Archive

Tag Archive for: compensable injury

Dennis LaFarr v. Trapp Family Lodge (November 15, 2010)

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

Dennis LaFarr v. Trapp Family Lodge (November 15, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dennis LaFarr Opinion No. 34-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Trapp Family Lodge
For: Valerie Rickert
Acting Commissioner
State File No. BB-52069
OPINION AND ORDER
Hearing held in Montpelier on July 14, 2010
Record closed on August 31, 2010
APPEARANCES:
Stephen Cusick, Esq., for Claimant
Jeffrey Spencer, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a compensable work-related injury on August 11, 2009?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit A: Social Security records
Joint Exhibit B: Medical records
Joint Exhibit C: Additional records from Dr. Sullivan
Defendant’s Exhibit 1: Dr. Adamo report and curriculum vitae
Defendant’s Exhibit 2: Transcribed telephone interview with Claimant, August 27, 2009
Defendant’s Exhibit 3: Letter to Julie Charonko and Stephen Cusick, November
9, 2009 (first page only)
Defendant’s Exhibit 4: Approved Form 22 (with supporting documents) relating to
Claim #U-16938
Defendant’s Exhibit 5: Dr. Backus report, February 3, 2005
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §§642 and/or 646
Medical benefits pursuant to 21 V.S.A. §640
2
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney’s fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant began working as a housekeeper for Defendant in 2004. In 2007 he was promoted to a position as the leader of a housecleaning crew.
Claimant’s Prior Medical History
4. Claimant has an extensive prior medical history. He has suffered from chronic neck pain since a motor vehicle accident in 1974. In 1986 he was diagnosed with bipolar disorder, which is currently under good control with medication. Claimant also has a history of recurrent symptoms related to a painful, chronic condition in his left foot. He had contemplated surgery to remedy the condition in 2007, but decided against it due to the amount of time he would have had to take off work in order to recover.
5. Claimant also has a prior history of back pain. In 2004 he injured his mid- and lower back while working for a previous employer. As a result of this injury he missed some weeks from work and ultimately was paid permanency benefits in accordance with a 6% whole person impairment.
6. Following his 2004 injury Claimant continued to experience occasional back pain, sometimes attributable to specific activities such as lifting, sometimes not. Claimant treated for these episodes with Dr. Crowley, his primary care provider. For the most part, Dr. Crowley prescribed pain medications, both narcotic and non-narcotic. At times Dr. Crowley questioned the veracity of Claimant’s pain complaints, as they seemed excessive given the minimal findings documented on diagnostic imaging studies. Dr. Crowley also expressed uncertainty about whether Claimant’s bipolar disorder rendered him an unreliable historian. In the end, however, Dr. Crowley determined that Claimant’s requests for pain medications, though regular, were spaced sufficiently far apart that misuse was unlikely.
7. In 2001 Claimant was approved for Social Security Disability benefits on account of his bipolar disorder. To remain entitled to these benefits, Claimant was limited in the amount of wages he could earn. Defendant was aware of this limitation and accommodated Claimant accordingly.
8. In 2007 Claimant exceeded the allowable limit and his Social Security benefits were terminated. Claimant subsequently reapplied, listing not only his bipolar disorder but also his chronic neck, back and foot pain as limiting his ability to work. His claim for
3
reinstatement was denied on the grounds that none of the conditions from which he suffered prevented him from working to the extent necessary to qualify for benefits.
Claimant’s August 11, 2009 Injury and Related Medical Treatment
9. On the afternoon of August 11, 2009 Claimant was leaning into an outdoor bathtub to clean it when he felt the acute onset of low back pain.1 His pain rapidly worsened, such that by the time he got home that evening he was barely able to walk. Claimant’s wife credibly confirmed that Claimant was slow to exit his vehicle when he arrived home and walked in a stooped posture.
10. Medical records verify that Claimant called Dr. Crowley’s office the next day, August 12, 2009, to report that he had hurt his back at work and could “hardly walk.” The office prescribed a muscle relaxant by telephone. On August 13, 2009 Claimant called back and reported that his symptoms had not abated and that he was unable to go to work. He was advised to increase his medications, and an office visit was scheduled for August 15, 2009.
11. Dr. Crowley was not available at the time of Claimant’s scheduled visit, so his associate, Dr. Sullivan, evaluated him instead. As a family practitioner, Dr. Sullivan is well versed in the evaluation and treatment of work-related low back injuries.
12. Dr. Sullivan reported that Claimant had hurt his back while cleaning an outdoor tub, an activity that involved “a lot of extending and scrubbing as well as his usual lifting of supplies and machines.” Dr. Sullivan observed that Claimant walked with an antalgic gait, exhibited significant spasm and experienced pain with both lateral rotation and straight leg raise. These are all objective physical findings indicative of a lower back injury.
13. Dr. Sullivan’s diagnosis was lumbo-sacral strain with significant spasm “caused by the lifting and extended position of cleaning at work.” In making this diagnosis, Dr. Sullivan specifically noted that Claimant’s current condition was “not necessarily related to his chronic back pain at all.” Dr. Sullivan did not review all of Claimant’s prior medical records, but found him to be a credible and consistent historian, particularly in distinguishing the acute nature of his current pain from his longstanding chronic back pain. Dr. Sullivan also testified that Claimant’s injury was consistent with his use of poor body mechanics when performing his work. I find this testimony credible in all respects.
14. As treatment for Claimant’s symptoms, Dr. Sullivan prescribed muscle relaxers, pain medications and rest. He determined that Claimant was disabled from working at least until the following week.
1 Defendant challenges the veracity of this account, citing to a prior recorded statement Claimant had given in which he asserted that he was bending and reaching from inside the tub, not outside, when his back pain arose. Notwithstanding this minor discrepancy, I find Claimant’s testimony to be credible and accept his version of the incident as both truthful and accurate.
4
15. Claimant next treated with his regular physician, Dr. Crowley, on August 21, 2009. Claimant reported continuing pain, for which Dr. Crowley recommended physical therapy. Claimant diligently applied himself to this treatment, and overall experienced significant improvement in his low back pain, albeit with various activity-related fluctuations.
16. In October 2009 Claimant underwent surgery to remedy the chronic, painful condition in his left foot. Claimant had considered this surgery in 2007, see Finding of Fact No. 4 supra, but had not felt able to afford the necessary time out of work.
17. Claimant was totally disabled from working on account of his low back injury from August 12, 2009 through November 20, 2009. On that date Dr. Sullivan released him to return to work three days a week. Shortly thereafter Claimant notified Robyn Hark, Defendant’s human resources specialist, that he was available for part-time work. Ms. Hark advised that she would need a written release from Claimant’s doctor, which Claimant agreed to provide. He did not do so, however. Instead, Claimant secured a job elsewhere, though for reasons unrelated to his injury his employment was terminated on his first day. As of the formal hearing, Claimant remained unemployed.
18. Claimant last treated with Dr. Sullivan in April 2010. He had undergone a course of aquatic physical therapy, which offered temporary relief of his symptoms, but he continued to experience low back pain, particularly with prolonged standing, walking or lifting. Diagnostic imaging results were essentially normal, indicating that these ongoing symptoms most likely are mechanical or muscular. As treatment, Dr. Sullivan adjusted Claimant’s pain medications. He also anticipated referring Claimant to a work hardening program, though there is no evidence that that has yet occurred.
Defendant’s Denial
19. Defendant has denied Claimant’s claim for workers’ compensation benefits from the outset. Initially, it asserted that Claimant’s condition was related to his pre-existing chronic low back pain rather than to a work injury. Later it asserted that Claimant’s credibility was suspect.
20. Dr. Adamo, an occupational medicine specialist, testified in support of Defendant’s position. Dr. Adamo reviewed Claimant’s medical records but did not examine him.
21. Dr. Adamo diagnosed Claimant with degenerative joint disease and chronic low back pain, neither caused nor aggravated by any work-related injury. Dr. Adamo initially cited two factors in support of this opinion: first, the absence of objective physical findings in Dr. Sullivan’s August 15, 2009 examination, and second, questions concerning Claimant’s credibility. As to the latter, Dr. Adamo expressed his understanding that Claimant had not reported the August 11, 2009 injury to Defendant until more than two weeks later.
5
22. In fact, however, Dr. Sullivan did note the presence of objective physical findings in his initial examination, see Finding of Fact No. 11 supra. And while Claimant did not file a claim for workers’ compensation benefits until some time after the injury, he did telephone his supervisor the next day to report that he had hurt himself at work.2
23. Defendant pointed to other evidence that in its view indicated that Claimant had ulterior motives for claiming a work-related injury and therefore was not credible. There was evidence that Claimant did not like his new supervisor because she was “mean” and worked him “too hard.” There was a notation in Dr. Crowley’s medical records that Claimant regretted ever having returned to work after being granted Social Security Disability benefits, that he was dissatisfied with his job even before his alleged work injury and that he later told Dr. Crowley that he did not intend to work again. There was the fact that during his period of temporary total disability Claimant underwent the foot surgery he previously had delayed because he could not afford the time off from work. As much as Defendant would like to make of this evidence, I find that it is insufficient to undermine Claimant’s account of the events of August 11, 2009 as he reported them to both his supervisor and to his medical providers and as he testified to them at hearing.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where, as here, there are conflicting medical opinions 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).
2 Rather than filing a claim for workers’ compensation benefits, initially Claimant sought, and was granted, vacation time. He hoped that his back pain would abate during his time off. When Ms. Hark learned that he had done so, she took the necessary steps to begin the workers’ compensation process.
6
3. Applying this test to the facts of this claim, I conclude that Dr. Sullivan’s opinion is the most persuasive. Dr. Sullivan established a treating relationship with Claimant. Although he did not review all of Claimant’s prior medical records, he determined from his own personal observation that Claimant was a credible and consistent historian. He examined Claimant only days after the injury, and noted objective physical findings that supported the mechanism of injury as Claimant had described it.
4. In contrast, Dr. Adamo’s opinion was based largely on assumptions he made as to Claimant’s credibility. Dr. Adamo never personally examined Claimant and his opinion lacked objective support.
5. I conclude that Claimant has sustained his burden of proving that he injured his lower back while engaged in the course and scope of his employment for Defendant on August 11, 2009.
6. I further conclude that Claimant has established his entitlement to temporary total disability benefits from August 12, 2009 through November 20, 2009. He is entitled as well to coverage for all reasonable and necessary medical treatment causally related to his compensable injury. Claimant has not established his entitlement to any other workers’ compensation benefits, though upon further proof he may yet do so.
7. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $453.82 and attorney fees totaling $11,443.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
8. As for attorney fees, these lie within the Commissioner’s discretion. I find an award of fees to be appropriate here. However, Claimant’s claim for fees fails to account for the fact that the amendment to Workers’ Compensation Rule 10.0000, which raised the hourly rate at which attorney fees can be assessed, applies only to fees incurred after its effective date, June 15, 2010. With that in mind, and in accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his revised claim. Defendant shall have 15 days thereafter within which to respond.
7
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from August 12, 2009 through November 20, 2009 pursuant to 21 V.S.A. §642, with interest calculated pursuant to 21 V.S.A. §664;
2. Medical costs associated with reasonable and necessary medical treatment of Claimant’s August 11, 2009 work injury, pursuant to 21 V.S.A. §640;
3. Such other workers’ compensation benefits causally related to his August 11, 2009 work injury as Claimant proves his entitlement; and
4. Costs of $453.82 and attorney fees to be determined in accordance with Conclusion of Law No. 8 above.
DATED at Montpelier, Vermont this 15th day of November 2010.
______________________
Valerie Rickert
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

