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

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A. R. v. EHV Weidman (August 10, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. R. Opinion No. 36-06WC
By: Margaret A. Mangan
v. Hearing Officer
EHV Weidman For Patricia Moulton Powden
Commissioner
State File No. X-19525
Hearing Held in Montpelier on June 6, 2006
Record closed on June 20, 2006
APPEARANCES:
Vincent Illuzzi, for the Claimant
Nicole R. Vincent, for the Defendant
ISSUE:
Is the Claimant’s ongoing membership in a health club compensable?
EXHIBITS:
Joint I: Medical records
Claimant’s 1: Affidavit of Thomas Turek, D.C.
Claimant’s 2: Curriculum vitae of Dr. Turek
Defendant A: Transcript of deposition of Victor Gennaro, D.O.
FINDINGS OF FACT:
1. Claimant was an employee and EHV Weidmann his employer within the meaning of the Workers’ Compensation Act from 1973 until Claimant retired in 1999.
2. In the fall of 1985, Claimant injured his upper back when he tried to catch a large heavy cylinder and twisted in the process. He was diagnosed with a thoracic strain.
3. Before the 1985 work related incident, Claimant did not have symptoms of back problems. However, he had a condition called osteogenesis imperfecta that is known to cause ligament laxity and fractures. Before the work-related injury, Claimant also had an exaggerated thoracic kyphosis that was asymptomatic.
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4. After his work related injury, Claimant consulted with several health care providers, including Thomas Turek, D.C. who treated him with spinal manipulation, ultra-sound therapy and exercise therapy.
5. Dr. Turek placed Claimant at medical end result in July 1991. Palliative care continued. Dr. Turek recommended that Claimant continue flexibility exercises, which could be done at home.
6. An x-ray taken in 1991 revealed a thoracic level compression fracture that was not present in 1985.
7. In 1991 Dr. Peterson examined the Claimant. He determined that Claimant had reached medical end result and assigned a permanency rating. He also determined that Claimant would need continued chiropractic treatment on an infrequent basis and that he should continue daily exercise, including strength training.
8. In 1992 Claimant was advised to have aqua therapy for low back and leg pain unrelated to the work-related injury.
9. Claimant consistently follows an exercise routine recommended by his physicians and developed by a physical therapist at his local gym.
10. On occasions when Claimant had to stop his exercise regimen, his upper back pain returns.
11. The goal of a several month physical therapy program Claimant had in 1994 was to prepare him for an independent home exercise program.
12. In 1999 Claimant fell and fractured his hip. Treatment required hospitalization. He never returned to work after that injury.
13. In 2004 Claimant fell and sustained a clavicle fracture.
14. Dr. Turek opined that Claimant requires periodic treatment to maintain his status. Claimant’s first visit to Dr. Turek in fifteen years was in August of 2005. At that time, he opined that Claimant’s work related injury required continued use of the health club.
15. In February 2006 Dr. Victor Gennaro examined Claimant for the defense. He noted that those with osteogenesis imperfecta and thoracic kyphotic curvature frequently have chronic pain and spinal deformity. Dr. Gennaro opined that any symptoms Claimant now experiences are not from the 1985 injury, but from more recent causes. He based that decision on the diagnosis in 1985 (thoracic sprain), date of medical end result (1991), Claimant’s other medical conditions, and the difference in Claimant’s current symptoms compared to those in 1995. Further, Dr. Gennaro opined that the health club membership would be reasonable management for the osteogenesis imperfecta, but not for the work-related sprain. It would be reasonable because Claimant chose it. But all the exercises Claimant needs could be done with an exercise ball and walking, without the expense of a gym.
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16. Dr. Hebert, Claimant’s primary care physician, opined that the health club membership was reasonable treatment for Claimant’s spinal compression fractures. Those fractures were not work-related.
17. Claimant has managed his symptoms by joining a gym and actively exercising.
18. The exercises Claimant needs to manage any persistent symptoms from his thoracic strain could be done at home. Claimant is more likely to do them if he goes to the gym regularly.
19. Claimant has submitted support for an attorney fee award based on 43 hours of work and necessary costs of $429.82.
CONCLUSIONS OF LAW:
1. A Claimant injured in an accident that arose out of and in the course of his employment is entitled to reasonable medical treatment causally related to that injury. 21 V.S.A. § 618; 640(a).
2. Assuming that the gym membership is reasonable, the issue for decision is whether it is causally related to the 1995 work related injury.
3. In determining causation, there must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the work related injury caused the need for the gym membership; proof that it is more probable is necessary. See Burton v. Holden Lumber Co., 112 Vt. 17 (1941).
4. Claimant is to be commended for his regular exercise regime from which he has reaped benefits. However, a careful review of all records, including early records from Dr. Turek, supports the defense position that the work-related thoracic strain does not account for the symptoms Claimant claims are helped by participation in the gym.
5. First, home exercises were all that was needed for the thoracic strain after physical therapy ended in 1994. Claimant’s preference for a gym membership is a personal one, not a medical requirement for the work-related injury. The decisive factor is not what the Claimant desires or what he believes to be the most helpful, but what is shown by competent expert evidence to be reasonable and casually related to the work related injury. Britton v. Laidlaw Transit, Opinion No 47-03WC (2003). Second, the exercised Claimant performs at the gym are more likely needed because of the fractures that occurred after the work-related injury and Claimant’s preexisting conditions, as one of Claimant’s treating physicians and both defense exerts have opined.
6. Because the crucial element of causation is lacking, the carrier is no longer responsible for paying the gym membership fee.
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ORDER:
Therefore based on the foregoing findings of fact and conclusions of law, this claim is DENIED.
Dated at Montpelier, Vermont this 10th day of August 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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C. F. v. National Life Insurance Co. (November 17, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 44-06WC
By: Margaret A. Mangan
v. Hearing Officer
National Life Insurance Co. For: Patricia Moulton Powden
Commissioner
State File No. T-20446
Hearing held in Montpelier on August 22 and 23, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq. and David Berman for the Defendant
ISSUES:
1. Is Claimant’s August 19, 2003 fall at home a compensable result of her March 10, 2003 work related injury?
2. If so, what injuries did she suffer as a result of her August 19, 2003 incident?
3. If the August 19, 2003 injuries are compensable, has she reached a medical end result for those injuries? Is she entitled to additional temporary total disability benefits and, if so, for what time periods?
4. If the August 19, 2003 injuries are compensable, what is the extent of the resulting permanent partial impairment?
5. Is Claimant permanently and totally disabled as a result of her work related injury or injuries?
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EXHIBITS:
Joint:
I: Medical records
II: Performance evaluations
III: School Records
Claimant:
1: Defense counsel’s December 13, 2005 letter
2: Claimant’s counsel’s December 27, 2004
Defendant:
A: Private Investigator Videotape
STIPULATION:
1. On March 10, 2003, Claimant was an employee of Defendant within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. On March 10, 2003, Defendant was the employer of Claimant within the meaning of the Act.
3. On March 10, 2003, Claimant had one dependent within the meaning of the Act who turned twenty-one years old on November 19, 2004 at which time he was no longer dependent.
4. On March 10, 2003, Claimant had an average weekly wage of $482.31 resulting in an initial compensation rate of $321.54.
5. On March 10, 2003 Claimant suffered a work-related injury.
6. On August 19, 2003, Claimant fell at home. Defendant contests the compensability of this incident and any resulting injuries, but Claimant alleges that the fall was the direct result of her work-related March 10, 2003 injury.
7. On January 5, 2005, Defendant filed a Form 27 terminating Claimant’s indemnity benefits for her accepted work-related right knee injury, based on a determination of medical end result with 4% whole person impairment due to the accepted right knee claim.
8. On August 4, 2005, Claimant was separated from her employment at National Life.
9. To date, Claimant has received all indemnity and medical benefits associated with her right knee claim.
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CLAIM:
Claimant seeks additional medical, temporary total, permanent partial, vocational and permanent total disability benefits as a result of her work-related injury or injuries, and if successful, an award of attorney fees and costs.
OVERVIEW:
It is undisputed that Claimant suffered a work related fall in March of 2003, although the full extent of the injuries from that fall is contested. Six months later, Claimant fell again, but this time at home. Did the second fall result from the earlier, work-related fall? If so, what injuries did Claimant suffer? Is Claimant capable of regular, gainful employment? Several experts have rendered opinions on the sequelae of the falls. Because some of the opinions were obtained years after the two falls, when facts supporting the opinions differ from contemporaneous medical records, the earlier records will control.
FINDINGS OF FACT:
1. During the two-day hearing, Claimant was alert. She testified with no signs of anomia (difficulty finding words) and answered questions clearly and coherently. She exhibited no overt signs of lack of concentration or attention.
2. Before any of the events giving rise to this claim occurred, Claimant had worked running machinery at Rock of Ages for about twenty years and at National Life for about eighteen years.
3. Claimant was a responsible, reliable worker, missing time from work only for an occasional cold.
4. Claimant’s work for National Life was that of a full time set up person. She cleaned trucks, ran errands, checked the cleanliness of restrooms and ensured the proper set up of meetings. Claimant took pride in her work.
5. On March 10, 2003, Claimant fell when she was leaving work. She stubbed her toe and fell forward, landing on hands, knees and hitting her face.
6. At a doctor’s visit on April 29, 2003, Claimant reported to her primary care physician, Dr. Kristopher Jensen, that she had fallen three weeks earlier, injuring her right knee and that she had what the doctor described as “short lived loss of consciousness” at the time of the fall. Dr. Jensen noted no “obvious instability” when Claimant was walking. He also suggested that the persistent pain may have been due to her being on her feet most of the day at work.
7. In June 2003, Claimant telephoned Dr. Jensen’s office, reporting that she still had pain and intermittent swelling in her right knee.
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8. In mid June 2003, Claimant saw Dr. Stafford who noted increase in her knee pain after moving a lot of furniture at work.
9. On July 8, 2003, Claimant was seen again for knee pain and stiffness, which she reported was worse when she was working. On examination, the knee was tender but had “near full range of motion.”
10. On July 31, 2003, Claimant was seen by Charles Butterick, Physician Assistant at Green Mountain Orthopaedic Surgery, who noted a complaint of persistent knee pain. Mr. Butterick recommended physical therapy.
11. At physical therapy Claimant demonstrated weakness in her right leg. A program was set up with goals of increasing the strength and flexion in her right leg and decreasing the pain.
12. In June and June of 2003, Claimant had two instances when her right knee gave out, although she did not fall either time. The first was in the cafeteria in the National Life Building when she caught herself on the salad bar as the knee gave way. The second time was while she was cleaning a rest room, when she again caught herself and prevented a fall. Claimant recalled both instances in some detail at hearing.
13. On August 19, 2003, Claimant fell down her stairs at home. She then went to the emergency department at Copley Hospital where her complaints of left shoulder and back pain were noted. At that time, there was no evidence of head trauma.
14. Claimant fractured her left wrist in the fall at home, a diagnosis made the day of the fall. The fracture required surgery that Dr. Landvater performed on August 25, 2003. Sometime later, it was learned that she also fractured her left lower leg, the fibula.
15. On August 25, 2003, Dr. Landvater operated on Claimant’s fractured left wrist.
16. Also on August 25, 2003, the day of the left wrist surgery, Claimant saw Dr. Jensen who noted that Claimant broke her wrist in the fall and hit her head, although she had no loss of consciousness.
17. An October 21, 2003 physical therapy note documented Claimant’s description of having lost her balance when she fell down the steps at home.
18. In addition to surgery on the wrist, Claimant received medical care and physical therapy for her left wrist, leg and shoulder.
19. In November 2003, Dr. Landvater noted that Claimant was not yet to resume work.
20. In December 2003, Dr. Stephanie Landvater noted that Claimant was to return for treatment if she had continued “catching and buckling” in her left knee.
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21. On January 7, 2004, Dr. Landvater wrote that Claimant could only work four hours per day because of her work related right knee problem. Dr. Landvater reiterated that opinion on January 27th when she diagnosed a meniscal tear in Claimant’s right knee of a year’s duration.
22. In January 2004, Dr. Jensen also saw the Claimant, noting that she was alert and oriented, but making no mention of mental deficits.
23. Dr. Williams noted on a prescription pad dated January 19, 2004 that Claimant had work related fasciitis. He may have been unaware that Claimant had only been working half time for two weeks and not at all for several months before that.
24. On February 26, 2004, Claimant was in a motor vehicle accident (MVA). When she was examined a few days later, it was noted that she had a headache and some dizziness, although dizziness predated the MVA. It was also noted that she had an upper back strain.
25. By April 2004, Claimant’s headaches had resolved and she was back to work half time performing the same work she had been doing before the MVA.
26. On May 5, 2004, Dr. Landvater operated on Claimant’s right knee for what was determined to have been a work related meniscal tear from the fall in March 2003.
27. A July 16, 2004 Physical therapy note recorded Claimant’s comment that “I get dizzy since I started coming here.”
28. Dr. Landvater released Claimant to work at modified duty from August 4, 2004 to September 2, 2004, four hours a day.
29. On August 17, 2004, Claimant reported to a physical therapist that she was working four hours a day, limping a lot at work and “they don’t like it.”
30. On August 30, 2004, a therapist noted that Claimant’s pain behaviors were hindering her progress. She “declined” to perform some recommended activities. And she reported limping and being sore at work after moving some things. Yet, she also reported walking two hours at a fair the previous Sunday.
31. In September 2004, Claimant spent one day at work on the building inspection and inventory.
32. Claimant worked until August 2005 when her employment at National Life ended. During the time Claimant worked after her injury, she did less physical work, but was assigned to tasks that required more computer work. She was terminated because of her inability to perform physical functions necessary for her job, not because of any mental disabilities.
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33. Dr. Landvater placed Claimant at medical end result on November 2, 2004 with 4% whole person impairment for the injury to her right knee from the March 2003 fall at work.
34. At work, Claimant did not show any signs of problems with memory or concentration, even when she was on light duty part-time work in August of 2003.
35. Claimant had satisfactory performance evaluations at work from June 2004 through March 2005.
36. A private investigator videotape shows Claimant walking without a cane, even when it was snowing. Although slow while walking, Claimant was able to hold items in her arms and maintain her balance. She did not use a cane at the hearing, although she limped when walking.
37. One of Claimant’s activities is bingo, which she plays with eighteen cards.
Experts
38. Dr. Victor Gennaro is an orthopedic surgeon who evaluated this case for the Claimant. Based on his examination and history that Claimant’s knee was painful as she descended the stairs in August 2003, Dr. Gennaro opined that the original work related injury led to that fall. He based that opinion on the fact that she had an untreated meniscal tear in that knee at the time of the fall, a diagnosis well supported by Dr. Landvater’s records and surgical findings. However, Dr. Gennaro was not able to link the fasciitis to Claimant’s work.
39. Dr. Gennaro opined that Claimant is unable to return to gainful employment because of her cognitive difficulties, deconditioning and painful knees.
40. In March of 2006, Dr. Gennaro opined, and I find, that Claimant had not yet reached medical end result for her left shoulder and left knee, injuries she sustained when she fell down the stairs at home in August of 2003.
41. Dr. John Johansson, medical director of Vermont Center for Occupational Rehabilitation, performed an IME of the Claimant in 2004. At that time, she was working full eight hours days, with breaks as needed. Claimant provided a history to Dr. Johansson without any signs of anomia or memory problems. When he saw her again in 2005, when Claimant had been out of work with foot problems, he opined that she could return to work with good footwear.
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Functional Capacity Evaluations
42. Louise Lynch performed a functional capacity evaluation on Claimant in January 2006. Ms. Lynch understood that Claimant used a cane when she walked outside, a finding inconsistent with the videotape. After testing, Ms. Lynch concluded that Claimant had a part-time sedentary work capacity. She opined, based on Claimant’s physical limitations and her observations, that Claimant is not employable in the competitive work place.
43. Leslie Bell performed a functional capacity evaluation of the Claimant in April 2006. During that evaluation, Claimant self limited in 25% of the tasks, behavior that “influenced the outcome of the test.” Ms. Bell determined that Claimant had a sedentary work capacity for an eight-hour day based on that evaluation. Further, she opined that Claimant could navigate stairs only rarely, such as for entering a building, but should not have regular stare climbing throughout the day.
Vocational Rehabilitation Opinions
44. George Fotinopoulos, Vocational Rehabilitation (VR) Counselor, initially determined that Claimant was entitled to vocational rehabilitation services. By agreement of the parties, an extension was granted for the submission of a rehabilitation plan. Claimant now alleges that the carrier refused to pay for VR services. The carrier alleges that Mr. Fotinopoulos never followed up after the extension was granted. Regardless, Claimant never received VR services.
45. John May, Vocational Rehabilitation Counselor, performed a forensic vocational assessment in this case. He based his opinions on a private investigator videotape, functional capacity evaluations, Claimant’s vocational history, the medical records and his VR expertise. He concluded that Claimant would benefit from vocational rehabilitation services that would “enhance her employability.” He predicted that with such services, Claimant will return to gainful employment.
Expert Opinions
Head injury
46. Highly disputed is whether Claimant suffered a head injury in the fall down the stairs, and if so, whether such an injury, combined with other injuries, disables her. In support of her claim is the opinion from Dr. Solomon, based on neuropsychological examinations. Dr. Solomon is the director and founder of the Memory Clinic. He opined that Claimant meets the criteria for a traumatic brain injury (TBI) for both of her work related falls. That opinion is based on a comparison in what he determined was her pre injury IQ, school performance, and current testing. Based on cognitive deficits, he assessed her neuropsychological impairments at 25% whole person.
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47. Dr. Solomon’s opinion was based in part on an inaccurate history Claimant and her cousin gave him. For example, they described retrograde and posttraumatic amnesia that is recorded nowhere in the records. They also described a precise mechanism of the fall —falling backwards and hitting her head multiple times—that is described to Dr. Solomon for the first time in the several years since the accident.
48. Dr. Peyser, also a neuropsychologist with expertise working with patients who have had brain injuries, evaluated the Claimant for the defense. Based on the records and her expertise, Dr. Peyser found no record of posttraumatic amnesia, which is relevant to the issue of head injury. Retrograde amnesia is not relevant to the inquiry, in her opinion. Dr. Peyser, too, tested Claimant, finding no residual cognitive deficits from the falls. Claimant described cognitive losses to Dr. Peyser, yet those losses are not recorded in the records until September 2005. Claimant described difficulty finding words, yet did not demonstrate that difficulty during interview. Based on testing, Dr. Peyser attributed low or borderline results to low effort. Dr, Peyser concluded that, with the exception of Claimant’s self-reports, “there is no evidence …that Ms. Fisher suffered a head injury with significant cognitive deficits to interfere with her function on the job or in daily life.”
Attorney fees and costs
49. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs, including $900 for Dr. Solomon’s record review and $1,000 for Dr. Gennaro’s two-hour preparation and one hour of deposition testimony.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962). This Claimant must establish by sufficient credible evidence the character and extent of the injury, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Where the claimant’s injury is obscure and the layperson could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979).
Causation of Second fall
3. Every natural consequence of a work related injury is also compensable. See Fleury v. Legion Ins., Opinion No. 43-02WC (2002) (citing 1 Larson’s Workers’ Compensation Law. § 10.00).
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4. Three factors convince me that it is more probable than not that the work related injury led to the fall at home. First, Claimant testified convincingly that her knee had given way twice before the fall at home. Second, at the time of the fall she had an untreated torn meniscus. Third, an orthopedic expert familiar with the signs and symptoms of a torn meniscus, Dr. Gennaro, attributed the fall to the untreated tear.
5. As a result of the second fall, Claimant injured her head, left wrist, shoulder, leg and her back.
6. Any head injury she may have sustained has since resolved without residual deficits, a conclusion well supported by Dr. Peyser’s opinion. Claimant’s work performance after that fall and her embellished history undercut the opinion proffered by Dr. Solomon to the contrary. Therefore, Claimant is not entitled to permanent partial disability benefits for a traumatic brain injury.
7. To prevail on her claim for permanent total disability (PTD), Claimant must prove that a work related injury or injuries caused impairments that render her unable to sustain regular gainful employment. Her age, experience, training, education, occupation and mental capacity are all factors relevant to a finding of PTD. 21 V.S.A. § 644(b). WC Rule 11.3100. One who is permanently and totally disabled must have no reasonable prospect of finding regular employment.” § 645.
8. When one is unable to return to work for which she has had previous training or experience, the worker is entitled to vocational rehabilitation services. 21 V.S.A. § 641(a).
9. Claimant has failed to prove that she is permanently and totally disabled. Although she may not have had the most successful academic record as a child, Claimant has proven herself a competent, affable and dedicated worker for her adult life. It is unfortunate that employment with National Life did not work out for her. It is also unfortunate that vocational rehabilitation services were not provided. However, she is capable of participating in vocational rehabilitation.
10. Therefore, Claimant is entitled to vocational rehabilitation benefits. She is also entitled to temporary total disability retroactive to their discontinuance until she reaches medical end result for the physical injuries incurred in the work related fall. Interest on those benefits must be calculated from the date those benefits were due until paid. 21 V.S.A. § 664.
11. Pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000, a prevailing Claimant is entitled to a mandatory award of necessary costs and discretionary award of reasonable attorney fees when she prevails. Claimant submitted evidence that her attorneys worked 170.3 hours on this claim and paralegals 5.8 hours. She incurred $6,629.78 in necessary costs.
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12. The fees requested are awarded at $90 .00 per hour for attorney time under WC Rule 10.1210 and $60.00 per hour for paralegal time. C. C. v. Eveready Battery Co, Opinion No. 38-05 (2005). Although Claimant has not prevailed on the permanent total disability claim, she has proven that the second fall is compensable, a highly contested claim. She has prevailed on her claim for additional temporary total disability benefits. The hours her attorney worked to achieve this success were reasonable.
13. The costs associated with the unnecessary aspects of the claim, including Dr. Solomon’s fees, must be subtracted from the total cost request. In other respects, the costs were necessary to the successful aspects of the claim.
Summary
14. In sum, Claimant’s August 19, 2003 fall at home was a compensable result of her March 10, 2003 work related injury. As a result of that fall, Claimant suffered a head injury that has resolved as well as shoulder and leg injuries that have not yet reached medical end result. She is entitled to temporary total disability benefits until she reaches medical end result or successfully returns to work. 21 V.S.A. § 642; 643a. Claimant is not permanently and totally disabled as a result of her work related injury or injuries.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim for permanent total disability benefits is DENIED. However, Defendant is ORDERED to:
• Provide vocational rehabilitation benefits to Claimant;
• Pay TTD retroactive to the discontinuance with interest accruing from the date payment would have been made had the second fall been accepted until paid;
• Pay attorney fees and costs:
• Otherwise adjust the claim for the second fall, including payment of permanent partial disability benefits when Claimant reaches medical end result.
Dated at Montpelier, Vermont this 17th day of November 2006
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

