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Kathleen Lackey v. Brattleboro Retreat (April 21, 2010)

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Kathleen Lackey v. Brattleboro Retreat (April 21, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Kathleen Lackey Opinion No. 15-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Brattleboro Retreat
For: Patricia Moulton Powden
Commissioner
State File No. AA-50459
OPINION AND ORDER
Hearing held in Montpelier, Vermont on January 19, 2010
Record closed on February 3, 2010
APPEARANCES:
John Mabie, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s proposed cervical surgery reasonable and necessary treatment causally related to her July 8, 2008 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Hulda Magnadottir, M.D.
CLAIM:
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.
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3. Claimant worked as a charge nurse at Defendant’s in-patient mental health treatment facility. On July 8, 2008 she was responding to an emergency situation involving a patient who had tried to hang herself. The patient collapsed while Claimant was escorting her back to her room. As Claimant eased the patient to the floor, she felt pain both in her lower back and across her shoulder blades.
4. Claimant had a prior history of occasional low back pain, and over the course of the ensuing weeks her low back pain resolved back to its pre-injury baseline. Claimant’s mid- and upper back pain did not resolve, however. She experienced persistent pain, stiffness and significantly reduced range of motion in her neck, with numbness and tingling radiating down both arms and into her hands and fingers.
5. Claimant’s symptoms failed to respond to conservative therapy. An MRI of her cervical spine revealed degenerative changes at multiple levels, most notably C5-6 and C6-7. In October 2008 she consulted with Dr. McLellan, an occupational medicine specialist. Dr. McLellan suggested a cervical epidural steroid injection, but Claimant was reluctant to proceed. Instead, she sought a referral to a neurosurgeon, Dr. Magnadottir, for evaluation of possible surgical options.
6. Dr. Magnadottir first evaluated Claimant in February 2009. Her office note reflects that Claimant was complaining of pain “not so much in the neck itself” but rather in her shoulders and mid-back, radiating down both arms and into her fingers bilaterally. Dr. Magnadottir attributed Claimant’s shoulder and thoracic region symptoms to myofascial pain, but felt that Claimant consistently described as well a C6-7 radicular pattern to the pain in her arms, hands and fingers.
7. Given the radicular nature of Claimant’s upper extremity symptoms, Dr. Magnadottir suggested cervical disc fusion surgery as an appropriate treatment option. She stressed, however, that such a surgery likely would not have a significant impact on the myofascial-type pain Claimant was experiencing in her neck, upper back and shoulders. It might help in that regard, but there could be no guarantees.
8. Dr. Magnadottir acknowledged that it is difficult to predict how positive the surgical outcome will be in situations where a patient’s symptoms are a mixture of both radicular and myofascial pain. Nevertheless, she expressed confidence that the surgery would alleviate the radiating pain and paresthesias in Claimant’s arms, hands and fingers. Dr. Magnadottir testified that the surgery in question is one of the more common ones she performs, that she is very selective in choosing the patients to whom she offers it, and that it would be very unusual for a patient not to derive at least some benefit from it.
9. Dr. Magnadottir has reevaluated Claimant on two occasions since her initial evaluation in February 2009. She continues to believe that Claimant is an appropriate surgical candidate.
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10. Defendant’s medical expert, Dr. Ahn, disagrees. Dr. Ahn, an orthopedic surgeon, conducted an independent medical evaluation in April 2009. Noting that Claimant’s MRI revealed disc degeneration at four levels in her cervical spine, Dr. Ahn predicted that Dr. Magnadottir’s proposed fusion surgery, which would address only two levels, was unlikely to be successful. Dr. Ahn also questioned whether the proposed surgery would meet Claimant’s expectations. According to him, Claimant reported that her neck symptoms were as problematic as her arm symptoms. In Dr. Ahn’s opinion, surgery might help address the latter, but would be ineffective at relieving the former.
11. Both Dr. Magnadottir and Dr. Ahn testified that the cervical epidural steroid injection that Dr. McLellan proposed in October 2008 might be a viable treatment option for Claimant. According to Dr. Magnadottir, injections are not a pre-requisite to surgery, but merely another option for her to consider. In Dr. Ahn’s opinion, such treatments as injections, chronic pain management and/or behavioral therapy pose less of a risk and present a greater likelihood of success than surgery does.
12. Claimant testified credibly at the formal hearing that she understands that the primary purpose of Dr. Magnadottir’s proposed surgery is to address her radicular symptoms, not her myofascial pain. In that regard, her expectations appear to be realistic. Claimant testified that she experiences constant pain in her upper extremities and shooting pains down her arms and into her hands and fingers. Her fingers are consistently numb, and she often drops things while holding them. On a typical day she can engage in mild activity for approximately two and a half hours, after which she starts to lose function in her hands. She experiences frequent muscle spasms in her neck, forearms, hands and fingers. Sometimes her hands freeze up and she cannot use them at all.
13. Claimant expressed hope that Dr. Magnadottir’s proposed surgery will alleviate her symptoms enough so that she can both increase her level of functioning and reduce her reliance on narcotic medications for pain relief. This is a critical consideration for someone in her profession, as for the most part registered nurses are precluded from providing direct patient care if they are taking narcotic medications.
14. In their written reports, both Dr. Magnadottir and Dr. Ahn concluded that Claimant’s current symptoms most likely represent an exacerbation of her underlying degenerative disc disease causally related to her July 2008 work injury. Dr. Magnadottir reaffirmed this opinion in her formal hearing testimony. In his testimony, Dr. Ahn stated that Claimant’s current symptoms were driven by a clearly degenerative condition that was ongoing, and in that sense the proposed surgery was not causally related.
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CONCLUSIONS OF LAW:
1. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
2. The treatment dispute at issue here is straightforward. Claimant’s treating physician, Dr. Magnadottir, believes that cervical disc fusion surgery likely will alleviate at least some of Claimant’s most troublesome symptoms, and that therefore it is medically appropriate to proceed. Defendant’s medical expert, Dr. Ahn, believes that disc fusion surgery likely will be unsuccessful, and that therefore it should not be attempted.
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).
4. Balancing all of these factors, I conclude that Dr. Magnadottir’s opinion is the most persuasive. Dr. Magnadottir credibly described both the anticipated benefits of the proposed disc fusion surgery and its expected limitations. She is well experienced in surgeries of this nature and utilized a thoughtful selection process in determining that Claimant was an appropriate candidate. I accept as truthful her testimony that she would not offer Claimant a surgical option if she were not reasonably confident of a successful outcome.
5. Equally important, Claimant credibly testified that she understood which symptoms the surgery was designed to address, and which ones it likely would not alleviate. Claimant also credibly articulated the impact her current symptoms have had on her ability to function, both personally and professionally. The impact has been significant, and Claimant deserves the opportunity to improve her situation by undergoing the surgery that her treating physician has offered.
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6. Although I am mindful of Dr. Ahn’s misgivings, in the end I am unconvinced by his opinion. Certainly the proposed surgery will not cure all of Claimant’s symptoms, but that does not render it an unreasonable treatment option. Indeed, the same might be said for the treatment options Dr. Ahn identified as well – injections, chronic pain management and/or behavioral therapy. The discretion I wield under the statute is limited to determining whether a treatment is “reasonable” under the circumstances. It does not necessarily extend to mandating which among a variety of reasonable treatment options a claimant might choose.
7. Nor do I accept Dr. Ahn’s testimony that the proposed surgery is causally related to Claimant’s underlying degenerative disc disease rather than to her July 2008 work injury. Both Dr. Ahn and Dr. Magnadottir acknowledged that Claimant’s underlying condition had been exacerbated by her work injury. That work injury precipitated a progression of worsening symptoms, which has led directly to the current surgical treatment recommendation.
8. I conclude, therefore, that Dr. Magnadottir’s proposed cervical disc fusion surgery constitutes reasonable and necessary treatment causally related to Claimant’s July 2008 work injury.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $1,398.08 and attorney fees totaling $8,600.85. An award of costs to a prevailing claimant is mandatory under the statute. Of the costs submitted, however, $1,125.00 represents Dr. Magnadottir’s charge for 1.5 hours of formal hearing testimony, an hourly rate of $750.00. According to Workers’ Compensation Rule 40.110, such charges are limited to $300.00 per hour. The maximum allowable charge for Dr. Magnadottir’s testimony, therefore, is $450.00. After deducting the excess charge, Claimant is awarded $723.08 in allowable costs. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All medical costs associated with the proposed cervical disc fusion surgery, including but not limited to hospital and physician charges and reasonable follow-up care;
2. Costs totaling $723.08 and attorney fees totaling $8,600.85.
DATED at Montpelier, Vermont this 21st day of April 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

J. K. v. Joe Knoff Illuminating (July 7, 2006)

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J. K. v. Joe Knoff Illuminating (July 7, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. K. Opinion No. 28-06WC
By: Margaret A. Mangan
v. Hearing Officer
Joe Knoff Illuminating For: Thomas W. Douse
Acting Commissioner
State File No. P-16619 (II)
APPEARANCES:
Josef J. Knoff, pro se, Claimant
William J. Blake, Esq., for the Defendant
ISSUE:
Whether the cervical spine surgery Dr. Phillips proposes to treat Claimant is causally related to employment with Josef Knoff Illuminating.
EXHIBITS:
Claimant:
A. Dr. Phillips’s opinion letter (February 13, 2006)
B. Dr. Wepsic’s opinion letter (September 18, 2000)
C. Cervical Spine x-ray report (February 16, 2000)
D. Northwestern Medical Center Pain Clinic Report (July 28, 2000)
E. MRI Cervical Spine report (February 18, 2000)
F. Dr. Levy’s opinion letter (December 18, 2005)
G. Dr. Levy’s letter (December 27, 2005)
H. Dr. Levy’s letter (February 27, 2006)
I. Transcript of deposition of Dr. Levy (April 14, 2006)
J. Dr. Archambault’s report of office visit (April 11, 2000)
K. Dr. Roomet’s letter (May 12, 2000)
L. Dr. Penar’s office note (June 5, 2000)
M. Dr. Johansson’s Independent Medical Examination (November 14, 2000)
N. MRI Cervical Spine report (November 14, 2000)
O. Dr. Wepsic’s report on cervical spine x-ray and MRI (December 8, 2000)
P. Dr. Wepsic’s letter (December 8, 2000)
Q. Vocational Rehabilitation Plan Amendment for self employment (unsigned, undated)
R. Memorandum from WC Specialist (March 20, 2001)
S. Department policy re: TTD when Disability not continuous (August 14, 2000)
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T. Dr. Johansson’s impairment rating (February 10, 2001)
U. Dr. Johansson’s progress note (May 27, 2003)
V. Notice of Reliance Insurance Company’s liquidation and referral to State Guarantee Fund
W. Dr. Manchester’s office note (May 20, 2003)
X. Vermont Center for Occupational Rehabilitation note (June 5, 2003)
Y. Dr. Wing’s Independent Medical Examination Report (July 16, 2003)
Z. Dr. Manchester’s November 3, 2003 note
AA. Dr. Manchester’s November 3, 2003 letter
BB. Attorney William J. Blake’s Notice of Appearance (July 6, 2004)
CC. Dr. Backus’s Independent Medical Examination (July 26, 2004)
DD. Claims Examiner Reid’s letter to Claimant regarding preauthorization
EE. Meridian Medical fax re: acupuncture (June 7, 2005)
FF. Office note of Dr. Johansson (March 31, 2005)
GG. Office note of Dr. Johansson (April 14, 2005)
HH. Dr. Phillips’s report (July 7, 2005)
II. MRI Cervical Spine (September 9, 2005)
JJ. Dr. Phillips’s report (September 13, 2005)
KK. Fax from James Reid to Attorney Blake (October 12, 2005)
Defendant:
1. Medical Records 2000 to 2006
2. Curriculum vitae of Richard L. Levy, M.D.
CLAIM:
Payment for a C7 foraminotomy and all medical and rehabilitation costs associated with the proposed surgery by Neurosurgeon Joseph M. Phillips, M.D., Ph.D.
FINDINGS OF FACT:
1. Claimant was a self-employed owner and manager of Illuminating Consulting Service and Supply (ICSS), also known as Josef Knoff Illuminating, for fifteen years.
2. Many of Claimant’s duties involved overhead work and climbing while retrofitting lighting fixtures, work he did for fifteen years.
3. Before February of 2000, Claimant did not have cervical symptoms of any kind.
4. On February 1, 2000, Claimant suffered neck pain while working at an ICSS job site. Diagnostic tests revealed degenerative disc disease as well as a C5-6 herniated disc and suggestion of a disc at C6-7.
5. A cervical spine x-ray taken on February 16, 2000 revealed marked to severe degenerative changes with disc space narrowing and osteophyte formation.
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6. Dr. Stewart Manchester wrote a letter to the insurance adjuster on February 17, 2000, stating that Claimant’s right-sided neck and arm pain was caused by overhead work with his head extended.
7. A February 18, 2000 MRI revealed a herniated disc at C5-6 and a suggestion of a small central to left C6-7 disc.
8. Claimant’s complaints increased after he removed snow from his roof in February 2000, as reflected in Dr. Jacques Archambault’s note of February 22, 2000.
9. By March of 2000 Dr. Archambault noted that Claimant began to have symptoms on his left side. The doctor also noted that Claimant had arthritic changes at C5-6 and C6-7 as well as a bulge on the right at C5-6 and on the left at C6-7.
10. In May of 2000, Dr. Andres Roomet interpreted clinical and electrophysiologic data as showing that Claimant had minimal C7 radiculitis, among other problems, although Claimant had no deficits.
11. In June of 2000, Claimant was seen by Dr. Paul Penar who noted degenerative changes at C4 through C7 and the presence of a disc herniation at C5-6. Claimant declined Dr. Penar’s offer to operate at C5-6 because of potential risks.
12. In July 2000, Dr. William Roberts at the Northwestern Medical Center Pain Clinic noted that Claimant had a “significant symptom complex related to a C6-7 cervical spine disc herniation.”
13. A November 2000 MRI was first read as revealing a C5-6 herniation, but not one at C6-7. However, on December 8, 2000 Dr. James Wepsic interpreted that study as one revealing a disc complex at C5-6 and a “smaller protrusion at C6-7 to the left of midline.” In a letter to a medical case manager, Dr. Wepsic described, “moderate compression on the left at C6-7.” At that time Claimant had left sided symptoms.
14. Claimant treated at Green Mountain Physical and Occupational Medicine for pain relief. In February 2001, Dr. John Johansson placed Claimant at medical end result, a conclusion that Claimant did not dispute.
15. Claimant sold ICSS and embarked on an e-commerce business, MyNaturals.com in 2002 or 2003.
16. On May 20, 2003, Claimant saw Dr. Manchester who described an “exacerbation of his previous Worker’s Compensation injury.”
17. In 2003, when most of his work was at a computer, Claimant underwent a new course of treatment, including physical therapy, massage therapy, and pool therapy.
18. On July 16, 2003, Dr. Daniel Wing at Occupational Health and Rehabilitation, performed an Independent Medical Examination. Dr. Wing related Claimant’s neck pain and bilateral arm weakness to his 2000 work related injury and suggested that
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foraminotomy may be indicated. Finally, Dr. Wing recommended that Claimant’s workstation be evaluated.
19. On July 26, 2004, Dr. Verne Backus performed an Independent Medical Examination. Although Dr. Backus could not find that Claimant’s computer work aggravated his work-related condition, he opined that such a conclusion might be made if further diagnostics show objective changes.
20. In March and April of 2005, Claimant participated in a three-week program with Dr. Johansson for cervical disc syndrome with left arm pain. Because Claimant did not improve during that program, Dr. Johansson recommended a neurosurgical consult.
21. In the summer of 2005, Claimant began treating with Dr. Joseph Phillips, neurosurgeon. Dr. Phillips noted that most of Claimant’s symptoms were in the left shoulder, radiating to the arm, whereas some time before, most symptoms were on the right side.
22. A September 2005 MRI revealed that the C5-6 herniated disc had resolved. While no herniation could be seen at C6-7, the foramen had narrowed due to spurring.
23. Dr. Phillips offered to perform a C7 foraminotomy to treat the left sided radicular complaints, surgery that is the subject of this dispute.
24. Dr. Phillips concluded that the osteophytes causing Claimant’s symptoms now are the result of the injury he sustained in 2000. He supported his opinion with Claimant’s records and history showing a C6-7 disc herniation with protrusion to the left, seen by Dr. Wepsic, which set in motion a process that resulted in foraminal stenosis, creating Claimant’s current clinical picture. He explained that the development of the spurring “is nature’s way of trying to achieve some stability and prohibition of movement at that level.”
25. The defense asked neurologist and diagnostician, Dr. Richard Levy, to review Claimant’s medical records and offer an opinion regarding any causal link between Claimant’s work at ICSS and the proposed surgery. Dr. Levy found no evidence to support that causal link, although he agreed that overhead work with hyperextension of the neck involves the cervical vertebrae, particularly C5-6 and C6-7. He agreed that such overhead work could accelerate changes in the neck. Factors that contribute to narrowing in the spine include certain occupations. Overall, however, on the facts of this case, Dr. Levy concluded that Claimant’s current problems are the result of the natural progression of cervical spondylosis, not to a work-related injury or to any other single inciting event.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
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2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference form the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. Under the Workers’ Compensation Act, the employer must furnish “reasonable surgical, medical and nursing services in an injured employee,” 21 V.S.A. § 640(a), if that treatment is causally related to a work-related injury.
4. In considering conflicting expert opinions, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all relevant records. Miller v. Cornwall Orchards, Op. No. WC 20-97 (Aug. 4, 1997); Gardner v. Grand Union Op. No. 24-97WC (Aug. 22, 1997).
5. In this case, there is no real advantage as the treating physician. Dr. Phillips, as Claimant’s surgeon, treated him for a short time. Dr. Levy only examined him once. Both experts have equal qualifications in the aspects of neurology: Dr. Phillips as a neurosurgeon, Dr. Levy as a neurologist. Both reviewed relevant records. The crucial difference lies in the objective support for the opinion as to whether or not the surgery was causally related to the 2000 work injury. The documents and opinion letters of Dr. Manchester, Dr. Archambault, Dr. Penar, Dr. Roberts, Dr. Wing, and especially Dr. Wepsic all support causation for Claimant’s surgery. These physicians were not subject to cross-examination. However, they provided a basis for Dr. Phillips’s opinion that the osteophyte formation was the product of a herniated disc. The moderate compression on the left at C6-7, a finding by Dr. Wepsic, had most likely set the osteophyte formation in motion. Also, Dr. Backus opined that this condition was caused by work, but he could not say, without conducting further diagnostics, that Claimant’s computer work was aggravated by this injury. Overall, Dr. Phillips’s opinion was amply supported by the findings of other surgeons, thus outweighing the objective support for Dr. Levy’s opinion against causation. Taken all of these factors into consideration, the advantage of the third factor weighs heavily in Claimant’s favor. Therefore, this is a compensable claim.
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ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay for Claimant’s C7 foraminotomy and all medical and rehabilitation costs associated with the proposed surgery.
Dated at Montpelier, Vermont this ____ day of July 2006.
________________________________
Thomas W. Douse
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

