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Christine Erickson v. Kennedy Brothers, Inc. (December 14, 2010)

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Christine Erickson v. Kennedy Brothers, Inc. (December 14, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christine Erickson Opinion No. 36-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Kennedy Brothers, Inc.
For: Valerie Rickert
Acting Commissioner
State File No. S-09163
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 26 and August 18, 2010
Record closed on October 8, 2010
APPEARANCES:
Mary Kirkpatrick, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s L4-5 disc herniation causally related to her November 23, 2001 compensable work injury?
2. If yes, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 5: Medical Discussion Paper, Limping and Back Pain
Claimant’s Exhibit 12: Curriculum vitae, Richard Levy, M.D.
Claimant’s Exhibit 13: List of Dr. Levy’s prior testimony
Claimant’s Exhibit 14: Dr. Levy’s patient ledger
Claimant’s Exhibit 15: Letter from Marge McCluskey to Dr. Levy, October 28, 2008
Claimant’s Exhibit 16: Dr. Levy report, November 3, 2008
Claimant’s Exhibit 17: Letter from Dr. Levy to Attorney Blake, July 23, 2009
Claimant’s Exhibit 20: Invoice of attorney fees and costs
Claimant’s Exhibit 21: Contingency Fee Agreement
Claimant’s Exhibit 22: Dr. Davignon Independent Medical Evaluation, 01/11/06
Claimant’s Exhibit 23: Medical bills chart
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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
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s November 2001 Work Injury and Subsequent Medical Course
3. On November 23, 2001 Claimant was at work, assisting her employer to string outdoor Christmas lights, when she caught her right leg in a stepladder and fell. Claimant sustained a severe tibial plateau fracture, which required two surgeries to repair. Defendant accepted the injury as compensable and paid workers’ compensation benefits accordingly.
4. The injury caused permanent trauma to Claimant’s right knee. It aches, lacks full range of motion and feels weak. As a result of these deficits, Claimant moves her body differently than she did previously, consistently leaning to her left and favoring her right side. She walks up and down stairs one step at a time, always leading with her left foot rather than alternating with her right. She cannot bend, squat or twist properly. Even when sitting or driving, she twists her core and cocks her weight more to her left side.
5. Because Claimant’s right knee lacks full extension, she sometimes “toe walks,” meaning that she completes her stride with her right heel still slightly above the ground. This gait abnormality is subtle; Claimant herself is not always aware that she is doing it. Her mother has observed it, as have some, but not all, of the physicians who have examined Claimant over the course of the past several years. It fluctuates in degree with the time of day (worse in the morning and in the evening) and the weather. It also worsens when Claimant is particularly fatigued, as after a long day spent standing or walking.
6. In December 2003 Claimant fractured her femur when her right knee gave out while descending some stairs. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
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7. In November and December 2005 Claimant experienced two episodes of low back pain, one apparently prompted by having slept in a propped up position due to a cold, the other by lifting a bag of cat litter. Claimant had no prior history of low back pain. Following these episodes, Claimant’s family physician, Dr. Hoffman, and her treating orthopedic surgeon, Dr. Kristiansen, both determined that her abnormal gait pattern was at least partly to blame for her low back pain. Defendant’s independent medical evaluator, Dr. Davignon, concurred. All three recommended a course of physical therapy to emphasize back stretching, posture and gait training. Claimant underwent this therapy in early 2006, and Defendant bore the cost as causally related to her original 2001 work injury.
Claimant’s Medical Treatment in February 2008 and Thereafter
8. Claimant is a 25-year cigarette smoker. She has a history of chronic bronchitis and also of rib fractures after coughing.
9. On February 6, 2008 Claimant presented to her family physician with a complaint of right-sided rib pain that had begun two days earlier, after she had coughed hard while twisting at the same time. Although Claimant suspected that she had fractured a rib, x-rays were negative.
10. More than a month later, on March 16, 2008 Claimant presented to the Porter Hospital Emergency Room complaining of left-sided low back pain that she reported had been present “for a couple of weeks.” Claimant advised that she had had “quite a cough,” for which she had seen her family physician “off and on for the last few months,” but that the pain associated with that had been on the right side, whereas her current pain was on the left. Claimant was diagnosed with muscular back pain and referred for a course of physical therapy.
11. Claimant’s physical therapist, Michael DiPalermo, evaluated her on March 19, 2008. On March 25, 2008 Maria Collette, a physician’s assistant at Claimant’s family practice, also evaluated her. Both providers reported that Claimant’s low back symptoms had begun in February 2008, though neither specified exactly when. Ms. Collette further reported that Claimant’s pain had worsened significantly over the prior weekend, thus prompting her visit to the Emergency Room, and that she now was experiencing radicular symptoms from her left buttock down her left leg and into her ankle.
12. Ms. Collette next examined Claimant on May 12, 2008. By that time, Claimant’s low back and left leg symptoms had worsened further. Her response to a straight leg raise test, an objective test indicating the presence or absence of disc herniation, was positive. A subsequent MRI confirmed that Claimant had in fact suffered an L4-5 disc herniation with nerve root impingement. This correlated with Claimant’s clinical signs and accounted for her symptoms.
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13. Claimant’s disc herniation most likely had an insidious rather than an acute onset, and probably occurred some time between March and May 2008. This is established by the fact that her straight leg raise test was reported to be negative at the March 16, 2008 emergency room visit. It was indicative of only a partial disc herniation at Ms. Collette’s March 25th evaluation, but did not indicate a full herniation until the May 12th visit.
14. Claimant treated for her disc herniation with Dr. Flimlin, a specialist in physical and rehabilitative medicine at the Spine Institute of New England. Dr. Flimlin recommended physical therapy and epidural steroid injections. When neither of these treatments proved successful, Dr. Flimlin referred Claimant on to Dr. Braun, a surgeon. Dr. Braun performed disc surgery on December 11, 2009. Since that time, Claimant has had good relief of her radicular symptoms.
Expert Medical Opinions
15. Claimant’s treating physicians, Drs. Kristiansen, Flimlin and Bicknell, all testified to the causal relationship between her 2001 work injury, her abnormal gait and her 2008 disc herniation.
16. Dr. Kristiansen is a board-certified orthopedic surgeon. He has provided ongoing treatment to Claimant for a variety of orthopedic issues since shortly after her original knee injury in November 2001. Dr. Kristiansen’s primary area of interest involves orthopedic injuries to the arms and legs. He is fully capable of diagnosing disc herniations and disc trauma, although he typically refers such injuries to his colleagues for treatment.
17. Dr. Flimlin is board certified in physical medicine and rehabilitation. She routinely treats patients with mechanical low back pain and/or disc herniation issues. Dr. Flimlin evaluated and treated Claimant’s low back pain from August 2008 until October 2009, at which point she referred Claimant on to Dr. Braun for surgical consideration.
18. Dr. Donald Bicknell has been one of Claimant’s primary care physicians since 1986. Dr. Bicknell has treated many patients who developed low back pain after suffering an injury that altered their gait. He himself experienced low back pain many years ago, after suffering a tibial plateau fracture that temporarily caused him to limp.
19. There is very little information in the medical literature about the relationship between altered gait patterns and back pain. The premise is that walking with an altered gait pattern throws off the alignment of the hips and back and causes a lateral sway. Maintaining the body’s altered center of gravity puts repetitive stress on the trunk muscles, which in turn increases the force transmitted across the lower back. The resulting wear and tear on the lumbar spine is thought to cause or accelerate degenerative disc changes.
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20. Drs. Kristiansen, Flimlin and Bicknell all testified, to a reasonable degree of medical certainty, that this is what occurred in Claimant’s case and what ultimately led to her 2008 disc herniation. Dr. Kristiansen’s testimony was particularly credible. As Claimant’s treating orthopedist for the many years since her initial knee injury, Dr. Kristiansen has been well able to observe the lasting impact that her inability to fully flex her knee has had on her body mechanics. Dr. Kristiansen specifically noted that Claimant’s initial injury was “very severe,” that she endured a lengthy rehabilitation period afterwards and that her altered gait affected her both when walking and when standing.
21. In further support of his conclusion that Claimant’s abnormal gait pattern likely has caused the degenerative process in her lower back to accelerate, Dr. Kristiansen referred to a medical discussion paper authored by a doctor who also has training in biomechanics.1 Although not peer-reviewed, I agree with Dr. Kristiansen that the paper is well-reasoned and makes logical sense.
22. Defendant’s medical expert, Dr. Levy, testified that there is no scientific basis for concluding that an abnormal gait pattern can either accelerate disc degeneration or cause a disc to herniate. Dr. Levy is a board-certified neurologist. He reviewed Claimant’s medical records and performed an independent medical examination in November 2008. In the course of his examination, Dr. Levy personally observed Claimant’s abnormal gait.
23. Dr. Levy cited to two peer-reviewed medical journal articles he had read in which the relationship between limping and low back pain was studied. One study involved patients with congenital club foot, the other involved amputees. According to Dr. Levy, low back pain was not established to be more prevalent in either study group than it was in the general population. From this research, as well as his own experience with gait dysfunction patients, Dr. Levy determined that it was impossible to conclude, to the required degree of medical certainty, that Claimant’s abnormal gait either caused or accelerated the disc degeneration in her lumbar spine.
24. Dr. Levy agreed that the biomechanical effect of an abnormal gait pattern would be to cause the body’s center of gravity to shift, but disagreed that this would result in either mechanical back pain or lumbar disc degeneration. Instead, Dr. Levy cited a 25-year history of cigarette smoking as the most significant risk factor for degenerative disc disease in Claimant’s case. Smoking decreases the blood supply to the area and causes the discs to become dessicated and more susceptible to cracking.
1 Harrington, Ian J., M.D., Limping and Back Pain, Medical Discussion Paper presented to The Workplace Safety and Insurance Appeals Tribunal, March 2004 (Claimant’s Exhibit 5).
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25. Drs. Kristiansen, Flimlin and Bicknell all testified that although degenerative disc disease is a multi-factorial process, in Claimant’s case her gait abnormality was a primary contributing cause. Of note, although smoking might contribute to disc degeneration throughout one’s spine, the L4-5 disc is in an area that is specifically affected by gait mechanics. Claimant had evidence of degenerative disease at other levels in her spine, but only her L4-5 disc degenerated to the point of herniation. This is a strong indication that Claimant’s abnormal gait was a more significant factor in accelerating the disease there than just her history of smoking alone.
