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Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)

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Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Leo Moulton Opinion No. 30-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
J.P. Carrera, Inc.
For: Anne M. Noonan
Commissioner
State File No. X-63476
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 25 and 26, 2011
Record closed on June 16, 2011
APPEARANCES:
James Dumont, Esq., for Claimant
James O’Sullivan, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant permanently and totally disabled as a consequence of his work activities on or about September 17, 2004?
2. If not, is Claimant entitled to vocational rehabilitation services as a consequence of his September 2004 work injury?
3. Is Defendant obligated to pay various medical bills incurred for treatment of Claimant’s neck condition as causally related to his September 2004 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: CD of x-rays, 4/14/11
Joint Exhibit III: Supplemental medical records
Claimant’s Exhibit 1: Various photographs
Claimant’s Exhibit 2: Various correspondence
Claimant’s Exhibit 3: Curriculum vitae, Gregory LeRoy
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CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
Medical benefits pursuant to 21 V.S.A. §640
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s Work as a Bridge Tensioner
3. Claimant began working for Defendant in June 2001. Defendant manufactures and installs precast concrete products, including bridge beams and planks.
4. Although initially Claimant was hired to do yard and janitorial work, within a few months’ time he began doing bridge tensioning work as well. Bridge tensioning is the process by which the cables that hold a bridge beam in place are installed and tightened. In Claimant’s case, the job entailed being suspended upside down from a harness attached to the bridge deck, pulling the cable through and using a heavy jack to adjust it to the appropriate tension. Each step in the process took two to five minutes of upside down harness work. Depending on the size of the bridge and the number of cables to be installed, Claimant might have to be suspended anywhere from 15 to 70 times in a day.
5. Between 2001 and 2004 Claimant estimated that he worked on 62 bridges. The work was somewhat sporadic; some weeks he might work on three bridges, some weeks none at all. When not assigned to tensioning work, Claimant continued with his regular janitorial duties.
6. Claimant often experienced neck pain while performing his bridge tensioning duties. On one occasion he worked on a job where instead of being suspended upside down in harnesses, the bridge tensioners knelt upright on temporary platforms. Claimant found this position to be much less stressful on his neck. Later he suggested that Defendant consider utilizing similar equipment, but it declined to do so.
Claimant’s Work Injury, Medical Course and Current Condition
7. In mid-September 2004 Claimant was driving home from a bridge tensioning job in Maine when he began to experience neck pain and vertigo. As to the latter condition, Claimant’s medical records document prior episodes of dizziness, with no cause ever ascribed. This time as well, neither specialist evaluations nor diagnostic testing revealed a clear etiology. Eventually the condition resolved on its own.
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8. Claimant had experienced occasional bouts of neck stiffness in the past as well. These episodes had always resolved with little treatment. This time, however, his symptoms, consisting of left-sided neck pain, stiffness, swelling and spasms, continued. Diagnostic testing revealed some degenerative changes in his cervical spine, but no evidence of disc herniation or other neurological compromise. Ultimately, Claimant was diagnosed with a myofascial pain syndrome focused in his left lateral neck.
9. Because Claimant’s neck pain was not radicular in nature, surgery was not an appropriate treatment option. Instead, he treated conservatively, first with physical therapy and later with botulism toxin (botox) injections. None of these treatments was effective at controlling his symptoms.
10. Having derived no benefit from botox injections, in July 2007 Claimant’s treating neurologist, Dr. Orecchio, determined that he had reached an end medical result. On those grounds, the Department approved Defendant’s discontinuance of temporary total disability benefits effective November 20, 2007. In April 2008 Dr. Bucksbaum, a physiastrist, rated Claimant with a 7% whole person permanent impairment referable to his cervical spine.
11. Currently Claimant suffers from extremely limited range of motion in his neck. He holds his left shoulder in an elevated position, as otherwise he experiences painful muscle spasms. Virtually any movement of his neck or left arm exacerbates his pain, as does any sustained posture, including sitting. When his neck is irritated it swells to the point where even swallowing hurts.
12. Claimant has not worked as a bridge tensioner since mid-September 2004. After a period of total disability, in late December 2005 he resumed his janitorial duties for Defendant. While performing these duties, in March 2006 he experienced an acute exacerbation of neck pain, as a result of which he was taken out of work again. Claimant has not returned to work since.
13. In a typical week now, Claimant might take one or two short walks in the meadowlands behind his home, often with a camera, which he uses to photograph wildlife. He is at least somewhat computer literate, and will spend up to 30 minutes at a time on his computer, though not daily. He is restricted physically in this activity by his inability to sit for extended periods of time as well as by his limited ability to use his left hand. He no longer drives, as he cannot turn his head enough to see cars approaching at intersections. Most nights he sleeps in a recliner rather than in bed. Other than extra-strength Tylenol, he does not use any pain control medications.
