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Jeanann Haskin v. Green Mountain Coffee Roasters (March 18, 2013)

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Jeanann Haskin v. Green Mountain Coffee Roasters (March 18, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeanann Haskin Opinion No. 10-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Green Mountain Coffee Roasters
For: Anne M. Noonan
Commissioner
State File No. DD-57471
OPINION AND ORDER
Hearing held in Montpelier on December 7, 2012
Record closed on January 14, 2013
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Jeffrey Dickson, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant’s work for Defendant cause and/or aggravate her bilateral carpal tunnel syndrome?
2. If yes, to what workers’ compensation benefits is Claimant entitled as a consequence of that injury?
EXHIBITS:
Joint Exhibit I: Medical records
CLAIM:
All workers’ compensation benefits to which Claimant proves her entitlement as a consequence of her alleged work-related injury
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
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2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant has worked for Defendant since 1998. She has held various managerial, customer service and sales positions in Defendant’s Waterbury, Vermont call center, all of which have required extensive computer work. For the past five years, she has been the call center’s support services team manager.
Claimant’s Prior History of Upper Extremity Complaints
4. Claimant has a history of relatively minor right upper extremity complaints, consistent with carpal tunnel syndrome, dating back at least to 2008. In August of that year, she treated with her primary care provider, Dr. Gelbstein, for numbness and tingling in her right wrist and forearm. Dr. Gelbstein prescribed medications and a wrist splint. Claimant also underwent a short course of deep tissue massage treatment with her chiropractor, Dr. Schaller, following which her symptoms resolved.
5. At work, Claimant sometimes used the physical therapy and ergonomic assessment resources that Defendant provided through its association with Injury and Health Management Solutions (IHMS). At one point, after the computer software program she used became more mouse- rather than keyboard-driven, Claimant began to experience pain in her right hand and wrist. Louise Lynch, an IHMS physical therapist, recommended ergonomic adjustments to her work station, which when implemented alleviated her symptoms.
6. Except for a brief period of time in early 2011 when she had to swap work stations with another manager, for roughly three years prior to August 2011 Claimant did not experience any significant right hand, wrist or arm pain. Her work station allowed her to either stand or sit, and with her mouse positioned at a lower level she manipulated it comfortably by reaching down with her right arm and hand rather than up.
Tropical Storm Irene
7. On August 28, 2011 Tropical Storm Irene hit Vermont with ferocious intensity, causing severe flooding in many communities, including Waterbury. In the aftermath of the storm, Defendant was forced to move large segments of its Waterbury operation elsewhere. Its 50-employee wholesale call center, which included Claimant’s six-person team, was relocated to a facility in Essex Junction.
8. The move to Essex Junction was very stressful. Many of Claimant’s co-employees lived in the Waterbury area, and on a personal level the storm had greatly disrupted their lives – they faced property damage, repair expenses, childcare issues and a significantly longer commute to and from work. At work, their “offices” were shared tables in a conference room. The accommodations were cramped and lacking in privacy, and the team had difficulty accessing the files and supplies they needed to do their jobs. As their supervisor, Claimant’s attempts to troubleshoot and problem-solve were exhausting, both physically and mentally.
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9. Claimant’s workspace at the Essex Junction facility consisted of a small table in the conference room. She had a straight, non-ergonomic keyboard and a small area for her mouse. Unlike her Waterbury workstation, which was configured so that she reached down with her right arm and hand for the mouse, at this workspace she had to reach up for it. When she typed, her wrists rubbed uncomfortably against the edge of the table.
10. Within a couple of weeks after moving to the Essex Junction facility, Claimant started to experience discomfort in her right wrist. After about a month, her right hand was sore and tingly, and her left hand was beginning to hurt as well. Claimant managed her symptoms as best she could, by walking around, shaking her hands out and wearing her right wrist splint at night. She did not seek medical treatment.
11. For its part, Defendant consulted with IHMS as to how to improve the ergonomics of Claimant’s and her team’s workstations, but there was little to be done given the cramped conference room space. After a time, Defendant did provide Claimant with a larger table, but even with that she still was unable to position her mouse comfortably. In fact, she found that she experienced less discomfort in her hands when she worked from home in the evenings. By positioning herself in an armchair, with her computer in her lap and her mouse resting on the arm of the chair, she was better able to support her right hand than she could while sitting at her table at work.
12. As compared with her symptoms in September 2011, by mid-November the numbness and tingling in Claimant’s right hand had worsened considerably, and was now almost constant. Her left hand hurt as well, though not as much. Claimant felt mentally stressed and physically exhausted.
Claimant’s December 2011 Hospitalizations
13. Claimant did not feel well in the days leading up to Friday, December 2, 2011. She felt weak and thought she might be coming down with a cold. Also during that week she had begun taking a course of oral steroids as treatment for a recurrent skin rash.
