article introduced by Dr. Bucksbaum was not written by him but used to explain the risk factors for DVT. The article, John Heit et al, Risk Factors for Deep Venous Thrombosis and Pulmonary Embolism, 160 Archives of Internal Medicine, 811-13 (March 20, 2007), stated that DVT mainly affects veins in the lower leg and thigh and quantified risk percentages. Dr. Backus stated the study referred to was limited to 90 days after surgery and there was no life long risk associated with the risk except the Claimant being in a wheelchair. The major risks listed are prolonged sitting, bed rest, recent surgery – particularly of the hip, and fractures. Dr. Bucksbaum added additional factors he felt were important based on his experience and expertise. He also stated that the point of the article was to quantify lifetime risk factors. He stated the 90 day limitation was for those participating in the study and did not limit the results of the study to 90 days. The Department finds him credible on these issues due to his expertise, training and experience caring for persons with paraplegia.
31. Dr. Bucksbaum measured range of motion and thigh measurements in his examination. He found Claimant’s left thigh larger than the right due to the hardware inserted and callous which formed over the injury site. Dr. Bucksbaum noted that the Claimant was at risk for hemorrhage due to his use of blood thinners after his DVT. At the time of his examination, three days prior to the Claimant’s bleed, Dr. Bucksbaum recommended having a Greenfield filter inserted as opposed to using blood thinners. The filter prevents blood clots from reaching vital organs.
32. Dr. Christopher Rickman, the Claimant’s treating physician stated that “without the fracture (from the work injury), he (the Claimant) would not have developed deep vein thrombosis. Without deep venous thrombosis, he (the Claimant) would not have had a spontaneous bleed which required hospitalization and transfer to a tertiary care center” in his letter dated March 20, 2007.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The Claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than possibility, suspicion, or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
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3. The trier of fact may not speculate as to an obscure injury which is beyond the ken of laymen. Laird v State Highway Dept., 110 Vt. 981 (1938). If the Claimant’s injury is obscure, expert testimony is needed as the sole means of laying a foundation for an award. Lapan v. Berno’s Inc., 137 Vt. 393 (1979).
4. Expert medical testimony is required to make the causal connection between employment, an injury and the benefits sought. Martin v. Woodridge, Op. No. 11-97WC (June 13, 1997).
5. When determining the weight to be given to expert opinions in a case, the Department has looked at several factors: (1) whether the expert has had a treating physician relationship with the claimant; (2) the professional’s qualifications, including education and experience; (3) the evaluation performed, including whether the expert had all the relevant medical records in making the assessment; and (4) the objective basis underlying the opinion. Yee v. International Business Machines, Op. No. 38-00WC (November 9, 2000).
6. In this case, factors 1and 2 are most relevant. Dr. Rickman is the treating physician and saw him regularly for at least two years. Therefore, the Department does give Dr. Rickman’s opinion some additional weight. Dr. Rickman was very clear that he believed the DVT and results from that condition were as a result of the Claimant’s compensable accident. Dr. Mark Bucksbaum agreed and gave detailed testimony as to why he held this belief. Dr. Bucksbaum’s testimony is also given some additional weight since he specializes and is certified in the care of paraplegics and is a biomedical engineer. He agreed with Dr. Rickman that Claimant’s DVT and hemorrhage were the direct result of his work injury. Only Dr. Backus disagreed and his familiarity with the patient was through records only. This, in itself, is not critical to the case because it was not necessary to physically review the patient months after the injury had occurred in this type of case but Dr. Backus did not seem as aware of all of the facts as the other doctors. Thus, the treating physician and Dr. Bucksbaum’s opinions are found to be the most credible and comprehensive.
7. Although Defendant raises some arguments about Dr. Bucksbaum’s testimony being unsupported by an article submitted by him on DVT, Defendant’s argument is not persuasive. First, Dr. Bucksbaum is an expert in this area of medicine and is found to be credible. Regardless of whether the hardware put in place had any negative effect, both Dr. Rickman and Dr. Bucksbaum credibly determined that Claimant’s subsequent problems after his compensable fall were the result of the fall. Dr. Backus disregarded the entire trauma that Claimant underwent simply because the problem with DVT occurred longer than 90 days after surgery and he was wheelchair-bound prior to the accident.
8. Dr. Bucksbaum found the Claimant was at total medical end on November 21, 2006 when the Greenfield filter was installed. The Department finds him the most credible on this issue.
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9. The Department finds, as did Dr. Rickman, the Claimant’s treating physician and Dr. Bucksbaum, that “without the fracture (from the work injury), he (the Claimant would not have developed deep vein thrombosis. Without deep venous thrombosis, he (the Claimant) would not have had a spontaneous bleed which required hospitalization and transfer to a tertiary care center” in Dr. Rickman’s letter dated March 20, 2007.
10. The Department finds, based on Dr. Bucksbaum’s testimony, that the Claimant has a permanent whole person disability of 5%.
ORDER:
Based on the foregoing findings and conclusions, the Commissioner orders the claim to be adjusted as follows:
1. The Claimant will receive payment for all medical costs related to his DVT and left thigh hemorrhage which are now determined both reasonable and necessary and as a result of his work injury in the course of his employment;
2. The Claimant will receive 5% whole person impairment permanency benefits;
3. Attorney’s fees for 118.45 hours will be awarded at the $90.00 per hour rate pursuant to the department’s fee schedule. Paralegal costs will be awarded for 19.10 hours at the $60.00 per hour rate pursuant to the department’s fee schedule. Costs will be awarded if properly adjusted. The Department’s fee schedule for Independent Medical Examiners is $300.00 per hour. The rates requested are beyond the scope of the rules which the Claimant’s attorney is already aware of. The request for costs should be adjusted and resubmitted to both opposing counsel and the Department within thirty days.
4. Interest is awarded pursuant to the relevant statutory rates.
DATED at Montpelier, Vermont this 6th day of February 2008.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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