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Deborah Lydy v. Trustaff Inc (February 8, 2012)

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

Deborah Lydy v. Trustaff Inc (February 8, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Deborah Lydy Opinion No. 05-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Trustaff, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-63780
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 8 and 14, 2011
Record closed on December 22, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Jeffrey Dickson, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a psychological injury as a result of her May 20, 2008 work-related accident?
2. Did Claimant suffer a left ankle injury as a result of her May 20, 2008 work-related accident?
3. Did Claimant suffer a left knee injury as a result of her May 20, 2008 work-related accident?
4. Should Defendant’s contribution to Claimant’s group health insurance premium be included in her average weekly wage and compensation rate calculation?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Youngjohn’s MMPI-2-RF Interpretive Report
(under seal)
Claimant’s Exhibit 2: July 22, 2010 letter detailing health insurance premium contributions
Claimant’s Exhibit 3: Dr. Selz’s MMPI-2 Extended Score Report (under seal)
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CLAIM:
Temporary total disability benefits to include the value of Defendant’s contributions to Claimant’s group health insurance premiums pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s May 2008 Work-Related Accident
3. Claimant is a licensed practical nurse who worked for Defendant as a “traveler.” That is, even though she lived in New Jersey with her son she agreed to a 13-week placement in a Rutland, Vermont nursing home. As part of her remuneration, Defendant provided her with local housing.
4. On May 20, 2008 Claimant reported to work for her third shift duty. As she was being briefed on the prior shift’s activities, she noticed a patient’s call light activate. Claimant responded to the call light and entered the patient’s room. The room was dark except for a night light.
5. The patient appeared to be sleeping as Claimant approached her bed, which was low to the floor and did not have side rails. As Claimant bent down to ask the patient how she could assist her, the patient reared up, grabbed Claimant by the hair, jerked her down and started shaking her violently. For two or three minutes she shook Claimant by the hair, digging her nails into Claimant’s scalp and drawing blood. The incident ended when another nurse came to Claimant’s aid and disentangled her from the patient’s grasp.
6. Claimant testified credibly that during the attack she felt afraid and helpless. As a medical professional, she did not consider it an option to defend herself against her patient’s aggression.
7. After she collected herself, Claimant realized that both her left knee and her left foot hurt, and also that she had a burning sensation in her neck. She ended her shift early and went to the emergency room. There she was diagnosed with an acute cervical strain and a fracture of her left great toe. For her neck injury she was advised to apply ice and to wear a sling to immobilize her left arm. For her toe fracture she was instructed to wear orthotic shoes. The emergency room records do not reference any complaints of, or treatment for, left foot or knee pain.
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8. Defendant accepted Claimant’s neck and left toe injuries as compensable and began paying workers’ compensation benefits accordingly.
9. Claimant was released to return to desk work only in three days’ time. Unfortunately, Defendant had no desk duty available, and instead advised her that unless she was 100 percent recovered it would not allow her to return to work. In that event, furthermore, it would no longer pay for her housing in Vermont. Claimant could not afford this. Having no personal ties to Vermont outside of her job, she decided to move with her son to Arizona.
10. Claimant, her son and his fiancé moved to Arizona almost immediately. In July 2008 she obtained employment at Desert Life Rehabilitation and Care Center, a long term care facility. Claimant worked in different capacities for Desert Life’s parent company until November 2009. At that point, her treating physician disabled her from working on account of her cervical injury and Defendant commenced paying temporary total disability benefits. As of the formal hearing, Claimant had not yet returned to work.
Claimant’s Psychosocial History
11. Claimant suffered through a physically and emotionally abusive childhood and adolescence. She ran away when she was 14 years old and hitchhiked to the Woodstock music festival when she was 15. When she was 17, she gave birth to a child, but her mother told her it was stillborn and then secretly put it up for adoption.
12. When Claimant was 18 years old she was the victim of a brutal sexual assault. Her assailant pulled her by her hair from her car one night, dragged her to the edge of the woods and repeatedly assaulted her sexually at gunpoint. When Claimant struggled against her attacker, he subdued her by grabbing her hair and pulling her to the ground.
13. Claimant never received any type of therapeutic intervention for this horrific crime, though she did attempt to overdose shortly afterwards. Ultimately she compartmentalized the psychological effects of the assault and in her own credible words, “just moved on.”
14. When Claimant was in her twenties she obtained her GED, and then became certified as a respiratory therapist. After nine years in this profession she returned to school and obtained her licensed practical nurse certificate. Claimant had three failed marriages, and was the sole bread winner for her four sons. In order to provide for her children, she consistently worked throughout her adult life, sometimes moonlighting at a second job or working overtime to make ends meet.
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Claimant’s Psychological Symptoms after Moving to Arizona
15. Within a few months after settling in Arizona, Claimant’s sons began to notice that she was behaving strangely. She constantly cried, and refused to leave the house for any reason other than to go to work. She feared for her safety, and became hyper-vigilant about checking and rechecking her doors and windows to make sure they were locked. She experienced anxiety attacks while driving, and therefore refused to do so. At work she compulsively counted and recounted patient medications for fear of making a mistake. She was afraid of the dark. Previously Claimant had been a social person, but now she no longer found pleasure in activities she used to enjoy, and was becoming estranged from her sons as well.
16. Claimant ultimately developed night terrors. Several times a week she dreamed about the sexual assault that had occurred when she was 18 years old, something she had never done before. These and her other psychological symptoms still persist. At the formal hearing Claimant credibly described her existence as, “I don’t have a life.”
Claimant’s Medical Treatment in Arizona
17. Claimant had difficulty treating for her accident-related health issues when she first arrived in Arizona, because the medical providers there were reluctant to accept out-of-state workers’ compensation coverage. Defendant finally arranged for her to see Dr. Ransom, an orthopedic surgeon, nine months after she arrived there for treatment of her cervical spine injuries.1
(a) Claimant’s Left Ankle Injury
18. In June 2009 Claimant began treating with Dr. Ransom for complaints of left ankle pain, which she attributed to her May 2008 work accident. In follow-up appointments, Dr. Ransom observed lateral swelling on the left side of Claimant’s left foot and mild tenderness in the area as well.
19. Dr. Ransom diagnosed Claimant with a left ankle sprain, but never stated an opinion as to whether this injury was causally related to her May 2008 work accident or not.
20. In December 2009 and September 2010, Claimant underwent independent medical examinations as to her cervical spine injury with Dr. Eskay-Auerbach, an orthopedic surgeon. During the course of her examinations, Dr. Eskay-Auerbach noted that the lateral aspect of Claimant’s left foot was swollen and tender to palpation. She did not offer any diagnosis for this condition.
1 Defendant had accepted as compensable Claimant’s neck strain and left upper extremity radiculopathy. As treatment for these injuries she ultimately underwent cervical fusion surgery.
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21. Dr. Eskay-Auerbach concluded that Claimant’s left ankle injury most likely was not causally related to her May 2008 work accident. As grounds for her conclusion, she noted first, that there was no report of ankle pain in the contemporaneous emergency room record immediately following that incident, and second, that if the pain had been present for a long time, it likely would have been evaluated some time ago. Given the circumstances surrounding Claimant’s relocation to Arizona, and particularly the difficulty she encountered in arranging medical care, I find Dr. Eskay-Auerbach’s reasoning in this regard somewhat unpersuasive.
(b) Claimant’s Left Knee Injury
22. In October and November 2010 Claimant treated with Dr. Arnold, an orthopedic surgeon, for left knee and hip pain. Claimant reported to Dr. Arnold that she had been suffering from left knee pain since her work-related accident in May 2008. Dr. Arnold diagnosed Claimant with tendonitis in her knee and bursitis in her hip. He did not state an opinion as to whether these injuries were causally related to Claimant’s work accident or not.