K. C. v. Windham Northeast Supervisory Union (November 17, 2006)

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

K. C. v. Windham Northeast Supervisory Union (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
K. C. Opinion No. 45-06WC
By: Margaret A. Mangan
v. Hearing Officer
Windham Northeast Supervisory Union For: Patricia Moulton Powden
Commissioner
State File No. X-01602
Hearing held in Bellows Falls on March 21, 2006
Record closed on June 30, 2006
APPEARANCES:
J. Christopher Callahan, Esq. for the claimant
Keith J. Kasper, Esq. for the defendant
ISSUE:
Did the claimant suffer an injury at work on September 2, 2005?
OFFICIAL DEPARTMENT FORMS:
1. Form 1, Employee’s Claim and Employer First Report of Injury, for September 2, 2005 injury, reported September 6, 2005 and filed on September 8, 2005.
2. Form 2, Denial of Workers’ Compensation benefits by the carrier.
3. Form 6, Claimant filed written Notice and Application of Hearing in the form of a letter filed on September 28, 2005.
EXHIBITS:
Joint I: Medical Records
Defendant’s A: Letter of Resignation
Employment Records
School Schedule
OTHER EXHIBITS:
Claimant’s A: Witness Statements
2
THE CLAIM:
The Claimant seeks Temporary Total Disability Benefits, medical benefits related to her back injury, and attorneys’ fees.
FINDINGS OF FACT:
1. Claimant began working for Defendant as a para-educator on August 29, 2005.
2. As a para-educator, the Claimant worked with a special needs child and was required to assist her in walking short distances and lift the child in and out of a wheelchair.
3. The Claimant’s average weekly wage was $403.98.
4. The Claimant offered a letter of resignation to the school principal on August 31, 2005.
5. Claimant agreed to continue working for the Defendant until a replacement could be found.
6. There were no witnesses to the Claimant’s alleged work-related injury.
7. The school recorded no seizures in the school health records for September 2, 2005.
8. On Friday, September 2, 2005, the school schedule reflected that there were no extracurricular gym activities after lunch.
9. The Claimant worked until the end of the school day on September 2, 2005.
10. On the morning of Tuesday, September 6, 2005, the Claimant called the school to report that she would be taking a sick day. Because this was late notice, the Claimant worked for a brief time that morning until a replacement could be located.
11. After leaving the school, the Claimant was seen at Urgent Care in Bellows Falls where she was diagnosed with lower back strain.
12. The Claimant then returned to the school to fill out workers’ compensation paperwork.
13. The Claimant saw Dr. Peake, her primary care physician, September 9 and again on September 16, 2005. Dr. Peake wrote notes excusing the Claimant from work after each examination.
14. After conservative treatment was unsuccessful at relieving the Claimant’s pain, Dr. Peake referred the Claimant to Dr. Gugliemo at Upper Valley Neurology on September 20, 2005.
15. An MRI taken September 21, 2005 revealed that the Claimant had disk herniation at L4-5 with right L5 nerve root impingement.
3
16. On September 26, 2005, Dr. Guglielmo diagnosed the Claimant with significant right L5 radiculopothy secondary to a herniated right L4-5 disk. Ultimately, the Claimant and Dr. Guglielmo agreed that surgery would best resolve the Claimant’s condition.
17. Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing.
18. Soon after Dr. Guglielmo’s diagnosis, the Claimant learned that she was pregnant. Because the surgery could harm the Claimant’s unborn child, the Claimant’s doctors have recommended that she wait until she is postnatal before having the surgery.
19. The Claimant has not worked since September 6, 2005.
Allegations:
The Claimant alleges that: she injured her back at work on Friday, September 2, 2005 while lifting the special needs child from the floor into her wheelchair. She then wheeled the child into the lunchroom. Next, she exited the building and ate lunch alone in her car. After lunch, she reentered the building and wheeled the child from the lunchroom into the gym. Then, the Claimant wheeled the child into a classroom with other students and teachers until the end of the school day. She then drove herself home. The Claimant also testified that she experienced a very high level of pain as she performed all of the activities mentioned above. The Claimant did not report the alleged injury until the following Tuesday.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. Furthermore, in unwitnessed cases where the claimant does not report the injury for a period of time, “the trier of fact must weigh carefully the credibility of witnesses, the initial medical reports, and explore any inconsistencies and hidden or not-so-hidden motivations.” Fanger v. Village Inn, Opinion No. 5-95WC (1995).
4
4. Several factors discredit the Claimant’s description of events. First, there are no witnesses to the alleged accident. Second, the Claimant testifies here that she injured her back lifting the child into a wheelchair, but Dr. Guglielmo’s records indicate that the Claimant said she injured her back removing the child from her wheelchair because the child was seizing. Third, the school schedule shows that there were no gym activities after lunch that day. Fourth, the Claimant spent the latter part of the school day in the company of students and teachers, supposedly in excruciating pain, yet no one noticed any outward manifestation of her discomfort. Fifth, the Claimant waited until the following Tuesday, after a long Labor Day weekend, before notifying the school of the injury or seeking medical attention. Furthermore, the Claimant had given her resignation just a few days prior to this incident.
5. The Claimant’s medical evidence clearly shows that she suffers from a back injury. However, the high number of inconsistencies combined with the fact that the alleged injury was unwitnessed and not reported in a timely fashion cast a high level of doubt on whether that injury was connected to the Claimant’s employment. Consequently, the Claimant has shown no more than a possibility that the injury may have happened in connection with her employment.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the Claimant’s claim for Temporary Total Disability Benefits, medical benefits related to the Claimant’s back injury, and the Claimant’s attorneys’ fees are DENIED.
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.

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.
2
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.
3
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.
4
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.
5
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
2
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.
3
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.
4
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.
5
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.
6
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.
7
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.
8
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.
9
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).
10
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.
11
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.

Meril Badger v. BWP Distibutors, Inc. and Maynard’s Auto Supply, Inc. (March 25, 2011)

