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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.

C. F. v. National Life Insurance Co. (November 17, 2006)

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C. F. v. National Life Insurance Co. (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 44-06WC
By: Margaret A. Mangan
v. Hearing Officer
National Life Insurance Co. For: Patricia Moulton Powden
Commissioner
State File No. T-20446
Hearing held in Montpelier on August 22 and 23, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq. and David Berman for the Defendant
ISSUES:
1. Is Claimant’s August 19, 2003 fall at home a compensable result of her March 10, 2003 work related injury?
2. If so, what injuries did she suffer as a result of her August 19, 2003 incident?
3. If the August 19, 2003 injuries are compensable, has she reached a medical end result for those injuries? Is she entitled to additional temporary total disability benefits and, if so, for what time periods?
4. If the August 19, 2003 injuries are compensable, what is the extent of the resulting permanent partial impairment?
5. Is Claimant permanently and totally disabled as a result of her work related injury or injuries?
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EXHIBITS:
Joint:
I: Medical records
II: Performance evaluations
III: School Records
Claimant:
1: Defense counsel’s December 13, 2005 letter
2: Claimant’s counsel’s December 27, 2004
Defendant:
A: Private Investigator Videotape
STIPULATION:
1. On March 10, 2003, Claimant was an employee of Defendant within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. On March 10, 2003, Defendant was the employer of Claimant within the meaning of the Act.
3. On March 10, 2003, Claimant had one dependent within the meaning of the Act who turned twenty-one years old on November 19, 2004 at which time he was no longer dependent.
4. On March 10, 2003, Claimant had an average weekly wage of $482.31 resulting in an initial compensation rate of $321.54.
5. On March 10, 2003 Claimant suffered a work-related injury.
6. On August 19, 2003, Claimant fell at home. Defendant contests the compensability of this incident and any resulting injuries, but Claimant alleges that the fall was the direct result of her work-related March 10, 2003 injury.
7. On January 5, 2005, Defendant filed a Form 27 terminating Claimant’s indemnity benefits for her accepted work-related right knee injury, based on a determination of medical end result with 4% whole person impairment due to the accepted right knee claim.
8. On August 4, 2005, Claimant was separated from her employment at National Life.
9. To date, Claimant has received all indemnity and medical benefits associated with her right knee claim.
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CLAIM:
Claimant seeks additional medical, temporary total, permanent partial, vocational and permanent total disability benefits as a result of her work-related injury or injuries, and if successful, an award of attorney fees and costs.
OVERVIEW:
It is undisputed that Claimant suffered a work related fall in March of 2003, although the full extent of the injuries from that fall is contested. Six months later, Claimant fell again, but this time at home. Did the second fall result from the earlier, work-related fall? If so, what injuries did Claimant suffer? Is Claimant capable of regular, gainful employment? Several experts have rendered opinions on the sequelae of the falls. Because some of the opinions were obtained years after the two falls, when facts supporting the opinions differ from contemporaneous medical records, the earlier records will control.
FINDINGS OF FACT:
1. During the two-day hearing, Claimant was alert. She testified with no signs of anomia (difficulty finding words) and answered questions clearly and coherently. She exhibited no overt signs of lack of concentration or attention.
2. Before any of the events giving rise to this claim occurred, Claimant had worked running machinery at Rock of Ages for about twenty years and at National Life for about eighteen years.
3. Claimant was a responsible, reliable worker, missing time from work only for an occasional cold.
4. Claimant’s work for National Life was that of a full time set up person. She cleaned trucks, ran errands, checked the cleanliness of restrooms and ensured the proper set up of meetings. Claimant took pride in her work.
5. On March 10, 2003, Claimant fell when she was leaving work. She stubbed her toe and fell forward, landing on hands, knees and hitting her face.
6. At a doctor’s visit on April 29, 2003, Claimant reported to her primary care physician, Dr. Kristopher Jensen, that she had fallen three weeks earlier, injuring her right knee and that she had what the doctor described as “short lived loss of consciousness” at the time of the fall. Dr. Jensen noted no “obvious instability” when Claimant was walking. He also suggested that the persistent pain may have been due to her being on her feet most of the day at work.
7. In June 2003, Claimant telephoned Dr. Jensen’s office, reporting that she still had pain and intermittent swelling in her right knee.
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8. In mid June 2003, Claimant saw Dr. Stafford who noted increase in her knee pain after moving a lot of furniture at work.
9. On July 8, 2003, Claimant was seen again for knee pain and stiffness, which she reported was worse when she was working. On examination, the knee was tender but had “near full range of motion.”
10. On July 31, 2003, Claimant was seen by Charles Butterick, Physician Assistant at Green Mountain Orthopaedic Surgery, who noted a complaint of persistent knee pain. Mr. Butterick recommended physical therapy.
11. At physical therapy Claimant demonstrated weakness in her right leg. A program was set up with goals of increasing the strength and flexion in her right leg and decreasing the pain.
12. In June and June of 2003, Claimant had two instances when her right knee gave out, although she did not fall either time. The first was in the cafeteria in the National Life Building when she caught herself on the salad bar as the knee gave way. The second time was while she was cleaning a rest room, when she again caught herself and prevented a fall. Claimant recalled both instances in some detail at hearing.
13. On August 19, 2003, Claimant fell down her stairs at home. She then went to the emergency department at Copley Hospital where her complaints of left shoulder and back pain were noted. At that time, there was no evidence of head trauma.
14. Claimant fractured her left wrist in the fall at home, a diagnosis made the day of the fall. The fracture required surgery that Dr. Landvater performed on August 25, 2003. Sometime later, it was learned that she also fractured her left lower leg, the fibula.
15. On August 25, 2003, Dr. Landvater operated on Claimant’s fractured left wrist.
16. Also on August 25, 2003, the day of the left wrist surgery, Claimant saw Dr. Jensen who noted that Claimant broke her wrist in the fall and hit her head, although she had no loss of consciousness.
17. An October 21, 2003 physical therapy note documented Claimant’s description of having lost her balance when she fell down the steps at home.
18. In addition to surgery on the wrist, Claimant received medical care and physical therapy for her left wrist, leg and shoulder.
19. In November 2003, Dr. Landvater noted that Claimant was not yet to resume work.
20. In December 2003, Dr. Stephanie Landvater noted that Claimant was to return for treatment if she had continued “catching and buckling” in her left knee.
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21. On January 7, 2004, Dr. Landvater wrote that Claimant could only work four hours per day because of her work related right knee problem. Dr. Landvater reiterated that opinion on January 27th when she diagnosed a meniscal tear in Claimant’s right knee of a year’s duration.
22. In January 2004, Dr. Jensen also saw the Claimant, noting that she was alert and oriented, but making no mention of mental deficits.
23. Dr. Williams noted on a prescription pad dated January 19, 2004 that Claimant had work related fasciitis. He may have been unaware that Claimant had only been working half time for two weeks and not at all for several months before that.
24. On February 26, 2004, Claimant was in a motor vehicle accident (MVA). When she was examined a few days later, it was noted that she had a headache and some dizziness, although dizziness predated the MVA. It was also noted that she had an upper back strain.
25. By April 2004, Claimant’s headaches had resolved and she was back to work half time performing the same work she had been doing before the MVA.
26. On May 5, 2004, Dr. Landvater operated on Claimant’s right knee for what was determined to have been a work related meniscal tear from the fall in March 2003.
27. A July 16, 2004 Physical therapy note recorded Claimant’s comment that “I get dizzy since I started coming here.”
28. Dr. Landvater released Claimant to work at modified duty from August 4, 2004 to September 2, 2004, four hours a day.
29. On August 17, 2004, Claimant reported to a physical therapist that she was working four hours a day, limping a lot at work and “they don’t like it.”
30. On August 30, 2004, a therapist noted that Claimant’s pain behaviors were hindering her progress. She “declined” to perform some recommended activities. And she reported limping and being sore at work after moving some things. Yet, she also reported walking two hours at a fair the previous Sunday.
31. In September 2004, Claimant spent one day at work on the building inspection and inventory.
32. Claimant worked until August 2005 when her employment at National Life ended. During the time Claimant worked after her injury, she did less physical work, but was assigned to tasks that required more computer work. She was terminated because of her inability to perform physical functions necessary for her job, not because of any mental disabilities.
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33. Dr. Landvater placed Claimant at medical end result on November 2, 2004 with 4% whole person impairment for the injury to her right knee from the March 2003 fall at work.
34. At work, Claimant did not show any signs of problems with memory or concentration, even when she was on light duty part-time work in August of 2003.
35. Claimant had satisfactory performance evaluations at work from June 2004 through March 2005.
36. A private investigator videotape shows Claimant walking without a cane, even when it was snowing. Although slow while walking, Claimant was able to hold items in her arms and maintain her balance. She did not use a cane at the hearing, although she limped when walking.
37. One of Claimant’s activities is bingo, which she plays with eighteen cards.
Experts
38. Dr. Victor Gennaro is an orthopedic surgeon who evaluated this case for the Claimant. Based on his examination and history that Claimant’s knee was painful as she descended the stairs in August 2003, Dr. Gennaro opined that the original work related injury led to that fall. He based that opinion on the fact that she had an untreated meniscal tear in that knee at the time of the fall, a diagnosis well supported by Dr. Landvater’s records and surgical findings. However, Dr. Gennaro was not able to link the fasciitis to Claimant’s work.
39. Dr. Gennaro opined that Claimant is unable to return to gainful employment because of her cognitive difficulties, deconditioning and painful knees.
40. In March of 2006, Dr. Gennaro opined, and I find, that Claimant had not yet reached medical end result for her left shoulder and left knee, injuries she sustained when she fell down the stairs at home in August of 2003.
41. Dr. John Johansson, medical director of Vermont Center for Occupational Rehabilitation, performed an IME of the Claimant in 2004. At that time, she was working full eight hours days, with breaks as needed. Claimant provided a history to Dr. Johansson without any signs of anomia or memory problems. When he saw her again in 2005, when Claimant had been out of work with foot problems, he opined that she could return to work with good footwear.
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Functional Capacity Evaluations
42. Louise Lynch performed a functional capacity evaluation on Claimant in January 2006. Ms. Lynch understood that Claimant used a cane when she walked outside, a finding inconsistent with the videotape. After testing, Ms. Lynch concluded that Claimant had a part-time sedentary work capacity. She opined, based on Claimant’s physical limitations and her observations, that Claimant is not employable in the competitive work place.
43. Leslie Bell performed a functional capacity evaluation of the Claimant in April 2006. During that evaluation, Claimant self limited in 25% of the tasks, behavior that “influenced the outcome of the test.” Ms. Bell determined that Claimant had a sedentary work capacity for an eight-hour day based on that evaluation. Further, she opined that Claimant could navigate stairs only rarely, such as for entering a building, but should not have regular stare climbing throughout the day.
Vocational Rehabilitation Opinions
44. George Fotinopoulos, Vocational Rehabilitation (VR) Counselor, initially determined that Claimant was entitled to vocational rehabilitation services. By agreement of the parties, an extension was granted for the submission of a rehabilitation plan. Claimant now alleges that the carrier refused to pay for VR services. The carrier alleges that Mr. Fotinopoulos never followed up after the extension was granted. Regardless, Claimant never received VR services.
45. John May, Vocational Rehabilitation Counselor, performed a forensic vocational assessment in this case. He based his opinions on a private investigator videotape, functional capacity evaluations, Claimant’s vocational history, the medical records and his VR expertise. He concluded that Claimant would benefit from vocational rehabilitation services that would “enhance her employability.” He predicted that with such services, Claimant will return to gainful employment.
Expert Opinions
Head injury
46. Highly disputed is whether Claimant suffered a head injury in the fall down the stairs, and if so, whether such an injury, combined with other injuries, disables her. In support of her claim is the opinion from Dr. Solomon, based on neuropsychological examinations. Dr. Solomon is the director and founder of the Memory Clinic. He opined that Claimant meets the criteria for a traumatic brain injury (TBI) for both of her work related falls. That opinion is based on a comparison in what he determined was her pre injury IQ, school performance, and current testing. Based on cognitive deficits, he assessed her neuropsychological impairments at 25% whole person.
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47. Dr. Solomon’s opinion was based in part on an inaccurate history Claimant and her cousin gave him. For example, they described retrograde and posttraumatic amnesia that is recorded nowhere in the records. They also described a precise mechanism of the fall —falling backwards and hitting her head multiple times—that is described to Dr. Solomon for the first time in the several years since the accident.
48. Dr. Peyser, also a neuropsychologist with expertise working with patients who have had brain injuries, evaluated the Claimant for the defense. Based on the records and her expertise, Dr. Peyser found no record of posttraumatic amnesia, which is relevant to the issue of head injury. Retrograde amnesia is not relevant to the inquiry, in her opinion. Dr. Peyser, too, tested Claimant, finding no residual cognitive deficits from the falls. Claimant described cognitive losses to Dr. Peyser, yet those losses are not recorded in the records until September 2005. Claimant described difficulty finding words, yet did not demonstrate that difficulty during interview. Based on testing, Dr. Peyser attributed low or borderline results to low effort. Dr, Peyser concluded that, with the exception of Claimant’s self-reports, “there is no evidence …that Ms. Fisher suffered a head injury with significant cognitive deficits to interfere with her function on the job or in daily life.”
Attorney fees and costs
49. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs, including $900 for Dr. Solomon’s record review and $1,000 for Dr. Gennaro’s two-hour preparation and one hour of deposition testimony.
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). This Claimant 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).
2. Where the claimant’s injury is obscure and the layperson could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
Causation of Second fall
3. Every natural consequence of a work related injury is also compensable. See Fleury v. Legion Ins., Opinion No. 43-02WC (2002) (citing 1 Larson’s Workers’ Compensation Law. § 10.00).
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4. Three factors convince me that it is more probable than not that the work related injury led to the fall at home. First, Claimant testified convincingly that her knee had given way twice before the fall at home. Second, at the time of the fall she had an untreated torn meniscus. Third, an orthopedic expert familiar with the signs and symptoms of a torn meniscus, Dr. Gennaro, attributed the fall to the untreated tear.
5. As a result of the second fall, Claimant injured her head, left wrist, shoulder, leg and her back.
6. Any head injury she may have sustained has since resolved without residual deficits, a conclusion well supported by Dr. Peyser’s opinion. Claimant’s work performance after that fall and her embellished history undercut the opinion proffered by Dr. Solomon to the contrary. Therefore, Claimant is not entitled to permanent partial disability benefits for a traumatic brain injury.
7. To prevail on her claim for permanent total disability (PTD), Claimant must prove that a work related injury or injuries caused impairments that render her unable to sustain regular gainful employment. Her age, experience, training, education, occupation and mental capacity are all factors relevant to a finding of PTD. 21 V.S.A. § 644(b). WC Rule 11.3100. One who is permanently and totally disabled must have no reasonable prospect of finding regular employment.” § 645.
8. When one is unable to return to work for which she has had previous training or experience, the worker is entitled to vocational rehabilitation services. 21 V.S.A. § 641(a).
9. Claimant has failed to prove that she is permanently and totally disabled. Although she may not have had the most successful academic record as a child, Claimant has proven herself a competent, affable and dedicated worker for her adult life. It is unfortunate that employment with National Life did not work out for her. It is also unfortunate that vocational rehabilitation services were not provided. However, she is capable of participating in vocational rehabilitation.
10. Therefore, Claimant is entitled to vocational rehabilitation benefits. She is also entitled to temporary total disability retroactive to their discontinuance until she reaches medical end result for the physical injuries incurred in the work related fall. Interest on those benefits must be calculated from the date those benefits were due until paid. 21 V.S.A. § 664.
11. Pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000, a prevailing Claimant is entitled to a mandatory award of necessary costs and discretionary award of reasonable attorney fees when she prevails. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs.
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12. The fees requested are awarded at $90 .00 per hour for attorney time under WC Rule 10.1210 and $60.00 per hour for paralegal time. C. C. v. Eveready Battery Co, Opinion No. 38-05 (2005). Although Claimant has not prevailed on the permanent total disability claim, she has proven that the second fall is compensable, a highly contested claim. She has prevailed on her claim for additional temporary total disability benefits. The hours her attorney worked to achieve this success were reasonable.
13. The costs associated with the unnecessary aspects of the claim, including Dr. Solomon’s fees, must be subtracted from the total cost request. In other respects, the costs were necessary to the successful aspects of the claim.
Summary
14. In sum, Claimant’s August 19, 2003 fall at home was a compensable result of her March 10, 2003 work related injury. As a result of that fall, Claimant suffered a head injury that has resolved as well as shoulder and leg injuries that have not yet reached medical end result. She is entitled to temporary total disability benefits until she reaches medical end result or successfully returns to work. 21 V.S.A. § 642; 643a. Claimant is not permanently and totally disabled as a result of her work related injury or injuries.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability benefits is DENIED. However, Defendant is ORDERED to:
• Provide vocational rehabilitation benefits to Claimant;
• Pay TTD retroactive to the discontinuance with interest accruing from the date payment would have been made had the second fall been accepted until paid;
• Pay attorney fees and costs:
• Otherwise adjust the claim for the second fall, including payment of permanent partial disability benefits when Claimant reaches medical end result.
Dated at Montpelier, Vermont this 17th day of November 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. C. v. Experian Information Solutions (October 23, 2007)