M. B. v. Price Chopper (May 8, 2007)

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

STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 13-07WC
M. B. By: Phyllis Severance Phillips, Esq.
Hearing Officer
v.
For: Patricia Moulton Powden
Price Chopper Commissioner
State File No. L-03387
OPINION AND ORDER
Hearing held in Montpelier on November 8, 2006
APPEARANCES:
Thomas Bixby, Esq. for Claimant
Keith Kasper, Esq. and David Berman, Esq. for Defendant
ISSUES PRESENTED:
1. Whether Claimant’s neck and/or right shoulder symptoms are causally related to her compensable August 1, 1997 low back injury;
2. Whether Claimant is entitled to temporary disability benefits retroactive to May 14, 2006: and
3. Whether the medical treatment proposed by Claimant’s treating chiropractor is reasonably necessary and causally related to her compensable August 1, 1997 injury.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records (CD format)
Joint Exhibit II: Medical Records supplement
Claimant’s Exhibits:
Claimant’s Exhibit 2: Form 22 Agreement for Permanent Partial Disability Compensation
Claimant’s Exhibit 4: Claimant’s Paycheck for week ending 1/15/06 and Form 21 Agreement for Temporary Total Disability Compensation
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CLAIM:
Temporary total disability benefits under 21 V.S.A. §642;
Medical benefits under 21 V.S.A. §640(a);
Attorney’s fees and costs under 21 V.S.A. §678.
FINDINGS OF FACT:
1. Claimant has worked as a cashier for Defendant since 1995. On August 1, 1997 she suffered a low back strain when she “turned just right” while scanning a heavy item. Defendant accepted the injury as compensable and paid benefits accordingly.
2. Prior to this date, Claimant had never suffered any injuries to her low back. She elected to treat with Brenda Davis, D.C., a chiropractor. Claimant experienced stiffness while standing and her left leg was sore, but she was able to continue working.
3. On August 19, 1997 Claimant tripped while going up the stairs at work. She caught her fall by reaching for the railing, but in doing so bent her right hand and forearm back. She was diagnosed with a right forearm strain/sprain, which appeared to resolve fairly quickly.
4. Claimant treated conservatively for her low back strain. Dr. Davis prescribed a lumbar support and recommended that she not lift heavy objects at work. Radiological studies conducted in December 1997 showed a central herniation at L4-5 but with no nerve root encroachment and therefore questionable clinical significance.
5. In February 1998 Claimant underwent a course of physical therapy with Julie Emond, R.P.T. Ms. Emond reported that Claimant presented with symptoms consistent with her diagnosis of low back strain with herniation at L4-5 as well as weakness in her trunk and lower extremities due to disuse. Claimant made good progress with both physical therapy and home exercise. Upon her discharge from therapy in April 1998 Ms. Emond noted that there had been good improvement, although some symptoms did remain.
6. Neither Dr. Davis nor Julie Emond noted any pain, discomfort, reduced range of motion or other symptoms in Claimant’s neck or right shoulder related either to the August 1, 1997 work injury or to the August 19, 1997 fall on the stairs.
7. In June 1998 Claimant’s low back pain recurred and she returned to Dr. Davis for treatment. As a result of this recurrence, Claimant was temporarily disabled from working from June 18, 1998 until November 2, 1998.
8. Dr. Davis’ treatment notes during this time reflect that Claimant experienced muscle spasms in her lumbar, dorsal and cervical spine. This is the first mention of any symptoms in Claimant’s neck and/or shoulders.
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9. Claimant also underwent another course of physical therapy with Ms. Emond during this time. Ms. Emond noted pain in the central lower back area as well as aching in the legs, arms and shoulder blades.
10. In October 1998 Defendant referred Claimant to Jon Thatcher, M.D. for a second opinion regarding her chronic low back pain. Dr. Thatcher diagnosed chronic low back pain presumably from degenerative L4-5 discs, or perhaps chronic muscle injury. For treatment, he advised Claimant to continue her home exercise program and also prescribed a lumbo-sacral corset for her to wear if necessary. Dr. Thatcher released Claimant to return to work with lifting restrictions. Last, he determined that Claimant had reached an end medical result and rated her with a 5% whole person permanent impairment.
11. Dr. Thatcher’s report made no mention of any shoulder or neck symptoms, either subjectively reported or objectively observed.
12. In February 1999 the parties executed a Form 22 Agreement for Permanent Partial Disability Compensation and Defendant paid permanency benefits in accordance with Dr. Thatcher’s 5% impairment rating.
13. Claimant did reasonably well with her return to work. Her symptoms waxed and waned, and she often experienced increased pain at the end of her shift, particularly on busy days. Presumably these symptoms were not severe enough to warrant medical attention. Claimant did not treat for any low back, leg, upper extremity or neck pain from December 1998 until February 2000.
14. On February 18, 2000 Claimant returned to Dr. Davis for chiropractic treatment relating to pain in her back, neck, legs and arms. Dr. Davis noted that Claimant gradually had stopped doing her home exercise program, and that her arms ached, especially in the morning. On examination, Dr. Davis found that Claimant was very stiff and tender in her neck and anterior shoulders.
15. Dr. Davis did not provide any ongoing treatment beyond the single visit on February 18th, but she did issue a written recommendation to Defendant that Claimant have a bagger to assist her for the next month, and thereafter “as often as possible.” In June, Dr. Davis supplemented this recommendation, advising that Claimant should alternate sitting and standing at the cash register.
16. There are no records of any medical treatment for Claimant’s low back, shoulder or neck from February 2000 until January 2002. In January 2002 Claimant began another course of physical therapy with Julie Emond, R.P.T., apparently at the referral of Tony Blofson, M.D. Ms. Emond reported that Claimant presented with a two-month history of increased cervical pain and limitation “without specific cause.” According to Ms. Emond, x-rays taken in November 2001 revealed degenerative disc disease of the cervical area. Ms. Emond noted that Claimant exhibited poor postural alignment and decreased range of motion in her neck and right shoulder. She was tender and tight throughout her right upper extremity.
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17. Ms. Emond reported in her January 11, 2002 treatment note that Claimant “feels that working at both jobs which requires increased arm movement has been part of the aggravation.” I find that the second job to which this note refers most likely was the part-time work Claimant performed for a time at a local dry cleaner. During this time Claimant worked 5 days per week for Defendant, and the other 2 days per week at the dry cleaner. Her duties there included marking, ironing and organizing shirts, all activities that would have required increased use of her right arm.
18. Claimant improved with physical therapy. Her pain decreased, her shoulder range of motion returned to normal and she was able to perform activities of daily living without difficulty. Claimant was discharged from physical therapy in February 2002. According to Ms. Emond, her prognosis for maintenance of improvements was good so long as she continued with her home exercises and self-care program.
19. Claimant did not treat for low back, neck or shoulder pain from February 2002 until May 2003. In February 2003 she presumably was examined by Denise Paasche, M.D., who issued a prescription pad note recommending that “due to a diagnosis of degenerative disc disease in her neck” Claimant should have a bagger to assist her with heavy lifting at work.
20. In May 2003 Claimant resumed chiropractic treatment with Dr. Davis. Dr. Davis reiterated her prior recommendations as to necessary workplace accommodations – that Claimant be provided with both a bagger to assist with heavy lifting and a stool so that she could alternate sitting and standing as necessary.
21. Claimant treated with Dr. Davis until October 2003, although the records do not reflect specifically what area(s) of pain, reduced range of motion or other symptoms were addressed.
22. In July 2004, at Defendant’s request, Claimant underwent an independent medical evaluation with Terrance Ryan, D.C. Dr. Ryan noted Claimant’s complaints of low back pain with occasional spasms and mild numbness into the tops of her legs, but did not mention any complaints of pain, limitation or reduced range of motion in Claimant’s neck, shoulder or upper extremities. Dr. Ryan diagnosed chronic recurrent L4-5 discopathy and rated Claimant with an 8% whole person permanent impairment referable to her lumbar spine. As for job accommodations, Dr. Ryan recommended that Claimant avoid heavy lifting and repetitive bending or twisting. Last, in an addendum to his initial report, Dr. Ryan advised that further treatment should focus on an active spinal stabilization program, either supervised or at home, to reduce the need for more passive, in-office treatments.
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23. On her attorney’s advice, in November 2004 Claimant obtained another impairment rating, this time performed by John Chard, M.D., an orthopedic surgeon. Dr. Chard’s report was consistent with Dr. Ryan’s, particularly in that there was no mention of any complaints of pain, reduced range of motion or other symptoms in Claimant’s neck, shoulders or upper extremities. Dr. Chard diagnosed a midline herniation of the L4-5 disc and concurred with Dr. Ryan’s 8% permanent impairment rating. Dr. Chard recommended against further chiropractic treatment, as it did not appear to be helpful. Instead, he suggested that Claimant might try pharmaceutical medications for pain relief.
24. Claimant elected not to follow Dr. Chard’s treatment recommendations, and opted instead for further chiropractic care, this time with Elizabeth Gillespie, D.C. In sharp contrast to the complaints she reported to both Dr. Ryan and Dr. Chard, the pain diagram Claimant completed upon her initial evaluation with Dr. Gillespie, just 2 weeks prior to Dr. Chard’s examination, reflected her complaints of moderately intense pain from her mid-back down through both lower extremities, as well as pain in her neck, shoulders and forearms.
25. Claimant has treated regularly with Dr. Gillespie from November 2004 until the present time. Her complaints have waxed and waned, and Dr. Gillespie’s treatments – manipulations, soft tissue massage, ultrasound and other passive modalities – have been directed at symptoms in her low back, legs, neck and right shoulder. In Dr. Gillespie’s opinion, all of Claimant’s symptoms are directly related to her August 1, 1997 work injury. According to Dr. Gillespie, the disc herniation in Claimant’s lower back causes pressure on her sciatic nerve. To relieve the pressure, Claimant has altered her posture by leaning forward. This altered postural pattern has caused increased stress to her neck and shoulders. Cumulative trauma related to the repetitive arm movements necessitated by Claimant’s work as a cashier also has contributed. Over time, bone spurs have formed in Claimant’s neck.
26. On January 13, 2006 Claimant reported to Dr. Gillespie that she was going to see her medical doctor because she was unable to raise her right arm. On January 14, 2006 Claimant presented to the Brattleboro Memorial Hospital Emergency Room with a chief complaint of right shoulder pain. She was tearful and extremely anxious. On examination, both paraspinal and trapezius muscle spasms were noted, as well as decreased range of motion due to pain. She was prescribed valium for pain and advised to follow up with her physician.
27. On January 16, 2006 Claimant followed up with Dr. Blofson. Dr. Blofson noted low back pain and both weakness and reduced range of motion in the right shoulder. He reported that Claimant advised that her pain was not changed by working. Dr. Blofson stated that although Claimant ascribed her shoulder pain to her long-standing chronic low back problem, he disagreed with that assessment. Dr. Blofson determined that Claimant was unable to work due to her right shoulder problem. He advised her to stop chiropractic treatment and referred her to Dr. Kinley for an orthopedic assessment of her right shoulder.
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28. Donald Kinley, M.D., an orthopedist, examined Claimant on January 17, 2006. He diagnosed right shoulder calcific tendonitis. Dr. Kinley treated Claimant with a corticosteroid injection. Immediately thereafter Claimant reported 90% pain relief and was able to both raise her arm overhead and rotate it as well. Dr. Kinley advised that Claimant would be able to return to work within the next day or two.
29. At her attorney’s suggestion, Dr. Chard evaluated Claimant on February 13, 2006 specifically for the purpose of determining whether her shoulder problems were causally related to her August 1, 1997 low back injury. Dr. Chard reviewed the available medical records and also examined Claimant. Having done so, he found no evidence that her current problem, right shoulder calcific tendonitis, was in any way related to her 1997 low back injury.
30. In March 2006 Claimant underwent another orthopedic evaluation, this time at Dr. Blofson’s referral, with Elizabeth McLarney, M.D. Dr. McLarney’s diagnosis, consistent with Drs. Kinley and Chard, was right shoulder calcific tendonitis. Dr. McLarney noted that Claimant had some radicular pain, particularly in her right arm, but could not determine whether this represented cervical radiculopathy or not.
31. At Defendant’s request, on April 3, 2006 Claimant underwent an independent medical evaluation with George White, M.D., an occupational medicine specialist. Dr. White concurred with the diagnosis of right shoulder calcific tendonitis. He stated that this was a separate problem, unrelated to Claimant’s low back pain or lumbar disc disease. In Dr. White’s opinion, although it is common for patients who suffer from degenerative disc disease in their lower backs to suffer from a similar degenerative process in their upper backs and/or necks as well, one does not in any way cause the other.
32. Dr. White did not observe any symptoms consistent with cervical radiculopathy in his examination of Claimant. He admitted, however, that the focus of his examination was on Claimant’s lumbar spine, not her cervical spine. At the formal hearing, Dr. White testified that Claimant did not exhibit or complain of the muscle weakness or pattern of sensory loss that most commonly is associated with cervical radiculopathy.