26. As for the specific cause of Claimant’s L4-5 disc herniation, in Dr. Levy’s opinion this most likely was precipitated not by her gait abnormality, but by the episode of severe coughing she experienced in early February 2008. A particularly forceful cough can put increased stress on the abdominal muscles. When transferred to the spinal column, the increased force can cause an already degenerated disc to begin to herniate.
27. A disc is comprised of a hard outer layer, the annulus fibrosis, surrounding a jelly-like inner material, the nucleus pulposus. When the outer layer cracks, the jelly-like material inside may be pushed out, either gradually or all at once. If the extruded material compresses a nerve, the patient will experience radicular symptoms. Depending on the extent of the herniation, it may take some time for this to occur. Thus, the fact that Claimant had a severe coughing episode in early February 2008 but did not experience symptoms indicative of a disc herniation until some time later does not necessarily mean that the two events were unrelated. It is impossible to know definitively whether this is what happened, however.
28. Drs. Kristiansen, Flimlin and Bicknell all discounted the coughing episode as being in any way related to Claimant’s disc herniation. Rather, they attributed the cause to the gradual progression of Claimant’s degenerative disc disease, accelerated as it was at the L4-5 level by her abnormal gait pattern.
29. Claimant’s physical therapist, Michael DiPalermo, also testified as to the causal link, if any, between Claimant’s altered gait pattern, her low back pain and her L4-5 disc herniation. Claimant has undergone extensive courses of physical therapy since her 2001 injury, and Mr. DiPalermo has had the opportunity to assess her gait on multiple occasions over the years.
30. After reviewing the medical records concerning Claimant’s coughing episode in early February 2008, Mr. DiPalermo testified that it was impossible to tell, to the required degree of medical certainty, exactly what caused Claimant’s subsequent disc herniation. He admitted, however, that her abnormal gait pattern put her at greater risk for low back pain and made her more susceptible to a disc herniation, whether from coughing or otherwise. In this respect, Mr. DiPalermo’s opinion coincided with that of Claimant’s other medical experts.
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Alleged Periods of Temporary Total Disability
31. At some point after her injury Claimant began working at the Wayberry Inn. She was terminated from her job there in May 2009, for reasons unrelated to her injury. Subsequently, Claimant collected unemployment benefits continuously up through the date of the formal hearing. She was anticipating starting a new job with the census bureau the day following.
32. Claimant testified that by the time she was laid off from work in May 2009 her low back pain had worsened to the point that it likely would have disabled her within another month. She further testified that her doctors told her “to do nothing” for twelve weeks following her December 2009 disc surgery. Last, Claimant alleged in her pleadings that she was disabled from working on August 28, 2008 and again on May 28, 2009, the days when she underwent epidural steroid injections at Dr. Flimlin’s referral. Claimant’s testimony notwithstanding, no medical evidence was introduced to substantiate her disability for any of these time periods.
Claimant’s Medical Expenses and Mileage Reimbursement Claim
33. Claimant submitted into evidence a chart detailing the medical expenses that have been incurred relative to treatment for her low back pain and disc herniation. The billed charges total $54,603.37. Of this amount, Claimant has paid $1,465.91. Various group health insurance carriers covered most of the remaining charges; approximately $3,500.00 remains unpaid. None of the billed charges have been processed in accordance with the Workers’ Compensation Medical Fee Schedule.
34. Although Claimant alleged in her post-hearing submissions that “her life and credit” have been impacted negatively as a result of Defendant’s refusal to pay her outstanding medical bills, she failed to produce any evidence whatsoever to establish the truth of this assertion.
35. Claimant also alleged in her post-hearing submissions an entitlement to mileage reimbursement totaling $494.37, covering trips to and from medical appointments between 2008 and 2010. Again, Claimant failed to submit any evidence at the hearing relevant to this claim. In particular, there is no evidence as to her regular commute distance to and from work.
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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).
Compensability of Claimant’s Disc Herniation
2. At issue in this claim is whether there is a causal link connecting Claimant’s initial work-related knee injury, her abnormal gait, the progression of her degenerative disc disease and her L4-5 disc herniation. If yes, then the latter condition is compensable as a natural consequence flowing directly from the original compensable injury. A.B. v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008); see generally, 1 Larson’s Workers’ Compensation Law §10.01.
3. There is no dispute among the medical experts that Claimant developed an abnormal gait as a direct result of her initial knee injury. I conclude that at least this much of a causal link has been established, therefore.
4. Where the experts diverge is as to the impact, if any, that Claimant’s abnormal gait had on the development and progression of degenerative disc disease in her lumbar spine. Drs. Kristiansen, Flimlin and Bicknell all opined, to a reasonable degree of medical certainty, that Claimant’s altered gait accelerated the progression of the disease, thereby making her more susceptible to a lumbar disc herniation. Dr. Levy opined that her altered gait had no effect whatsoever.
5. 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).
6. Applying this test to the expert opinions rendered here, I conclude that Claimant’s experts are the most persuasive. Dr. Kristiansen’s opinion was particularly compelling. As Claimant’s treating orthopedic surgeon for many years, Dr. Kristiansen has been able to observe the impact that her abnormal gait has had on her body mechanics over time. The basis for his opinion was clear and thorough. His testimony as to the biomechanical forces that likely cause lumbar disc degeneration lent further support to his conclusion.
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7. Although Claimant’s cigarette smoking likely contributed to her degenerative disc disease, I am unconvinced that this was the primary factor, as Dr. Levy concluded. Nor can I accept his conclusion that Claimant’s altered gait played no role whatsoever. Rather, I am persuaded by Dr. Flimlin’s testimony that the fact that Claimant’s disc herniation occurred at a disc level that is specifically affected by gait mechanics indicates that her abnormal gait most likely was the primary contributing cause of the degeneration there.
8. I conclude, therefore, that the gait abnormality that resulted from Claimant’s initial knee injury either caused or accelerated the progression of degenerative disease at the L4-5 level of her lumbar spine. The disc herniation that followed was the natural consequence of that accelerated degeneration, and likely occurred sooner than it otherwise would have had Claimant not suffered from an abnormal gait. Stannard v. Stannard Co., Inc., 175 Vt. 549, 552 (2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989).
9. In reaching this conclusion, I must reject Dr. Levy’s opinion that the coughing episode Claimant reported in early February 2008 was the likely cause of a disc herniation that did not become symptomatic until some weeks later. Although I understand how such a chain of events might be possible, I cannot discern from Dr. Levy’s testimony why it would have been probable in Claimant’s case.
10. I conclude that Claimant has sustained her burden of proving that her L4-5 disc herniation was causally connected to her original work-related injury, and is therefore compensable.
Temporary Disability Benefits
11. Claimant asserts entitlement to temporary total disability benefits for a period extending from some time in June 2009 (one month after her most recent employment terminated) until approximately mid-March 2010 (twelve weeks after her December 2009 disc surgery). Claimant also asserts entitlement to disability benefits for two days on which she underwent epidural steroid injections at Dr. Flimlin’s referral.
12. Defendant argues that because Claimant was receiving unemployment compensation for these time periods she is disqualified from receiving temporary total disability benefits. I agree that by asserting that she was available for and able to work for unemployment compensation purposes, see 21 V.S.A. §1343(a)(3), Claimant cast doubt on any claim that she was at the same time temporarily totally disabled for workers’ compensation purposes. See, e.g., Clay v. Precision Valley Communication, Opinion No. 38-02WC (August 28, 2002); Savage v. International Cheese Company, Inc., Opinion No. 60-95WC (November 30, 1995). Even more troublesome, Claimant did not produce any medical evidence at all to substantiate her claim. I conclude that she has failed to sustain her burden of proof on this issue, and therefore is not entitled to temporary disability benefits for any of the periods she claims.
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Medical Expenses and Mileage
13. Having concluded that Claimant’s low back pain and L4-5 disc herniation are compensable, Defendant is obligated to pay for all reasonable and necessary medical services and supplies causally related to treatment of these conditions. 21 V.S.A. §640(a). To the extent Claimant has paid some of these charges herself, I conclude that she is entitled to full reimbursement, with interest in accordance with 21 V.S.A. §664.
14. As for charges that were either paid by other insurance or remain outstanding, I conclude that Defendant is obligated to reimburse and/or pay these in accordance with the workers’ compensation medical fee schedule, Workers’ Compensation Rule 40, with interest as charged by the providers and in accordance with §664. Claimant’s assertion to the contrary, there is no legal basis for requiring Defendant to pay at anything other than the applicable fee schedule rates.
15. I conclude that Claimant is not entitled to an award of mileage reimbursement for her travel to and from medical appointments at this time. She failed to present this claim at hearing, and it is unclear even from her post-hearing submissions whether she has correctly calculated the amount she claims is due. Claimant is free to present Defendant with a revised, substantiated claim, but not in the context of the current proceeding.
Costs and Attorney Fees
16. Claimant successfully established the compensability of her L4-5 disc herniation, and in that respect I conclude that she has substantially prevailed. Hodgeman v. Jard, 157 Vt. 461, 465 (1991). She is entitled to an award of costs and attorney fees commensurate with the extent of her success. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion to submit evidence of her claim for allowable costs and attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits in accordance with Conclusions of Law Nos. 13 and 14 above, with interest as required under 21 V.S.A. §664;
2. Allowable costs and attorney fees in accordance with Conclusion of Law No. 16 above; and
3. Such other workers’ compensation benefits as Claimant shall prove her entitlement as causally related to her November 23, 2001 compensable injury and/or her May 2008 L4-5 disc herniation.
DATED at Montpelier, Vermont this 14th day of December 2010.
___________________________
Valerie Rickert
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.