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J. C. v. Experian Information Solutions (October 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No. 30-07WC
v. By: Phyllis Severance Phillips, Esq.
Hearing Officer
Experian Information
Solutions For: Patricia Moulton Powden
Commissioner
State File No. U-04233
RULING ON CLAIMANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
APPEARANCES:
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Whether a genuine issue of material fact exists as to the compensability of Claimant’s claim for workers’ compensation benefits arising out of her September 15, 2003 injury.
FINDINGS OF FACT:
The following material facts are undisputed:
1. On September 15, 2003 Claimant Judy Carlson was employed by Defendant Experian Information Solutions.
2. Defendant is a bulk mail facility with the numerous machines necessary to print, cut, fold, insert and mail a high volume of bulk mail.
3. Claimant had worked for Defendant or its predecessor companies since 1984. She started as a temporary machine operator. She then trained as a mechanic. Over the years, she was promoted through the ranks to Senior Mechanic.
4. Kevin Barkey was a machine operator at Experian. Shortly before 11:00 PM on September 15, 2003 he saw Claimant walking towards him.
5. Claimant was next to an unwinder machine known as Machine 490.
6. When Claimant was 10-15 feet from Mr. Barkey, he noticed that she was shaking. There was music playing, and he thought that she might be dancing or “goofing around.” He then saw her “go down.”
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7. Claimant dropped like dead weight. She fell without attempting to protect herself. Mr. Barkey saw her strike the back of her head on a large machine bolt that extended from the end of Machine 490. The bolt is about two feet from the floor.
8. Claimant then continued to fall towards the floor and again struck her head on the machine, this time against a steel “rail” about three inches from the floor.
9. Claimant landed on her left side. Her left shoulder was on the ground and her tool belt was under her. Mr. Barkey, who was only about 10 feet away, came to her assistance within seconds.
10. At the time, Claimant was bleeding from the head and mouth. According to Mr. Barkey, she was “trembling” and “shaking.” He was concerned that she was going to hit her head on the cement floor. He cradled her head in an effort to protect her from further injury.
11. The Rutland Regional Ambulance immediately responded to the scene. Their report indicates that Claimant initially was able to speak to them, but then began a grand mal seizure.
12. The Rutland Hospital Emergency Department Report reports that paramedics initially found Claimant “perhaps a bit lethargic but cooperative following commands and then began experiencing seizure activity.”
13. The Emergency Department diagnosed Claimant with a skull fracture, head injuries, a left shoulder dislocation, liver laceration, fractured ribs and a scalp laceration.
14. Claimant’s injuries were so severe that the police initially considered foul play. Ultimately, the police concluded that the injuries occurred when she “fell against unwinder Machine Number 490.”
15. Claimant has no recollection of the events leading to her injury. She does not recall anything until she awoke in the hospital about two weeks later.
16. The Employer’s Form 1 described the incident as follows: “THE IW APPERARED (sic) TO HAVE A SEIZURE AND PAAOUT (sic) WHICH CAUSED HER TO FALL AND HIT HER HEAD ON THE UNWINDER STAND.”
17. Defendant denied the claim on the grounds that the incident did not arise from Claimant’s employment.
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DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must satisfy a stringent two-part test: first, no genuine issue of material fact must exist between the parties; and second, there must be a valid legal theory that entitles the moving party to judgment as a matter of law. Price v. Leland, 149 Vt. 518, 521 (1988); V.R.C.P. 56(c). The moving party has the burden of proof, and the opposing party must be given the benefits of all reasonable doubts and inferences in determining whether a genuine issue of material fact exists. Id., citing Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 520 (1985).
2. In the current claim, the key issue is compensability. Claimant argues that she suffered an idiopathic fall, the injurious consequences of which were exacerbated because of her proximity either to the unwinder machine and/or to the cement floor, both work-related hazards. Claimant argues that the increased danger posed by these work conditions establishes the causal connection necessary to render her injuries compensable.
3. In contrast, Defendant argues that questions of fact exist as to whether Claimant’s injuries were caused by the combination of her striking the unwinder machine and the cement floor or solely by striking the cement floor. If the latter, Defendant argues, then this is insufficient legally to establish that work conditions increased the danger of injury from an idiopathic fall, and therefore Claimant’s motion for summary judgment must fail.
4. To establish a compensable claim under Vermont’s workers’ compensation law, a claimant must show both that the accident giving rise to his or her injury occurred “in the course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161 Vt. 213, 214 (1993); 21 V.S.A. §618.
5. An injury occurs in the course of employment “when it occurs within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
6. An injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called “positional risk” analysis lays responsibility on an employer when an employee’s injury would not have occurred “but for” the employment and the worker’s position at work. Id.
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7. Putting these two prongs of the compensability test together, the “in the course of” requirement establishes a time and place connection between the injury and the employment, while the “arising out of” requirement establishes a causal connection between the injury and the employment. See Spinks v. Ecowater Systems, WC 04-217 (Minn. Work.Comp.Ct.App., January 21, 2005). Both connections are necessary for a claim to be compensable.
8. There is no dispute in the current claim as to the “in the course of” requirement to establish compensability. Claimant’s injuries occurred while she was at Defendant’s work place, performing the job duties she was hired to do at the time she was supposed to be doing them.
9. The dispute here concerns the “arising out of” component, and it is driven by the fact that Claimant’s fall itself was not caused by her work, but rather by a medical event that was purely personal to her, a so-called idiopathic fall.1 Professor Larson has described the requirements for finding such injuries compensable as follows:
The basic rule, on which there is now general agreement, is that the effects of [an idiopathic] fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.
1 Larson, Workers’ Compensation Law §9.01[1].
10. It is important to understand the rationale for requiring that the employment connection in idiopathic fall claims be one of “increased danger” rather than simply “positional risk.” An idiopathic fall case begins as one caused solely by the claimant’s personal risk, with no work-related causal link whatsoever. To shift responsibility for the injury that results from such a fall to the employer, it is reasonable to require a greater showing than merely that the employee was at work when he or she fell. Thus, there must be some “substantial employment contribution” to the resulting harm for it to be compensable. Larson, supra at §9.01[4][b].
11. Applying this rule to the current claim, were Defendant to admit that Claimant’s injuries were caused, in whole or in part, by striking the unwinder machine, then there would be no genuine issue of material fact as to compensability and Claimant would be entitled to summary judgment as a matter of law. In such circumstances, the unwinder machine’s proximity to Claimant at the time of her fall would pose a sufficiently increased danger of harm as to meet the “substantial employment contribution” test.
1 The medical cause of the event that led to Claimant’s idiopathic fall remains unclear. Defendant contends that Claimant may have suffered an alcohol withdrawal seizure, a conclusion that Claimant argues is merely speculative. Regardless of its medical origin, however, the parties agree that the precipitating event that led to Claimant’s fall was purely personal and not work-related at all. Thus the fall qualifies as an idiopathic one and the rules relating to such falls apply. See Pemberton Chevrolet, Inc. v. Harger, 120 P.3d 892 (Ok.Civ.App. 2005) (alcohol withdrawal seizure constitutes an idiopathic condition).
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12. Defendant has admitted no such thing, however. To the contrary, Defendant has produced expert medical testimony that purports to establish that Claimant’s injuries resulted solely from her striking the cement floor. This raises a more controversial question – “whether the effects of an idiopathic fall to a level floor should be deemed to arise out of the employment.” Larson, supra.
13. The majority of jurisdictions that have considered the question have denied compensation in level-fall cases, reasoning that the employment does not significantly add to the risk merely by providing a floor upon which the claimant might fall. Larson, supra at §9.01[4][a] and cases cited therein.
14. This Department has considered idiopathic fall cases before, but not yet in the context of a fall solely to a level floor. See A.D. v. Grand Union Co., Opinion No. 34-02WC (August 20, 2002) (injuries caused by idiopathic fall down stairs to cement landing found compensable); Marcy v. Georgia Pacific, Opinion No. 27-98WC (June 1, 1998) (injuries caused by idiopathic fall from three-foot platform found compensable). Having considered the rationale underlying the increased-danger requirement in idiopathic fall claims, the majority position as to level-fall cases is the most reasonable. The law of gravity dictates that when one falls, one will land on the surface below. If all that the employment contributes to an idiopathic fall situation is a level surface to end the fall, then it has not contributed any increased danger at all. To find compensability in such a situation – when the fall’s origin is purely personal in nature, with no link whatsoever to work – would be to negate the causal connection between the injury and the employment that the “arising out of” language of the statute requires.
15. Claimant cites to cases from other jurisdictions in support of her argument that the hardness of the floor at work provides the requisite increased danger to sustain compensability. See, e.g., Ball v. Workmen’s Compensation Appeal Board, 340 A.2d 610 (Pa. Commw. 1975); George v. Great Eastern Food Prod., Inc., 207 A.2d 161 (N.J. 1965). Presumably Claimant contends that had she fallen to a floor that was constructed of some softer material than cement, her injuries would not have occurred. This line of reasoning would require that a standard of acceptable hardness be established, with idiopathic falls to sufficiently hard floors being compensable and those to softer floors being not. See Koenig v. North Shore Landing, 54 W.C.D. 86, 94 (Minn.Work.Comp.Ct.App., 1996). I decline to adopt a rule that requires factual distinctions so fine as to be impractical. Legal standards are best applied when their outcome is predictable. Better to draw the line at falls involving some clearly observable employment-connected danger, therefore, such as a height, a machine, a sharp corner or a moving vehicle, than to attempt to ascertain the relative hardness of a floor.
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16. Viewing the evidence in the light most favorable to Defendant, it is possible that Claimant’s injuries were caused solely by virtue of her contact with the level floor after her fall, and not as a result of striking the unwinder machine on the way down. If that is the case, then her claim is not compensable. A genuine issue of material fact exists, therefore, which renders summary judgment in Claimant’s favor inappropriate.
ORDER:
Claimant’s Motion for Summary Judgment is DENIED.
Dated at Montpelier, Vermont this 30th day of October 2007.
_______________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Glenn Ashley v. R. E. Michel (September 2011)