14. On Friday evening, December 2, 2011 Claimant went to bed early, at around 6:00 PM. She did not wear her wrist splint. At approximately 10:30 PM, she awoke. Both of her hands were numb and she felt pain in both arms. Claimant became very anxious, and feared that she was having a heart attack or stroke. Her husband took her to the hospital emergency room.
15. As described in the emergency room records, Claimant presented with hypotension, tachycardia and a primary complaint of severe (ten-out-of-ten) pain in her right arm, with stiffness, numbness and tingling extending down to her fingers. She also reported pain between her shoulder blades and generalized weakness throughout her body. Emergency room doctors were unable to arrive at a clear diagnosis. Claimant was admitted for further observation and testing.
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16. Claimant was hospitalized for three days (two in the intensive care unit), during which she underwent a battery of tests and was evaluated by specialists in internal medicine, neurology and cardiology. In addition to pain and paresthesias in her right arm, her symptoms also included swelling in her arms and over the tops of her feet bilaterally and tenderness in her shoulder blades, trapezius and biceps. The differential diagnoses included cervical spine degenerative disc disease, brachial plexopathy, septic shock, endocarditis, epidural abscess and/or systematic inflammatory response syndrome, a non-specific diagnosis used to signify an inflammatory condition affecting the entire body.
17. Claimant was discharged from the hospital on December 5, 2011 with her diagnosis still unclear. The discharge summaries reflect that she still had some swelling in her arms and “the same distribution of discomfort (though much improved)” with which she had presented on admission.
18. Claimant worked from home for most of the week following her discharge, during which her symptoms persisted. On Friday, December 9, 2011 she drove to Waterbury, attended a morning meeting and took notes on her laptop computer. As the meeting progressed, Claimant’s hands became increasingly painful. By the time the meeting concluded and she got into her car to drive home, the pain was intense. Later that day, her husband took her back to the hospital emergency room.
19. This time, Claimant was hospitalized for five days. Her presenting complaints included “unbearable” pain and paresthesias in her arms and hands (right worse than left), profound weakness in both arms and labile blood pressure. Again she underwent a variety of tests and consultations, this time including rheumatology and clinical immunology as well as neurology. During this hospitalization, in addition to aching and swelling in her wrists, Claimant reported severe dull, achy pains throughout her body, swelling in her arms, fingers and feet, weakness in her right shoulder and tenderness in her trapezius and cervical spine. The differential diagnosis remained broad, and included autoimmune or infectious diseases, gout or pseudo-gout, musculoskeletal disorders and/or nerve irritation.
20. Faced with uncertainty as to the etiology of Claimant’s complaints, her doctors treated her symptoms systemically, with a course of oral steroids to reduce pain and inflammation. When discharged on December 14, 2011 Claimant was still complaining of pain and numbness in her arms and hands, but was much improved from when she first presented. Her diagnosis was still unclear, and despite additional post-hospitalization blood work has never been positively determined.
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21. Claimant did not think to mention the upper extremity symptoms she had been experiencing at work since September 2011 during either of her December hospitalizations. Neither she nor her providers considered carpal tunnel syndrome as a possible diagnosis for the complaints with which she presented at that time.
Claimant’s Symptoms and Treatment since January 2012
22. After being discharged from her second hospitalization, on December 19, 2011 Claimant sought treatment with Dr. Mahoney, a chiropractor, for continued complaints of pain and weakness in her wrists, hands and arms bilaterally, and also neck and back pain. During this visit, for the first time she described her upper extremity symptoms in conjunction with her work activities. From this description, Dr. Mahoney concluded that Claimant was suffering from work-related carpal tunnel syndrome. As treatment, he performed various spinal manipulations, none of which successfully alleviated her symptoms. Claimant did not return for additional treatment.
23. On December 20, 2011 Claimant underwent electrodiagnostic testing. The results were consistent with mild to moderate bilateral carpal tunnel syndrome. There was no evidence of either cervical radiculopathy or ulnar nerve entrapment.
24. In early January 2012 Claimant began treating with Dr. Schaller, the same chiropractor who had treated her carpal tunnel symptoms in 2008. Over the course of the next several months, Dr. Schaller performed deep tissue massage, electrical stimulation and ultrasound. In addition, Claimant wore wrist splints bilaterally at night. Though her symptoms remained stable, she realized no sustained relief from Dr. Schaller’s modalities. For that reason, in May 2012 she discontinued treatment.
25. As to the causal relationship between Claimant’s carpal tunnel syndrome and her work, Dr. Schaller acknowledged that one “can never be 100% sure.” However, given the temporal relationship between her office relocation in September and the onset of her symptoms, in his opinion there was “little doubt” that her carpal tunnel injury was work-related.