J. C. v. Eveready Battery Company (April 3, 2007)

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J. C. v. Eveready Battery Company (April 3, 2007)

STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No. 12-07WC
By: Phyllis Severance Phillips, Esq.
v. Hearing Officer
For: Patricia Moulton Powden
Eveready Battery Company Commissioner
State File No. T-12816
OPINION AND ORDER
Hearing held in Montpelier on February 2, 2007
Record closed on March 4, 2007
APPEARANCES:
Claimant, pro se
John Valente, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant’s ongoing chiropractic treatment is compensable under 21 V.S.A. §640(a).
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit 1: Billing statement from Todd Faxvog, D.C.
Claimant’s Exhibit 2: Receipt for postage
Claimant’s Exhibit 3: Excellent Attendance awards for 2003 and 2004
Claimant’s Exhibit 4: Photographs
Claimant’s Exhibit 5 (admitted following the hearing): Diagrams of stretching/strengthening exercises
CLAIM:
Medical benefits under 21 V.S.A. §640(a)
Costs under 21 V.S.A. §678
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FINDINGS OF FACT:
1. Claimant has been employed by Defendant for more than 36 years. On January 13, 2003 she suffered a repetitive stress injury to her neck and left shoulder, arm and hand, causally related to her job as a forklift operator for Defendant. The forklift was not ergonomically designed and in order to operate it Claimant had to turn and twist her neck, shoulders and arms continuously.
2. Defendant accepted Claimant’s injury as compensable and paid benefits accordingly.
3. Claimant treated for her injury with Verne Backus, M.D. Her symptoms included cervical pain radiating into her left shoulder, with numbness down her left arm and into her left fingers. Dr. Backus diagnosed a left C-6 radiculopathy and prescribed conservative treatment, including physical therapy, anti-inflammatories, nerve testing and epidural steroid injections.
4. Dr. Backus also referred Claimant to Nancy Binter, M.D., a neurosurgeon, for consideration of surgical treatment options. Dr. Binter examined Claimant in June 2003 and recommended further conservative management, including work hardening and increased strength training. At Dr. Binter’s referral, during the summer of 2003 Claimant attended a work conditioning program on a twice-weekly basis for four weeks. At the end of the program, she was released to return to her forklift driving job for up to 8 hours per day.
5. Concurrent with the treatment directed by Dr. Backus, Claimant also treated with Todd Faxvog, D.C., a chiropractor. Dr. Faxvog’s modalities included cervical adjustments, manual cervical traction, electric muscle stimulation, hot packs and deep tissue massage.
6. The frequency of Dr. Faxvog’s treatments has varied. During the spring of 2003 he treated Claimant at least 2 or 3 times each week. Treatment frequency then tapered off to once or twice per month until January 2004. At that point, treatment frequency spiked again, and Claimant resumed chiropractic visits on at least a weekly basis until April 2004. In May 2004 treatment frequency diminished to about two times per month and remained at that level throughout 2004. Treatment frequency in 2005 was approximately one visit every 3 or 4 weeks. Treatment frequency in 2006 was approximately one visit every 4 to 6 weeks.
7. Claimant’s symptoms improved with conservative treatment. In May 2004 she was reassigned to a new position, one that was far less stressful to her neck. This too helped ameliorate her condition. Her symptoms have never fully resolved, however, and she feels knots and pain in her neck every day.
8. In May 2004 Dr. Backus determined that Claimant had reached end medical result. He recommended that Claimant taper off her chiropractic treatments to stop “over a relatively short period of time.”
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9. In July 2004 Dr. Backus rated Claimant with a 16% whole person permanent impairment referable to her cervical spine injury. Dr. Backus’ ultimate diagnosis was chronic left C-6 radiculopathy superimposed on cervical spondylosis, particularly at that level. He prescribed ongoing chronic pain medications and reiterated his recommendation that Claimant continue to taper off her chiropractic treatment.
10. Claimant returned to see Dr. Backus in March 2005. She continued to suffer from neck and shoulder pain, and felt unable to taper off Dr. Faxvog’s chiropractic treatment beyond every other week. Dr. Backus referred her to Mary Flimlin, M.D., a physiatrist, for possible chronic pain treatment recommendations.
11. Dr. Flimlin examined Claimant in July, August and December 2005, and again in April 2006. Her treatment recommendations included chronic pain medications, a possible TENS unit trial and continued aerobic exercise and home exercise program for stretching and strengthening.
12. As to ongoing chiropractic treatment, Dr. Flimlin advised that chiropractic interventions should include only manual traction with deep tissue massage and myofascial release, but no cervical adjustments. Regarding frequency of chiropractic treatment, Dr. Flimlin concurred with Dr. Backus’ recommendation that it be tapered off gradually, first to once monthly and then to every other month. As of April 2006, Dr. Flimlin advised that chiropractic treatment be discontinued altogether within 3 to 4 months.
13. In January 2006 Donald Kinley, M.D.,an orthopedist, performed a medical records review at Defendant’s request. Dr. Kinley opined that Claimant’s treatment to date had been reasonable, but that further passive therapy, including chiropractic manipulation, would not be of any benefit. Rather, Dr. Kinley believed that Claimant should be on an active aerobic exercise program that would allow her to strengthen her cervical spine and upper extremities.
14. Dr. Faxvog testified on Claimant’s behalf at the hearing. He explained that his treatment is palliative, not curative. The focus is on stretching rather than strengthening. In Dr. Faxvog’s opinion, stretching the neck muscles increases their mobility and prevents them from splinting so that the nerve root will not be compressed.
15. Although there may be other things that Claimant could do to increase cervical mobility and decrease pain, according to Dr. Faxvog chiropractic treatment is the one thing that has given her the most relief.
16. Dr. Faxvog anticipates that Claimant likely will need ongoing chiropractic care for the foreseeable future. Without it, she is likely to suffer more flare-ups of neck pain and these ultimately may require her to miss work as a result. Dr. Faxvog’s goal is to relieve Claimant’s pain and maintain her symptoms at a manageable level so that she can continue to work.
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17. At Defendant’s request, in May 2006 Claimant underwent an independent medical evaluation with John Johansson, D.O., an osteopath. Osteopathic physicians perform a variety of manual therapy techniques, some of which are similar to chiropractic adjustments. Dr. Johansson testified on Defendant’s behalf at the hearing.
18. Dr. Johansson diagnosed Claimant with chronic cervical degenerative disc disease with subjective elements of C6 radiculopathy but no clinical correlation. In Dr. Johansson’s opinion, Claimant’s current symptoms relate to a combination of her work injury and ongoing and advancing degenerative disc disease.
19. According to Dr. Johansson, repeated chiropractic manipulations are not medically indicated for patients with degenerative disc disease and, in fact, are potentially harmful. Repetitive manipulations result in over-stretched ligaments and lax facet joints. Lax facet joints can complicate an underlying degenerative disc condition and cause further problems.
20. Contrary to Dr. Faxvog’s opinion that Claimant’s symptoms are best addressed by techniques that increase cervical mobility, Dr. Johansson believes that the most effective long-term treatment must focus on strengthening rather than stretching. According to Dr. Johansson, when a muscle is weak it is more easily fatigued. Muscle fatigue leads to muscle tightness, which leads to knotting up and decreased mobility. Chiropractic adjustments that stretch the muscle may provide short-term symptom relief, but are harmful in the long term. Strengthening the muscle addresses the underlying cause and therefore is both more effective and less harmful over time.
21. Dr. Johansson would recommend heat and medications for short-term relief of Claimant’s symptoms.
22. Claimant has a home exercise program, as prescribed by her physical therapists in accordance with both Dr. Backus’ and Dr. Binter’s treatment recommendations. The program involves both stretching and strengthening exercises. Claimant testified that she does stretching exercises two or three times per week. It is unclear to what extent she performs the strengthening exercises.
23. Claimant has never missed any time from work as a result of her injury. She does not have any modified-duty work restrictions. Her work station at her current job assignment has been ergonomically designed and does not require her to maintain positions that aggravate her symptoms. Outside of work, Claimant continues to be active, and engages in activities such as cross-country skiing, snow shoeing and swimming. In all of these activities, and with prolonged sitting or driving as well, Claimant is never pain-free, but the pain is not disabling.
24. With both Dr. Kinley’s and Dr. Johansson’s reports as support, Defendant filed its notice of intention to discontinue payment for Claimant’s ongoing chiropractic care on September 21, 2006. The Department approved the discontinuance on October 2, 2006. Since that time, Claimant has incurred a total of $1,142.77 in charges for chiropractic treatment. Claimant testified that but for the discontinuance she would continue to treat with Dr. Faxvog every 6 to 8 weeks.
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25. Claimant introduced evidence of costs totaling $4.05.
CONCLUSIONS OF LAW:
1. Under Vermont’s Workers’ Compensation Act, an employer is obligated to provide reasonable surgical, medical and nursing services when an injury arises out of and in the course of employment. 21 V.S.A. §640(a). Chiropractic treatment is included in that obligation. Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000); Smith v. Whetstone Log Homes, Opinion No. 70-96WC (Nov. 25, 1996) and cases cited therein.
2. Once a claimant has established that she is entitled to benefits under the Act, the burden shifts to the employer to establish the propriety of either ceasing or denying further compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974). At issue here, therefore, is whether the medical evidence supports Defendant’s position that it is no longer responsible for Claimant’s chiropractic care.
3. Palliative care is compensable under the Act even after a claimant has reached end medical result if it is reasonable and necessary and causally related to the compensable work injury. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 532 (1996); Gagne v. Verdelle Village, Opinion No. 35-04WC (Aug. 25, 2004); Quinn v. Emery Worldwide, supra.
4. In determining what is reasonable under §640(a), the decisive factor is not what the claimant desires or what she believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s symptoms and maintain her functional abilities. Moyer v. Miller Building Systems, Opinion No. 22-01WC (July 20, 2001); Colbert v. Starr Farm Nursing Home, Opinion No. 5-01WC (Feb. 26, 2001); Quinn v. Emery Worldwide, supra.
5. To evaluate the expert evidence and choose between conflicting expert opinions, the Department traditionally looks to the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience. Quinn v. Emery Worldwide, supra; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998).
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6. In the context of the current claim, examining these five factors does not yield any clear-cut result. All of the experts provided evidence that was clear, thorough and objectively supported by relevant treatment records. All are well qualified in their respective fields, whether orthopedic, chiropractic, neurological or osteopathic. With the exception of Dr. Kinley, whose opinion was based on a medical records review only, all conducted comprehensive examinations of Claimant. Last, as to patient-provider relationship, Drs. Faxvog, Backus and Flimlin all maintained one with Claimant. Given that both Drs. Backus and Flimlin shared the opinions of Drs. Kinley and Johansson as to ongoing chiropractic care, one cannot either add or subtract weight from the latter opinions solely because they were not treatment providers.
7. The disputed issue here derives from a professional difference of opinion as to the efficacy of long-term chiropractic care and repetitive chiropractic manipulations as a reasonable, necessary and effective option for controlling pain and maintaining functionality. Dr. Faxvog believes strongly that the best palliative treatment for Claimant should include chiropractic adjustments to stretch the neck muscles and increase mobility. In contrast, Drs. Backus, Flimlin, Kinley and Johansson believe that the long-term focus of Claimant’s palliative care should be on strengthening the muscles so as to reduce fatigue, decrease tightness and increase mobility in that way.
8. Dr. Johansson’s testimony that by stretching ligaments that are already lax, repetitive chiropractic manipulations cause long-term harm to patients with degenerative conditions such as Claimant’s is persuasive. A palliative treatment that provides temporary relief of symptoms and maintains functionality is reasonable, but only if it does not cause further harm over time. Quinn v. Emery Worldwide, supra.
9. It is clear from the medical records and from her own testimony that Claimant has never invested fully in the muscle strengthening approach advocated by Drs. Backus, Flimlin, Kinley and Johansson. Her efforts in that regard have been temporary, sporadic and short-lived. In contrast, her devotion to Dr. Faxvog’s passive stretching technique has become so strong that she now views his treatment as both essential and irreplaceable. While it is her right to choose the treatment approach with which she feels most comfortable, under the circumstances it is not Defendant’s responsibility to fund it.
10. Defendant has sustained its burden of proof that it is not liable under 21 V.S.A. §640(a) to continue to pay for Claimant’s chiropractic treatment.
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ORDER:
Accordingly, based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for medical benefits under 21 V.S.A. §640(a) is DENIED.
Because Claimant has not prevailed, her claim for costs associated with this action is DENIED.
Dated at Montpelier, Vermont this 3rd day of April 2007.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