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

STATE OF VERMONT
DEPARTMENT OF LABOR
Glenn Ashley Opinion No. 27-11WC
v. By: Jane Woodruff, Esq.
Hearing Officer
R.E. Michel Co. For: Anne M. Noonan
Commissioner
State File Nos. AA-51728; W-02517
RULING ON DEFENSE MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
William Skiff, Esq., for Claimant
Robert Cain, Esq., for Defendant U.S. Fire Insurance Co.
David Berman, Esq., for Defendant PMA Insurance Co.
Tammy Denton, Esq., for Defendant N.H. Insurance Co.
ISSUE PRESENTED:
Do genuine issues of material fact exist as to whether Claimant suffered any compensable work-related injuries during the periods of coverage provided by either PMA Insurance or N.H. Insurance Co.?
FINDINGS OF FACT:
For the purposes of these motions, the following facts are not disputed:
1. Claimant worked for many years at Vermont Paint Company. When he left that job in 2003, he complained of back pain. Claimant next worked for R.E. Michel Co., where he remained until August 5, 2008.
2. On August 24, 2004 Claimant suffered a low back injury while lifting an oil tank onto a cart. Defendant U.S. Fire Insurance Co. (U.S. Fire), R.E. Michel’s insurance carrier at the time, accepted the claim (State File No. W-2517) as compensable and paid workers’ compensation benefits accordingly.
3. From December 31, 2004 until December 30, 2007 Defendant PMA Insurance Co. (PMA) insured R.E. Michel. During this coverage period, on February 18, 2005 Claimant suffered a work-related injury to his cervical spine. Defendant PMA accepted this injury (State File No. W-58278) as compensable and paid workers’ compensation benefits accordingly.
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4. N.H. Insurance Co. insured R.E. Michel from December 31, 2007 through August 5, 2008, Claimant’s last day of work for R.E. Michel. On that day, Claimant presented to his primary care physician, Dr. King, complaining of low back pain. Dr. King diagnosed degenerative changes in Claimant’s lumbar spine, which she attributed to two work-related activities – riding in the R.E. Michel truck, which continuously jostled his back, and lifting.
5. After leaving R.E. Michel’s employment in August 2008, Claimant filed a third workers’ compensation claim (State File No.AA-51728). Claimant alleges that over time he suffered a gradual onset injury causally related to his work for R.E. Michel. He does not allege any specific date of onset.
6. As treatment for his low back pain, in July 2009 Claimant underwent a two-level (L3-5) lumbar fusion surgery with Dr. Braun, an orthopedic surgeon. The surgery was unsuccessful, and Claimant did not achieve a solid fusion. Dr. Braun performed revision surgery in April 2010 to repair the fusion.
Independent Medical Examinations
7. At Defendant U.S. Fire’s request, in November 2004 Claimant underwent an independent medical examination with Dr. Johansson, an osteopath. The purpose of Dr. Johansson’s examination was to determine the extent of Claimant’s August 2004 lifting injury. Dr. Johansson concluded that Claimant had experienced an acute exacerbation of his pre-existing lumbar degenerative disc disease as a result of that injury.
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8. Since filing his August 2008 workers’ compensation claim, Claimant has undergone the following independent medical examinations:
• Dr. Johansson re-evaluated Claimant in September 2008, this time at the request of N.H. Insurance. Although it is unclear whether he did so to the required degree of medical certainty, Dr. Johansson identified the following factors as contributing in equal measure to Claimant’s condition as of August 2008:
(a) Claimant’s work activities at R.E. Michel, especially sitting for long periods of time during the year prior to leaving that job in August 2008;
(b) Claimant’s pre-existing degenerative disc disease; and
(c) The combination of Claimant’s smoking, his failure to complete work hardening after his 2004 injury and his failure to maintain a home exercise program.
• Dr. Wieneke, a board certified orthopedic surgeon, evaluated Claimant in February 2009 at the request of Defendant N.H. Insurance. He concluded that Claimant’s medical condition as of August 2008 was neither caused nor aggravated by his work activities during the time that R.E. Michel employed him. Rather, Dr. Wieneke attributed all of Claimant’s current symptoms to his chronic, progressive degenerative disc disease.
• Dr. Bucksbaum, a board certified physiatrist, evaluated Claimant in October 2009 at the request of Claimant’s attorney. He concluded that Claimant’s August 2004 work injury (which occurred while Defendant U.S. Fire was on the risk) destabilized his pre-existing degenerative disc disease and accelerated his need for the fusion surgeries he underwent in 2009 and 2010.
• Dr. Glassman, also a board certified physiatrist, evaluated Claimant in November 2010 at the request of Defendant U.S. Fire. As Dr. Wieneke had, he concluded that there was no causal link between Claimant’s work at R.E. Michel and his current complaints.
• Most recently, Dr. Genarro, an orthopedic surgeon, evaluated Claimant at the request of Defendant U.S. Fire in July 2011. Dr. Gennaro’s report is not yet available.
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9. At the time the pending summary judgment motions were filed, Dr. Bucksbaum’s deposition, which was scheduled for July 15, 2011, had not yet occurred. Dr. Gennaro’s independent medical examination was scheduled for the same day, and as noted above, his report has yet to be produced.
DISCUSSION:
1. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). The nonmoving party is entitled to all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 242 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979). It is unwarranted where the evidence is subject to conflicting interpretations, regardless of the comparative plausibility of facts offered by either party or the likelihood that one party or another might prevail at trial. Provost v. Fletcher Allen Health Care, Inc., 2005 VT 115 at ¶15.
2. Defendants PMA and N.H. Insurance both seek summary judgment in their favor. Both assert that even viewed in the light most favorable to the non-moving parties, the medical evidence is insufficient to establish any work-related connection between Claimant’s condition after August 2008 and his work activities during their respective policy periods. Rather, both assert that the symptoms that led to Claimant’s 2009 and 2010 fusion surgeries are attributable solely to the natural progression of his pre-existing degenerative disc disease.1
3. Claimant and Defendant U.S. Fire oppose both summary judgment motions. U.S. Fire cites to Dr. Johansson’s opinion as evidence that Claimant’s work activities during the final three and a half years of his employment for R.E. Michel, when first Defendant PMA and then Defendant N.H. Insurance provided coverage, contributed to his medical condition after August 2008. Claimant cites as well to Dr. King’s findings as raising factual issues regarding the effect of Claimant’s work activities, particularly lifting and driving, on his condition. On these grounds, both argue that summary judgment in favor of either PMA or N.H. Insurance is inappropriate.
4. Alternatively, both Claimant and Defendant U.S. Fire assert that because material facts may yet be discovered through pending discovery, it would be premature to order summary judgment in any party’s favor at this point in the proceedings. Both identify Dr. Bucksbaum’s recent deposition, which did not occur until after the pending motions were filed, and Dr. Gennaro’s recent independent medical examination, the report of which has not yet been produced, as involving information that is likely to lead to the discovery of additional material facts relevant to the disputed issues in this claim.
1 Should its own motion be denied, N.H. Insurance also asserts that genuine issues of material fact exist as to whether either the cervical injury that Claimant suffered during PMA’s policy period and/or his work activities during that time contributed to his condition after August 2008, such that PMA’s motion for summary judgment must be denied as well.
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5. Under V.R.C.P. 56(c), summary judgment is mandated where, after adequate time for discovery, a party fails to make a sufficient showing to establish all the essential elements of its case. Doe v. Doe, 172 Vt. 533 (2001); Poplaski v. Lamphere, 152 Vt. 251, 254-255 (1989) (emphasis added).
6. I concur with Claimant’s and Defendant U.S.Fire’s assertion that there has not yet been adequate time for discovery to be completed, and that therefore summary judgment is premature.
7. Even considering the evidence as currently presented, furthermore, sufficient factual issues exist so as to preclude summary judgment in favor of either Defendant PMA or Defendant N.H. Insurance. Both Dr. Johansson’s opinion and Dr. King’s findings point to Claimant’s work activities during these defendants’ policy periods as factors contributing to his disability after August 2008. Whether either of these expert’s opinions will be sufficiently credible to overcome those posited by Drs. Wieneke, Glassman and/or Bucksbaum is an issue for hearing, not summary judgment.
ORDER:
The Motions for Summary Judgment filed by Defendants PMA Insurance Co. and N.H. Insurance Co. are hereby DENIED.
Dated at Montpelier, Vermont, this _____ day of September 2011.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Margery Harvey v. United Parcel Service (February 3, 2010)

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

Margery Harvey v. United Parcel Service (February 3, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Margery Harvey Opinion No. 04-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
United Parcel Service
For: Patricia Moulton Powden
Commissioner
State File No. Z-59094
OPINION AND ORDER
Hearing held in Montpelier, Vermont on September 18, 2009
Record closed on October 19, 2009
APPEARANCES:
Vincent Illuzzi, Esq., for Claimant
Jason Ferreira, Esq., for Defendant
ISSUE PRESENTED:
Was Claimant’s September 2008 surgery causally related to her November 7, 2007 work injury?
EXHIBITS:
Joint Exhibit 1: Deposition of Miriam Simon, P.A., July 7, 2009
Joint Exhibit 2: Deposition of Michael Matteis, R.P.T., July 9, 2009
Joint Exhibit 3: Deposition of William Abdu, M.D., July 2, 2009
Joint Exhibit 4: Deposition of Rowland Hazard, M.D., August 28, 2009
Joint Exhibit 5: Deposition of Thomas Turek, D.C., September 1, 2009
Joint Exhibit 6: Medical records
Claimant’s Exhibit 1: Letter from Ron Rabideau, March 11, 2008
Claimant’s Exhibit 2: Injury and Illness Incident Report
Claimant’s Exhibit 6: E-mail correspondence, August 27, 2008
Defendant’s Exhibit 1: Curriculum vitae, Leon Ensalada M.D., M.P.H.
Defendant’s Exhibit 2: Injury Investigation Summary
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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
Permanent partial disability benefits pursuant to 21 V.S.A. §648
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 contained in the Department’s file relating to this claim.
3. Claimant has worked as a package delivery driver for Defendant since 1991.
4. Outside of work, Claimant is an avid hunter. She owns and trains 21 hunting dogs. Working with the dogs requires extensive walking across varied terrain. Claimant testified that her hunting and dog training activities take up all of her spare time, nearly year round.
Claimant’s Work Injury
5. On November 7, 2007 Claimant slipped and fell down some exterior concrete stairs after delivering a package to a residence. She landed on her left hip, with her right leg forward and her left leg behind her. Claimant was quite shaken by the fall. She testified that she felt severe pain in her lower back, just above her buttocks, as well as in her left hip and knee. In addition, she testified, both of her legs were scratched and bruised, all the way from her ankles to her buttocks.
6. After resting on the bottom step for a few minutes Claimant drove her truck across the road and called Defendant’s Health and Safety Compliance Supervisor, Monica Franz, to report the injury. Claimant was upset and fearful at having to do so. As the non-management co-chair of Defendant’s safety committee, Claimant knew what the financial implications to Defendant were for adding to its workplace injury count. By suffering an injury herself, she felt she had let the company down. In addition, Claimant testified that Defendant’s culture was not supportive of employees who were injured at work, and she feared her boss’ reaction.
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7. Upon learning of Claimant’s injury, Ms. Franz, who was also a personal friend, asked Claimant if she felt able to continue working. Claimant responded that she was. Ms. Franz also inquired whether she wanted to report the injury to Defendant’s workers’ compensation insurance carrier and Claimant declined, stating that she did not need medical treatment. Ms. Franz testified that in her experience this was not an unusual response. According to her understanding of Defendant’s injury reporting policy, it was not necessary to report an incident such as Claimant’s to the carrier unless the injured employee sought medical attention.1
8. Claimant testified that on the day following her injury she showed Ms. Franz her bruises and explained that she was still in severe pain. She continued to work, however, and testified that at least at that point she still did not intend to seek medical treatment.
9. Ms. Franz did not recall Claimant showing her the bruises on her legs. She did recall following up with Claimant at least three or four times in the ensuing week or two, asking her how she was doing and whether she wanted to report the injury, to which Claimant responded that she did not. Claimant did not recollect these conversations.
1 Defendant’s union steward, Christopher Myott, provided contrary testimony. According to him, Defendant’s collective bargaining agreement with its employees required it to report all work-related injuries to its workers’ compensation insurance carrier, even those for which the injured employee did not seek medical treatment.
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Medical Treatment Prior to November 7, 2007
10. Prior to November 2007 Claimant had treated for a variety of musculoskeletal and other complaints. She had suffered for many years from bilateral ankle and foot pain due to hyperpronation. She also suffered from chronic knee pain. Of particular relevance to the current claim, Claimant treated as well for low back, hip and groin pain at various times prior to November 2007, to wit:
• Claimant’s primary care medical records document complaints of left hip and groin pain in January and March 2001. Diagnostic studies (both x-ray and MRI) revealed no evidence of left hip arthritis and were essentially normal.
• In 2003 Claimant was referred to physical therapy for evaluation of low back pain of several months’ duration. The pain was described as centered primarily in the lower back and bilateral upper buttocks, with some pain in the left hip flexor area as well. Claimant’s symptoms subsided with postural correction and a home exercise program.
• On July 1, 2007 Claimant presented to a nurse practitioner at the hospital walk-in clinic with complaints of nagging left hip and groin pain radiating from the buttocks through to the groin. X-rays of her hip joint were normal.
• On August 6, 2007 the orthopedic surgeon who was treating Claimant’s bilateral knee pain reported that she also was complaining of chronic left hip pain, specifically in her left groin and buttock.
• On October 18, 2007 Claimant’s primary care medical records document a nurse’s note indicating that Claimant was complaining of “problems” with her back, as well as gynecological issues.
Medical Treatment After November 7, 2007
11. Three days after the stair incident, on November 10, 2007 Claimant was hunting in the woods behind her house when she suffered an idiopathic anaphylactic reaction. She broke out in hives, her tongue and lips swelled and she felt dizzy. Claimant was frightened by the event, which can be life-threatening.
12. At the time of this incident, Claimant already had a previously scheduled appointment on November 12, 2007 with her primary care provider, Miriam Simon, a physician’s assistant. The purpose of this visit was to have been a follow-up as to Claimant’s anti-depressant medication. Instead, the focus was on Claimant’s anaphylactic reaction two days earlier. Ms. Simon’s office note made no mention of Claimant’s work-related fall on November 7th, nor did it reflect any complaints of low back or hip pain related to that incident.