(c) Claimant’s Psychological Injury
23. As both Dr. Ransom’s and Dr. Arnold’s medical records reflect, Claimant consistently denied during her office visits with them that she suffered from depression, anxiety, substance abuse or suicidal ideation. Claimant did acknowledge, in a second independent medical examination with Dr. Eskay-Auerbach in August 2010, that she was depressed. Even then, though, she attributed her depression to difficulty sleeping due to chronic pain, not to any psychological trauma per se.
24. It was not until December 2010 that Claimant first admitted the extent of her psychological distress to a medical provider. Specifically, she reported to Dr. Christiano, the neurosurgeon who was treating her cervical spine injury, that she was experiencing night terrors, had become reclusive and withdrawn and was compulsive about the safety of her home. Upon learning of these psychological symptoms, Dr. Christiano referred Claimant to Dr. Selz, a clinical psychologist, for treatment.
(i) Dr. Selz’ Causation Opinion
25. In addition to her credentials as a clinical psychologist, Dr. Selz also is certified as a Diplomate in neuropsychology by the American Board of Professional Neuropsychologists. Dr. Selz’ practice includes both evaluation and treatment. While most neuropsychologists do not engage in psychotherapy, Dr. Selz does.
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26. Dr. Selz evaluated Claimant on one occasion, in March 2011. In the course of that evaluation, which lasted for approximately one hour, she administered the MMPI-2, which is the gold standard of personality tests. In Dr. Selz’ assessment, Claimant responded truthfully and credibly to the questions put to her. According to the computer-generated interpretation of Claimant’s MMPI-2 results, she did not omit any answers and endorsed items consistently and accurately.2
27. Dr. Selz concluded that Claimant’s May 2008 work accident triggered repressed emotions dating back to the sexual assault she had suffered when she was 18. While Dr. Selz could not say conclusively why the work injury prompted such a psychological response, she was certain it was the causal link for the following reasons:
• Subsequent to the sexual assault, Claimant was able to carry on with her life without external evidence of serious problems. She was consistently employed, raised her four sons successfully with little if any support and functioned well both within her family and in her community.
• There was no evidence of any existent psychiatric distress prior to the May 20, 2008 work injury.
• The May 2008 assault at work was similar in many respects to the sexual assault Claimant had endured years earlier. It happened at night and in the dark, the assailant subdued Claimant by dragging her down violently by her hair and it occurred under circumstances in which Claimant felt helpless to defend herself.
I find Dr. Selz’s rationale very persuasive.
28. Dr. Selz admitted at the formal hearing that she was not able to fit Claimant’s symptoms neatly into the diagnostic criteria for either post-traumatic stress disorder (PTSD) or a major depressive disorder. She prefers a more holistic approach to evaluating and treating patients and does not feel rigidly bound by the specific diagnostic criteria described in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. In Dr. Selz’ opinion, Claimant clearly suffers from depression and anxiety causally related to the May 2008 work accident, and clearly requires psychological treatment as a result. Whether her condition meets the specific diagnostic requirements for either PTSD or a major depressive disorder does not alter these conclusions in any respect. I find Dr. Selz’ reasoning in this regard persuasive.
2 In addition to reviewing the raw data from her own administration of the MMPI-2 to Claimant, Dr. Selz also reviewed the raw data generated by Defendant’s expert, Dr. Youngjohn.
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(ii) Dr. Youngjohn’s Causation Opinion
29. Defendant’s medical expert, Dr. Youngjohn, disagreed with Dr. Selz’ analysis. Dr. Youngjohn is board certified in clinical psychology and a Fellow of the National Academy of Neuropsychology. His practice focuses on assessment of psychological and neuropsychological issues for other doctors, nurses, attorneys and employers. Most of his current referrals come from the court system, and involve evaluating criminal defendants’ competence to stand trial as well as mitigation of guilt issues.
30. Dr. Youngjohn conducted a day-long neuropsychological evaluation of Claimant in June 2011.3 He also reviewed her medical records.
31. Dr. Youngjohn concluded that Claimant did not suffer any psychological injury as a consequence of her May 2008 work accident. In his estimation, that accident involved a “demented little old lady” who could not have posed a significant physical threat to Claimant. Nor did he perceive that it produced the necessary level of fear, helplessness or horror sufficient to support a diagnosis of PTSD. I find Dr. Youngjohn’s attempt to minimize the physical threat posed by the May 2008 attack unpersuasive, particularly given that it involved force sufficient to cause both a serious cervical injury and a fractured toe.
32. Dr. Youngjohn also rejected the possibility that Claimant suffered from any depressive disorder causally related to the May 2008 patient assault. She consistently had denied experiencing depression, anxiety, substance abuse or suicidal ideation when asked by Drs. Ransom and Arnold on several occasions in 2009 and 2010. In Dr. Youngjohn’s opinion, her failure to report any such symptoms earlier casts substantial doubt on her assertion now, some two years later, that her psychological issues relate back to her work accident.
33. Dr. Youngjohn interpreted the results of Claimant’s MMPI-2 testing4 as indicative of her tendency to over-report and exaggerate her psychological symptoms. In fact, he doubted the veracity of both her complaints and her history. He did not believe that Claimant would have had the wherewithal at age 14 to run away from home, or to hitchhike around the country and attend the Woodstock music festival at age 15. Nor did he believe that her mother would have been able to circumvent “hospital policies” so as to give Claimant’s newborn baby up for adoption without her knowledge. Very simply put, Dr. Youngjohn did not buy Claimant’s story in any respect.
3 A neuropsychological examination differs from a psychological one in that it entails six to eight hours of rigorous testing, the primary purpose of which is to determine if the examinee suffers from cognitive deficits. Dr. Youngjohn acknowledged that neuropsychological testing was not a necessary component of his evaluation in this case, but he performed it anyways because that was what Defendant had requested.
4 As Dr. Selz had, Dr. Youngjohn analyzed the raw data from both his own administration of the MMPI-2 to Claimant and from Dr. Selz’ testing.
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34. Based both on Claimant’s psychological test results and on what Dr. Youngjohn characterized as her lifelong history of maladaptive behavior, he concluded that Claimant suffers from antisocial personality and avoidant personality disorders. He acknowledged the possibility that Claimant had compartmentalized the psychological effects of the sexual assault she suffered when she was 18. He also agreed that Claimant clearly is in psychological distress currently and would benefit from treatment. In Dr. Youngjohn’s opinion, however, Claimant’s psychological issues were neither caused nor triggered in any way by her May 2008 work accident.
35. Having accepted Claimant’s account of the various circumstances underlying her claim as credible, I find Dr. Youngjohn’s testimony to be largely unpersuasive. I do not share his incredulity, for example, at the possibility that Claimant could have made her way to Woodstock at age 15. To the extent that Dr. Youngjohn’s opinion was based on his strongly held belief to the contrary, I find that it is severely compromised.
Claimant’s Employer’s Group Health Insurance Premium Contribution
36. In 2009, the last year that Claimant worked, Claimant’s then employer, Desert Life Rehabilitation and Care Center, contributed $3,120.00 to her annual group health insurance premium. It is unclear from the evidence presented whether these contributions covered the period of time after November 2009 when Claimant became disabled from working on account of her cervical spine injury. As a consequence, it is impossible to determine how her average weekly wage and compensation rate calculation would differ were the contributions to be included.
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).