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Medical Opinions as to Causation
14. Various doctors have given opinions as to the causal relationship, if any, between the bridge tensioning work that Claimant performed for Defendant in the months leading up to September 2004 and his current symptoms. Based on Claimant’s description of his work activities, Dr. Klitzner, his primary care provider, Dr. Orecchio, his neurologist, and Dr. Bucksbaum, a physiatrist, found that such a relationship was likely. All three pointed specifically to the pressure that being suspended upside down from a harness would have put on the left side of Claimant’s neck.
15. With training in both physiatry and biomechanical engineering, Dr. Bucksbaum’s causation opinion is particularly insightful. Biomechanical engineering is the study of how the human body reacts to mechanical forces placed upon it. According to Dr. Bucksbaum, the harness that Claimant used for his bridge tensioning work was not designed with upside down suspension in mind. When used for that purpose, the harness’ straps put significant force on the muscles, ligaments, tendons and supporting soft tissues in his neck. In an upside down position, the weight of Claimant’s head, combined at times with that of a heavy jack, would have supplied a significant amount of pulling force, or traction, to those tissues. First they stretched, and then they tore. As the tissues failed, the cervical spine became distracted, resulting in muscle tightness and nerve irritation. Superimposed on Claimant’s pre-existing degenerative disc disease, over time the damage became permanent and the condition chronic.
16. Defendant’s medical expert, Dr. Glassman, disagreed with this analysis. In his opinion, Claimant’s work activities in September 2004 likely caused a cervical and trapezius strain, but that injury has long since resolved. His current cervical symptoms are the product solely of his pre-existing degenerative disc disease.
17. Dr. Glassman did not address the possibility, as Dr. Bucksbaum did, that the traction forces applied to Claimant’s neck in the course of his bridge tensioning work might have aggravated his underlying disc disease. Nor did he explain the basis for his opinion that Claimant’s work-related cervical strain likely resolved within a matter of weeks, and that almost immediately thereafter his degenerative disease became the primary symptom generator. These gaps in Dr. Glassman’s causation analysis are troubling.
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Claimant’s Current Work Capacity
18. Claimant has undergone two functional capacity evaluations, the first in October 2007 and the second in April 2008. For the most part, the results of both evaluations were consistent. The 2008 evaluation documents a full time capacity for light work, with some abilities extending into the medium range as well, but with the following functional restrictions:
• Maintain neutral neck positions;
• Avoid activities that require sustained cervical and upper extremity postures;
• Limit forward reaching tasks to those that allow the elbows to be maintained within 4 to 6 inches from the body, so as to reduce stress on the cervical spine;
• Limit stooping or overhead activities, and avoid any functional work tasks requiring sustained stooping (cervical stress in a forward flexed position) or cervical extension;
• Avoid driving as a primary job function, due to safety concerns associated with limited cervical mobility; and
• Avoid work activities at elevated surfaces requiring high levels of balance.
19. Both Dr. Orecchio and Dr. Bucksbaum endorsed the 2008 FCE as an accurate reflection of Claimant’s work capacity. Defendant’s expert, Dr. Glassman, generally endorsed the results as well, though he attributed Claimant’s functional restrictions entirely to a combination of his subjective pain complaints and his underlying degenerative disc disease, and not at all to his work injury.
20. Dr. Klitzner questioned the FCE results, particularly as to Claimant’s capacity for sustained sitting, standing or upper extremity use. For example, in the context of the 2008 FCE Claimant demonstrated the ability to sit for more than an hour without a stretch break, while Dr. Klitzner estimated his sitting tolerance as limited to only 15 or 20 minutes before his symptoms became exacerbated.
21. Upon close examination I find that Dr. Klitzner did not repudiate the FCE results entirely. To the contrary, at least with respect to Claimant’s sitting tolerance her opinion comports with them. The FCE acknowledged that the primary limiting factor in that regard was associated with sustained postures, such as prolonged neck positioning with a combination of reaching and functional hand use. Dr. Klitzner’s estimate was presented in the context of the possibility that Claimant might be retrained to work at a desk job in computer-related employment, an activity that presumably would involve some of those same postures. Beyond that, to the extent that Dr. Klitzner’s opinion as to Claimant’s work capacity is still somewhat inconsistent with the 2008 FCE, I find that the FCE more accurately reflects Claimant’s current functional capacity.
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Claimant’s Work History and Vocational Rehabilitation Efforts
22. Claimant has a high school education, but no advanced coursework or training beyond that. Growing up, he worked on his family’s dairy farm. After his father died he purchased the farm from his mother and ran it for some years. Claimant was responsible not just for the physical labor, but also for the associated paperwork – tracking production and breeding schedules, preparing budgets and paying bills, for example.
23. Declining milk prices forced Claimant to sell his farm in 1987. For a time thereafter he worked on a neighboring dairy farm. Later he suffered a knee injury, following which he decided to seek lighter work. From 1995 until 2000 Claimant worked as a groundskeeper at the Swift House Inn in Middlebury. His duties there included both interior work, such as painting and patching walls, and exterior work, such as snow shoveling and plowing in the winter and lawn mowing and garden maintenance in the summer. Claimant left the Inn after a falling out with his supervisor. In 2001 he began working for Defendant.