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13. Claimant next presented to Ms. Simon on December 6, 2007 for a recheck as to both her anaphylactic reaction and her anti-depressant medication. Ms. Simon’s office note also referenced pain complaints in Claimant’s knees and buttocks. As to the latter, it stated:
She’s developed a new problem of bilateral hip pain. She thinks this began about 2 mos ago when she got new orthotics for her hyperpronation.
14. Ms. Simon reported objective findings that included increased pain with hyperextension (i.e., with the back bent backwards). Her assessment was bilateral hip pain,2 which she suspected might be indicative of facet arthropathy or mild spinal stenosis. Notably, Ms. Simon’s office note made no reference to Claimant’s November 7th fall at work.
15. Facet arthropathy, essentially another term for arthritis, is a disease of the small joints that connect the vertebrae in one’s spine. Spinal stenosis refers to the narrowing of the spinal canal, with consequent compression on the spinal cord. Both conditions most commonly are degenerative in origin, caused by age-related changes in the spine. Typical symptoms include pain in the lower back with referred pain into the hips, groin and buttocks, as well as numbness and paresthesias down the leg and into the foot. Activities that tend to aggravate these symptoms are those that involve arching or hyperextending the back, including walking downhill and lying prone. Positions that involve forward flexion, such as sitting, will relieve these symptoms.
16. As treatment for Claimant’s symptoms, Ms. Simon recommended physical therapy. To that end, Claimant underwent an initial physical therapy evaluation on December 10, 2007. Her therapist, Michael Matteis, reported her history as follows:
The patient is a 44 year old female referred for evaluation and treatment with complaints of bilateral buttock pain. She has noticed increased symptoms in the lateral hips and buttocks over the last 4 to 5 months. Sitting does relieve her symptoms, esp. if she performs a forward flexion motion. . . . She reports that her symptoms worsened over the summer months in early July while she was training her dogs. This required a lot of walking in the woods. Does have increased symptoms when walking downhill, as well as with prone lying position. . . . Does have occasional right foot numbness on the outer aspect of the foot into toes 3 through 5. This resolves with flexion based activity. . . . She admits she has been strengthening at The Body Shop with Carol Fisher, but has only noticed symptoms worsening in the past two months.
17. In thus describing the history of Claimant’s presenting symptoms, Mr. Matteis made no mention of her November 2007 fall at work. Mr. Matteis testified that he was certain that if Claimant had mentioned the fall, he would have noted it, if for no other reason than for insurance billing and reimbursement purposes.
2 Ms. Simon testified that her reference to hip pain in this note actually was meant to describe low back pain in the area of Claimant’s buttocks.
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18. For her part, Claimant testified at the formal hearing that she began experiencing pain and numbness down her leg and into her foot and toes approximately three or four weeks after her fall, which would correspond roughly with the date she first saw Mr. Matteis. Claimant testified that Mr. Matteis confused various parts of her history and that both he and Ms. Simon “got it wrong” in their accounts of when and how her symptoms first developed.
19. Mr. Matteis concluded, as Ms. Simon had, that Claimant’s symptoms were indicative of spinal stenosis. Over the ensuing weeks he reported Claimant’s various complaints of pain in her buttocks, low back and hips. In addition to these pain complaints, on January 18, 2008 Mr. Matteis noted that Claimant was experiencing occasional mild paresthesias in her right leg.
20. In her next follow-up visit with Ms. Simon, on January 22, 2008 Claimant reported symptoms of low back and hip pain, now radiating bilaterally into her legs, with numbness as well extending down her left leg and into her toes. Again, Ms. Simon diagnosed spinal stenosis. Again, she made no mention of Claimant’s November 2007 work-related fall in discussing Claimant’s symptoms. Ms. Simon recommended continued physical therapy and diagnostic x-rays.
21. Up until this point Defendant still had not filed an injury report with its workers’ compensation insurance carrier. Instead, Claimant had instructed her medical providers to bill her group health insurance carrier. When Mr. Matteis recommended a TENS unit for home use, however, and Claimant learned that her group health insurance would not cover this expense, she approached Ms. Franz and asked to have it covered by workers’ compensation instead. Ms. Franz agreed to do so. Mr. Matteis testified that it was in this context – changing Claimant’s billing from group health to workers’ compensation, which occurred in early February 2008 – that Claimant first mentioned the November 2007 fall at work to him.
22. Claimant’s left hip and spine were x-rayed on January 31, 2008. The x-ray revealed significant facet arthropathy at L4-5 as well as spondylolisthesis. Spondylolisthesis is a particular form of spinal stenosis in which the facet joints at one level degenerate to the point where they are no longer able to maintain the vertebrae in their correct alignment. As a result, the vertebra at one level slides forward relative to the one beneath it, thus narrowing the spinal canal. Like both facet arthropathy and spinal stenosis, spondylolisthesis is usually a gradual process, most commonly caused by aging. As with spinal stenosis generally, the nerve compression that results from spondylolisthesis can progress to the point of causing pain, numbness and paresthesias into the legs. Both activities of daily living, including walking downhill or lying prone, and/or sudden trauma, such as a fall, can aggravate the condition.
23. Mr. Matteis’ physical therapy progress notes throughout February 2008 continued to reflect Claimant’s complaints of low back and leg pain, particularly upon awakening in the morning. On one occasion Mr. Matteis reported that Claimant was experiencing increased symptoms after “doing a lot of outdoor walking” the previous day. When her symptoms failed to respond satisfactorily to physical therapy, Claimant returned to Ms. Simon, who referred her to the Dartmouth Hitchcock Spine Center for further evaluation.
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24. Dr. Hazard, the director of the Spine Center’s functional restoration program, evaluated Claimant in March 2008. An MRI study confirmed that Claimant was suffering from facet arthropathy, spinal stenosis and spondylolisthesis. An epidural steroid injection relieved her symptoms temporarily, but in June 2008 they recurred. Because Claimant was experiencing not just low back pain but also worsening pain and numbness down her legs, Dr. Hazard referred her on to Dr. Abdu, an orthopedic surgeon, for consideration of surgical options. Leg pain typically is the most significant indicator for surgical correction of these conditions, as it signifies nerve root involvement. Surgery decompresses the nerve and opens up the spinal canal, thus relieving the stenosis, and then stabilizes the vertebrae to prevent further slippage, thus addressing the spondylolisthesis.
25. Claimant underwent surgery with Dr. Abdu in September 2008. She recovered well and by January 2009 was essentially asymptomatic. Claimant returned to work for Defendant on January 30, 2009. At her attorney’s referral, she underwent a permanency evaluation with Dr. Turek, a chiropractic orthopedist, in July 2009. Dr. Turek determined that Claimant had reached an end medical result, and rated her with a 21% whole person permanent impairment referable to her spine.
Medical Opinions as to Causation
26. Claimant’s treating medical providers – Ms. Simon, Mr. Matteis, Dr. Hazard and Dr. Abdu – all have testified as to the causal relationship, if any, between Claimant’s November 2007 fall at work and the need for her September 2008 surgery. In addition, Dr. Ensalada, the independent medical evaluator hired by Defendant, and Dr. Turek, who as noted above was retained by Claimant’s attorney to rate the extent of her permanent impairment, also rendered opinions as to causation.
27. All of the medical providers agree that the degenerative conditions in Claimant’s spine – facet arthropathy, spinal stenosis and spondylolisthesis – most likely predated her November 2007 fall at work. The dispute among them centers on the extent to which these conditions were asymptomatic prior to the fall and specifically, whether the fall itself caused the leg symptoms that ultimately led to Dr. Abdu’s surgery.
28. Neither Ms. Simon nor Mr. Matteis could state to the required degree of medical certainty that the November 2007 fall caused Claimant’s leg symptoms. Both acknowledged that a fall such as the one Claimant suffered could have caused worsening symptoms into her legs. Without any reference to the incident in the histories they recorded in their contemporaneous treatment notes, however, neither could state that that was the most likely cause.3
3 Claimant testified that she told both Ms. Simon and Mr. Matteis of her November 2007 fall early on in her treatment. Without stating a specific motive for them to do so, she asserted that both Ms. Simon and Mr. Matteis “threw me under the bus” with respect to her current workers’ compensation claim.
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29. Dr. Hazard testified that according to the history he obtained from Claimant, her chief complaint when he examined her – leg pain – began with the November 2007 fall at work. His understanding was that in addition to whatever symptoms Claimant may have had previously in her lower back, hips, buttocks and groin, within a few days after the fall she began to experience a new symptom – radiating pain into her leg – as well. Based primarily on this history, Dr. Hazard concluded that it was more probable than not that the fall aggravated the nerve roots in Claimant’s lumbar spine and thereby caused her leg symptoms.
30. Dr. Hazard testified that for a fall such as Claimant’s to be responsible for the ensuing symptoms into her leg, he would expect the symptoms to have occurred within days of the trauma. Consequently, he acknowledged that his causation opinion would change if the symptoms did not occur until a month or so later, as Claimant herself testified was the case. According to Dr. Hazard, it would be difficult in that event to relate the symptoms back to any particular trauma.
31. As Dr. Hazard had done, Dr. Abdu based his opinion as to the causal relationship between the November 2007 fall and the September 2008 surgery primarily on the history Claimant reported to him regarding how her symptoms had progressed. Dr. Abdu concluded that the fall caused the leg symptoms, and ultimately, therefore, the September 2008 surgery. In reaching this conclusion Dr. Abdu refused to comment in any respect on the conflicting history reported by Mr. Matteis in his initial physical therapy evaluation as to the onset of Claimant’s leg symptoms.
32. In Dr. Ensalada’s opinion, Claimant’s November 2007 fall at work did not cause, exacerbate or accelerate in any way the degenerative conditions in her spine, the symptoms she experienced in her legs or the need for her September 2008 surgery. According to his review, Claimant’s medical records prior to November 2007 documented a “classic” progression of degenerative stenosis symptoms, from low back pain to buttock, groin and hip pain, and last to radicular symptoms into the legs. Dr. Ensalada accepted Mr. Matteis’ December 10, 2007 account of Claimant’s history as accurate, and deduced from it that Claimant in fact had been symptomatic for some months prior to November 2007. Thus, Dr. Ensalada concluded, the relationship between Claimant’s fall and the further progression of her symptoms was “one of coincidence, not one of causation.”
33. In reaching this conclusion, Dr. Ensalada also remarked on the fact that the medical records most contemporaneous to the November 2007 fall made no mention of the incident. Dr. Ensalada testified that he agreed with Dr. Hazard’s assessment that if the fall had irritated Claimant’s L5 nerve root or otherwise exacerbated her underlying degenerative condition, she would have developed leg symptoms within a day or two, not three or four weeks later.
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34. Dr. Turek disagreed. He testified that although typically a fall that results in nerve root impingement likely would result in leg pain within a few days’ time that was not always the case. Rather, in some cases the progression of symptoms can be very gradual. In Claimant’s case, Dr. Turek surmised that the November 2007 fall aggravated her degenerative spondylolisthesis such that the vertebrae began to slip more. Ultimately the slippage progressed to the point where Claimant’s nerve root became irritated, thus producing her leg symptoms. In this way, Dr. Turek concluded, the fall necessitated Claimant’s September 2008 surgery.
35. Notwithstanding this conclusion, however, Dr. Turek admitted that if Claimant’s history as Mr. Matteis had reported it in December 2007 was accurate, such that in fact she already had been experiencing pain and numbness down her leg and into her toes for some time prior to November 2007, he no longer would be able to state his opinion to the required degree of medical certainty. Dr. Turek acknowledged, therefore, that in reaching his conclusions he relied substantially on the assumption that Claimant had reported her history accurately.
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 Defendant should be held responsible for Claimant’s September 2008 surgery. Through her medical expert witnesses, Claimant essentially acknowledges that she suffered from preexisting degenerative conditions in her spine. She asserts, however, that her November 2007 fall at work aggravated those conditions and precipitated the leg symptoms that ultimately necessitated surgery. Defendant argues that the fall was irrelevant to the surgery. Instead, it claims that Claimant already was experiencing the symptoms that would lead to surgery before her fall.
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 (Sept. 17, 2003).
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4. It is notable that neither Ms. Simon, Claimant’s primary care provider for many years, nor Mr. Matteis, the physical therapist who treated her symptoms within weeks after her fall, could support her claim to the required degree of medical certainty. Not only did their contemporaneous medical records fail to mention the fall in any respect, but both reported in their histories that Claimant attributed her symptoms to entirely unrelated events instead. These omissions and inconsistencies raise doubts as to Claimant’s credibility in reporting her history to subsequent medical providers.
5. These doubts carry over, and affect my consideration of Dr. Hazard’s, Dr. Abdu’s and Dr. Turek’s opinions as well. Based on the history Claimant reported to Dr. Hazard, he assumed that Claimant began experiencing symptoms in her legs almost immediately after her fall. In fact, both according to Claimant’s own formal hearing testimony and as reported in the contemporaneous medical records, this did not occur until at least three or four weeks later. Dr. Hazard testified that this information was significant, and if true, would affect his causation opinion negatively.
6. Both Dr. Abdu and Dr. Turek testified that their opinions were based primarily on the history Claimant reported, specifically as to when her leg symptoms first presented. At best, that history is uncorroborated by contemporaneous medical records. At worst, it is contradicted by them. To the extent that the history was crucial to both doctors’ opinions, both opinions suffer. W.G. v. S.D. Ireland Concrete, Opinion No. 15-08WC (May 9, 2008); Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
7. I am left with Dr. Ensalada’s opinion as the most credible in this claim. I believe, as Dr. Ensalada found, that the medical records prior to November 2007 document a gradual progression of Claimant’s symptoms. With no corroborating documentation to establish the November 2007 fall as having precipitated new and worsening symptoms, I accept his conclusion as the only one objectively supported and substantiated by the evidence.
8. I conclude, therefore, that Claimant has failed to sustain her burden of proof as to whether the November 2007 fall at work necessitated the September 2008 surgery.
9. Claimant having failed to prevail, she is not entitled to an award of costs or attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to her September 2008 surgery is hereby DENIED.
DATED at Montpelier, Vermont this 3rd day of February 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.