33. As to treatment of the low back, Dr. White strongly urged consideration of a multidisciplinary rehabilitation program, particularly one with a strong educational component, as he found that Claimant lacked understanding as to the nature of her low back condition and the symptoms it might (and might not) cause. Dr. White’s treatment approach would emphasize active rather than passive modalities, and would include strength training, walking and aerobic conditioning in addition to biofeedback and pain management strategies. Dr. White strongly advised against any type of cervical spine manipulation for fear that it might cause further injury.
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34. Dr. Gillespie’s treatment approach stands in sharp contrast to Dr. White’s recommendations. In addition to the passive modalities she has been providing since 2004 – chiropractic manipulations, soft tissue massage and ultrasound – most recently Dr. Gillespie has recommended a course of treatment with a spinal decompression unit. The goal of this treatment is to enlarge the disc spaces and relieve nerve pressure, thereby reducing the extent of any herniations and allowing the outer ligaments to be strengthened. At the time of the formal hearing, Dr. Gillespie had been using the unit on some of her patients for more than three months, and had observed excellent results.
35. It is not clear to what extent treatment with the decompression unit proposed by Dr. Gillespie is effective on patients whose pain is caused by bone spurs rather than those who suffer from disc herniation and/or nerve root impingement.
36. Drs. Gillespie and White also disagree as to Claimant’s current work capacity. Consistent with his belief that the best way to treat chronic low back pain is to encourage more rather than less activity, Dr. White has recommended that Claimant return to work in a light duty capacity, with restrictions against heavy lifting, bending or twisting. In contrast, Dr. Gillespie maintains that due to the combination of symptoms in her lower back, neck, arms and shoulders Claimant is unable to work at all.
37. In June 2006 Claimant underwent both cervical and lumbar spine MRI evaluations. The cervical spine MRI revealed degenerative discs and bone spurs at both C4-5 and C5-6. The lumbar spine MRI showed a central disc bulge at L4-5 and a rupture of the annulus fibrosis, but with no evidence of any significant impingement on the thecal sac or exiting nerve roots.
38. It is unclear to what extent Defendant has or has not complied with the various work restrictions and accommodations suggested by Claimant’s treatment providers since her August 1, 1997 injury. On several occasions Dr. Davis accused Defendant of aggravating Claimant’s condition by failing to provide necessary accommodations. Claimant admitted, however, that on many occasions she chose not to ask for accommodations for fear of upsetting her manager.
39. In May 2006 Defendant filed a Form 27 Notice of Intention to Discontinue Payments. Defendant argued that Claimant had failed to accept modified-duty work in accordance with Dr. White’s IME recommendations, thus terminating her right to ongoing temporary disability benefits. Defendant further argued, again on the basis of Dr. White’s report, that Claimant was not entitled to medical benefits for treatment of her right shoulder as that condition was not related causally to her compensable low back injury. The Department approved the Form 27 on May 16, 2006.
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40. That Claimant is a poor historian and that she is notably inconsistent with respect to the nature and extent of her symptoms is well documented in the medical records. At times she recalled that she first injured her shoulder when she tripped going up the stairs at work on August 19, 1997, although the medical records reflect only a minor forearm strain. At times she reported debilitating neck and shoulder pain, and then only days later failed to report any pain at all in these areas. At the formal hearing she testified to a specific event at work – lifting and then dropping a gallon container of milk – that caused her shoulder to become frozen on January 14, 2006. There is no such history reported in the medical records, however, and in fact Claimant already had advised her chiropractor on the day before that she planned to see her medical doctor because she could not lift her arm. These discrepancies make it difficult to determine when various symptoms arose and to what extent, if any, they were related to work activities.
CONCLUSIONS OF LAW:
Compensability of Neck and/or Shoulder Injury
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 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 probably 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 trier of fact may not speculate as to an obscure injury which is beyond the ken of laymen. Laird v. State Highway Department, 110 Vt. 981 (1938). Where the Claimant’s injury is obscure, and a layman could have no well grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for compensability. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979); Jaquish v. Bechtel Corp., Opinion No. 30-92WC (Dec. 29, 1992).
3. In this case, Claimant has alleged a variety of possible work-related causes for her neck and/or right shoulder symptoms, including (a) a traumatic injury caused when she tripped going up the stairs at work on August 19, 1997; (b) a traumatic injury caused when she dropped a gallon jug of milk at work on January 14, 2006; (c) cumulative trauma caused by the altered posture that resulted from her August 1, 1997 compensable low back injury; and/or (d) cumulative trauma caused by the repetitive arm movements involved in performing the job-related functions of a supermarket cashier.
4. As to the first possible cause, there is no evidence in any of the medical records to substantiate a neck or shoulder injury occurring on August 19, 1997. Dr. Davis was Claimant’s treating physician at the time, and her notes reflect only a minor forearm strain that resolved within a week’s time.
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5. As to the second possible cause, there is no medical evidence to connect Claimant’s neck and/or right shoulder injury to any specific incident occurring at work on January 14, 2006. In fact, Dr. Gillespie’s treatment notes reflect that Claimant was exhibiting signs of a frozen shoulder on the day before the alleged incident at work. The subsequent records relating to Claimant’s frozen shoulder, including those from the hospital emergency room and from Drs. Blofson, Kinley, Chard and Gillespie, make no mention of any incident at work involving a dropped gallon jug of milk. Without any such support in the medical records, Claimant’s account of this incident must be rejected as unreliable.
6. As to the possibility that cumulative trauma, related either to the August 1, 1997 low back injury or to her job as a cashier, has caused Claimant’s neck and/or shoulder injury, the expert medical opinions are conflicting. In these instances, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive, considering (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
7. In this case, a wide variety of medical practitioners have voiced opinions as to the cause of Claimant’s neck and shoulder pain. Some are chiropractors, some are orthopedists, some have examined Claimant only once and some have enjoyed a long-standing treatment relationship with her, some can be identified as her own experts and some are Defendant’s. With this array of expert opinions to consider, analyzing each of the above factors individually will yield no clear-cut result. Simply put, the key question is which expert medical opinion is the most credible?
8. I conclude that the most credible medical evidence establishes that Claimant suffers from calcific tendonitis in her right shoulder and degenerative disc disease in her neck. Both of these conditions are degenerative biochemical processes. They can be caused or aggravated by numerous factors, including aging, repetitive stress, altered posture or reduced activity. To puzzle out which of these factors are at play in Claimant’s case requires more than supposition or hypothesis. It requires close scrutiny and scientific examination of all of the available evidence.
9. Dr. Gillespie’s theory of causation does not withstand such scrutiny. There was no evidence that she ever visited Claimant at her work site, or that she performed any kind of functional analysis of Claimant’s cashiering job. Had she done so, her conclusion that Claimant’s neck and shoulder problems were caused by repetitive arm movements at work might have been persuasive. Without such evidence, they are just one of many possible hypotheses, not the most probable one.
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10. Dr. Gillespie’s theory that Claimant’s neck and shoulder problems are most likely the result of altered posture due to her low back injury is also unconvincing. It must be noted, first of all, that Dr. Gillespie stands alone in this opinion, Drs. Blofson, Kinley, Chard, McLarney and White all having concluded that Claimant’s neck and right shoulder complaints were unrelated to her low back injury. More importantly, there is no basis for concluding that the degeneration in Claimant’s neck and shoulders is most probably due to this cause as opposed to the myriad of other possible causes for degeneration to occur.
11. I conclude, therefore, that Claimant has not sustained her burden of proving that her neck and shoulder complaints were caused or aggravated either by her work for Defendant or by her compensable low back injury.
Temporary Total Disability
12. It is important to note that Claimant’s most recent period of disability, which began in January 2006, stemmed not from her low back injury, but from her frozen right shoulder. Given my conclusion that Claimant’s neck and right shoulder complaints are not compensable, the only way she can qualify for temporary disability benefits is if her current inability to work, whether total or partial, is due at least in part to her compensable low back injury.
13. I find Dr. White’s opinion as to work capacity to be more credible than Dr. Gillespie’s in this regard. Even according to Dr. Gillespie’s description, Claimant does not appear to be so debilitated as to be incapable of performing even the lightest duty work, so long as appropriate accommodations are provided and proper precautions against re-injury are taken. Should a formal functional capacities evaluation be necessary in order to determine how best to proceed in this regard, then Defendant is well-advised to take that step.
Appropriate Medical Treatment
14. Last, I must determine which is the most appropriate treatment path for Claimant’s chronic low back injury – the spinal decompression approach advocated by Dr. Gillespie, or the multidisciplinary rehabilitation program recommended by Dr. White.1
1 It is unclear from either the parties’ pre-hearing statements or their post-hearing briefs whether Defendant is contesting the efficacy of the proposed spinal decompression unit solely with respect to treatment of Claimant’s neck and/or shoulder symptoms or with respect to treating her compensable lower back injury as well. Dr. Gillespie testified at the formal hearing that she planned to use the unit to treat both the cervical and lumbar spine. Dr. White testified that a multidisciplinary rehabilitation program would be a more effective treatment for Claimant’s low back injury, and that it offered benefits for her neck and upper extremity complaints as well. Given the testimony presented as to the appropriate treatment for Claimant’s cervical spine complaints as well as her lumber spine injury, I find there is sufficient evidence from which to determine the extent to which the proposed spinal decompression treatment is likely to be efficacious in either area.
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15. Dr. Gillespie’s treatment plan is problematic in two respects. First, it centers on a spinal decompression unit that is new, experimental and largely untested. Although Dr. Gillespie testified to having witnessed largely positive results in the three months since she began using the unit, this is too short a time frame within which to evaluate fully the merits of such a treatment, and particularly whether it produces long-lasting or merely temporary relief of symptoms.
16. Secondly, to the extent that Dr. Gillespie’s treatment plan incorporates the same type of passive treatment modalities that Claimant has long been receiving, clearly these have proven ineffective in terms of controlling her pain or improving her functional capacities. Will adding the spinal decompression unit to this mix of passive modalities produce better results? From the evidence presented, I cannot so conclude.
17. I find that the multidisciplinary rehabilitation approach advocated by Dr. White is more likely to lead Claimant back to an active life and productive work. It incorporates such elements as active physical therapy, strengthening and aerobic conditioning. As such, its focus is similar to the physical therapy and home exercise programs Claimant underwent in the past, both of which proved effective in controlling her pain and maintaining her functional abilities.
18. In addition, by providing education as to the anatomical bases for Claimant’s symptoms as well as training in biofeedback and other pain management strategies, a multidisciplinary approach offers a more realistic way of dealing with the type of chronic pain from which Claimant suffers, whether the source of that pain is in her low back or in her neck or shoulders. As such, Dr. White’s approach is more likely to lead to functional restoration of Claimant’s “whole person.”
19. For these reasons, I find that the spinal decompression treatment program proposed by Dr. Gillespie does not constitute reasonably necessary treatment under 21 V.S.A. §640(a).
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ORDER:
1. Claimant’s claim for workers’ compensation benefits associated with her neck and/or right shoulder symptoms is DENIED;
2. Claimant’s claim for temporary total disability benefits retroactive to May 14, 2006 is DENIED;
3. Claimant’s claim for medical benefits in accordance with the treatment program proposed by Dr. Gillespie is DENIED;
4. Because Claimant has not prevailed, she is not entitled to an award of attorney’s fees or costs under 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of May 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Karl Brucker v. Ethan Allen Interiors, Inc. (August 31, 2011)