24. Claimant was found entitled to vocational rehabilitation services in June 2009. His functional limitations precluded him from returning to the type of medium and heavy work he had done before. Hoping to capitalize on Claimant’s prior experience, his vocational rehabilitation counselor, Jay Spiegel, suggested CAD technician, project estimator or welding supervisor as possible alternative employment options.
25. As a first step to determining whether the tentative job goals he had identified were reasonable, Mr. Spiegel proposed that Claimant enroll in a computer class to enhance his skills in that area. When asked to approve the proposal, however, Claimant’s treating physician, Dr. Klitzner declined to do so. Dr. Klitzner did not doubt Claimant’s intellectual ability to perform the type of work for which Mr. Spiegel sought to prepare him. As noted above, however, she did question Claimant’s physical capacity for either computer class work or subsequent employment given the amount of sustained sitting and keyboarding that would be required.
26. Without Dr. Klitzner’s approval, Mr. Spiegel did not feel it appropriate to proceed. With the Department’s consent, in December 2009 vocational rehabilitation services were suspended pending resolution of the factual and legal issues that Dr. Klitzner had raised as to Claimant’s work capacity and employability potential.
Expert Opinions as to Employability
27. Both parties presented expert opinions from certified vocational rehabilitation counselors as to Claimant’s ability to secure and maintain regular gainful employment. According to Claimant’s expert, Gregory LeRoy, he is unemployable. According to Defendant’s expert, Clayton Prinson, he has a work capacity, is employable and should be conducting his own self-directed job search.
(a) Mr. LeRoy’s Analysis
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28. To assist in his analysis of Claimant’s vocational rehabilitation potential, Mr. LeRoy referred him for both psychological and vocational aptitude testing. Dr. Hedgepeth, a clinical and neuropsychologist, conducted the psychological evaluation. He determined that Claimant was of average intelligence, academic ability and learning and memory skills. His evaluation did not reveal any evidence of clinically significant psychopathology or other disabling psychological factors impacting Claimant’s ability to work.
29. To assess Claimant’s vocational aptitude, Mr. LeRoy referred him to Jack Bopp, a vocational evaluator. Through formal testing, Mr. Bopp analyzed Claimant’s aptitudes, interests and transferable skills, and then applied them to various vocational scenarios assuming either a sedentary or a light work capacity. Among his findings:
• There are no sedentary or light occupations (as classified by the U.S. Department of Labor) to which Claimant could transfer his current vocational skills and knowledge.
• There are a limited number of unskilled sedentary or light occupations for which Claimant possesses the worker traits1 generally required for average successful performance and which likely exist in his labor market area. These include such occupations as janitors, security guards, couriers and general office clerks.
• To be employed in these occupations, Claimant would have to be able to manage his pain effectively enough so as to maintain work quantity, quality and attendance standards. He also would require accommodation for his physical limitations.
• Given his age (62 as of Mr. Bopp’s evaluation), years since last in an educational setting (44) and low average verbal comprehension and processing speed abilities, Claimant is a poor candidate for acquiring new marketable skills through classroom retraining.
30. Mr. LeRoy also referred Claimant for a driving evaluation with Miriam Monahan, a certified driver rehabilitation specialist. Ms. Monahan determined that Claimant’s ability to drive safely was limited by both pain and reduced range of motion in his neck and left arm. These issues could be addressed in part with adaptive equipment, such as a steering wheel knob and a wide-angle side view mirror. With these adaptations, Ms. Monahan expected that Claimant would be able to drive within the local Middlebury area, where he currently resides. She recommended that he avoid driving in complex traffic or for more than 20 to 30 minutes at a time.
1 The “worker traits” referred to in Mr. Bopp’s analysis are diverse and extensive. They include physical abilities, such as kneeling, stooping and reaching; intellectual aptitudes, such as for verbal, numerical and spatial reasoning; demonstrated aptitudes for manual dexterity and motor coordination; and temperaments, such as for decision-making, following instructions and performing repetitive work.
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31. Based both on these specialist evaluations and on his own expertise in vocational rehabilitation, Mr. LeRoy concluded that Claimant has no reasonable prospect of securing and sustaining regular gainful employment. His age, education, transferable skills and time out of work, combined with his physical limitations and chronic pain, all present substantial barriers to employment, particularly in skilled occupations. As for unskilled occupations, his need for accommodations such as frequent stretch breaks and his inability to commute beyond his local area would make it difficult for him to compete successfully against a pool of less restricted applicants.
32. Mr. LeRoy acknowledged that there might be specific job openings in the Middlebury area for which Claimant might be hired – jobs in which taking a stretch break would not necessarily impact his productivity, for example. Mr. LeRoy’s opinion is based on probabilities, however. From that perspective, the chances that Claimant will be able to find and keep a suitable job are slight. I find this testimony to be credible.