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

Meril Badger v. BWP Distibutors, Inc. and Maynard’s Auto Supply, Inc. (March 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Meril Badger Opinion No. 05-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
BWP Distributors, Inc.
and Maynard’s Auto Supply, Inc. For: Anne M. Noonan
Commissioner
State File Nos. AA-62692 and U-15282
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 18, 2010
Record closed on December 29, 2010
APPEARANCES:
Beth Robinson, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant BWP Distributors, Inc.
Jeff Spencer, Esq., for Defendant Maynard’s Auto Supply, Inc.
ISSUES PRESENTED:
1. Is Claimant’s current lumbar spine condition causally related to either his May 14, 2009 work-related injury or to his April 15, 2004 work-related injury?
2. If yes, to what workers’ compensation benefits is he entitled and which employer is responsible?
3. Is Claimant’s current cervical spine condition causally related to either his May 14, 2009 work-related injury or to his April 15, 2004 work-related injury?
4. If yes, to what workers’ compensation benefits is he entitled and which employer is responsible?
2
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Mark Bucksbaum, M.D.
Defendant Maynard’s Exhibit A: Curriculum vitae, Amin Sabra, M.D.
Defendant BWP Exhibit A: Dr. Levy reports
Defendant BWP Exhibit B: Dr. Bucksbaum report and deposition transcripts
Defendant BWP Exhibit C: Form 15 and accompanying letters
Defendant BWP Exhibit D: Form 22, June 24, 1999
Defendant BWP Exhibit E: Letter from Attorney Robinson, September 26, 2000
Defendant BWP Exhibit F: Vocational Rehabilitation Discontinuance Report
Defendant BWP Exhibit G: Peg Mangan file memo, January 8, 2001
Defendant BWP Exhibit H: Joint medical exhibit (CD-rom format)
Defendant BWP Exhibit I: Meril Badger deposition, Jan. 19, 2000 and Feb. 9, 2001
Defendant BWP Exhibit J: Brenda Badger deposition, February 9, 2001
Defendant BWP Exhibit K: Dr. Lefkoe deposition, Jan. 15, 2001 and May 9, 2001
Defendant BWP Exhibit L: Dr. Zimmerman deposition, February 8, 2001
Defendant BWP Exhibit M: Dr. Laub deposition, May 3, 2001
Defendant BWP Exhibit N: Various Social Security notices
Defendant BWP Exhibit O: Curriculum vitae, Richard Levy, M.D.
Defendant BWP Exhibit P: Work search records
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendants were his employers 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 files relating to this claim.
3. Claimant was 62 years old at the time of the formal hearing. He began working on his family farm at an early age. When he was 13, his father died, and he assumed greater responsibility for running the farm. He quit school at age 16 so that he could help his mother support his siblings. Aside from farming, Claimant’s work history includes carpentry, logging and construction.
3
4. Claimant has suffered three work-related injuries to his lumbar and/or cervical spine, each of which bears some relevance to his current claim. The first injury occurred in 1997, while Claimant was working for Engelberth Construction Co. The second injury occurred in 2004, while Claimant was working for Defendant Maynard’s Auto Supply, Inc. (“Maynard’s”). The third occurred in 2009, while Claimant was working for Defendant BWP Distributors, Inc. (“BWP”).
The 1997 Engelberth Construction Injury
5. On September 20, 1997 Claimant was working at a construction site at Middlebury College. His activities on that day included maneuvering heavy rafters from the ground up to workers on the building’s second story. To do so, Claimant would stand each rafter on end and push it up the side of the building as far as he could reach. Then he would rest the rafter momentarily on the front of his hardhat and reposition his hands so that he could push the beam high enough for the second story workers to reach. Claimant repeated this process many times until the task was completed.
6. Following this activity, Claimant complained of pain in his left wrist, numbness and tingling in his arms and hands, tremors in his right forearm, headaches and pain in the back of his neck. Much later, he reported having experienced low back pain as well associated with this injury, though the contemporaneous medical records make no mention of such symptoms.
7. Initially Claimant’s treatment focused on his bilateral hand symptoms. He was diagnosed with bilateral carpal tunnel syndrome, and later with a ligament injury as well in his left wrist. After two surgeries, his upper extremity symptoms still persisted, leading his treatment providers to suspect that they might be cervical in origin. This was consistent with what Claimant himself had felt from the beginning.
8. Claimant’s employer disputed the compensability of any cervical spine injury or symptoms as not causally related to his September 1997 work activities. A July 1998 cervical spine MRI revealed mild to moderate degenerative disc disease, which Claimant’s treating physician, Dr. Lefkoe, determined had been aggravated by lifting the heavy rafters overhead and balancing them on his forehead. Engelberth’s independent medical evaluator, Dr. White, disagreed that any such causal relationship existed, however. With Dr. White’s opinion as support, in 1999 Engelberth compensated Claimant for a 35% whole person permanent impairment referable to his bilateral wrist injuries, but refused to pay any permanency related to his other complaints.
4
9. For two years thereafter Claimant continued to pursue his claim for additional workers’ compensation benefits causally related to the September 1997 injury. He continued to experience and treat for pain in his neck and shoulders, headaches and diffuse facial numbness. As he was unable to resume carpentry or construction work, Claimant was determined eligible for vocational rehabilitation services, but aside from a brief stint at a local dairy farm his return to work efforts were unsuccessful.1 Ultimately Claimant asserted a claim for permanent total disability.
10. Claimant’s medical expert at the time, Dr. Bucksbaum, supported the alleged causal relationship between his September 1997 work activities and his ongoing symptoms. Dr. Bucksbaum is board certified in physical medicine and rehabilitation. He is also a biomechanical engineer.
11. According to Dr. Bucksbaum, the vertical forces produced when Claimant rested the heavy rafters on his hardhat while maneuvering them overhead likely caused a C5 disc herniation with cervical radiculopathy, resulting in the constellation of symptoms in his neck and upper extremities from which he continued to suffer at least as of Dr. Bucksbaum’s evaluation in July 2000. I find credible this explanation for Claimant’s condition.
12. Of note, Dr. Bucksbaum was unable to determine to the required degree of medical certainty whether Claimant’s complaints of low back pain were in any way related to his work activities. Nor was he willing to conclude that Claimant was permanently and totally disabled. Based solely on his physical capabilities, and without considering any possible psychological disability, Dr. Bucksbaum concluded that Claimant had a sedentary work capacity. This was consistent with an earlier functional capacities evaluation, which had documented Claimant’s significantly limited tolerance for sitting, standing and walking.
13. Dr. Bucksbaum determined that Claimant had reached an end medical result for the injuries he sustained as a result of his September 1997 work activities by July 2000.
14. Claimant’s claim for additional workers’ compensation benefits causally related to his September 1997 work injury did not proceed to formal hearing, but rather was settled on a Form 15 basis in June 2001. By the terms of the settlement, Claimant received $70,000 as full and final compensation for his “alleged bilateral wrist, neck, low back and leg injuries and any and all alleged physical or psychological or psychiatric sequellae which was or could have been asserted.”
1 The dairy farm job proved unsuitable for two reasons. First, the strenuous nature of the work exceeded Claimant’s functional limitations. Second, and of more immediate concern at the time, the chemical solutions used in the milking parlor caused him to develop contact dermatitis, which was resistant to all treatment efforts short of total avoidance.
5
The 2004 Maynard’s Injury
15. In December 2001 Claimant began working for Defendant Maynard’s as an auto parts delivery person. His duties included loading and unloading parts and making deliveries throughout the day. In the winter, he also shoveled around the trucks and cleaned them of ice and snow. Although the functional requirements of this job well exceeded the sedentary work capacity with which Claimant had been rated following his 1997 injury, he developed strategies to enable him to complete assigned tasks nonetheless. Claimant testified credibly that he experienced chronic neck and, to a lesser extent, low back pain both before and after he began working at Maynard’s, but as he described it, “To keep my job, I had to do what I had to do.”
16. Aside from one instance of acute neck pain in November 2002, Claimant did not seek medical treatment for either cervical or low back pain from mid-December 2000 until April 16, 2004.
17. On April 15, 2004 Claimant was exiting Maynard’s with an armful of parts when he stepped in a hole between the cement walkway and the curb, stumbled and fell. Claimant bruised his knee, sprained his right wrist and fractured his left rib. The latter injury is evidence of the force with which he struck the pavement when he fell.
18. Claimant missed only two weeks of work as a consequence of this injury, but upon his return he began to experience low back pain with radiating symptoms down his legs. Claimant credibly described these symptoms as being far worse than the chronic pain he had been experiencing previously.
19. In the months and years that followed, the medical records document a course of treatment focused primarily on Claimant’s low back pain. MRI studies documented degenerative changes throughout his lumbar spine. Due to his morbid obesity, Claimant was determined not to be a good surgical candidate. Instead, for the most part treatment efforts consisted of various trials of narcotic pain medications, including Percocet, morphine, oxycodone and fentanyl skin patches. Despite his persistent low back pain and radicular symptoms, Claimant continued to work, often for more than 40 hours per week. Claimant testified credibly that it was not easy for him to do so, and that it got more difficult over time, but that he still managed to push through.
20. At Maynard’s request, Claimant underwent an independent medical examination with Dr. Johansson, an osteopath, in December 2004. Dr. Johansson previously had evaluated Claimant in conjunction with his 1997 injury, and had overseen his participation in a multidisciplinary pain management program in 2000.
21. This time Dr. Johansson diagnosed lumbar degenerative disc disease with spinal stenosis (narrowing) at the L4-5 level. He determined that Claimant had reached an end medical result “for this work-related injury,” and rated him with a 6% whole person permanent impairment. Dr. Johansson also determined that Claimant’s narcotic pain medication regimen was medically necessary, appropriate and causally related to the April 2004 work injury.
6
22. Maynard’s accepted the compensability of Claimant’s injuries, including his low back pain and radicular symptoms, as causally related to the April 2004 fall at work. Indeed, it specifically referenced “degenerative disc disease” as the accepted injury in the Agreement for Permanent Partial Disability Compensation (Form 22), which the Department approved in June 2005. Maynard’s subsequently paid permanency benefits for that injury in accordance with Dr. Johansson’s 6% impairment rating.
23. From 2004 until December 2009, Maynard’s also paid for Claimant’s pain medications. On two occasions, first in July 2006 and again in January 2009, Maynard’s requested Dr. Johansson’s opinion as to whether the medications continued to be reasonable, necessary and causally related to the April 2004 injury. After reevaluating Claimant on both occasions, Dr. Johansson asserted that they were. Notably, on both evaluations Dr. Johansson observed that Claimant’s low back pain was worsening. Nevertheless, he continued to work as much as 60 hours per week.
24. The medical records do not document any treatment for neck pain or other cervical spine-related symptoms causally related to Claimant’s April 2004 fall at work. I find that while Maynard’s accepted the compensability of Claimant’s lumbar spine condition as causally related to that incident, it did not accept the compensability of his cervical condition.
25. In April 2009 Claimant returned to Dr. Johansson, complaining of spasms in his lower back and burning pain into his legs. Concerned that his symptoms were indicative of a new or worsening condition, Dr. Johansson ordered an updated lumbar spine MRI. In addition, he recommended that Claimant limit his work hours to 40 per week.
The May 2009 BWP Injury
26. On May 14, 2009 Claimant was delivering a 55-gallon drum of oil to a farmer. As he bent down to stand the barrel on end, he felt something “let go” in both his lower back and his neck. Later that day Claimant presented to the hospital emergency room, complaining of neck pain radiating into both shoulders and low back pain radiating down both legs.
27. Defendant BWP, doing business as CarQuest, was Claimant’s employer at the time of this incident, having purchased the business from Maynard’s some time previously. It accepted the compensability of Claimant’s low back and neck injury and began paying workers’ compensation benefits accordingly.
28. Claimant has treated conservatively for the May 2009 injury. Unfortunately, treatment efforts have been largely unsuccessful at controlling pain and restoring function. The pain has affected his recreational activities, his sex life and perhaps most significantly, his ability to work. Whereas prior to the May 2009 injury Claimant was able to work at least full time, albeit in pain, since the injury he has been unable to resume his previous job duties. In addition, although Claimant had been taking pain medications since his 2004 injury, after May 2009 he required even stronger drugs, in increasing dosages. Even those have been largely ineffective.
7
29. Claimant testified that he is in “three times more pain now” than he was before May 2009. The neck pain makes it difficult for him to hold his head up. The low back pain is, in his words, “intense.” I find this testimony credible in all respects.
30. MRI studies done since the May 2009 incident have failed to reveal a specific cause for Claimant’s worsened symptoms. In accordance with Dr. Johansson’s prior referral, see Finding of Fact No. 25 supra, Claimant underwent a lumbar spine MRI on May 18, 2009; upon reviewing the results Dr. Johansson declared that it reflected no significant change from previous studies. Claimant underwent additional diagnostic studies in June 2009 (cervical spine MRI), April 2010 (cervical and lumbar spine x-rays), May 2010 (cervical spine MRI) and September and October 2010 (lumbar spine MRIs). Although some of these studies are of questionable quality, none reveal evidence of any acute disc herniation attributable to the May 2009 injury. All document degenerative disc disease at the same levels as had been revealed by previous studies.
31. In July 2009 Dr. Johansson reevaluated Claimant. His handwritten office note is difficult to decipher. It appears he was aware of the fact that Claimant had suffered a new injury in May 2009. Dr. Johansson suggested various changes to Claimant’s pain medications, but had no other treatment recommendations. He declared Claimant to be at end medical result, with a sedentary-to-light work capacity. Based on Claimant’s description of his job duties, I find that his work at BWP exceeded this restricted capacity.
32. With Dr. Johansson’s end medical result determination as support, BWP terminated Claimant’s temporary disability benefits effective July 25, 2009. For its part, Maynard’s continued to pay for the medical costs associated with Claimant’s April 2004 injury until December 2009, when it too sought to discontinue benefits, on the grounds that treatment now was causally related to the May 2009 incident, for which BWP was responsible.