Compensability of Claimant’s Psychological Injury
2. Claimant alleges that the mechanism of her May 2008 work accident was such that it triggered long-repressed emotions stemming from the sexual assault she endured when she was 18. As a result, she claims, she now suffers from depression and anxiety. Claimant in essence is asserting a “physical-mental” claim, one in which a work-related physical insult causes a psychological injury.
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3. The key component of any workers’ compensation claim is the causal nexus between a work-related accident and a resulting injury. 21 V.S.A. 618. Most compensable claims originate with a physical stimulus, a slip and fall, for example, and result in a physical injury, such as a disc herniation or a ligament tear. The same causal nexus is required in a physical-mental claim, the only difference being that the work-related physical stimulus gives rise to a psychological injury rather than a physical one. See, e.g., Blais v. Church of Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999); see 3 Lex K. Larson, Larson’s Workers’ Compensation §56.03 (Matthew Bender, Rev. Ed.) and cases cited therein.
4. It is true, as Defendant asserts, that many physical-mental claims involve situations where the limitations induced by a specific physical injury cause psychological consequences. A claimant whose disc herniation precludes him from returning to physically strenuous work becomes depressed and anxious at the prospect of becoming unemployable, for example; the necessary treatment required to restore his psychological well-being is clearly compensable. See, e.g., Jackson v. True Temper Corp., 151 Vt. 592 (1989); Larson’s Workers’ Compensation, supra. Even in this fact situation, however, the critical inquiry is not whether the claimed psychological injury derives directly from a work-related physical injury. It is simply whether it derives from a work-related physical stimulus. Merrill v. Town of Ludlow, 147 Vt. 186 (1986).
5. In Merrill, the Vermont Supreme Court considered the viability of just such a “physical-mental” claim. The claimant in that case was involved in a work-related accident when the truck he was driving skidded off the road and overturned. He initially claimed to have suffered a thoracic spine injury. Later, a defense expert hypothesized instead that the accident had unmasked a pre-existing hysterical condition, such that the claimant’s physical symptoms were actually psychological in origin. The court sustained the claimant’s right to recover workers’ compensation benefits under this theory of the case. It thus acknowledged that a physical stimulus (the truck accident) could give rise to a compensable psychological injury. Id.; see also Blais, supra at Conclusion of Law No. 10 (noting evidence that substantiated causal link between claimant’s psychological injury and his work-related fall from a ladder).
6. In accepting the viability of the claimant’s physical-mental claim in Merrill, the Supreme Court also acknowledged the compensability of a claim in which the physical stimulus (there, the truck accident) did not cause a new psychological injury but rather triggered a previously dormant one (hysteria) to become active. In doing so, the court signaled that when a work injury aggravates or exacerbates a pre-existing condition, be it physical or psychological, the result is compensable. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964). This is simply an extension of the well-settled rule that an employer takes its employees as it finds them. Brace v. Jeffrey Wallace, DDS, Opinion No. 28-09WC (July 22, 2009); Petit v. North Country High School, Opinion No. 20-98WC (April 28, 1998).
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7. According to Claimant’s expert, Dr. Selz, this is exactly what occurred here. The physical stimulus of the May 2008 assault at work triggered long-repressed emotions from her sexual assault decades earlier, causing the depression and anxiety from which she now suffers. Defendant’s expert, Dr. Youngjohn, sees no such causal connection.
8. Where expert 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).
9. Neither of the experts here was a treating provider. Both reviewed the pertinent records and conducted a comprehensive evaluation. Both were well qualified to render an opinion as to the causal relationship, if any, between Claimant’s current psychological distress and the May 2008 work accident. The only factor that differentiates them, therefore, is the third one, that is, the extent to which their respective opinions were clear, thorough and objectively supported.
10. I conclude that Dr. Selz’ opinion is better supported, and therefore more persuasive, than Dr. Youngjohn’s. The starting point for her analysis was uncontroverted evidence establishing that for the many years between Claimant’s sexual assault and her work accident she functioned well and was psychologically stable. Against that backdrop, Dr. Selz considered the many important similarities between the two assaults. With those similarities in mind, she credibly concluded that although the root cause of Claimant’s emotional pain may have extended back to her sexual assault, it was the work accident that triggered the psychological response from which she now suffers.
11. In contrast, Dr. Youngjohn’s opinion was based almost entirely on his determination that Claimant was exaggerating both her prior history and her current symptoms. As I do not accept as credible his analysis, nor can I accept as credible his ultimate conclusion.
12. I conclude that Claimant has sustained her burden of proving that her current psychological condition is causally related to the May 2008 work accident, and is therefore compensable. She therefore is entitled to workers’ compensation coverage for whatever treatment is determined to be reasonable, necessary and causally related to that condition.
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Compensability of Claimant’s Left Ankle and Knee Injuries
13. Claimant contends that she injured both her left ankle and her left knee as a consequence of the May 2008 patient assault. Neither Dr. Ransom nor Dr. Arnold stated an opinion as to the causal relationship, if any, between her ankle and knee complaints and her work injury, however. Absent expert medical evidence, I cannot presume that such a relationship exists. Laird v. State Highway Department, 110 Vt. 195 (1939). This is true even though I have found the reasoning underlying Dr. Eskay-Auerbach’s opinion on this issue to be unpersuasive. Claimant bears the burden of proof, and she has failed to sustain it. Egbert, supra.
14. I conclude that Claimant’s left ankle and knee injuries are not compensable.
Employer-Paid Contributions to Group Health Insurance Premium as Includable in Average Weekly Wage and Compensation Rate Calculation
15. Claimant argues that the value of her employer’s contributions to her group health insurance premium should be included in her average weekly wage and compensation rate calculation. This argument was addressed – and rejected – most recently in Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). For exactly the same reasons as enunciated there, I reject the claim here as well.
16. I conclude that Claimant’s average weekly wage and compensation rate should be calculated without including the value of any employer-paid contributions to her group health insurance premium.
Costs and Attorney Fees
17. As Claimant has prevailed on her claim for workers’ compensation benefits causally related to her psychological injury, she is entitled to an award of those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). As for attorney fees, in cases where a claimant has only partially prevailed, the commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of her allowable costs and attorney fees
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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 medical services and supplies necessitated by Claimant’s psychological injuries and causally related to her May 20, 2008 work accident, in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of February 2012.
_______________________
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.

Laurel Zeno v. University of Vermont, September 25, 2012

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

STATE OF VERMONT
DEPARTMENT OF LABOR
Laurel Zeno Opinion No. 29-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
University of Vermont
For: Anne M. Noonan
Commissioner
State File No. Z-00033
OPINION AND ORDER
Hearing held in Montpelier on September 25, 2012
Record closed on November 5, 2012
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Stephen Ellis, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s current right leg condition causally related to her June 2007 compensable work injury?
2. If yes, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical records
Claimant’s Exhibit 1: Dr. Campbell deposition, July 5, 2012
Defendant’s Exhibit A: Dr. Campbell deposition, September 13, 2010
CLAIM:
All workers’ compensation benefits to which Claimant proves her entitlement as causally related to her current right leg condition
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant has been employed by Defendant for many years as the Program Coordinator/Grant Administrator for the Vermont Space Grant Consortium.
Claimant’s Prior Medical History
4. Claimant has a complicated medical history. She has suffered from cerebral palsy since infancy, as a result of which her left leg is approximately three inches shorter than her right. At various times since 1989, she has treated for pains in her neck, lower back, hips and bilateral shoulders (for which she underwent arthroscopic surgery, on the right in 1998 and on the left in 2006), as well as abdominal pain, gastroesophageal reflux disease, headaches, vocal hoarseness and contact dermatitis. As documented in the medical records, the picture painted by many of her treatment providers is of an extremely anxious patient with a persistent, near neurotic fixation on her symptoms.