Rebecca Collins v. State of Vermont (August 8, 2011)

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Rebecca Collins v. State of Vermont (August 8, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Rebecca Collins Opinion No. 22-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont For: Anne M. Noonan
Commissioner
State File No. AA-03636 OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 29, 2011
Record closed on April 29, 2011
APPEARANCES:
Kelly Massicotte Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s right hip injury causally related to her April 13, 2009 work accident?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Weiss consultation, June 16, 2009
Claimant’s Exhibit 2: Curriculum vitae, George White, M.D.
Claimant’s Exhibit 3: Excerpted sections of AMA Guides to the Evaluation of
Permanent Impairment, 5th ed.
Defendant’s Exhibit A: Deposition of John Johansson, D.O., November 30,
2010
Defendant’s Exhibit B: Curriculum vitae, John Johansson, D.O.
Defendant’s Exhibit C: Medical records prior to April 13, 2009
Defendant’s Exhibit D: M. Groh and J. Herrera, A Comprehensive Review of
Labral Tears, Current Review of Musculoskeletal
Medicine 2:105-117 (2009)
Defendant’s Exhibit E: Denial of Workers’ Compensation Benefits (Form 2)
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Permanent partial disability benefits pursuant to 21 V.S.A. §648
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 an employer as those terms are defined in Vermont Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant works for Defendant as a probation and parole officer. Her duties include supervising convicted offenders on parole, probation and house arrest status. This often involves conducting field checks on offenders at their homes.
4. Claimant is a physically active person. She enjoys running, golf, tennis hiking, biking and other activities.
Claimant’s April 13, 2009 Work Injury
5. On April 13, 2009 Claimant traveled in her car to Milton, Vermont to perform a field check at a client’s home. Upon arrival she parked in the driveway, which was somewhat slanted, then exited the car and proceeded to the house. She knocked on the door, and as she was waiting for the client to open it she glanced back and saw that her car was rolling backwards down the driveway. Claimant ran to her car and positioned herself behind it, with her left shoulder against the rear end and her right leg braced as an anchor, but the car kept rolling. Over the next few moments, she tried repeatedly to re-anchor her right leg, but as the car picked up speed its force continued to jerk her down the driveway. Finally she stepped aside and watched as the car rolled across the road, through a ditch and into a neighbor’s yard.
6. Claimant was understandably shaken by this incident. Nevertheless, she retrieved her car and drove back to her office. Her right leg was hurting and shaking, in what she described as a “weird body sensation.” Claimant reported the incident to her supervisor, worked the remainder of the day, then went home and iced her ankle, which seemed to be hurting the most.
7. The next day Claimant presented to her primary care provider, Dr. Dill, complaining of right ankle pain. Dr. Dill diagnosed a right ankle sprain and prescribed ice, elevation and an air cast for up to one month. She also advised Claimant not to run for two weeks.
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8. Dr. Dill’s office note does not reflect that Claimant complained of any pain in her right hip at the time of her April 14th examination. Claimant does not recall if she did so or not. She was focused on her right ankle at the time because that was where she was experiencing the most pain.
9. In keeping with Dr. Dill’s advice, Claimant refrained from running until early May. By then her ankle pain had improved and so she resumed her routine. With running, however, Claimant noticed that she was experiencing a deep, sharp pain in her right hip and groin.
10. Claimant’s hip pain continued through May and June 2009. During this time she self-treated with ice and ibuprofen. She also altered her exercise routine by running more slowly and for less distance. Regardless of her activity level, however, her pain did not abate. Getting into and out of her car was painful, as was walking up and down inclines and arising from a sitting to a standing position.
11. Claimant did not play golf at all in May 2009. In June she played three or four times. Her hip bothered her when she did so, but the activity did not make it any better or worse.
12. On June 16, 2009 Claimant consulted with a pulmonologist, Dr. Weiss, for treatment of a persistent cough. According to Dr. Weiss’ office note, Claimant reported that she had been experiencing right hip pain for the past five weeks, which significantly increased whenever she coughed. This disclosure dates the onset of Claimant’s hip pain back to mid-May 2009, approximately four weeks after the April 13, 2009 incident and within a week or so of when she resumed running.
13. On July 6, 2009 Claimant returned to see Dr. Dill. This time she reported that she had been experiencing right hip pain since the April 13th incident with her car. Claimant reported that she did not think golf aggravated her hip, but that she was a “cripple” when she ran. Dr. Dill recommended an orthopedic evaluation.
14. Coincidentally, on the same day that she saw Dr. Dill Claimant also had a previously scheduled appointment with her orthopedist, Dr. Frenzen, who was following her for an unrelated issue. Dr. Frenzen suspected that the mechanism of Claimant’s April 2009 injury, which involved torque, or rotation against resistance, might have caused a labral tear in her hip.
15. Diagnostic imaging studies confirmed Dr. Frenzen’s suspicions. The studies revealed that that the labrum in Claimant’s hip – the rim of cartilage that provides support and stability to the joint – had either torn or separated from the acetabulum, or socket part of the hip. Claimant underwent surgery to repair the separation on October 15, 2009. Thereafter, she was totally disabled from working through November 10, 2009. At that point she returned to work part-time (four hours per day). On December 2, 2009 she returned to full-time, full-duty work.
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Expert Medical Opinions as to Causation
16. Both parties presented expert medical testimony as to the causal relationship, if any, between the April 2009 incident and the labral separation in Claimant’s hip. Dr. White concluded that such a relationship existed. Dr. Johansson concluded that Claimant’s recreational activities were a more likely cause.
(a) Dr. White
20. Dr. White is board certified in occupational medicine. He has performed thousands of independent medical evaluations, for both claimants and employers. He also is well experienced in rating permanent impairment. Dr. White saw Claimant for an independent medical examination on August 30, 2010. He also reviewed her medical records and diagnostic imaging studies.
21. To a reasonable degree of medical certainty, Dr. White concluded that Claimant’s right hip injury was causally related to the April 2009 incident. His opinion was based primarily on the mechanism of her injury on that day. Even as she attempted to use her right leg as an anchor, the car kept rolling backwards. This forced her to constantly reposition her leg as it was jerked repeatedly out of place.
22. Dr. White found support for his causation theory in the surgical findings. These revealed only one localized area of injury in Claimant’s right hip, in the upper front part of the joint. Had the hip been arthritic, there likely would have been evidence of degeneration throughout the joint.
23. Dr. White discredited Claimant’s exercise activities, either running or golf, as causative factors. Based on his review of the sports medicine literature, neither golfers nor runners are at increased risk for labral injuries to the hip. Tears of this type are not easily recognized, and symptoms can be vague and difficult to diagnose. It is neither unusual nor inappropriate, therefore, for a person to continue to engage in exercise even with a labral tear. As Dr. White noted, Mike Lowell, a professional baseball player, played an entire season with a tear in his labrum. A recreational athlete will not inflict further damage by continuing with activities to the extent that he or she can tolerate the discomfort.
24. Dr. White also was not troubled by the fact that Claimant did not complain of hip pain until some weeks after the April 2009 incident. Initially she felt the most pain in her ankle, and thus was distracted from her hip pain until the ankle began to improve. In Dr. White’s experience, this type of reaction is not uncommon among patients. Once she became aware of her hip symptoms, Claimant gave a consistent history of her complaints to other providers. Given this history, and with no prior history of right hip pain or injury, the April 2009 incident thus became the most likely causative event.
25. I find Dr. White’s analysis as to the causation of Claimant’s labral separation to be credible in all respects.
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26. According to Dr. White, surgery is the treatment of choice for labral injuries of the type Claimant suffered. He determined that Claimant had reached an end medical result as of the date of his examination, August 30, 2010. Dr. White rated the extent of Claimant’s permanent impairment at 8% whole person.
(b) Dr. Johansson
27. Dr. Johansson, an osteopath, is board certified in family medicine. His current practice is approximately 75% clinical work and 25% forensic work. At Defendant’s request, Dr. Johansson saw Claimant for an independent medical examination on December 1, 2009. He also reviewed Claimant’s medical records, though he acknowledged that this was not a “totally comprehensive review.”
28. According to Dr. Johansson, the medical evidence does not support a causal relationship between the April 2009 incident and Claimant’s hip injury to the required degree of medical certainty. In reaching this conclusion, Dr. Johansson pointed to two factors – first, the fact that Claimant did not complain of hip pain until some time after the April 2009 incident, and second, the fact that she was an avid runner, golfer and recreational athlete. According to Dr. Johansson, these activities provided a more likely explanation for Claimant’s labral separation than the April 2009 incident.
29. As to the first factor, Dr. Johansson pointed to Dr. Dill’s July 6, 2009 office note, almost three months after the April 2009 incident, as documenting Claimant’s first complaint of hip pain. In fact, however, Dr. Weiss’ June 16, 2009 note provides the first indication of hip pain. Given the emphasis that Dr. Johansson placed on the timing of Claimant’s first report of hip pain, for him to have missed this reference is troublesome.
30. Dr. Johansson also found significant the fact that even after the April 2009 incident Claimant still was able to engage in running, hiking and golf activities. In support of his opinion that these activities most likely caused or contributed to Claimant’s labral separation, Dr. Johansson referenced a medical journal article that examined the cause of such injuries.1 According to the authors of that article, the area of the hip in which Claimant’s tear occurred is subjected to greater stress than other regions, which explains why more tears occur there. At the same time, however, the authors conceded that trauma can cause tears in that region as well. With that in mind, I find that the article fails to provide substantial guidance as to the cause of Claimant’s tear.
31. Dr. Johansson acknowledged that the mechanism of injury that Claimant described in conjunction with the April 2009 incident could cause the labral separation that her surgery later revealed. He maintained that Claimant’s recreational activities were a more likely cause, however.
32. Dr. Johansson did not perform a permanent impairment rating referable to Claimant’s hip injury.
1 M. Groh and J. Herrera, A Comprehensive Review of Labral Tears, Current Review of Musculoskeletal Medicine 2:105-117 (2009).
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Procedural History of Current Claim
33. Upon learning of the April 2009 incident, Defendant accepted Claimant’s right ankle sprain as compensable and paid medical benefits accordingly.
34. Claimant did not file a claim for benefits referable to her hip injury until mid-August 2009. She attributed the delay first, to her attempts to self-treat her symptoms and second, to being distracted by other personal issues with which she was struggling during that summer. I find her explanation in this regard to be credible.
35. In September 2009 Defendant denied the compensability of Claimant’s hip injury as not causally related to the April 2009 incident. Claimant appealed the denial. Upon reviewing the available medical evidence, on September 30, 2009 the Department determined that Defendant’s denial was not reasonably supported. It ordered Defendant to pay temporary total disability and medical benefits accordingly.
36. In early October, Defendant noticed Claimant’s deposition. Claimant was unrepresented at the time; she had contacted her current attorney but had not yet received definitive word back as to whether the attorney would take the case. Claimant telephoned Defendant’s attorney a day or two before the scheduled deposition and asked that it be rescheduled until she could confirm legal representation. It is unclear whether Defendant’s attorney responded. Shortly thereafter, Claimant’s current attorney decided to take the case. She also contacted Defendant’s attorney as to rescheduling the deposition but again, it is unclear whether Defendant’s attorney responded.
37. Claimant did not appear for the noticed deposition. On those grounds, Defendant filed a Notice of Intention to Discontinue Payments (Form 27), in which it sought to discontinue all workers’ compensation benefits effective October 16, 2009. As the Department did not rule on the discontinuance, Defendant terminated benefits accordingly.
38. In December 2009 Defendant filed a second Form 27, this time discontinuing medical benefits on the basis of Dr. Johansson’s conclusion that Claimant’s hip injury was not causally related to the April 2009 incident. The Department approved this discontinuance effective December 29, 2009.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. The disputed issue in this claim is one of causation. Claimant asserts that her right hip injury resulted from the April 13, 2009 incident. Defendant argues that the injury was caused by the physically active lifestyle she has maintained for some time.
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. Both of the experts here were independent medical examiners, not treating physicians. Both examined all of the pertinent records, and both were qualified to render opinions as to causal relationship.
5. Dr. Johansson admitted that his review of Claimant’s medical records was not “totally comprehensive,” and this might explain why he missed Dr. Weiss’ June 16, 2009 reference to Claimant’s report of hip pain. Dr. White’s evaluation contained no such gaps. On those grounds I conclude that it was more comprehensive.
6. I conclude as well that Dr. White’s opinion was clearer, more thorough and better supported than Dr. Johansson’s. He appropriately analyzed the mechanism of Claimant’s injury in the context of her non-contributory medical history. He also reviewed the medical literature and found no studies establishing any connection between labral tears and either running or golfing. Having done so, he persuasively established the causal connection between the April 2009 incident and Claimant’s hip injury.
7. I conclude that Claimant has sustained her burden of proving that her right hip injury was caused by the April 2009 incident and is therefore compensable.
8. As for Defendant’s discontinuance of benefits on account of Claimant’s failure to attend her noticed deposition, neither the statute nor the rules justify this. The statute does allow for benefits to be suspended when a claimant fails to attend an independent medical examination. 21 V.S.A. §655 and Workers’ Compensation Rule 14.5500. Even were I to interpret this section to encompass a claimant’s failure to attend a deposition, however, the circumstances here would not justify Defendant’s discontinuance. Claimant’s failure here occurred at a very early stage of the proceedings, with prior notice to Defendant’s attorney and with no demonstrable prejudice resulting.
9. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e) Claimant shall have 30 days from the date of this opinion to submit her claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from October 15, 2009 through November 11, 2009, in accordance with 21 V.S.A. §642;
2. Temporary partial disability benefits from November 12, 2009 through December 2, 2009, in accordance with 21 V.S.A. §646;
3. Permanent partial disability benefits as compensation for an 8% whole person impairment referable to the right hip, in accordance with 21 V.S.A. §648;
4. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
5. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s right hip injury, in accordance with 21 V.S.A. §640; and
6. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of August 2011.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Rebecca Roy v. The Howard Center (January 10, 2013)