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

Karl Brucker v. Ethan Allen Interiors, Inc. (August 31, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Karl Brucker Opinion No. 24-11WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Ethan Allen Interiors, Inc. For: Anne M. Noonan
Commissioner
State File No. CC-51538
OPINION AND ORDER
APPEARANCES:
Patricia Turley, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUES PRESENTED:
1. Are Claimant’s lumbar, groin and thoracic injuries causally related to his August 3, 2010 work incident?
2. If so, to what workers’ compensation benefits is he entitled?
EXHIBITS
Claimant’s Exhibit 1: Medical records
Claimant’s Exhibit 2: Medical bills
Claimant’s Exhibit 3: Ethan Allen maintenance logs
Defendant’s Exhibit A: Prepco employment application, December 9, 2010
Defendant’s Exhibit B: Helen Gagnon, R.N., records
Defendant’s Exhibit C: Dan Kurzman handwritten notes, July 26, 2010
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant at its Beecher Falls, Vermont plant for approximately two years until December 2009, when Defendant closed that plant.
4. After the Beecher Falls plant closed, Claimant sought employment elsewhere. He submitted an application for work at Prepco, a medical manufacturing company located in Colebrook, N.H., where he lived. Claimant was not hired, as there were no openings. However, he did see the owners of the company from time to time around town.
5. Approximately two weeks after the Beecher Falls plant closed, Defendant’s human resources administrator, Dan Kurzman, contacted Claimant and offered to rehire him at Defendant’s Orleans, Vermont plant. Mr. Kurzman thought Claimant was a hard worker. Claimant accepted Defendant’s offer and began working at the Orleans plant in early January 2010. His duties consisted of maintenance and mechanical repair in all departments within the facility.
6. On July 26, 2010 Claimant and Mr. Kurzman met to discuss various issues related to Claimant’s job. Mr. Kurzman described the meeting as contentious. As he recalled it, Claimant asked to be laid off so that he could qualify for the grant-funded training and unemployment benefits that certain other employees were receiving. Claimant denied that he asked to be laid off. Instead, he recalled that the issues he discussed with Mr. Kurzman revolved around what he perceived to be a lack of appropriate training and safety equipment.
7. On August 3, 2010 Claimant was called on to repair a scissor lift. To do so, he needed first to transport it outside. For that, he needed a hardwood pallet.
8. After retrieving a pallet, Claimant had to push it down a long, narrow hallway. The pallet weighed forty pounds and was awkward to push. As Claimant was pushing the pallet, a co-employee accidentally pushed over another pallet, which was piled high with pieces of broken down cardboard. The falling cardboard speared into Claimant’s right armpit.
9. Claimant credibly testified that the force of the falling cardboard almost knocked the wind out of him and caused him to fall somewhat backwards in a twisting motion. A pile of debris broke his fall.
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10. Alan Vanier, a manager, was on the floor, about eight feet away from Claimant when the cardboard incident occurred. However, his view was obstructed. The pallet was piled 5 to 6 feet tall with cardboard, and therefore Mr. Vanier could not see any part of Claimant’s body from the upper waist down. For that reason, I find that his testimony regarding the mechanics of Claimant’s off-balance fall backwards is not reliable.
11. Mr. Vanier credibly testified that he saw Claimant wince when the cardboard struck him on the side, near his armpit. This corroborates Claimant’s testimony about the force of the cardboard’s impact and the resulting pain that it caused.
12. The pain Claimant experienced immediately after the incident was primarily restricted to his right rib cage. He testified credibly that he thought the force of the cardboard’s impact had broken one of his ribs. Claimant reported his injury to Defendant’s first responder, Tim Cota, that day.
13. After finishing his shift, Claimant returned home. He showed his bruised rib cage to his wife. Ms. Brucker testified credibly that:
• Claimant’s right rib cage area was swollen, red and had little welts;
• Claimant told her that he “kind of twisted or fell backwards” when the cardboard impacted him;
• Claimant had not engaged in any activities outside of work during that week that would have caused any injuries; and
• Claimant was a hard worker, who would not stay out of work by choice.
14. On August 4 and 5, 2010 Claimant went to work as usual. He thought he could “tough out” the pain in his rib cage. However, over those two days he developed an increasing amount of pain in his lower back and right groin area. Claimant testified that on August 5th, he went to see Defendant’s nurse, Helen Gagnon, because he felt he needed some medical help. I find this testimony to be credible.
15. In her record of Claimant’s August 5th visit, Ms. Gagnon noted that Claimant complained of both low back and right groin pain. She attempted to schedule an appointment for Claimant with Dr. Haas, an occupational medicine physician, but no openings were available. As an alternative, Claimant’s wife scheduled an appointment for him with Faye Memolo, a physician’s assistant at the Indian Stream Health Center, on the following day. Claimant had never treated with Ms. Memolo before.
16. Claimant presented to Ms. Memolo on August 6, 2010. He reported pain in his right hip, groin and lower back. Upon examination, Ms. Memolo noted muscle spasms in Claimant’s back. This was an objective finding that supported Claimant’s complaints. Ms. Memolo also noted that Claimant appeared to her to be in severe pain. He had difficulty sitting and exhibited very painful, labored movements. Ms. Memolo removed Claimant from work on August 6, 2010.
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17. Ms. Memolo’s treatment of Claimant was conservative at first. She prescribed a muscle relaxant, an anti-inflammatory and pain medications.
18. Claimant followed up with Ms. Memolo at one week intervals. At his second visit, he reported that his lower back was getting somewhat better, but that he still had right side groin pain. Once again, Ms. Memolo observed that Claimant was experiencing back spasms. She referred Claimant to physical therapy to treat what she diagnosed as a lumbar strain with radiculopathy and groin pain.
19. On his fourth visit to Ms. Memolo, on August 31, 2010 Claimant complained for the first time of thoracic (midback) pain that radiated around his chest. The pain was unrelenting and interrupted his sleep. Upon examination Ms. Memolo observed spasming of the paraspinal muscles on the left side of Claimant’s thoracic spine.
20. Diagnostic testing, including x-rays, CT scan and MRI, failed to reveal any acute bony injury or other abnormality attributable to Claimant’s injury in either his lumbar or thoracic spine.
21. Claimant last saw Ms. Memolo on October 13, 2010. He reported that he had improved greatly with physical therapy and had little pain. Ms. Memolo released him to return to work with no restrictions.
22. Shortly after Ms. Memolo released him, on October 18, 2010 Claimant began working for Prepco, the manufacturing company to which he previously had applied when he first was laid off from Defendant’s Beecher Falls plant.
Expert Medical Opinions as to Causation
23. Both parties presented expert medical testimony to the causal relationship, if any, between the August 3, 2010 incident and Claimant’s lumbar, groin and thoracic injuries. Ms. Memolo concluded that such a relationship existed. Dr. Backus concluded that Claimant suffered only a contusion to his right rib cage, which quickly resolved, and that his subsequent complaints of lumbar, groin and/or thoracic pain were unrelated.
(a) Faye Memolo, PA-C
24. Ms. Memolo received her Bachelor of Science degree from the University of New Hampshire in 1998 and then, after a two year course of study at the Notre Dame College, a master’s degree in Physician Assistant Sciences. During the two-year certification process, she engaged in twelve months of classroom and lab study and then twelve months of clinical training. Ms. Memolo has testified as an expert on injury causation in Social Security disability and workers’ compensation cases, as well as for insurance companies. During her six-year tenure at Indian Stream Health Clinic she saw numerous patients with back symptoms, both acute and chronic.
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25. Ms. Memolo credibly testified to the following:
• The fact that Claimant experienced severe pain in his lower back and right groin three days after his injury is consistent with how muscle pain develops;
• It is fairly typical for a person with muscle pain to suffer more pain as time elapses after an injury, with the most pain usually occurring on the third day;
• Claimant’s lumbar and groin pain were consistent with a twisting mechanism of injury.
26. Ms. Memolo credibly opined that Claimant’s low back and right groin injuries resulted from being thrown off balance when the pile of cardboard hit him on his right side and twisted him to the left. Even a minor twisting motion such as this can cause a lumbar and groin strain. I find this reasoning persuasive.
27. Ms. Memolo reasoned that after the initial injury Claimant altered his body carriage due to the pain in his lower back, groin and rib cage, thus causing him to develop pain in his thoracic spine as well. I find this reasoning to be persuasive.
(b) Verne Backus, M.D.
28. Dr. Backus is board certified in occupational medicine. He received his license to practice medicine in Vermont in 1985. His specialty focuses on workplace injuries.
29. Dr. Backus performed an independent medical evaluation of Claimant on August 27, 2010. As part of that examination, Dr. Backus reviewed Claimant’s medical records, interviewed Claimant and conducted a physical examination.
30. In Dr. Backus’ opinion, to a reasonable degree of medical certainty:
• Claimant suffered a contusion to his right rib cage as a result of the August 3, 2010 incident;
• There is no causal relationship between Claimant’s lumbar, thoracic and groin injuries and the August 3, 2010 incident;
• Claimant’s right rib cage contusion resolved within one month of the injury, with no permanent impairment resulting; and
• As of August 27, 2010 Claimant had a light duty work capacity.
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31. In reaching these conclusions Dr. Backus relied in large part on Mr. Vanier’s written statement as to the mechanism of Claimant’s injuries. He did not hear Mr. Vanier’s hearing testimony. Dr. Backus was unaware, therefore, that Mr. Vanier’s view of Claimant’s fall actually was obstructed, to the point where he could not have observed the twisting nature of Claimant’s off-balance fall. By his reliance on an eye witness account that I have found unreliable, the credibility of Dr. Backus’ causation opinion is significantly undermined.
32. Dr. Backus also relied on eye witness statements of people who did not testify at the formal hearing. He concluded that because these witnesses gave inconsistent accounts of how the incident occurred, the mechanism of injury could not have happened as Claimant described. I find this reasoning unpersuasive as well, not only because there is no way to judge the credibility of witnesses who do not testify, but also because I have found Claimant to be credible in his description of how the incident occurred.
33. Dr. Backus agreed that when impacted with the stack of cardboard, Claimant naturally would have moved away from the insult. He acknowledged that such a movement likely would have involved twisting. In this respect, his testimony lends support to Ms. Memolo’s theory of how Claimant’s injury occurred.
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 case is one of causation. Claimant asserts that his lumbar, thoracic and groin injuries were caused by the August 3, 2010 cardboard incident. Defendant argues that Claimant suffered only a minor contusion to his right rib cage as a result of that incident, and that his subsequent complaints of lumbar, thoracic and groin pain were either unrelated or fabricated.
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. Here I conclude that the first factor favors Ms. Memolo. She treated Claimant for his injuries from the outset and continued this treatment for ten weeks subsequently. She observed Claimant’s labored, painful movements the first time she examined him on August 6, 2010. She also observed muscle spasms in his lower back, an objective finding that corroborates Claimant’s complaints of pain.
5. The second factor disfavors Dr. Backus. To the extent he relied upon Mr. Vanier’s statement as to the mechanics of Claimant’s injury, his opinion is seriously flawed. As Mr. Vanier himself acknowledged, his view of Claimant at the exact moment when the cardboard impacted him was obstructed, such that he could not see Claimant’s body below his upper waist. Mr. Vanier could not have observed the extent to which Claimant twisted away from the cardboard as it hit him, or exactly how he fell against the debris.
6. The third factor favors Ms. Memolo. She observed spasms in Claimant’s right lower back, which is an objective finding. She also observed spasms of Claimant’s left thoracic paraspinal muscles, another objective finding that corroborated Claimant’s complaint of thoracic pain.
7. While both Ms. Memolo and Dr. Backus conducted comprehensive evaluations, Ms. Memolo’s occurred during the course of multiple visits over a ten-week period. Dr. Backus had no such opportunity to observe Claimant’s symptoms over time. In this respect, I conclude that the fourth factor favors Ms. Memolo.
8. As to the final factor, I conclude that both Ms. Memolo and Dr. Backus are qualified to render opinions as to causation based upon their training and experience.
9. Considering all of the Geiger factors together, I conclude that Ms. Memolo’s opinions are more persuasive than Dr. Backus’.
10. I also find unpersuasive Defendant’s argument that Claimant fabricated the nature and extent of his injuries. Even accepting that Claimant was a somewhat disgruntled employee, I remain convinced that the accident happened as he said it did and that his symptoms developed as he reported them to Ms. Memolo.
11. I conclude that Claimant has sustained his burden of proving that his thoracic, lumbar and right groin injuries were caused by the August 3, 2010 incident with the cardboard and are therefore compensable.
12. Claimant was totally disabled from working after the August 3, 2010 incident from August 6, 2010 until October 13, 2010. He is entitled to temporary total disability benefits covering that period. In addition, Claimant is entitled to medical benefits covering all reasonable and necessary treatment causally related to his compensable injuries.
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 to submit his claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from August 6, 2010 through October 13, 2010, in accordance with 21 V.S.A. §642;
2. Interest on the above amount calculated in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonable and necessary medical services and supplies causally related to the treatment of Claimant’s thoracic, lumbar and right groin injuries, in accordance with 21 V.S.A. § 640;
4. Costs and attorneys fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 31st day of August 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.