5. Of particular relevance to the current action, Claimant’s medical history also references treatment for right knee and leg pain, dating back to 2001. Her complaints at that time included tenderness on the medial (inside) part of her knee, burning pain radiating down her calf and swelling in her thigh. Claimant treated with Dr. Abate, an orthopedic surgeon, for these symptoms. In March 2001 she underwent arthroscopic surgery, during which a portion of her medial meniscus was removed. Thereafter, she continued to complain of occasional swelling in her leg and in the back part of her knee, as well as pain down the lateral (outside) part of her thigh. Dr. Abate could not determine the etiology of these complaints, though he noted the presence of both arthritis in her knee and tightness in her iliotibial (IT) band, the group of fibers that runs down the outside of the thigh from the buttocks to just below the knee.
6. Also of relevance to the current action, in 2004 Claimant reported to Dr. Ciongoli, the neurologist who was treating her at the time for diffuse, degenerative osteoarthritis in her lumbar spine, that as a consequence of her abnormal gait (which she attributed to her cerebral palsy and resulting leg length differential) she had developed hip pain.
Claimant’s June 2007 Work Injury and Subsequent Treatment
7. On June 20, 2007 Claimant was walking through Defendant’s parking lot on her way to a meeting when she stepped into a depression in the pavement and fell forward, landing on both knees. Her stockings tore and her knees were abraded and bloody.
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8. Claimant continued on to her meeting, which lasted for two hours, and then returned to her office before meeting her husband at his dental appointment. While at the dentist’s office, a hygienist brought her a wet cloth with which to clean her knees, and also ice to reduce any swelling.
9. Over the ensuing month, Claimant sought treatment for her right knee complaints with three primary care providers, Drs. Little, Slingerland and Bielinski. At the first visit, with Dr. Little on the day following her fall, she was observed to have superficial abrasions on both kneecaps, as well as tenderness on the inside part of her right knee, which she acknowledged was possibly chronic. One week later, Dr. Slingerland reported that she was walking with a limp, and that her right knee was somewhat swollen compared to the left. Dr. Bielinski reported similar findings on his July 24, 2007 exam, and noted some lower ankle swelling as well. Claimant demonstrated full range of motion in her knee at each of these examinations, with no signs of instability and no pain on palpation. The only treatment recommended was ice, rest and ibuprofen. Notwithstanding her persistently voiced concerns about possible internal damage, I find from this evidence that at least in the first month following her fall Claimant’s knee did not appear to have been injured significantly.
Dr. Campbell’s Treatment and Opinion as to Causal Relationship
10. Between September 2007 and June 2010 Claimant treated for her right knee symptoms with Dr. Campbell, an orthopedic surgeon. Over time, her complaints variably progressed, from their earliest focal point along the inside portion of her knee, to the outer part of her joint line, then up her outer thigh to her hip and down her leg into her calf. As treatment, she underwent injections and physical therapy, wore various knee braces and sleeves and used a Canadian crutch to assist with walking. By her report, none of these treatments offered sustained relief.
11. Dr. Campbell has never definitively diagnosed the specific etiology of Claimant’s symptoms. Over the course of his treatment, he has proffered many theories, including osteoarthritis in her knee, deep varicosities in her lower leg, IT band tendinosis or friction syndrome and tibio-fibular joint hypermobility. Descriptors such as “multi-factorial,” “mixed etiology” and “unclear cause” appear repeatedly in his office notes.
12. Dr. Campbell was aware that Claimant had undergone arthroscopic surgery on her right knee in 2001, but did not specifically review her medical records, either as to this or as to any other aspect of her medical history. Aside from her own report, he had no knowledge of the nature and extent of any prior complaints of right leg and/or knee pain. He did understand that Claimant suffered from cerebral palsy, and that, again according to her own report, this had caused her some ongoing problems with walking.
13. At his deposition, Dr. Campbell testified that he considers himself to be an advocate for his patients, and therefore he typically relies on them as his source of information. In this case, Claimant reported to him that her knee pain dramatically worsened after her June 2007 fall. From that, he concluded that the fall likely exacerbated the preexisting osteoarthritis in her knee and caused it to become more painful.
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14. As for the symptoms in Claimant’s calf and upper leg, Dr. Campbell believed these most likely were causally related to her gait abnormalities. From his own examinations, he observed that Claimant walked with a so-called varus, or slightly bow-legged, right knee. Whether this gait abnormality was due specifically to knee pain from her June 2007 fall, or to other factors, for example, tightness in her IT band, pain in her hip and/or preexisting osteoarthritis, he could not say for certain. Of note, Dr. Abate had reported IT band pain and tightness as early as 2001, Finding of Fact No. 5, supra, and Dr. Ciongoli had reported hip pain related to gait abnormalities in 2004, Finding of Fact No. 6, supra.
Claimant’s Most Recent Evaluations
15. Claimant did not treat for her right knee and lower extremity symptoms between June 2010 and April 2012. Since then, she has undergone evaluations with Dr. Halsey, an orthopedic surgeon, Dr. Charlson, an orthopedist, and Dr. Endres, another orthopedic surgeon. Claimant’s complaints now include burning pain along the outside of her lower leg, from just below her knee joint to her ankle and into her foot. She also has complained of instability in her leg, though there has been no evidence of this on either objective exam or diagnostic imaging.
16. Despite numerous imaging studies, neither Dr. Halsey, nor Dr. Charlson, nor Dr. Endres has been able to articulate a diagnosis that might account for Claimant’s current symptoms. Like Dr. Campbell, they appear somewhat flummoxed by her complaints. As of the formal hearing, Claimant was continuing to treat with Dr. Endres and was scheduled to undergo additional diagnostic testing to evaluate the peroneal nerve as a possible symptom generator.
17. None of Claimant’s recent treatment providers have stated an opinion as to the causal relationship, if any, between her current condition and her June 2007 fall at work.
Defense Expert Opinions as to Causal Relationship
18. At Defendant’s request, Claimant has undergone two independent medical evaluations since her June 2007 fall, first with Dr. Levy, a neurologist, in March 2008 and more recently with Dr. Sobel, an orthopedic surgeon, in June 2012. In addition to their physical examinations, both evaluators also reviewed Claimant’s prior medical records dating back to 1989.
19. Dr. Levy’s opinion is straightforward. He believes that the most probable cause of Claimant’s right knee and leg pain is degenerative arthritis, a chronic condition that preexisted her June 2007 fall. The fall, and resulting knee contusion as diagnosed by Dr. Little, likely caused a temporary flare-up of symptoms, but did not aggravate the underlying disease in any respect.
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20. Viewed in the context of the contemporaneous medical records, I find credible Dr. Levy’s opinion as to the cause of the symptoms Claimant first reported in her right knee. However, I find that it is somewhat incomplete in its failure to address her more recently reported complaints, which have focused more on her lower leg than specifically on the knee joint itself.
21. Dr. Sobel concurred with Dr. Levy on the question whether Claimant’s current right leg symptoms are related in any way to her June 2007 fall at work, concluding to a reasonable degree of medical certainty that they are not. His analysis was more thorough, encompassing not only Claimant’s prior history of treatment for right leg and knee pain but also her most recent diagnostic imaging studies.
22. To a reasonable degree of medical certainty, Dr. Sobel concluded that Claimant’s current condition, including both knee and lateral joint line dysfunction, is the result of two factors – the collapse of the inner (medial) portion of her knee, combined with her longstanding gait abnormality. As to the first factor, Dr. Abate had documented significant loss of cartilage under Claimant’s kneecap in the course of his arthroscopic surgery in 2001, as a result of which he removed a substantial portion of her medial meniscus. Thereafter, Claimant’s continued gait pattern, which involves asymmetric loading and thrusting of her right knee, likely caused further deterioration, on both the medial and the lateral portions of the joint.