33. As for whether Claimant’s employment prospects might improve with further vocational rehabilitation services, Mr. LeRoy asserted that this was unlikely. Medically, Claimant’s condition is chronic and therefore the prognosis for further improvement is poor. Vocationally, Claimant’s other employment barriers are unlikely to be overcome even with further assistance. With or without additional vocational rehabilitation services, in Mr. LeRoy’s opinion Claimant is now permanently incapable of securing and maintaining regular gainful work.
(b) Mr. Prinson’s Analysis
34. Mr. Prinson’s analysis of Claimant’s employability focused primarily on return to work alternatives he might consider given his interests, prior work experience and physical capacity. Mr. Prinson identified hardware, pet/pet supplies and nursery sales, automatic film developer, flagger or host as possibilities. Later, after considering the restrictions suggested by the 2008 FCE, Mr. Prinson added to the list such occupations as dairy farm manager, plant care worker, sheet metal worker, machinist, caretaker/overseer and exterminator.
35. Mr. Prinson also conducted a limited review of the Middlebury labor market area to search for currently existing employment opportunities for which he felt Claimant might qualify. Among the job openings being advertised were custodian, wholesale horticultural manager and laundry worker. Mr. Prinson did not contact any employers directly, and therefore had no information as to the specific job qualifications and duties required for any of the jobs he identified.
36. Mr. Prinson acknowledged Claimant’s age, extended period of time out of work and limited driving tolerance as barriers to employment, but also noted his good worker traits, respectable work history and willingness to take on challenging work assignments as positive indicators. Considering both these and the alternative work options he had identified, Mr. Prinson concluded that Claimant has a viable work capacity, is not unemployable and therefore is not permanently and totally disabled. To the contrary, in Mr. Prinson’s opinion Claimant is not even entitled to vocational rehabilitation services, and should be conducting his own self-directed search for suitable employment.
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37. When questioned as to the return to work alternatives that Mr. Prinson had identified, Mr. LeRoy effectively discounted most of them. Many, such as hardware, pet supplies and nursery sales, horticultural manager and laundry worker, are classified as medium physical demand level occupations, and thus would exceed Claimant’s work capacity as measured by the 2008 FCE. Others, such as sheet metal worker, caretaker and exterminator, typically require frequent stooping, forward reaching or sustained non-neutral neck positions, again in violation of the restrictions suggested by the 2008 FCE. Still others, such as automatic film developer and dairy farm manager (assuming no physical labor), likely do not exist in Vermont.
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).
Medical Causation
2. The first disputed issue in this claim is medical causation. Drs. Klitzner, Orecchio and Bucksbaum all concluded that Claimant’s current condition is causally related to his work activities for Defendant. Dr. Glassman concluded that any work-related injury has long since resolved, and that Claimant’s current condition is the result solely of his pre-existing degenerative disc disease.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
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4. I conclude here that the evidence provided by Claimant’s experts is more credible than that provided by Dr. Glassman. In reaching this conclusion, I am particularly mindful of Dr. Bucksbaum’s unique qualifications as both a physiatrist and a biomechanical engineer. With this training, he was better positioned than Dr. Glassman was to analyze the likely impact of Claimant’s bridge tensioning work on the muscles, ligaments, tendons and supporting soft tissues in his neck. Dr. Bucksbaum adequately explained how the work-related stress to those structures likely aggravated Claimant’s pre-existing degenerative disease to the point where symptoms that had been at best minor and episodic became chronic and disabling. Dr. Glassman’s analysis fell far short in this regard.
5. I conclude that Claimant has sustained his burden of proving that the neck pain and associated symptoms from which he has suffered continuously since September 17, 2004 are causally related to his work activities for Defendant. In addition to paying indemnity benefits, Defendant is responsible for whatever reasonable and necessary medical treatment he has undergone as a consequence.
Permanent Total Disability
6. The second disputed issue is whether Claimant’s work-related neck injury has rendered him permanently and totally disabled. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
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7. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
8. As Professor Larson describes it, the essence of the odd lot test is “the probable dependability with which [the] claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or the superhuman efforts of the claimant to rise above crippling handicaps.” 4 Lex K. Larson, Larson’s Workers’ Compensation §83.01 at p. 83-3 (Matthew Bender, Rev. Ed.).
9. I conclude that Mr. LeRoy’s analysis of Claimant’s employability more accurately reflects the fundamental nature of odd lot permanent total disability than Mr. Prinson’s does. Mr. LeRoy focused on the probability that Claimant would be able to compete successfully for jobs within his physical capabilities, and concluded that for him to do so would be highly unlikely. In contrast, Mr. Prinson focused on a few specific jobs for which Claimant conceivably might apply, and disregarded how improbable it would be, given his age, education, limited transferable skills, chronic pain and physical restrictions, for him actually to be hired.