Wendy Bush v. Kelly Services (March 25, 2011)

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

Wendy Bush v. Kelly Services (March 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Wendy Bush Opinion No. 07-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kelly Services
For: Anne M. Noonan
Commissioner
State File No. U-10436
OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 2, 2010
Record closed on January 21, 2011
APPEARANCES:
William Skiff, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Were Claimant’s March 2009 right ankle symptoms and subsequent surgical treatment causally related to her compensable January 2004 work injury?
EXHIBITS:
Claimant’s Exhibit 1: Deposition of Mark Charlson, M.D., November 19, 2010
Claimant’s Exhibit 2: Curriculum vitae, Mark Charlson, M.D.
Claimant’s Exhibit 3: Dr. Charlson diagrams
Claimant’s Exhibit 4: Retainer agreement
Claimant’s Exhibit 5: Various medical records (Charlson Deposition Exhibit 2)
Defendant’s Exhibit A: Video deposition of Kristen DeStigter, M.D., November 19,
2010 (with attached exhibits)
Defendant’s Exhibit B: Deposition of George White, M.D., November 16, 2010 (with
attached exhibits)
Defendant’s Exhibit C: Dr. Hernandez, problem list and chart notes (4 pages)
Defendant’s Exhibit D: Curriculum vitae, John Johansson, D.O.
CLAIM:
Workers’ compensation benefits causally related to treatment of Claimant’s right ankle condition since March 23, 2009
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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 2004 Ankle Injury
3. On January 13, 2004 Claimant was engaged in the course and scope of her employment for Defendant, on an assignment at the National Life Building in Montpelier. As she was exiting the building on that day via the vestibule steps, her foot slipped and landed hard on the floor, causing her to fall.
4. Later that day Claimant presented to the emergency room, complaining of severe pain and difficulty walking. The mechanism of injury was described in part as “hyper-dorsiflexion of [right] foot,” meaning that her foot had been bent sharply up towards her shin. Diagnostic studies, both x-ray and CT scan, revealed fractures of the anterior process of the calcaneus (the front of the heel bone) and of the navicular (a bone on top of the mid-foot), both non-displaced.
5. Also evident on the January 13, 2004 x-ray was an osteochondral defect, in layman’s terms a “bone chip,” adjacent to the talar dome of Claimant’s right foot. The talar dome is the top portion of the talus, the bone that connects the leg to the foot. By transferring the energy associated with bearing weight to the horizontal bones of the foot, the talus is the upright bone that allows us to walk.
6. A bone chip is a small piece of bone and cartilage that separates off from its mother bone. Once detached, it can either remain in its groove, like a golf divot, or it can become dislodged and move further into the joint space as a free fragment or loose body. It is not uncommon for a non-displaced bone chip to remain in its “divot” for years before it moves and becomes dislocated. This can occur spontaneously or as the result of even minor trauma, such as from stepping off a curb awkwardly. If the chip moves in such a way as to interfere with the weight-bearing surface of the joint, it can be quite painful, akin to walking with a rock in one’s shoe.
7. The bone chip revealed by the January 13, 2004 x-ray was well corticated, meaning that its surfaces were very smooth. This is an indication that the chip was old, and thus had not been caused by Claimant’s fall earlier in the day. That the x-ray did not reveal any joint effusion, or swelling, in the area is another indication that the chip preexisted the fall.
8. The most common cause of a bone chip in the talus is an ankle sprain, which typically involves a sudden twisting motion, either inward or outward. Although Claimant could
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not recall any specific times in the past when she might have twisted or sprained her ankle, nor could she deny that she might have done so at some point in her life.
9. Because Claimant’s calcaneus and navicular fractures were non-displaced, she did not have to undergo surgery. She was prescribed a walking boot and later underwent a course of physical therapy. By June 2004 Claimant had returned to work. Aside from some residual weakness in her foot and ankle, which has persisted to this day, she enjoyed a complete recovery from these fractures.
10. Defendant accepted the compensability of Claimant’s calcaneus and navicular fractures and paid workers’ compensation benefits accordingly.
11. From June 2004 until March 23, 2009 Claimant did not experience any sharp, stabbing pain in her right ankle of the type that would be caused by a dislodged bone chip. Having been diagnosed with rheumatoid arthritis some twenty years ago, Claimant does suffer from burning pain and stiffness in her joints, including her ankles. The tenor of this pain is qualitatively different and easily distinguishable, however.
12. In August 2008 Claimant was involved in a motor vehicle accident when she failed to negotiate a turn and drove her car off the road. Claimant likely used her right foot to apply the brakes as the accident was occurring. She suffered bruises on her legs and left foot as a result of hitting her side against the car, but did not require medical treatment. Claimant did not experience any right ankle pain as a result of this incident.
13. Between June 2004 and August 2008 Claimant worked at Sugarbush Resort as a credit manager. During the winter months, she had to park her car in an employee lot that was located down a hill, some distance away from the building in which she worked. Claimant never experienced any right ankle pain associated with her daily walks to and from her car.
Claimant’s March 2009 Symptoms
14. On March 23, 2009 Claimant presented to the emergency room complaining of right ankle pain. The pain had begun a few days earlier, without any specific incident or trauma. Gradually it had worsened to the point where Claimant had difficulty standing on it.
15. X-rays revealed the same bone chip that had been present at the time of Claimant’s 2004 injury, as well as some small joint swelling. Though still minimally displaced, the chip had moved slightly as compared with its previous position, enough to cause the symptoms Claimant now was experiencing.
16. Claimant treated with Dr. Charlson, an orthopedic surgeon. After conservative measures failed to alleviate her pain, in December 2009 Dr. Charlson surgically removed the bone chip. Thereafter, Claimant’s symptoms quickly subsided. By April 2010 she was reporting only minimal discomfort. At the formal hearing, she reported that her ankle is no longer painful at all.
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Expert Medical Opinions
17. Four expert witnesses testified as to the causal relationship, if any, between Claimant’s January 2004 work injury and her symptoms in March 2009. Testifying on Claimant’s behalf, Dr. Charlson concluded that such a relationship existed. Testifying for Defendant, Drs. DeStigter, White and Johansson concluded otherwise.
18. There was significant variation among the experts in terms of their areas of specialization, most notably between Dr. Charlson and Dr. DeStigter. As noted above, Dr. Charlson was Claimant’s treating orthopedic surgeon. He is board certified in orthopedics, with a sub-specialty in conditions involving the foot and ankle. Dr. Charlson has performed close to a thousand foot and ankle surgeries over the past five years. In addition, he has prepared and presented lectures on the etiology and treatment of osteochondral lesions of the talus, the specific injury at issue here.
19. Dr. DeStigter is the radiologist who initially interpreted Claimant’s 2004 x-ray. She is board certified, and serves as the Vice-Chair of the Radiology Department at Fletcher Allen Health Care. Dr. DeStigter has impressive credentials in the area of diagnostic radiology.
20. Dr. White evaluated Claimant at Defendant’s request in November 2009. Dr. White is board certified in occupational medicine. Independent medical examinations and medical records reviews comprise a significant part of his practice.
21. Dr. Johansson evaluated Claimant at Defendant’s request in October 2004. More recently, he has reviewed Claimant’s medical records, as well as both hers and the other expert witnesses’ depositions. Dr. Johansson is an osteopathic physician who is board certified in family practice. His clinical practice involves the evaluation and treatment of musculoskeletal injuries, with a strong sports medicine focus.
22. Before evaluating the differences among the experts’ conclusions, it is instructive to review the areas in which they agreed. All four experts agreed, first of all, that the bone chip that Dr. Charlson surgically removed in 2009 pre-dated Claimant’s 2004 injury and was not in any way caused by it. Upon comparing the x-rays, furthermore, all agreed that while the chip was occupying essentially the same “divot” in 2009 as it had been in 2004, it had become somewhat more displaced in the interim.
23. Where the experts diverged was as to the impact, if any, that Claimant’s January 2004 calcaneus fracture had on the bone chip’s displacement. In Dr. Charland’s experience, it is not uncommon to see a non-displaced calcaneus fracture of the exact type that Claimant suffered together with a bone chip of the type she exhibited. This is because both injuries occur as the result of a similar mechanism – an inversion-type injury where the ankle is rolled inward. When that occurs, the talus shifts slightly outward, and with almost a suction effect the bone chip is displaced.
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24. According to Dr. Charlson, to a reasonable degree of medical certainty, while Claimant’s fall did not cause the bone chip to occur, it likely did cause it to become displaced. Because the bone chip was located in a region of the joint which was non-weight bearing, it remained asymptomatic for a long period of time thereafter. Over the course of five years, however, the cumulative effect of walking, which involves a cyclical motion of the ankle, caused the chip to move somewhat further from its divot, to the point where it became a source of irritation and needed to be removed.
25. Dr. DeStigter disagreed with this analysis. In her opinion, for Claimant’s bone chip to have become symptomatic in 2009 there had to have been another precipitating traumatic event. Dr. DeStigter hypothesized that Claimant’s 2008 motor vehicle accident could have been such a precipitating incident. Assuming that Claimant applied her brakes with some force as that accident was occurring, she would have dorsiflexed her ankle in exactly the same manner as is typical for impact injuries to the talar dome.
26. Dr. DeStigter failed to explain why, in her opinion, a dorsiflexion injury in 2008 might have precipitated movement of a preexisting bone chip, but to a reasonable degree of medical certainty a fall such as the one Claimant experienced in 2004, which according to the emergency room record also involved dorsiflexion, did not.
27. Consistent with the other experts’ opinions, Dr. White testified that Claimant’s bone chip preexisted her 2004 fall. However, he did not have a definitive opinion as to why it became symptomatic in 2009. According to Dr. White, the cause could have been spontaneous and idiopathic, or it could have been due to additional trauma.
28. Dr. Johansson’s opinion was essentially the same as Dr. White’s. Without identifying a particular reason for Claimant’s bone chip to have shifted position in 2009, Dr. Johansson theorized that whatever caused it to do so likely occurred shortly before she began to experience symptoms in the area.
29. Noting that there was no evidence of any joint effusion on Claimant’s radiologic studies in 2004, Dr. Johansson discounted Dr. Charlson’s theory that the 2004 fall caused the bone chip to move slightly from its preexisting divot. In Dr. Johansson’s opinion, movement of the bone chip would have caused friction within the joint, which would have resulted in both swelling and pain, neither of which Claimant experienced at the time. According to Dr. Charlson, however, such friction would only occur once the bone chip moved far enough to interfere with the weight-bearing surface of the joint.
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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. The disputed issue here is one of medical causation. Did Claimant’s compensable work-related fall in January 2004 set in motion the circumstances by which her preexisting bone chip became symptomatic in 2009? To answer this question competent expert medical testimony is required, “to remove the final decision from the realm of speculation.” Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 103 (1964).
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).
4. Considering all of these factors here, I conclude that Dr. Charlson’s opinion is the most credible. In reaching this conclusion, I am mindful of the fact that, as the treating surgeon, Dr. Charlson was able to glean knowledge not just from Claimant’s radiologic studies but also from personally observing her physical presentation and discussing the specific mechanism of her injury with her. Having this additional information strengthened his opinion.
5. I also find Dr. Charlson’s expert qualifications to be particularly compelling in this case. Of the four experts who rendered opinions, Dr. Charlson is the only one who has specialized training and experience not just in foot and ankle injuries, but specifically in evaluating and treating osteochondral defects of the talus.
6. By virtue of both Dr. Charlson’s qualifications and his treating relationship with Claimant I conclude that he was better positioned than the other experts were to determine the mechanism by which Claimant’s 2004 fall led to her 2009 symptoms. His explanation made logical sense and adequately incorporated the available evidence. I accept it as the most credible.
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7. It is true, as Defendant asserts, that there is no x-ray evidence from which to determine the exact position of Claimant’s bone chip immediately before her 2004 fall. Defendant is correct, therefore, that there is no way to know with one hundred percent certainty whether Dr. Charlson’s theory – that the fall started the process by which the chip dislodged from its preexisting position and ultimately became symptomatic – is correct. This does not automatically render his opinion too speculative to accept, however. The standard is not one hundred percent certainty; it is “reasonable probability.” Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989), citing Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 34 (1980). Considering the available support for Dr. Charlson’s opinions, I conclude that he adequately satisfied that test.
8. I conclude that Claimant has satisfied her burden of proving that the symptoms she experienced in 2009, which ultimately required surgical treatment to resolve, were causally related to her January 2004 compensable work injury.
9. As Claimant has prevailed on her claim for compensability, she is entitled to an award of costs and attorney fees under 21 V.S.A. §678. Claimant has submitted a request for costs totaling $2,694.62 and attorney fees totaling $10,449.00.1 An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
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 her entitlement as causally related to her right ankle symptoms since March 23, 2009, including those related to her December 2009 surgery; and
2. Costs totaling $2,694.62 and attorney fees totaling $10,449.00.
DATED at Montpelier, Vermont this 25th day of March 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.
1 Attorney fees incurred after June 15, 2010 are billable at the updated reimbursement rate, $145.00 per hour. Workers’ Compensation Rule 10.1210; Erickson v. Kennedy Brothers, Inc., Opinion No. 36A-11WC (March 25, 2011).