Rebecca Collins v. State of Vermont (August 8, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Rebecca Collins Opinion No. 22-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont For: Anne M. Noonan
Commissioner
State File No. AA-03636 OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 29, 2011
Record closed on April 29, 2011
APPEARANCES:
Kelly Massicotte Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s right hip injury causally related to her April 13, 2009 work accident?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Weiss consultation, June 16, 2009
Claimant’s Exhibit 2: Curriculum vitae, George White, M.D.
Claimant’s Exhibit 3: Excerpted sections of AMA Guides to the Evaluation of
Permanent Impairment, 5th ed.
Defendant’s Exhibit A: Deposition of John Johansson, D.O., November 30,
2010
Defendant’s Exhibit B: Curriculum vitae, John Johansson, D.O.
Defendant’s Exhibit C: Medical records prior to April 13, 2009
Defendant’s Exhibit D: M. Groh and J. Herrera, A Comprehensive Review of
Labral Tears, Current Review of Musculoskeletal
Medicine 2:105-117 (2009)
Defendant’s Exhibit E: Denial of Workers’ Compensation Benefits (Form 2)
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as those terms are defined in Vermont Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant works for Defendant as a probation and parole officer. Her duties include supervising convicted offenders on parole, probation and house arrest status. This often involves conducting field checks on offenders at their homes.
4. Claimant is a physically active person. She enjoys running, golf, tennis hiking, biking and other activities.
Claimant’s April 13, 2009 Work Injury
5. On April 13, 2009 Claimant traveled in her car to Milton, Vermont to perform a field check at a client’s home. Upon arrival she parked in the driveway, which was somewhat slanted, then exited the car and proceeded to the house. She knocked on the door, and as she was waiting for the client to open it she glanced back and saw that her car was rolling backwards down the driveway. Claimant ran to her car and positioned herself behind it, with her left shoulder against the rear end and her right leg braced as an anchor, but the car kept rolling. Over the next few moments, she tried repeatedly to re-anchor her right leg, but as the car picked up speed its force continued to jerk her down the driveway. Finally she stepped aside and watched as the car rolled across the road, through a ditch and into a neighbor’s yard.
6. Claimant was understandably shaken by this incident. Nevertheless, she retrieved her car and drove back to her office. Her right leg was hurting and shaking, in what she described as a “weird body sensation.” Claimant reported the incident to her supervisor, worked the remainder of the day, then went home and iced her ankle, which seemed to be hurting the most.
7. The next day Claimant presented to her primary care provider, Dr. Dill, complaining of right ankle pain. Dr. Dill diagnosed a right ankle sprain and prescribed ice, elevation and an air cast for up to one month. She also advised Claimant not to run for two weeks.
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8. Dr. Dill’s office note does not reflect that Claimant complained of any pain in her right hip at the time of her April 14th examination. Claimant does not recall if she did so or not. She was focused on her right ankle at the time because that was where she was experiencing the most pain.
9. In keeping with Dr. Dill’s advice, Claimant refrained from running until early May. By then her ankle pain had improved and so she resumed her routine. With running, however, Claimant noticed that she was experiencing a deep, sharp pain in her right hip and groin.
10. Claimant’s hip pain continued through May and June 2009. During this time she self-treated with ice and ibuprofen. She also altered her exercise routine by running more slowly and for less distance. Regardless of her activity level, however, her pain did not abate. Getting into and out of her car was painful, as was walking up and down inclines and arising from a sitting to a standing position.
11. Claimant did not play golf at all in May 2009. In June she played three or four times. Her hip bothered her when she did so, but the activity did not make it any better or worse.
12. On June 16, 2009 Claimant consulted with a pulmonologist, Dr. Weiss, for treatment of a persistent cough. According to Dr. Weiss’ office note, Claimant reported that she had been experiencing right hip pain for the past five weeks, which significantly increased whenever she coughed. This disclosure dates the onset of Claimant’s hip pain back to mid-May 2009, approximately four weeks after the April 13, 2009 incident and within a week or so of when she resumed running.
13. On July 6, 2009 Claimant returned to see Dr. Dill. This time she reported that she had been experiencing right hip pain since the April 13th incident with her car. Claimant reported that she did not think golf aggravated her hip, but that she was a “cripple” when she ran. Dr. Dill recommended an orthopedic evaluation.
14. Coincidentally, on the same day that she saw Dr. Dill Claimant also had a previously scheduled appointment with her orthopedist, Dr. Frenzen, who was following her for an unrelated issue. Dr. Frenzen suspected that the mechanism of Claimant’s April 2009 injury, which involved torque, or rotation against resistance, might have caused a labral tear in her hip.
15. Diagnostic imaging studies confirmed Dr. Frenzen’s suspicions. The studies revealed that that the labrum in Claimant’s hip – the rim of cartilage that provides support and stability to the joint – had either torn or separated from the acetabulum, or socket part of the hip. Claimant underwent surgery to repair the separation on October 15, 2009. Thereafter, she was totally disabled from working through November 10, 2009. At that point she returned to work part-time (four hours per day). On December 2, 2009 she returned to full-time, full-duty work.
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Expert Medical Opinions as to Causation
16. Both parties presented expert medical testimony as to the causal relationship, if any, between the April 2009 incident and the labral separation in Claimant’s hip. Dr. White concluded that such a relationship existed. Dr. Johansson concluded that Claimant’s recreational activities were a more likely cause.
(a) Dr. White
20. Dr. White is board certified in occupational medicine. He has performed thousands of independent medical evaluations, for both claimants and employers. He also is well experienced in rating permanent impairment. Dr. White saw Claimant for an independent medical examination on August 30, 2010. He also reviewed her medical records and diagnostic imaging studies.
21. To a reasonable degree of medical certainty, Dr. White concluded that Claimant’s right hip injury was causally related to the April 2009 incident. His opinion was based primarily on the mechanism of her injury on that day. Even as she attempted to use her right leg as an anchor, the car kept rolling backwards. This forced her to constantly reposition her leg as it was jerked repeatedly out of place.
22. Dr. White found support for his causation theory in the surgical findings. These revealed only one localized area of injury in Claimant’s right hip, in the upper front part of the joint. Had the hip been arthritic, there likely would have been evidence of degeneration throughout the joint.
23. Dr. White discredited Claimant’s exercise activities, either running or golf, as causative factors. Based on his review of the sports medicine literature, neither golfers nor runners are at increased risk for labral injuries to the hip. Tears of this type are not easily recognized, and symptoms can be vague and difficult to diagnose. It is neither unusual nor inappropriate, therefore, for a person to continue to engage in exercise even with a labral tear. As Dr. White noted, Mike Lowell, a professional baseball player, played an entire season with a tear in his labrum. A recreational athlete will not inflict further damage by continuing with activities to the extent that he or she can tolerate the discomfort.
24. Dr. White also was not troubled by the fact that Claimant did not complain of hip pain until some weeks after the April 2009 incident. Initially she felt the most pain in her ankle, and thus was distracted from her hip pain until the ankle began to improve. In Dr. White’s experience, this type of reaction is not uncommon among patients. Once she became aware of her hip symptoms, Claimant gave a consistent history of her complaints to other providers. Given this history, and with no prior history of right hip pain or injury, the April 2009 incident thus became the most likely causative event.
25. I find Dr. White’s analysis as to the causation of Claimant’s labral separation to be credible in all respects.
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26. According to Dr. White, surgery is the treatment of choice for labral injuries of the type Claimant suffered. He determined that Claimant had reached an end medical result as of the date of his examination, August 30, 2010. Dr. White rated the extent of Claimant’s permanent impairment at 8% whole person.
(b) Dr. Johansson
27. Dr. Johansson, an osteopath, is board certified in family medicine. His current practice is approximately 75% clinical work and 25% forensic work. At Defendant’s request, Dr. Johansson saw Claimant for an independent medical examination on December 1, 2009. He also reviewed Claimant’s medical records, though he acknowledged that this was not a “totally comprehensive review.”
28. According to Dr. Johansson, the medical evidence does not support a causal relationship between the April 2009 incident and Claimant’s hip injury to the required degree of medical certainty. In reaching this conclusion, Dr. Johansson pointed to two factors – first, the fact that Claimant did not complain of hip pain until some time after the April 2009 incident, and second, the fact that she was an avid runner, golfer and recreational athlete. According to Dr. Johansson, these activities provided a more likely explanation for Claimant’s labral separation than the April 2009 incident.
29. As to the first factor, Dr. Johansson pointed to Dr. Dill’s July 6, 2009 office note, almost three months after the April 2009 incident, as documenting Claimant’s first complaint of hip pain. In fact, however, Dr. Weiss’ June 16, 2009 note provides the first indication of hip pain. Given the emphasis that Dr. Johansson placed on the timing of Claimant’s first report of hip pain, for him to have missed this reference is troublesome.
30. Dr. Johansson also found significant the fact that even after the April 2009 incident Claimant still was able to engage in running, hiking and golf activities. In support of his opinion that these activities most likely caused or contributed to Claimant’s labral separation, Dr. Johansson referenced a medical journal article that examined the cause of such injuries.1 According to the authors of that article, the area of the hip in which Claimant’s tear occurred is subjected to greater stress than other regions, which explains why more tears occur there. At the same time, however, the authors conceded that trauma can cause tears in that region as well. With that in mind, I find that the article fails to provide substantial guidance as to the cause of Claimant’s tear.
31. Dr. Johansson acknowledged that the mechanism of injury that Claimant described in conjunction with the April 2009 incident could cause the labral separation that her surgery later revealed. He maintained that Claimant’s recreational activities were a more likely cause, however.
32. Dr. Johansson did not perform a permanent impairment rating referable to Claimant’s hip injury.
1 M. Groh and J. Herrera, A Comprehensive Review of Labral Tears, Current Review of Musculoskeletal Medicine 2:105-117 (2009).
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Procedural History of Current Claim
33. Upon learning of the April 2009 incident, Defendant accepted Claimant’s right ankle sprain as compensable and paid medical benefits accordingly.
34. Claimant did not file a claim for benefits referable to her hip injury until mid-August 2009. She attributed the delay first, to her attempts to self-treat her symptoms and second, to being distracted by other personal issues with which she was struggling during that summer. I find her explanation in this regard to be credible.
35. In September 2009 Defendant denied the compensability of Claimant’s hip injury as not causally related to the April 2009 incident. Claimant appealed the denial. Upon reviewing the available medical evidence, on September 30, 2009 the Department determined that Defendant’s denial was not reasonably supported. It ordered Defendant to pay temporary total disability and medical benefits accordingly.
36. In early October, Defendant noticed Claimant’s deposition. Claimant was unrepresented at the time; she had contacted her current attorney but had not yet received definitive word back as to whether the attorney would take the case. Claimant telephoned Defendant’s attorney a day or two before the scheduled deposition and asked that it be rescheduled until she could confirm legal representation. It is unclear whether Defendant’s attorney responded. Shortly thereafter, Claimant’s current attorney decided to take the case. She also contacted Defendant’s attorney as to rescheduling the deposition but again, it is unclear whether Defendant’s attorney responded.
37. Claimant did not appear for the noticed deposition. On those grounds, Defendant filed a Notice of Intention to Discontinue Payments (Form 27), in which it sought to discontinue all workers’ compensation benefits effective October 16, 2009. As the Department did not rule on the discontinuance, Defendant terminated benefits accordingly.
38. In December 2009 Defendant filed a second Form 27, this time discontinuing medical benefits on the basis of Dr. Johansson’s conclusion that Claimant’s hip injury was not causally related to the April 2009 incident. The Department approved this discontinuance effective December 29, 2009.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. The disputed issue in this claim is one of causation. Claimant asserts that her right hip injury resulted from the April 13, 2009 incident. Defendant argues that the injury was caused by the physically active lifestyle she has maintained for some time.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Both of the experts here were independent medical examiners, not treating physicians. Both examined all of the pertinent records, and both were qualified to render opinions as to causal relationship.
5. Dr. Johansson admitted that his review of Claimant’s medical records was not “totally comprehensive,” and this might explain why he missed Dr. Weiss’ June 16, 2009 reference to Claimant’s report of hip pain. Dr. White’s evaluation contained no such gaps. On those grounds I conclude that it was more comprehensive.
6. I conclude as well that Dr. White’s opinion was clearer, more thorough and better supported than Dr. Johansson’s. He appropriately analyzed the mechanism of Claimant’s injury in the context of her non-contributory medical history. He also reviewed the medical literature and found no studies establishing any connection between labral tears and either running or golfing. Having done so, he persuasively established the causal connection between the April 2009 incident and Claimant’s hip injury.
7. I conclude that Claimant has sustained her burden of proving that her right hip injury was caused by the April 2009 incident and is therefore compensable.
8. As for Defendant’s discontinuance of benefits on account of Claimant’s failure to attend her noticed deposition, neither the statute nor the rules justify this. The statute does allow for benefits to be suspended when a claimant fails to attend an independent medical examination. 21 V.S.A. §655 and Workers’ Compensation Rule 14.5500. Even were I to interpret this section to encompass a claimant’s failure to attend a deposition, however, the circumstances here would not justify Defendant’s discontinuance. Claimant’s failure here occurred at a very early stage of the proceedings, with prior notice to Defendant’s attorney and with no demonstrable prejudice resulting.
9. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e) Claimant shall have 30 days from the date of this opinion to submit her claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from October 15, 2009 through November 11, 2009, in accordance with 21 V.S.A. §642;
2. Temporary partial disability benefits from November 12, 2009 through December 2, 2009, in accordance with 21 V.S.A. §646;
3. Permanent partial disability benefits as compensation for an 8% whole person impairment referable to the right hip, in accordance with 21 V.S.A. §648;
4. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
5. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s right hip injury, in accordance with 21 V.S.A. §640; and
6. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of August 2011.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Shauna LaBelle v. Mylan Technologies (February 8, 2010)