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10. Vermont’s workers’ compensation statute “is remedial in nature and must be liberally construed to provide injured employees with benefits unless the law is clear to the contrary.” Cyr v. McDermott’s, Inc., 2010 VT 19 at ¶7, citing St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 590 (1991). It would be a harsh result to deny an injured worker’s claim for permanent total disability benefits solely because the possibility exists, however slight, that he or she might someday find a job. The standard required by Rule 11.3100 is what is reasonably to be expected, not what is remotely possible.
11. I conclude that Claimant has sustained his burden of proving that as a result of his work injury he is unable to successfully perform regular, gainful work. This circumstance is unlikely to change even with the provision of further vocational rehabilitation services. Claimant is permanently and totally disabled.
12. Having concluded that Claimant is permanently and totally disabled, the question whether he is entitled to continued vocational rehabilitation services is now moot.
13. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable and necessary treatment causally related to Claimant’s compensable neck injury, in accordance with 21 V.S.A. §640;
2. Permanent total disability benefits in accordance with 21 V.S.A. §645, with interest from the date indemnity benefits were last paid as computed in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 11th day of October 2011.
______________________
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.

Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)

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Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arthur Saffold Opinion No. 15-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Palmieri Roofing, Inc. For: Anne M. Noonan
Commissioner
State File No. H-22526
OPINION AND ORDER
ATTORNEYS:
David Williams, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s lumbar spine condition since 2006 compensable as a direct and natural consequence of his September 1994 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical summary
Claimant’s Exhibit 1: Workers’ Compensation Rule 14.9240
Claimant’s Exhibit 2: Operative procedure, November 30, 1994
Claimant’s Exhibit 3: Operative report, June 30, 2006
Claimant’s Exhibit 4: Dr. McLellan office note, July 3, 2008
Claimant’s Exhibit 5: Letter from Dr. Ross, December 15, 2008
Claimant’s Exhibit 6: Letter from Dr. Ross, February 19, 2010
Defendant’s Exhibit A: Medical records reviewed by Dr. Ross
Defendant’s Exhibit B: Radiology report, March 17, 1997
Defendant’s Exhibit C: Curriculum vitae, Victor Gennaro, D.O.
CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his lumbar spine condition since 2006
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s 1994 Injury and Subsequent Treatment
3. Claimant worked for Defendant as a general laborer and roofer. On September 30, 1994 he injured his back while carrying a heavy roll of roofing paper.
4. Claimant presented to Littleton Orthopaedics on November 8, 1994 with complaints of low back and right-sided radicular pain. A subsequent myelogram revealed findings suggestive of an L4-5 disc herniation.1 On November 30, 1994 Claimant underwent a laminectomy and discectomy at that level.
5. Initially Claimant recovered well from the November 1994 surgery. His low back pain lessened significantly, and the pain, numbness and tingling in his right lower extremity abated as well.
6. Claimant underwent physical therapy in early 1995, during which he made steady progress but continued to complain occasionally of numbness in his thigh and/or foot. His therapy was interrupted for a time after he suffered a heart attack in March 1995. After his recovery from that event, Claimant continued to experience some residual low back pain, as well as radicular symptoms into his right lower extremity.
7. In December 1996 Claimant’s treating physician, Dr. Howard, determined that he had reached an end medical result and rated him with a 20% whole person permanent impairment. Even at that time, Claimant continued to experience symptoms in his low back and right leg, particularly with prolonged standing or sitting. Claimant also complained of ongoing weakness, numbness and tingling from his right leg down into his foot.
8. At Defendant’s request, in February 1997 Claimant underwent an independent medical examination with Dr. Jennings, who rated his permanent impairment at 10% whole person. Subsequently, the parties executed an Agreement for Permanent Partial Disability Compensation (Form 22) that reflected a compromise of the two impairment ratings, which the Department approved in July 1997.
1 Claimant has six lumbar vertebrae, which can lead to some confusion when counting disc levels. Early radiological studies and operative reports referred to the lowest (most inferior) lumbar disc level as L5-6; this corresponds to what later is referred to as the L4-5 level.
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9. Despite having reached an end medical result, Claimant continued to experience both low back pain and radicular symptoms down his right leg. For the most part, for the nine-year period between early 1997 and April 2006 he opted not to seek medical treatment for these symptoms. While always somewhat problematic, furthermore, they did not preclude him from working.
10. Claimant held a variety of jobs during this time, though none after March 2004. From July 1996 until some time in 1997 he worked at Hitchener’s, a golf club manufacturing company. For approximately two years thereafter, he owned and operated a small coffee shop; that business closed in 2000. From 2001 until 2004 he worked as a lathe operator at NSA Industries.
11. Following triple-bypass surgery in September 2001, Claimant was disabled from working at NSA Industries for six months. Upon returning to work he continued to experience cardiac symptoms. As a result, in March 2004 his doctors again advised him to stop working, which he did.