23. Dr. Sobel found particularly noteworthy the fact that Claimant’s most recent MRI study revealed a nearly completely collapsed medial compartment, but no evidence of instability, major fragmentation or severe osteoarthritis under the kneecap itself. Had Claimant’s June 2007 injury, which by all accounts involved a fall forward and directly onto the front of her knees, caused a significant worsening of her underlying condition, one would have expected more evidence of degeneration there. Instead, for the most part the disease had progressed only in the areas where it had long preexisted. I find this reasoning persuasive.
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. At issue in this case is whether Claimant’s current right leg and knee symptoms are causally related to her June 2007 fall at work. The parties presented conflicting expert opinions on this issue. In such situations, 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. Based primarily on the second and third factors, I conclude that Dr. Campbell’s opinion is less persuasive than either Dr. Levy’s or Dr. Sobel’s. Having failed to review Claimant’s pertinent medical history in any depth, Dr. Campbell was unaware of the extent to which many of her symptoms predated her June 2007 work injury. These included prior complaints of, and treatment for, burning pain and swelling both above and below her knee joint, IT band tightness, and hip pain associated with abnormal gait patterns. It is difficult for me to ignore the similarities between these complaints, many of which were never clearly diagnosed, and Claimant’s current condition.
4. In fact, neither Dr. Campbell nor Claimant’s more recent treating physicians have yet been able to definitively determine the etiology of her current complaints. Given her complicated medical history, to conclude, as Dr. Campbell did, that because her symptoms arose at some point after her fall at work, they necessarily must have been caused by it is overly simplistic. Particularly in a case such as this, much more than a temporal relationship is required to establish work-related causation. Daignault v. State of Vermont, Economic Services Division, Opinion No. 35-09WC (September 2, 2009), citing Norse v. Melsur Corp., 143 Vt. 241, 244 (1983).
5. In contrast to Dr. Campbell’s analysis, Dr. Sobel’s causation opinion incorporated both Claimant’s prior medical history and her most recent diagnostic studies to arrive at an objectively supported, well-reasoned conclusion. His opinion effectively disqualifies the June 2007 fall as a contributing factor to her current complaints. I conclude that it is credible in all respects.
6. I conclude that Claimant has failed to sustain her burden of proving that her June 2007 fall at work either caused or aggravated her current condition. Therefore, her claim for workers’ compensation benefits must fail.
7. As Claimant has failed to prevail on her claim for benefits, she 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 referable to her current right leg and knee condition is hereby DENIED.
DATED at Montpelier, Vermont this ____ day of ____________, 2012.
____________________________
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.

Michael Simpson v. City of Burlington (December 10, 2009)

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

Michael Simpson v. City of Burlington (December 10, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Michael Simpson Opinion No. 48-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
City of Burlington
For: Patricia Moulton Powden
Commissioner
State File No. X-55319
OPINION AND ORDER
Hearing held in Montpelier on April 8, April 14, April 15, May 8 and June 1, 2009
Record closed on July 10, 2009
APPEARANCES:
Michael Gadue, Esq., for Claimant
John Leddy, Esq., for Defendant
ISSUE PRESENTED:
Was Claimant’s intracerebral hemorrhage causally related to his work activities on September 12, 2005?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Dr. Bruce Berryman affidavit, June 9, 2008
Joint Exhibit III: Claimant’s deposition, October 3, 2006
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Claimant’s Exhibit 2: Memorandum from Lynne Perry to Claimant, October 14, 2005
Claimant’s Exhibit 3: Physician Certification for FMLA Leave (2 pages)
Claimant’s Exhibit 5: VLCT Claimant’s Report, December 1, 2005
Claimant’s Exhibit 6: Letter from Darlene Bresett to Claimant, January 16, 2006
Claimant’s Exhibit 8: Appeal of claim denial, April 18, 2006
Claimant’s Exhibit 9: Transcript of recorded compact disc, July 2, 2007
Claimant’s Exhibit 10: Darlene Bresett handwritten note, February 15, 2006
Claimant’s Exhibit 11: Letter from Patrick Mahoney, M.D., October 27, 1975
Claimant’s Exhibit 12: Lynne Perry e-mail, February 28, 2006
Claimant’s Exhibit 13: Michael Simpson Workers’ Compensation Chronological Record
Claimant’s Exhibit 13 A: Miscellaneous documents at end of workers’ compensation files
Claimant’s Exhibit 14: FMLA Request Form (3 pages), with handwritten notations
Claimant’s Exhibit 15A: Walter Decker e-mail, September 21, 2005
Claimant’s Exhibit 15B: Memorandum from Lynne Perry to Claimant, October 11, 2005
Claimant’s Exhibit 15C: Memorandum from Lynne Perry to Claimant, September 21, 2005
(unsigned)
Claimant’s Exhibit 15D: Memorandum from Lynne Perry to Claimant, September 21,2005
(signed) (5 pages)
Claimant’s Exhibit 15E: Thomas Tremblay e-mail, February 28, 2006
Claimant’s Exhibit 16: Brief curriculum vitae, Christopher Commichau, M.D.
Claimant’s Exhibit 17: Telephone deposition of Patrick Graupman, M.D., February 16,
2007
Claimant’s Exhibit 18: Deposition of Christopher Commichau, M.D., January 31, 2007
Claimant’s Exhibit 20: Curriculum vitae, Anya Koutras, M.D.
Claimant’s Exhibit 22: Claimant’s affidavit, April 1, 2006
Claimant’s Exhibit 27: Brief curriculum vitae, Phil Aitken, M.D.
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Defendant’s Exhibit A: Curriculum vitae, Andres Roomet, M.D.
Defendant’s Exhibit B: Dr. Roomet report, January 26, 2009
Defendant’s Exhibit E: Walter Decker affidavit, June 14, 2006
Defendant’s Exhibit E-1: Memo from Sergeant Donald Lilja to Deputy Chief Decker, April
5, 2006
Defendant’s Exhibit F: Radio Log Listing, September 12, 2005
Defendant’s Exhibit G: Unit Log Listing, September 12, 2005
Defendant’s Exhibit H: Daily Shift Report, September 12, 2005
Defendant’s Exhibit I: BPD Airport Perimeter Patrol
Defendant’s Exhibit J: Burlington Policy Department roster sheet, September 12, 2005
(4 pages)
Defendant’s Exhibit K: Airport Division roll call sheets, September 11-13, 2005
(3 pages)
Defendant’s Exhibit L-1: CD, BIAP 9-12-05
Defendant’s Exhibit L-2: CD, Simpson 09122005-102602.WAV
Defendant’s Exhibit L-3: CD, 2704 9-12-05 1017
Defendant’s Exhibit L-4: CD, 9-12-05 2704 0907
Defendant’s Exhibit M: Nextel Subscriber Activity Detail (4 pages)
Defendant’s Exhibit P: Craig Bacon affidavit, May 7, 2008
Defendant’s Exhibit Q-2: Memorandum from Lynne Perry to Claimant, September 21, 2005
Defendant’s Exhibit Q-3: FMLA Request Form (3 pages)
Defendant’s Exhibit Q-4: Memorandum from Lynne Perry to Claimant, October 11, 2005
Defendant’s Exhibit Q-5: Memorandum from Lynne Perry to Claimant, October 14, 2005
Defendant’s Exhibit Q-6: First Report of Injury
Defendant’s Exhibit Q-7: Memorandum from Lynne Perry to Claimant, November 8, 2005
Defendant’s Exhibit T: Sketch of Claimant’s yard
Defendant’s Exhibit U: VLCT PACIF, Claimant’s statement, transcribed February 2, 2006
Defendant’s Exhibit AA: Sketch of airport perimeter
Defendant’s Exhibit BB: Aerial photograph of airport
Defendant’s Exhibit CC: List of First Reports of Injury (3 pages)
Defendant’s Exhibit DD: Letter from Attorney Gadue to Vermont Department of Labor, April 20, 2006
Defendant’s Exhibit EE: Letter from Julie Heath, May 24, 2006
Defendant’s Exhibit FF: Deposition of Robert Haynes, October 10, 2006
Defendant’s Exhibit GG: “17 Separate Audio Recordings of MS’ Transmissions”
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CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement should his injury be deemed causally related to his work and therefore compensable.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Until his retirement in 2006, Claimant had been a police officer with the Burlington Police Department for 34 years. For much of his career he was a uniformed patrol officer, ultimately obtaining the rank of corporal. Beginning in 2003 Claimant was assigned to the Airport Division. His duties there included maintaining the security of the premises, both inside and outside, assisting federal law enforcement officers and engaging in other routine police matters such as parking enforcement.