Christopher Harrington v. John A. Russell Corp. (August 30, 2010)

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

Christopher Harrington v. John A. Russell Corp. (August 30, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christopher Harrington Opinion No. 29-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
John A. Russell Corp.
For: Valerie Rickert
Acting Commissioner
State File No. X-15430
OPINION AND ORDER
Hearing held in Montpelier, Vermont on June 28, 2010
Record closed on July 28, 2010
APPEARANCES:
William McCarty, Jr., Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s left hip condition causally related to his January 29, 1986 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Dr. Czajka, June 16, 2010
Defendant’s Exhibit A: Vermont Department of Agriculture records
CLAIM:
Workers’ compensation benefits causally related to Claimant’s left hip condition
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as an equipment operator and construction laborer. On January 29, 1986 he injured his low back and right hip when he slipped and fell at work. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
Dr. Belmonte’s Independent Medical Examinations
4. At Defendant’s request, in October 1988 Claimant underwent an independent medical examination with Dr. Belmonte.1 According to his letterhead, Dr. Belmonte is engaged in the practice of occupational medicine.
5. Dr. Belmonte reported that Claimant had undergone a prolonged course of conservative treatment since his 1986 fall, but that his right hip pain persisted. X-rays revealed advanced degenerative changes in Claimant’s right hip, and some degenerative disease in his left hip as well, though considerably less advanced. Consistent with these findings, Claimant exhibited significantly restricted range of motion in his right hip. Claimant also demonstrated restricted range of motion in his left hip, but again, to a lesser extent than on the right. According to Dr. Belmonte, Claimant denied any left hip symptoms.
6. With these findings in mind, Dr. Belmonte remarked that the question whether Claimant’s right hip condition was causally related to his 1986 fall was “clouded” by the bilateral nature of his degenerative disease, as according to him Claimant admitted that the fall had not involved his left hip at all. Nevertheless, Dr. Belmonte concluded that it was “not unreasonable” to assume that the fall could have aggravated Claimant’s right hip condition. In that sense, therefore, it was work-related.
7. Dr. Belmonte performed a second independent medical examination in October 1991. He reported that Claimant had undergone right total hip replacement surgery in February 1989 and had done well immediately thereafter. Over time, however he had once more developed pain in his right hip. According to Dr. Belmonte, Claimant also complained of some pain and demonstrated mild deficits in range of motion in his left hip, but again these symptoms were not as severe as his right-sided symptoms were.
1 Dr. Belmonte’s various independent medical examination reports provide the only documentation of Claimant’s medical course in the years immediately following his injury. The paper files maintained by Claimant’s treating orthopedic surgeon, the employer’s workers’ compensation insurance carrier and the Department have long since been destroyed.
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8. Dr. Belmonte next evaluated Claimant in December 1992. He reported that Claimant continued to complain of general soreness and intermittent pain in his right hip, and walked with a right-sided limp. Dr. Belmonte concluded that Claimant had reached an end medical result for his work-related right hip injury. He rated Claimant’s permanent impairment at 46% of the right lower extremity and determined that he was fit for light sedentary work on a full-time basis.
9. In the course of his December 1992 evaluation Dr. Belmonte also reported that Claimant had “recently noted” some gradual and progressive left hip symptoms. Dr. Belmonte described these symptoms, which he attributed to arthritis, as “chronic and mild.” Noting that Claimant had denied any trauma to his left hip in the 1986 fall, Dr. Belmonte concluded that Claimant’s left hip condition represented unrelated pathology that was developmental in nature and therefore neither caused nor aggravated by the work injury.
10. Dr. Belmonte reiterated this conclusion in September 1993, in response to a contrary opinion apparently expressed by Dr. Czajka, the orthopedic surgeon who had performed Claimant’s right total hip replacement surgery in 1989. Dr. Czajka is board certified in orthopedic surgery and also has completed fellowship training in hip and knee reconstructive surgery.
11. Dr. Belmonte reported that Dr. Czajka had remarked in his July 1993 medical record that Claimant had injured “his back and both hips” in the 1986 fall. In August 1993 Dr. Czajka had reported his assessment that Claimant ultimately would need a left total hip replacement.2 While not disputing that Claimant very well might some day require surgery on his left hip to address his ongoing symptoms, Dr. Belmonte continued to maintain that this was necessitated solely by the progressive nature of his degenerative disease. In Dr. Belmonte’s opinion, any such surgical intervention would not be causally related to the 1986 injury.
Claimant’s Course from 1993 until 2007
12. Claimant did not treat with Dr. Czajka from 1993 until 2007. During that period, Claimant trained himself as a butcher and opened his own meat cutting shop. He processed deer, beef, pork and lamb. Claimant’s shop was equipped with an overhead rail from which a carcass would be suspended, such that he could process cuts of meat directly onto a table without having to lift the entire animal. Even so, the work was physical and required prolonged standing. Although the workload varied depending on the season, Claimant testified that he averaged 30 to 40 hours weekly at this business from 1993 until the mid-2000’s. Business dropped off at that point, due to both economic factors and to changes in the state’s meat processing rules. As a result, Claimant’s hours dropped as well, down to approximately 18 to 20 weekly.
2 As noted previously, Dr. Czajka’s medical records from this period are no longer available. Therefore, it is impossible to evaluate fully the context in which the remarks quoted by Dr. Belmonte might have occurred.
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13. A heavy-set man to begin with, Claimant also gained between 20 and 40 pounds during this period.
14. It is difficult to piece together the progression of Claimant’s hip pain during the years from 1993 until 2007. Claimant testified that he continued to favor his right side even after his 1989 hip replacement, with the result that his left hip ached constantly. His wife testified that Claimant always had hip pain, and to her mind the question was simply “which one was worse on what day.”
15. Contemporaneous medical records corroborate both Claimant’s and his wife’s testimony. Specifically, Dean Measeck, an orthopedic physician’s assistant who evaluated Claimant for left hip discomfort in December 2000, remarked that Claimant walked with an antalgic gait, or limp, on the right. Favoring one’s right side in this way puts additional weight, and thereby stress, on the left side.
16. X-rays taken at the time of Mr. Measeck’s evaluation were indicative of advancing osteoarthritic changes in the left hip. Notably, x-rays also revealed that the replacement socket in Claimant’s right hip had rotated, an indication that his right total hip replacement had failed. Mr. Measeck urged Claimant to contact Dr. Czajka “sooner rather than later” about this finding, as it might signal the need for further surgical intervention. Claimant did not immediately do so, however, despite the fact that he continued to experience pain and stiffness in both hips thereafter.
Claimant’s Course since April 2007
17. On the morning of April 30, 2007, as Claimant was getting into his truck, he felt a pop in his right hip. The pain was severe. Claimant went immediately to Dr. Czajka’s office. X-rays revealed that the replacement socket in Claimant’s right hip had loosened and become totally displaced. Claimant was immediately hospitalized, and Dr. Czajka performed revision surgery to replace the loosened component the following day.
18. Claimant was on crutches for at least three months after the revision surgery. Claimant testified that this put even more stress on his left hip, with the result that the pain in that joint continued to worsen. Claimant’s wife testified that after the 2007 surgery, “[the right] hip now becomes the good hip, and the left hip is now the bad hip.”
19. Initially Defendant denied responsibility for Claimant’s 2007 revision surgery. It maintained that intervening factors, including both his meat cutting work and his weight gain, had caused his right hip to fail. Defendant maintained its denial until just days before the formal hearing, at which time it reversed its position and voluntarily accepted responsibility for the 2007 surgery.
20. In the years since his 2007 revision surgery, Claimant has continued to experience pain and stiffness in both hips. X-rays taken in February and December 2009 documented significantly worsening arthritis in his left hip. As treatment, Dr. Czajka has recommended a left total hip replacement.
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21. Both Claimant and his wife testified as to his current limitations. Claimant cannot now stand, sit, recline or walk for any period of time without pain. He ambulates with crutches, requires his wife’s assistance to dress and cannot do household chores. Getting into and out of his car is a struggle. Claimant works only limited hours at his meat cutting shop. He has been receiving Social Security disability benefits since approximately 2003 solely on account of his right hip condition.
Expert Medical Opinions as to Cause of Claimant’s Left Hip Condition
22. In Dr. Czajka’s opinion, Claimant’s work, his body habitus and the multiple surgeries he has undergone on his right hip all have combined to cause his left hip arthritis to worsen more quickly than it otherwise might have. Specifically as to the impact that Claimant’s right hip condition has had on the progression of the degenerative disease in his left hip, Dr. Czajka suggested “a probable 40 to 50% causal relationship of the left hip problem because of the right hip arthritis and injury sustained.”
23. Dr. Czajka testified that Claimant’s left hip “took the brunt of his activities,” particularly during the times following his right hip surgeries when he was on crutches. As a result, in Dr. Czajka’s opinion Claimant’s left hip arthritis was “significantly aggravated” by the problems he has had with his right hip.
24. Dr. Johansson, who conducted a medical records review at Defendant’s request, disagreed with this assessment. Dr. Johansson is an osteopathic physician who specializes in the non-surgical treatment of musculoskeletal injuries.
25. Dr. Johansson found no evidence from which to conclude, to the required degree of medical certainty, that Claimant’s right hip surgeries have played any role in the progression of the arthritis in his left hip. To the contrary, in Dr. Johansson’s view Claimant’s left hip symptoms have progressed exactly as one would expect in a patient with documented evidence of arthritis dating back to 1988.
26. There are many possible causes of osteoarthritis, including excessive weight, work-related stressors, trauma or genetic predisposition. With that in mind, Dr. Johansson expressed no opinion as to the most likely cause of Claimant’s left hip arthritis. According to his review of the medical records, both Claimant’s weight and his meat cutting activities were possible contributing factors.
27. Notably, Dr. Johansson dismissed Claimant’s right hip surgeries as irrelevant to the progression of his left hip disease in part because he found no evidence in the medical records indicating that Claimant walked with an antalgic gait or otherwise experienced any ongoing problems with his right hip. In fact, Dr. Belmonte documented in his December 1992 permanency evaluation that Claimant walked with a right-sided limp. As noted in Finding of Fact No. 15 above, furthermore, a December 2000 medical record documented the same antalgic gait pattern eight years later.
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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 whether the osteoarthritis in Claimant’s left hip was either caused or aggravated by the right hip injury he sustained as a consequence of his 1986 fall at work. Defendant having accepted the compensability of Claimant’s right hip injury, it is responsible as well for all of the natural consequences that flow directly from it. A.B. v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008); see generally, 1 Larson’s Workers’ Compensation Law §10.01. This includes the consequence Claimant alleges in this claim – that as a result of his compensable right hip injury the osteoarthritis in his left hip was aggravated and accelerated. See 1 Larson’s Workers’ Compensation Law §10.03 and cases cited therein.
3. Where, as here, the preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, “due to a work injury or the work environment, ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard v. Stannard Co., Inc., 175 Vt. 549, 552 (2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989).
4. Notably, this test asks only whether a claimant’s work injury contributed to accelerate the underlying condition, not whether other factors may have contributed as well. Medical causation is often multi-factorial, and the pace at which a progressive condition degenerates may be due to a number of contributing circumstances. The causal link back to the work injury is not broken, however, unless the medical evidence clearly establishes some other factor as the superseding cause. Jackson, supra at 597.
5. 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 (Sept. 17, 2003).
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6. Here, Dr. Czajka identified Claimant’s work-related right hip injury as the reason why his left hip “took the brunt of his activities,” particularly after the 2007 revision surgery. Both Claimant and his wife testified credibly to the same effect. Their testimony was supported by medical records documenting that Claimant had continued to favor his right hip even after his first hip replacement surgery.
7. Those same medical records undermine Dr. Johansson’s opinion that Claimant’s right hip injury played no role whatsoever in the progression of his left hip arthritis. True, the condition probably would have progressed “even if left to itself,” Jackson, supra at 596, but that is not the appropriate standard for measuring compensability. Stannard, supra. Equally plausible, as Dr. Johansson testified, other factors, such as Claimant’s weight or his meat cutting work, may have contributed to accelerate the disease. Notably, however, Dr. Johansson stopped short of identifying those as superseding causes to the required degree of medical certainty.
8. Considered one against the other, I find Dr. Czajka’s opinion more credible than Dr. Johansson’s. I conclude, therefore, that as a natural consequence of Claimant’s work-related right hip injury the underlying arthritis in his left hip was accelerated. Claimant’s left hip condition, therefore, is compensable.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,151.66 and attorney fees totaling $16,877.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
10. As for attorney fees, these lie within the Commissioner’s discretion, subject to the limitations of Workers’ Compensation Rule 10.1210. That rule recently has been amended. An award of attorney fees incurred prior to June 15, 2010, the effective date of the amendment, is limited to a maximum rate of $90.00 per hour. For fees incurred on or after June 15, 2010 the new maximum rate is $145.00 per hour. Claimant’s billing statement encompasses a total of 130.25 hours, all but 47 incurred prior to June 15th. Applying the appropriate maximum billing rates, the total requested is $14,307.50. This amount is awarded.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves his entitlement causally related to his compensable left hip condition;
2. Costs totaling $2,151.66 and attorney fees totaling $14,307.50.
DATED at Montpelier, Vermont this 30th day of August 2010.
____________________
Valerie Rickert
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.