26. Claimant has been back to work since January 9, 2012. Her symptoms, which consist primarily of pain, numbness and tingling in her hands bilaterally, have remained persistent but stable – somewhat worse than they were in September 2011, but much improved from when she was hospitalized in December. Since discontinuing her treatment with Dr. Schaller in May 2012, she has not sought additional medical care directed specifically at her carpal tunnel syndrome. At the formal hearing, she indicated her willingness to consult with a hand surgeon, but is concerned about the cost of surgery should it not be covered under workers’ compensation.
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27. Claimant first sought workers’ compensation coverage for her bilateral carpal tunnel syndrome in late December 2011, following her second hospitalization. Defendant has denied her claim on the grounds that her condition is not work-related.
Expert Medical Opinions
28. Two witnesses provided expert medical testimony at the formal hearing – Dr. Gelbstein on Claimant’s behalf and Dr. Backus in support of Defendant’s position.
(a) Dr. Gelbstein
29. Dr. Gelbstein is a board certified family practitioner, and has been Claimant’s primary care physician for many years. She is familiar with the symptoms of carpal tunnel syndrome, and has diagnosed many patients with the condition over the years. Typically, she refers patients out for focused treatment rather than providing it herself. Dr. Gelbstein has no specialized training or expertise in assessing the causes of carpal tunnel syndrome. She is only generally familiar with recent medical literature on the subject.
30. To a reasonable degree of medical certainty, in Dr. Gelbstein’s opinion Claimant’s current upper extremity complaints are attributable to carpal tunnel syndrome, a condition that was either caused or exacerbated by the change in her work environment after Tropical Storm Irene. By moving to a workstation that was not ergonomically adjusted specifically for her, Dr. Gelbstein theorized, Claimant likely found herself performing computer-related tasks with her hands in a flexed position. Maintaining that position over a period of time would have compromised the carpal canal and caused painful symptoms to develop.
31. Dr. Gelbstein acknowledged that she has never personally viewed either Claimant’s Essex Junction workstation or her Waterbury office. In formulating her opinion as to causation, she thus relied solely on Claimant’s descriptions of the two in comparison to one another. Claimant having verbally described the two workstations with sufficient clarity at formal hearing, I find it likely that she was able to do so for Dr. Gelbstein as well.
32. Dr. Gelbstein also acknowledged that the diagnosis of work-related carpal tunnel syndrome does not explain the severe pain, generalized weakness and systemic complaints that prompted Claimant’s two December 2011 hospitalizations. The possibility that those symptoms might have been attributable to some autoimmune disorder or inflammatory condition has been neither ruled in nor ruled out at this point. In any event, Dr. Gelbstein admitted that had Claimant been suffering solely from carpal tunnel syndrome, she likely would not have required hospitalization.
33. Last, Dr. Gelbstein acknowledged that she had not been aware that Dr. Schaller offered carpal tunnel syndrome treatment as part of his chiropractic practice until Claimant began seeing him for that purpose. Other than endorsing him generally as a competent provider, she did not state an opinion as to whether the treatment he provided was medically necessary.
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(b) Dr. Backus
34. At Defendant’s request, in March 2012 Claimant underwent an independent medical examination with Dr. Backus, a board certified specialist in occupational medicine. Dr. Backus took Claimant’s history, conducted a physical exam and also reviewed the medical records available to him at the time. These included only some of the records relating to her December 3, 2011 hospitalization, and none at all relating to her December 9th hospitalization.
35. Consistent with her treating providers’ opinions, Dr. Backus diagnosed Claimant with bilateral carpal tunnel syndrome. According to his analysis, Claimant likely had an underlying propensity for the condition, as evidenced by the relatively minor right hand and arm complaints for which she had treated in 2008. With stretching, splinting and ergonomic adjustments at work, her symptoms were well controlled. However, in the aftermath of Tropical Storm Irene the deficient ergonomics of her Essex Junction workstation1 probably led first to some awkward postures and then to some musculoskeletal pain in her arms and thorax. With continued exposure and repetitive use, the tendons in the area likely became inflamed, which caused the median nerve to become irritated and swollen within the small confines of the carpal canal. Ultimately, this led to the constant pain, numbness and tingling that she was experiencing by November 2011.
36. Dr. Backus thus determined that by causing her underlying susceptibility to carpal tunnel syndrome to flare up into a clinical presentation, Claimant’s work at the Essex Junction facility thereby exacerbated the condition. This conclusion flies somewhat in the face of what has become well established in the medical literature. According to the research, non-occupational risk factors such as age, gender and body mass correlate strongly with the development of carpal tunnel syndrome. Job-related factors such as force, repetition, posture and/or vibration may also present an increased risk, but only when they appear in combination with one another. With this research in mind, Dr. Backus acknowledged that Claimant’s gender and age were strong risk factors. Nevertheless, at least initially he concluded that her keyboarding activities, combined as they were with the awkward postures necessitated by her workstation, were likely causative as well.