33. Despite these determinations, Claimant continued to treat for both low back and cervical pain. He began a course of physical therapy in July 2009, but had to discontinue it when BWP refused to authorize or pay for further sessions. He underwent a series of medial branch blocks and cervical epidural steroid injections in January, February and March 2010, but these were ineffective. Last, he presented for numerous evaluations with Dr. Horgan, a neurosurgeon, between April and October 2010. For a variety of reasons, including his morbid obesity, the nature of his pain complaints and what the doctor referred to as “his ongoing issues of workers’ compensation,” Dr. Horgan concluded that surgery was not in Claimant’s best interests at this time.
34. With these treatments and evaluations in mind, I find that Dr. Johansson’s July 2009 end medical result determination was premature.
35. Claimant continued to use narcotic medications for pain relief until October 2010, when a routine drug screen revealed evidence of possible misuse. This was a second violation of Claimant’s narcotics contract, which prompted his primary care physician to discontinue his prescriptions. Claimant denied having misused or redirected his medications, and I find the explanations he provided for both violations to be credible.
8
36. Most recently, in November 2010 Claimant underwent a consultation with a nutritionist. The purpose of the visit was to discuss how Claimant might lose sufficient weight to make either lumbar and/or cervical surgery a more viable treatment option. At the hearing, however, Claimant testified that he was not interested in changing his dietary or exercise habits, and therefore it appears that neither weight loss nor surgery are likely to occur. No other treatment options have been proposed.
37. Claimant described himself as a proud man who has lost confidence due to his inability to work. He has been receiving unemployment compensation since the summer of 2009, and has been searching for suitable work within his capabilities. Since July 2010 Claimant also has been receiving social security retirement benefits.
Expert Medical Opinions
38. Three expert medical witnesses provided testimony as to the causal relationship, if any, between Claimant’s current neck and low back conditions and his various work-related incidents. Dr. Bucksbaum testified on Claimant’s behalf, Dr. Levy on BWP’s behalf and Dr. Sabra on Maynard’s behalf.
(a) Dr. Bucksbaum
39. As noted above, see Findings of Fact No. 11 supra, Dr. Bucksbaum first evaluated Claimant in 2000, in conjunction with his 1997 injury. At the request of Claimant’s attorney, he reevaluated Claimant in January 2010 and reached the following conclusions, all to the required reasonable degree of medical certainty:
• The May 2009 lifting incident at BWP caused exacerbations of the underlying degenerative disease in Claimant’s lumbar and cervical spine, resulting in increased pain and greater difficulty performing daily living activities.
• Claimant had reached an end medical result for the May 2009 injury to his lumbar spine as of the date of Dr. Bucksbaum’s evaluation (January 12, 2010). Notwithstanding this determination, he should continue to be followed for management of his narcotic pain medications.
• The permanent impairment referable to Claimant’s lumbar spine is now 15% whole person. Of this, 6% previously was rated and paid in accordance with Dr. Johansson’s December 2004 rating, see Finding of Fact No. 21 supra, leaving an additional 9% whole person impairment attributable to the May 2009 injury.
• Claimant had not yet reached an end medical result for his cervical spine injury as of the date of Dr. Bucksbaum’s examination, because further diagnostic and treatment evaluations were still pending at the time. See Finding of Fact No. 33, supra.
• All treatment provided since the May 2009 injury has been reasonable, necessary and causally related to that incident.
9
40. In his formal hearing testimony, Dr. Bucksbaum further expanded on the basis for his conclusions. In his opinion, test results can be misleading and must always be interpreted in the context of what the patient is exhibiting. Here, the fact that Claimant’s pain, and corresponding treatment, “sharply escalated” after the April 2004 fall at Maynard’s, then escalated even more after the May 2009 lifting incident at BWP, provides compelling evidence of exacerbation. This is true even notwithstanding that Claimant’s MRI studies documented only pre-existing degenerative spine disease but no acute changes following either of these intervening events. I find this explanation for Dr. Bucksbaum’s opinions to be credible.
(b) Dr. Levy
41. Dr. Levy evaluated Claimant at BWP’s request in April 2010. Dr. Levy is a board-certified neurologist. Both degenerative spine disorders and traumatic spine injuries are very common in his practice.
42. Dr. Levy concluded, to a reasonable degree of medical certainty, that at best Claimant suffered only a transient flare-up of his chronic low back and cervical pain as a result of the May 2009 incident. He based this conclusion primarily on a comparative analysis of Claimant’s various MRI studies, which failed to reveal a traumatic cause for his degenerative disc disease to have progressed.
43. Dr. Levy estimated that any symptoms causally related to the May 2009 incident likely resolved within six to eight weeks, at which point Claimant would have returned to his pre-injury baseline. Any treatment thereafter would be causally related to his pre-existing condition. According to Dr. Levy, Claimant did not suffer any permanent impairment referable to the May 2009 incident.
44. Notwithstanding Dr. Levy’s estimate, I find that in fact Claimant’s symptoms did not return to their baseline level within six to eight weeks following the May 2009 incident, but rather continued to worsen. Similarly, Claimant did not return either to his baseline level of function, which had included full-time work at BWP, or to his baseline level of narcotic pain medications.
(c) Dr. Sabra
45. Dr. Sabra evaluated Claimant at Maynard’s request in September 2010. Dr. Sabra is board certified in psychiatry and neurology. His current practice focuses primarily on patients with neurological diseases.
46. Dr. Sabra’s causation analysis was similar to Dr. Levy’s. Finding no evidence on Claimant’s MRI studies of any acute disc herniation in either the lumbar or the cervical spine after the May 2009 incident, Dr. Sabra characterized Claimant’s symptoms immediately thereafter as a flare-up of his chronic underlying degenerative disc disease. As to the cause of the underlying disease, Dr. Sabra discounted the effect of Claimant’s April 2004 injury almost entirely, and instead attributed it back to his September 1997 work activities.
10
47. I find that neither the medical record nor Claimant’s credible testimony support Dr. Sabra’s characterization of the April 2004 and May 2009 injuries as only temporary flare-ups of his underlying degenerative disease. To the contrary, I find that Claimant’s condition never returned to baseline but instead worsened significantly after each incident. This is evidenced by his increased reliance on narcotic pain medications and, particularly after May 2009, his decreased ability to function.
48. Dr. Sabra acknowledged that MRI studies do not detect soft tissue injuries. He admitted, furthermore, that while such injuries usually get better with time, that is not always the case.
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. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974).
3. Here, Defendant BWP accepted as compensable injuries to Claimant’s low back and neck as a consequence of the May 2009 incident. It bears the burden of proving that Claimant’s current disability and/or need for medical treatment are no longer causally related to those injuries. BWP asserts that the injuries it accepted amounted at most to a temporary flare-up of preexisting conditions attributable to Claimant’s work activities in 1997 and/or 2004.
4. For its part, Defendant Maynard’s accepted as compensable an injury to Claimant’s low back as a consequence of the April 2004 incident. Thereafter, it paid permanency benefits attributable to Claimant’s “degenerative disc disease” in accordance with Dr. Johansson’s 6% whole person impairment rating. It now must justify its decision to terminate Claimant’s medical benefits effective December 2009. Maynard’s asserts that any ongoing treatment is causally related either to the May 2009 incident and/or to Claimant’s September 1997 work activities.
11
5. Thus, both defendants seek to avoid responsibility for further workers’ compensation benefits, either by pointing the finger at the other or by attributing Claimant’s current symptoms back to his 1997 injury. To determine which, if either of them, is liable I must consider whether Claimant’s current condition represents a recurrence, an aggravation or a flare-up.2
6. In workers’ compensation cases involving successive injuries during different employments, the first employer remains liable for the full extent of benefits if the second injury is solely a “recurrence” of the first injury – that is, if the second accident does not causally contribute to the claimant’s disability. Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997). If, however, the second incident aggravates, accelerates or combines with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, then in that case the second incident is an “aggravation,” and the second employer becomes solely responsible for the entire disability at that point. Id. at 627-628.
7. Beyond either a recurrence or an aggravation, there is a third category as well – the “flare-up.” In a flare-up, a distinct new injury worsens a preexisting condition, but only temporarily, following which the condition returns to its baseline. Cehic v. Mack Molding, Inc., 2006 VT 12, ¶10. The finding of a distinct new injury precludes a conclusion that it is a recurrence. Id. The finding of a return to baseline precludes a conclusion of aggravation “because the injury, once resolved, did not ‘causally contribute’ to any increased disability.” Id, quoting Pacher, supra.
8. Both of the defendants here submitted expert medical evidence characterizing Claimant’s May 2009 injury as a flare-up. From the medical records and formal hearing testimony, however, I am not persuaded that Claimant has ever – even now – returned to his pre-May 2009 baseline. Yet this is an essential component for categorizing any injury as a flare-up.
9. I note, furthermore, that Dr. Bucksbaum rated Claimant with an additional permanent impairment causally related to the May 2009 injury. I am persuaded by this that the May 2009 injury in fact did “causally contribute” to Claimant’s increased disability. The facts do not support a conclusion that the May 2009 incident caused a flare-up, therefore. If anything, an aggravation resulted.
10. Claimant relies on Dr. Bucksbaum’s expert medical opinion in support of his claim that the May 2009 incident properly should be categorized as an aggravation. Notwithstanding the fact that Claimant’s MRI studies failed to reveal a traumatic cause for his underlying degenerative disc disease to have progressed, Dr. Bucksbaum concluded that the preexisting condition was exacerbated as a result of the injuries Claimant suffered in that incident. In reaching this conclusion, Dr. Bucksbaum emphasized the fact that Claimant’s pain, need for treatment and functional limitations all “sharply escalated” after the May 2009 injury.
2 Having settled his 1997 claim on a Form 15 (full and final) basis, if Claimant’s current condition is determined to be causally related to his September 1997 work activities he will be precluded from receiving additional benefits.
12
11. Where a claimant’s preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, “due to a work injury or the work environment ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard v. Stannard Co., Inc., 175 Vt. 549, 552 (2003), citing Jackson v. True Temper, 151 Vt. 592, 596 (1989). While exacerbated symptoms alone may not be enough to establish causation, nevertheless “the acceleration rule must be looked at in relation to the overall condition of the body, particularly as it relates to [a claimant’s] ability to work and function.” Id., citing with approval City of Burlington v. Davis, 160 Vt. 183, 186 (1993) (Dooley, J., dissenting).
12. Dr. Bucksbaum’s analysis is persuasive, particularly in the context of the current claim. That the May 2009 incident caused Claimant’s degenerative disc disease to accelerate is established not by MRI studies, but by its clear impact on his pain and ability to function. This is not a case where, as in Stannard, the underlying disease already had advanced to the point that medically, it could not be accelerated any further. This is a case where the underlying disease, though admittedly troublesome, had not progressed so far as to preclude Claimant from working altogether until the May 2009 injury disabled him.
13. I conclude that the May 2009 injury constituted an aggravation of the preexisting conditions in Claimant’s lumbar and cervical spine, such that Defendant BWP is now liable for the entire resulting disability.
14. It remains to determine the benefits to which Claimant is entitled. As a preliminary matter, Defendant BWP argues that because Claimant accepted a settlement of his claim for permanent total disability benefits following his 1997 injury he should be estopped from asserting any further disability now. Essentially, BWP argues that there can be no greater disability than permanent total disability, and therefore Claimant cannot possibly be entitled to additional indemnity benefits.
15. The fact is, however, that Claimant was never adjudicated to be permanently and totally disabled. The settlement covered a variety of disputed issues, and nowhere is it indicated that the employer specifically acquiesced to a finding of permanent total disability. Under these circumstances, there is no basis for concluding that Claimant is now estopped from seeking additional indemnity benefits.
16. As to the lumbar spine, I accept as persuasive Dr. Bucksbaum’s determination that Claimant reached an end medical result on January 12, 2010. I also accept as credible Dr. Bucksbaum’s determination that the permanent impairment referable to Claimant’s lumbar spine now totals 15% whole person. Claimant having already been paid compensation for the 6% impairment attributable to the April 2004 injury, I conclude that Defendant BWP is obligated to pay compensation for the remaining 9% impairment attributable to the May 2009 injury. See 21 V.S.A. §648(d).
13
17. As to the cervical spine, I conclude that Claimant reached an end medical result on October 22, 2010. By that date, Claimant had undergone all of the additional diagnostic tests and evaluations that Dr. Bucksbaum had anticipated earlier, and Dr. Horgan had finally determined that he was not an appropriate candidate for either lumbar or cervical spine surgery.
18. I conclude that Defendant BWP is obligated to pay temporary total disability benefits from July 25, 2009 through October 22, 2010. Whether Claimant will be required to repay unemployment compensation benefits covering the same period is not an issue within my jurisdiction.
19. Last, I conclude that Defendant BWP is obligated to pay for all reasonable and necessary medical benefits causally related to the May 2009 aggravation of Claimant’s preexisting lumbar and cervical spine conditions.
20. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,397.20 and attorney fees totaling $23,087.25, in accordance with Workers’ Compensation Rule 10. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded against Defendant BWP. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded against Defendant BWP as well.
14
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant BWP is hereby ORDERED to pay:
1. Temporary total disability benefits from July 25, 2009 through October 22, 2010;
2. Permanent partial disability benefits as compensation for a 9% whole person impairment referable to the lumbar spine;
3. Interest on the above amounts in accordance with 21 V.S.A. §664;
4. Medical benefits in accordance with Conclusion of Law No. 18 above;
5. Costs totaling $3,397.20 and attorney fees totaling $23,087.25.
DATED at Montpelier, Vermont this 25th day of March 2011.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Steven Matheny v. Best Foods Baking Company (July 19, 2011)