12. There is no credible evidence that Claimant’s work activities from 1997 through 2004 either caused or aggravated his low back pain or radicular symptoms.
13. In addition to his cardiac condition, which has required fairly constant medical vigilance since 2001, in 2004 Claimant also began experiencing pain in his upper extremities. These were diagnosed as repetitive stress injuries, arguably related to his employment at NSA, and for which he underwent multiple surgeries in 2005. Claimant testified that during the periods when these other medical conditions were requiring active treatment, his low back and leg pain “took a back seat.” I find this testimony credible.
14. Claimant has not worked since March 2004. He has been receiving social security disability benefits since that time, primarily due to his cardiac condition.
Claimant’s 2006 Surgery
15. In April 2006 Claimant experienced the spontaneous onset of low back pain with radicular symptoms down his right leg. Contemporaneous medical records reflect that Claimant was “simply walking along” when he felt a “spasm” in his back, followed by worsening pain, tingling, numbness and weakness down his right lower extremity. The symptoms were exactly the same as those he had experienced prior to his 1994 surgery.
16. Claimant testified that although he had never been symptom-free since his original injury in 1994, the pain he felt in April 2006 was significantly worse. Contemporaneous medical records corroborate this testimony, which I find credible.
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17. A May 2006 MRI revealed a right-sided disc herniation at L4-5, the same level as had been operated on in 1994. There also was evidence of scar tissue at the site. Upon reviewing the MRI, Dr. Sengupta, the orthopedic surgeon to whom Claimant had been referred, observed that the disc herniation “appears to be moderate in size, but it appears that because of the scar tissue around the right L5 nerve root it is producing significant symptoms on the right leg.”
18. As treatment for Claimant’s symptoms, Dr. Sengupta recommended a repeat L4-5 discectomy, which Claimant underwent on June 29, 2006. In his operative findings, Dr. Sengupta reported “scar tissue identified from prior surgery.” Dr. Sengupta removed some of this scar tissue in order to better release the nerve root.
19. The medical records reflect that after the June 2006 surgery Claimant initially experienced good relief of his symptoms, but by the following year his radicular complaints had returned. A June 2007 MRI study showed disc degeneration at both L4-5 and L5-S1, but no evidence of disc herniation at either level. In addition, once again there was significant scar tissue around the L5 nerve root.
20. Claimant’s symptoms still persist. Having failed to realize significant relief from two prior surgeries, it is unlikely that a third surgery will prove successful.
Expert Medical Opinions
(a) Dr. Gennaro
21. At Defendant’s request, in October 2006 Claimant underwent an independent medical examination with Dr. Gennaro, an orthopedic surgeon. In addition to personally examining Claimant and taking his history, Dr. Gennaro also reviewed Claimant’s entire medical record and his deposition testimony as well. The question put to him was whether Claimant’s June 2006 surgery represented a recurrence causally related to his 1994 work injury and subsequent disc surgery or alternatively, whether it reflected an unrelated aggravation or new injury.
22. Dr. Gennaro concluded that Claimant’s 2006 surgery reflected neither an aggravation nor a recurrence. As Claimant had not identified any specific work or other activity that might have provoked a disc herniation, Dr. Gennaro discarded the possibility of an aggravation or new injury. Given the number of years that had passed since Claimant’s original surgery, furthermore, Dr. Gennaro deemed it unlikely that the 2006 surgery would have been caused by a recurrent disc herniation, as those typically occur within a relatively short period of time (6 to 36 months) after the original injury and surgery.2
2 Dr. Gennaro acknowledged his use of the term “recurrent disc herniation” referred to its medical definition – a reherniation of disc material at the same level and the same side as previously. As discussed infra, Conclusion of Law No. 5, the term “recurrence” as defined in Workers’ Compensation Rule 2.1312 has a somewhat different legal meaning.
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23. Having discarded both aggravation and recurrence as likely causes, Dr. Gennaro concluded that the symptoms Claimant began experiencing in 2006 most likely represented the manifestation of longstanding chronic degenerative disc disease in his lumbar spine. The natural progression of this disease is evidenced not only by worsening degeneration at the L4-5 disc level (the site of Claimant’s 1994 surgery), but also at other levels as well.
24. Degenerative disc disease is an evolving process. As a disc begins to degenerate, the jelly-like central portion, or nucleus pulposus, becomes less elastic and begins to flatten out. This causes the harder exterior covering, or annulus, to bulge. As the process continues, the annulus may weaken and crack, allowing disc material to herniate through the opening.
25. When a disc herniates, enzymes are released, which irritate the nerve root. This chemical irritation is the primary cause of most nerve root, or radicular, symptoms. Once irritated, the nerve root becomes inflamed and is less able to tolerate a smaller space within the spinal canal. Scar tissue from a previous surgery can make this small space even smaller, but does not itself cause the nerve root to become irritated or inflamed.