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

Shauna LaBelle v. Mylan Technologies (February 8, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Shauna LaBelle Opinion No. 05-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Mylan Technologies
For: Patricia Moulton Powden
Commissioner
State File No. AA-02370
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT1
ATTORNEYS:
Beth Robinson, Esq., for Claimant
Kelly Smith, Esq., for Defendant
ISSUE PRESENTED:
Is there a genuine issue of material fact concerning whether Claimant suffered a compensable work-related injury?
FINDINGS OF FACT:
Considering the facts in the light most favorable to the non-moving party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. Claimant worked in Defendant’s packaging department. Her job involved different activities at more than one work station. She walked from station to station in order to perform these job requirements.
2. On January 6, 2009 Claimant was working her usual job when she felt a sudden pain in her right lower side and lower back. No one present witnessed the moment of injury. After a short recuperative period Claimant finished her shift and went home.
3. Claimant saw Defendant’s medical providers for her injury, where she received treatment and periodic work restrictions. Claimant described the physical movements that triggered the onset of her symptoms as an act of turning on one foot to step with the other. Defendant’s video shows Claimant performing such movements, and others, at one of her work stations. The same video shows the obvious onset of Claimant’s symptoms while she is walking, ostensibly from one work station to another. Claimant also told two
1 Although Claimant initially brought this motion Defendant responded in like manner seeking summary judgment in its favor. This will be treated as cross motions for summary judgment.
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different medical providers on two different dates respectively that her symptoms occurred while walking.
4. On April 24, 2009 Claimant saw Dr. Barnum, an orthopedist. Claimant told Dr. Barnum that she was lifting, turning and stepping when her symptoms came on suddenly. Based on this specific description of the mechanics of Claimant’s injury, Dr. Barnum concluded that her symptoms probably were related to her work activities. Dr. Barnum believed that Claimant had exacerbated a prior injury she suffered in 2006 as a result of a motor vehicle accident.2
5. Claimant also saw Robert Hemond, a physician’s assistant at the Spine Institute of New England. Mr. Hemond noted possible disc abnormalities at L4-5. Mr. Hemond was aware of Claimant’s 2006 auto accident injuries but opined that those injuries were unrelated to Claimant’s current symptoms.
6. According to Paul Oszurek, who works in Defendant’s safety department, Claimant told him that she had been having recurrent hip issues related to her prior car accident. Both the content and date of this conversation are uncertain.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (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).
2. In support of her position Claimant argues that her account of the injury event is credible. She also relies on Defendant’s video, which she argues demonstrates irrefutably that her injury occurred at work, and Dr. Barnum’s opinion that her injury was work-related.
3. Defendant, on the other hand, asserts that Claimant’s account of how her injury occurred is inconsistent and therefore not credible. It argues that there is a legal difference between an injury that occurs while simultaneously lifting, turning and stepping at a work station, as Dr. Barnum assumed, and one that occurs while merely walking across the floor from one work station to another, as Claimant described at other times and as it alleges its video shows. In Defendant’s view, while the former description may give rise to a compensable claim, the latter one reflects an idiopathic injury which may not be compensable under Vermont law.
2 Claimant fractured her pelvis, hip and ribs in that accident. Her treatment had concluded by late 2006.
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4. To establish a compensable claim under Vermont’s workers’ compensation law, a claimant must show both that the accident giving rise to his or her injury occurred “in the course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161 Vt. 213, 214 (1993); Carlson v. Experian Information Solutions, Op. No. 23-08WC (June 5, 2008); Boucher v. Peerless Insurance Co. Op. No. 16-08WC (April 16, 2008); 21 V.S.A. §618.
5. An injury occurs in the course of employment “when it occurs within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
6. An injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called “positional risk” analysis lays responsibility on an employer when an employee’s injury would not have occurred “but for” the employment and the worker’s position at work. Id.
7. There is no dispute in the current claim as to the “in the course of” requirement. Claimant’s injury occurred while she was at Defendant’s work place, performing the job duties she was hired to do at the time she was supposed to be doing them.
8. The dispute here concerns the “arising out of” component, and it is driven by this question: Was Claimant’s injury caused by her work or, alternatively, was it the consequence of a medical condition that was purely personal to her, that is, an idiopathic condition? The answer to that question depends on the credibility of the evidence offered by each party in support of its position.
9. Dr. Barnum’s medical opinion is as reliable as the factual premise upon which it is based. In stating that Claimant’s work contributed to her injury, Dr. Barnum relied on Claimant’s description of her work activity at the very onset of her symptoms, specifically, that she was at that moment lifting, turning and stepping simultaneously at one of her work stations. However, this description of the injury event is countered by a co-worker, other medical reports and Defendant’s video.
10. Mr. Oszurek’s assertion that Claimant had complained about recurring back pain prior to the instant work injury points to a non-work-related cause for her current symptoms. Claimant strongly denies Mr. Oszurek’s claim. She questions both the content of his discussion with her and its timing.
11. When Claimant herself apparently stated to two separate medical providers that she was walking when her symptoms first appeared, rather than lifting, turning and stepping, she created a conflict in the medical reports of her account. These conflicts are not de minimis, as Claimant argues. Taken together, they raise questions of material fact relative to both causation and compensability.
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12. Defendant’s video of Claimant at work is particularly revealing. Claimant does indeed lift, turn and step in close sequence at one of her work stations. Her sudden onset of pain, however, is not apparent at this work station. Rather, she first displays pain while walking toward a different work station. This is not how Claimant described her injury to Dr. Barnum. Claimant may have undermined the value of Dr. Barnum’s causation opinion when she provided him with an account that may not be entirely accurate. Credible evidence concerning the circumstances that led to Claimant’s injury is essential to Dr. Barnum’s opinion and may bear directly on whether her injury is compensable under Vermont law.
13. Had the evidence been uncontroverted that Claimant was injured while lifting, turning and stepping at her work station, her motion for summary judgment might merit stronger consideration. The fact that it might have occurred while merely walking, however, casts both legal and factual doubt on her claim. While Dr. Barnum did find Claimant’s work to be the cause of her injury, he did so based on a factual account at odds with other evidence in the case. If presented with other facts, Dr. Barnum might be compelled to change his opinion.
14. For the purpose of these motions it is not my function to make findings of fact. Fritzeen v. Trudell Consulting Eng’rs, Inc., 170 Vt. 632 (2000). I do find, however, that genuine issues of material fact remain in this case. Where that is so, summary judgment may not serve as a substitute for a determination on the merits. Id.; Human Rights Commission v. Benevolent & Protective Order of Elks, 2003 VT 104, (2003).
ORDER:
For the foregoing reasons, both Claimant’s and Defendant’s Motions for Summary Judgment are DENIED.
DATED at Montpelier, Vermont this 8th 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.

Jack Lehneman v. Town of Colchester (March 13, 2012)

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Jack Lehneman v. Town of Colchester (March 13, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jack Lehneman Opinion No. 10-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Town of Colchester
For: Anne M. Noonan
Commissioner
State File No. CC-2409
RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
APPEARANCES:
David Mickenberg, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s dental injury arise out of and in the course of his employment for Defendant?
EXHIBITS:
Claimant’s Exhibit 1: Affidavit of Jack Lehneman, December 6, 2011
FINDINGS OF FACT:
The following facts are undisputed:1
1. Claimant is a 40-year-old veteran police officer who has served the communities of both Milton and Colchester.
2. On March 24, 2011 Claimant was working a 12-hour shift as a police officer for Defendant.
1 Defendant correctly observes that Claimant has failed to provide the “separate, short and concise” statement of material facts about which he contends there is no dispute, as required by V.R.C.P. 56(c)(2). He has, however, submitted his own sworn affidavit, which essentially serves the same purpose. For its part, Defendant has failed to submit its own separate statement of the material facts that it alleges are genuinely disputed, as V.R.C.P. 56(c)(2) also requires. While neither of these procedural defects precludes me from considering the parties’ substantive arguments, closer adherence to the requirements of Rule 56 would have been preferable. See, Webb v. LeClair, 2007 VT 65; Estate of Carr v. Verizon New England, Opinion No. 08-11WC (April 29, 2011).
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3. In keeping with longstanding practice, Defendant does not schedule assigned lunch or dinner breaks for police officers on 12-hour shifts. Rather, it expects officers to remain on duty during their entire shift, and encourages them to eat as they conduct their work over that period.
4. Defendant neither controls nor instructs police officers as to when, where or what to eat while on duty. Officers are free to obtain their meals from any source of their own selection, and to eat them when- and wherever they choose. Should they decide to eat at the police station, the premises are equipped with multiple refrigerators, utensils, microwave ovens and other necessary items to facilitate meals while working.
5. On the evening of March 24, 2011 Claimant purchased a hamburger for dinner from a local restaurant. He returned to his office and began doing paperwork while eating. As he bit into the sandwich, his front tooth hit a piece of bacon and broke.
6. Claimant immediately notified his supervisor and co-workers of his injury, and completed an incident report. Subsequently, on March 28, 2011 a First Report of Injury (Form 1) was filed with the Department of Labor.
7. Claimant sought dental treatment from Dr. Kentworthy, who determined that his tooth needed complete removal and replacement. The cost of this treatment is estimated to be approximately $4,700.00.
8. Defendant has denied Claimant’s claim for workers’ compensation benefits on the grounds that his dental injury was not incurred as a result of his employment.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (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).
2. Both parties here seek summary judgment in their favor on the question whether Claimant’s dental injury arose out of and in the course of his employment for Defendant. As the material facts are not genuinely disputed, disposition of this question on summary judgment is appropriate.
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3. The starting point for any workers’ compensation claim is whether the injury arose out of and in the course of employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injuries. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993).
4. For the purposes of the pending motions, Defendant does not dispute that Claimant’s injury occurred in the course of his employment. This prong of the compensability test is met when an injury is shown to have occurred “within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964). Generally speaking, injuries that occur on the employer’s premises during a regular lunch hour are deemed to have arisen in the course of employment. Miller, supra; Vivian v. Eden Park Nursing Home, Opinion No. 01-00WC (February 14, 2000), 2 Lex K. Larson, Larson’s Workers’ Compensation §21.02[1][a] (Matthew Bender, Rev. Ed.) and cases cited therein.
5. The crux of the parties’ dispute is as to the “arising out of” prong of the compensability test. What is required to satisfy this factor is a causal connection between an employee’s injury and his or her work – not necessarily in the sense of proximate or direct cause, but rather as an expression of origin, source or contribution. Snyder v. General Paper Corp., 152 N.W.2d 743, 745 (Minn. 1967); see, Shaw v. Dutton Berry Farm, 160 Vt. 594, 597-98 (1993) (overruling Rothfarb v. Camp Awanee, Inc., 116 Vt. 172 (1950), and characterizing tort-type proximate causation in the workers’ compensation context as narrow, unduly restrictive and contrary to the remedial purpose of the statute).
6. Vermont has long adhered to the “positional risk” doctrine in interpreting and applying the “arising out of” component of compensability. Miller, supra at 214, citing Shaw, supra at 599. Under Vermont law, an injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Id., quoting 1 A. Larson, Workmen’s Compensation Law §6.50 (1990) (emphasis in original). Phrased alternatively, the positional risk doctrine asks simply whether an injury would or would not have occurred but for the claimant’s employment and his or her position at work. Shaw, supra.2
2 The positional risk analysis adopted in Vermont differs from the “neutral risk” rule applied in many other states. In order to satisfy the “arising out of” component under a neutral risk analysis, the conditions of employment must expose the employee to a risk of injury “greater than that to which the general public is exposed.” Illinois Consolidated Telephone Co. v. Industrial Commission, 732 N.E.2d 49, 56-57 (2000) (Rakowski, J., concurring). No such “greater-than-the-general-public” type exposure is required in a positional risk state. Id., citing 1 A. Larson & L. Larson, Larson’s Workers’ Compensation Law §7.04(1) at 7-15 (1999).
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7. In most cases, an injury that occurs during the “course of employment” also “arises out of it,” unless the circumstances “are so attenuated from the condition of employment that the cause of injury cannot reasonably be related to the employment.” Miller, supra at 215, quoting Shaw, supra at 598. The question in this case, then, is whether the obligations of Claimant’s employment – specifically, that he take his meals while working his shift – constitute a sufficient connection to his injury as to render it compensable.
8. In answering this question, I must distinguish the circumstances here from cases in which the conditions of employment either encourage or require the employee to take his or her meal from a certain source or under certain circumstances. See, e.g., Maguire’s Case, 451 N.E.2d 446 (Mass.App.Ct. 1983) (acknowledging compensability of dental injury sustained while biting into employer-supplied sandwich, but denying claim on other grounds); Goodyear Aircraft Corp. v. Industrial Commission, 158 P.2d 511 (Ariz. 1945) (injury from exploding soda bottle brought from home deemed compensable where conditions of employment required claimant to care for, prepare and consume lunch on premises); Krause v. Swartwood, 218 N.W. 555 (Minn. 1928) (injury sustained as result of drinking tainted coffee at restaurant deemed compensable where employer had directed claimant to eat there so that she could field incoming calls while at lunch). The circumstances giving rise to the injury in these cases are sufficiently connected to the employment to establish the required “arising out of” link.
9. In the current case, the conditions of Claimant’s employment admittedly were such as to encourage him to eat while working. However, they did not extend so far as to direct, or even suggest, that he eat any particular food from any particular source at any particular time. Claimant could have chosen another menu item, or another restaurant, or even brought his own meal from home. That he opted not to do so was a consequence of his own preferences, not any work-related obligation. See, Rehm-Brandt v. Rehm-Brandt’s Design, Opinion No. 44-01WC (November 29, 2001) (compensation for injury sustained while traveling to pick up lunch denied where obligations of employment did not so constrain claimant’s lunch time choices as to change the trip from a personal one to an employment-related one).
10. To impose liability upon employers for injuries suffered under the circumstances presented by the current claim would be both unrealistic and unwieldy. In effect it would require them to ensure that all of the food their employees consume while at work, no matter what the source, is safe. But how would an employer do so? Should it be granted the right to inspect an employee’s lunch box? To ban hard candy or caramels? To declare certain restaurants off-limits? I suspect that neither employers nor employees would stomach such intrusive devices well.
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11. While Vermont’s Workers’ Compensation Act “is to be construed liberally to accomplish the humane purpose for which it was passed, a liberal construction does not mean an unreasonable or unwarranted construction.” Herbert v. Layman, 125 Vt. 481, 486 (1966); Workers’ Compensation Rule 1.1100. The Act does not make the employer an insurer against every accidental injury that may happen to an employee during his or her employment. It applies only to those that reasonably can be said to have the employment as their origin. Snyder, supra at 752 (Otis, J., dissenting). The circumstances of Claimant’s injury were too attenuated from his work for me to make that connection here.
12. I conclude that although Claimant’s dental injury occurred in the course of his employment for Defendant, it did not arise out of it. As a matter of law, therefore, his claim for workers’ compensation benefits must fail.
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED. Claimant’s Motion for Summary Judgment is DENIED, and his claim for workers’ compensation benefits causally related to his March 24, 2011 dental injury is DISMISSED.
DATED at Montpelier, Vermont this 13th day of March 2012.
____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Judith Skovira v. Mylan Technologies Inc (March 29, 2012