37. Three weeks after issuing his first report, in early April 2012 Dr. Backus issued a supplemental report. By this time he had reviewed the complete record of Claimant’s December hospitalizations. He thus learned how serious her condition had been at that time. This new information caused him to reconsider his opinion as to the relationship, if any, between Claimant’s work and her carpal tunnel syndrome.
1 As Dr. Gelbstein had, in formulating his causation opinion Dr. Backus relied solely on Claimant’s verbal description of her workstation; he did not view it personally.
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38. Dr. Backus found particularly significant that during her hospitalizations Claimant had been noted to have swelling, weakness and sensory changes in all four of her extremities, not just in her hands or arms. As her doctors had, Dr. Backus theorized that these findings were indicative of a systemic inflammatory response or autoimmune disorder. To a reasonable degree of medical certainty, he now believes that this condition was what likely caused Claimant’s carpal tunnel syndrome to flare up in December 2011, not her work activities.
39. Dr. Backus acknowledged that the systemic inflammation with which Claimant presented in December 2011 has never been definitively diagnosed. It is not uncommon for systemic or autoimmune disorders to present in unusual manners that only become clarified with time. Thus, the fact that no provider has yet identified a particular disorder from which she suffers does not necessarily mean that she does not have one.
40. While expressing certainty that the symptoms that immediately preceded Claimant’s December hospitalizations were causally related to a systemic inflammatory response or autoimmune disorder, Dr. Backus was far less certain as to the cause of the wrist and hand symptoms that she had begun to experience in September. He could not state to the required degree of medical certainty that Claimant likely was already suffering from any such disorder at that time, and agreed that her symptoms might just as easily have been attributable to a developing tendinitis or mild carpal tunnel syndrome.
41. As for treatment of Claimant’s current carpal tunnel syndrome symptoms, Dr. Backus stated that conservative modalities such as stretching, splinting, deep tissue massage, ultrasound and iontophoresis would all be appropriate, followed by injections, electrodiagnostic testing and surgery if these proved ineffective. There are no evidence-based treatment guidelines to justify chiropractic manipulation of the wrist as an effective approach. On the assumption that this was the type of treatment Dr. Schaller had provided between January and May 2012, Dr. Backus dismissed it as not medically reasonable. In fact, however, Dr. Schaller’s treatment included at least some of the modalities Dr. Backus cited as appropriate, including both deep tissue massage and ultrasound. For that reason, I find his opinion in this regard suspect.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. In this claim, the disputed issue is simply whether Claimant’s carpal tunnel syndrome was either caused or aggravated by her work activities for Defendant since September 2011. The parties presented conflicting expert medical opinions on this question. In such cases, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. Applying these factors to the expert opinions offered here is challenging. On the one hand, Dr. Gelbstein is Claimant’s treating physician. She is thus more familiar with Claimant’s medical history, both as it concerns her carpal tunnel symptoms and as it relates to the possibility that she might be suffering from some systemic inflammatory or autoimmune disorder. On the other hand, Dr. Backus testified to greater familiarity with the recent medical literature and evidence-based research as to occupational versus non-occupational risk factors for carpal tunnel syndrome.
4. Having closely considered each expert’s opinion, I conclude that Dr. Gelbstein’s is the most credible. Her analysis of how the deficiencies in Claimant’s Essex Junction workstation likely required her to maintain her wrists in a flexed position over a period of time, thus compromising the carpal canal, is actually quite similar to the analysis Dr. Backus initially advanced. That the combination of repetitive activities and awkward postures is what caused Claimant’s preexisting propensity for carpal tunnel syndrome to flare up into a clinical presentation is consistent with both the medical literature and the chronology of her symptoms. I conclude that it is persuasive.
5. In contrast, Dr. Backus’ opinion failed to account adequately for the manner in which Claimant’s symptoms developed. Had there been evidence from which he could determine, to the required degree of medical certainty, that the carpal tunnel symptoms Claimant was exhibiting from September through November 2011 were due to a burgeoning systemic inflammatory response or autoimmune disorder, I might have found his opinion persuasive. In that event, a clear relationship would have been established between Claimant’s initial, relatively minor complaints and the far more severe ones that prompted her December hospitalizations. It would have made sense to attribute all of those complaints to the same disease process.
6. As it is, however, Dr. Backus’ opinion falls short. The fact is the carpal tunnel symptoms for which Claimant is now seeking treatment are essentially the same as those she began experiencing in September 2011. It is reasonable to assume the same root cause, therefore. The evidence does not establish a systemic disorder or autoimmune disease that might have triggered carpal tunnel syndrome prior to December 2011, but it does establish occupational risk factors.