4. On September 12, 2005 Claimant was working the day shift, from 5:00 AM until 3:00 PM, with Corporal Mike Jordick. As was his practice upon starting his shift, Claimant first toured the interior of the terminal, making his presence known to TSA officials, airport ambassadors and the like. Then, at around 7:00 AM he began his patrol of the airport perimeter. This task involves using a four-wheel drive Jeep to maneuver around the airport’s 3.5-mile inner fence line, which encompasses both paved ramp and runway areas and at least one off-road area skirting a ravine. The purpose of the patrol is to make sure that the airport’s outer perimeter is secure, with no holes through which animals might gain entry, no debris that might blow onto a runway and into an airplane’s path and no unauthorized personnel wandering about.
The “Jeep Incident”
5. According to Claimant, he began his perimeter patrol in the ramp area at the northwestern end of the airport and then proceeded around towards the southern end. He reached an area where the perimeter line traverses a steep downgrade. There being no paved roadway, Claimant had to maneuver the Jeep downhill through the grass. As he did so, the Jeep’s front wheel hit a deep rut. Claimant was wearing his seat belt but even so, the force of the Jeep’s movement as it struck the rut caused him to hit the left side of his head on the metal post between the front and rear door.
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6. Claimant testified that the force of the impact “really rang my bell.” He felt dazed, his ears were ringing and his head ached. He recalled1 that he stopped the Jeep, got out and walked around it briefly. Then he got back in and resumed his perimeter patrol. As he did so, he observed that the sun seemed extraordinarily bright and was bothering his eyes.
7. Claimant followed the perimeter around to the Valley Air terminal. As he made his way through that area, he suddenly realized that he had driven under the wing tip of a parked plane and was close to hitting it with his windshield. Claimant testified that he had never come this close to hitting a plane before and was shaken by the experience. He attributed his failure to see the plane’s wing tip both to his headache and to what he felt to be the blinding sunlight.
8. After his near miss with the parked plane’s wing tip, Claimant backed up, maneuvered around it and continued back to the main terminal. Once there, he made his way to the security office, intending to sit down, take some Tylenol for his headache and rest for a bit.
9. Claimant testified that he returned to the office at around 8:00 AM. While there, he testified, he told his shift partner, Corporal Jordick, that he had “found a new rut” while out on perimeter patrol and that shortly thereafter he had almost hit the wing tip of a parked plane. It is unclear to what extent Claimant may have elaborated further – whether, for example, he told Corporal Jordick specifically that he had hit his head or whether he simply said that he had a headache. Claimant recalled that Corporal Jordick asked him if he wanted to go to the hospital, which Claimant declined to do.
10. Corporal Jordick could not corroborate any part of this conversation. He testified that he had no recollection of it whatsoever and denied that it had occurred. In particular, Corporal Jordick testified that he “absolutely” would have recalled asking Claimant if he wanted to go to the hospital.
1 Claimant’s recollection of events comes from three primary sources: (1) an unsworn, recorded statement he gave to Defendant’s adjuster, date unknown but transcribed on February 2, 2006; (2) his sworn affidavit dated April 1, 2006; and (3) his sworn testimony at formal hearing on April 8th and 14th, 2009. Claimant’s recollection of the fact of the Jeep incident itself – driving through the rut and hitting his head on the metal post – is consistent among all three sources, but many of the details conflict from one version to the next. I find that this most likely was due not only to the passage of time but also to the sequellae of Claimant’s head injury. The recitation of the details about which Claimant himself provided conflicting testimony is based on my determination as to which version, if any, was most likely accurate.
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11. Claimant testified that although his severe headache persisted, he managed to complete his shift nevertheless. Shortly after 9:00 AM he handled an ATM alarm in the terminal. Later, at around 10:30 AM he handled a minor motor vehicle accident that had occurred down the road. Recordings of telephone conversations between Claimant and police dispatch personnel document both of these activities. In the recordings, Claimant is heard to multi-task on other radio frequencies, relay driver identification information to and from dispatch and otherwise engage in routine police business, all without apparent difficulty. Upon hearing the recordings, Claimant’s fellow police officers described Claimant as sounding entirely normal – efficient, professional, jocular at times, and clearly in no apparent distress.
12. Claimant testified that in addition to telling Corporal Jordick of the Jeep incident he also reported it to his field supervisor, Sergeant Lilja. Specifically, Claimant recalled that he first attempted to reach Sergeant Lilja at around 8 or 9 AM, but was told by the police dispatcher that he was unavailable. Later, Claimant testified, he did speak with Sergeant Lilja by telephone and told him that he had hit his head while on perimeter patrol and had a bad headache. Claimant recalled that Sergeant Lilja advised him to complete a First Report of Injury. When Claimant told the sergeant that he had been unable to find any First Report forms in the airport security office he recalled that Sergeant Lilja advised him instead to wait until the following day and Sergeant Toof, Claimant’s supervisor, would take care of the necessary forms.
13. There is no independent corroboration for any of this testimony. Sergeant Lilja testified that he did not recall speaking to Claimant at all on that day, and certainly that Claimant did not report any work-related injury to him. Both Sergeant Lilja and Deputy Chief Decker conducted a thorough search of landline and cell phone records, furthermore, and were unable to find any calls to Sergeant Lilja from any of the airport phones that Claimant might have used. Last, according to both Sergeant Lilja and Deputy Chief Decker had Claimant called to report a work-related injury this would have been noted on the daily shift report, so that future shift assignments could be adjusted if necessary. The September 12th daily shift report makes no mention of any injury, however.
The “Lawn Mowing Incident”
14. Claimant completed his shift at around 3:00 PM on September 12th and then made his way home. Over dinner he told his wife he had a headache. It is unclear whether he explained any further or otherwise mentioned that he had hit his head at work. After dinner Claimant’s wife recalled that they were sitting outside and Claimant was rubbing his head. She suggested that he take something for his headache and rest, but Claimant declined, stating instead that he needed to mow the lawn. Claimant’s wife testified that Claimant seemed agitated, on edge and “not himself.”
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15. While Claimant began mowing the lawn (with a rotary-type push mower), Mrs. Simpson tended to her gardening. She observed that Claimant, who had a long-established routine for mowing the lawn, was behaving in a most erratic and unusual manner. He started mowing in a different place, did not mow in a straight line and missed large swatches of grass. In all respects, Mrs. Simpson testified, Claimant’s lawn mowing activities were dramatically different from the pattern he had followed for years. She found his demeanor unusual as well – he was uncharacteristically stubborn and aggressive, at once both hyper-focused on the task at hand and at the same time seemingly incapable of accomplishing it. Again, she suggested that he leave the chore for another time and rest instead, but again he refused.