Stefan Kurant v. Sugarbush Soaring Association, Inc. (May 4, 2010)

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Stefan Kurant v. Sugarbush Soaring Association, Inc. (May 4, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Stefan Kurant Opinion No. 17-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Sugarbush Soaring Association, Inc.
For: Patricia Moulton Powden
Commissioner
State File No. M-08732
OPINION AND ORDER
Hearing held in Montpelier, Vermont on February 11, 2010
Record closed on March 1, 2010
APPEARANCES:
Patricia Turley, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s bilateral shoulder condition causally related to his October 5, 1998 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Sikhar Banerjee, M.D.
Claimant’s Exhibit 2: Dr. Banerjee deposition, December 2, 2009
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, M.D., M.P.H., C.I.M.E.
Defendant’s Exhibit B: Dr. Backus deposition, January 6, 2010
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s 1998 Compensable Injury
3. On October 5, 1998 Claimant was seriously injured when the glider plane he was piloting crashed. Claimant suffered multiple injuries, including a burst fracture in his thoracolumbar spine, a traumatic brain injury, bilateral ankle fractures and trauma to his knees.
4. Defendant initially disputed the compensability of Claimant’s injury on the grounds that he was not an employee. After a formal hearing on the merits, Claimant’s claim was determined to be compensable. Kurant v. Sugarbush Soaring Association, Opinion No. 10-01WC (April 18, 2001). Subsequently the Department approved the parties’ proposed Form 14 Settlement Agreement, which resolved Claimant’s entitlement to indemnity benefits causally related to his injury.
5. Claimant has recovered remarkably well from his injuries. He leads an independent and productive life and works from his home as a self-employed information technology specialist.
6. While Claimant suffered extensive injuries to his lower extremities in the 1998 accident, aside from a fractured left hand his upper extremities were largely unaffected.
Claimant’s Bilateral Shoulder Symptoms
7. Claimant testified that he first began experiencing pain in his shoulders in June 2007. He sought treatment with Dr. Rodeo, the orthopedic surgeon who had treated him in conjunction with his 1998 injuries. Dr. Rodeo first examined Claimant on July 30, 2007. His office note reflects that Claimant reported that he had been experiencing left shoulder pain for the past two months, but that he could not recall any one distinct precipitating injury. According to Dr. Rodeo’s note, Claimant further reported that the pain occurred when he arose from a seated position by pushing down with his arms, and also when he engaged in overhead activities. Dr. Rodeo suspected a left shoulder impingement and/or rotator cuff tear. As treatment he administered a subacromial steroid injection.
8. Claimant testified that following Dr. Rodeo’s appointment he began to think back on his activities to see if he might recall a precipitating incident for his shoulder pain. Ultimately he recalled a Sunday in early June when he lost his balance at home and saved himself from falling by bracing his arms against the wall. Claimant reported this incident to Dr. Rodeo, and to all subsequent medical providers as well, as the event that triggered his left shoulder pain.
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9. Claimant testified that he has had balance issues ever since his 1998 accident. He rarely falls to the ground because he is able to catch himself with his arms and break his fall. Claimant estimated that these near-fall incidents have occurred approximately two times every month for the past eleven years.
10. Claimant underwent formal equilibrium testing in February 2009, which confirmed findings of both unsteadiness and decreased reaction time for recovery. Although Claimant’s medical records prior to 2007 make no mention whatsoever of any ongoing balance issues, such problems are not uncommon among traumatic brain injury patients. Claimant’s orthopedic injuries also may be a contributing factor.
11. Since initially complaining of pain and restricted motion in his left shoulder in July 2007, Claimant has treated for similar symptoms in his right shoulder as well. Claimant believes this is due to overcompensation for the pain in his left shoulder.
12. Claimant has metal hardware in his body from his prior surgeries, and therefore cannot undergo an MRI scan to aid in diagnosing his shoulder condition. His current treating orthopedic surgeon has recommended a shoulder arthroscopy, for both diagnostic and therapeutic purposes.
Expert Medical Opinions
13. At his attorney’s referral, Claimant underwent an independent medical evaluation with Dr. Banerjee, a physiatrist, in October 2008. Dr. Banerjee described a scenario of “repeated” and “frequent” falls causally related to Claimant’s balance deficits. He likened the resulting stress to Claimant’s shoulders to that experienced by workers whose jobs require constant repetitive movements. The repetitive stress causes microtrauma, which gradually accumulates and becomes symptomatic.
14. In Dr. Banerjee’s opinion, Claimant’s shoulder symptoms are causally related to his frequent falls and near-falls, which in turn are causally related to the balance deficits that have resulted from the injuries he suffered in 1998. In this way, according to Dr. Banerjee, Claimant’s shoulder symptoms are causally related to his 1998 work-related accident.
15. Dr. Banerjee admitted that he did not discern from Claimant exactly how often he experiences episodes requiring him to use his shoulders in order to catch himself from falling. In that respect, Dr. Banerjee made no attempt to quantify the extent of the microtrauma to which Claimant likely has been exposed under his theory of causation.
16. At Defendant’s request, in July 2009 Claimant underwent an independent medical evaluation with Dr. Backus. Dr. Backus is board certified in occupational and environmental medicine, and also has completed a master’s degree in public health. His training includes specific expertise in biostatistics, epidemiology and occupational injury causation.
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17. Citing to a “mega-analysis” of the medical literature on causation of shoulder tendinitis, impingement and rotator cuff tears,1 Dr. Backus determined that the proposition that Claimant’s bilateral shoulder injuries were related to repeatedly catching himself from falling was “an interesting theory,” but one that could not be sustained to a reasonable degree of medical certainty. More specifically, Dr. Backus testified that the frequency of these incidents – twice a month, according to Claimant – was insufficient either to qualify as “repetitive” or to cause a significant accumulation of microtrauma so as to result in injury.
18. According to the treatise cited by Dr. Backus, there is “some evidence” that highly repetitive work, either alone or in combination with other factors such as force and awkward posture, is an occupational risk factor for shoulder tendinitis, impingement and/or rotator cuff tears. At the same time, there is “strong evidence” of non-occupational risk factors for these injuries. For example, such “biopsychosocial” factors as high job stress, depression and/or previous shoulder or neck discomfort are associated with an increased incidence of tendinitis, impingement and/or rotator cuff tears. Obesity is also a risk factor. Last, there is “strong evidence” of age as a risk factor; according to one study cited in the treatise, among the factors with the highest predictive value for identifying a person likely to develop shoulder tendinitis in the near future is “age older than 40 years.”2
19. Dr. Backus acknowledged that it certainly is possible for Claimant’s suspected shoulder condition to have been caused by trauma. He cautioned against assuming that to be the case, however, as a non-occupational cause might be equally plausible. To do as Claimant did, therefore – assume a traumatic cause for his symptoms and then look back for a likely incident – often leads to an erroneous conclusion.
20. Dr. Backus was not asked to determine, to a reasonable degree of medical certainty, what the most likely cause of Claimant’s shoulder condition was. He admitted that not all of the various risk factors identified in the medical literature “mega-analysis” cited above were present in Claimant’s case. In Dr. Backus’ experience, it is not always possible to identify the exact cause of an injury to the required degree of medical certainty. In his opinion, that is the case here.
1 Melhorn, J. Mark, and Ackerman, William E., AMA Guides to the Evaluation of Disease and Injury Causation, chapter 9 at pp. 184-190.
2 Claimant was approximately 45 years old when he first began experiencing pain and restricted motion in his shoulders.
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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. 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 (Sept. 17, 2003).
3. Carefully weighing these factors in the current claim, I conclude that Dr. Banerjee’s opinion is deficient, and that Dr. Backus’ is the most persuasive. I accept Dr. Banerjee’s conclusion that Claimant’s repeated falls and near-falls most likely have resulted from balance deficits causally related to his 1998 work injury. However, I cannot find sufficient evidence to sustain Dr. Banerjee’s ultimate conclusion – that as a result of those falls Claimant sustained repetitive microtrauma sufficient to cause his bilateral shoulder symptoms.
4. Dr. Banerjee conducted only a cursory inquiry into the nature, severity and frequency of Claimant’s falls. He provided no supporting documentation for his assertion that a frequency averaging only two such incidents per month, even when sustained over a period of eleven years, would equate to the conditions faced by workers engaged in constant repetitive activities in the course of their jobs. The medical literature “mega-analysis” cited by Dr. Backus seems to indicate otherwise.
5. I acknowledge that a causation opinion such as Dr. Backus’, which is based primarily on an analysis of the medical literature as to risk factors, is not always persuasive. Typically this type of analysis involves statistical associations across sample populations, not specific facts in individual cases. Even so, by either adding to or detracting from the significance of specific facts, statistical associations assist in the process of determining which causation theories are sustainable and which are not. Compare Brace v. Jeffrey Wallace, DDS, Opinion No. 28-09WC (July 22, 2009) with Daignault v. State of Vermont, Economic Services Division, Opinion No. 35-09WC (September 3, 2009).
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6. Here, Dr. Banerjee’s reliance on Claimant’s history of “frequent” and “repeated” falls as support for his theory that repetitive microtrauma caused Claimant’s shoulder injury is undermined both factually and statistically. The stress to his shoulders was in no sense “highly repetitive,” nor did it involve any additional factors such as force or awkward posture.3 There is no basis, therefore, for identifying the near-falls as any more likely a cause of Claimant’s shoulder pain than, for example, his age.
7. I note, finally, that while it is somewhat unsatisfying for Dr. Backus to rule out Claimant’s falls and near-falls as the most likely cause of his shoulder condition without at the same time conclusively ruling in an alternative cause, the burden was not on him to do so. Claimant bears the burden of proof as to causation, and unless he does so to the required degree of medical certainty his claim must fail. Burton v. Holden Lumber Co., 112 Vt. 17, 20 (1941). I conclude that he has not met his burden here.
8. As Claimant has not prevailed, he is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his bilateral shoulder symptoms is hereby DENIED.
DATED at Montpelier, Vermont this 4th day of May 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.
3 In his proposed findings Claimant cites to one of the studies reviewed in the “mega-analysis” as support for his contention that the “awkward postures” to which he was subjected as a result of his falls and near-falls also contributed to create a significantly higher risk of shoulder injury. In fact, the two studies referred to both involved sustained and prolonged awkward postures of a type presumably not at issue here. AMA Guides to the Evaluation of Disease and Injury Causation, supra at p. 188.