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

Judith Skovira v. Mylan Technologies Inc (March 29, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Judith Skovira Opinion No. 09-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Mylan Technologies, Inc.
For: Anne M. Noonan
Commissioner
State File No. CC-02280
OPINION AND ORDER
Hearing held in Montpelier on January 9, 2012
Record closed on February 13, 2012
APPEARANCES:
Ron Fox, Esq., for Claimant
David Berman, Esq., for Defendant
ISSUE PRESENTED:
1. Did Claimant suffer a compensable left knee injury on or about February 26th and/or March 2, 2011?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: List of Claimant’s absences from work
Claimant’s Exhibit 2: Time Detail, 12/19/10-5/5/11
Defendant’s Exhibit A: Curriculum vitae, Leonard Rudolf, M.D.
Defendant’s Exhibit B: Deposition of Thomas Rivers, December 6, 2011
Defendant’s Exhibit C: Deposition of Lise Canevari, December 6, 2011
Defendant’s Exhibit D: Deposition of Monique Brigante, December 6, 2011
Defendant’s Exhibit E: Deposition of Vicki Shepard, December 6, 2011
Defendant’s Exhibit F: Deposition of Chad Cichomski, December 6, 2011
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CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §§642 and 646
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant began working as a production operator for Defendant, a manufacturer of transdermal medication patches, in March 2007. Her duties included cutting, pouching, sealing and boxing patches on a large production line. Claimant routinely worked the second shift, from 3:00 PM to 11:00 PM. For certain tasks on the line she could alternate sitting and standing, though for most of her shift she was on her feet.
Claimant’s Work-Related Slip-and-Falls
4. On Saturday evening, February 26, 2011 Claimant was walking through Defendant’s parking lot after completing her shift. It had been snowing, and the pavement was slushy. As Claimant reached her car, she slipped and fell forward onto both knees. Two or three of her co-workers, including Lise Canevari and Tina Menard, came to her aid. As they did so, Ms. Canevari recalled Claimant exclaiming that she had fallen on her “f—ing bad knee.”
5. After this event Claimant’s left knee was swollen and painful, but not to the point where she sought medical treatment. She did report the injury to her supervisor when she returned to work as scheduled on Monday afternoon.
6. Claimant worked her scheduled shifts on Monday, Tuesday and Wednesday, February 28th through March 2nd, 2011. As she was leaving work on Wednesday with Ms. Canevari, again she slipped in the parking lot. Her left foot slid forward as if she was squatting, but Ms. Canevari was able to catch her before she fell to the ground.1
7. After this event, Claimant’s left knee was even more swollen and painful than it had been prior to her fall the previous Saturday. Her symptoms prompted her to seek medical treatment, and ultimately restricted her function to the point where she was unable to work.
1 Claimant testified that Ms. Canevari did not keep her from falling, and that her left knee did in fact hit the pavement. Given other discrepancies in Claimant’s testimony, see infra at Finding of Fact No. 23, I have reason to question her recollection. Therefore, I find Ms. Canevari’s testimony more credible in this regard.
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8. Defendant denied Claimant’s claim for workers’ compensation benefits, citing preexisting degenerative pathology in her knee as the cause of her complaints.
Claimant’s Prior Medical History
9. Claimant has a long, complicated medical history involving her left knee. In 1979 she underwent patellar realignment surgery as treatment for recurrent dislocations. She has experienced occasional episodes of left knee pain, swelling and clicking ever since.
10. In October 2000 Claimant’s left knee symptoms again compelled her to seek treatment, ultimately culminating in arthroscopic surgery in April 2001. Diagnostic imaging studies at the time revealed moderate to severe degenerative changes throughout the joint. These changes most likely were caused by the particular type of patellar realignment surgery Claimant had undergone years earlier. By changing the mechanism of the joint, that type of procedure can cause the surface cartilage in the knee to break down, leading to the accelerated development of degenerative arthritis. For that reason, it is no longer considered an effective treatment for recurrent patellar dislocations.
11. Claimant’s 2001 surgery also addressed a lateral meniscus tear, which had been documented as well on her imaging studies at the time.
12. Though she continued to suffer from persistent, generalized left knee pain, following her 2001 surgery Claimant did not seek medical treatment for many years. Then, in October 2009 she presented to her primary care provider complaining of increased discomfort in her knee and sharp pains under her left kneecap. Claimant did not ascribe her symptoms to any recent acute injury.
13. Claimant treated for her symptoms, which she described as having gotten much worse over the course of the prior three years, with Dr. Kaplan, an orthopedic surgeon. She reported intermittent stabbing pain in her knee, severe enough to “stop me dead,” and worsened by such activities as climbing stairs, arising from a chair or kneeling. As had been the case in 2001, diagnostic imaging studies performed in February 2010 documented moderate to severe arthritis throughout the joint, this time evidenced by partial- and full-thickness cartilage degeneration, joint space narrowing and bone spurs. In addition, the studies revealed what was described as a “probable degenerative” medial meniscus tear.
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14. Dr. Kaplan explained Claimant’s treatment options in a telephone conference with her on March 1, 2010. His written summary of the conversation states:
In addition to her arthrosis she has meniscal tears medially. She understands that we may not be able to turn back the clock on her arthrosis, but we may consider doing something arthroscopically if injectable type treatments (such as a steroid injection) were not acceptable to her, given that she had a previous poor reaction [in 2001]. I understand her reluctance to do that, though I think it may help her.
She will see how she does over time. If she is not any better she will consider arthroscopy to see if a debridement of the left knee helps her pain at all.
15. Some months later, during an August 2010 follow-up appointment with her primary care provider for migraine headaches, Claimant also complained of chronic left knee pain. She reported that only a combination of Vicodin and OxyContin (both of which she had been prescribed at times previously for a shoulder injury) provided effective pain relief. As these medications are not recommended for chronic pain management, Claimant’s provider instead prescribed a lidocaine patch.
16. Claimant next followed up with her primary care provider in September 2010. According to the provider’s office note, Claimant reported that the lidocaine patch “did not help.” In her formal hearing testimony, Claimant acknowledged that she likely told the doctor that she had used the patch, but in fact she probably had not, because she did not think it would be effective. In any event, from the medical records it is clear that at least as of September 2010 Claimant’s chronic left knee pain was a troublesome medical issue for her. Claimant admitted as much at formal hearing, though she asserted that it was manageable with ibuprofen. I find this testimony credible.
17. That Claimant’s chronic left knee pain was visibly bothersome to her for some time prior to the events at issue in this claim was corroborated not only by the medical records, but also by her co-employee, Ms. Canevari. Ms. Canevari testified that even before her falls in the parking lot Claimant frequently complained about her “bad knee” while at work, and “was always rubbing it, grabbing it.” I find this testimony credible.
18. At the same time, however, both Ms. Canevari and the other co-employees who testified also corroborated that Claimant’s knee pain appeared to worsen significantly after her falls. She walked more slowly and with a noticeable limp, and rested with her feet up more often. I find this testimony to be credible as well.
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Claimant’s Medical Course after March 2011
19. Claimant did not treat again for her left knee pain until March 4, 2011 – two days after her second fall2 in Defendant’s parking lot. Her symptoms at that point were similar in nature to what she had experienced chronically – tenderness and pain, particularly under her kneecap, with swelling and crepitus – though far worse in degree. She could not walk without limping and had difficulty standing. She was restricted from working full-duty, and could only maintain a part-time (four hours per day) work schedule. Functionally, her activities were significantly limited.
20. Claimant returned to Dr. Kaplan for further evaluation in late March 2011. Repeat diagnostic imaging studies again showed significant degenerative arthritis throughout her knee, as well as a non-displaced degenerative tear in her medial meniscus. Dr. Kaplan did not specifically comment on the progression of Claimant’s degenerative disease as indicated on this imaging study as compared with her February 2010 study. He had this to say as to the significance of her recent falls, however:
I do believe [Claimant’s progressive pain] represents significant exacerbation of a meniscus tear and arthrosis from a work-related fall. She understands that her arthritis predates this but the meniscus tear becoming highly symptomatic again is likely due to her new fall and probably represents the propagation of her degenerative meniscus previously.
21. With worsened pain and decreased function, in May 2011 Claimant elected to undergo the arthroscopic surgery Dr. Kaplan previously had offered in March 2010. As he had before, Dr. Kaplan cautioned that the surgery would not “turn back the clock” on her arthritis, and also that she still might require a total knee replacement at some future point. Presumably he was hopeful, again as he had been in 2010, that by repairing the meniscal tear Claimant’s pain would decrease to more manageable levels.
2 I use the term “fall” in connection with Claimant’s March 2011 mishap solely for ease of reference. In contrast to her fall some days earlier, in this incident Claimant slipped on the pavement but did not actually fall to the ground. See Finding of Fact No. 6 supra.
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22. Claimant ceased working on May 5, 2011 and underwent Dr. Kaplan’s suggested surgery one week later, on May 12, 2011. From the operative report, it is impossible to decipher to what extent, if any, the pathology he found was recent as opposed to long-standing. In his June 14, 2011 office note Dr. Kaplan described his findings and conclusions as follows:
[Claimant] has Grade III to IV changes medially and laterally and she appears to have ongoing synovitis that is related to her arthritis, having gone through surgery with such a vulnerable knee. She has had longstanding problems with her knee and has old scars from her previous [patellar realignment] procedure and previous meniscectomy years ago.
I have gone over her . . . findings with her so that she would better understand that she has a complex problem in her knee, not all of which is related to her work-related injury (that is only the meniscal tearing component) and that the arthritis alone predates this and – though she says she did not have much in the way of symptoms from it – this was mostly uncovered by her recent problem.
23. Given other evidence in the record, see Findings of Fact Nos. 15-17 supra, I do not accept as credible Claimant’s statement to Dr. Kaplan that she “did not have much in the way of symptoms” from her left knee arthritis prior to her falls at work. And while I do not ascribe to her any bad motive or intent to deceive, this and other aspects of her testimony indicate to me that at times she was an unreliable historian. For example:
• In her formal hearing testimony Claimant denied having filed a workers’ compensation claim relating to an alleged wrist injury in 2006, though both the contemporaneous medical record and the Department’s files3 reflect that she did;
• Claimant testified that she enjoyed her job, though she consistently reported exactly the opposite, in fairly strong terms, to her mental health counselor throughout the fall of 2010; and
• As noted above, Finding of Fact No. 16 supra, Claimant reported to her primary care provider that the lidocaine patch prescribed her in August 2010 had not helped her knee pain, but testified at hearing that she doubted having even tried it.
3 State File No. X-5051 alleged a March 6, 2006 wrist injury causally related to Claimant’s employment for Hannaford’s; claim denials were filed in both April and May 2006.
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24. Unfortunately, Claimant did not progress well with arthroscopic surgery. Despite her relatively young age (55), Dr. Kaplan concluded that the only remaining treatment option was a total knee replacement. As to the causal relationship between this surgery and Claimant’s falls at work, he stated:
With her recent injury, having I think tipped the scales given her preexisting arthritis and history of patellofemoral surgery, even though she was doing exceptionally well prior to this injury,4 I think while the injury did tip her over in the feeling of extreme symptoms there was some preexisting problem. It is hard to say how much of the new problem is related to her injury and how much is related to her previous issue.
25. Claimant underwent total knee replacement surgery on August 17, 2011. From reviewing the operative report, I find that the specific purpose of that surgery was to address her left knee osteoarthritis. As of November 2011 Claimant still was reporting significant pain in her left knee. From the evidence presented at hearing, it does not appear that she has yet reached an end medical result.
26. As for whether Claimant would have elected to undergo arthroscopic surgery had she not fallen at work, her testimony was somewhat equivocal. On the one hand, she stated that prior to her fall she felt that her symptoms were not severe enough to warrant a surgery whose outcome Dr. Kaplan could not guarantee. On the other hand, she acknowledged that her symptoms had not improved since March 2010, when Dr. Kaplan first suggested arthroscopy, and that she regularly took ibuprofen to manage her pain. Given that she was suffering from a progressively degenerative condition, there is no way to predict when she might have chosen this treatment path had her symptoms not worsened when and in the manner that they did. I find that there is no basis for me to speculate in this regard.
Expert Medical Opinions
27. Both parties presented expert medical testimony as to the causal relationship, if any, between Claimant’s work-related falls and her subsequent knee surgeries. Dr. Rudolf concluded that no such relationship existed; Dr. Backus concluded that it did.
(a) Dr. Rudolf
28. Dr. Rudolf is a board certified orthopedic surgeon. He has maintained a clinical practice since 1987, a significant part of which involves joint replacements, knee arthroscopies and related issues. At Defendant’s request, Dr. Rudolf reviewed Claimant’s medical records in October 2011.
4 As noted above, Findings of Fact Nos. 15-17 and 23 supra, other evidence in the case casts doubt on Dr. Kaplan’s assertion that Claimant was doing “exceptionally well” prior to her work injuries.
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29. Dr. Rudolf concluded, to a reasonable degree of medical certainty, that both Claimant’s May 2011 arthroscopic surgery and her August 2011 total knee replacement were necessitated by her preexisting osteoarthritis, not by her falls at work. In support of this conclusion, Dr. Rudolf cited the following evidence:
• The mechanism of Claimant’s falls at work conceivably might have affected her patellofemoral joint and surfaces, but would not likely be responsible for any progression of the preexisting tears in her medial meniscus;
• Claimant’s imaging studies, which Dr. Rudolf personally reviewed, documented long-standing degenerative changes throughout the knee. Comparison studies taken both before (February 2010) and after (March 2011) her falls at work were not so “dramatically different” as to suggest any traumatically caused advancement. To the contrary, they strongly suggested that Claimant’s exacerbated symptoms were related more to chronic degeneration in the joint than to any other process;
• Dr. Kaplan’s May 2011 arthroscopic findings failed to reveal any clear evidence of recent meniscal tearing as opposed to long-standing degeneration; and
• The fact that Claimant failed to improve following the May 2011 arthroscopy, which was undertaken specifically to address her meniscal pathology, suggests that her symptoms were not related to that condition at all, but rather to her preexisting degenerative arthritis.
30. Dr. Rudolf likely would not have suggested arthroscopic surgery as a treatment option for Claimant, either in March 2010, when Dr. Kaplan first offered it, or in May 2011, when Claimant underwent it. Based both on his experience and on current medical literature, arthroscopy tends not to be beneficial in the context of advanced arthritis in the meniscus. Dr. Rudolf acknowledged, however, that a patient’s decision to undergo arthroscopy is sometimes driven by pain, and in that respect it was not necessarily inappropriate for Dr. Kaplan to have offered it as a treatment option, either in 2010 or in 2011.
31. In Dr. Rudolf’s clinical experience, patients who undergo arthroscopic knee surgery typically are disabled for two to four weeks, following which they are able to resume unrestricted activities. I find that given Claimant’s complicated prior medical history, in her case this estimate likely would have been overly optimistic.
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32. In Dr. Rudolf’s opinion, the probability that Claimant would require a total knee replacement was “pretty high” no matter when she elected arthroscopic surgery. He refused to speculate whether she would have come to surgery any later had she not fallen at work when and as she did. In his experience, increased pain complaints such as those that Claimant experienced do not usually correlate to specific changes in either tissue structure or surface configuration when the knee is viewed surgically. Thus, the fact that certain events may be associated with increased symptoms does not mean that the underlying condition necessarily must have been exacerbated. Nor does the fact that a patient may require total knee replacement following such an event mean that the event rather than the preexisting degenerative process necessitated the surgery. I find this analysis credible in all respects.
(b) Dr. Backus
33. Dr. Backus is board certified in occupational and environmental medicine. At the request of her attorney, Dr. Backus reviewed Claimant’s medical records in November 2011. He did not personally view her diagnostic imaging studies.
34. Dr. Backus concluded, to a reasonable degree of medical certainty, that Claimant’s falls at work aggravated and accelerated the preexisting degenerative process in her knee to the point where both the May 2011 arthroscopy and the August 2011 total knee replacement became necessary sooner than they otherwise would have. In reaching this conclusion, Dr. Backus relied solely on the fact that although Claimant had suffered from chronic knee pain for years, after her falls at work her pain complaints increased markedly and her ability to function decreased correspondingly.
35. In Dr. Backus’ opinion, it is impossible to discern exactly how Claimant’s falls might have aggravated the specific structures in her knee, as neither diagnostic imaging studies nor physical signs are sophisticated enough to distinguish these features. He posited various theories – already weakened cartilage could have eroded further, an already stressed bone could have become further stressed, or a degenerative meniscal tear could have become more torn. Beyond noting that trauma to an arthritic joint often causes it to become more symptomatic, Dr. Backus was unable to offer any more specific insight into how the falls caused Claimant’s condition to worsen. “Whatever it was,” he concluded, “the knee was worsened by the falls.”
36. Dr. Backus doubted that Claimant would have undergone arthroscopic surgery in May 2011 but for her falls at work, as she already had decided not to do so in March 2010. I am not persuaded by the logic of this testimony, nor do I consider it within the area of his expertise to make such a prediction.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The first disputed issue in this claim is whether Claimant suffered a compensable injury when she fell in Defendant’s parking lot. Defendant denied her claim on the grounds that she suffered from a preexisting condition. As will be seen, this fact is relevant primarily to the question whether Defendant is obligated to pay for either or both of Claimant’s surgeries. It does not of itself preclude me from finding that a compensable injury occurred.
3. For an injury to be compensable under Vermont law, it must arise out of and in the course of the claimant’s employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injuries. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993).
4. Defendant does not dispute that Claimant’s injury here occurred in the course of her employment. Instead, by asserting that her symptoms resulted from preexisting pathology rather than her falls, it questions the “arising out of” prong of the compensability test.
5. Claimant presented undisputed evidence that the slushy conditions in Defendant’s parking lot caused her to fall, and that her knee symptoms markedly increased almost immediately thereafter. These were by no means idiopathic falls, ones that occurred for purely personal reasons. Compare Carlson v. Experian Information Solutions, Opinion No. 30-07WC (October 23, 2007) with Boucher v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008). To the contrary, they happened because Claimant’s employment provided the positional risk – an icy parking lot – that caused the events to occur. Miller, supra at 214, citing Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993). Her accidents thus arose out of her employment, and Defendant is thereby responsible to pay whatever workers’ compensation benefits the statute requires as a result. This includes, of course, the obligation to pay for reasonable medical treatment. 21 V.S.A. §640(a).
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6. For a treatment to be reasonable, it must be both medically necessary and causally related to the work injury. Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). Whether either or both of Claimant’s surgeries qualify as reasonable is the second disputed issue in this claim. With support from both Dr. Kaplan and Dr. Backus, Claimant contends that her falls aggravated or accelerated the preexisting pathology in her knee, such that but for those events she would not have come to either surgery as quickly as she did. Supported by Dr. Rudolf, Defendant argues that the falls did no such thing, and that the surgeries were necessitated solely by the progression of her underlying disease.
7. 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).
8. I consider first Claimant’s May 2011 arthroscopic surgery. The purpose of that surgery was to address what Dr. Kaplan suspected was a further tear in her medial meniscus caused by her work-related falls. Given Claimant’s markedly increased symptoms, and even notwithstanding Dr. Kaplan’s misunderstanding as to the extent of Claimant’s knee pain in the months previous, I conclude that this was a reasonable supposition for him to make.
9. I acknowledge the persuasive logic of Dr. Rudolf’s opinion to the contrary – that the falls likely did not cause further damage to Claimant’s already-torn meniscus. However, that determination was based at least in part on (a) Dr. Kaplan’s operative findings, which failed to reveal clear evidence of a recent tear; and (b) the fact that Claimant’s symptoms did not improve after arthroscopy. Dr. Kaplan could not have known either of these facts at the time the decision to proceed with surgery was made.
10. In the workers’ compensation context, the test for determining the reasonableness of a particular medical treatment is what was known at the time the treatment was undertaken, not what became known later with the benefit of hindsight. Avdibegovic v. University of Vermont, Opinion No. 06-09WC (February 23, 2009). With due deference to Dr. Kaplan’s status as Claimant’s treating orthopedic surgeon, and considering what he knew at the time, I conclude that the May 2011 arthroscopic surgery constituted reasonable treatment for the symptoms induced by Claimant’s work-related falls.
11. Claimant’s August 2011 total knee replacement surgery, the purpose of which was to address her underlying arthritis, stands on a different footing, however. Even Dr. Kaplan appears to have questioned the relationship between Claimant’s falls at work and the progression of that condition. Without credible evidence establishing that the falls aggravated or accelerated that pathology, the surgery to correct it is not compensable. Stannard v. Stannard Co., Inc., 175 Vt. 549 (2003).
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12. Dr. Backus found such evidence solely in the fact that Claimant’s symptoms worsened after her work-related falls. Essentially his opinion amounted to an assertion that the falls must have caused something to occur in Claimant’s knee, though he could only speculate as to exactly what that was.
13. I cannot accept Dr. Backus’ opinion as persuasive evidence, to the required degree of medical certainty, that the preexisting pathology in Claimant’s knee was aggravated by her work-related falls. It does not take an expert opinion to observe that symptoms have worsened. Rather, the expert’s role is to identify with certainty the causal relationship between a work-related accident and a resulting injury. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964). This Dr. Backus failed to do.
14. Citing to the commissioner’s decision in Badger v. BWP Distributors, et al., Opinion No. 05-11WC (March 25, 2011), Claimant argues that her increased pain and decreased function provide sufficient evidence to establish that her underlying arthritis likely worsened as a result of her falls. I disagree.
15. In Badger, the credible medical evidence established that the claimant had suffered a work-related exacerbation of the degenerative disc disease in his lower back, notwithstanding that diagnostic imaging studies failed to reveal any acute changes. Instead, the commissioner accepted the claimant’s sharply escalated pain complaints and corresponding need for treatment as a valid basis for concluding that the work injury had caused not only aggravated symptoms but also had aggravated the underlying condition.
16. The rationale that applied in Badger does not fit nearly as well in this claim. As workers’ compensation practitioners are well aware, first of all, diagnostic imaging studies are notoriously inadequate at differentiating between symptomatic and asymptomatic lumbar disc disease. The same difficulties do not appear to attach to diagnosing arthritic knees. Here, Claimant’s MRI studies documented extensive arthritis in her knee long prior to her work-related falls, of sufficient severity to account for her progressively worsening symptoms. In that respect, the circumstances here are more similar to those presented in Stannard, supra, than they are to the facts in Badger.
17. Of greater significance, in Badger there was no subsequent surgery or other treatment from which to confirm or deny whether in fact the underlying condition had been aggravated. Here, there was.
18. 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, supra at 552, quoting Jackson v. True Temper, 151 Vt. 592, 596 (1989). Mere continuation or exacerbation of symptoms, without a worsening of the underlying disability, does not establish compensability. Id.
19. Badger stands for the premise that in appropriate circumstances evidence of aggravated symptoms can be sufficient to establish that a preexisting condition has been aggravated. Each case stands on its own facts, however, and I do not find that the facts support such a conclusion here.
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20. I conclude that Dr. Backus’ opinion as to the causal link between Claimant’s work-related falls and the aggravation or acceleration of the underlying arthritis in her knee is far less persuasive than those expressed either by Dr. Kaplan or by Dr. Rudolf. As the treating surgeon, Dr. Kaplan was well positioned to determine whether such a causal relationship existed. The fact that he did not do so to the required degree of medical certainty is significant. As for Dr. Rudolf, his clinical experience with patients who suffer from conditions similar to Claimant’s is highly relevant to the disputed issues here. For that reason as well, I find his opinion more credible than Dr. Backus’.
21. In summary, I conclude that Claimant has sustained her burden of proving that she suffered a work-related injury as a result of her falls in Defendant’s parking lot on February 26, 2011 and/or March 2, 2011. I further conclude that her May 2011 arthroscopy constituted reasonable medical treatment causally related to the symptoms induced by that injury. Defendant is thereby responsible for the medical costs associated with this treatment. Defendant also is responsible for the period(s) of temporary total and/or temporary partial disability caused by the falls, which I conclude extended until August 17, 2011, the date on which Claimant underwent total knee replacement surgery.
22. I conclude that Claimant has not sustained her burden of proving that her work-related falls either aggravated the underlying arthritis in her knee or accelerated the need for total knee replacement surgery. That surgery was not causally related to her work injury, therefore, and Defendant is not obligated to pay any workers’ compensation benefits associated with it.
23. Claimant has submitted a request under 21 V.S.A. §678 for an award of costs totaling $4,044.02 and attorney fees totaling $9,294.50. As she has prevailed only on her claim for workers’ compensation benefits associated with her initial falls and subsequent arthroscopic surgery, she is entitled to an award of only those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). I conclude that the costs associated with Dr. Backus’ expert services, totaling $2,875.00, are not recoverable. The remaining amount, $1,169.02, is hereby awarded.
24. 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. Here I conclude that it is appropriate to award Claimant one-half of the total fees requested, or $4,647.25.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total and/or temporary partial disability benefits until August 17, 2011 in accordance with 21 V.S.A. §§642 and 646, with interest as calculated in accordance with 21 V.S.A. §664;
2. Medical benefits referable to Claimant’s May 12, 2011 arthroscopic surgery in accordance with 21 V.S.A. §640(a); and
3. Costs totaling $1,169.02 and attorney fees totaling $4,647.25 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 29th day of March 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