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

Steven Matheny v. Best Foods Baking Company (July 19, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Steven Matheny Opinion No. 18-11WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Best Food Baking Company For: Anne M. Noonan
Commissioner
State File No. R-02092
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 27, 2011
Record closed on June 10, 2011
APPEARANCES:
Kevin Brown Esq., for Claimant
Robert Mabey, Esq., for Defendant
ISSUE:
Is Claimant’s right shoulder injury causally related to his March 1, 2000 work injury?
EXHIBITS
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Davignon report, March 8, 2008
Defendant’s Exhibit A: Physical therapy evaluation, December 31, 2001
Defendant’s Exhibit B: Dr. Davignon permanency evaluation, August 20, 2002
Defendant’s Exhibit C: Functional Capacity Evaluation, February 5, 2003
Defendant’s Exhibit D: Functional Capacity Evaluation, January 30, 2004
Defendant’s Exhibit E: Dr. Knorpp curriculum vitae
Defendant’s Exhibit F: Dr. Knorpp report, April 3, 2007
Defendant’s Exhibit G: Dr. Ziegelman records, March 2003-December 2004
Defendant’s Exhibit H: Physical therapy and Dr. Abate office notes, April-July 2005
Defendant’s Exhibit I: Physical therapy evaluation, February 22, 2006
Defendant’s Exhibit J: Dr. Ziegelman deposition, April 13, 2011
2
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 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. Judicial notice also is taken of the Commissioner’s prior decision in this claim, Methany v. Velan Valve and Bouyea-Fassetts, Opinion No. 41-99WC (September 21, 1999).
Claimant’s Previous Compensable Injuries
3. In early 1994 Claimant injured his lower back while employed for Velan Valve. He was diagnosed with an acute lumbar muscle strain with radiculitis. The injury was deemed compensable and Velan Valve paid workers’ compensation benefits accordingly.
4. In April 1997 Claimant reinjured his back while working for Defendant’s predecessor, Bouyea-Fassetts. Following a formal hearing, the Commissioner determined that the injury was an aggravation, and ordered Defendant to pay workers’ compensation benefits.
5. On March 1, 2000, while still employed by Defendant, Claimant again reinjured his lower back when he slipped in some sugar water. Defendant accepted the injury as compensable.
Claimant’s December 2000 Injury
6. As a result of his March 2000 injury Claimant suffered from radicular symptoms in his left leg, including weakness. On December 8, 2000 Claimant’s left leg gave out while he was carrying two oscillating fans to a storage shed at his home. Claimant then fell forward, still holding the fans. He hit his nose on a table and snapped his head back. His left arm caught on a lawn mower and his right arm struck shelves.
7. Immediately after falling, Claimant went to the Fletcher Allen Health Care emergency room for treatment. The emergency room physician’s notes reflect that Claimant reported moderate neck stiffness and muscle pain “in his shoulders.”
3
8. On December 11, 2000 Claimant went to see his primary care physician, Dr. Ziegelman, for the symptoms resulting from his fall three days earlier. Dr. Ziegelman’s office note reflects that Claimant complained of left shoulder pain, but does not mention any complaints at all as to the right shoulder.
9. In August 2001, Dr. Ziegelman referred Claimant to Dr. Abate, an orthopedic surgeon, for treatment of his increasingly painful left shoulder. At his first visit, Dr. Abate examined both of Claimant’s shoulders. Claimant credibly testified that he told Dr. Abate from the very beginning that he had injured both his left and his right shoulder in the December 2000 fall, and that both had been causing him pain ever since.
10. Dr. Abate diagnosed Claimant with both labral and rotator cuff tears in his left shoulder, as well as subacromial impingement and arthritis in the joint. Claimant underwent surgical repair on December 6, 2001. While his left shoulder healed from this surgery Claimant had to rely solely upon his right arm to perform all activities of daily living.
11. In the course of the December 2001 left shoulder surgery Dr. Abate also performed a distal clavicle excision. The purpose of this procedure was to address the pre-existing arthritis in the joint, thus reducing the risk of continued pain and enhancing the possibility of a successful surgical outcome.
12. Defendant accepted the December 2000 fall as causally related to Claimant’s compensable March 2000 work injury and paid workers’ compensation benefits accordingly. These included permanency benefits for a 12% whole person impairment referable to Claimant’s left shoulder injury.
13. In February 2003 Defendant’s bakery closed and Claimant was laid off. Soon thereafter, he was offered a job in Defendant’s shipping department. Prior to taking this job, Claimant underwent a functional capacity evaluation. The evaluation assessed Claimant with a medium duty work capacity and concluded that he could safely perform the lifting required of this assignment.
14. The functional capacity evaluation did not indicate that Claimant complained of any right shoulder pain during testing. Claimant credibly testified that he did experience right shoulder pain at the time, but did not mention it because he needed the job to support his family financially. As he warmed up, furthermore, the exercises became easier to perform.
15. Claimant took the shipping department assignment. He worked long hours and the process of loading dollies of baked goods required much overhead lifting. Claimant credibly testified that as a result of these activities he experienced pain in both shoulders and in his back and leg as well. The pain became too much for him to manage, and so he left the job after only one month.
16. After leaving the shipping department job, Claimant started his own property management company. During the summer months he performed spring cleanups, weed whacking and lawn mowing, and in the winter he did snowplowing.
4
17. For the first week at this new business Claimant worked alone. Most of the activities were painful, however, and he could only sustain about four hours of work daily. Riding on the mower hurt his lower back, and pulling on the starter cord for the weed whacker hurt his right shoulder. Claimant hired some employees to assist him with the day-to-day maintenance work. He continued to do some physical work alongside them, but would stop when he had “had enough.”
18. Aside from the initial emergency room record, the medical records do not indicate that Claimant either complained of or sought treatment for right shoulder pain between December 2000 and January 2005.
19. In January 2005 Claimant returned to Dr. Abate, seeking treatment for his right shoulder pain. Diagnostic imaging revealed extensive labral tearing, acromioclavicular joint arthritis, impingement and a possible rotator cuff tear. To repair the damage, Claimant underwent two surgeries, the first in March 2005 and the second in December 2005.
20. As he had with the left shoulder, at the time he surgically repaired Claimant’s right shoulder in March 2005 Dr. Abate also performed a distal clavicle excision. He did so for the same reasons, that is, to reduce the risk of recurrent symptoms and to increase the likelihood of success.
21. Claimant was prescribed a course of physical therapy following the March 2005 surgery, but because he felt financial pressure to return to work as quickly as possible he did not complete it. Subsequently, he developed complications, including tightness in the joint, pain and restricted range of motion. Dr. Abate credibly testified that such complications sometimes develop regardless of whether a patient has been fully compliant with post-surgical protocols, and that they did so in Claimant’s case.
22. To address Claimant’s ongoing right shoulder symptoms, Dr. Abate performed a second surgery in December 2005, during which he removed scar tissue and cut the shoulder capsule so as to enhance Claimant’s range of motion.
23. Claimant continued to pay himself a salary following his right shoulder surgeries and therefore did not lose any wages during the period of his temporary total disability. He left Vermont in 2006 and moved to Utah. At some point during that year he applied for and was granted social security disability benefits.
Expert Medical Opinions
(a) Dr. Ziegelman
21. Dr. Ziegelman was Claimant’s primary care physician from 1997 to 2006. Dr. Ziegelman is board certified in internal medicine and refers to himself as a “generalist.”
5
22. Dr. Ziegelman testified credibly in his deposition that Claimant presented medical issues of a complex nature. He had suffered several back injuries that Dr. Ziegelman followed for pain management purposes. Chronic low back pain was Claimant’s main complaint between April 2000 and July 2006.
23. In anticipation of Claimant first right shoulder surgery, Dr. Ziegelman performed a pre-operative physical in March 2005. His note of that visit describes Claimant’s history as “right shoulder pain since a fall worse in last couple of years.” Dr. Ziegelman recalled that there could have been “some mild presence” of right shoulder pain at prior office visits, though he acknowledged that his medical records did not mention any complaints.
24. As to the causal relationship between Claimant’s December 2000 fall and his right shoulder injury, Dr. Ziegelman deferred to Dr. Abate as the specialist on that issue.
(b) Dr. Abate
25. At the time he was Claimant’s treating physician Dr. Abate was a board certified orthopedic surgeon, specializing in sports medicine.1 It was not unusual for him to see 35 to 40 patients in one day.
26. Dr. Abate admitted that his medical records do not reflect any complaints of right shoulder pain during the time he was treating Claimant’s left shoulder injury in 2001. Nevertheless Dr. Abate testified that Claimant had complained of right shoulder pain for as long as Claimant was his patient. I find this testimony to be credible.
27. Dr. Abate credibly testified to the following:
• He reviewed the emergency room record taken on the day of Claimant’s December 2000 fall, which noted complaints of pain in both shoulders;
• His treatment plan was to address Claimant’s left shoulder injury first, because it was more symptomatic at the time;
• It would have been ill-advised to perform surgery on both shoulders at the same time, because Claimant would need use of one upper extremity to perform activities of daily living while the other upper extremity healed;
• His intent was to address Claimant’s right shoulder injury after he had recuperated from his left shoulder surgery, if it was still problematic.
1 At some point after Claimant’s treatment was concluded, and for reasons wholly unrelated to this claim, Dr. Abate’s license to practice medicine in the State of Vermont was revoked.
6
28. While surgically repairing Claimant’s right shoulder in March 2005, Dr. Abate noted a small cyst along the inferior labrum. This finding was significant. A cyst is a collection of fluid that develops when the limb is pulled away from the bone. A cyst follows a tear, therefore. Because it takes some time for the fluid to collect and the cyst to develop, furthermore, a cyst also helps date a tear as being remote rather than recent.
29. In Dr. Abate’s opinion, the presence of the cyst in Claimant’s right shoulder confirmed, to a reasonable degree of medical certainty, both that it had been traumatically caused and that the trauma likely occurred at the time of his December 2000 fall. Because Claimant’s left shoulder tear had been surgically corrected shortly after it occurred, there was no time for a cyst to have developed. Because the right shoulder tear was not repaired for some time, however, the cyst was able to form. I find this reasoning to be credible.
30. According to Dr. Abate, Claimant’s right shoulder injury, though traumatic in origin, was further aggravated by overuse during the months following his recuperation from left shoulder surgery. I find this reasoning to be credible.
(c) Dr. Davignon
31. Dr. Davignon first examined Claimant in 2002, in the context of performing a permanency rating for his left shoulder injury. Dr. Davignon is board certified in occupational medicine, and also has training in orthopedics.
32. Dr. Davignon re-examined Claimant in March 2008. He also reviewed Claimant’s medical records and took his medical history. Having done so, Dr. Davignon noted the following:
• The mechanism of Claimant’s right shoulder injury, i.e. falling with his upper extremities outstretched, was consistent with the pathology present there;
• There likely also was a component of overuse to Claimant’s right shoulder injury, as Claimant probably would have compensated for his inability to use his left shoulder by relying more on his right upper extremity instead;
• It was possible that various other activities in which Claimant engaged, such as shoveling snow, pulling an engine starter cord, cleaning gutters, hanging clothes, vacuuming, painting or loading overhead trays, also might have contributed to his right shoulder injury, as these also would have involved compensatory overuse of his right upper extremity as a result of his left shoulder injury.
7
33. Dr. Davignon concurred with Dr. Abate’s analysis of the cyst in Claimant’s right shoulder as indicative of a traumatically caused tear. He also concurred with Dr. Abate’s conclusion that Claimant’s right shoulder injury was initially caused by the December 2000 fall and then aggravated by compensatory overuse during his recovery from left shoulder surgery. Last, Dr. Davignon concurred with Dr. Abate’s decision to perform a distal clavicle excision at the time he surgically repaired Claimant’s right shoulder. In Dr. Davignon’s opinion, this procedure was both medically necessary and causally related to the December 2000 fall.
34. Dr. Davignon determined that Claimant had reached an end medical result for his right shoulder injury as of the date of his examination, March 12, 2008. He rated Claimant with an 11% whole person permanent impairment referable to that injury. This rating included consideration of the distal clavical excision. Were that element of Claimant’s injury to be omitted, Claimant’s whole person permanent impairment would be reduced to 5%.
(d) Dr. Knorpp
35. On Defendant’s behalf, Dr. Knorpp conducted an independent medical evaluation of Claimant in April 2007. Dr. Knorpp is board certified in physical medicine and rehabilitation. In the course of his evaluation, he conducted a physical examination, took Claimant’s medical history and reviewed his medical records. Of note, however, at the time he first rendered his opinion as to causation Dr. Knorpp had not reviewed the emergency room record taken on the day of Claimant’s December 2000 fall.
36. Dr. Knorpp opined to a reasonable degree of medical certainty that Claimant’s right shoulder injury was not causally related to his December 2000 fall. As support for this opinion, Dr. Knorpp noted the following:
• Claimant’s medical records do not note any complaints referable to the right shoulder until early 2005, some 4 years after the December 2000 fall;
• Claimant was able to engage in both physical and occupational therapy after his left shoulder surgery, with no complaints of right shoulder pain noted;
• Claimant underwent two functional capacity evaluations, one in 2003 and another in 2004, during which he engaged in activities such as overhead lifting that he would not have been able to manage had his right shoulder pathology existed at the time.
8
37. In Dr. Knorpp’s opinion, to a reasonable degree of medical certainty Claimant’s right shoulder injury was degenerative in nature. The combination of the natural aging process and physical activity can cause both the labrum and the rotator cuff to first fray, and then ultimately tear. In Claimant’s case, therefore, the physical work he did in the context of his property management business, for example, pulling starter cords, painting and hammering nails overhead, all increased the likelihood that degeneration would lead to tearing.
38. Dr. Knorpp disagreed that the presence of a cyst in Claimant’s right shoulder was either indicative of a traumatic origin to the pathology there or significant in terms of dating any trauma to the area.
39. I find that Dr. Knorpp’s conclusions are undermined by the fact that he formed them without first reading the contemporaneous emergency room records of Claimant’s December 2000 injury.
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).
Causation
2. The first disputed issue in this claim is one of causation. Claimant asserts that his right shoulder injuries resulted from his December 2000 fall. Defendant argues that the injuries are degenerative in nature and that they were either caused or aggravated by Claimant’s work activities during the time he was engaged in his property management business.
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).
9
4. Here, I conclude that the first factor favors Dr. Abate. Having performed two surgeries on Claimant’s right shoulder, he was the only medical professional who had occasion to examine Claimant’s shoulder pathology from the inside. His opinion carries great weight.
5. The second factor disfavors Dr. Knorpp. To the extent that his opinion was based in large part on the fact that Claimant never complained of any right shoulder pain prior to January 2005, his failure to review the December 8, 2000 emergency room record is particularly glaring.
6. I conclude that the third factor favors Dr. Abate. The presence of the cyst in Claimant’s right shoulder provides objective support for his opinion that the pathology there likely resulted from earlier trauma, not gradual degeneration.
7. I conclude that the fourth and fifth factors favor Dr. Abate as well. Although all of the experts conducted comprehensive evaluations in the context of their areas of specialization, as the treating orthopedic surgeon Dr. Abate was the only one who was able to view the pathology in Claimant’s right shoulder first hand.
8. I conclude that Claimant has sustained his burden of proving that his right shoulder injury was caused by his December 2000 fall and is therefore compensable.
Temporary Total Disability Benefits
9. Claimant seeks temporary total disability benefits for two separate time periods following each of his right shoulder surgeries – first, from March 31st to May 10th, 2005 and second, from December 21st, 2005 to May 10th, 2006. However, Claimant himself testified the he never lost any wages during those time periods because he continued to pay himself a salary from his property management business. A claimant cannot receive a wage and temporary total disability benefits at the same time. See, J.K. v. Joe Knoff Illuminating, Opinion No. 30-05WC (July 12, 2005) at Conclusion of Law No. 6; Kiser v. National Life Insurance Co., Opinion No. 38-96WC (June 28, 1996) at Conclusion of Law No. 6.
10. I conclude that Claimant has failed to establish any wage loss, and therefore is not entitled to temporary total disability benefits for the periods he claims.
Permanent Partial Disability Benefits
11. As Dr. Knorpp did not believe that Claimant’s right shoulder injury was causally related to his December 2000 injury, he did not conduct a permanent impairment rating. The only evidence of Claimant’s permanent impairment, therefore, comes from Dr. Davignon.
10
12. Defendant argues that the distal clavicle excision was necessitated not by the December 2000 fall but rather by Claimant’s preexisting arthritis. Therefore, it asserts, Claimant should not be awarded any permanency referable specifically to that condition. The credible evidence establishes, however, that the arthritis was asymptomatic prior to the injury. More importantly, both Dr. Abate and Dr. Davignon concurred that the distal clavicle excision was medically necessary in order to ensure a successful outcome to Claimant’s right shoulder repair surgery.
13. I conclude that the distal clavicle excision was a necessary component of the surgery that resulted from Claimant’s December 2000 fall. It is properly includable in the permanency rating referable to that injury, therefore. Thus I conclude that Dr. Davignon’s 11% whole person impairment rating represents an appropriate determination of Claimant’s right shoulder permanency.2
Compensation for Second Right Shoulder Surgery
14. Last, Defendant argues that it should not be obligated to pay the medical costs associated with Claimant’s second right shoulder surgery. It asserts that Claimant did not actively participate in his medical care and in fact refused to pursue physical therapy that was designed to improve his condition. Had he done so, Defendant argues, the second surgery would not have been necessary.
15. Vermont’s workers’ compensation law has been interpreted to impose upon claimants the obligation to participate actively in their medical care, and precludes them from refusing unreasonably to pursue recommended treatment designed to improve their condition. Hall v. Maple Grove Farms, Inc., Opinion No. 33-95 (August 8, 1995); Hoyt v. Vermont State Hospital, Opinion No. 3-94WC (February 22, 1994); Luther v. General Electric, Opinion No. 9-93WC (July 29, 1993).
16. Here, I conclude from Dr. Abate’s credible testimony that the complications that led to Claimant’s second surgery cannot be attributed to his failure to complete physical therapy, and likely would have occurred regardless. There is no basis, therefore, for denying Claimant’s entitlement to compensation.
17. I conclude that Defendant is obligated to pay for the medical costs associated with Claimant’s December 2005 right shoulder surgery.
2 Of note, the agreed upon permanency for Claimant’s left shoulder injury, which Defendant accepted and paid in 2002, totaled 12% whole person and included consideration of the distal clavicle excision on that side.
11
Costs and Attorney Fees
18. Claimant has requested an award of costs and attorney fees in an amount to be determined. Claimant is entitled to an award of only those costs that relate directly to the claims upon which he prevailed, Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), namely (a) causation; (b) permanent partial disability; and (c) medical benefits. As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of his allowable costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with an 11% whole person permanent impairment referable to the right shoulder;
2. Interest on the above amount beginning on March 12, 2008, calculated in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s right shoulder injury, in accordance with 21 V.S.A. §640;
4. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 19th day of July 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.