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.

Connie Lozell v. Hannaford Brothers (March 8, 2010)

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Connie Lozell v. Hannaford Brothers (March 8, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Connie Lozell Opinion No. 10-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Patricia Moulton Powden
Commissioner
State File No. AA-01092
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 23, 2009
Record closed on December 23, 2009
APPEARANCES:
William Skiff, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Was Claimant’s right total knee replacement causally related to her September 3, 2008 work injury?
EXHIBITS:
Joint Exhibit 1: Medical records
Claimant’s Exhibit 1: Deposition of David Halsey, M.D., November 18, 2009
Claimant’s Exhibit 2: Wage Statement (Form 25)
Claimant’s Exhibit 3: Curriculum vitae, David Halsey, M.D.
Defendant’s Exhibit A: Curriculum vitae, Philip Adamo, M.D.
CLAIM:
Workers’ compensation benefits causally related to Claimant’s right total knee replacement
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 has worked at Defendant’s supermarket for six years, the last two as a full-time maintenance person. Among her job duties are cleaning out the milk coolers, vacuuming the carpets at the front of the store, and picking up and sorting trash.
4. On September 3, 2008 Claimant was depositing some trash into a bin when she caught her shoelace in a pallet and fell to the cement floor. Claimant landed directly on her right knee. Her knee immediately became painful and swollen, to the point where Claimant had to leave work and seek treatment at the hospital emergency room.
5. Claimant was diagnosed with a fracture of her right kneecap, or patella. In addition, imaging studies revealed evidence of long-standing osteoarthritis in her right knee. Claimant had suffered a previous right patellar fracture in a 1986 motor vehicle accident. She had recovered completely from that injury. Aside from an episode of right knee pain in 2004, prior to September 2008 Claimant had not treated for any other symptoms in her right knee.
6. At the time of her September 2008 fall at work Claimant was 66 years old. She enjoyed a very active lifestyle, which included line dancing and playing with her grandchildren. Witnesses described her “wrassling” with the children in the snow and pulling them in a wagon. Claimant testified credibly that she did not experience any knee pain whatsoever associated with these or any other activities, and did not feel functionally limited to any extent prior to September 2008.
7. Initially Claimant treated conservatively for her injury. Her symptoms improved with physical therapy, to the point where she was able to return to work part time in October 2008. When she attempted to return to work full time, however, her symptoms worsened again. After only two weeks of full time work, Claimant’s physician restricted her again to half-time shifts.
8. Ultimately Claimant was referred to Dr. Halsey, an orthopedic surgeon, for further evaluation and treatment. Dr. Halsey determined that because her symptoms had failed to resolve with conservative management, she was an appropriate candidate for joint replacement. Claimant underwent right total knee replacement surgery on March 24, 2009. She made a full recovery thereafter, and returned to work full time in June 2009.
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9. In Dr. Halsey’s opinion Claimant’s September 2008 fall at work “permanently exacerbated” the pre-existing arthritis in her right knee. Dr. Halsey acknowledged that this underlying condition already had caused significant cartilage loss, rated as Grade 4 (of 4) osteoarthritis, but noted that it had not caused any chronic pain, instability or functional limitation prior to September 2008. Dr. Halsey testified that by itself, evidence of even Grade 4 cartilage loss on imaging studies, without accompanying disabling symptoms, provides insufficient justification for joint replacement surgery. The purpose of the surgery is to address symptoms that have failed to resolve with conservative management. According to Dr. Halsey, in Claimant’s case these symptoms were caused, and Claimant’s underlying osteoarthritis worsened, by her September 2008 fall at work.
10. Defendant’s medical expert, Dr. Adamo, an occupational medicine practitioner, disagreed with Dr. Halsey’s analysis. Dr. Adamo did not examine Claimant personally but reviewed her pertinent medical records. Based on that review Dr. Adamo concluded that Claimant’s total knee replacement was necessitated by her underlying osteoarthritis, not by her September 2008 fall at work. In making this determination, however, Dr. Adamo acknowledged that he was unaware of Claimant’s level of functioning prior to that incident. He also mistakenly understood that Claimant had resumed her pre-injury activities and successfully returned to full time work by mid-October 2008. In fact, as noted above Claimant was only able to manage full-time work for two weeks before her ongoing symptoms prompted her physician to restrict her again to part-time shifts.
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. 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 (Sept. 17, 2003).
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3. I find Dr. Halsey’s opinion to be the more persuasive one here. Dr. Halsey credibly explained that Claimant’s knee replacement surgery was undertaken not merely because osteoarthritis was present in her joint, but rather because her September 2008 fall had exacerbated that underlying condition to the point of causing chronic disabling symptoms. In contrast, Dr. Adamo’s opinion was rendered less credible at least in part because he was not aware of the extent of Claimant’s ongoing pain and resulting functional limitations after that event.
4. It is axiomatic that when a work injury aggravates or accelerates an underlying condition, the resulting disability and/or need for medical treatment is compensable. Miller v. Engleberth Construction Co., Opinion No. 45-04WC (November 5, 2004), citing Marsigli’s Estate v. Granite City Auto Sales, 124 Vt. 95 (1964). I find from the credible medical evidence that that is what occurred here. I conclude, therefore, that Claimant is entitled to workers’ compensation benefits causally related to her March 24, 2009 knee replacement surgery.
5. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,247.43 and attorney fees totaling $3,969.00. 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 March 24, 2009 right total knee replacement, with interest as appropriate in accordance with 21 V.S.A. §664; and
2. Costs totaling $3,247.43 and attorney fees totaling $3,969.00.
DATED at Montpelier, Vermont this 8th day of March 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.

A. R. v. EHV Weidman (August 10, 2006)

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A. R. v. EHV Weidman (August 10, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. R. Opinion No. 36-06WC
By: Margaret A. Mangan
v. Hearing Officer
EHV Weidman For Patricia Moulton Powden
Commissioner
State File No. X-19525
Hearing Held in Montpelier on June 6, 2006
Record closed on June 20, 2006
APPEARANCES:
Vincent Illuzzi, for the Claimant
Nicole R. Vincent, for the Defendant
ISSUE:
Is the Claimant’s ongoing membership in a health club compensable?
EXHIBITS:
Joint I: Medical records
Claimant’s 1: Affidavit of Thomas Turek, D.C.
Claimant’s 2: Curriculum vitae of Dr. Turek
Defendant A: Transcript of deposition of Victor Gennaro, D.O.
FINDINGS OF FACT:
1. Claimant was an employee and EHV Weidmann his employer within the meaning of the Workers’ Compensation Act from 1973 until Claimant retired in 1999.
2. In the fall of 1985, Claimant injured his upper back when he tried to catch a large heavy cylinder and twisted in the process. He was diagnosed with a thoracic strain.
3. Before the 1985 work related incident, Claimant did not have symptoms of back problems. However, he had a condition called osteogenesis imperfecta that is known to cause ligament laxity and fractures. Before the work-related injury, Claimant also had an exaggerated thoracic kyphosis that was asymptomatic.
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4. After his work related injury, Claimant consulted with several health care providers, including Thomas Turek, D.C. who treated him with spinal manipulation, ultra-sound therapy and exercise therapy.
5. Dr. Turek placed Claimant at medical end result in July 1991. Palliative care continued. Dr. Turek recommended that Claimant continue flexibility exercises, which could be done at home.
6. An x-ray taken in 1991 revealed a thoracic level compression fracture that was not present in 1985.
7. In 1991 Dr. Peterson examined the Claimant. He determined that Claimant had reached medical end result and assigned a permanency rating. He also determined that Claimant would need continued chiropractic treatment on an infrequent basis and that he should continue daily exercise, including strength training.
8. In 1992 Claimant was advised to have aqua therapy for low back and leg pain unrelated to the work-related injury.
9. Claimant consistently follows an exercise routine recommended by his physicians and developed by a physical therapist at his local gym.
10. On occasions when Claimant had to stop his exercise regimen, his upper back pain returns.
11. The goal of a several month physical therapy program Claimant had in 1994 was to prepare him for an independent home exercise program.
12. In 1999 Claimant fell and fractured his hip. Treatment required hospitalization. He never returned to work after that injury.
13. In 2004 Claimant fell and sustained a clavicle fracture.
14. Dr. Turek opined that Claimant requires periodic treatment to maintain his status. Claimant’s first visit to Dr. Turek in fifteen years was in August of 2005. At that time, he opined that Claimant’s work related injury required continued use of the health club.
15. In February 2006 Dr. Victor Gennaro examined Claimant for the defense. He noted that those with osteogenesis imperfecta and thoracic kyphotic curvature frequently have chronic pain and spinal deformity. Dr. Gennaro opined that any symptoms Claimant now experiences are not from the 1985 injury, but from more recent causes. He based that decision on the diagnosis in 1985 (thoracic sprain), date of medical end result (1991), Claimant’s other medical conditions, and the difference in Claimant’s current symptoms compared to those in 1995. Further, Dr. Gennaro opined that the health club membership would be reasonable management for the osteogenesis imperfecta, but not for the work-related sprain. It would be reasonable because Claimant chose it. But all the exercises Claimant needs could be done with an exercise ball and walking, without the expense of a gym.
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16. Dr. Hebert, Claimant’s primary care physician, opined that the health club membership was reasonable treatment for Claimant’s spinal compression fractures. Those fractures were not work-related.
17. Claimant has managed his symptoms by joining a gym and actively exercising.
18. The exercises Claimant needs to manage any persistent symptoms from his thoracic strain could be done at home. Claimant is more likely to do them if he goes to the gym regularly.
19. Claimant has submitted support for an attorney fee award based on 43 hours of work and necessary costs of $429.82.
CONCLUSIONS OF LAW:
1. A Claimant injured in an accident that arose out of and in the course of his employment is entitled to reasonable medical treatment causally related to that injury. 21 V.S.A. § 618; 640(a).
2. Assuming that the gym membership is reasonable, the issue for decision is whether it is causally related to the 1995 work related injury.
3. In determining causation, there must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the work related injury caused the need for the gym membership; proof that it is more probable is necessary. See Burton v. Holden Lumber Co., 112 Vt. 17 (1941).
4. Claimant is to be commended for his regular exercise regime from which he has reaped benefits. However, a careful review of all records, including early records from Dr. Turek, supports the defense position that the work-related thoracic strain does not account for the symptoms Claimant claims are helped by participation in the gym.
5. First, home exercises were all that was needed for the thoracic strain after physical therapy ended in 1994. Claimant’s preference for a gym membership is a personal one, not a medical requirement for the work-related injury. The decisive factor is not what the Claimant desires or what he believes to be the most helpful, but what is shown by competent expert evidence to be reasonable and casually related to the work related injury. Britton v. Laidlaw Transit, Opinion No 47-03WC (2003). Second, the exercised Claimant performs at the gym are more likely needed because of the fractures that occurred after the work-related injury and Claimant’s preexisting conditions, as one of Claimant’s treating physicians and both defense exerts have opined.
6. Because the crucial element of causation is lacking, the carrier is no longer responsible for paying the gym membership fee.
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ORDER:
Therefore based on the foregoing findings of fact and conclusions of law, this claim is DENIED.
Dated at Montpelier, Vermont this 10th day of August 2006.
________________________________
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.