Rebecca Roy v. The Howard Center (January 10, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Rebecca Roy Opinion No. 02-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
The Howard Center
For: Anne M. Noonan
Commissioner
State File No. CC-60675 OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 1, 2012
Record closed on November 21, 2012
APPEARANCES:
William Skiff, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES:
1. Did Claimant suffer a compensable work-related psychological injury on or about October 18, 2010?
2. If yes, was Claimant’s inability to work from April 15, 2011 to July 30, 2011 causally related to that work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Warnock deposition, September 18, 2012
Claimant’s Exhibit 2: Affidavit of probable cause, State v. Pazos
Defendant’s Exhibit A: Curriculum vitae, Albert Drukteinis, M.D., J.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant has worked for Defendant since August 1999. Since August 2006 she has been a residential counselor at its “Branches” group home. As part of her regular duties, Claimant was one of two employees who dispensed medications to the residents. The other employee who dispensed medications was Kathleen Smith. If the residents did not receive their medications in a timely manner, they could become psychotic.
Claimant’s Personal and Medical Background
4. Claimant’s husband is an outgoing, friendly and demonstrative person. Her birth family is more reserved. Although their relationship with Claimant’s husband was civil, and they appeared to welcome him into the family, they thought he was overbearing. At times, family members told Claimant she would be better off if she divorced her husband. Due to the personal conflicts with her family, Claimant and her husband had engaged in couples counseling since they began dating.
5. Claimant and her husband have a five year-old son, Sebastien, who suffers from autism. As a result, he presents with special needs that are consuming in terms of time, energy and emotion. Sebastien requires a special diet and constant attention. Sometimes he behaves aggressively towards Claimant. Despite these and many other challenges, Claimant was very credible when she described Sebastien as her greatest joy.
6. Notwithstanding the challenges that raising her son presented, prior to the events at issue in this claim Claimant was able to work full time effectively and to take care of the household duties. These included cooking, housecleaning and doing the laundry. On the latter tasks, she did not receive much help from her husband.
7. With regard to her medical history, Claimant has suffered from insomnia virtually all her life. Prior to October 2010, her insomnia was well-controlled by Lunesta and she was able to sleep for up to seven and a half hours nightly. Claimant also suffered from asthma, which was well controlled prior to October 2010.
The Events of October 17 and 18, 2010
8. On Sunday, October 17, 2010, Claimant’s supervisor called to advise that her co-employee, Kathleen Smith, had not shown up for work that day. The supervisor asked Claimant for Ms. Smith’s cell phone number. Later that day, another of Defendant’s employees called Claimant to say he was going to Branches to dispense medications to the residents.
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9. The next morning, the overnight counselor at Branches called Claimant and advised her that Ms. Smith had not arrived at 8:00 AM as she usually did. Because Claimant’s shift did not start until 9:00 AM, she decided to drive by Ms. Smith’s house in the hopes of ascertaining her whereabouts. Prior to doing so, she called the hospital to see if Ms. Smith had been admitted, but she had not.
10. Claimant did drive down Ms. Smith’s street on her way to work, but she had trouble locating the correct house. By the time she found it, it was after 9:00 AM. At that point, Claimant decided to continue on to Branches to dispense the medications for the residents, as no one else could do that.
11. After speaking with her supervisor, and with her supervisor’s agreement, Claimant left Branches and returned to check on Ms. Smith’s well-being.1 When she arrived at the back door to Ms. Smith’s house, she discovered Ms. Smith’s murdered, bloody body and her lifeless dog. During the course of the hearing Claimant described what she found at Ms. Smith’s apartment. Her credible description was extremely emotional and difficult for her.
Claimant’s Treatment After October 18, 2010
12. Claimant’s supervisor instructed her to go home and take care of herself. After being on paid leave for two weeks, Claimant returned to work. She was concerned about the female residents at Branches, because with Ms. Smith now gone she was the only female residential counselor. Moreover, when she was at home, she alternated between being numb and crying. For these reasons, Claimant credibly stated that it was easier for her to be at work.
13. Claimant initially assessed her ability to cope at work as “white knuckling it.” However, as time wore on, she cried frequently, was forgetful, depressed, irritable and disorganized. These traits were all quite the opposite of Claimant’s personality prior to discovering Ms. Smith’s body. I find Claimant’s description of her changed personality to be very credible.
(a) Claimant’s Psychological Treatment
14. Claimant began treating with Aida Luce on October 20, 2010 and continued to see her through October 2011. Over the course of her treatment, Claimant attended 17 group sessions. Most of these sessions focused on her attempts to deal with the trauma of having discovered Ms. Smith’s body. Ms. Luce chronicled how initially Claimant appeared to be capable of handling her grief, but later began having flashbacks of the incident, to the point where she became increasingly unable to cope and required ongoing psychological support.
1 By this time it also had become known that Ms. Smith had not attended a mandatory training the previous Friday. That made four consecutive unexplained absences from work for her.
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15. There were two sessions with Ms. Luce that focused on issues other than Ms. Smith’s murder. One was in January 2011, when Claimant and her family were going through an exceptionally difficult physical move to an apartment. The other was in February 2011, when she expressed concern about her husband’s inability to complete tasks and her feeling that she was emotionally undernourished in their relationship.
16. Claimant also saw Larry Hall, a psychologist, between October 27 and November 30, 2010 for neurofeedback, a type of biofeedback involving the brain. Based on these sessions, Mr. Hall diagnosed Claimant with post traumatic stress disorder (PTSD). Included in this diagnosis were elements of (a) emotional instability fluctuating between grief, anger and numbness; (b) replaying the discovery of Ms. Smith’s body over and over; (c) worsened insomnia; (d) memories of the trauma triggered by driving; and (e) the need to consciously use tricks to redirect her intrusive thoughts.
(b) Claimant’s Medical Treatment
17. Claimant consistently saw a medical professional from March 2007 through the time of the formal hearing. She had preexisting asthma, other respiratory complaints and hypothyroidism, all of which required ongoing treatment. Prior to October 18, 2010 all of Claimant’s physical ailments, including the stresses related to her son and other family relationships, were well controlled.
18. Dr. Warnock, a naturopath, was Claimant’s primary care physician between February 2009 and August 2010. During that time she made six office visits. Dr. Warnock reported that Claimant typically slept for seven hours nightly, and did not present with any psychological or psychiatric issues.
19. After October 18, 2010 a totally different picture emerged of Claimant’s health, both physical and mental. In December 2010, her primary care provider, Dr. Goering, reported that Claimant had been suffering from chronic respiratory problems since Thanksgiving. She was anxious, cried easily and felt overwhelmed from having found Ms. Smith’s slain body. Dr. Goering diagnosed Claimant with adjustment disorder with mixed anxiety and depressed mood. She prescribed an anti-anxiety medication for Claimant.
20. In February 2011 Claimant saw her physician’s assistant, Peter Nobes. Mr. Nobes reported that Claimant was experiencing traumatic event nightmares, flashbacks and recurrent thoughts of finding Ms. Smith’s body. Her affect was very flat. Consistent with Mr. Hall’s diagnosis in November 2010, Mr. Nobes as well diagnosed Claimant with PTSD.
21. Claimant returned to see Mr. Nobes on April 15, 2011 for an acute asthma attack, primarily due to an episode with her son. Mr. Nobes reported that Claimant was very depressed, teary and moody. She was finding it increasingly difficult to go to work and was planning to pursue a paid leave due to her inability to cope. Mr. Nobes recommended that Claimant see a psychiatrist and, as of this visit, concluded that she was unable to work.
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22. Claimant resumed treating with Dr. Warnock in March 2012 and continues to see him presently. Dr. Warnock credibly testified that Claimant presented as a much different patient in March 2012 than she had been when he last saw her in August 2010. Dr. Warnock diagnosed Claimant with PTSD causally related to the trauma of having found Ms. Smith’s body. He convincingly described her as “an emotional wreck” as a result of that incident.
23. Since he began treating her again, Dr. Warnock’s goal has been to taper Claimant off her psychotropic medications and transition her to more natural supplements. Claimant improved dramatically from March 2012 until July 2012, when she was being prepared for the formal hearing in this matter. Realizing that she would have to recount the details surrounding Ms. Smith’s death again, she became anxious and could not sleep.
Expert Medical Opinions
(a) Dr. Powell
24. Claimant began treating with Dr. Powell, a board certified psychiatrist, in late April 2011 at the recommendation of Larry Hall and Mr. Nobes. She saw Dr. Powell on a regular basis through July 2012, a total of 35 office visits. Dr. Powell credibly opined that in order to make an accurate diagnosis, it is critical for a psychiatrist to hear a patient tell his or her own story so that nuances such as body language can be interpreted and assessed. Having had numerous occasions to do so, Dr. Powell diagnosed Claimant with both PTSD and an adjustment disorder including anxiety and depression.
25. Dr. Powell acknowledged that Claimant had many stressors in her life prior to October 2010, including (a) an autistic child on a special, time consuming diet; (b) her family’s longstanding dislike of her husband; and (c) her mother-in-law’s poor health. However, even given these stressors, Claimant was able to function very well, both at home and at work. Her mood and appetite were good, she enjoyed going to work every day, she was close to both her mother and her brother, and her insomnia was well controlled. With these facts in mind, Dr. Powell credibly concluded that Claimant’s inability to work from mid-April through July 2011 was not due to any of these preexisting stressors. I find her analysis in this regard convincing.
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26. In Dr. Powell’s opinion, Claimant’s inability to work was directly attributable to PTSD. In reaching that conclusion, Dr. Powell relied on evidence showing the extent to which Claimant decompensated, both physically and mentally, in the months following Ms. Smith’s murder in October 2010:
• She had difficulty eating, and lost a significant amount of weight;
• She suffered from severe insomnia, which did not respond to accepted medications even at high doses;
• She exhibited impaired concentration, focus, memory and decision- making abilities;
• She suffered from nightmares and flashbacks; and
• She constantly felt overwhelmed.
27. As treatment for Claimant’s severe symptoms, Dr. Powell first addressed her insomnia. With her body more rested from sleep, Claimant was better able to engage in both psychotherapy and pharmacologic treatment. She successfully returned to work on August 1, 2011.
(b) Dr. Drukteinis
28. At Defendant’s request, in October 2011 Dr. Drukteinis, a board certified psychiatrist, reviewed Claimant’s medical records. He also testified at the formal hearing. Prior to his testimony, Dr. Drukteinis reviewed the depositions of Claimant, her husband, Dr. Powell and Dr. Warnock. Dr. Drukteinis did not personally interview or evaluate Claimant.
29. Dr. Drukteinis acknowledged in his formal hearing testimony that Claimant does suffer from PTSD as a result of having discovered Ms. Smith’s body in October 2010. He considers this to be a secondary diagnosis, however. In his opinion, Claimant’s primary diagnosis is adjustment disorder causally related to other preexisting stressors in her life.
30. In Dr. Drukteinis’ opinion, Claimant’s inability to work from mid-April through July 2011 was not due in any way to her PTSD. Rather, it was the myriad of ongoing stressors in her life that caused her to leave work. In support of this opinion, Dr. Drukteinis asserted first, that Claimant’s PTSD symptoms should not have worsened over time, especially when she was receiving appropriate treatment. Second, he noted the two therapy sessions with Ms. Luce in January and February 2011 in which Claimant never spoke of finding Ms. Smith’s body but rather discussed other stressors in her life.
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31. While it is true that the two entries upon which Dr. Drukteinis focused did not mention Ms. Smith’s murder, his opinion fails to take into account the many entries in the medical records in which that event and Claimant’s subsequent PTSD symptoms are well chronicled. I find this reliance on only two of many, many psychological session entries troubling. Dr. Drukteinis’ opinion also fails to account for the fact that Claimant was well able to manage her other life stresses before the events of October 18, 2010 but increasingly unable to do so thereafter. For this reason as well, I find his opinion unpersuasive.
32. Dr. Drukteinis agreed with Dr. Powell as to the value to a psychiatrist of personally interviewing and assessing a patient. It allows the evaluator to do more than just gather facts, but also to gauge the patient’s emotional response from observing facial expressions and body language.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. There are two disputed issues in this case. The first is whether Claimant suffered a compensable work injury when she discovered her slain co-worker while on work time but at the worker’s home. Claimant argues that with her supervisor’s agreement, she left Branches, found her slain co-worker and suffered post traumatic stress disorder as a result.
3. The starting point for any workers’ compensation claim is whether the injury arose out of and in the course of employment. 21 V.S.A. §618; McNally v. Department of PATH, 2010 VT 99, ¶10. This is a two-pronged test, requiring a sufficient showing of both (1) a causal connection (the “arising out of” component); and (2) a time, place and activity link (the “in the course of” component) between the claimant’s work and the accident giving rise to his or her injury. Cyr v. McDermott’s, Inc., 2010 VT 19; Miller v. IBM, 161 Vt. 213 (1993).
4. The “in the course of” prong of the compensability test is met when an injury is shown to have occurred “within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
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5. In this case, Claimant was one of two workers on the weekly daily shift who were authorized to dispense medications to the residents at Branches. Thus, both Claimant and Ms. Smith were essential employees at that job site. When Ms. Smith did not show up for work for several days, both Claimant and her employer had cause to be extremely concerned. It was to her employer’s benefit, and with her supervisor’s direct approval, that Claimant left her post at Branches on October 18, 2010 in order to check on Ms. Smith’s well-being. It was at this time that she made her horrific discovery. I conclude that because this event occurred during the period of time when Claimant was on duty and in a place where she was reasonably expected to be while fulfilling a duty related to her employment, she has met the “in the course of” component of compensability.
6. With respect to the “arising out of” prong, the two psychiatric experts did not disagree that Claimant developed PTSD as a result of finding Ms. Smith’s body. Therefore, I conclude that this element of the compensability test is satisfied as well.
7. Having met both the “arising out of” and the “in the course of” tests, I thus conclude that Claimant’s PTSD was causally related to her work and is compensable. What remains to be decided is whether Claimant’s disability from work between April 15, 2011 and August 1, 2011 was causally related to that injury. Claimant argues that it was. Defendant counters that the real cause of Claimant’s emotional condition and consequent inability to work was the many other stressors in her life.
8. The parties presented conflicting psychiatric evidence on this issue. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
9. Based on the first, third and fourth factors, I conclude that Dr. Powell’s causation opinion is the most persuasive. Dr. Powell had the opportunity to examine and evaluate Claimant over the course of 35 therapy sessions. Her opinion that in the seven months after October 2010 Claimant’s PTSD caused her to steadily decompensate, both physically and mentally, was clear and thorough. It was objectively supported by evidence documenting Claimant’s dramatic weight loss, severe insomnia, impaired intellectual functioning and persistent nightmares, flashbacks and feelings of overwhelming anxiety. I find convincing her opinion that these symptoms were indicative of PTSD and that until effectively treated, they rendered Claimant totally unable to work.
10. In contrast, Dr. Drukteinis’ opinion was not objectively supported and did not adequately account for the marked changes in Claimant’s personality, mood and ability to cope after October 2010. For these reasons, I conclude that it is unpersuasive.
11. In summary, I conclude that Claimant has sustained her burden of proving that she was temporarily totally disabled from working as a result of her compensable PTSD from April 15, 2011 through July 31, 2011.
9
12. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees in accordance with 21 V.S.A. §678(e). Claimant has submitted a request for expenses totaling $1,721.59 and attorney fees totaling $9,309.00 (64.2 hours at $145.00 per hour). Defendant has not filed specific objections to any of the requested costs or fees. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678(a). As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from April 15, 2011 through July 31, 2011 pursuant to 21 V.S.A. §642, with interest as calculated pursuant to 21 V.S.A. §664;
2. Medical benefits covering all reasonable medical services and supplies causally related to treatment of Claimant’s post traumatic stress disorder, in accordance with 21 V.S.A. §640; and
3. Costs in the amount of $1,721.59 and attorney fees in the amount of $9,309.00 in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 10th day of January 2013.
__________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Annemieke Meau v. The Howard Center Inc (January 24, 2014)