Denise Carr v. Copley Hospital (February 23, 2012)

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

Denise Carr v. Copley Hospital (February 23, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Denise Carr Opinion No. 06-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Copley Hospital
For: Anne M. Noonan
Commissioner
State File No. AA-52236
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 4, 2011
Record closed on December 13, 2011
APPEARANCES:
Joseph Galanes, Esq., for Claimant
Jeffrey Spencer, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s left shoulder impingement syndrome causally related to her August 22, 2008 compensable work injury?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Temporary partial disability benefit calculation, with
supporting payroll records
Defendant’s Exhibit A: Curriculum vitae, Jonathan Sobel, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
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 contained in the Department’s file relating to this claim.
3. Claimant worked in Defendant’s housekeeping department for seven years. Her job duties included cleaning patients’ rooms, making beds, washing walls and working in the laundry.
4. On August 21, 2008 Claimant reported an injury to her right thumb, hand and wrist, which had become swollen and sore as a result of her housekeeping duties. She was diagnosed with tendinitis in her thumb and arthritis in her wrist. Defendant accepted both of these injuries as compensable and began paying workers’ compensation benefits accordingly.
5. After her symptoms failed to resolve with conservative treatment, Claimant was referred to Dr. Mullins, an orthopedic surgeon. In January 2009 she underwent surgery, both to reconstruct the ligament in her thumb and to address the arthritis in her wrist.
6. Initially Claimant appeared to be recovering well from surgery. Her wrist was casted until early March 2009. Unfortunately, by the time the cast was removed she had developed complex regional pain syndrome (CRPS) in her right hand. This caused pain, swelling and hypersensitivity in her fingers, hand, wrist and forearm. As a result, for a period of months after her wrist surgery Claimant avoided using her right upper extremity, and used her left arm for most tasks instead.
7. During the period when her right arm was immobilized Claimant began to complain increasingly of right shoulder pain. By August 2009, her CRPS-related hand pain had essentially resolved, but her right shoulder pain continued. In addition, she began to complain of left shoulder pain as well.
8. Dr. Mullins attributed the pain in Claimant’s right shoulder to an impingement syndrome caused by prolonged inactivity and disuse of her right arm. With disuse, the rotator cuff becomes weak, which allows the arm bone to migrate and come in contact with the shoulder blade. This narrows the space through which the tendons of the shoulder must slide and causes them to become caught, or impinged. The tendons and tissues in the area become inflamed, which leads to swelling, tearing and even more impingement.
9. Interestingly, Dr. Mullins attributed the cause of Claimant’s left shoulder pain to impingement as well, though as the result of a somewhat different process. In the left shoulder, impingement resulted from her overuse of that extremity as compensation for her inability to use her right (dominant) arm. Overuse caused the tissues in the area to become inflamed, which in the context of degenerative changes in the joint led to impingement.
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10. Claimant underwent right shoulder surgery in February 2010. According to Dr. Mullins’ office notes, by mid-May she had resumed most of her regular activities and was released to return to work without restrictions.
11. Rather than returning to hospital housekeeping work, Claimant found a job instead at the Hardwick Kwik Stop and Deli. Initially she worked part-time, three or four days a week for four to six hours daily. Primarily she worked behind the deli counter, making grinders and doing light cleaning. Unfortunately, when she attempted to increase her hours to full-time her pain flared, particularly in her neck and left shoulder.
12. Claimant’s left shoulder symptoms, which her treating providers again attributed to overuse, failed to resolve with physical therapy. In October 2010 she underwent left shoulder surgery.
13. Claimant’s recovery from her left shoulder surgery has been marred by flared CRPS symptoms in her right hand, as well as pain and stiffness in her wrists bilaterally. She has continued to work at her deli counter job, but is limited to a maximum of three hours per day, three days per week.
Expert Medical Opinions
(a) Dr. Sobel
14. Dr. Sobel, a board certified orthopedic surgeon, reviewed Claimant’s medical records at Defendant’s request in April 2011. To a reasonable degree of medical certainty, in his opinion Claimant’s left shoulder condition is not causally related in any respect to her work for Defendant.
15. Dr. Sobel concurred with Dr. Mullins’ diagnosis of left shoulder impingement syndrome. In his analysis, Claimant suffered from age-related degenerative arthritic changes. Over time, bone spurs developed and impinged into the tendons and tissues in and around the rotator cuff. These changes were in no way related either to Claimant’s work for Defendant or to overcompensating for her inability to use her right arm.
16. Dr. Sobel acknowledged that when tendons or tissues in the joint become inflamed, the impingement in the joint can worsen. In his opinion, even with her right arm essentially immobilized the routine activities for which Claimant used her left arm were not of a type as to cause further inflammation. This might be the case were she to use her left arm repetitively overhead, a motion that squeezes the top of the rotator cuff, but there was no evidence of that here.
17. Dr. Sobel determined that Claimant had reached an end medical result for the work-related injury to her right thumb and hand at least by the date of his April 2011 records review. Because he concluded that Claimant’s left shoulder condition was not work-related, he did not express an opinion as to when she might have reached an end medical result for that condition, or whether she suffered any ratable permanent impairment referable to it.
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(b) Dr. Backus
18. At her attorney’s referral, in September 2011 Claimant underwent an independent medical examination with Dr. Backus, an occupational medicine specialist. Of note, Dr. Backus reported that in relating her history to him Claimant asserted that her left shoulder pain actually predated her August 2008 work injury by some months. The contemporaneous medical records do not corroborate this assertion, however.
19. Dr. Backus concurred with both Dr. Mullins and Dr. Sobel as to diagnosis – left shoulder impingement syndrome. Generally, he concurred as well with Dr. Sobel’s analysis as to how the condition developed – first arthritis in the joint, which caused bone spurs to grow, which resulted in impingement and then inflammation of tendons and tissues. Where Dr. Backus’s opinion diverged from Dr. Sobel’s was as to the contribution first of Claimant’s work activities and later of her August 2008 compensable injury on this progression.
20. Unlike Dr. Sobel, who attributed Claimant’s left shoulder condition solely to age-related degenerative changes, Dr. Backus concluded, to a reasonable degree of medical certainty, that Claimant’s work for Defendant was a contributing factor. He based this conclusion on the following assumptions:
• That Claimant’s left shoulder symptoms had been ongoing for some time prior to August 2008;
• That her housekeeping duties for Defendant involved sufficient forceful repetition and awkward postures as to constitute an occupational risk factor for development of an impingement syndrome; and
• That once the impingement developed, it then worsened as a consequence of overcompensation triggered by her August 2008 hand injury, subsequent CRPS and right shoulder immobilization.
21. As of the date of his examination, September 7, 2011, Dr. Backus determined that Claimant had reached an end medical result.1
Discontinuance of Temporary Disability Benefits
22. Defendant initially disputed the compensability of Claimant’s right shoulder surgery. Claimant appealed the denial, and on June 16, 2010 the Department issued an interim order in which it found the surgery to be compensable. Defendant did not appeal the order to formal hearing, but rather undertook to pay both medical and indemnity benefits in accordance with its terms.
1 In the context of his independent medical examination, Dr. Backus rated Claimant with a 16 percent permanent impairment referable to her left shoulder injury. Claimant did not make a claim for permanency benefits in accordance with this rating, however, nor did Defendant present any countervailing evidence. As such, I consider the permanency issue to be beyond the scope of this decision.
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23. As noted above, Finding of Fact No. 11 supra, rather than returning to work for Defendant, following her right shoulder surgery Claimant instead began working part-time at the Hardwick Kwik Stop and Deli. Although the record is not entirely clear, apparently Defendant paid temporary partial disability benefits for some months thereafter. It discontinued these as of the date Claimant underwent left shoulder surgery, October 22, 2010. Again, the record is not entirely clear, but it appears that Defendant did so on the grounds that any ongoing disability now was attributable not to Claimant’s right shoulder injury but rather to her left shoulder condition, the compensability of which Defendant disputed.
24. Defendant did not file any Notice of Intention to Discontinue Payments (Form 27) prior to discontinuing Claimant’s temporary partial disability benefits.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue here is whether Claimant’s left shoulder impingement syndrome was causally related to her work for Defendant. Drs. Mullins and Backus assert that it was; Dr. Sobel asserts that it was not.
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).
4. Against this backdrop, I conclude primarily on the basis of Dr. Mullins’ opinion that Claimant’s left shoulder injury most likely resulted from overcompensation triggered by her inability to use her right arm for some time after her August 2008 work injury. As the treating physician, Dr. Mullins was best positioned to understand how Claimant’s left shoulder symptoms progressed. I accept as credible both his and Dr. Backus’ analysis of how overuse caused the tendons and tissues in her left shoulder to become inflamed to the point where surgical release became necessary.
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5. In reaching this conclusion, I acknowledge the deficiencies in Dr. Backus’ opinion, particularly as to his conclusion that Claimant’s work activities caused arthritis, bone spurs and some degree of impingement even before August 2008. As noted above, Finding of Fact No. 18 supra, Claimant’s assertion that she had been suffering from left shoulder pain for some months prior was not substantiated by any of the contemporaneous medical records, and therefore I question the weight Dr. Backus accorded it as a basis for his opinion. Beyond that, Dr. Backus’ conclusion that Claimant’s work presented occupational risk factors appears to have been based on a rather superficial inquiry as to the nature and extent of her housekeeping duties.
6. For these reasons, I find that Dr. Backus’ opinion as to the work-relatedness of Claimant’s condition prior to her August 2008 injury is somewhat speculative. Nevertheless, I accept as credible both his and Dr. Mullins’ determination that whatever degenerative condition existed in Claimant’s left shoulder, it was exacerbated by the overuse that resulted from the work-related injury to her right upper extremity. Claimant’s left shoulder injury thus evolved as a natural consequence of a compensable injury, and is itself compensable. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964); 1 Lex K. Larson, Larson’s Workers’ Compensation §10 (Matthew Bender, Rev. Ed.) at p. 10-1.
7. I conclude that Dr. Sobel’s opinion as to the causal relationship between Claimant’s inability to use her right arm and her worsening left shoulder impingement syndrome is less persuasive than either Dr. Mullins’ or Dr. Backus’. Relying solely on Claimant’s medical records, Dr. Sobel had no opportunity either to physically examine her or to understand how her left shoulder symptoms progressed with disuse of her right arm.
8. I conclude that Claimant has sustained her burden of proving that her left shoulder impingement syndrome was causally related to her compensable right upper extremity injury and is therefore compensable as well. Defendant therefore is responsible for whatever medical treatment was necessitated as a result, including Dr. Mullins’ October 2010 surgery.
9. I further conclude that Claimant reached an end medical result for her left shoulder impingement syndrome on September 7, 2011. Defendant is therefore obligated to pay temporary total and/or temporary partial disability benefits from the date these were discontinued, October 22, 2010, through September 7, 2011.2
10. Last, I conclude that Claimant is entitled to permanent partial disability benefits. As noted above, Finding of Fact No. 21, note 1 supra, although Dr. Backus issued a permanency rating in the context of his independent medical examination, Claimant has not made a claim for permanency benefits in accordance therewith. Therefore, none are awarded at this time.
2 Having concluded that Claimant’s left shoulder condition is compensable, Defendant’s discontinuance of temporary disability benefits in October 2010 was improper on substantive grounds. The fact that it failed to file the necessary Form 27 is a clear violation of both 21 V.S.A. §643a and Workers’ Compensation Rule 18, as a result of which Defendant would have been responsible for ongoing payments in any event.
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11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
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 compensable left shoulder impingement syndrome, in accordance with 21 V.S.A. §640;
2. Temporary total and/or temporary partial disability benefits from October 22, 2010 through September 7, 2011, in accordance with 21 V.S.A. §§642 and 646, with interest as calculated 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 23rd 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.

Debra Morrisseau v. Hannaford Brothers (August 8, 2012)