16. As Mrs. Simpson resumed her gardening, she heard the mower stop. She came around to the front of the house and observed Claimant bending over and holding his head. When she inquired what had happened, Claimant told her that while mowing the patch of lawn nearest the road he had walked backwards into a stop sign post and hit the left side of his head, just above his left ear.
17. Claimant testified that after hitting his head on the stop sign post his headache, which already ranked as “about an 8 on a scale of 1 to 10,” worsened even more. Again Mrs. Simpson suggested that he go inside and rest, and again he insisted on continuing, as the task was almost completed.
18. Claimant took a few more swipes at the lawn and then, although many strips remained unmowed, determined that he was done. He took the mower to the garage, but contrary to his usual routine, did not put it away. Instead, he went inside, showered and went to bed.
19. Mrs. Simpson’s testimony about Claimant’s odd behavior even prior to hitting his head on the stop sign post was absolutely credible. She recounted the scene with convincing detail, recalling with some humor, for example, how strange the lawn looked after Claimant “finished” mowing it. I am convinced by her testimony alone that whatever injury process was occurring inside Claimant’s head had begun before he backed into the stop sign post.
The Events of September 13, 2005
20. As was her practice, Mrs. Simpson had already left for work by the time Claimant awoke the next morning, September 13, 2005. Claimant testified that he arose from bed and hit the door casing with his left shoulder as he exited the bedroom. He did the same thing as he entered the bathroom.2
2 As will be seen infra, see Finding of Fact No. 30, as a consequence of his intracerebral hemorrhage Claimant suffered a visual field disturbance on his left side, which affected both his peripheral vision and his spatial orientation. Claimant testified that he was unaware on the morning of September 13th that he was not seeing things on the left side of his body, and did not realize until later that day that that was the case.
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21. Claimant tried to follow his morning routine and prepare for his 3:00 PM shift, but his headache had returned and was again severe. He took some Tylenol and sat down to rest for a moment, then fell asleep and did not awaken until 1:00 PM. Realizing that he was going to be late, he telephoned Sergeant Toof, his supervisor, to tell him so. Claimant admitted that he did not tell Sergeant Toof that he had hit his head at work the previous day, because, as he explained, he was “having problems just dealing with . . . the present situation.”3
22. For his part, Sergeant Toof testified that he specifically remembered Claimant’s call. He recollected, however, that Claimant was calling not merely to say that he would be late, but rather to report that he would be out sick for his shift that day because his allergy medications were not working.
23. In any event, at some point after calling Sergeant Toof Claimant left his home and attempted to drive to work. His headache was severe, his vision was impaired and he experienced the sunlight as extraordinarily bright and painful. Driving south on Interstate 89 from St. Albans, Claimant felt nauseated, so he stopped at the Georgia rest area, where he fell asleep for at least two hours. When he awoke, he resumed driving, but soon realized that his left peripheral vision was impaired to the point where he could not see cars passing him. Claimant pulled off the highway again, and again fell asleep. When he awoke, it was dark. He decided to turn around and drive home.
24. Claimant arrived home at around 9:00 PM on the evening of September 13th, having spent approximately 7 hours attempting to drive to work, a commute that typically took 30 to 35 minutes. Both Mrs. Simpson and Tom Simpson, their adult son, had been attempting since late afternoon to determine his whereabouts, and were waiting for him when he drove in. Both recognized immediately that Claimant had suffered a serious injury and was very unwell. He was pale, sweating profusely, unsteady on his feet and quite clearly confused. He appeared to be in great pain, and repeatedly stated that his head was “killing him.” Together, Mrs. Simpson and Tom assisted Claimant back into his truck and drove him to the hospital.
Medical Diagnosis, Etiology and Causal Relationship
25. Claimant arrived at Northwestern Medical Center at around 10:30 PM. He complained of nausea, photophobia (excessive sensitivity to light), neck stiffness, blurred vision and severe headache. A CAT scan revealed a large hematoma, or blood clot, in Claimant’s brain. Claimant was in serious condition, and was transported by ambulance to Fletcher Allen Health care for treatment.
3 Mrs. Simpson provided important corroboration for the fact that Claimant was indeed having difficulty “dealing with [his] situation” as he tried to prepare for work on September 13th. When she arrived home from work that afternoon, she found that Claimant had failed either to close the garage door or to lock the house. He had forgotten to take with him police gear that he always carried and had left the kitchen in disarray after making his lunch. These omissions were all highly unusual for Claimant, a radical departure from his normal routine.
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26. Ultimately Claimant was diagnosed with an intracerebral hemorrhage. There was objective evidence that the hemorrhage must have occurred at least 12 to 24 hours prior to its discovery on CAT scan, as it would have taken that long for the swelling that was visible in the area to have formed. With that finding in mind, Claimant’s treating neurosurgeon, Dr. Graupman, concluded that the bleeding in Claimant’s brain must have started some time before he hit his head on the stop sign post while mowing his lawn, as that incident had occurred only a few hours earlier. Thus, he surmised, Claimant most likely had suffered an earlier head trauma as well. Because Claimant was on anticoagulants for an unrelated medical condition, even a relatively minor trauma could have resulted in a significant bleed. A blood clot would have formed, and with a second trauma – hitting the stop sign post – it probably began bleeding again, then ruptured within his brain. The rupture would have caused photophobia, neck stiffness and a rapidly worsening headache. This clinical scenario is entirely consistent with Claimant’s actual presentation on the night of September 13th.
27. Dr. Commichau, Claimant’s treating neurologist, concurred with Dr. Graupman as to the etiology of Claimant’s intracerebral hemorrhage. Initially Dr. Commichau posited that the hemorrhage might have occurred spontaneously as a result of amyloid angiopathy, a condition that causes the blood vessels in the brain to become more susceptible to bleeding. Ultimately Dr. Commichau discarded this diagnosis as unlikely and determined instead that Claimant’s bleed most probably was traumatically caused.
28. Dr. Roomet, the neurologist retained by Defendant to review Claimant’s medical records, disputed this analysis. In Dr. Roomet’s opinion, there was no way to determine with any certainty whether Claimant’s hemorrhage was traumatically rather than spontaneously caused. In particular, having listened to the audio recordings of Claimant tending to police business throughout the morning of September 12th Dr. Roomet concluded that it was unlikely Claimant would have been capable of doing what he did – multi-tasking, reciting strings of numbers, joking with the dispatcher – had he just suffered a significant head trauma while on perimeter patrol. Nor was there any mention of the Jeep incident in the contemporaneous medical records. Without any independent corroboration of the event, Dr. Roomet discarded it as a likely cause for Claimant’s first hemorrhage.
Claimant’s Recovered Memories
29. At first, neither Claimant nor Mrs. Simpson recalled the Jeep incident as the most likely “earlier head trauma” which Dr. Graupman deduced must have occurred. Both at the Northwestern Emergency Department and upon his admission to Fletcher Allen, it was Mrs. Simpson, not Claimant, who responded to most of the doctors’ questions as to the onset of Claimant’s symptoms. There was no reason at that point for either of them to understand the medical ramifications of Claimant having bumped his head at work the day before. Not surprisingly, therefore, the event that stood out in Mrs. Simpson’s mind was the lawn mowing incident, and that was what she reported. As for Claimant, he was confused, disoriented and in severe pain. It is understandable that he too would have failed in the moment to recognize the importance of the Jeep incident and communicate the fact of its occurrence effectively.