Dzevad Karabegovic v. Monahan SFI (September 29, 2009)

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

Dzevad Karabegovic v. Monahan SFI (September 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Dzevad Karabegovic Opinion No. 37-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Monahan SFI
For: Patricia Moulton Powden
Commissioner
State File No. Y-63633
OPINION AND ORDER
Hearing held in Montpelier on May 1, 2009 and May 4, 2009
Record closed on June 5, 2009
APPEARANCES:
John Swanson, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a work-related injury on June 14, 2007?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Karen Nepveu, M.D.
Defendant’s Exhibit A: Curriculum vitae, Leon Ensalada, M.D.
Defendant’s Exhibit B: Photographs (4) of Claimant’s chest
Defendant’s Exhibit C: Curriculum vitae, Steven Mann, Ph.D.
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
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
2
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant is a Bosnian immigrant who came to this country in 1997. His native language is Bosnian. Claimant speaks and understands English, though by no means fluently.
4. Claimant has worked for Defendant or its predecessor, Specialty Filaments, since 1999. Defendant manufactures synthetic fibers. Claimant’s job involves cutting hanks of fibers as they come off a machine, then clamping, pulling and wrapping them in PVC tubing and packaging the final product in a box. The job entails constant bending, twisting and lifting while working with melting plastics and sharp tools.
5. On June 14, 2007 Claimant was at work. He had cut a hank of fibers, and as he bent, twisted and pulled them up to clamp them he felt pain in his right chest. Claimant finished the hank, then went first to his desk and then to the break room to rest. When the pain did not abate after an hour or so, Claimant drove himself to the Emergency Room. He thought he was having a heart attack.
6. After cardiac issues were ruled out, the Emergency Room physician diagnosed musculoskeletal chest pain and prescribed ibuprofen for treatment. Claimant’s chest pain continued, however, and on June 18, 2007 he sought further evaluation and treatment with Dr. Hebert, his primary care physician. Dr. Hebert as well diagnosed musculoskeletal chest pain and again recommended rest, no work and Advil as treatment.
7. Claimant’s chest pain continued. Further testing was negative, and although Dr. Hebert continued to believe that the pain was musculoskeletal, he was at a loss to explain why it was not improving with time. By August 2007 Dr. Hebert noted that Claimant was depressed, which likely was contributing to his pain. At this point, Claimant was taking narcotic pain medications, but still to no avail.
8. Also in August 2007 at Defendant’s request Claimant underwent an independent medical evaluation with Dr. Ensalada. Dr. Ensalada is board certified in pain management and anesthesiology. As part of his evaluation, Dr. Ensalada palpated Claimant’s chest, including his costochondral junctions, where the ribs connect to the sternum, but did not elicit any complaints of tenderness. In fact, Dr. Ensalada found that Claimant’s examination was entirely normal, with no objective signs of injury whatsoever. From this he concluded that Claimant’s pain was not musculoskeletal in nature, that it was not generated by any objectively verifiable underlying physical disorder, that it was not work-related and that further treatment was neither reasonable nor necessary.
3
9. In March 2008 Dr. Hebert referred Claimant to Dr. Nepveu, a rheumatologist, for further evaluation. Dr. Nepveu is board certified in internal medicine, with a sub-specialty in rheumatology. Rheumatology involves the study of both rheumatic and auto-immune diseases and musculoskeletal conditions.
10. As part of her evaluation, Dr. Nepveu conducted a meticulous, fingertip-by-fingertip examination of Claimant’s costosternal joints. Once she palpated the right spot, between the third and fourth joints, she was able to reproduce Claimant’s pain fairly easily. The site was exquisitely tender, such that Claimant winced and tried to withdraw. Dr. Nepveu observed that the second and fifth joints also were tender, but not exquisitely so.
11. Based on her examination, Dr. Nepveu diagnosed costochondritis, an inflammation of the cartilage between the rib and the sternum. Costochondritis is a condition that rheumatologists usually treat; in Dr. Nepveu’s practice she sees four or five patients per year who suffer from it. Because the tissues, ligaments and cartilage in the area do not have a good blood supply, the condition can be very slow to heal, even with limited activity.
12. In Dr. Nepveu’s opinion, the mechanism of injury Claimant described – lifting with some degree of torque – involves the type of movement that could strain the rib muscles and bring on costochondritis. Thus, based on Claimant’s history she firmly believes that his work activities on June 14, 2007 caused the condition to develop.
13. Dr. Nepveu testified that she was somewhat surprised that neither Dr. Hebert nor Dr. Ensalada was able to discern that Claimant was suffering from costochondritis, as in her opinion the diagnosis was fairly straightforward. She theorized that they may not have conducted the kind of exacting, pinpoint palpation of Claimant’s costosternal joints necessary to locate the source of his pain. In addition, she postulated that perhaps Claimant had lost some muscle mass in the intervening months between their examinations and her own, which would have made it easier for her to palpate the involved joints.
14. For treatment, Dr. Nepveu injected the involved joints with corticosteroids. When she did so, Claimant’s pain disappeared, which in her opinion further substantiated her diagnosis. Over time, with further injections and topical anesthetics, Claimant has made considerable progress. He no longer takes narcotic pain medications and is able to participate in physical therapy. Dr. Nepveu anticipates that he will continue to improve; in her opinion, therefore, he is not yet at end medical result. She expects that he will be able to return to work, but probably only in a sedentary or light capacity, and therefore not at the level at which he was working before. Although admittedly she is not a vocational rehabilitation expert, in Dr. Nepveu’s opinion Claimant’s limited English language skills will hamper his ability to find suitable work at this level.
4
15. With Dr. Nepveu’s diagnosis in hand, Dr. Ensalada re-evaluated Claimant in September 2008. He found no objective signs of costochondritis. Notably, however, Claimant had undergone a corticosteroid injection in his costosternal joints just one week prior to Dr. Ensalada’s exam, which may have masked his pain somewhat. Nevertheless, Dr. Ensalada concluded that Dr. Nepveu’s diagnosis was incorrect. Rather, he continued to maintain that Claimant had not suffered any physical injury as a result of his work activities on June 14, 2007.
16. In Dr. Ensalada’s opinion, Claimant’s symptoms are entirely psychogenic in origin, and have no physical basis whatsoever. Dr. Ensalada believes that Claimant’s presentation represents somatization, the unconscious use of physical symptoms for psychological purposes. The symptoms are not voluntarily controlled, and therefore Claimant should not be perceived as malingering, but because they result from his longstanding psychological makeup rather than any single event, they are not work-related in any way.
17. Dr. Ensalada recommended that Claimant undergo a psychological evaluation to further delineate the nature, extent and cause of his condition. To that end, at Defendant’s referral Claimant underwent an evaluation with Dr. Mann, a licensed psychologist doctorate, in October 2008. Drs. Mann and Ensalada are professional colleagues; they have discussed forming a clinical practice to allow them to work together in a multidisciplinary program, but to date they have not established any formal business relationship.
18. Dr. Mann administered an extensive battery of psychological tests. All were in English except for the MMPI-2, which was available in Croatian. Dr. Mann testified that based on his observation Claimant was sufficiently fluent in English to be able to understand the tests administered in that language. At the formal hearing, however, Claimant often spoke haltingly, searched for the appropriate words with which to express himself and at times appeared not to comprehend fully the questions put to him.
19. As for the Croatian version of the MMPI-2, Dr. Mann testified that he believed that language to be as similar to Bosnian, Claimant’s native tongue, as American English is to British English. However, Claimant testified that Dr. Mann’s understanding was incorrect, that the two languages are in fact dissimilar, and that he is far less fluent in Croatian than he is in Bosnian.
20. Claimant testified that because of the language difficulties he encountered trying to comprehend Dr. Mann’s tests, it took him a total of 17.5 hours, spread over a three-day period, to complete them all. At one point, he testified, he asked permission to use a Bosnian-English dictionary to translate the words on a test, a process that was extremely time-consuming. Dr. Mann could neither confirm nor deny the amount of time it took Claimant to finish the testing battery, but acknowledged that typically his testing takes only four or five hours to complete.
5
21. Based on the results of the battery of tests he administered, Dr. Mann diagnosed Claimant with an undifferentiated somatoform pain disorder, a psychological condition characterized by physical complaints that after appropriate investigation cannot be fully explained by a known general medical condition. In other words, as Dr. Ensalada also had concluded, Dr. Mann deduced that Claimant’s condition was entirely psychogenic in origin and not organically caused at all.
22. As support for his opinion, Dr. Mann pointed to Claimant’s responses to the MMPI-2, which in his analysis evidenced extremely strong patterns of hysteria, defensiveness, hypochondriasis and neurotic denial. Dr. Mann described Claimant as a person who is incapable of expressing his emotions psychologically; he suppresses them and they manifest physically instead. In Dr. Mann’s opinion, this personality trait is representative of Claimant’s long-standing psychological makeup. It is not related in any way, therefore, to any work injury or incident.
23. Dr. Mann could cite to no other incidents in Claimant’s personal history that might be interpreted as indicative of this longstanding psychological response pattern. Dr. Hebert, who has been Claimant’s primary care physician since 2005 and sees him regularly for diabetes control, testified that in his experience Claimant was not one either to seek treatment for multiple physical issues or to exaggerate his complaints.
24. Both Dr. Hebert and Dr. Nepveu testified that in their opinion Claimant had been totally disabled from working as a result of his June 2007 injury from the time it first occurred, and that he remains so now. In contrast, Dr. Ensalada testified that at most Claimant would have been unable to work for a period of two weeks after the June 2007 incident, at which point he would have reached end medical result for whatever minor injury he may have suffered. Dr. Ensalada believes that Claimant is fully capable of returning to his prior job, and that the only “treatment” he requires is reassurance.
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).
6
2. The disputed issue here is one of medical causation. With Dr. Hebert’s and Dr. Nepveu’s expert medical opinions as support, Claimant contends that his work activities on June 14, 2007 caused him to develop costochondritis, a physical injury that requires physically based treatment. Defendant, on the other hand, cites to the expert medical opinions of Drs. Ensalada and Mann in support of its assertion that Claimant does not suffer from costochondritis or any other physically based injury, but rather that his condition is entirely psychogenic in origin and is not work-related in any respect.
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).
4. In this case, I find Dr. Nepveu’s opinion to be the most credible. As a rheumatologist, she has the most experience in diagnosing and treating costochondritis, a condition that requires an exacting, pinpoint examination to discern. Her diagnosis adequately accounts for Claimant’s symptoms and convincingly explains their causal relationship to work.
5. In contrast, I find good reason to be skeptical of the theory that Claimant’s symptoms are indicative of a long-standing psychological compulsion to suppress his emotions and manifest them as physical complaints instead, as Drs. Ensalada and Mann assert. Not only is there no support for this analysis in Claimant’s prior medical history, but it rests primarily on the results of psychological testing that is suspect given what must have been a significant language barrier.
6. I conclude, therefore, that Claimant has sustained his burden of proving that his work activities on June 14, 2007 caused him to develop costochondritis, a physical injury for which he continues to treat. As Claimant has not yet reached end medical result, and as his condition continues to disable him from work, he is entitled to temporary total disability benefits from the date of the injury forward. As Claimant’s temporary total disability has extended for more than 90 days, furthermore, Defendant is obligated to undertake the vocational rehabilitation screening process mandated by 21 V.S.A. §641 and Workers’ Compensation Rule 30.0000 in order to determine whether he is entitled to vocational rehabilitation assistance.
7. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit his itemized claim.
7
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits beginning on June 15, 2007 and continuing until properly discontinued pursuant to 21 V.S.A. §§643 and 643a, with interest in accordance with 21 V.S.A. §664;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s compensable injury;
3. Permanent partial disability benefits in amounts to be proven;
4. Vocational rehabilitation benefits in accordance with 21 V.S.A. §641;
5. Costs and attorney fees in amounts to be established in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this ____ 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.