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

Debra Morrisseau v. Hannaford Brothers (August 8, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Debra Morrisseau Opinion No. 21-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. BB-00676
OPINION AND ORDER
Hearing held in Montpelier on May 9, 2012
Record closed on June 25, 2012
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Robert Mabey, Esq., for Defendant
ISSUES PRESENTED:
1. Does Dr. Fenton’s proposed treatment plan constitute reasonable medical treatment causally related to Claimant’s August 20, 2009 compensable work injury?
2. Did Claimant reach an end medical result for her compensable work injury on or before April 30, 2011?
3. Is Claimant entitled to additional temporary total and/or temporary partial disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Temporary partial disability benefit calculation, with supporting pay stubs
Defendant’s Exhibit A: Medical records
Defendant’s Exhibit B: Curriculum vitae, Richard Levy, M.D.
Defendant’s Exhibit C: Dr. Levy report, October 2, 2011
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 675
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.
3. Claimant began working as a part time associate in Defendant’s bakery in 2002. Her duties included preparing baked goods for sale, decorating cakes and generally servicing the bakery department.
Claimant’s August 2009 Work Injury and Subsequent Treatment Course
4. On August 20, 2009 Claimant was lifting a box of frozen cookie dough at work when she felt a pop in her right hand, followed by intense pain in her palm and triggering in her ring and small fingers. She reported the injury to her supervisor, and later in the day sought medical treatment.
5. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
6. Initially Claimant was diagnosed with a right wrist sprain. Her pain predominated on the ulnar (outer) side of her palm and wrist, radiating out to her ring and small fingers and up into the ulnar area of her elbow. Intermittently she experienced sharp, severe pains, which she described as “zingers,” as well, emanating from the wrist joint itself.
7. When her symptoms failed to improve with physical therapy, in September 2009 Claimant was referred to Dr. Frenzen, an orthopedic surgeon, for further evaluation. Diagnostic imaging studies revealed a TFCC (triangular fibrocartilage complex) tear in her wrist, as well as some evidence of ulnar impaction syndrome. The latter condition occurs when there is a variance in length between the ulna and the radius (the two forearm bones) at the wrist.
8. Imaging studies also documented degenerative changes in Claimant’s wrist joint. These were most likely age-related and/or accelerated by a fracture she had sustained many years earlier on the distal (thumb) side of her wrist.
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9. Dr. Frenzen attributed Claimant’s ulnar-sided wrist pain to her TFCC tear. Without making a clear statement as to causal relationship, he acknowledged that “certainly the [August 2009 work injury] has set up a series of events by which her wrist has become painful.”
10. After rest and a cortisone injection proved ineffective, in December 2009 Dr. Frenzen performed arthroscopic surgery to address both the TFCC tear and the ulnar variance at Claimant’s wrist.
11. Post-surgery, Claimant continued to suffer aching pain and diminished range of motion in her wrist, intermittent but painful “zingers,” and numbness and tingling in her ring and small fingers. Electrodiagnostic studies in May 2010 documented mild carpal tunnel and cubital tunnel syndromes, as well as mild swelling of the ulnar nerve at the wrist. Dr. Frenzen was unable to explain these findings in the context of his TFCC repair surgery.
12. At Defendant’s request, in June 2010 Claimant underwent an independent medical evaluation with Dr. Davignon. Based both on his physical examination and on his review of the pertinent medical records, Dr. Davignon concluded as follows:
• That Claimant’s right wrist symptoms were causally related to her work injury;
• That all treatment to date had been reasonable and necessary; and
• That the degenerative changes in Claimant’s wrist were probably preexisting, but likely were aggravated by the work injury.
13. In June 2010 Dr. Frenzen referred Claimant to Dr. Johansson for further treatment. Dr. Johansson, an osteopath, is the medical director of the Vermont Center for Occupational Rehabilitation (VCOR). Among the services VCOR offers are physical therapy, myofascial therapy, biofeedback and pain management.
14. Claimant participated in the VCOR intensive rehabilitation program from June through November 2010. When her symptoms failed to respond to a cortisone injection midway through the program, Dr. Johansson referred her to Dr. Murphy, an orthopedic surgeon at Dartmouth Hitchcock Medical Center, for a second opinion.
15. Dr. Murphy evaluated Claimant in September 2010. He concluded that there was no good surgical solution to her ongoing symptoms. Instead, he recommended continued conservative management, including injections, splinting, anti-inflammatories and activity modification. From my review of the medical evidence, I find that Claimant already had undergone the therapies Dr. Murphy suggested, with no appreciable improvement in her symptoms.
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16. As for the cause of Claimant’s symptoms, Dr. Murphy concluded that the August 2009 work injury likely resulted in an aggravation of the preexisting, underlying arthritis and pathology in her wrist.1
17. Following Dr. Murphy’s examination, Claimant returned to VCOR to complete her rehabilitation program. At his final evaluation on November 30, 2010 Dr. Johansson commented that Claimant still experienced pain, swelling and “zingers” in her wrist, but that she had developed coping strategies to allow her to better manage her pain. Dr. Johansson concluded that Claimant had reached an end medical result for her work injury, and rated her with a 5 percent permanent impairment referable to her wrist. He also released her to return to work on a full time basis, but with permanent light duty restrictions. These included limitations against lifting more than 10 pounds occasionally or performing repetitive tasks.
18. Dr. Johansson attributed the cause of Claimant’s symptoms to a “flare up” of her preexisting osteoarthritic condition, which he asserted had been in a state “where it was more likely than not going to become a problem sooner rather than later” even had the August 2009 work injury not occurred. Notwithstanding this prediction, I find from the medical evidence that in fact Claimant’s preexisting condition had been entirely asymptomatic for many years prior to her work injury, and particularly that it had not restricted her ability to function in any respect. Dr. Johansson’s conclusion that despite ongoing pain and now permanent work restrictions Claimant had returned to her preexisting osteoarthritic baseline is plainly contradicted by this evidence.
19. At her attorney’s recommendation, and because she was dissatisfied with the conclusions stated in Dr. Johansson’s final report, in March 2011 Claimant returned to Dr. Murphy for an additional evaluation. Dr. Murphy found her condition to be essentially unchanged from his September 2010 exam, and reiterated his opinion that her symptoms would likely best be managed conservatively rather than surgically. Given the persistent numbness and tingling in her wrist, however, Dr. Murphy suggested that repeat electrodiagnostic studies would be helpful to determine whether her carpal tunnel syndrome had progressed.
20. With Dr. Johansson’s November 2010 end medical result determination as support, the Department approved Defendant’s discontinuance of temporary disability benefits effective April 30, 2011.
21. In June 2011 Claimant underwent repeat electrodiagnostic studies, as Dr. Murphy had suggested, with Dr. Zweber, the same neurologist who had performed her prior studies in May 2010. In his report, which documented no significant changes from the prior exam, Dr. Zweber noted that Claimant was considering a second opinion with Dr. Fenton, a specialist in interventional pain management. Dr. Zweber considered this to be an appropriate approach for Claimant to pursue.
Dr. Fenton’s Proposed Treatment Plan
1 Although Dr. Murphy did not specify the work injury as the cause of the aggravation in the report of his September 2010 evaluation, he did so later, in the context of his repeat evaluation in March 2011. See Finding of Fact No. 19, infra.
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22. Claimant began treating with Dr. Fenton on September 1, 2011. Dr. Fenton, an osteopath, is board certified in physical medicine and rehabilitation. His clinical focus is on musculoskeletal and non-surgical orthopedic medicine. Fifty percent of his current practice involves upper extremity conditions.
23. Dr. Fenton diagnosed Claimant with osteoarthritis, joint inflammation and mild carpal tunnel syndrome at the wrist, and cubital tunnel syndrome and nerve irritation, or neuritis, at the elbow. In his analysis, which I find credible, all of these conditions were either caused or aggravated by the August 2009 work injury. According to Dr. Fenton, the abnormal motion and muscle guarding that resulted from both the injury and the subsequent surgery likely caused Claimant’s ulnar neuritis to develop. Similarly, abnormal motion in the context of preexisting osteoarthritis in the wrist likely increased the pressure on her median nerve and thus led to the development of carpal tunnel syndrome.
24. The treatment approach that Dr. Fenton has suggested for these conditions is somewhat controversial. It is comprised of the following components:
• Diagnostic ultrasound of the median and ulnar nerves to better evaluate the extent of nerve compression and irritation;
• Ultrasound-guided hydro-dissection of the ulnar nerve at the elbow; and
• Ultrasound-guided corticosteroid injection in the wrist to identify the primary pain generator, followed by ultrasound-guided injections of platelet rich plasma.
25. Dr. Fenton has been using diagnostic ultrasound as a complement to electrodiagnostic testing for peripheral nerve entrapment disorders for more than eight years. Such testing is the standard of care among European orthopedists, and is also well accepted in the United States, though it is not prevalent in Vermont. Particularly with respect to diagnosing ulnar nerve compression, ultrasound has a very low false negative, meaning that it rarely misses abnormal findings. In contrast, although many U.S. doctors consider electrodiagnostic studies to be the gold standard for diagnosing both median and ulnar nerve compression syndromes, they yield a much higher rate of false negative findings and often do not correlate well with the severity of a patient’s symptoms.
26. In Claimant’s case, diagnostic ultrasound indicated fairly severe inflammation of the ulnar nerve at the elbow, which in Dr. Fenton’s assessment required further intervention. Given the correlation between Dr. Fenton’s findings and the severity of Claimant’s ongoing symptoms, I find his analysis in this regard credible.
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27. Dr. Fenton has recommended hydro-dissection as treatment for Claimant’s ulnar nerve irritation. This procedure uses a series of fluid injections to open up the space between the nerve and the tissue surrounding it, in much the same manner that a scalpel would during surgery. Though not experimental, hydro-dissection is still an emerging treatment approach, and therefore the medical literature as to its effectiveness is limited. Nevertheless, it is, as Dr. Fenton described it, “quite hot in the international pain world,” and is widely performed in that arena as a safer alternative to surgery.
28. Claimant already has undergone one hydro-dissection procedure in her elbow, in September 2011. Subsequently, her symptoms improved significantly for some time, with less discomfort and fewer “zingers” than previously. Dr. Fenton anticipates that Claimant will require one or two additional treatments, each spaced approximately twelve weeks apart, in order to realize lasting, restorative benefit. Given that Claimant derived substantial benefit from the first procedure, I find persuasive Dr. Fenton’s prediction of additional success with further treatments.
29. As for the wrist, with the benefit of ultrasound guided cortisone injections Dr. Fenton recently has identified an area on the thumb side of Claimant’s wrist as the most likely pain generator. As treatment, he has recommended that she undergo a series of platelet rich plasma (PRP) injections. Plasma that is highly concentrated in platelets is thought to release growth factors that attract stem cells and stimulate tissue regeneration. PRP injection therapy is widely accepted among sports medicine orthopedists, but due to the paucity of evidence-based studies is still considered experimental in cases involving joint injuries. In his own clinical experience, Dr. Fenton estimates he has obtained excellent results in approximately 75 percent of the wrist injuries he has treated with PRP injections.
30. Claimant has not yet undergone any PRP injections, as neither Defendant nor her group health insurer has agreed to cover them. As an alternative, Dr. Fenton has performed a series of local anesthetic injections. These have afforded Claimant some limited palliative relief of her wrist symptoms, but do not have any long-lasting, regenerative effect. Were she to undergo PRP injection therapy, Dr. Fenton anticipates a series of three injections, each four to six weeks apart.
31. Because both hydro-dissection and PRP injection therapies are restorative rather than palliative in nature, in Dr. Fenton’s opinion Claimant should not be considered at end medical result until both series of treatments have been completed.
32. Dr. Fenton acknowledged that he did not review Claimant’s medical records, was unfamiliar with the surgical technique Dr. Frenzen utilized to address the ulnar variance in her wrist and did not personally study the results of Dr. Zweber’s electrodiagnostic testing. I find that these omissions were not critical to the formulation of his treatment plan, which was based instead on his specialized experience with the therapies he has proposed.
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Dr. Levy
33. Defendant’s expert, Dr. Levy, presented a different view of Dr. Fenton’s proposed treatment plan. Dr. Levy is a board certified neurologist. He did not personally examine Claimant, but reviewed her medical records in October 2011.
34. Dr. Levy acknowledged that Claimant’s August 2009 work injury likely caused her TFCC tear, and that Dr. Frenzen’s surgery constituted reasonable treatment. He also concurred with Dr. Murphy’s opinion that the work injury likely aggravated the underlying osteoarthritis in her right wrist, at least for a time. In Dr. Levy’s opinion, however, at this point Claimant’s ongoing symptoms are due solely to the natural progression of that preexisting condition, and are no longer related to her work injury in any respect.
35. Dr. Levy also concluded that there likely was no causal relationship between Claimant’s work injury and her peripheral nerve entrapment disorders. In his opinion, an injury to the outer part of her wrist could not possibly have resulted in nerve compression at the elbow. As for her median nerve compression, Dr. Levy maintained that this likely was caused solely by preexisting osteoarthritis.
36. Dr. Levy acknowledged his unfamiliarity with the use of ultrasound as a tool for diagnosing peripheral nerve disorders, and emphasized instead that in Claimant’s case, electrodiagnostic studies had revealed only mild entrapment. In his opinion, those results did not justify anything other than conservative treatment, such as splinting, stretching, physical therapy and possibly corticosteroid injections. However, I find from the medical evidence that Claimant already has undergone these therapies, without any appreciable improvement in her symptoms.
37. Dr. Levy was also unfamiliar with the efficacy of either hydro-dissection or PRP injections as treatment for Claimant’s symptoms. He has no personal experience with either therapy, and gleaned only limited information about them from online research. In his opinion, neither treatment meets the recognized standard of care at this time.
Claimant’s Post-Injury Wages and Temporary Disability Claim
38. Claimant’s average weekly wage at the time of her August 2009 injury was $421.05. This yields a current weekly compensation rate for temporary total disability of $378.96.
39. As documented by her pay stubs, on August 14, 2011 Claimant began working as a home support aide for developmentally disabled adults. She also worked briefly as a substitute teacher, but stopped doing so when her home support aide hours increased. The work is non-physical and therefore is largely unaffected by the ongoing symptoms in her wrist. Claimant acknowledged in her formal hearing testimony that at least since February 2012 any differential between her current wages and her pre-injury wages is due primarily to client scheduling issues, not to any injury-related disability.
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40. In support of her claim for temporary partial disability benefits, Claimant submitted a calculation sheet purporting to summarize the weekly differentials between the wages she has received since returning to work and her pre-injury wages. The calculation sheet lists September 9, 2011 as the first week during which Claimant earned wages; however, the accompanying pay stubs show wages paid beginning on August 14, 2011. Factoring in those wages (two weeks at $206.94 per week), I find that through February 3, 2012 the total differential between Claimant’s pre-injury wages and her post-injury earnings was $4,418.64. Should she be deemed entitled to temporary partial disability benefits for this period, in accordance with 21 V.S.A. §646 the total amount owed would be $2,916.30.
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. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. The disputed issues here implicate both of these grounds for determining reasonableness. Claimant asserts that her ongoing symptoms are causally related to her work injury, that Dr. Fenton’s proposed treatment plan is medically necessary, and that until she completes it she cannot be deemed to have reached an end medical result. Defendant argues that she has reached an end medical result for her work injury, that her ongoing symptoms are no longer causally related, and that even if they were Dr. Fenton’s proposed treatments are unproven and therefore medically inappropriate.
4. The parties presented conflicting medical evidence as to the causal relationship question. 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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5. Neither party’s expert dominates when considering these factors. Dr. Fenton failed to review the pertinent medical records, but benefitted nonetheless from having personally examined Claimant on numerous occasions. Dr. Levy conducted a complete file review, but never discussed the severity of Claimant’s symptoms directly with her. Both experts stated their causation opinions emphatically, but neither provided much in the way of detailed explanation. Both possess impressive qualifications, though their training and experience is in markedly different areas.
6. After closely considering the evidence, I conclude that Dr. Fenton’s causation analysis is the most credible. I am persuaded that Claimant’s current symptoms are attributable to the abnormal motion and muscle guarding that followed her August 2009 work injury and subsequent surgery, thus aggravating the preexisting pathology in her wrist.
7. Even Dr. Levy acknowledged that the work injury likely caused some aggravation of the underlying pathology in Claimant’s wrist, at least for a time. Without explaining when or why the consequences of that aggravation ended, however, I cannot accept his conclusion that her symptoms are no longer related. It is true that a temporal relationship alone is often insufficient to establish causation, Norse v. Melsur Corp., 143 Vt. 241, 244 (1983), but where symptoms that did not exist before are lit up by a work injury and then continue essentially unabated thereafter, breaking the causal link requires more than mere speculation. See J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (September 8, 2005), and cases cited therein.
8. Having concluded that Dr. Fenton’s treatment plan is reasonable in the sense that it is related to Claimant’s compensable injury, I next consider whether it is medically necessary. I conclude that it is.
9. The determination whether a treatment is medically necessary must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000). An injured worker’s subjective preferences cannot render a medically unreasonable treatment reasonable. See, Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003). As is the case with many aspects of medical decision-making, however, there can be more than one right answer, and thus more than one reasonable treatment option for any given condition. Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010).
10. Weighing the expert testimony here, I conclude that Dr. Fenton’s opinion as to the efficacy of ultrasound as a complement to electrodiagnostic testing in cases such as Claimant’s is more credible than Dr. Levy’s. Dr. Levy acknowledged his unfamiliarity with the use of this technique, which renders his opinion less persuasive. In contrast, Dr. Fenton’s experience weighs heavily in his favor. The fact that ultrasound testing revealed findings consistent with the severity of Claimant’s symptoms, whereas electrodiagnostic studies failed to do so, is also telling. I conclude that the ultrasound testing was medically necessary and therefore compensable.
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11. I also conclude that Dr. Fenton’s proposed treatment plan, including both hydro-dissection of the ulnar nerve at the elbow and PRP injections at the wrist, are medically necessary and therefore compensable as well. Again, I accept Dr. Fenton’s opinion as more credible than Dr. Levy’s on this issue. I am convinced both by his clinical experience with other patients and by Claimant’s own positive response to the initial procedure that Dr. Fenton’s plan offers a reasonable prospect of symptom relief and improved function.
12. Dr. Levy’s principal argument against both hydro-dissection and PRP injections appears to be simply that they are new and unfamiliar to him. This is true. Dr. Levy did not cite to any specific studies establishing the treatments to be either unsafe or ineffective, however, and Dr. Fenton testified credibly that at least in his experience the opposite has so far proven true. Claimant already has tried the more conservative therapies Dr. Levy suggested without success, furthermore. Under the particular circumstances of this case, I conclude that it is appropriate to afford her the opportunity to attempt a different approach.
13. I conclude that Dr. Fenton’s treatment plan is medically necessary and therefore compensable. Because the treatment is intended to be restorative rather than merely palliative, furthermore, I conclude that Claimant cannot be considered at end medical result until she completes it. 21 V.S.A. §642; Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996).
14. As Claimant had neither reached an end medical result nor successfully returned to work as of April 30, 2011 I conclude that Defendant was not justified in terminating her temporary total disability benefits on that date. 21 V.S.A. §643. To the contrary, I conclude that Claimant should have received ongoing temporary total disability benefits until August 14, 2011, the date upon which she began working at her current job. This period totals 15 weeks, payable at the temporary total disability rate of $378.96 per week, or $5,684.40.
15. I conclude that Claimant was entitled to temporary partial disability benefits beginning August 14, 2011, but only for so long as her reduced earning power was related to her work injury rather than to other factors, such as her clients’ scheduling issues. 21 V.S.A. §646; Orvis v. Hutchins, 123 Vt. 18 (1962). Based on Claimant’s own testimony, I conclude that any differential between pre- and post-injury wages after February 3, 2012 was no longer attributable to a work-related disability. For the period from August 14, 2011 through February 2, 2012 I conclude that Claimant is owed temporary partial disability benefits totaling $2,916.30.
16. As Claimant has substantially prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits totaling $5,684.40, in accordance with 21 V.S.A. §642, with interest calculated from April 30, 2011 in accordance with 21 V.S.A. §664;
2. Temporary partial disability benefits totaling $2,916.30, in accordance with 21 V.S.A. §646, with interest calculated from August 14, 2011 in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s August 20, 2009 work injury, including but not limited to the treatments rendered to date and currently proposed by Dr. Fenton, in accordance with 21 V.S.A. §640; and
4. 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 August 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.