26. It is quite typical for patients with degenerative disc disease to experience episodic flare-ups and remissions. According to studies cited by Dr. Gennaro, furthermore, disc surgery does not alter the natural progression of the condition. That is, over the long term patients who have undergone disc surgery are just as likely to experience recurrent symptoms as those who have not had surgery. The presence or absence of scar tissue from a prior surgery appears not to be a relevant factor, therefore.3
27. To summarize, Dr. Gennaro concluded that Claimant’s condition since 2006 has been the consequence solely of “aging and time.” Notwithstanding some residual symptoms over the years, his 1994 surgery was successful – his condition markedly improved from its pre-surgery state, and then stabilized to the point where he was able to return to work and resume normal activities for many years thereafter. The degenerative disease in his spine continued to progress naturally, however, until worsening symptoms attributable entirely to that condition led to repeat surgery in 2006.
(b) Dr. McLellan
28. At Dr. Sengupta’s referral, in July 2008 Claimant underwent an evaluation with Dr. McLellan, a physician at Dartmouth Hitchcock Medical Center. Upon reviewing Claimant’s June 2007 MRI Dr. McLellan remarked that it revealed evidence of a disc herniation and post-operative changes at L4-5, and also “considerable scar tissue around [the] right L5 nerve root.”
3 Claimant correctly notes that one of the studies cited by Dr. Gennaro, published by Drs. Cinotti and Roysam in 1998, may have limited applicability to patients whose symptoms recurred as shortly after surgery as Claimant’s did. Dr. Gennaro cited additional studies as well, but these were not made available for the hearing officer’s review.
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29. Absent a more comprehensive review of Claimant’s medical records, Dr. McLellan declined to issue a final opinion as to the causal relationship, if any, between Claimant’s 1994 surgery and the symptoms that led to his 2006 surgery. Speaking “in a more generic way,” however, Dr. McLellan stated:
[Claimant] clearly had a disc herniation back in 1994. Individuals who have had disc herniations are at high risk of recurrence. In the absence of an intervening injury, recurrent symptoms on the same side at the same level are more probably than not related to the original injury. Given insidious onset of [symptoms] in the same dermatomal pattern as before and given the MRI results, the current radicular symptoms are also more probably than not related to the original injury.
30. Dr. McLellan did not conduct any further review of Claimant’s medical records, did not issue a final opinion specific to Claimant’s case and did not testify at the formal hearing. I find it difficult, therefore, to accord much weight to his generic statement as to the cause of Claimant’s recurrent symptoms.
(c) Dr. Ross
31. At the request of Claimant’s attorney, Dr. Ross, an orthopedic surgeon, conducted a medical records review in December 2008. Although his initial report was somewhat confusing, ultimately Dr. Ross concluded that Claimant’s 2006 disc herniation, subsequent surgery and current condition most likely were causally related to his 1994 injury and surgery. Dr. Ross testified to this effect at the formal hearing.
32. From his review of a select portion of Claimant’s medical records, Dr. Ross gleaned that Claimant never fully recovered from the 1994 surgery, that his pain began to recur within a matter of weeks, and that his clinical course for years thereafter was punctuated by frequent exacerbations and only temporary remissions. From this, Dr. Ross concluded that the 1994 surgery had been unsuccessful. Thus, he would have advocated for repeat surgery to more fully relieve the L5 nerve root compression much sooner, certainly well before 2006.
33. From his review of Dr. Sengupta’s surgical findings in 2006, Dr. Ross concluded that the scar tissue that resulted from Claimant’s 1994 surgery was itself compressing his L5 nerve root. To a reasonable degree of medical certainty, therefore, in his opinion the 1994 surgery was a “major factor” in causing the symptoms for which Claimant underwent surgery in 2006.
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34. Dr. Ross acknowledged that there was no radiological evidence that Claimant’s 1994 surgery had failed to decompress his L5 nerve root adequately. Rather, his conclusion in this regard was based on his understanding of Claimant’s clinical presentation in the weeks, months and years thereafter. Dr. Ross never reviewed Claimant’s entire medical record, however, which is voluminous, nor did he ever interview Claimant personally or read his deposition. Given these omissions, it is difficult to understand how Dr. Ross was able to appreciate Claimant’s clinical course and pattern of recurrent symptoms accurately. I find that his conclusions are rendered less credible as a result.
35. Dr. Ross disagreed with Dr. Gennaro’s assertion that a patient who has undergone prior disc surgery is no more likely to suffer a recurrent herniation than one who hasn’t. According to Dr. Ross, both because a prior surgery is likely to cause scar tissue to form and because an annulus that has torn once is more likely to tear again, recurrent symptoms are more prevalent in the surgical population.
36. Dr. Ross also disagreed with Dr. Gennaro as to the expected progression of Claimant’s degenerative disc disease. In his opinion, there was no basis from which to conclude that the natural history of Claimant’s disc degeneration would have caused his symptoms to recur in 2006 had the 1994 surgery not predisposed him to further deterioration. At the same time, however, Dr. Ross admitted that he had no specific knowledge or opinion as to whether Claimant’s 1994 surgery actually accelerated the progression of his degenerative disc disease in any way.