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7. I conclude that Claimant has sustained her burden of proving that her bilateral carpal tunnel syndrome is causally related to her work activities and is therefore compensable.
8. As for the compensability of the medical treatment Claimant has received to date, in accordance with Dr. Backus’ opinion I conclude that the electrodiagnostic testing Claimant underwent on December 20, 2011 was medically appropriate and is therefore compensable. I accept as credible Dr. Backus’ opinion that chiropractic manipulation is not a reasonable technique for treating carpal tunnel syndrome symptoms, and therefore I conclude that Dr. Mahoney’s January 2012 treatment is not compensable. To the extent that the treatments Dr. Schaller rendered between January and May 2012 involved modalities that Dr. Backus identified as appropriate, such as deep tissue massage, ultrasound and/or iontophoresis, I conclude that the costs associated with those specific therapies are compensable.
9. Claimant does not appear to be claiming either medical or indemnity benefits relative to her December 2011 hospitalizations. As both Dr. Gelbstein and Dr. Backus agreed that those hospitalizations were not in any way causally connected to her work activities, I conclude that she is not entitled to workers’ compensation benefits referable to them.
10. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering Claimant’s December 20, 2011 electrodiagnostic testing, as well as the cost of deep tissue massage, ultrasound and/or iontophoresis modalities provided by Dr. Schaller as treatment for her bilateral carpal tunnel syndrome, in accordance with 21 V.S.A. §640(a);
2. Such other workers’ compensation benefits to which Claimant proves her entitlement as causally related to her compensable carpal tunnel syndrome, including future indemnity and/or medical benefits; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 18th day of March 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.

Christa Hoisington v. Ingersoll Electric (December 28, 2009)

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

Christa Hoisington v. Ingersoll Electric (December 28, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christa Hoisington Opinion No. 52-09WC
By: Phyllis Phillips, Esq.
v. Hearing Officer
Ingersoll Electric For: Patricia Moulton Powden
Commissioner
State File No. M-22917
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
ATTORNEYS:
Heidi Groff, Esq., for Claimant
John Valente, Esq. and Kelly Smith, Esq., for Defendant
ISSUE:
Defendant moves for summary judgment on the grounds that Claimant’s request for workers’ compensation benefits causally related to the cervical injury she allegedly suffered in the context of her May 13, 1999 work injury is time barred under 21 V.S.A. §660.
FINDINGS OF FACT:
Considering the evidence in the light most favorable to the non-moving party, Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990), and also taking judicial notice of all relevant forms and correspondence in the Department’s claim file, I find the following facts:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. In 1999 Claimant worked as an electrician for Defendant.
3. On May 13, 1999 Claimant fell while climbing over a large pipe. She suffered a right shoulder injury and allegedly injured her neck as well.
4. At the time of her work injury Claimant had a prior medical history of cervical complaints, including radicular symptoms in her right arm and evidence of degenerative disc disease in her cervical spine. Claimant underwent cervical disc surgery in 1988. Following that, she successfully returned to work without restrictions. According to Dr. Turek, there is no record that she treated medically for any cervical complaints between 1989 and 1999.
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5. Defendant accepted Claimant’s right shoulder injury as compensable and began paying workers’ compensation benefits accordingly.
6. Within days of her work injury Claimant was complaining of both right shoulder pain and radiating cervical symptoms as well.
7. Claimant underwent shoulder surgery in September 1999. Her shoulder range of motion subsequently improved, but her right arm numbness continued.
8. In December 1999 the Department approved an Agreement for Temporary Total Disability Compensation (Form 21), which reflected that Claimant had injured her right shoulder as a result of the May 1999 accident at work. The Agreement does not mention any cervical injury causally related to that event.
9. On September 11, 2000 the Department approved a Notice of Intention to Discontinue Payments (Form 27) on the grounds that Claimant had reached an end medical result for her right shoulder injury.
10. On October 31, 2000 the Department approved an Agreement for Permanent Partial Disability Compensation (Form 22) in which the parties agreed that in accordance with Dr. Davignon’s determination Claimant had suffered a 16% whole person impairment referable to her right shoulder injury.
11. Claimant did not return to work, and continued to treat for shoulder instability, cervical pain and radicular symptoms. She underwent two additional shoulder surgeries, the first in January 2001 and the second in February 2002, but still complained of severe shoulder and neck pain. Two of her treating physicians, Drs. Zweber (practicing physical medicine/rehabilitation) and Shafritz (an orthopedic surgeon) commented on the complicated nature of her problem. Her symptoms seemed to implicate both (a) a neurogenic component suggestive of cervical disc disease; and (b) muscular instability in her shoulder.
12. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Backus on August 19, 2002. Her complaints at that time included right shoulder, neck and arm pain, and headaches. According to Dr. Backus, Claimant acknowledged her prior history of cervical pain, but reported that until the May 1999 work injury her neck had been doing well, with no symptoms similar to those she now was experiencing.
13. Dr. Backus’ exam focused on Claimant’s right shoulder and upper extremity. He determined that she had reached an end medical result and rated her with a 17% whole person permanent impairment. With that opinion as support, on October 4, 2002 the Department once again approved Defendant’s termination of temporary disability benefits.
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14. On December 19, 2002 Defendant filed a Denial of Workers’ Compensation Benefits (Form 2) with the Department, in which it denied responsibility for treatment of Claimant’s cervical disc disease as having been neither caused nor aggravated by her work injury. On January 10, 2003 the Department notified Claimant’s attorney1 of the denial and advised him to file a written request for hearing if he wished to appeal it.
15. Responding to a January 25, 2003 letter from Claimant’s attorney, her treating orthopedic surgeon, Dr. Monsey, stated on January 30, 2003 that Claimant’s cervical disc disease “has been a slowly progressive condition which was asymptomatic until her fall at work in May of 1999.” Dr. Monsey concluded that Claimant’s work injury “exacerbated a pre-existing condition.”
16. Dr. Monsey performed cervical fusion surgery on February 11, 2003. Unfortunately, complications arose and Claimant had to undergo a second cervical surgery in May 2003. Defendant paid for both surgeries.
17. On May 13, 2003 Claimant’s attorney corresponded with the Department as follows:
In reviewing this file recently, I noted your letter of 10 January 03. The purpose of this letter is simply to advise you that upon closer scrutiny of the medical evidence, the carrier fully accepted the cervical injury and authorized the cervical fusion surgery, which took place on 11 February 03. Implicit in this action, obviously, is the acknowledgment that no end result has as yet been reached.
There are no disputes in this matter, but I felt the Department should be updated as to where the case is at. A second cervical surgery took place last week.
The letter, which was copied to Defendant’s adjuster, also included a brief summary of dependency benefits that still were due for the period from October 10, 2002 (when Defendant previously had terminated temporary disability benefits, see Finding No. 13 above, and began advancing permanency instead) until November 17, 2002 (when Claimant’s dependent child turned twenty-one).
18. At Defendant’s request, in February 2004 Claimant underwent an independent medical evaluation with Dr. Peterson. Dr. Peterson stated that it was “clear from the records that [Claimant] suffered injuries to her right shoulder and her neck” as a result of the May 1999 work injury. Dr. Peterson determined that she had reached an end medical result for both injuries. He rated her with a 14% whole person impairment referable to her shoulder injury and a 32% whole person impairment referable to her neck injury, for a combined total whole person impairment of 42%.
1 In November 2008 Claimant retained new counsel. For the purposes of these findings, references to her attorney are to her prior counsel, not her current one.
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19. At Defendant’s request, Dr. Brigham performed a review of both Dr. Backus’ and Dr. Peterson’s impairment ratings in July 2004. For the purposes of that review Dr. Brigham assumed that Claimant’s cervical condition was in fact causally related to her May 1999 work injury. Dr. Brigham concluded that Dr. Peterson’s impairment rating was essentially correct, but that he should have apportioned away that aspect of the cervical impairment related to Claimant’s 1988 cervical disc surgery. With that in mind, Dr. Brigham reduced the total whole person impairment attributable to Claimant’s May 1999 work injury to 24%.
20. In October 2004 Defendant asked Dr. Brigham to conduct another review of Claimant’s medical records, this time with an eye towards determining whether in his opinion her cervical condition had been caused or aggravated by the May 1999 work injury. Dr. Brigham concluded that the May 1999 event neither caused any new cervical spine injury nor aggravated Claimant’s “significant pre-existing cervical degenerative disease.” Upon reconsidering his prior review of Claimant’s permanent impairment, therefore, Dr. Brigham eliminated entirely the rating referable to her cervical condition. He concluded that Claimant suffered only a 12% whole person impairment, all of it referable to her right shoulder injury.
21. At the request of Claimant’s attorney, Dr. Turek evaluated Claimant on October 19, 2004. Dr. Turek noted that absent any documentation that Claimant had sought medical treatment for cervical complaints between 1989 and 1999, “one can only conclude that [her] previous injury had stabilized after an uncomplicated discectomy.” He further observed that Claimant had been working full time without restrictions at the time of her May 1999 work injury. Following that injury her status “rapidly and severely declined,” resulting in multiple cervical surgeries. From this Dr. Turek concluded that Claimant’s cervical condition was in fact causally related to her May 1999 work injury. Considering both her shoulder injury and her cervical injury, Dr. Turek rated Claimant’s total whole person impairment at 36%.