Donald Patch v. Jan Co., Inc. (April 15, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Donald Patch v. Jan Co., Inc. (April 15, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Donald Patch Opinion No. 12-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Jan Co., Inc.
For: Patricia Moulton Powden
Commissioner
State File No. AA-52776
OPINION AND ORDER
Hearing held in Montpelier on March 2, 2009
Record closed on March 13, 2009
APPEARANCES:
Frank Talbott, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUE PRESENTED:
1. Did Claimant suffer a compensable work-related injury on September 6, 2008?
2. If yes, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Claimant’s Exhibit A: Medical records
Claimant’s Exhibit B: Deposition of Daniel Robbins, M.D. taken on February 11, 2009
Claimant’s Exhibit C: Curriculum Vitae, Daniel Robbins, M.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest pursuant to 21 V.S.A. §664
Attorney’s fees and costs pursuant to 21 V.S.A. §678
2
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Defendant is the parent corporation for a local Burger King restaurant. Claimant has worked there as an assistant manager since 1999. As a “hands-on” manager, Claimant’s duties include not only running the shift and supervising employees, but also taking, filling and bagging customer orders.
4. On September 6, 2008 Claimant was working the drive-through window. This assignment involves a significant amount of bending, lifting, twisting and moving in awkward positions in order to pass items to waiting customers. It was a busy Saturday afternoon. Within a few hours of starting his shift, Claimant began to feel low back and groin pain. Later the pain intensified and began radiating down the inside of his right leg and into his calf. Ultimately the pain became so unbearable that Claimant called his supervisor to report that he was leaving early to go to the hospital emergency room.
5. Claimant has a prior medical history of occasional low back pain and lumbar stiffness, for which he has treated on a fairly regular basis with Dr. Marco, a chiropractor. Claimant testified credibly that his previous episodes of low back pain were not nearly as intense as what he experienced on September 6, 2008, that they did not involve radicular pain and that they resolved fairly quickly. Claimant characterized his ongoing treatment with Dr. Marco as a type of “fitness care.” Dr. Marco’s treatment notes corroborate this testimony.
6. Claimant treated conservatively for his September 6, 2008 injury. When his symptoms lingered, in December 2008 he sought a consultation with Dr. Robbins, an orthopedic surgeon. Based both on Claimant’s description of the mechanism of injury and the symptoms that followed and on his review of an MRI scan taken shortly after the incident, Dr. Robbins concluded that Claimant had suffered an annular tear at L5-S1. To a reasonable degree of medical certainty Dr. Robbins testified that the tear most likely had been caused by Claimant’s work activities on September 6, 2008. Dr. Robbins felt “strongly” that Claimant’s symptoms did not represent a continuation of any underlying chronic problem. To the contrary, he stated that Claimant’s presentation was “absolutely textbook” for an acute annular tear.
7. As treatment Dr. Robbins prescribed aggressive physical therapy, a core stabilization and stretching regimen and non-steroidal anti-inflammatories. Claimant has progressed well with this program. At this point, although Dr. Robbins has not yet declared him at end medical result, he does not anticipate any substantial long-term impairment.
3
8. Defendant’s medical expert, Dr. Davignon, performed an independent medical evaluation in November 2008. In Dr. Davignon’s opinion, assuming that the prior medical history Claimant gave was accurate – and the evidence reveals no reasonable basis for concluding that it was not – the September 6, 2008 incident most likely resulted in an aggravation of the pre-existing chronic low back pain for which he had received chiropractic treatment in the past. On those grounds, Dr. Davignon concluded that Claimant’s current symptoms were causally related to his work for Defendant.
9. As a result of his September 6, 2008 injury Claimant was totally disabled from September 7, 2008 until mid-December 2008. Defendant delayed putting Claimant back on the work schedule, however, until January 24, 2009 at which point Claimant returned to work full-time and full-duty.
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. Claimant alleges that his work activities on September 6, 2008 resulted in an annular tear at L5-S1, causing disabling symptoms that required medical treatment and precluded him from working for some time thereafter. Claimant presented Dr. Robbins’ expert opinion in support of his position. Defendant countered with Dr. Davignon’s expert opinion.
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).
4. Applying this test to the current claim, Claimant clearly prevails. Dr. Robbins credibly synchronized the mechanism of the injury with the MRI findings to conclude that Claimant’s symptoms were in fact related to his work activities on September 6, 2008. His opinion was persuasive in every respect.
4
5. Indeed, Dr. Davignon reached essentially the same conclusion, albeit by way of a somewhat different medical path. The only disclaimer he appended to his opinion was his assumption that Claimant had reported his medical history accurately, which in fact he had. With that fact established, Dr. Davignon concluded that Claimant’s ongoing symptoms amounted to a work-related aggravation of his pre-existing condition and thus were causally related to his employment for Defendant.
6. I conclude, therefore, that Claimant has sustained his burden of proving that his low back pain and radicular symptoms after September 6, 2008 were causally related to his work activities on that date. Defendant is responsible to pay for all associated workers’ compensation benefits to which Claimant proves his entitlement. These include payment for all reasonably necessary medical services and supplies as well as indemnity benefits. As to the latter, Claimant has proven his entitlement to temporary total disability benefits from September 7, 2008 until January 24, 2009. Whether Claimant will be entitled to permanent partial disability benefits as well remains to be seen.
7. Claimant’s attorney has submitted a request under 21 V.S.A. §678 for costs totaling $1,740.75 and attorney’s fees totaling $5,904.00. An award of costs to a prevailing claimant is mandatory under the statute and therefore these are awarded. As for attorney’s fees, these lie within the Commissioner’s discretion. I find they are more than appropriate here, and therefore these are awarded as well.
5
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from September 7, 2008 through January 24, 2009;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s September 6, 2008 injury;
3. Additional workers’ compensation benefits, including permanent partial disability benefits, proven to be causally related to Claimant’s September 6, 2008 injury;
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs of $1,740.75 and attorney’s fees of $5,904.00 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 15th day of April 2009.
______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Joseph Rivers v. University of Vermont (February 10, 2009)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Joseph Rivers v. University of Vermont (February 10, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Joseph Rivers Opinion No. 05-09WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
University of Vermont
For: Patricia Moulton Powden
Commissioner
State File No. P-16044
OPINION AND ORDER
Hearing held in Montpelier on March 18, 2008
Record closed on May 2, 2008
APPEARANCES:
Frank Talbott, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s low back condition causally related to his January 27, 2000 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit A: Workers’ Compensation Incident Checklist
Claimant’s Exhibit B: Facsimile from Debbie Tamayo to Nancy Bogue, February 4, 2000
Claimant’s Exhibit C: Two-page memo (undated) from Jeanne Deslauriers, RN
Claimant’s Exhibit D: Letter from Dave Rogers to Thomas Gustafson, February 3, 2000
Claimant’s Exhibit E: Undated letter from Dave Rogers
Defendant’s Exhibit 1: Deposition of H. James Forbes, MD, taken on March 10, 2008
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, attorney’s fees and costs pursuant to 21 V.S.A. §§664 and 678(a)
2
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’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s Employment Background and Prior Medical History
3. Claimant began working at Defendant’s athletic facility in 1995. His responsibilities were varied, but primarily revolved around the Gutterson Field House ice rink. Among other tasks, Claimant operated and maintained the Zamboni. During the six months per year that the ice rink was active, Claimant typically worked 60 hours weekly; during the off-season, he worked 40 hours per week.
4. In addition to his work for Defendant, in 1996 Claimant began working part-time for another local ice rink. By 1997 Claimant was working 7 days, as much as 70 hours per week.
5. Claimant also cared for his wife, who suffered from multiple sclerosis. On a daily basis Claimant had to assist her with multiple transfers, lifting her, for example, from bed to wheelchair or from wheelchair to bath, and then back again as well. Claimant regularly performed these tasks for his wife until the couple separated in 2002.
6. Claimant’s prior medical history was significant for both knee and back pain. Claimant suffered from osteoarthritis in his knees, for which ultimately he underwent a total knee replacement in 2003. As for his back, Claimant had fractured his third and fourth lumbar vertebrae in 1977. Medical records document that he suffered from “chronic low back pain” at least as early as 1998. Claimant occasionally took pain medications for these symptoms, but did not actively treat for them otherwise. At one point Dr. Gunther, his primary care physician, recommended a book, “Care for Your Back,” to help Claimant deal with his low back pain, which Dr. Gunther attributed largely to “body mechanics.”
The Work Injury
7. On January 27, 2000 Claimant was exiting the field house when a large amount of snow slid off the roof, hit the door and propelled Claimant some distance back into the building. Claimant landed on his buttocks, back and knee. The force of the impact caused his neck to snap back.
8. Claimant reported the incident to his supervisor and, a few days later, sought medical treatment with his primary care provider.
3
9. Claimant testified that his symptoms immediately after the incident included low back and neck pain as well as headaches. The early medical records documented these symptoms, but focused primarily on neck pain as the most troublesome complaint. For example, Claimant’s primary care provider, Dr. Gunther, described the injury as “whiplash.” Dr. Tverras, the chiropractor who treated Claimant in early February 2000, reported subjective complaints of “moderate to severe neck, shoulder and lower back pain,” but specifically diagnosed only a “cervical-thoracic strain/sprain.” Likewise, the physical therapist who treated Claimant in February and March 2000 noted some complaints of low back pain, but categorized the diagnosis as “cervical strain.”
10. Defendant accepted Claimant’s injury, which it described as a “pinched nerve neck,” as compensable and paid workers’ compensation benefits accordingly.
11. Following the January 2000 incident, Claimant was totally disabled from working until mid-March 2000, when he returned to work part-time. By the end of that month, Claimant had returned to work full-time.
Claimant’s Medical Treatment
12. Claimant testified that although his early treatment after the January 2000 incident focused on his neck injury, his low back pain also was troublesome. He stated that he was surprised that none of his treatment providers suggested x-rays of his back.
13. After he returned to work, Claimant treated informally for his low back pain with Defendant’s athletic trainers, to whom he had access by virtue of his job. Claimant acknowledged that he occasionally had visited the athletic trainers for heat treatments prior to January 2000, but had not done so regularly. After the January 2000 incident, however, he visited the training room on a daily basis for heat, ice and electrical stimulation treatments. Both Claimant’s supervisor and the Athletic Room Trainer corroborated this testimony.
14. Claimant did not seek formal treatment for his low back complaints until September 2000, when he presented again to Dr. Gunther. Claimant testified that he did so because his symptoms had failed to abate despite his efforts to treat them informally with Defendant’s athletic trainers. Dr. Gunther’s office note reflects a slightly different situation, however. It states that Claimant’s back had “stiffened up recently” and was “much worse.” Dr. Gunther made no reference to the January 2000 incident as the precipitating event for Claimant’s complaints of low back pain, and instead mentioned that Claimant had been lifting his wife more of late. He diagnosed degenerative joint disease with chronic low back pain “from activity.”
4
15. In December 2000 Dr. Gunther reported for the first time that Claimant was experiencing radicular symptoms, including pain radiating into his groin and difficulty sitting. An MRI revealed multi-level degenerative disc disease, with some foraminal narrowing at various levels. In an effort to treat Claimant’s symptoms conservatively, Dr. Gunther referred him for physical therapy. Dr. Gunther also referred Claimant for further evaluation with Dr. Davignon, an orthopedist, who in turn referred Claimant for a neurological evaluation with Dr. Ciongoli. Interestingly, both doctors’ reports focused on Claimant’s neck pain as the area of his primary complaints, not his low back pain. As to the latter, both doctors mentioned Claimant’s lifting activities in the context of caring for his wife, but neither mentioned the January 2000 work accident as a contributing factor or relevant event.
16. Also in December 2000 Claimant began to pursue workers’ compensation benefits for his low back complaints, alleging that they were causally related to the January 2000 work accident. In March 2001 Defendant formally denied its responsibility for any such benefits.
17. Aside from the course of physical therapy prescribed by Dr. Gunther, Claimant did not treat formally for his low back pain from early 2001 until 2004. During that time, he continued to receive informal treatments from Defendant’s athletic trainers on a regular basis. He also continued to work his customary long hours, as much as 7 days a week and 70 hours weekly between his job for Defendant and his job at the other local ice rink. Until 2002, when Claimant and his wife separated, he continued to lift and transfer her many times daily.
18. Claimant’s medical records reflect that his low back pain never abated during this period, but did seem to wax and wane at times. In 2002 Dr. Gunther reported that Claimant’s back pain was “doing much better.” In 2004, however, he reported that it was “still troubling.”
19. By 2005 Claimant’s low back pain was radiating down his leg and into his right foot. A repeat MRI again revealed multi-level degenerative disc disease, but this time with severe foraminal narrowing at L5-S1 and compression of the L5 nerve root. These findings document that Claimant’s degenerative disc disease had progressed significantly from the time of his earlier MRI in December 2000.
20. In October 2005 Claimant underwent surgery for an unrelated medical problem. He filed for long-term disability benefits, citing both that problem and his chronic low back pain as precluding him from continuing to work. Claimant has not worked since.
21. In an effort to treat Claimant’s worsening symptoms of radiating low back pain, in September 2005 Dr. Gunther referred him to Dr. Musman, an anesthesiologist and pain management specialist. From September 2005 until March 2008 Dr. Musman treated Claimant with a variety of injections and other interventional procedures in an attempt to reduce nerve inflammation and control Claimant’s pain. None of these procedures resulted in long-term pain relief.
5
22. Ultimately Claimant underwent two surgeries, both at the L5-S1 level, to address his low back pain, the first in June 2007 and more recently in January 2008. As of the date of the formal hearing, he had not yet been released to return to work and had not been declared at end medical result.
Expert Medical Opinions
23. All of the physicians who have evaluated and/or treated Claimant’s low back pain agree that he suffered from degenerative disc disease that most likely predated the January 2000 work incident. Disagreement exists, however, as to the extent, if any, to which that incident aggravated or accelerated the progression of the disease to the point where it required medical treatment and became disabling.
24. Dr. Gunther believes that the January 2000 work incident did in fact aggravate Claimant’s pre-existing degenerative disc disease. In his opinion, the incident caused more than a mere muscle strain or soft tissue injury. Dr. Gunther testified that although Claimant had suffered from chronic low back pain previously, it had been a stable condition, and had never interfered with either work or other daily activities. After the January 2000 incident, Dr. Gunther testified, the condition became unstable, with increased symptoms that required daily attention from Defendant’s athletic trainers. These symptoms ultimately progressed to the point where they interfered with previously manageable activities and precluded Claimant from continuing to work.
25. Dr. Gunther acknowledged that he did not examine Claimant’s low back after the January 2000 incident and that his medical records do not even reflect any complaints of low back pain until some months later. Dr. Gunther admitted that it was “unusual” for him not to have mentioned Claimant’s complaints of low back pain in his office notes. The omission is particularly troublesome given Dr. Gunther’s training, which included a residency under the tutelage of Dr. Rowland Hazard at the Spine Institute of New England. As part of that training, Dr. Gunther assisted in developing a spine injury protocol for primary care providers that encompassed techniques for taking a relevant history from patients complaining of low back pain, conducting a thorough physical examination and making appropriate specialist referrals.
26. Dr. Musman, the pain management specialist who treated Claimant from 2005 until 2008, shared Dr. Gunther’s opinion as to causation. Dr. Musman testified that the January 2000 event was definitely a contributing factor in the development of Claimant’s radicular symptoms and ultimately his need for surgery.
27. Dr. Musman admitted that his opinion was based primarily on Claimant’s recollection of how his symptoms had progressed rather than on his own personal examinations. He further admitted that there likely was a strong genetic component to Claimant’s degenerative disc disease, particularly given that it existed at multiple levels in Claimant’s spine. Last, Dr. Musman acknowledged that the natural progression of degenerative disc disease can be affected by lifting and twisting activities, such as those that Claimant performed while caring for his wife.
6
28. Dr. Forbes, an orthopedic surgeon, performed a medical records review and testified on Defendant’s behalf. In Dr. Forbes’ opinion, the January 2000 incident had no effect whatsoever on the natural progression of Claimant’s pre-existing degenerative disc disease. Central to Dr. Forbes’ opinion was the fact that Dr. Gunther’s office notes did not reflect any complaints of low back pain immediately after the January 2000 incident, and that whatever pain complaints were documented by Claimant’s other early treatment providers did not even rise to the level of necessitating x-rays. Dr. Forbes noted that the natural progression of degenerative disc disease is such that with or without trauma it gradually worsens and produces more symptoms over time. Thus, he attributed Claimant’s ultimate disability in 2005 and need for surgery thereafter entirely to the underlying disc disease and not at all to the January 2000 work incident.
CONCLUSIONS OF LAW:
Statute of Limitations
1. As a preliminary matter, Defendant argues that Claimant’s claim for workers’ compensation benefits for his lower back complaints is time-barred because he failed to pursue it within the applicable limitations period, six years from the date of injury. 21 V.S.A. §660(a).1 This argument lacks merit. Claimant’s injury occurred in January 2000 and he initiated his claim for benefits related to his lower back pain in early 2001. Defendant denied the claim in March 2001. Claimant retained counsel in 2006, and filed a Notice and Application for Hearing in October 2006. All of these actions occurred within the six-year limitations period provided by statute. Claimant’s claim is not time-barred.
Compensability
2. 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).
3. At issue in this claim is whether Claimant’s January 2000 work accident aggravated or accelerated the progression of his pre-existing degenerative disc disease so as to entitle him to workers’ compensation benefits. Vermont law is clear that “the aggravation or acceleration of a pre-existing condition by an employment accident is compensable.” Stannard v. Stannard, 175 Vt. 549 (2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 595 (1989).
1 The statute since has been amended to reduce the limitations period to three years, but that amendment does not apply to the current claim.
7
4. As the Vermont Supreme Court stated in Stannard, when considering a progressively degenerative disease, “where ‘the disease, if left to itself, and apart from any injury, would, in time, have inevitably caused a complete disability,’ the causation test becomes whether, due to a work injury or the work environment, ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard, supra at ¶11, quoting Jackson, supra at 596.
5. The question in the current case, therefore, is whether Claimant’s degenerative disc disease would not have progressed to the point of first becoming disabling in 2005 and subsequently requiring surgery were it not for the January 2000 work accident. Credible medical evidence is required to make this determination. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
6. 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).
7. With a five-year delay between the allegedly accelerating event and the resulting disability, it is difficult to draw the required causal connection. Neither Dr. Gunther’s testimony nor Dr. Musman’s is sufficiently convincing. The basis for Dr. Gunther’s conclusions – that Claimant’s symptoms increased after the January 2000 accident, required daily attention and interfered with previously manageable activities – is not even reflected in his own office notes. This is an oversight I cannot reconcile with either his training or the thoroughness of his notes in other areas.
8. As for Dr. Musman, his opinion suffers from too much reliance on Claimant’s own recollections as to causation. Dr. Musman testified that he believed the January 2000 accident to be a contributing factor in the progression of Claimant’s degenerative disc disease primarily because Claimant himself had emphasized the event when reporting his history. Again, however, Dr. Gunther’s contemporaneous medical records do not substantiate Claimant’s recollections. As the critical component of Dr. Musman’s opinion, therefore, they are shaky at best.
9. Even though Dr. Forbes’ opinion was based solely on a medical records review rather than a physical examination, I find it to be the least speculative and therefore the most credible. The medical records tell the story here, and Dr. Forbes’ reliance on them strengthens rather than weakens his opinion.
10. I conclude, therefore, that Claimant has failed to sustain his burden of proving that the January 2000 work incident aggravated or accelerated his pre-existing degenerative disc disease such that his disability came on earlier than otherwise would have occurred. For that reason, his claim for benefits must fail.
8
ORDER:
Based on the foregoing findings and conclusions, Claimant’s claim for workers’ compensation benefits is hereby DENIED.
DATED at Montpelier, Vermont this 10th day of February 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.