D. B. v. Vergennes Auto Inc. (October 9, 2006

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D. B. v. Vergennes Auto Inc. (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. B. Opinion No. 42-06WC
By: Margaret A. Mangan
v. Hearing Officer
Vergennes Auto Inc. For: Patricia Moulton Powden
Commissioner
State File No. U-02969
Hearing held in Montpelier on June 21, 2006
Record closed on July 10, 2006
APPEARANCES:
Mary G. Kirkpatrick, Esq., for the Claimant
Andrew C. Boxer, Esq., for the Defendant
ISSUES:
1) Is Claimant’s left shoulder condition causally related to her 2003 right shoulder injury?
2) Did Claimant reach medical end result in the summer of 2005?
3) Did the Defendant waive its right to contest left shoulder claims by voluntarily paying related medical bills?
EXHIBITS:
Claimant:
1. Letter of June 10, 2005 from adjuster to Claimant
2. Office note of June 1, 2005 from Dr. Nichols
3. A June 23, 2005 Travelers form signed by Dr. Nichols
4. An April 4, 2005 claim form which has work restrictions
5. Surveillance video (on CD) of April 27, 2005
6. Transcript from Claimant’s deposition
Defendant:
1. Post-it note from Dr.Claude Nichols
2. Reverse side of Defendant 1
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FINDINGS OF FACT:
1. Claimant has a long history of manual labor work.
2. Claimant was an employee and Vergennes Auto her employer within the meaning of the Vermont Workers’ Compensation Act. She had been working for Vergennes Auto for about a year and a half at the time of her work related injury in July 2003.
3. American Zurich Insurance Company was the workers’ compensation insurance carrier for Vergennes Auto on July 30, 2003.
4. It is undisputed that Claimant suffered a work related injury to her right shoulder on July 30, 2003 when a car hood fell on that shoulder. She is left hand dominant.
5. After the injury, Claimant received medical and physical therapy treatment for the right shoulder.
6. By November 2003 she was diagnosed with a full thickness rotator cuff tear. She had surgery on December 16, 2003. Two weeks later she was released to work with her right shoulder still in a sling.
7. Physical therapy continued even after Claimant’s return to work. Although she was left hand dominant, she was using that arm even more than usual.
8. Claimant was given restrictions against using the right arm in certain activities. A Spring 2004 MRI revealed that the right shoulder muscle was not completely healed.
9. Pain developed in her left shoulder as she used that arm more. In July 2004 she noted marked left shoulder pain that prompted her to seek medical attention when she lifted a gallon of milk from her refrigerator.
10. Claimant was diagnosed with impingement syndrome in the left shoulder.
11. Because of persistent pain and positive objective tests, Dr. Nichols performed a second operation on Claimant’s right shoulder in January 2005. Medical efforts then focused on her left shoulder.
12. Dr. Nichols diagnosed a full thickness tear in Claimant’s left shoulder, similar to what she had on the right side.
13. Physicians agree that the blood supply to the rotator cuff is poor, increasing the likelihood that with age and with manual labor, the rotator cuff would tear. Often such tears are asymptomatic.
14. Claimant continued physical therapy in an effort to quiet both shoulders. The insurance carrier paid for the treatment.
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15. Claimant’s pain in both shoulders continued. In June 2005, Dr. Nichols noted that Claimant had a work capacity for three to four hours a day at the sedentary level. He predicted that she would reach medical end result by July of that year, 2005.
16. Dr. Nichols recommended surgery on Claimant’s left shoulder, but in June 2005 she declined. Her condition has remained essentially unchanged since then.
17. In July 2005, Dr. John Johansson determined that Claimant had reached medical end result.
18. Dr. Lefkoe, a physiatrist, began treating Claimant for pain in July 2005. He determined that she had not yet reached medical end result because better pain management would improve her function. In his opinion, pain management is not merely palliative because functional outcome can be improved. Shoulder range of motion measurements have improved slightly under his care. Activities of daily living are easier for her.
19. Claimant continues to complain of pain in her left shoulder. Although she has received several treatment modalities, the only relief she has enjoyed is about an hour after a massage.
20. Although Claimant used her left arm more when the right was restricted, that use did not reach the level of overuse for the shoulder because it did not involve repetitive motions with her left arm elevated.
21. The carrier has paid for treatment of both shoulders, without accepting the left shoulder as compensable.
Causation
22. In 2006 Dr. Johansson opined that Claimant’s left shoulder condition is not causally related to her work related injury, although in his permanency report of 2005 he suggested that it was. He reasoned that the more likely cause of the left sided rotator cuff tear was normal aging since women of Claimant’s age have been known to develop such tears insidiously.
23. Dr. Claude Nichols, treating orthopedic surgeon, was called by the Claimant to testify at the hearing. He opined that it is more probable than not that Claimant’s left shoulder pain is related to the right shoulder work-related injury because of overuse of her left shoulder, although he could not say that the rotator cuff tear was caused by the overuse. In fact, the left sided tear could have happened before the work related injury.
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Medical End Result
24. Dr. Johansson opined that Claimant reached medical end result in the summer of 2005. At that time he predicted that no further treatment was required except home exercises.
25. According to Dr. Nichols, Claimant had reached medical end result once she decided against surgery.
CONCLUSIONS OF LAW:
Waiver
1. Claimant argues that Defendant waived its right to contest liability for her left shoulder tear because it had paid medical bills for both shoulders.
2. “A waiver is the intentional relinquishment of a known right.” Liberty Mutual Insurance Co. v. Cleveland, 127 Vt. 99, 103 (1968). (citing and quoting Beatty v. Employers’ Liability Assurance Corp., Ltd., 106 Vt. 25,31
3. The burden falls on the party asserting waiver to show an “act or an omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right at question.” M. S. v. Visiting Nurse Association, Opinion No. 10-06WC at 4 (2006). (citing Holden & Martin Lumber Co. v. Stuart, 118 Vt. 286, 289 (1954)).
4. While Defendant paid some medical bills related to the left shoulder injury, this alone is insufficient to show acceptance of a claim. Briggs v. Maytag Homestyle Repair, Opinion No.18-00WC (2000). The facts indicate that the Defendant made these payments in good faith, before it was certain whether or not the claim was actually compensible.
5. In short, the Defendant paid these medical bills without knowledge of all the relevant facts and, as a result, could not have waived its right to contest the claim. (See Hojohn v. Howard Johnson, Opinion No. 43-04WC at 6 (2004). Accordingly, the question of causation must be addressed.
Causation
6. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962).
7. To prevail on the contested issue Claimant must prove that her left shoulder injury arose out of and in the course of her employment. 21 V.S.A. § 618. Although not directly injured the day the car hood fell on her right shoulder, the left shoulder pain is compensable if it is a natural consequence of the right-sided injury. See 1 Larson’s Workers’ Compensation Law § 10.
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8. However, a temporal relationship alone is an insufficient basis for an award. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983).
9. Here, the requisite causal relationship between the right and left sided conditions has not been proven. No physician, including her treating surgeon, was able to say when the left sided tear occurred. Although Claimant used her left arm more than usual, the evidence does not support her argument that such use rose to the level of shoulder overuse because it did not involve repetitive movements with her arm elevated. In all likelihood it was the natural progression of years of hard labor and the normal aging process, not as a result of the right-sided injury. Accordingly, the left sided condition is not compensable.
Medical End Result
10. Next is the question of medical end result, which is “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant improvement is not expected, regardless of treatment.” WC Rule 2.1200.
11. Also called “maximum medical improvement,” this is a “condition or state that is well-stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not expected.” AMA Guides to the Evaluation of Permanent Partial Impairment, 5th Ed. at 601.
12. Although Claimant continues to receive treatment for pain with the hope of an increase in functionality, she has been at a plateau since the summer of 2005, as determined by Dr. Johansson. Minor increases in range of motion and modest improvements in basic activities of daily living do not rise to the substantial change necessary to counter the defense of medical end result.
13. In sum, Claimant’s left sided shoulder condition is not work related. Further, the defense position that Claimant had reached medical end result in the summer of 2005 is accepted.
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ORDER:
Therefore, based on the foregoing findings of fact and conclusions, of law:
1) Defendant did not waive its right to contest the conpensability of the left shoulder injury;
2) Claimant’s left shoulder claim is not compensable;
3) Claimant reached medical end result in 2005.
Dated at Montpelier, Vermont this 9th day of October 2006
________________________________
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.