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30. Claimant remained hospitalized until the end of September, and then underwent extensive outpatient rehabilitation. Initially he had both motor and cognition deficits, including problems with balance, speech and language, memory and concentration. He had visual deficits as well, including impaired depth perception and a loss of peripheral vision on his left side.4 Some of these issues have resolved over time, but some still remain. According to Mrs. Simpson, for example, Claimant’s memory is still impaired, particularly as to current events such as who might have called during the day or what chores he needs to take care of. His vision deficit appears to be permanent, and he still has difficulty at times with concentration and information processing. He fatigues easily and lacks the same stamina and energy level that he used to have.
31. As for Claimant’s memory of the events of September 12, 2005 this did not begin to return to him until at least mid-October, some two weeks after he had been released from the hospital. Mrs. Simpson testified that Claimant first began talking about having almost hit the wing tip of a parked plane, but could not recall the context of that event. Gradually, she recalled, Claimant’s memories became more unified, until ultimately he recollected the Jeep incident itself more coherently. Later, he seemed to recall more details, such as telling Corporal Jordick of the incident and reporting his injury to Sergeant Lilja. Claimant’s memory as to these latter details is inconsistent, unverifiable and unreliable. As to the core event itself, however, once retrieved Claimant’s memory of hitting his head on the Jeep has remained consistent throughout.
32. Because Claimant did not recall the Jeep incident until many weeks after it occurred, and also because neither Claimant nor his wife at first appreciated the medical significance of that event in any case, Claimant did not initially report his intracerebral hemorrhage as work-related. Again, it was not until mid-October when Claimant first notified Lynne Perry, Defendant’s human resources director, that he believed his medical condition was work-related and requested that a First Report of Injury be filed. Prior to that time, Claimant had completed the medical leave paperwork Ms. Perry had sent to him without any mention whatsoever of a possible work connection.
4 The visual deficits caused by Claimant’s brain hemorrhage are likely what led both to his erratic lawn-mowing pattern and to his failure to perceive the stop sign post before he backed into it. Conceivably these deficits also might account for his near-miss with the wing tip of the parked plane during his September 12th perimeter patrol, but the evidence on this point is not clear.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. As in many workers’ compensation claims, the issues here are both medical and factual. In this case, however, they are unusually intertwined. Did the lawn mowing incident itself cause Claimant’s intracerebral hemorrhage, or was there a prior precipitating event? And if there was a prior event, did it occur spontaneously or as the result of some work-related trauma, namely the Jeep incident? Is there sufficient evidence from which to conclude that the Jeep incident even occurred?
3. I conclude, first of all, that Claimant’s brain bleed did not begin with the lawn mowing incident but rather must have been precipitated by some earlier event. In reaching this conclusion I rely with complete confidence on Mrs. Simpson’s testimony. I cannot stress how truthfully her description of Claimant’s odd behavior even before he hit his head on the stop sign post resonated.
4. Mrs. Simpson’s testimony is buttressed by objective medical evidence, namely the CAT scan results showing significant edema in the area of Claimant’s hemorrhage. I accept as credible Dr. Graupman’s opinion that for that edema to have been present the original insult to Claimant’s brain must have occurred at least 12 to 24 hours previously. Time-wise, that eliminates the lawn mowing incident as the precipitating cause of his initial hemorrhage.
5. The medical opinions differ as to whether the precipitating cause most likely was spontaneous or traumatic. Drs. Graupman and Commichau concluded that the inciting event was most likely traumatic. First, they considered and discarded possible diagnoses that would have accounted for a spontaneous hemorrhage. Having done so, they found in Claimant’s recollection of the Jeep incident a plausible traumatic etiology consistent with his clinical presentation.
6. In contrast, Dr. Roomet considered Claimant’s account of the Jeep incident, but ultimately rejected it. In Dr. Roomet’s opinion, Claimant’s recollection of the event was inconsistent and uncorroborated, and therefore too unreliable to accept. Without documented evidence of a specific traumatic injury to the head, Dr. Roomet concluded that there was no way to determine the etiology of Claimant’s hemorrhage to the required degree of medical certainty.
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7. Upon close consideration, therefore, the difference between the expert medical opinions is more factual than medical. Drs. Graupman and Commichau accepted Claimant’s account of the Jeep incident as true; Dr. Roomet did not.
8. I too accept Claimant’s account of the Jeep incident as true. To be sure, it is troublesome that in what Deputy Chief Decker described as the “environment of documentation” in which police officers routinely work, there is no independent corroboration of the details of the Jeep incident as Claimant recounted them. Corporal Jordick does not recall Claimant telling him that he had injured himself while on perimeter patrol. There is no record of the phone calls Claimant allegedly made to Sergeant Lilja, and no documentation on the daily shift report that Claimant had suffered a work injury. As to these details, Claimant’s memory is most definitely faulty.
9. Nevertheless, I believe Claimant. His recollection of the Jeep incident itself rang true, and has never changed. To a one, all of the witnesses who testified as to their experience of him, including even those who appeared on Defendant’s behalf, remarked on his integrity, his honesty and his unassailable character. He was a career police officer who loved his job, and I can discern no motivation for him to have created a story out of whole cloth.
10. Defendant appropriately questions the fact that Claimant’s injury was both unwitnessed and, at least according to all available documentation, late-reported as well. When such questions arise, the trier of fact must evaluate the factual evidence carefully so as to explore any inconsistencies, investigate possible intervening causes and evaluate “hidden or not-so-hidden motivations.” Darrah v. Censor Security Inc., Opinion No. 16-09WC (June 3, 2009); Jurden v. Northern Power Systems, Inc., Opinion No. 39-08WC (October 6, 2008); Russell v. Omega Electric, Opinion No. 42-03WC (November 10, 2003), citing Fanger v. Village Inn, Opinion No. 5-95WC (April 20, 1995).
11. In the past, the Commissioner has enumerated four questions to assist in this process. First, are there medical records contemporaneous with the claimed injury and/or a credible history of continuing complaints? Second, does the claimant lack knowledge of the workers’ compensation reporting process? Third, is the work performed consistent with the claimant’s complaints? And fourth, is there persuasive medical evidence supporting causation? Darrah, supra; Jurden, supra; Larrabee v. Heavensent Farm, Opinion No. 13-05WC (February 4, 2005), citing Seguin v. Ethan Allen, Opinion No. 28S-02WC (July 25, 2002).
12. Here, although admittedly there are no contemporaneous medical records documenting the Jeep incident, given the peculiar facts of this case the omission is understandable. Initially Claimant’s memory of the event was confused, and in any event neither he nor his wife understood its medical significance until some weeks later. Those considerations also account for the fact that Claimant, although knowledgeable of the workers’ compensation reporting process, apparently failed to report his injury immediately after it occurred.
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13. As to the third and fourth questions, despite his faulty memory as to what he did in the hours after the Jeep incident, Claimant’s recollection of the mechanism of injury itself has never changed, and is entirely consistent with the complaints he reported, including both severe headache and photophobia. Persuasive medical opinions from Drs. Graupman and Commichau supply the necessary causal link from these symptoms back to the work injury, forward to the lawn mowing incident and ultimately to the diagnosis of intracerebral hemorrhage.
14. I conclude, therefore, that Claimant has sustained his burden of proving that the Jeep incident occurred, and that it precipitated the chain of events that culminated in his hospitalization on September 13, 2005 for intracerebral hemorrhage. The injury is compensable and Claimant is entitled to whatever workers’ compensation benefits he proves flow from it.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his September 12, 2005 injury and resulting intracerebral hemorrhage; and
2. Costs and attorney fees in amounts to be determined according to 21 V.S.A. §678.
DATED at Montpelier, Vermont this 10th 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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