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

Rebecca Roy v. The Howard Center (January 10, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Rebecca Roy Opinion No. 02-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
The Howard Center
For: Anne M. Noonan
Commissioner
State File No. CC-60675 OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 1, 2012
Record closed on November 21, 2012
APPEARANCES:
William Skiff, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES:
1. Did Claimant suffer a compensable work-related psychological injury on or about October 18, 2010?
2. If yes, was Claimant’s inability to work from April 15, 2011 to July 30, 2011 causally related to that work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Warnock deposition, September 18, 2012
Claimant’s Exhibit 2: Affidavit of probable cause, State v. Pazos
Defendant’s Exhibit A: Curriculum vitae, Albert Drukteinis, M.D., J.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was 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 for Defendant since August 1999. Since August 2006 she has been a residential counselor at its “Branches” group home. As part of her regular duties, Claimant was one of two employees who dispensed medications to the residents. The other employee who dispensed medications was Kathleen Smith. If the residents did not receive their medications in a timely manner, they could become psychotic.
Claimant’s Personal and Medical Background
4. Claimant’s husband is an outgoing, friendly and demonstrative person. Her birth family is more reserved. Although their relationship with Claimant’s husband was civil, and they appeared to welcome him into the family, they thought he was overbearing. At times, family members told Claimant she would be better off if she divorced her husband. Due to the personal conflicts with her family, Claimant and her husband had engaged in couples counseling since they began dating.
5. Claimant and her husband have a five year-old son, Sebastien, who suffers from autism. As a result, he presents with special needs that are consuming in terms of time, energy and emotion. Sebastien requires a special diet and constant attention. Sometimes he behaves aggressively towards Claimant. Despite these and many other challenges, Claimant was very credible when she described Sebastien as her greatest joy.
6. Notwithstanding the challenges that raising her son presented, prior to the events at issue in this claim Claimant was able to work full time effectively and to take care of the household duties. These included cooking, housecleaning and doing the laundry. On the latter tasks, she did not receive much help from her husband.
7. With regard to her medical history, Claimant has suffered from insomnia virtually all her life. Prior to October 2010, her insomnia was well-controlled by Lunesta and she was able to sleep for up to seven and a half hours nightly. Claimant also suffered from asthma, which was well controlled prior to October 2010.
The Events of October 17 and 18, 2010
8. On Sunday, October 17, 2010, Claimant’s supervisor called to advise that her co-employee, Kathleen Smith, had not shown up for work that day. The supervisor asked Claimant for Ms. Smith’s cell phone number. Later that day, another of Defendant’s employees called Claimant to say he was going to Branches to dispense medications to the residents.
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9. The next morning, the overnight counselor at Branches called Claimant and advised her that Ms. Smith had not arrived at 8:00 AM as she usually did. Because Claimant’s shift did not start until 9:00 AM, she decided to drive by Ms. Smith’s house in the hopes of ascertaining her whereabouts. Prior to doing so, she called the hospital to see if Ms. Smith had been admitted, but she had not.
10. Claimant did drive down Ms. Smith’s street on her way to work, but she had trouble locating the correct house. By the time she found it, it was after 9:00 AM. At that point, Claimant decided to continue on to Branches to dispense the medications for the residents, as no one else could do that.
11. After speaking with her supervisor, and with her supervisor’s agreement, Claimant left Branches and returned to check on Ms. Smith’s well-being.1 When she arrived at the back door to Ms. Smith’s house, she discovered Ms. Smith’s murdered, bloody body and her lifeless dog. During the course of the hearing Claimant described what she found at Ms. Smith’s apartment. Her credible description was extremely emotional and difficult for her.
Claimant’s Treatment After October 18, 2010
12. Claimant’s supervisor instructed her to go home and take care of herself. After being on paid leave for two weeks, Claimant returned to work. She was concerned about the female residents at Branches, because with Ms. Smith now gone she was the only female residential counselor. Moreover, when she was at home, she alternated between being numb and crying. For these reasons, Claimant credibly stated that it was easier for her to be at work.
13. Claimant initially assessed her ability to cope at work as “white knuckling it.” However, as time wore on, she cried frequently, was forgetful, depressed, irritable and disorganized. These traits were all quite the opposite of Claimant’s personality prior to discovering Ms. Smith’s body. I find Claimant’s description of her changed personality to be very credible.
(a) Claimant’s Psychological Treatment
14. Claimant began treating with Aida Luce on October 20, 2010 and continued to see her through October 2011. Over the course of her treatment, Claimant attended 17 group sessions. Most of these sessions focused on her attempts to deal with the trauma of having discovered Ms. Smith’s body. Ms. Luce chronicled how initially Claimant appeared to be capable of handling her grief, but later began having flashbacks of the incident, to the point where she became increasingly unable to cope and required ongoing psychological support.
1 By this time it also had become known that Ms. Smith had not attended a mandatory training the previous Friday. That made four consecutive unexplained absences from work for her.
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15. There were two sessions with Ms. Luce that focused on issues other than Ms. Smith’s murder. One was in January 2011, when Claimant and her family were going through an exceptionally difficult physical move to an apartment. The other was in February 2011, when she expressed concern about her husband’s inability to complete tasks and her feeling that she was emotionally undernourished in their relationship.
16. Claimant also saw Larry Hall, a psychologist, between October 27 and November 30, 2010 for neurofeedback, a type of biofeedback involving the brain. Based on these sessions, Mr. Hall diagnosed Claimant with post traumatic stress disorder (PTSD). Included in this diagnosis were elements of (a) emotional instability fluctuating between grief, anger and numbness; (b) replaying the discovery of Ms. Smith’s body over and over; (c) worsened insomnia; (d) memories of the trauma triggered by driving; and (e) the need to consciously use tricks to redirect her intrusive thoughts.
(b) Claimant’s Medical Treatment
17. Claimant consistently saw a medical professional from March 2007 through the time of the formal hearing. She had preexisting asthma, other respiratory complaints and hypothyroidism, all of which required ongoing treatment. Prior to October 18, 2010 all of Claimant’s physical ailments, including the stresses related to her son and other family relationships, were well controlled.
18. Dr. Warnock, a naturopath, was Claimant’s primary care physician between February 2009 and August 2010. During that time she made six office visits. Dr. Warnock reported that Claimant typically slept for seven hours nightly, and did not present with any psychological or psychiatric issues.
19. After October 18, 2010 a totally different picture emerged of Claimant’s health, both physical and mental. In December 2010, her primary care provider, Dr. Goering, reported that Claimant had been suffering from chronic respiratory problems since Thanksgiving. She was anxious, cried easily and felt overwhelmed from having found Ms. Smith’s slain body. Dr. Goering diagnosed Claimant with adjustment disorder with mixed anxiety and depressed mood. She prescribed an anti-anxiety medication for Claimant.
20. In February 2011 Claimant saw her physician’s assistant, Peter Nobes. Mr. Nobes reported that Claimant was experiencing traumatic event nightmares, flashbacks and recurrent thoughts of finding Ms. Smith’s body. Her affect was very flat. Consistent with Mr. Hall’s diagnosis in November 2010, Mr. Nobes as well diagnosed Claimant with PTSD.
21. Claimant returned to see Mr. Nobes on April 15, 2011 for an acute asthma attack, primarily due to an episode with her son. Mr. Nobes reported that Claimant was very depressed, teary and moody. She was finding it increasingly difficult to go to work and was planning to pursue a paid leave due to her inability to cope. Mr. Nobes recommended that Claimant see a psychiatrist and, as of this visit, concluded that she was unable to work.
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22. Claimant resumed treating with Dr. Warnock in March 2012 and continues to see him presently. Dr. Warnock credibly testified that Claimant presented as a much different patient in March 2012 than she had been when he last saw her in August 2010. Dr. Warnock diagnosed Claimant with PTSD causally related to the trauma of having found Ms. Smith’s body. He convincingly described her as “an emotional wreck” as a result of that incident.
23. Since he began treating her again, Dr. Warnock’s goal has been to taper Claimant off her psychotropic medications and transition her to more natural supplements. Claimant improved dramatically from March 2012 until July 2012, when she was being prepared for the formal hearing in this matter. Realizing that she would have to recount the details surrounding Ms. Smith’s death again, she became anxious and could not sleep.
Expert Medical Opinions
(a) Dr. Powell
24. Claimant began treating with Dr. Powell, a board certified psychiatrist, in late April 2011 at the recommendation of Larry Hall and Mr. Nobes. She saw Dr. Powell on a regular basis through July 2012, a total of 35 office visits. Dr. Powell credibly opined that in order to make an accurate diagnosis, it is critical for a psychiatrist to hear a patient tell his or her own story so that nuances such as body language can be interpreted and assessed. Having had numerous occasions to do so, Dr. Powell diagnosed Claimant with both PTSD and an adjustment disorder including anxiety and depression.
25. Dr. Powell acknowledged that Claimant had many stressors in her life prior to October 2010, including (a) an autistic child on a special, time consuming diet; (b) her family’s longstanding dislike of her husband; and (c) her mother-in-law’s poor health. However, even given these stressors, Claimant was able to function very well, both at home and at work. Her mood and appetite were good, she enjoyed going to work every day, she was close to both her mother and her brother, and her insomnia was well controlled. With these facts in mind, Dr. Powell credibly concluded that Claimant’s inability to work from mid-April through July 2011 was not due to any of these preexisting stressors. I find her analysis in this regard convincing.
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26. In Dr. Powell’s opinion, Claimant’s inability to work was directly attributable to PTSD. In reaching that conclusion, Dr. Powell relied on evidence showing the extent to which Claimant decompensated, both physically and mentally, in the months following Ms. Smith’s murder in October 2010:
• She had difficulty eating, and lost a significant amount of weight;
• She suffered from severe insomnia, which did not respond to accepted medications even at high doses;
• She exhibited impaired concentration, focus, memory and decision- making abilities;
• She suffered from nightmares and flashbacks; and
• She constantly felt overwhelmed.
27. As treatment for Claimant’s severe symptoms, Dr. Powell first addressed her insomnia. With her body more rested from sleep, Claimant was better able to engage in both psychotherapy and pharmacologic treatment. She successfully returned to work on August 1, 2011.
(b) Dr. Drukteinis
28. At Defendant’s request, in October 2011 Dr. Drukteinis, a board certified psychiatrist, reviewed Claimant’s medical records. He also testified at the formal hearing. Prior to his testimony, Dr. Drukteinis reviewed the depositions of Claimant, her husband, Dr. Powell and Dr. Warnock. Dr. Drukteinis did not personally interview or evaluate Claimant.
29. Dr. Drukteinis acknowledged in his formal hearing testimony that Claimant does suffer from PTSD as a result of having discovered Ms. Smith’s body in October 2010. He considers this to be a secondary diagnosis, however. In his opinion, Claimant’s primary diagnosis is adjustment disorder causally related to other preexisting stressors in her life.
30. In Dr. Drukteinis’ opinion, Claimant’s inability to work from mid-April through July 2011 was not due in any way to her PTSD. Rather, it was the myriad of ongoing stressors in her life that caused her to leave work. In support of this opinion, Dr. Drukteinis asserted first, that Claimant’s PTSD symptoms should not have worsened over time, especially when she was receiving appropriate treatment. Second, he noted the two therapy sessions with Ms. Luce in January and February 2011 in which Claimant never spoke of finding Ms. Smith’s body but rather discussed other stressors in her life.
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31. While it is true that the two entries upon which Dr. Drukteinis focused did not mention Ms. Smith’s murder, his opinion fails to take into account the many entries in the medical records in which that event and Claimant’s subsequent PTSD symptoms are well chronicled. I find this reliance on only two of many, many psychological session entries troubling. Dr. Drukteinis’ opinion also fails to account for the fact that Claimant was well able to manage her other life stresses before the events of October 18, 2010 but increasingly unable to do so thereafter. For this reason as well, I find his opinion unpersuasive.
32. Dr. Drukteinis agreed with Dr. Powell as to the value to a psychiatrist of personally interviewing and assessing a patient. It allows the evaluator to do more than just gather facts, but also to gauge the patient’s emotional response from observing facial expressions and body language.
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. There are two disputed issues in this case. The first is whether Claimant suffered a compensable work injury when she discovered her slain co-worker while on work time but at the worker’s home. Claimant argues that with her supervisor’s agreement, she left Branches, found her slain co-worker and suffered post traumatic stress disorder as a result.
3. The starting point for any workers’ compensation claim is whether the injury arose out of and in the course of employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injury. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993).
4. The “in the course of” prong of the compensability test is met when an injury is shown to have occurred “within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
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5. In this case, Claimant was one of two workers on the weekly daily shift who were authorized to dispense medications to the residents at Branches. Thus, both Claimant and Ms. Smith were essential employees at that job site. When Ms. Smith did not show up for work for several days, both Claimant and her employer had cause to be extremely concerned. It was to her employer’s benefit, and with her supervisor’s direct approval, that Claimant left her post at Branches on October 18, 2010 in order to check on Ms. Smith’s well-being. It was at this time that she made her horrific discovery. I conclude that because this event occurred during the period of time when Claimant was on duty and in a place where she was reasonably expected to be while fulfilling a duty related to her employment, she has met the “in the course of” component of compensability.
6. With respect to the “arising out of” prong, the two psychiatric experts did not disagree that Claimant developed PTSD as a result of finding Ms. Smith’s body. Therefore, I conclude that this element of the compensability test is satisfied as well.
7. Having met both the “arising out of” and the “in the course of” tests, I thus conclude that Claimant’s PTSD was causally related to her work and is compensable. What remains to be decided is whether Claimant’s disability from work between April 15, 2011 and August 1, 2011 was causally related to that injury. Claimant argues that it was. Defendant counters that the real cause of Claimant’s emotional condition and consequent inability to work was the many other stressors in her life.
8. The parties presented conflicting psychiatric evidence on this issue. 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).
9. Based on the first, third and fourth factors, I conclude that Dr. Powell’s causation opinion is the most persuasive. Dr. Powell had the opportunity to examine and evaluate Claimant over the course of 35 therapy sessions. Her opinion that in the seven months after October 2010 Claimant’s PTSD caused her to steadily decompensate, both physically and mentally, was clear and thorough. It was objectively supported by evidence documenting Claimant’s dramatic weight loss, severe insomnia, impaired intellectual functioning and persistent nightmares, flashbacks and feelings of overwhelming anxiety. I find convincing her opinion that these symptoms were indicative of PTSD and that until effectively treated, they rendered Claimant totally unable to work.
10. In contrast, Dr. Drukteinis’ opinion was not objectively supported and did not adequately account for the marked changes in Claimant’s personality, mood and ability to cope after October 2010. For these reasons, I conclude that it is unpersuasive.
11. In summary, I conclude that Claimant has sustained her burden of proving that she was temporarily totally disabled from working as a result of her compensable PTSD from April 15, 2011 through July 31, 2011.
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12. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees in accordance with 21 V.S.A. §678(e). Claimant has submitted a request for expenses totaling $1,721.59 and attorney fees totaling $9,309.00 (64.2 hours at $145.00 per hour). Defendant has not filed specific objections to any of the requested costs or fees. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678(a). 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. Temporary total disability benefits from April 15, 2011 through July 31, 2011 pursuant to 21 V.S.A. §642, with interest as calculated pursuant to 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s post traumatic stress disorder, in accordance with 21 V.S.A. §640; and
3. Costs in the amount of $1,721.59 and attorney fees in the amount of $9,309.00 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 10th day of January 2013.
__________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Kathryn Lopez v. The Howard Center (August 7, 2014)

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

Kathryn Lopez v. The Howard Center (August 7, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Kathryn Lopez Opinion No. 12-14WC
v. By: Jane Woodruff, Esq.
Hearing Officer
The Howard Center For: Anne M. Noonan
Commissioner
State File No. FF-51946
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 24, 2014
Record closed on June 16, 2014
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s right upper extremity injury arise out of and in the course of her
employment?
EXHIBITS:
Claimant’s Exhibit 1: Three photographs of the exterior of Claimant’s townhouse
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to
this claim.
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Claimant’s Duties
3. Claimant has worked as a case manager for Defendant for the past 17 years. She carries a
caseload of between 30 and 32 clients, all of whom suffer from a major mental illness.
She provides supportive counseling to help her clients remain in the community.
Claimant sees her clients both in their homes and at her place of work.
4. Claimant has an office on the first floor of Defendant’s premises on Flynn Avenue in
Burlington, Vermont. She enters the building through a rear door. The public enters
through a different door, which opens into a lobby. The public normally cannot gain
further access to the inner offices where Claimant’s office is located. Entry to that area
is via a locked door with a key code that is only available to Defendant’s employees.
However, Claimant credibly testified that at times clients have discovered what the code
is, which necessitates a code change.
5. Claimant does not meet with her clients in her office, nor do the two colleagues with
whom she shares office space. There are rooms specially designated for client meetings
in the area behind the key-coded door. Claimant testified credibly that at times clients
will mill about the hallway outside her office unsupervised, waiting either for their
caseworker or for an appointment.
6. Claimant self-directs her daily schedule and every day presents her with a different mix
of duties. Defendant allowed her discretion to decide how to best assist and counsel her
clients.
Client Resource Materials
7. Claimant credibly testified that Defendant permitted her to use its funds to purchase
resource materials that would assist her work with her clients. Typically these materials
included self-help books and compact discs, which Claimant would lend to clients who
she thought would benefit from them. Claimant kept the more expensive books and CDs
at her home to protect them from theft at the office.
8. Claimant credibly testified that she was not aware of any policy, written or otherwise,
whereby Defendant mandated that the resource materials were to be kept on its premises.
Claimant’s supervisor, Cathy Cashman, and Ms. Cashman’s supervisor, Elaine Soto, both
corroborated this testimony.
Claimant’s Trip Home
9. On August 12, 2013 Claimant went about her workday as usual. She saw clients at her
office in the morning and had appointments scheduled into the afternoon. At noontime
she realized that she had forgotten a book at home that she wanted to loan to her 1:00 PM
client. As she only saw this client every other week and he was in what Claimant
credibly described as “a crisis,” she decided to return to her home to retrieve the book.
The use of this book was part of her treatment plan for this client. I find Claimant’s
testimony credible.
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10. Claimant also had a client scheduled for 12:30 PM that day; however, she had reason to
believe that client might not keep the appointment. At 12:15 PM she told the secretary
she needed to run an errand and she might be a little late for her 12:30 PM appointment.
At that point she left Defendant’s premises to retrieve the resource book from her home.
I find this testimony credible.
11. Claimant traveled directly to her home from work. She ran no other errands on the way,
nor did she stop to have lunch at her home. Her sole reason for returning home was to
retrieve the book for her client. She entered her townhouse, got the book and
immediately put it in her vehicle. Being security conscious, before she left to return to
work, she wanted to make sure her townhouse was locked. Claimant was credible in this
testimony in all regards.
12. Claimant left her vehicle to check her door. As she opened it, her dog escaped into the
backyard. Knowing that time was of the essence, she thought she could lure her dog
inside with a ball. She went up on her deck to retrieve a ball. As she hurried to the top of
the stairs and across the deck, her feet got tangled in a hammock. Claimant lost her
balance and fell very hard into her sliding glass door. She credibly testified that she spent
only a matter of minutes at her home before she fell.
13. Claimant knew she was hurt seriously, as she could not feel her right arm and shoulder.
She called 911 and was taken to the hospital. Claimant sustained a spiral fracture of her
humerus, which was surgically repaired that same night. Thereafter, she underwent
physical therapy and acupuncture. Her physical therapy was ongoing at the time of the
formal hearing.1
14. Defendant did not discipline Claimant in any way, either for returning home to retrieve
the book or for safekeeping resource materials at her home.
CONCLUSIONS OF LAW:
1. To establish a compensable claim under Vermont’s workers’ compensation law, a
claimant must show both that the accident giving rise to his or her injury occurred “in the
course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161
Vt. 213, 214 (1993); 21 V.S.A. §618.
2. An injury occurs in the course of employment “when it occurs within the period of time
when the employee was on duty at a place where the employee was reasonably expected
to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215,
quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
1 Claimant was temporarily totally disabled from work from August 12, 2013 until the middle of November 2013.
The parties are not litigating either the reasonableness of Claimant’s medical treatment or her time out of work.
4
3. An injury arises out of the employment “if it would not have occurred but for the fact that
the conditions and obligations of the employment placed claimant in the position where
[claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1
Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called
“positional risk” analysis lays responsibility on an employer when an employee’s injury
would not have occurred “but for” the employment and the worker’s position at work.
Id.
4. Putting these two prongs of the compensability test together, the “in the course of”
requirement establishes a time and place connection between the injury and the
employment, while the “arising out of” requirement establishes a causal connection
between the injury and the employment. See Walbridge v. Hunger Mountain Co-op,
Opinion No. 12-10WC (March 24, 2010), citing Spinks v. Ecowater Systems, WC 04-217
(Minn. Work.Comp.Ct.App., January 21, 2005). Both connections are necessary for a
claim to be compensable. Carlson v. Experian Information Solutions, Opinion No. 23-
08WC (June 5, 2008).
The “In the Course Of” Prong
5. Defendant argues that Claimant was under no work-related duty to retrieve the resource
book from her home, during the lunch hour, away from Defendant’s premises. For these
reasons, Defendant asserts that Claimant has failed to satisfy the first half of the
compensability test.
6. A key component of what constitutes an employee’s work-related “duty” is whether the
activity benefits the employer. If it does, then it fits within the parameters of the term,
even if the employer did not specifically direct the employee to undertake the activity.
Kenney v. Rockingham School District, 123 Vt. 344 (1963).
7. In this case, Claimant managed cases and delivered direct services to Defendant’s clients.
She self-directed her schedule and more important, she used her discretion to decide how
best to counsel her clients. All of her clients had some diagnosis of a major mental
illness. In her approach to case management, she lent resource materials to clients who
she believed would benefit from that type of service. Here, she reasonably concluded
that retrieving a book from home would assist a client in crisis, and in that way would
benefit her employer as well. At least initially, her trip home thus occurred within a
period of time when she was on duty at a place where she was reasonably expected to be
while fulfilling the duties of her employment contract. Miller, supra.
8. Generally speaking, an employee is not within the scope of employment when he or she
is injured while traveling to and from work, unless the injury occurs on the employer’s
premises. Miller, supra at 216. There is an exception to this rule, however, in cases
involving traveling employees – those who either have no fixed place of employment or
who are engaged in a special errand or business trip at the time of their injuries. 1 Lex K.
Larson, Larson’s Workers’ Compensation §17.01 et seq. (Matthew Bender Rev. Ed.). As
Claimant was engaged in a special errand to retrieve the resource book, she falls within
this exception.
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9. There is as well, however, an exception to the exception. If a traveling employee
deviates substantially from a journey’s business purpose in order to pursue personal
interests instead, an injury sustained during the deviation will no longer be deemed to be
within the course of employment. Estate of Rollins v. Orleans Essex Visiting Nurses
Assn., Opinion No. 19-01WC (June 5, 2001); Larson’s, supra at Chapter 17, p. 17-1.
10. The inquiry does not end there, however. Not every personal deviation will justify a
denial of workers’ compensation coverage. Rather, the question in each case is whether,
under all the circumstances, the deviation is substantial enough to take the worker out of
the course and scope of his or her employment. Estate of Rollins, supra. Factors bearing
on this question include:
(1) The amount of time taken up by the deviation;
(2) Whether the deviation increased the risk of injury;
(3) The extent of the deviation in terms of geography; and
(4) The degree to which the deviation caused the injury.
Id.; see generally, Larson’s Workers’ Compensation, supra; Estate of Carr v. Verizon
New England, Opinion No. 08-11WC (April 29, 2011).
11. Applying these concepts in this case, the question becomes, did Claimant deviate so
substantially from the business purpose of her trip as to remove her actions from the
course and scope of her employment, first when she decided to check to make sure her
door was locked, and subsequently, when she fell while attempting to lure her dog back
inside?
12. Considering the first and the third factors, Claimant’s deviation took place over only a
matter of minutes, and covered only the distance from her car to her front door, and then
to her deck. In terms of both time and geography, I conclude that it was not substantial.
13. As for the second factor, the deviation occurred solely on Claimant’s property, an area
that presumably she knew well. She did nothing to increase the risk of injury, as might
have been the case, for example, had her dog strayed into a busy street rather than into
her yard. Hers was a momentary diversion, insubstantial in terms of risk. See Larson’s,
supra at §17.06[3] and cases cited therein. I conclude that the second factor favors
compensability.
14. As to the fourth and final factor, I conclude that Claimant’s deviation did play a role in
causing her injury. By the time she ran up onto her deck to retrieve the ball for her dog,
the business purpose for her trip home had ended. Had she not deviated, she would not
have fallen. That the deviation played a role in causing her injury is inescapable. See,
e.g., Ogren v. Bitterroot Motors, Inc., 222 Mont. 515 (1986) (deviation directly caused
injury where, after business purpose for employee’s trip had ended, he travelled on to
pick up his daughter and then fell asleep while driving through the night), cited with
approval in Estate of Rollins, supra.
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15. Given the particular facts of this case, I conclude nonetheless that Claimant’s failure to
satisfy the fourth prong of the “course of employment” test is not fatal to her claim. The
nature and extent of her deviation as a whole was temporally brief, geographically short
and reasonable under the circumstances. Considering all four factors together, it was not
substantial. For that reason, I conclude that it did not take her out of the course of her
employment.
The “Arising Out Of” Prong
16. Defendant next asserts that Claimant’s injuries did not arise out of her employment.
Given that it did not specifically direct the manner in which Claimant delivered services
to her clients, it argues first, that it did not require her to travel home to retrieve the book
she wanted for her 1:00 PM client, and second, that she could have brought the book in at
another time.
17. As the Supreme Court noted in Shaw, supra at 598, ordinarily if an injury occurs in the
course of employment, it also arises out of it, “unless the circumstances are so attenuated
from the conditions of employment that the cause of the injury cannot reasonably be
related to the employment.” That is not the case here.
18. To satisfy the requirements of the “arising out of” prong, a causal connection must exist
between an employee’s injury and his or her work; not necessarily in the sense of
proximate or direct cause, but rather as an expression of origin, source or contribution.
Snyder v. General Paper Corp., 152 N.W.2d 743, 745 (Minn. 1967); see, Shaw v. Dutton
Berry Farm, 160 Vt. 594, 597-98 (1993) (overruling Rothfarb v. Camp Awanee, Inc., 116
Vt. 172 (1950), and characterizing tort-type proximate causation in the workers’
compensation context as narrow, unduly restrictive and contrary to the remedial purpose
of the statute).
19. Vermont has long adhered to the “positional risk” doctrine in interpreting and applying
the “arising out of” component of compensability. Miller, supra at 214, citing Shaw,
supra at 599. Under Vermont law, an injury arises out of the employment “if it would
not have occurred but for the fact that the conditions and obligations of the employment
placed claimant in the position where [claimant] was injured.” Id., quoting Larson’s,
supra at §6.50 (emphasis in original). Phrased alternatively, the positional risk doctrine
asks simply whether an injury would or would not have occurred but for the claimant’s
employment and his or her position at work. Shaw, supra.
20. In this case, the conditions and obligations of Claimant’s employment included providing
counseling and support services in a manner that she directed. In reasonably exercising
the discretion Defendant afforded her as to how best to provide these services, Claimant
found it necessary to retrieve a book from home in order to share it with a client in crisis.
Had she delayed doing so, it would have been to her client’s detriment, and by extension,
to Defendant’s as well. Were Claimant to have raced home on her lunch hour to play
with her dog, her activities would not have merited workers’ compensation coverage.
But because her actions were necessitated by her job responsibilities, it is appropriate to
consider her subsequent injury as having arisen out of her employment.
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Summary
21. I conclude that Claimant has sustained her burden of proving that her injury arose out of
and in the course of her employment with Defendant. Thus, her August 13, 2013 injuries
are compensable.
22. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs
and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days
from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Temporary total disability benefits from August 12 , 2013 through November 15,
2013 in accordance with 21 V.S.A. §642, with interest as calculated in accordance
with 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally
related to treatment of Claimant’s right upper extremity injury, in accordance with
21 V.S.A. §640; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21
V.S.A. §678.
DATED at Montpelier, Vermont this 7th day of August 2014.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