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 in this claim is one of causation. Claimant asserts that his condition since 2006 represents a recurrence of symptoms causally related to his compensable 1994 injury and subsequent surgery. Defendant asserts that Claimant’s condition has resulted from the natural progression of his degenerative disc disease, and that his symptoms are not causally related at all to his 1994 injury and surgery.
3. When a primary injury is determined to be compensable, all of the medical consequences and sequelae that flow from it are deemed compensable as well. 1 Larson’s Workers’ Compensation Law §10.01 at p. 10-3 (Matthew Bender, Rev. Ed.). Thus, once the work-connected character of an injury or condition has been established, its subsequent progression remains compensable, so long as the worsening is not shown to have been produced by an independent nonindustrial cause. Id., §10.02 at p. 10-3.
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4. For the purposes of determining workers’ compensation liability, it is critical to distinguish between a condition that has worsened as a direct and natural result of a compensable primary injury and one that has worsened independently from any work-related event. In the first instance, the causal link back to the primary injury remains intact, and the employer on the risk at the time remains responsible for whatever treatment and/or disability results from the worsening. See, e.g., Jackson v. True Temper Corp., 151 Vt. 592 (1989). In the second instance, the causal link is severed, and the employer is no longer liable. See 1 Larson’s Workers’ Compensation Law, supra at §10.02D, n.9 and cases cited therein.
5. Both parties here have framed their arguments at least partially as a dispute as to whether Claimant’s 2006 surgery and current condition should be characterized as a “recurrence.” Workers’ Compensation Rule 2.1312 defines a recurrence as “the return of symptoms following a temporary remission.” This term most often is distinguished from an “aggravation,” which Rule 2.1110 defines as “an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events.”
6. I do not consider the issue presented by this claim as one involving either a recurrence or an aggravation. Although Claimant credibly testified that he suffered from residual symptoms continuously from the time of his 1994 surgery forward, he also testified that they did not worsen to the point of requiring medical treatment until 2006. I cannot characterize these facts as a “return” of symptoms following a “temporary” remission.
7. Nor can I characterize Claimant’s worsening symptoms in 2006 as the type of intervening “event” that would trigger an aggravation analysis. The more appropriate question, therefore, is simply to determine whether Claimant’s condition since 2006 has flowed directly from his compensable 1994 injury, or whether it has resulted from some entirely independent cause. See Pacher v. Fairdale Farms, 166 Vt. 626, 628 (1997) (finding of new injury, distinct from prior injury, does not have to be either aggravation or recurrence).
8. Each party here presented its own expert testimony on this issue. Dr. Ross concluded that scar tissue from Claimant’s 1994 surgery was a “major factor” in causing the symptoms for which he underwent surgery in 2006, and from which he continues to suffer currently. Dr. Gennaro concluded that the 1994 surgery was irrelevant to the process, and that Claimant’s degenerative disc disease worsened independently to the point where the 2006 surgery became necessary.
9. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
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10. The first factor does not favor either expert, as neither was a treating provider. The fifth factor is also neutral, as both experts are well-qualified to render opinions on the causation issue presented here.
11. The second and fourth factors favor Dr. Gennaro. He reviewed Claimant’s entire medical record, read his deposition and most importantly, interviewed Claimant personally as to the history of his injury and the progression of his symptoms from 1994 forward. In contrast, Dr. Ross reviewed only a portion of Claimant’s medical record. From this he determined that Claimant’s 1994 surgery had failed completely, that he never fully recovered and that his symptoms were almost as troublesome in the years thereafter as they became in 2006. From the records Dr. Ross reviewed, I cannot discern how he could have reached these conclusions.
12. The third factor weighs in Dr. Gennaro’s favor as well. His opinion was clear, thorough and objectively supported. It adequately accounted for the presence of disc degeneration at other levels in Claimant’s lumbar spine at the same time that it discounted scar tissue as a contributing factor. The fact that Dr. Gennaro’s conclusions were consistent with findings reported in the medical literature, while by no means determinative, also lends support to his opinion. See, e.g., Kurant v. Sugarbush Soaring Association, Inc., Opinion No. 17-10WC (May 4, 2010).
13. I conclude that Dr. Gennaro’s opinion was more persuasive than Dr. Ross’. I also conclude, therefore, that Claimant has failed to establish the required causal link back to his compensable 1994 injury so as to render either his 2006 surgery or his current condition compensable. Claimant’s current condition is not the direct and natural result of his compensable primary injury. It is the result of degenerative disc disease, which has progressed independently from any work-related injury or sequelae of treatment.
14. Claimant having failed to prevail on his claim, he is not entitled to an award of costs or attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his 2006 surgery and subsequent condition is hereby DENIED.
DATED at Montpelier, Vermont this 21st day of June 2011.
_____________________
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.

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