R. O. v. Buttura & Sons (December 15, 2008)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

R. O. v. Buttura & Sons (December 15, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
R. O. Opinion No. 52-08WC
v. By: Jane Gomez-Dimotsis, Esq.
Hearing Officer
Buttura & Sons
For: Patricia Moulton Powden
Commissioner
State File No.X-03956
OPINION AND ORDER
Hearing held in Montpelier on September 5, 2008
Record closed on October 10, 2008
APPEARANCES:
Craig Jarvis, Esq., for Claimant
Eric Johnson, Esq., for Defendant
ISSUE:
Is Claimant’s right shoulder injury causally related to his employment and if so, to what workers’ compensation benefits is he entitled?
EXHIBITS:
Claimant’s Exhibit 1: Medical records
Claimant’s Exhibit 2: Photographs of exterior of Claimant’s home
Defendant’s Exhibit A: Medical records
Defendant’s Exhibit B: Dr. Landvater’s fee schedule
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 pursuant to 21 V.S.A. §664;
Attorney’s fees and costs pursuant to 21 V.S.A. §678;
2
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’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms contained in the Department’s file relating
to this claim.
3. Defendant is a granite shed business. Claimant is a monumental granite draftsperson and worked for Defendant for several years.
4. Defendant has a lay-off period in the winter. When work slows down Defendant’s workers clean up the facility in part by disposing of file boxes or by filling boxes with old files and moving them upstairs for storage.
5. On January 9, 2006 Claimant returned from vacation. He helped move file boxes from the first floor to the second floor.
6. Claimant was over fifty and was told he did not need to help move boxes. However, he was not explicitly prohibited from doing so.
The Incident
7. Claimant helped move four boxes. He raised the first three boxes from desk level and carried them upstairs. The last box was on the floor. When Claimant bent down to pick it up he tossed it up to get a better grip on it and then held it by its sides.
8. Claimant testified that when the box landed in his arms from the toss, he felt pain in his right shoulder. He stated that upon placing the box down, he told his co-workers that he had hurt his shoulder. All of the men present with Claimant at that time testified at hearing. Only one stated that he heard Claimant say something about the box but he did not recall exactly what was said.
9. Claimant continued to work for the next two weeks without mentioning any pain or shoulder complaints to his co-workers. After this incident but within the next several weeks Claimant lifted one or two boxes of frozen chicken at work for reasons unrelated to this claim. He testified that he did so with his left arm and shoulder so that he would not hurt his right arm.
10. On January 23, 2006 Claimant informed his supervisor, Michael Piro, that he had injured his right shoulder while moving boxes at work on January 9th and that he was going to see a doctor.
3
Medical History
11. Claimant saw his primary care provider, Dr. Peter Dale, on January 23, 2006. Dr. Dale’s office note for that date states: “1/9/06 – lifting boxes at work 30-40 lbs – new pain on top of shoulder [increased pain at night, minor pain during the daytime].” In his assessment, Dr. Dale wrote, “lifting related acute onset pain.” Dr. Dale ordered an MRI, which revealed a rotator cuff tear, and then referred him to Dr. Stephanie Landvater for surgical treatment.
12. On March 9, 2006 Dr. Dale took Claimant out of work pending his examination with Dr. Landvater. Dr. Landvater examined Claimant on March 14, 2006 and determined that he was totally disabled from working.
13. Claimant underwent surgical repair of his right shoulder rotator cuff tear on March 20, 2006. Dr. Landvater stated that when she viewed the injury during surgery it appeared to have an “acute” look and that its location was more consistent with a chronic tear. Relying primarily on Claimant’s account of the January 9th lifting incident, Dr. Landvater determined that the rotator cuff tear was work-related. Later Claimant had a recurrent tear due in part to possible infection of the previous wound. He underwent a second surgical repair on April 27, 2006.
14. At Defendant’s request, Dr. John Peterson saw Claimant for an independent medical examination on May 7, 2006. Based on the reported mechanism of injury, Dr. Peterson found that Claimant’s right shoulder rotator cuff tear was work-related. Later, however, Dr. Peterson reviewed Dr. Leon Ensalada’s IME report, which found Claimant’s injury to be unrelated to his employment. After reading the report, Dr. Peterson then changed his opinion on causation and stated that he agreed with Dr. Ensalada.
15. Given the circumstances of this claim, the fact that both Dr. Landvater and Dr. Peterson relied on Claimant’s subjective report of how the injury occurred in determining it to be work-related is troublesome. First, the alleged incident was unwitnessed, and Claimant’s co-workers could not even corroborate his testimony that after lifting the box he told them he had hurt his shoulder. Second, Claimant delayed reporting his injury, continued to work and did not seek medical treatment for two weeks after the January 9th incident. Last, as noted infra, Finding of Fact 22, Claimant’s inconsistent statements, both at the hearing and in the context of other legal and financial matters, render his credibility suspect.
16. Dr. Leon Ensalada conducted an independent medical examination on November 8, 2006. Dr. Ensalada determined that Claimant’s shoulder injury was not work-related because “the manner in which the Claimant claims to have lifted the box would have no effect on his subacromial space” and thus would not cause the injury that occurred. Dr. Ensalada also disputed Dr. Landvater’s ability to discern whether an injury is acute or the result of a longstanding degenerative process merely by viewing it during surgery.
4
17. Dr. Ensalada found that Claimant had chronic rotator cuff tendonitis caused by a decreased subacromial space. The decrease in the space caused chronic rubbing of the rotator cuff tendons against the subacromial arch and an abnormal configuration of his acromion in addition to arthritic spurs, inflammation and swelling. This process continued until the frayed rotator cuff tendons failed completely and tore. Dr. Ensalada found objective evidence of these findings in the February 22, 2006 MRI.
18. Dr. Ensalada also testified that if Claimant had torn his rotator cuff while lifting the box on January 9, 2006 he would not have been able to continue to work without complaint for almost three weeks thereafter, due to the amount of pain he would have had.
19. Both experts agreed that Claimant had a severe degenerative condition in his shoulder that could have caused his rotator cuff to tear at any time.
20. Dr. Landvater placed Claimant at end medical result on March 7, 2007. She rated him with a 5% whole person permanent impairment and released him to work on March 20, 2007.
21. In a medical procedure unrelated to this claim, Claimant underwent rotator cuff surgery on his left shoulder in 2008, performed by Dr. Michael Imobersteg. Of note is Dr. Imobersteg’s report stating that prior to surgery he informed Claimant that the tear might not be reparable due to the chronicity of the problem.
Claimant’s Credibility
22. Claimant has had significant legal and financial problems in the past in which his credibility reasonably might be deemed suspect. On one occasion, he was involved in a fight where he lied to the police regarding facts about a gun. Although he later corrected his statement, the fight led to a conviction for assault. There also was credible evidence that Claimant was terminated or asked to quit his former job due to some missing funds. Claimant has been sued three times for failure to pay debts. Perhaps most relevant to the current matter, Claimant made statements in his testimony regarding this claim that were inconsistent with prior statements.
5
CONCLUSIONS OF LAW:
1. Unfortunately, the truth will never be known as to whether Claimant really injured his right shoulder while lifting a box at work on January 9, 2006. Given that he delayed two weeks before reporting his injury, Claimant’s credibility is a key issue in resolving the causal relationship question. With an unwitnessed accident, a late report, a delay in seeking treatment and Claimant’s inconsistent statements, the factual evidence must be evaluated with great care. K.C. v. Windham Northeast Supervisory Union, Opinion No. 45-06WC (November 17, 2006), citing Fanger v. Village Inn, Opinion No. 5-95WC (April 25, 1995). It is black-letter law, furthermore, that Claimant bears the burden of proving by competent credible evidence both the character and extent of his injury and the causal connection between the injury and the employment. Goodwin v. Fairbanks, Morse & Company, 123 Vt. 161 (1962).
2. Claimant’s credibility was damaged by both his prior conduct and his inconsistent statements at hearing. As a result, I find that he has failed to meet his burden. Dr. Dale’s report relied on Claimant’s subjective statements, as did Dr. Peterson’s initial finding. Dr. Landvater as well relied to a large extent on Claimant’s statements. When medical personnel rely on a patient’s history of a work-related incident that proves not to be credible, however, their opinions lose their crucial base. M.M. v. Mack Molding, Opinion No. 58-05WC (September 9, 2005).
3. Because Dr. Ensalada’s opinion was based on objective evidence rather than Claimant’s subjective and inconsistent report, I find his opinion to be the most credible one. I conclude, therefore, that although Claimant proved that he suffered a right shoulder rotator cuff tear, he did not provide sufficient credible evidence to establish that the January 9, 2006 work incident was what caused the tear to occur.
4. Because Claimant has not prevailed, he is not entitled to an award of costs or attorney’s fees. As a separate matter, however, Claimant has requested an award of the costs related to Dr. Landvater’s second deposition, a total of $400.00. I find that under the circumstances Defendant should bear responsibility for this cost, and I therefore award this amount.
6
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his right shoulder injury is hereby DENIED. Defendant is ORDERED to pay $400.00 in costs in accordance with Conclusion of Law 4 above.
DATED at Montpelier, Vermont this 15th day of December 2008.
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.

© Copyright - -