22. With Dr. Brigham’s opinion as support, in February 2005 Defendant filed a Notice of Intention to Discontinue Benefits (Form 27) as to Claimant’s right shoulder injury on end medical result grounds. Defendant also sought to terminate its responsibility for medical treatment related to Claimant’s cervical condition, stating, “[question] cervical spine being causally related to this case.” In this aspect as well Defendant relied on Dr. Brigham’s opinion as support for its position.
23. Claimant’s attorney responded to the Form 27 by letter to the Department dated February 7, 2005. In it he stated, “[T]here is no dispute that EMR has now been attained and that TTD may be ceased in accordance with that.” Along with the letter Claimant’s attorney also filed with the Department both Dr. Turek’s and Dr. Peterson’s impairment rating reports. As noted above, see Finding Nos. 18 and 21, both of these reports included Claimant’s cervical condition as a ratable component of her work injury.
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24. On February 9, 2005 the Department approved Defendant’s discontinuance. At the same time, it notified Claimant’s attorney of Claimant’s appeal rights, stating, “[I]f you disagree with the discontinuance of treatment related to the cervical spine, you may APPEAL by submitting a WRITTEN request for hearing to this office . . .” (emphasis in original).
25. Claimant has not worked since her May 1999 injury. She applied for social security disability benefits on July 31, 2002 and was found entitled. Notwithstanding that determination, Claimant endeavored to identify suitable alternative employment for which she might be retrained. A functional capacities evaluation completed in February 2004 determined that she had a part-time light work capacity, insufficient for her to return to her previous employment as an electrician. Claimant worked with a vocational rehabilitation counselor from 2002 until 2006, albeit with sustained interruptions due to her various surgeries and her ongoing symptoms. There is no evidence that Claimant’s vocational rehabilitation file was ever formally closed, but no progress reports have been filed with the Department since July 18, 2006.
26. On August 22, 2008 Claimant’s attorney filed a Notice and Application for Hearing (Form 6) with the Department, in which he stated that Claimant “has suffered extensive permanent impairment and has been rendered permanently disabled by her injury and its consequences.” After winding its way unsuccessfully through the Department’s informal dispute resolution process, the claim now has been referred to the formal hearing docket.
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 a judgment in its favor as a matter of law. Samplid 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. Realty of Vermont, 137 Vt. 425 (1979).
2. In the current litigation Claimant seeks permanent total disability benefits causally related to her May 1999 work injury, which she asserts encompassed not only her right shoulder but her cervical spine as well. Alternatively, Claimant seeks additional permanent partial disability benefits for the rated impairment to her cervical spine. Defendant asserts in response that as a matter of law both claims are time-barred under 21 V.S.A. §660(a). On those grounds, it seeks summary judgment.
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3. At the time of Claimant’s original work injury in May 1999, §660(a) read, in pertinent part, as follows:
Proceedings to initiate a claim for benefits pursuant to this chapter may not be commenced after six years from the date of injury.
In May 2004, however, the statute was amended to read instead:
Proceedings to initiate a claim for a work-related injury pursuant to this chapter may not be commenced after three years from the date of injury. This section shall not be construed to limit subsequent claims for benefits stemming from a timely filed work-related injury claim (emphasis supplied).
4. In order to address Defendant’s argument properly, it is necessary first to determine which version of the statute applies. Generally, the statute of limitations that applies to a particular cause of action is the one in effect when the cause of action accrued. Carter v. Fred’s Plumbing & Heating, Inc., 174 Vt. 572 (2002), citing Cavanaugh v. Abbott Labs., 145 Vt. 516, 521 (1985). To apply this rule to the current claim, therefore, I must determine when Claimant’s cause of action for permanent total disability compensation, or alternatively, for additional permanent partial disability compensation, first accrued.
5. An injured worker’s right to compensation itself is acquired at the time he or she suffers a work-related injury. 21 V.S.A. §618; Sanz v. Douglas Collins Construction, 2006 VT 102. The time at which certain benefits may become due, however, whether temporary or permanent, partial or total, depends on such factors as the severity of the injury, the claimant’s medical progress and his or her ability to work. Id. Given these variables, in many workers’ compensation claims a claimant’s entitlement to specific benefit payments does not ripen until some time after his or her right to compensation arises.
6. This concept – that although a claimant’s right to compensation arises at the time of injury, his or her entitlement to benefits often may not accrue until much later – is particularly applicable to permanency benefits. Typically (though not always) a claimant knows that he or she has suffered a work-related injury at the time it occurs. Treatment progresses, and at its conclusion hopefully the claimant has made a full recovery, with no residual impairment, and therefore no permanency, at all.