F. N. v. Montpelier School District (December 20, 2006)

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F. N. v. Montpelier School District (December 20, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. N. Opinion No. 52-06WC
By: Margaret A. Mangan
v. Hearing Officer
Montpelier School District For: Patricia Moulton Powden
Commissioner
State File No. U-52182
Hearing held on Montpelier on November 3, 2006
Record closed on November 13, 2006
APPEARANCES:
Richard Davis, Jr., Esq., for the Claimant
Jason R. Ferreira, Esq., for the Defendant Cambridge Integrated Services
Timothy Vincent, adjuster for Defendant VSBIT
ISSUES:
1. Whether the treatment proposed by Dr. Cody is medically necessary and causally related to Claimant’s work-related low back injury.
2. If so, what carrier is responsible for this claim?
EXHIBITS:
I: Joint Exhibits
A. Medical Records
B. Deposition of Dr. Rayden Cody
II: Defense Exhibits:
A. Curriculum vitae of Dr. John Johansson
B. Affidavit dated July 25, 2006
III: Claimant’s exhibit:
A. Curriculum vitae of Dr. Rayden Cody
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FINDINGS OF FACT:
1. In March 2004 and April 2005 Claimant was an employee and the Montpelier School District his employer within the Vermont Workers’ Compensation Act.
2. Cambridge Integrated Services provided workers’ compensation insurance for the Montpelier School District between March 2004 and June 2004.
3. In July 2004, the Vermont School Board Insurance Trust (VSBIT) began providing workers’ compensation insurance for the Montpelier School District.
4. Claimant began working as a custodian for the Montpelier schools in December 2001. His duties included dusting, mopping, cleaning floors, bathrooms, locker rooms, the auditorium and some classrooms. During the school year, he worked from midnight to 8:00 a.m., during the summer from 2:00 p.m. to 10:00 p.m.
5. About ten years before the incidents at issues here, Claimant hurt his back when he slipped at a bowling alley. In March of 1999 Dr. Christopher Merriam characterized Claimant’s low back pain as chronic. At that time, Claimant complained of a worsening of symptoms with sharp pain in his low back. Dr. Merriam diagnosed Claimant’s condition at the time as muscular, although he also noted that a CT scan revealed a disc bulge at L4-L5.
6. On March 22, 2004, Claimant was lifting a trash bag at work for the school district when he felt inguinal and back pain.
7. As a result of the lifting incident, Claimant had a hernia and low back pain. He sought medical care, was taken out of work and received physical therapy. In April 2004 Claimant had surgery to repair the inguinal hernia.
8. Claimant’s initial attempt to return to work failed, but he was able to return to full duty in June 30, 2004 after he demonstrated in physical therapy that he could lift fifty pounds without difficulty.
9. On November 10, 2004, at the carrier’s request, Claimant had an independent medical examination with Dr. Jonathan Fenton who determined that Claimant had not yet reached medical end result. At Dr. Fenton’s recommendation, Claimant had SI joint injections.
10. In March 2005, Claimant was released medically for overtime work “as tolerated.”
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11. In April 2005, while Claimant was still treating with Dr. Fenton, he was working on a platform in a music room changing filters, a job that necessitated climbing a ladder. After changing a filter, Claimant was stepping from the platform to the ladder when he heard a snap in his back, and felt as though he was being stabbed. In addition, he had pain, numbness and weakness in his right lower extremity.
12. Claimant was again taken out of work and treated with physical therapy. He has not returned to work since.
13. Dr. Peterson, who recommended physical therapy, questioned whether there was a behavioral component to Claimant’s back pain.
14. Records demonstrate physicians’ concerns about Claimant’s use of narcotics. For example, a June 2005 note by Dr. Ruth Crose referred to Claimant’s history of mixed substance abuse and heavy alcohol use.
15. In May 2005, a physical therapist noted that Claimant had not been attending physical therapy consistently and questioned whether he would benefit from further therapy.
16. In August 2005, Dr. Peterson recommended a work hardening program with a behavioral component.
17. A September 26, 2005 MRI revealed minor dehydration at L3-4, L4-5 and L5-S1 and a slight bulge at L5-S1.
18. Claimant treated at the Vermont Center for Occupational Rehabilitation under the direction of Dr. John Johansson from November 21, 2005 until February 9, 2006.
19. During the five-week program, Claimant first underwent a behavioral medicine and pain management evaluation. He then had extensive physical therapy, pool therapy, training on body mechanics and posture and instruction on how to perform the work of custodian ergonomically. The physical therapy portion of the program was scheduled for three sessions each week for the five weeks. Claimant missed eight of the sessions. He also missed several of the behavioral medicine components.
20. On February 9, 2006, Dr. Johansson placed Claimant at medical end result with a 5% whole person rating and released him to work at medium duty work. In the final evaluation for the program Dr. Johansson noted that Claimant had “absence issues.”
21. In March 2006, Dr. Merriam diagnosed Claimant’s problem as likely ligamentous. He recommended aerobic exercises, stretching and physical therapy.
22. The school district offered to modify Claimant’s job to make it consistent with a medium duty work capacity.
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23. Claimant then returned to the Plainfield Health Center with significant complaints of pain and asked for another referral. On that referral he went to Dr. Rayden Cody at the Spine Institute of New England who is an expert in the field of interventional pain management.
24. The drug test Dr. Cody ordered was positive for several substances. Yet, Claimant denied any drug use.
25. Dr. Cody noted a high intensity zone in Claimant’s MRI that he opined was the source of Claimant’s pain. In Dr. Cody’s opinion, its source was either disc or facet. On examination, he noted that Claimant’s spinal flexion was worse than his extension, suggesting a disc source of the pain.
26. Dr. Cody recommended a bundle branch block (BBB) to determine whether the facet joint was the pain source. If the result proved positive, he would then recommend radio frequency ablation (RFA) to treat the pain. According to Dr. Cody, these procedures help a significant number of patients. Although they do not always work, “for the most part they don’t cause damage…” explained Dr. Cody.
27. If the bundle branch block were negative, Dr. Cody would recommend a discogram to determine if the disc is the source for the pain. If so, he would recommend interdiscol electro thermal therapy, known by its acronym IDET.
28. Dr. Cody determined that Claimant’s past narcotic use would not affect his opinion regarding the recommended procedures.
29. Dr. Jerry Tarver at Fletcher Allen Health Care Division of Pain Management agreed with the medial BBB followed by RFA or discogram followed by IDET.
30. The procedure recommended by Dr. Cody is qualitatively different from the pain management program Claimant underwent under Dr. Johansson’s supervision.
31. Dr. Cody opined that the work related incident aggravated Claimant’s preexisting disc desiccation condition (dehydration in the discs).
32. Dr. Johansson opined that the radiofrequency ablation would have a low likelihood of relieving Claimant’s pain or improving his functional status. He attributes Claimant’s pain to degenerative disc disease, not to facets.
33. Doctors Cody and Johansson agreed that the second work related incident aggravated his previous injury or caused a new injury. The opinions were based on the facts that Claimant was able to return to work full duty after the first injury, but not after the second; that he was able to continue with the physical activities after the first injury, but not after the second; and that he was on stronger pain medications after the second injury. Overall, he was worse off after the second injury.
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34. In June 2006 Claimant was involved in a physical altercation. He was intoxicated at the time. Dr. Cody opined that the incident had no effect on his opinion.
35. Finally, Dr. Cody explained that Claimant is in considerable pain. He proposes to intervene regardless of a history of narcotic use.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than 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. A medical treatment is compensable if it is reasonable and causally related to a work related injury. 21 V.S.A. § 640(a).
4. Defendants make much of the Claimant’s narcotic use in urging the Commissioner to deny this claim. Ironically, that is one factor that supports the progressive steps outlined by Dr. Cody. He convincingly testified that Claimant is entitled to pain relief despite that history. If the treatment is successful, any prescriptions for the narcotics may be reduced or stopped completely. And, of course, such use certainly will be monitored during treatment.
5. Claimant needed further intervention for pain relief before the 2006 physical altercation. Therefore, that incident cannot operate to defeat this claim.
6. Accordingly, Claimant has proven that the treatment proposed by Dr. Cody is reasonable.
7. Next is the question whether Claimant’s condition is an aggravation or recurrence, a dispute on which the most recent carrier, VSBIT, has the burden of proof because pursuant to 21 V.S.A. § 662(c), “the employer or insurer at the time of the most recent personal injury …shall have the burden of proving another employer’s or insurer’s liability.” Farris v. Bryant Grinder, 177 Vt. 456, 461 (2005).
8. “Aggravation” means an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events. WC Rule 2.1110. “Recurrence” means the return of symptoms following a temporary remission. Rule 2.1312.; see also Pacher v. FairdaleFarms 166 Vt. 626, 629 (1997) (mem).
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9. Facts this Department examines to determine if an aggravation occurred, with the greatest weight being given the final factor, are whether: 1) a subsequent incident or work condition destabilized a previously stable condition; 2) the claimant had stopped treating medically; 3) claimant had successfully returned to work; 4) claimant had reached an end medical result; and 5) the subsequent work contributed independently to the final disability. Trask v. Richburg Builders, Opinion No. 51-98WC (1998).
10. Most factors devolve toward aggravation in this case. Claimant’s stable condition before the 2005 incident was destabilized when he moved from the platform to the ladder at the school and felt excruciating pain. Although he had not stopped treating medically, Claimant had successfully returned to full time, full duty work. Although he had not been placed at medical end result officially before the 2005 incident, his condition had reached a plateau. Finally, the 2005 incident contributed to the Claimant’s final disability as each doctor clearly opined.
11. Therefore, VSBIT is the responsible carrier because Claimant suffered an aggravation under its watch.
ORDER:
Based on the foregoing findings of fact and conclusions of law, VSBIT is ORDERED to adjust this claim, including the payment for the diagnostic work and treatment proposed by Dr. Cody.
Dated at Montpelier, Vermont this 20th day of December 2006.
________________________________
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.