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

Annemieke Meau v. The Howard Center Inc (January 24, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Annemieke Meau Opinion No. 01-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Howard Center, Inc.
For: Anne M. Noonan
Commissioner
State File No. BB-59825
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 15, 2013
Record closed on December 20, 2013
APPEARANCES:
Thomas Nuovo, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES PRESENTED:1
1. Is Claimant’s shingles disease causally related to her March 3, 2010 compensable
injury?
2. What amounts, if any, is Claimant entitled to receive for unreimbursed mileage
charges, medical bills, co-payments, pharmacy expenses and/or temporary total
disability benefits (including cost of living adjustments and dependency benefits)
as a consequence of her compensable injuries?
3. To what extent, if any, should interest and/or penalties be assessed on any of the
above amounts?
1 Claimant initially claimed entitlement to benefits causally related to her use of Lumigan eye drops, a medication
prescribed in 2012 for treatment of increased intraocular pressure. She withdrew this claim at the conclusion of the
formal hearing.
2
EXHIBITS:
Joint Exhibits I-III: Medical records
Claimant’s Exhibit 1: Mileage chart
Claimant’s Exhibit 2: Summary of co-payments, with supporting documentation
Claimant’s Exhibit 3: Summary of pharmacy expenses, with supporting documentation
Claimant’s Exhibit 4: Summary of expenses owed
Claimant’s Exhibit 5: Summary of temporary disability benefits, interest and penalties
owed
Claimant’s Exhibit 6: Blue Cross Blue Shield of Vermont, paid claims
Claimant’s Exhibit 7: Photograph of Claimant’s scalp
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Temporary total disability benefits (including dependency benefits and cost of living
adjustments) pursuant to 21 V.S.A. §§642 and 650
Interest, penalties, costs and attorney fees pursuant to 21 V.S.A. §§650(e), 664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
3. Claimant worked for Defendant as a mental health counselor at the H.O. Wheeler School
in Burlington.2 She holds a bachelor’s degree in social work and master’s degrees in
education and counseling, and is certified in Vermont as a licensed mental health
counselor. Currently she is 58 years old.
2 In addition to her employment for Defendant, at the time of her injury Claimant was concurrently employed by the
Town of Essex as a middle school guidance counselor.
3
Claimant’s March 2010 Work Injury and Subsequent Medical Course
4. On March 3, 2010 Claimant was at work at the H.O. Wheeler School when she was
called to assist in restraining a child who had become uncontrollable. At one point during
the episode, Claimant was holding the child from behind, with her arms underneath him
and his back to her chest, when he head-butted her with such force that she lost her
balance. Claimant fell back against a cement wall and then down on the base of her
spine. Somehow during the scuffle, she suffered two large cuts on her left arm. In
recalling the episode subsequently, she was unsure whether she had lost consciousness or
not. Within an hour, she felt pain in her neck and lower back.
5. Defendant accepted Claimant’s cervical spine and lower back injuries as compensable
and began paying workers’ compensation benefits accordingly.
6. Claimant’s medical course since March 2010 has been long and complicated, particularly
with respect to her cervical injuries. Initially diagnosed with a left-sided cervical strain,
by April 2010 she was complaining as well of severe headaches and dizziness. In the
years since, subsequent specialist evaluations (neurological, orthopedic,
neuropsychological, pain management and physical medicine, among others), have
addressed a wide range of additional symptoms, including chronic left-sided neck pain,
left shoulder pain, short-term memory loss and other cognitive impairments. These
complaints have yielded varying diagnoses, among them occipital neuralgia, possible C7
cervical radiculopathy, torticollis, mild post-concussive syndrome, traumatic brain injury,
mild mood disorder, anxiety and/or depression.
Shingles
7. Of particular importance to the pending claim, on January 18, 2011 Claimant first sought
treatment for an accelerating rash with burning pain and blisters on the back of her head
and neck. This was the approximate location of the cervical pain and posterior headaches
she had been reporting since shortly after her work injury, and for which she had sought
emergency room treatment just one week previously.
8. Claimant’s rash was diagnosed as shingles. Shingles is a painful skin rash caused by the
same virus (varicella zoster) that causes chickenpox. After a childhood infection, the
virus does not disappear, but rather remains dormant in infected sensory nerve cells.
Many years later, the virus can become reactivated, and will migrate to the skin, causing
a rash that typically appears in the same dermatomal distribution as the infected nerve.
9. As for what causes the zoster virus to reactivate as shingles, the medical research is
inconclusive. The risk of contracting shingles increases with age, and immune system
compromise also appears to play a role. According to some studies, stress and physical
trauma also might act as triggers for the disease. However, the mechanism by which any
of these factors causes the virus to erupt remains poorly understood, and there are times
when a patient presents with shingles for which no cause at all can be identified.
4
10. If diagnosed early enough, a shingles outbreak can be treated with antiviral medication,
which reduces the severity of the symptoms and promotes faster healing. For this reason,
treatment providers often make a presumptive diagnosis based on the patient’s clinical
presentation, and then administer antivirals prophylactically.
11. Claimant’s January 2011 shingles outbreak (a diagnosis later confirmed by biopsy) was
treated with antivirals, though it is unclear whether the medication was effective. One
week later, the rash was still present on her head and neck, and had spread to her face and
left ear as well. She continued to suffer from severe, burning pain, “like bees stinging
you,” according to her description. She could not refrain from scratching the lesions on
her scalp, which itched “like poison ivy.” Clumps of hair fell out, and large patches of
skin became ulcerated. At times she scratched so hard that the lesions bled. In the
ensuing months, at various times she was diagnosed with impetigo, an infection
superimposed on top of the underlying shingles lesions.
12. Claimant’s symptoms were indicative of post-herpetic neuralgia, a complication that
afflicts fewer than ten percent of shingles patients. It causes neuropathic-type pain in a
dermatomal distribution, which can be both severe and chronic. Claimant’s complaints
of burning pain, unrelenting itchiness, sensitivity to light touch and facial numbness are
all consistent with the condition.
13. Claimant treated for her initial shingles outbreak with a variety of providers, including
Dr. Huston, an infectious disease specialist, Dr. Huyck, an occupational medicine
specialist, emergency room physicians and a dermatologist. By mid-March 2011 the
virus was no longer replicating. Unfortunately, however, her post-herpetic neuralgia
symptoms have continued in severe fashion to this day.
14. Claimant was treated on two subsequent occasions for possible shingles outbreaks, first
in July 2011 and again in December 2011. The July episode came one day after she had
fallen backwards onto a potted plant; subsequently she developed a rash on her left cheek
and ear and complained of searing, intermittent left eye pain as well. The December
episode came shortly after she was administered a shingles vaccine, and presented as a
rash on her left arm. Unlike the initial January 2011 outbreak, neither of these
subsequent outbreaks was confirmed by biopsy. Rather than shingles, therefore, it is
possible that the rashes were self-induced, a consequence of severe itching and scratching
related to post-herpetic neuralgia and/or impetigo.
5
Expert Medical Opinions as to Causal Relationship between Shingles and Work Injury
15. As noted above, Finding of Fact No. 9 supra, medical research has not yet conclusively
established the mechanism by which the virus that causes chickenpox in a child
reactivates years later as shingles in an adult. The parties presented conflicting expert
medical evidence regarding the most likely trigger for the outbreak Claimant suffered in
January 2011, and whether it was causally related to her March 2010 work injury.
(a) Dr. Backus
16. Dr. Backus, an occupational medicine specialist, originally was retained to conduct an
independent medical evaluation on Defendant’s behalf in July 2010. Following a reevaluation
in April 2011, he concluded that there was a causal relationship between
Claimant’s March 2010 work injury and her January 2011 shingles outbreak. According
to his analysis, Claimant’s immune system likely had been weakened, either by the
steroids she had been prescribed to treat her work injury and/or by the chronic stress she
had experienced since. As noted above, Finding of Fact No. 9 supra, medical research
has identified immune system compromise as a possible risk factor leading to activation
of the shingles virus.
17. Dr. Backus did not testify at formal hearing, and therefore I cannot determine the extent
of his experience and expertise in evaluating and/or treating shingles. Nor was any
evidence introduced to establish the strength of the causal association among steroid
medications (how much, at what dosage and for how long), a suppressed immune system
and reactivation of the zoster virus. For these reasons, and without more specific
information as to the basis for his conclusion, I find his opinion of limited value.
(b) Dr. Huston
18. Dr. Huston, an infectious disease specialist, treated Claimant’s shingles and impetigo
outbreaks between March and November 2011. In his initial office note, dated March 17,
2011, he made the following statement as to etiology:
With respect to the etiology of [Claimant’s shingles, complicated by postherpetic
neuralgia], it most likely stems from the stress of her recent injury
and perhaps the repeated episodes of torticollis.
19. It is unclear whether the “recent injury” to which Dr. Huston referred in this statement
was in fact the March 2010 work injury; I find that common usage of the term “recent”
typically implies an event closer in time than one year previous. It also is unclear why
Dr. Huston implicated Claimant’s “repeated episodes of torticollis” as possibly
contributing to her shingles. No evidence was introduced identifying torticollis, a
condition caused by muscle spasms in the neck, as being causally linked to reactivation
of the zoster virus. Dr. Huston did not testify at formal hearing, and did not otherwise
provide any clarifying information. For that reason, I find his conclusory opinion
unpersuasive.
6
(c) Dr. Huyck
20. Dr. Huyck, a board certified specialist in occupational and environmental medicine,
treated Claimant’s post-herpetic neuralgia from February 2011 until July 2013. In the
course of her clinical practice, Dr. Huyck has both diagnosed and treated patients with
shingles. Dr. Huyck testified on Claimant’s behalf at formal hearing.
21. In Dr. Huyck’s opinion, to a reasonable degree of medical certainty Claimant’s shingles
and post-herpetic neuralgia were causally related to her March 2010 work injury. As
grounds for this conclusion, she cited to a “solid collection” of articles in the medical
literature in which cases of post-traumatic shingles were studied. One such article was a
case study in which an outbreak of shingles was found to be causally related to a
traumatic injury because (a) the patient had no other risk factors, and (b) the timing and
location of the outbreak correlated with the injury. Another study found that 38 of 100
patients had suffered recent trauma as the single precipitating event for the development
of shingles, again with the outbreaks occurring at the injury site. Still other studies have
reported cases of laryngeal shingles following intubation, and ophthalmic shingles after
cataract operations, both examples of so-called “scheduled” trauma.
22. In her formal hearing testimony, Dr. Huyck discussed the two types of “reaction
pathways” by which the shingles virus is believed to be reactivated in adults. One is an
immunosuppressive pathway, whereby the body becomes unable to fight the zoster
infection. The other is a more mechanical or local pathway, whereby physical trauma to
the area in which the infected nerve cells are located somehow disrupts the dormant virus
and reactivates it.
23. In Claimant’s case, Dr. Huyck concluded that both pathways likely contributed to the
reactivation of the shingles virus. The mechanical pathway was implicated because the
location of her outbreak was in the same region associated with her work injury. The
immunosuppressive pathway was implicated not by the most common risk factors, which
Dr. Huyck identified as HIV infection, kidney failure or immunosuppressive drugs,3 but
rather by the physical stress on the body that occurs during the healing process.
3 Notably, Dr. Huyck did not identify Claimant’s use of steroid medications as sufficiently immunosuppressive to
qualify as a risk factor, as Dr. Backus had postulated, see Finding of Fact No. 16 supra.
7
24. In her testimony, Dr. Huyck referenced a second source of physical trauma that could
have supplied the mechanical pathway for Claimant’s January 2011 shingles outbreak – a
cervical epidural steroid injection that Dr. Borello, a pain management specialist,
administered in mid-September 2010. Dr. Borello’s contemporaneous treatment notes
reflect that the procedure was “uneventful,” and that Claimant tolerated it “without
apparent complications.” However, Claimant recalled the procedure differently. At
formal hearing, she testified that during the injection “all of this blood started to come
out,” both on her face and onto the exam table. Four days after the injection, she
presented to the emergency room with increased pain, not only in her neck but also in her
lower back and left leg. Some weeks later, she described being hypersensitive to touch in
the area of her left neck and shoulder, and in early November she reported nerve pain
“like swelling pieces of glass” in her neck. In January, while seeking emergency room
treatment for left-sided neck pain just one week before her shingles rash appeared, she
expressed concern about swelling in her left neck at the injection site. Claimant
attributed all of these symptoms to as-yet undetected shingles, caused in some fashion by
Dr. Borello’s injection.
25. Dr. Huyck’s formal hearing testimony was somewhat unclear regarding whether some
complication from the September 2010 epidural steroid injection may have contributed to
cause Claimant’s January 2011 shingles outbreak. Based on the credible medical
evidence, I find ample reason to question whether Claimant’s recollection of the
procedure was accurate.4 As Dr. Huyck testified, furthermore, the symptoms that
typically precede a shingles outbreak, such as numbness, tingling and nerve pain,
commonly occur within a week of the rash itself. The symptoms Claimant described in
October and November 2010 occurred well before that time frame. For these reasons, I
find any claimed association between Claimant’s September 2010 cervical injection and
her January 2011 shingles outbreak too speculative to credit.
26. As to whether it is reasonable to attribute Claimant’s January 2011 shingles outbreak to
trauma resulting from her work injury some ten months earlier, Dr. Huyck did not
specifically address this in her testimony. The studies she referenced were not admitted
into evidence, and therefore I am unable to determine the time frame upon which their
causal association findings were based. Lacking the objective support these studies
might (or might not) lend, I find Dr. Huyck’s opinion unpersuasive.
(d) Dr. Binter
27. Defendant’s medical expert, Dr. Binter, strongly disputed any claimed association
between Claimant’s work injury and her shingles. Dr. Binter is a board certified
neurosurgeon. Although she has retired from clinical practice, she has in the past
diagnosed patients with shingles. Dr. Binter examined Claimant at Defendant’s request
in May 2012, and testified on Defendant’s behalf at formal hearing.
4 As noted above, the contemporaneous treatment notes do not report any bleeding or other complications, and as
Dr. Borello credibly asserted in his November 2010 office note, it would be “very unlikely” that a cervical steroid
injection would cause increased pain in the lower back or left leg. And while the January 2011 emergency room
records report Claimant’s “concern” regarding swelling in her left neck, no such finding was noted on exam.
8
28. As Dr. Huyck had, Dr. Binter relied on the medical literature to inform her opinion
regarding the most likely cause of shingles in Claimant’s case. Although she did not cite
to specific studies, her research identified first age and then immune system compromise
as the risk factors with the strongest support in the literature. More speculative risk
factors included both psychological stress and physical trauma. As to the latter, Dr.
Binter acknowledged that numerous articles have been published regarding a possible
association, but in her estimation their findings are vague and the relationship has not yet
been scientifically proven.
29. Even were the studies linking physical trauma to shingles to be believed, in Dr. Binter’s
opinion the ten-month delay between Claimant’s March 2010 work injury and her
January 2011 shingles outbreak made any possible causal connection unlikely. Again, as
was the case with Dr. Huyck’s opinion, no studies were introduced either to prove or
disprove this analysis.
30. Dr. Binter also questioned whether in fact Claimant’s March 2010 work injury likely
resulted in any significant head trauma at all, as Dr. Huyck apparently presumed. The
contemporaneous medical records reported that Claimant had not lost consciousness, and
as Dr. Binter observed during her evaluation, even two years later Claimant was able to
recall the incident “in exquisite detail,” which would not ordinarily be expected of a
patient who has suffered a major concussion or traumatic brain injury. For these reasons,
in Dr. Binter’s opinion Claimant likely suffered no more than a mild concussive
syndrome as a result of her work injury. Even assuming a scientifically established
association between head trauma and shingles, Dr. Binter found it implausible that such
an injury would have been severe enough to trigger reactivation of the shingles virus. I
find this aspect of Dr. Binter’s analysis credible.
31. Having rejected physical trauma as a probable cause, Dr. Binter identified psychological
stress as a more likely trigger for Claimant’s shingles. Specifically, Dr. Binter noted the
following reference in a March 14, 2011 medical record as the basis for her conclusion:
Subjective. Really difficult year. Two nephews killed in separate car
accidents, one niece died of anaphylactic shock. Devastating year.
32. Based solely on this notation, which she acknowledged was “a pretty soft finding,” Dr.
Binter concluded as follows:
I do not feel that [Claimant’s shingles] are causally related to her work
injury. I think it’s far more likely related to the stress from the precipitous
death of her relatives, which is a little bit more temporal and far more
stressful than the work injury.
9
33. In addition to the notation upon which Dr. Binter relied, the medical records contain
numerous references to other stressful circumstances in Claimant’s life, such as selling
her home, coping with chronic pain (whether from her work injury or otherwise) and
parenting a teenage son with medical issues of his own. It is unclear why Dr. Binter did
not consider any of these stressors to be possible triggers for Claimant’s shingles
outbreak. On cross examination she admitted that she had “no idea” when the relatives
referred to in the above medical record actually died, whether some months or even years
previously. Without this information, it is entirely speculative to conclude, as Dr. Binter
did, that the deaths were either “more temporal” or “far more stressful” than the work
injury was. For this reason, I find Dr. Binter’s opinion in this regard entirely
unpersuasive.
Mileage, Medical Charges and Co-Payments, Pharmacy Expenses and Temporary Total
Disability Benefit Shortages
34. With no objection from Defendant, at formal hearing Claimant was allowed to introduce
various exhibits detailing the amounts she claims Defendant owes her for unreimbursed
mileage, medical bill co-payments and pharmacy expenses, totaling $1,013.44, and also
the amount she claims her group health insurer is owed for unreimbursed medical
expenses, totaling $2,454.33. Claimant also produced an exhibit detailing her claimed
entitlement to unpaid dependency benefits, cost of living adjustments and other
temporary total disability benefit shortages, which she asserts totaled $21,456.89
(including interest and penalties) as of August 9, 2013.5
35. Some of the amounts Claimant claims are due remain unpaid because they relate to
treatment for shingles, which Defendant consistently has maintained is not causally
related to her work injury and therefore not its responsibility to pay. Other amounts
(particularly those relating to the temporary total disability benefit shortfalls) are not
defensible on those grounds. Defendant failed almost from the beginning to calculate
Claimant’s weekly benefit correctly, and failed to include the dependency benefit due on
account of her minor child. Later it failed to make required annual cost of living
adjustments. As a consequence of these omissions, on May 3, 2013 the Department’s
workers’ compensation specialist issued an interim order that all arrearages be paid, with
interest and penalties in accordance with 21 V.S.A. §650(e) and Workers’ Compensation
Rule 3.1200. I find that penalties and interest were appropriately assessed and therefore
that this order was appropriately issued.
5 It is unclear to what extent this amount remains in arrears, and also whether additional arrearages have
accumulated since the exhibit was prepared.
10
36. As the focus of the formal hearing was solely on whether Claimant’s shingles is causally
related to her work injury, neither party addressed the question whether she has reached
an end medical result, either for that condition or for her accepted injuries.6 As to the
latter, Defendant has not yet filed a Notice of Intention to Discontinue Benefits (Form
27).
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 primary disputed issue here is whether a causal relationship exists between
Claimant’s compensable March 2010 work injury and her shingles disease. The parties
introduced conflicting expert medical evidence on this point. In such situations, the
commissioner traditionally uses a five-part test to determine which expert’s opinion is the
most persuasive: (1) the nature of treatment and the length of time there has been a
patient-provider relationship; (2) whether the expert examined all pertinent records; (3)
the clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
6 Defendant has never filed an Agreement for Temporary Compensation (Form 32), and therefore it is difficult to
determine which of Claimant’s other injuries it has accepted as compensable. There seems little doubt that her
cervical and lower back injuries are causally related to the March 2010 accident, but Defendant’s position as to her
claimed traumatic brain injury is less clear. Certainly more attentive adjusting and closer adherence to Vermont’s
workers’ compensation rules would have provided more clarity.
11
3. Neither of the experts who testified at formal hearing gave particularly compelling
opinions regarding the etiology of Claimant’s shingles. Dr. Huyck’s opinion was
weakened significantly by her failure to account for the ten-month delay between
Claimant’s work injury and her first shingles outbreak. Dr. Binter’s opinion was
rendered incredible by its reliance on a single reference to an unrelated psychological
stressor as determinative, a conclusion even she admitted was “soft” and speculative.
Neither expert addressed whether Claimant’s age might have been a trigger for the
disease. Both doctors asserted that the medical literature supported their respective
positions, but neither did so with sufficient specificity for me to evaluate the strength of
their assertions. For example, while both asserted that the medical research has identified
“stress” as a possible risk factor, each applied a different interpretation of the term – Dr.
Huyck inferred physical stress from the body’s healing process, Dr. Binter inferred
psychological or emotional stress. As a result, I have difficulty attributing the necessary
objective support to either of their opinions.
4. Neither of the experts who testified appeared to possess the level of training, experience
or expertise sufficient to establish superior knowledge on the causation question,
furthermore. Perhaps Dr. Huston, who specializes in treating infectious diseases, could
have filled in the necessary gaps had he testified. As it is, however, his opinion was
expressed in a single sentence in a single office note. Given the current state of medical
research, from which I can conclude only that the mechanism by which trauma might
trigger shingles is both complex and poorly understood, this simply is not enough to carry
the day.
5. Because Claimant bears the burden of proof on the causation issue, in the final analysis it
is her expert’s credibility that matters most. More to the point, merely stating a
conclusion to a reasonable degree of medical certainty does not necessarily make it so,
even if no more credible opinion is offered. See, e.g., Seymour v. Genesis Health Care
Corp., Opinion No. 53-08WC (December 29, 2008). In this case, despite the weaknesses
in Dr. Binter’s analysis, I conclude that Dr. Huyck’s causation opinion is not strong
enough on its own to persuade me.
6. I thus conclude, based on the evidence presented, that Claimant has failed to sustain her
burden of proving the necessary causal relationship between her work injury and her
shingles to establish compensability. That being the case, I conclude that Defendant is
not responsible for whichever unpaid mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to her treatment
for shingles. As the parties did not offer evidence or address their proposed findings to
specific charges, I cannot make a more specific ruling at this time.
12
7. Notwithstanding my conclusion that Claimant’s shingles is not compensable, I conclude
that Defendant is liable for all of the temporary total disability payment shortages
referred to in Finding of Fact No. 34 supra, as well as any arrearages that have
accumulated since August 9, 2013. Defendant’s liability for these shortages arises not
from its refusal to pay for benefits attributable to shingles, but rather from its failure to
properly calculate the benefits owed on account of injuries it has never properly denied or
disputed.
8. In a similar vein, I conclude that Defendant is liable for ongoing temporary total
disability benefits until such time as it lawfully terminates them in accordance with
Workers’ Compensation Rule 18.1000.
9. Claimant has requested an award of costs totaling $462.25 and attorney fees totaling
$37,743.50. As all of her costs appear to relate to the primary disputed question –
whether her shingles is causally related to her work injury – and as she failed to prevail
on that issue, I conclude that she is not entitled to an award of costs. 21 V.S.A. §678(a);
see Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
10. As for attorney fees, I conclude that a considerable amount of the hours billed were to
address problems that arose as a consequence of Defendant’s failure to properly adjust
Claimant’s claim in accordance with Vermont’s workers’ compensation rules and
procedure. With that in mind, I conclude that it is appropriate to award attorney fees of
$12,581.16, or one-third of the total requested.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Whichever unpaid claims for mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to
injuries other than Claimant’s shingles disease, with interest as calculated
according to 21 V.S.A. §664;
2. Temporary total disability payment shortages totaling $21,456.89 as of August 9,
2013, plus any arrearages that have accumulated since that date, with interest and
penalties on any amounts still outstanding as calculated according to 21 V.S.A.
§§650(e) and 664 and Workers’ Compensation Rule 3.1200;
3. Ongoing temporary total disability benefits in accordance with 21 V.S.A. §642
and continuing until lawfully terminated in accordance with Workers’
Compensation Rule 18.1000; and
4. Attorney fees totaling $12,581.16, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 24th day of January 2014.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