Madelyn Sinon v. State of Vermont (April 1, 2009)

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

Madelyn Sinon v. State of Vermont (April 1, 2009)
STATE OF VERMON
DEPARTMENT OF LABOR
Madelyn Sinon Opinion No. 10-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
State of Vermont For: Patricia Moulton Powden
Commissioner
State File No. R-15007
OPINION AND ORDER
Hearing held in Montpelier on October 14, 2008
Record closed on November 17, 2008
APPEARANCES:
Patricia Turley, Esq. for Claimant
William Blake, Esq. for Defendant
ISSUES:
Is Claimant’s ongoing medical treatment, including medications, reasonably necessary and causally related to her work injuries?
EXHIBITS:
Joint Medical Exhibit (657 pages)
CLAIM:
Medical benefits under 21 V.S.A. §640(a)
Attorney’s fees and costs under 21 V.S.A. §678
FINDINGS OF FACT:
1. On the date of injury Claimant was an employee of Defendant and Defendant was an employer within the meaning of Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim.
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Claimant’s Work-Related Injuries
3. Claimant began working for the State of Vermont as an administrative assistant in May 1986. In May 1997 Claimant reported a work injury to her neck, shoulder and trapezius muscle caused by her daily repetitive activities, such as filing and answering the phone. Defendant accepted her claim as compensable and began paying workers’ compensation benefits accordingly.
4. Claimant suffered a second injury, causally related to the first, on July 7, 1999. She was undergoing treatment at the Spine Institute when she injured her sacroiliac joint. Claimant also alleged right shoulder blade and rib cage pain while participating in physical therapy. Again, Defendant accepted all of these injuries as compensable and paid benefits accordingly.
Diagnosis, Treatment and Resolution of Original Injury Claims
5. Both Claimant’s original injury in 1997 and her second injury in 1999 were diagnosed as musculoskeletal and mechanical in origin. Neither MRI scanning nor electrophysiological studies revealed any cervical radiculopathy or brachial plexopathy that would account for her back, shoulder or rib cage pain.
6. Claimant underwent extensive conservative therapy for her pain complaints, including acupuncture, chiropractic manipulation, pool therapy, injections and physical therapy. When her pain complaints continued, Dr. Cove, her primary care physician, prescribed a number of narcotic pain medications.
7. Claimant saw Dr. Lapinsky in 1998, who recommended conservative treatment for her pain complaints, including exercise therapy, smoking cessation, weight loss and back and neck strengthening. Dr. Lapinsky also recommended that Claimant discontinue all psychoactive drugs, including Valium, narcotics, and muscle relaxants.
8. Dr. Lefkoe also evaluated Claimant in 1998. According to Dr. Lefkoe, when he refused to prescribe narcotic pain medications, Claimant terminated her care with him.
9. In August 2000 Dr. Fenton performed an independent medical examination. Dr. Fenton diagnosed Claimant with a mild chronic pain disorder and suggested that she have her hormone levels checked for an imbalance, as abnormalities of estrogen, progesterone, thyroid or pituitary adrenal axis can be a maintaining factor for such pain syndromes. Dr. Fenton stated that it was unlikely that any physical medicine would improve Claimant’s condition. The record does not reflect whether Claimant ever underwent the hormone level testing Dr. Fenton recommended.
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10. In July 2001 Dr. Pizzo, a chiropractor, evaluated Claimant. He diagnosed soft tissue complaints without any hard, confirmatory orthopedic or neurological signs. Dr. Pizzo attributed at least some of Claimant’s problems to poor physical conditioning. In his opinion, there was no ratable impairment causally related to either the 1997 or the 1999 work injuries. As for ongoing medical treatment, Dr. Pizzo stated that further chiropractic care was not reasonably necessary and would not further improve Claimant’s condition. In fact, Dr. Pizzo noted that Claimant was overly dependent on health care providers. He also advised that Claimant’s regimen of narcotic pain medications be reevaluated.
11. In 2001 the parties agreed that Claimant had reached an end medical result for her 1997 injury, with a 5% whole person permanent impairment. The parties executed a Form 22 Agreement for Permanent Partial Disability Compensation to that effect and Defendant paid permanency benefits accordingly.
12. In 2003 the parties executed a second Form 22, in which they agreed that Claimant had reached an end medical result for her 1999 injury, and now had a 7.5% whole person permanent impairment. Taking credit for the 5% already paid in conjunction with the 1997 injury, Defendant paid the additional 2.5% owed.
Post-Form 22 Medical Treatment
13. Claimant continued to treat with Dr. Cove, her primary care physician, for the next twelve years. Her treatment consisted primarily of a regimen of drugs. Claimant has taken, and still takes, the following medications: Oxycodone for pain relief, Topamax for pain control, Mobic, a non-steroidal anti-inflammatory, and Glycolax, for constipation caused by the other medications. Dr. Cove also prescribed Wellbutrin and Buspar, antidepressants, and Diazepam, a sleep aide. Earlier in her treatment Claimant was on methadone and tried other pain medications as well, but she discontinued those drugs when Topamax was added to her medication regimen. Despite this extensive and ongoing regimen of narcotic pain medications, Claimant has realized no real improvement in her pain complaints over the past twelve years.
14. Dr. Cove has acknowledged that it would be reasonable to attempt to schedule a taper of Claimant’s Oxycodone. In his opinion, this would take up to six months to accomplish. Claimant has reduced her use of Oxycodone down from as many as twenty-four 5 mg pills per day. She still remains on a dosage of ten per day, however, in addition to the other pain medications Dr. Cove continues to prescribe.
New Degenerative Condition
15. In March 2006 Dr. Cove noted that Claimant was reporting not only increased pain but new symptoms as well, including electrical jolts down her left upper extremity, numbness in the back of her right knee and increased lumbar pain. Dr. Cove ordered an MRI to identify the source of Claimant’s new complaints.
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16. The MRI confirmed cervical and lumbar disc disease caused by natural degeneration. This is undisputed by the parties. Previous MRI scans taken of Claimant’s back in both October 1998 and February 2000 had been normal. The newly discovered degenerative condition is known to cause pain in the cervical and lumbar regions of the back.
17. In June 2006 Claimant sought treatment for pain in her sacroiliac region allegedly related to her work injuries. She received an injection for pain on June 26, 2006. The bill for this treatment remains outstanding and has had an adverse effect on Claimant’s credit rating. Defendant did not file a Form 27 terminating its responsibility for such treatment until October 2006, some four months later.
Expert Medical Opinions
18. Dr. Backus first saw Claimant for an independent medical examination in April 2003. His diagnosis was chronic myofascial cervical trapesial pain syndrome, or in other words, muscle pain.
19. In April 2006 Dr. Backus conducted a second IME. Based in part on the new MRI findings, Dr. Backus diagnosed spinal stenosis, cord impingement at C5-6 and C6 radiculopathy. In his opinion, these conditions all resulted from age-related degenerative changes in Claimant’s spine, neither caused nor aggravated by either of her prior work injuries. Dr. Backus attributed all of Claimant’s current symptoms to these degenerative conditions. As a result, he concluded that the ongoing treatment and medications Claimant continues to undergo is no longer related to her work injuries.
20. Dr. Rinehart conducted a medical records review in July 2007 and an independent medical evaluation in September 2007. In his opinion, Claimant’s pain had been caused from the beginning by degenerative changes in her spine, and not by either of her work injuries.1 Dr. Rinehart theorized that these degenerative changes were mild initially, and therefore did not show up on earlier MRI scans. With time, however, they became overt and recognizable on the 2006 MRI. Dr. Rinehart firmly believes that Claimant’s symptoms were not caused by any work injury, and that her current treatment and need for pain medications are caused by the age-related degeneration of her spine, and exacerbated by tobacco use, not by any work injury.
21. Dr. Rinehart also believes that there has been a significant psychological component to Claimant’s condition. He noted what he considered to be excessive dependence on medical providers, citing records to establish that over a ten-year period Claimant saw a physician on an average of 4.6 visits per month. Dr. Pizzo had raised similar concerns as early as 2001.
1 Notwithstanding Dr. Rinehart’s opinion, the parties agree that causation of the original injuries is not at issue in the current claim.
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22. Even Dr. Cove, Claimant’s treating physician for more than twelve years, now admits that he cannot state to the required degree of medical certainty that Claimant’s cervical and lumbar disc disease was either caused or aggravated by her work injuries. Nevertheless, in Dr. Cove’s opinion Claimant still would need all of the pain medications he has prescribed even absent her cervical and lumbar disc disease. There is no objective support for this opinion.
23. With Dr. Rinehart’s opinion as support, Defendant filed a Form 27 terminating all medical benefits as of July 20, 2007. The Department approved the termination.
CONCLUSIONS OF LAW:
1. When an employer seeks to terminate coverage for medical benefits, it has the burden of proving that the treatment at issue is not reasonable. Scranton v. The Book Press, Opinion No. 06-07WC (February 22, 2007). A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable condition or injury. See, e.g., Morriseau v. State of Vermont Agency of Transportation, Opinion No. 8-00WC (May 17, 2004).
2. In this case, Defendant argues that Claimant’s current symptoms and need for ongoing medical treatment is causally related to her degenerative disc disease, and not to any work-related or compensable condition. Therefore, Defendant argues it is no longer responsible for any further treatment, including pain medications.
3. It is well accepted that when a compensable work-related injury occurs, all of the medical consequences and sequelae that flow from it are compensable as well. Larson’s Workers Compensation Law §10.01. Determining which medical consequences flow from the work injury and which do not requires expert testimony. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979). Establishing the connection requires more than conjecture, surmise or mere possibility. The inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
4. In claims involving conflicting medical evidence from expert witnesses, 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. 3-03WC (Sept. 17, 2003).
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5. Applying this test to the instant claim weighs in favor of the two orthopedic experts, Dr. Backus and Dr. Rinehart. It is their particular training and expertise in the field of work injuries involving orthopedics, pain and occupational medicine that makes them the most credible. Both doctors have made this type of medicine their specialty for many years and both are employed doing this particular work on a daily basis. With this training and experience as a backdrop, both performed comprehensive reviews of Claimant’s medical records in addition to their examinations.
6. While admittedly Dr. Cove has had a longstanding treatment relationship with Claimant, he does not have the same specialty credentials in the spine, pain or orthopedic medicine.
7. I can find no objective basis for any work-related connection that would render Claimant’s ongoing treatment compensable. Until the 2006 MRI, there was little, if any, objective explanation for the fact that Claimant continued to suffer pain from what had been diagnosed as a soft tissue or mechanical injury. Treatment remained the same for more than ten years and Claimant’s condition did not improve. Ultimately, the 2006 MRI provided a reasonable, non-work-related explanation for Claimant’s persistent symptoms and current condition. This condition is strictly related to the natural progression of her disc disease, and has been neither caused nor aggravated by her work injuries. Its treatment, therefore, is not compensable.
8. Having concluded that Claimant’s current condition is not related to either of her prior accepted injury claims, it is not up to me to determine whether the treatment she continues to receive, including pain medications, is reasonably necessary. This is a matter I must leave to Claimant, in consultation with her treating physician. The medications he has prescribed, including those to treat Claimant’s depression, may well be reasonable and necessary for chronic pain. As the source of that pain is no longer work-related or compensable, however, neither are the medications. My inquiry can go no further than that.
9. I do find, however, that the outstanding bill for the pain injection Claimant received on June 26, 2006 is Defendant’s responsibility. The Form 27 Defendant filed in October 2006 cannot be applied retroactively.
10. As Claimant has not prevailed, she is not entitled to an award of costs or attorney’s fees.
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ORDER:
Based on the foregoing findings of facts and conclusions of law, Defendant is hereby ORDERED to pay:
1. All outstanding medical charges related to the June 26, 2006 injection procedure.
2. All other claims made by Claimant for medical services and supplies, including pain medications, are hereby DENIED.
DATED at Montpelier, Vermont this 1st day of April 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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