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7. Unfortunately, this is not always the case. It may be months, even years, before it becomes apparent that despite all reasonable treatment the injury has in fact left a permanent mark. With that in mind, a cause of action for permanent partial disability benefits cannot accrue until a claimant reaches end medical result. Longe v. Boise Cascade Corp., 171 Vt. 214 (2000). Until that point is reached, there is no way to know whether any impairment from which he or she still suffers might yet respond to treatment or whether it now has become permanent. Kraby v. Vermont Telephone Co., 2004 VT 120; see AMA Guides to Evaluation of Permanent Impairment (5th ed.) at §2.4 (advising against performing permanent impairment rating until patient reaches point of maximum medical improvement). And if the impairment is not yet permanent, then logically the claimant cannot yet claim entitlement to permanent partial disability benefits.
8. Similarly, a cause of action for permanent total disability benefits cannot accrue until it becomes reasonably apparent, both medically and vocationally, that as a result of his or her work injury a claimant most likely will never be able to return to regular gainful employment. K.T. v. Specialty Paperboard, Opinion No. 33-05WC (June 24, 2005). Until that point occurs, it would be premature to make a claim for permanent total disability benefits.
9. The implications for evaluating a statute of limitations defense are clear, therefore. A claim period can only begin to run when there is in fact something to claim. Hartman v. Ouellette Plumbing & Heating Corp., 146 Vt. 443, 446 (1985). Thus, the statute of limitations on a claim for permanent partial disability benefits begins to run when the claimant reaches end medical result. Kraby, supra; Longe, supra. On a claim for permanent total disability benefits, the statute begins to run when it becomes reasonably discoverable and apparent that the claimant is permanently precluded from working. K.T. v. Specialty Paperboard, supra.
10. In the current claim, the parties do not dispute that Claimant reached an end medical result at least as of February 9, 2005 when Defendant’s discontinuance on those grounds became effective. Her cause of action for permanent partial disability benefits related to her cervical condition arose, and the statute of limitations began to run, as of that date.
11. As for Claimant’s permanent total disability claim, Defendant argues that her cause of action accrued in July 2002, when she applied for and was granted social security disability benefits. The standard for evaluating entitlement to these benefits, however, differs from the one that applies in the workers’ compensation context. It is worth noting, furthermore, that Claimant continued to engage in vocational rehabilitation efforts even after she became eligible for social security disability benefits. According to her vocational rehabilitation counselor’s last report, these efforts appear to have continued at least until July 18, 2006. I find that to be the earliest date upon which her cause of action for permanent total disability benefits accrued and the statute of limitations began to run.
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12. As noted above, the statute of limitations that applies to a particular cause of action is the one in effect when the cause of action accrued. Carter, supra. Having found that Claimant’s claims for both permanent partial and permanent total disability benefits arose after May 2004, when the most recent amendment to §660(a) took effect, I conclude that the amended statute applies, not the prior one.
13. The analysis does not end there, however. True, the amendments to §660(a) reduced the statute of limitations applicable to proceedings to initiate a claim for a work-related injury from six years to three years. But in language critical to this claim, by its specific terms the amended statute also mandates that the three-year limitations period “not be construed to limit a subsequent claim for benefits stemming from a timely filed work-related injury claim.”2
14. Interestingly, while repealing the six-year limitations period applicable to benefit claims in favor of a three-year limitations period applicable to work-related injury claims, the amended statute no longer specifies what the time limit is for initiating a subsequent claim for benefits once the initial work-related injury claim itself has been timely filed. When faced with this dilemma – the absence of any limitations period specifically applicable to workers’ compensation claims – under an early incarnation of Vermont’s statute, the Supreme Court determined that a claim for workers’ compensation benefits was essentially an action of contract, and therefore applied the six-year contract statute of limitations. Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 98 (1937). I am compelled to take the same path here.
15. I conclude, therefore, that the applicable statute of limitations for the benefit claims at issue in this case is six years from the date each of them accrued. As noted above, Claimant’s claim for permanent partial disability benefits accrued on February 9, 2005; her claim for permanent total disability benefits accrued on July 18, 2006. Claimant’s attorney filed a Notice and Application for Hearing as to both claims on August 22, 2008. This was well within the applicable six-year limitations period. As a matter of law, neither claim is time-barred.
16. As a final matter, Claimant requests a ruling that Defendant be barred from contesting the compensability of her cervical condition on the grounds that it waived its right to do so by virtue of its actions over the past several years. This argument raises factual questions that cannot be resolved on the basis of the record before me now. It is inappropriate to address them here.
2 Notably, the amended statute also repealed the language referencing “proceedings to initiate a claim for benefits pursuant to this chapter,” and replaced it instead with language referencing “proceedings to initiate a claim for a work-related injury pursuant to this chapter” (emphasis supplied). That change as well incorporates the distinction between a claimant’s right to compensation following a work-related injury and his or her subsequent entitlement to specific benefits.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of December 2009.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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