R. C. v. Consolidated Memorials, Inc. (January 2, 2007)

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R. C. v. Consolidated Memorials, Inc. (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. C. Opinion No. 54-06WC
By: Margaret A. Mangan
v. Hearing Officer
Consolidated Memorials, Inc. For: Patricia Moulton Powden
Commissioner
State File No. W-03620
Hearing held in Montpelier on September 12, 2006
Record closed on October 17, 2006
APPEARANCES:
Heidi S. Groff Esq., for the Claimant
Joseph M. Lorman Esq., for the Defendant
ISSUES:
1. Did the Claimant sustain an April 2004 work injury that caused an infection, which led to the amputation of both legs above the ankles, resulting in permanent total disability?
2. Is the Claimant entitled to thirteen weeks of temporary total disability benefits?
3. If entitled to a workers’ compensation award, may the Claimant receive a lump sum payment of benefits?
EXHIBITS:
Joint Exhibit No. I: Medical Records on CD
Claimant’s 1: C.V. of Ernest Atlas, M.D.
Defendant’s A: C.V. of Philip Carling, M.D.
FINDINGS OF FACT:
1. The Claimant was an employee within the meaning of the Vermont Workers’ Compensation Act (Act) for all relevant periods.
2. The Defendant was an employer within the meaning of the Act for all relevant time periods.
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3. By April 2004, the Claimant was working roughly sixty hours per week as the General Manager of Consolidated Memorials.
4. As General Manager, the Claimant chipped granite with a chisel and handset, used a saw, drove trucks, placed orders for materials, and performed other similar tasks.
5. The Claimant wore gloves to perform these tasks only when it was cold.
6. The Claimant always had cuts on his hands and arms from working with sharp granite.
7. On April 5, 2004, the Claimant cut and scraped his hands and arms while chipping granite with a chisel and handset. Some of these injuries bled. The Claimant was familiar with the first aid kit and used antibiotic ointment and bandages.
8. On April 9, 2004, the Claimant was performing his duties as General Manager. While at work, the Claimant suddenly became nauseated and began vomiting.
9. Later that day, the Claimant’s wife came home to find the Claimant lying on the couch, shivering and wrapped in blankets. The Claimant was vomiting with chest pain and diarrhea.
10. That evening, the Claimant’s was treated at the Central Vermont Hospital’s Emergency room, where he was diagnosed with influenza and pulled chest muscles. Upon release, the Claimant was given medication and was instructed to return if his symptoms worsened.
11. The Claimant’s symptoms continued throughout the night and into the following morning.
12. On April 10, 2004, the Claimant continued to experience nausea, vomiting, diarrhea, and chest pain. Additionally, the abrasions on the Claimant’s hands and arms began to feel very itchy. The Claimant requested that his wife scratch these abrasions.
13. Upon scratching the Claimant’s hands and arms, the Claimant’s wife noticed that a cut on the Claimant’s right pinky finger had opened and was exuding puss. She treated this wound with peroxide, triple antibiotic ointment, and a band-aid. She also noticed other scratches and abrasions on the Claimant’s hands and arms.
14. At approximately 10 PM on April 10, 2004, the Claimant was admitted to the Central Vermont Hospital because of his worrisome and persistent symptoms.
15. In the early morning hours on April 11, 2004 the Claimant’s vital signs continued dropping. As a result, he was admitted to the Intensive Care Unit and given intravenous fluids.
16. The April 11, 2004 medical records show that the Claimant had multiple sores on his hands from work related trauma. These records also note that one of the sores “had a
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pustule that was I&D’d by the wife yesterday.” The records then state that the sores appeared to be healing with no active discharge.
17. A stool sample taken that day at the Central Vermont Hospital tested positive for a few colonies of Group A Streptococcus.
18. Later that morning, the Claimant’s condition continued to worsen until he was in a state of septic shock. At this time he was transported by helicopter to Dartmouth-Hitchcock Medical Center (DMHC).
19. The Claimant became comatose as a result of his severe illness.
20. Also on April 11, 2004, a DMHC CT scan found that the Claimant’s terminal ileum, cecum, and ascending colon were moderately thick-walled. The differential diagnosis of this condition included “typhilitis, Crohn’s disease, lymphoma, infectious etiology such as Giardia; ischemia less likely without supporting clinical evidence such as acidemia.”
21. On April 12, 2004, a paronychia, infection in the tissue surrounding the nail bed, on the Claimant’s right thumb tested positive for Group A Streptococcus.
22. By April 13, 2004, the Group A Streptococcus was found in the Claimant’s bloodstream and urine.
23. DHMC repeatedly tested the Claimant’s stool for the presence of white blood cells. These tests were all negative.
24. The doctors at DHMC found inflamed and necrotic tissue along the Claimant’s left chest wall.
25. As a result of complications from the septic shock, the Claimant’s lower extremities became gangrenous. This condition led to bilateral, below the knee amputations of the Claimant’s legs.
26. Beginning on April 12, 2004, the Claimant was out of work for a total of thirteen weeks as a result of this experience.
27. On July 12, 2004, the Claimant returned to work as a General Manager at Consolidated Memorials.
28. The Claimant is requesting TTD compensation for the recovery period from April 12, 2004 through July 11, 2004.
29. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 25% Fee Agreement with the Claimant and an approved Attorney Lien. The Claimant has included an itemized list of litigation costs totaling $5,762.54.
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Medical Testimony
Ernest Atlas, M.D.
30. Dr. Atlas is an expert in infectious diseases and has been practicing for over thirty years. He regularly consults in infectious disease cases and has personally treated over a dozen cases involving Group A Streptococcus.
31. After reviewing the Claimant’s medical records, the Claimant’s wife’s deposition testimony, and interviewing the Claimant’s wife, Dr. Atlas opined that the Group A Streptococcus entered the Claimant’s body via the work related cuts and abrasions.
32. From there, Dr. Atlas believes that the bacteria spread through the Claimant’s bloodstream to the deep tissue of the left chest wall, where it produced a necrotizing fasciitis and septic shock. This condition caused blood clotting in the small vessels of the Claimant’s legs and gangrene. The septic shock also resulted in decreased blood flow and the need for vasoconstrictor medications. As a result of these factors, below the knee amputations of the Claimant’s legs were required.
33. Dr. Atlas explained that a superficial scratch or abrasion is likely to heal quickly once pus is exuded, even if this was the initial source of the Group A Streptococcus infection.
34. Dr. Atlas stated that the vast majority of Group A Streptococcus infections originate from breaks in the skin. He also stated that once this infection enters the bloodstream, the bacteria can circulate throughout the body.
35. While not impossible, in over thirty years of infectious disease practice Dr. Atlas had never seen, read about, or heard of Group A Streptococcus entering the body through the bowel.
36. Dr. Atlas opined that if this type of infection were to begin in the bowel then the stool would have had heavy growth of Group A Streptococcus and a high white blood cell count.
Philip C. Carling, M.D.
37. Dr. Carling has specialized in infectious disease medicine for over thirty years. However, he does not have first hand experience treating patients with Group A Streptococcus resulting in necrotizing fasciitis.
38. After reviewing the Claimant’s complete medical records, witness depositions, and medical reports, Dr. Carling opined that the work related scratches and abrasions were not the most likely source of the Group A Streptococcus.
39. Rather, Dr. Carling believed that the primary infection developed in the Claimant’s terminal ileum and ascending colon. This infection led to overwhelming streptococcal sepsis, organ failure, and the need for a bilateral leg amputation.
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40. Dr. Carling believed that the presence of a “few” colonies of Group A Strep showed that the bowel was the primary site of the infection.
41. Dr. Carling opined that the Claimant’s right thumb tested positive for Group A Streptococcus because the thumb came in contact with infected stool.
42. Dr. Carling agreed that gastrointestinal symptoms can be a result of the sepsis, no matter where the source of the infection is.
43. Dr. Carling could not recall any examples of cases, or any literature where Group A Streptococcus entered the body via the bowel.
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 (1962). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. To qualify for workers’ compensation benefits, the personal injury must arise out of and in the course of employment. See 21 V.S.A. § 618 (a)(1).
3. In Vermont, a worker who is injured at work may collect temporary disability benefits depending upon his actual capacity to work during the period that he is healing, until such time as he or she reaches maximum medical improvement. Hepburn v. Concrete Professionals, Inc./Traveler’s Insurance Co., Opinion No. 16-03WC (2003).; 21 V.S.A § 642.
4. A Claimant is entitled to temporary total disability benefits under 21 V.S.A. § 642, while either: (1) in the healing period and not yet at a maximum medical improvement, Orvis v. Hutchins, 123 Vt. 18 (1962), or (2) unable as a result of the injury either to resume the former occupation or to procure remunerative employment at a different occupation suited to the impaired capacity. Roller v. Warren, 98 Vt. 514 (1925); Votra v. Mack Molding, Inc. Opinion No. 44-02WC (2002).
5. Under 21 V.S.A. § 644(a)(2), a Claimant is entitled to at least 330 weeks of permanent total disability if the work related injury causes the loss of both feet at or above the ankle.
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6. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton Holden & Martin Lumber Co., 112 Vt. 17 1941. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (2005) (citing Lapan v. Berno’s Inc., 137 Vt. 393 (1979)).
7. When qualified medical expert opinions are in conflict, 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 the relevant records. J.C. v. Richburg Builders. Opinion No. 37-06WC (2006). (citing Miller v. Cornwall Orchards, Opinion No. 20-97WC (1997); Gardner v. Grand Union, Opinion No. 24-97WC (1997)).
8. The medical experts in this case were both highly qualified infectious disease experts. Neither physician provided treatment to the Claimant. Rather, both doctors relied on the Claimant’s medical records, depositions, and their own extensive training and experience when rendering their expert medical opinions. As a result, the fact that Dr. Atlas has personal experience in treating patients with similar Group A Streptococcal infections lends greater weight to his opinion.
9. Dr. Atlas testified that Group A Streptococcal bacteria most often enters the body via a break in the skin. The Claimant had multiple work related cuts and abrasions on his arms and hands at the onset of his illness. The Claimant’s medical records document signs of infection on two of these wounds, one testing positive for the infectious bacterium.
10. By contrast, neither expert could recall any case they had ever worked on, read about, or even heard of where the bowel was the point of origin for a Group A Strep infection. Furthermore, while a CT scan showed moderate thickening of the bowel wall, none of the DMHC physicians connected this finding with the Claimant’s sepsis or took further action.
11. Furthermore, Dr. Atlas stated that if the bowel were the primary infection site then the Claimant’s stool would have been teeming with white blood cells and bacterial colonies. Instead, white blood cells were absent each time the Claimant’s stool was tested. Rather than finding a heavy concentration of bacterial colonies, the stool contained only a few colonies that were likely deposited via the Claimant’s bloodstream.
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12. Hence, the April 2004 work related injuries sustained by the Claimant caused the above infection and complications leading to a bilateral leg amputation. This is a scheduled injury under 21 V.S.A. § 644(a)(2); therefore, the Claimant is entitled to at least 330 weeks of permanent total disability.
13. Furthermore, from April 12, 2004 through July 11, 2004, the Claimant was recovering from complications resulting from his work related injury, unable to work and had not yet reached medical end result. As such, the Claimant is also entitled to TTD benefits for this thirteen-week period.
14. Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
Lump Sum Payment
15. In 2000, the legislature amended 21 V.S.A. § 652(b) to permit a Claimant to request an award payment in one lump sum. Sanz v. Douglas Collins Const., ¶ 6, 2006 Vt. 102. The Commissioner will grant this request if it is in the best interest of the Claimant or his family. Id.
16. The Department considers the following factors when determining whether a lump sum payment is in the best interest of a claimant. The claimant and/or the claimant’s household receives a regular source of income aside from any workers’ compensation benefit, the lump sum payment is intended to hasten or improve claimant’s prospects of returning to gainful employment or the lump sum payment is intended to hasten or improve claimant’s recovery or rehabilitation; the claimant presents other evidence that the lump sum award is in their best interests. Patch v. H.P. Cummings Const., Opinion No. 49-02WC (2002); Rule 19.5000.
17. A lump sum payment will not be awarded if: the award was based upon a hearing decision for which an appeal has been filed and the employer or insurer objects to the payment of the lump sum; or the claimant is best served by receipt of periodic income benefits; or the payment is intended to pay everyday living expenses; or the lump sum payment is intended to pay past debts. Id.
18. In the present case, this Claimant has returned to work, earning regular income outside of any workers’ compensation award. Therefore, the Claimant need not rely on the periodic payment of benefits for everyday expenses. As such, the Department recognizes that a lump sum award is in the best interest of this Claimant.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Claimant’s claim is compensible and the Defendant is ORDERED to pay:
1. Related Medical Benefits;
2. TTD benefits from April 12, 2004 through July 11, 2004;
3. A lump sum payment of PTD, pursuant to 21 V.S.A. § 644(a)(2), for at least 330 weeks;
4. Statutory interest from the date the ordered benefits should have been paid had this case been accepted, pursuant to 21 V.S.A. §664;
5. Attorney fees of 20% of the total award or $9,000, whichever is less.
Dated at Montpelier, Vermont this ____ day of December 2006.
___________________________
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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