Jeffrey Wimble v. Green Mountain Coffee Roaster/ MEMIC and (May 2, 2014)

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

Jeffrey Wimble v. Green Mountain Coffee Roaster/ MEMIC and (May 2, 2014)
Green Mountain Coffee Roasters/Liberty Mutual Ins. Co.
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeffrey Wimble Opinion No. 08-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Green Mountain Coffee Roasters/MEMIC
and Green Mountain Coffee Roasters/ For: Anne M. Noonan
Liberty Mutual Insurance Co. Commissioner
State File Nos. X-60513 and DD-61994
RULING ON DEFENDANT MEMIC’S MOTION FOR RELIEF FROM ARBITRATION
ORDER
APPEARANCES:
John Valente, Esq., for Defendant MEMIC
Keith Kasper, Esq., for Defendant Liberty Mutual Insurance Co.
Background:
This claim originated as an aggravation/recurrence dispute between two successive insurers for
the same employer. Claimant initially suffered a compensable injury to his left elbow in 2006.
As the carrier on the risk at the time, Defendant MEMIC paid workers’ compensation benefits
accordingly, including a period of temporary total disability following surgery in October 2006.
Claimant returned to work and was determined to have reached an end medical result in May
2007.
In October 2011 Claimant sought additional treatment, which culminated in a second surgery on
April 11, 2013. By that time, he was working for another employer, his employment for Green
Mountain Coffee Roasters (GMCR) having terminated as of February 29, 2012. On March 3,
2012 GMCR had filed a new First Report of Injury, with an injury date of February 28, 2012.
Defendant Liberty Mutual Insurance Co. was the carrier on the risk as of that date.
Liberty denied responsibility for the additional workers’ compensation benefits Claimant sought
on the grounds that no new injury had occurred on February 28, 2012. To the contrary, it
asserted that he had suffered a recurrence of his 2006 injury, such that MEMIC remained liable
for any benefits due him.
Faced with an aggravation/recurrence dispute, the Department issued an interim order under 21
V.S.A. §662(c) requiring Liberty, as the more recent carrier on the risk, to pay benefits.
Concurrently, it ordered both carriers to submit to arbitration as to which of them bore ultimate
responsibility for Claimant’s renewed treatment, pursuant to 21 V.S.A. §662(e).
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Notwithstanding that he had resumed treatment as of October 2011, Claimant did not lose time
from work until his April 2013 surgery. Thereafter, Liberty calculated his compensation rate for
temporary total disability based on the wages he had earned prior to February 28, 2012, the date
of injury alleged in GMCR’s March 3, 2012 First Report of Injury.
On February 6, 2014 the arbitrator issued his Arbitration Decision and Order. Based on the
evidence presented, he determined that Claimant’s renewed treatment represented a recurrence of
his 2006 injury, for which MEMIC remained responsible. He thus ordered MEMIC to “assume
responsibility for the current medical treatment and ancillary workers’ compensation benefits.”
In addition, he ordered MEMIC to “reimburse Liberty Mutual for all sums paid, by Liberty
Mutual, to or on behalf of [Claimant] in this matter.”
MEMIC does not question the arbitrator’s finding of recurrence, and therefore does not assert
any error as to the first part of his order. As to the second part, however, it argues that the
arbitrator exceeded his authority by ordering reimbursement for all of the monies Liberty
previously paid to Claimant. Specifically, it claims that because Liberty erroneously calculated
Claimant’s compensation rate for temporary total disability benefits,1 Liberty should bear full
responsibility for any resulting overpayment, and MEMIC should be excused from reimbursing
any overpaid amounts.
Discussion:
Vermont’s workers’ compensation statute authorizes the commissioner to order arbitration as to
“any dispute between employers and insurers” that arises “whenever payment of a compensable
claim is refused, on the basis that another employer or insurer is liable.” 21 V.S.A. §§662(c) and
(e). If arbitration is ordered, the statute imposes responsibility upon the arbitrator as follows:
[To] determine apportionment of the liability for the claim . . . among the
respective employers or insurers, or both. The apportionment may be limited to
one or more parties.
21 V.S.A. §662(e)(2)(A). The arbitrator also must issue a written decision, “which shall be
final.” 21 V.S.A. §662(e)(2)(B). An arbitrator’s award can only be vacated by a showing of
“corruption, fraud or partiality,” Workers’ Compensation Rule 8.6211, and can only be modified
“if there is a miscalculation of figures or mistake describing any person, thing or property
referred to in the award.” Workers’ Compensation Rule 8.7110.
As the statute specifically reflects, 21 V.S.A. §662(e)(2), arbitration thus replaces the formal
hearing process for any disputes so referred. This includes not only disputes as to which
employer or carrier bears ultimate responsibility to the claimant, as is the case in most
aggravation/recurrence claims, see, e.g., Raymond v. SD Ireland Concrete Construction Co.,
State File Nos. T-19436 and BB-01610, Arbitration Decision dated February 26, 2014, but also
disputes regarding the extent, if any, to which responsibility for specific benefits should be
1 MEMIC asserts that Claimant’s compensation rate should have been based either on his average wages prior to
April 11, 2013 (the date of his most recent disability), or on his average wages at the time of his first period of
disability in October 2006. Instead, Liberty’s payments were based on Claimant’s average wages prior to February
28, 2012, the injury date reflected on GMCR’s second First Report of Injury.
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shared among multiple employers or carriers. See, e.g., Webster v. Steven’s Gas, State File No.
S-15680, Arbitration Decision dated June 8, 2006; Bothwell v. North Country Hospital, State
File Nos. L-15688 and T-17209, Arbitration Decision dated June 2, 2006.
MEMIC argues that the second part of the arbitrator’s award here should be vacated, on the
grounds that the statutory authority granted him “to determine apportionment of the liability” for
a claim did not encompass the authority to order reimbursement of amounts already paid. Given
the statutory requirement that the commissioner order arbitration among various carriers only
“after payment to the claimant” has been made, 21 V.S.A. §662(e), by necessity one of the
parties already will have paid benefits by the time arbitration occurs. If ultimately the arbitrator
concludes that liability should have rested on another party’s shoulders instead, it follows that
the first party will have to be reimbursed for the amounts it was ordered to pay initially, see 21
V.S.A. §662(c). To limit the arbitrator’s award solely to responsibility for future benefits would
be manifestly unfair. Nothing in the statutory language supports such an interpretation, and for
this reason, I reject this basis for MEMIC’s request that the award be vacated.
Short of vacating the award, MEMIC argues in the alternative that the arbitrator’s order should
be modified under Workers’ Compensation Rule 8.7110, on the grounds of a “miscalculation of
figures or mistake describing . . . property.” It challenges the arbitrator’s failure to make
findings either as to the manner in which Liberty calculated Claimant’s compensation rate or as
to the total amount it paid. By then ordering reimbursement of an unspecified sum, it argues, the
arbitrator impliedly adopted Liberty’s “miscalculations.” And by requiring MEMIC to
reimburse Liberty in an amount greater than what Claimant actually was due, he thus mistakenly
“described” MEMIC’s “property.”
I agree that had MEMIC raised the compensation rate issue in the course of the arbitration
proceedings, the arbitrator would have been obligated to decide it. Had sufficient credible
evidence been presented to him, certainly it would have been within his authority to order
MEMIC to reimburse Liberty only for the benefits he determined Claimant should have received,
and not for any overpayments he found Liberty to have made. MEMIC failed to present any
evidence at all on the issue, however. As a consequence, there simply is no basis from which to
conclude that the arbitrator’s decision was flawed as a result of some miscalculation or mistake
in description.
In effect, the “modification” MEMIC seeks now is an opportunity to litigate before the
commissioner a question that it should have raised before the arbitrator. It asserts that it did not
have access at the time to the financial information it would have required to question Liberty’s
compensation rate calculations, but I find this argument unconvincing. Faced with potential
liability for all or a portion of the benefits Liberty had paid, it should have been a routine
exercise for MEMIC to request an itemized list of the payments made to date, along with the
wage statements and compensation agreements upon which any indemnity payments were based.
That it failed to do so is unfortunate, but it is not grounds for modifying the arbitrator’s award.
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I agree, as MEMIC asserts, that public policy favors accuracy in calculating the benefits due an
injured worker under the workers’ compensation statute. When mistakes occur, public policy
favors that the factual and legal issues be promptly raised so that they can be resolved in a timely
and effective manner. Public policy also favors that disputes not be litigated in piecemeal
fashion. Last, public policy favors respect for the arbitration process, and particularly for the
statutorily imposed finality of the arbitrator’s decision and order. Balancing all of these policy
considerations, I conclude that there is no basis for either vacating or modifying the award in this
case.
ORDER:
Based on the foregoing, Defendant MEMIC’s Motion for Relief from Arbitration Order is hereby
DENIED.
DATED at Montpelier, Vermont this 2nd day of May 2014.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

Cecile Lushima v. Cathedral Square Corporation (September 29, 2009)

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Cecile Lushima v. Cathedral Square Corporation (September 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cecile Lushima Opinion No. 38-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Cathedral Square Corporation For: Patricia Moulton Powden
Commissioner
State File No. Y-50129
OPINION AND ORDER
Hearing held in Montpelier on October 17th and 18th, 2008
Record closed on July 9, 2009
APPEARANCES:
Chris McVeigh, Esq. for Claimant
Wesley Lawrence, Esq. for Defendant
ISSUES:
1. Was Defendant justified in terminating Claimant’s temporary disability benefits on September 16, 2007 on the grounds that she had reached an end medical result for her compensable work injury?
2. Is Claimant barred from disputing the date of end medical result and the extent of her permanent impairment by virtue of the signed and approved Agreement for Permanent Partial Disability Compensation (Form 22)?
3. Is Claimant entitled to medical benefits for ongoing treatment of her left shoulder after June 24, 2007?
EXHIBITS:
Defendant’s Exhibit 1: Medical records
CLAIM:
Temporary partial disability benefits pursuant to 21 V.S.A. §644;
Medical benefits pursuant to 21 V.S.A. §640;
Permanent partial disability benefits pursuant to 21 V.S.A. §648;
Interest, costs and attorney fees pursuant to V.S.A. 21 §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to the proceedings, Claimant was an employee and Defendant was her employer as those terms are defined under Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant was born in the Congo and moved to the United States by way of Niger and Europe. She moved from the Congo for political reasons. Claimant’s uncle, the first democratically elected Prime Minister of the Republic of Congo, was overthrown and murdered. Both because of this association and because of the country’s general instability, Claimant felt that it was unsafe to remain there. Ultimately she and her family settled in Vermont.
4. On the date of Claimant’s injury she was married to Wembo “Alex” Shungo, with whom she raised six children ranging in age from 10 to 20 years old. Claimant’s native language is French, but she is fluent in seven other languages, including English, which she reads, writes and speaks well.
Claimant’s Initial Work Injury
5. On June 20, 2006 Claimant was working for Defendant as a nurse’s aide. In the course of helping a stroke patient into bed, she injured her left shoulder. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly. Claimant continued to work, though in a modified-duty capacity, until February 2, 2007.
6. Initially Claimant treated conservatively for her injury, which was diagnosed as a shoulder strain. When her symptoms failed to improve, she underwent an arthrogram, which revealed a labral tear. Claimant continued to treat conservatively, but again her symptoms did not improve. After some time, she was referred to Dr. Lawlis, an orthopedic surgeon, for further evaluation. Dr. Lawlis diagnosed a superior labrum anterior and posterior (SLAP) tear, which he surgically repaired on February 20, 2007.
7. Following her surgery Claimant was referred for “aggressive” physical therapy. Her recovery was slow, and her left shoulder remained painful to such an extent that it severely limited her activities of daily living.
8. On April 6, 2007 Dr. Lawlis reevaluated Claimant on an urgent basis because of her increased pain. He noted that Claimant’s range of motion was extremely limited and concluded that she was suffering from severe fibrous capsulitis causally related to her shoulder surgery. Dr. Lawlis prescribed aqua therapy and recommended that Claimant progressively work at gentle stretching more frequently on her own at home. He also prescribed Oxycontin and Percocet for break-through pain.
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9. Dr. Lawlis continued to monitor Claimant’s progress. On May 8, 2007 he determined that she should continue her pain medications and remain out of work for at least eight more weeks. In the meantime, Claimant continued to work diligently at her exercise regimen. Although her pain persisted, she was doing more. A June 20, 2007 physical therapy progress note indicated that the strength below her shoulder had improved “remarkably,” although Claimant still could not use her arm for overhead activity. Claimant’s progress at this point represented a significant improvement over what the physical therapy notes had documented in early May.
The June 24, 2007 Border Incident
10. On June 24, 2007 Claimant, her husband, her mother-in-law and her sister-in-law drove to Montreal. Claimant’s in-laws had been visiting, and the purpose of the trip to Montreal was to accompany them to the bus station so that they could travel home to western Canada. Claimant’s six children stayed home, with the older ones caring for the younger ones.
11. At the time, Claimant’s husband was working as a high school teacher in Brattleboro. Neither he nor Claimant had ever been arrested or otherwise involved in any criminal activity. On the trip up, they entered Canada without incident. On the return trip, however, Claimant and her husband were stopped at the Highgate Springs, Vermont entry point. After examining their passports, a border patrol officer directed them to park their car and proceed into the immigration building. The officer kept their passports.
12. A security videotape of the immigration building’s lobby depicts what happened next. Once inside, Claimant and her husband sat down. No one approached them. After a time, Claimant’s husband inquired of a border patrol officer as to why they were being detained. According to his testimony, he was told to continue waiting. When he tried to inquire further, an argument ensued among him, Claimant and various border patrol officers. Ultimately the border patrol officers approached Claimant’s husband and moved to take him into custody.
13. With this unfortunate development, Claimant became very upset. She clung to her husband and attempted to push the border patrol officers away. A struggle ensued, which went on for several minutes. The officers had to physically restrain Claimant in order to separate her from her husband, whom they handcuffed and removed to a detention cell. Claimant continued to remonstrate with the officers, both verbally and physically. Eventually she too was handcuffed, with her arms behind her back, and taken to a detention cell.
14. In the process of being handcuffed, the border patrol officers pushed on Claimant’s injured left shoulder, which was very painful to her. Both Claimant and her husband testified that they tried to explain to the border patrol officers that Claimant had recently undergone shoulder surgery, but to no avail.
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15. Once in her cell, Claimant began complaining of severe pain in her left shoulder. After holding Claimant and her husband in custody for several hours, eventually border patrol personnel had them transported by ambulance to Northwestern Medical Center. Claimant underwent treatment in the emergency room for her left shoulder. Subsequently, both she and her husband were released from border patrol custody and proceeded home to Burlington.
Medical Evaluation and Treatment after June 25, 2007
16. On the day following the border patrol incident, Claimant saw Dr. Lawlis again. Diagnostic testing later revealed additional tears in the tendons of Claimant’s left shoulder, tendons that had been intact at the time of her first surgery. Because Defendant disputed its responsibility for medical treatment related to the incident, Claimant could only afford to treat sparingly, however. She continued her home exercise program and later attended physical therapy. As of the date of the formal hearing, it was unclear whether she would require additional surgery to repair the new tears.
17. After the border incident Claimant returned to work part-time, modified-duty, at a convent in Winooski. Later she began working in a medical office.
18. In Dr. Lawlis’ opinion, the border incident aggravated Claimant’s original shoulder injury and significantly delayed her recovery. He noted that had Claimant not been recovering from shoulder surgery at the time, the incident probably would not have resulted in any injury at all. As it was, however, the border incident probably caused the new tears in Claimant’s shoulder tendons that had not been present at the time of her original injury.
19. Dr. Lawlis determined that Claimant reached an end medical result for the original June 2006 work injury on March 3, 2008. In his opinion, she did not reach end medical result for the border incident injury until June 3, 2008.
20. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Johansson in July 2007. Dr. Johansson concluded that the June 2007 border incident caused either an aggravation or a new injury to Claimant’s left shoulder. In his opinion, had it not been for that event Claimant would have reached end medical result for her original work injury by the date of his evaluation, July 23, 2007. Dr. Johansson further found that Claimant had suffered a 7% whole person permanent impairment referable to her original work injury.
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Claimant’s Response to Defendant’s Form 27 and Proposed Permanency Agreement
21. With Dr. Johansson’s opinion as support, in September 2007 Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), seeking to terminate Claimant’s temporary disability benefits on end medical result grounds as of September 16, 2007. The Department approved the discontinuance on September 21, 2007.
22. On September 28, 2007 Claimant, who was unrepresented at the time, wrote to Defendant, advising that she disagreed with the decision to terminate her benefits and asking that Defendant reconsider its position. Defendant did not respond to this letter.
23. Shortly thereafter, Defendant mailed to Claimant a proposed Agreement for Permanent Partial Disability Compensation (Form 22). The Form 22 reflected that Claimant’s temporary total disability had ended on September 16, 2007. It referenced the Form 27 that had been filed to that effect on the grounds that she had reached an end medical result for her work-related injury, described as a “left shoulder SLAP repair.” The Form 22 further proposed to pay permanent partial disability benefits in accordance with Dr. Johansson’s 7% whole person impairment rating.
24. Claimant testified that she assumed that the Form 22 had been sent to her in response to her September 28, 2007 letter. She thought that its purpose was to reinstate her temporary disability benefits. She admitted that she did not even read the form, but instead merely signed it and sent it back.
25. The Department approved the Form 22 on October 24, 2007. Thereafter, Claimant received weekly permanent partial disability benefits, totaling $9,582.30, until March 30, 2008. Claimant testified that at least at first, she presumed that the checks she was receiving were for temporary total disability, not permanency.
26. On November 20, 2007 Claimant’s counsel entered his appearance on Claimant’s behalf and asked the Department both to reconsider its approval of the Form 27 and to rescind its approval of the Form 22. The Department’s Staff Attorney denied both requests and the claim subsequently was forwarded to the formal hearing docket.
CONCLUSIONS OF LAW:
1. Two interesting legal issues are raised by this claim. The first involves whether the June 2007 border incident constitutes an independent intervening event sufficient to break the causal link between Claimant’s original work-related injury and her subsequent disability and need for medical treatment. The second involves the extent, if any, to which Claimant is precluded from seeking additional benefits by virtue of the Form 22 permanency agreement that she signed. Because the second issue is somewhat dispositive, it will be considered first.
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2. It is generally accepted that once the parties to a workers’ compensation claim execute a Form 22 or other form agreement, and the Commissioner (or her designee) approves it, it becomes a binding and enforceable contract. Workers’ Compensation Rule 17.0000; Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999). Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions of the form, and the Department will consider it to represent a final determination of any dispute as to its contents. Rule 17.0000; id.
3. There is no evidence of fraud here, nor is there compelling evidence of any material mistake of fact. For such a mistake to exist, it must be mutual. Maglin v. Tschannerl, 174 Vt. 39 (2002). Here, only Claimant was mistaken. She thought the purpose of the form she was signing was to reinstate her temporary disability benefits, when in fact it was confirming the basis for their proper termination. Claimant’s failure to recognize the form’s import may be understandable, particularly because she was unrepresented at the time, but it still provides an insufficient basis for undoing a binding contract. Hawkins v. Visiting Nurse Association, Opinion No. 53-04WC (December 3, 2004).
4. The fact is, there was no way for either Defendant or the Department to have known whether Claimant had signed the Form 22 because she did not understand the ramifications of doing so, or whether she signed it because she had decided to take the permanency compensation offered rather than pursue a claim for additional temporary disability benefits. In hindsight, it may seem harsh to hold her to the agreement. To allow her to rescind it unilaterally, however, would result in an untenable loss of certainty as to what constitutes a binding, enforceable contract, not only to pay workers’ compensation benefits but also to accept them. Catani v. A.J. Eckert Co., Opinion No. 28-95WC (July 14, 1995).
5. Contrary to Claimant’s assertions, furthermore, Defendant was under no affirmative obligation to explain the form to her, or otherwise to caution her against signing it if she intended to pursue further her request that temporary disability benefits be reinstated. In the specific context of a workers’ compensation claim, the Vermont Supreme Court has ruled that an employer is under no duty to inform an employee of his or her rights under the Workers’ Compensation Act, instead upholding the “time-honored principle that all persons are presumed to know the law.” Longe v. Boise Cascade Corp., 171 Vt. 214, 226 (2000).
6. I conclude, therefore, that Claimant is bound by the terms of the Form 22 as to all of its material elements. These include the date upon which she reached end medical result for her work injury (whether aggravated by the June 2007 border incident or not) and the extent of her permanent impairment.
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7. As the Form 22 establishes that Claimant reached end medical result on September 16, 2007 she is precluded from seeking additional temporary disability benefits after that date. 21 V.S.A. §§642, 643a. Even with the Form 22, however, her entitlement to further medical benefits remains open, provided she shows that ongoing treatment is necessitated by the work injury rather than by some intervening event for which Defendant bears no responsibility. It is in this context that I next must consider the legal import of the June 2007 border incident.
8. Both Claimant’s treating physician, Dr. Lawlis, and Defendant’s medical expert, Dr. Johansson, agreed that the border incident caused either an aggravation or a new injury to Claimant’s previously injured shoulder. Both also acknowledged, however, that Claimant probably would not have suffered any injury at all during that incident had her shoulder not already been in a weakened state as a result of her primary compensable injury. The question, therefore, is whether the second injury is sufficiently linked to the first to be compensable as well.
9. Once an injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from it likewise is deemed to have arisen out of the employment. 1 Larson’s Workers’ Compensation Law, §10, p. 10-1. An exception to this general rule exists as to consequences that result from an independent intervening non-industrial cause attributable to the claimant’s own intentional conduct. Id., quoted in Bowen v. Jobsite Services, Opinion No. 23-00WC (July 31, 2000). Such an event may be sufficient to break the chain of causation back to the primary injury and thereby may relieve the employer of further workers’ compensation liability.
10. Not all intervening events are sufficient to fall within the exception and thus sever the link between the work injury and any ongoing disability or need for treatment. It is to be expected, for example, that even injured workers will continue to engage in activities of daily living, and therefore injuries sustained during such activities are considered to be a natural consequence of the primary injury. Church v. Springfield Hospital, Opinion No. 40-08WC (October 8, 2008) (climbing step at home); Signorini v. Northeast Cooperatives, Opinion No. 36-04WC (September 1, 2004) (getting up from chair); Verchereau v. Meals on Wheels, Opinion No. 20-88WC (1988) (lifting groceries).
11. Where the intervening event does not arise in any way from the employment relationship, the chain of causation is deemed broken by either intentional or negligent claimant misconduct. Larson, supra at §10.05, p. 10-11. Even here, however, exceptions exist. Thus, in defining what constitutes negligent conduct, Professor Larson distinguishes spontaneous acts that may well be “impulsive and momentarily thoughtless,” but which because of the circumstances are better characterized as instinctive rather than negligent. Id. at §10.06, p. 10-13; see, e.g., McMillan v. Bertek, Inc., Opinion No. 95-95WC (January 29, 1996) (reaching for branch while falling from tree); Kelly v. Federal Shipbuilding and Drydock Co., 64 A.2d 92 (N.J. Super. 1949) (reaching for falling child). The claimant’s conduct in such cases does not rise to the level of negligence necessary to break the causal link back to the original injury.
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12. The link is severed, however, if a claimant, knowing of certain weaknesses arising from the primary injury, “rashly undertakes activities likely to produce harmful results.” Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12 (Fla. 1960); Larson, supra at §10.06[3], p. 10-17.
13. This was the case here. Arguably Claimant’s initial response to the border patrol officers’ approaching her husband and moving to take him into custody might be characterized as the kind of impulsive, momentarily thoughtless act that, though misguided, would not rise to the level of negligence. As the altercation progressed, however, and particularly after Claimant’s husband already had been moved to a detention cell, Claimant reasonably should have known that by continuing the battle she was risking further injury to her already weakened shoulder. Her actions at that point were no longer just “momentarily thoughtless,” they were deliberately so.
14. I conclude, therefore, that Claimant broke the chain of causation back to her primary work-related injury by virtue of her actions during the June 2007 border patrol incident. Defendant is not responsible for any workers’ compensation benefits necessitated as a result of that event.
15. Claimant having failed to prevail on her claim, she 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 is hereby DENIED.
DATED at Montpelier, Vermont this 29th day of September 2009.
_________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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