P. K. v. Addison-Rutland Supervisory Union (August 2, 2007)

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

P. K. v. Addison-Rutland Supervisory Union (August 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. K. Opinion No. 20-07WC
v. Phyllis Severance Phillips, Esq.
Hearing Officer
Addison-Rutland Supervisory
Union Patricia Moulton Powden
Commissioner
State File No. W-57184
OPINION AND ORDER
Hearing held in Montpelier on March 26, 2007
APPEARANCES:
Christopher McVeigh, Esq. for Claimant
David Berman, Esq. for Defendant
ISSUES PRESENTED:
1. Whether Claimant suffered a compensable injury in the course and scope of her employment for Defendant on January 3, 2005; and
2. If yes, to what benefits is she entitled, and at what compensation rate.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit A: Teacher Contract
Defendant’s Exhibits:
Defendant’s Exhibit 1: Curriculum Vitae of Todd P. Lefkoe, M.D.
Defendant’s Exhibit 2: Addison-Rutland Supervisory Union Calendar for 2004-05
Defendant’s Exhibit 3: Pauline Kearney Sick Time
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CLAIM:
1. Temporary total disability benefits under 21 V.S.A. §642 from January 3, 2005 through January 28, 2005;
2. Temporary partial disability benefits under 21 V.S.A. §646 from February 1, 2005 through February 28, 2005;
3. Permanent partial disability benefits under 21 V.S.A. §648 in an amount to be determined based on the extent of Claimant’s permanent impairment;
4. Interest on the above under 21 V.S.A. §664; and
5. Attorney’s fees and costs under 21 V.S.A. §678.
FINDINGS OF FACT:
1. At all times relevant to these proceedings Claimant was an employee of Defendant, and Defendant was Claimant’s employer, within the meaning of Vermont’s Worker’s Compensation Act.
2. Claimant has worked as a librarian at the Fair Haven Graded School since 1988. Her duties include teaching and reading with students, purchasing, stacking and shelving books and generally maintaining the library.
3. The bookcases in the school library are about four feet tall, with shelves ranging from the floor up to the four-foot height. Re-shelving books requires frequent carrying, bending, twisting, reaching and stooping, particularly to replace books on the lower shelves. Students who borrow books are discouraged from re-shelving them; thus Claimant is solely responsible for this task.
4. Claimant has a history of low back pain, diagnosed as lumbar spinal stenosis, dating back to 1996. Her symptoms at that time were right-sided low back and buttock pain radiating to her right groin and knee. She treated with Joseph Corbett, M.D., a neurosurgeon, who performed an L4-5 laminectomy in December 2006.
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5. Claimant recovered well from her 1996 surgery. From 1996 until January 2005 she experienced only minor episodes of low back, hip and/or lower extremity pain. Specifically:
(a) In July 1997 Claimant reported to Dr. Corbett that she had been experiencing some discomfort in her left buttock and knee, which resolved with conservative treatment and home exercise;
(b) In October 2002 Claimant treated with Robert Larson, D.C., a chiropractor, for left leg pain radiating from her sciatic notch to her knee. Dr. Larson diagnosed lumbar radicular syndrome at the L4 nerve root and degenerative spondylolisthesis at L4. He prescribed a lumbar stretching and stabilization program. Dr. Larson re-examined Claimant on December 2, 2002 and reported that her symptoms had improved significantly. On December 20, 2002 he reported that Claimant’s symptoms had resolved completely and she was released from treatment;
(c) On November 10, 2004 Claimant again sought treatment with Dr. Larson, this time for right hip pain. She missed one day of work. Dr. Larson performed manual therapy and her symptoms resolved.
6. The Fair Haven Graded School closed for the Christmas holiday from December 22, 2004 until January 3, 2005. During this time Claimant wrapped gifts, prepared Christmas dinner, performed ordinary household tasks and visited with her family. She did not engage in any strenuous outdoor activities or travel long distances. She did not suffer any injuries, did not experience any low back, hip or lower extremity pain and did not seek any medical treatment.
7. The Christmas break ended on January 3, 2005 and Claimant returned to work. Claimant arrived at the school at 8:00 AM and began re-shelving books. Because many students had returned books borrowed over the holiday break, Claimant had more books to re-shelve than usual. She spent the morning doing so.
8. Over the course of the morning, Claimant began to experience discomfort in her left lower back. At noon, she went to the school nurse’s office. The school nurse on duty that day, Mary Waite, R.N., gave Claimant four ibuprofen. Claimant took two pills immediately and two more one-half hour later.
9. By 1:00 PM Claimant was experiencing what she described as excruciating, unbearable pain radiating from the left side of her back down her left leg and into her left big toe. Claimant felt nauseous from the pain and decided to leave work immediately. She asked a co-employee to go to the office for her and report that she was leaving.
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10. Claimant secured an emergency appointment with Dr. Larson for 3:30 PM on January 3, 2005. Dr. Larson’s note reflects that Claimant reported that “her symptoms all began earlier today, while at work,” and that they “began during the course of her usual duties around mid morning.” Dr. Larson noted that Claimant’s pain seemed to follow the L4 distribution, but was left-sided this time, in contrast to the right-sided pain Claimant had experienced in 1996. Dr. Larson performed a chiropractic manipulation, but when that failed to relieve Claimant’s pain he determined that Claimant needed medications for immediate pain control. Because Dr. Corbett was not available, Dr. Larson recommended instead that Claimant go to the hospital emergency room. In addition, Dr. Larson scheduled an MRI for the next day, January 4, 2005 and an appointment with Dr. Corbett for January 14, 2005.
11. Claimant went to the Rutland Regional Medical Center Emergency Department at 6:00 PM on January 3, 2005 and was examined by Steven Stein, M.D. Dr. Stein’s note states that Claimant “woke up with her back feeling stiff” and that it “progressively got worse with pain radiating into her left buttock and down into the left calf.” Dr. Stein administered pain medications and steroids and discharged Claimant to follow up with Dr. Corbett.
12. In her formal hearing testimony Claimant disputed Dr. Stein’s report that her symptoms began before work on January 3, 2005. She stated that she told Dr. Stein that the discomfort in her low back began “in the morning,” and he implied from that statement that it was present when she awoke, which was not the case.
13. Claimant’s pain subsided with the medications Dr. Stein administered, but the following day she began to experience numbness in her left leg, foot and toe. On that day, January 4, 2005, she turned her left ankle while walking and sprained her foot. Claimant testified that she did not slip, trip or stumble, but that her ankle turned because it was numb and difficult to control.
14. Claimant underwent an MRI on January 4, 2005 which revealed degenerative disc changes at L4-5, slightly greater than on previous exam in 1996.
15. Claimant next treated with Dr. Larson on January 5, 2005. Dr. Larson reviewed the MRI scan and noted that the results correlated well with Claimant’s clinical picture of combined L4-5 symptoms and neurological deficits. Dr. Larson reported that Claimant’s low back and leg symptoms had improved significantly and that there was no evidence of acute nerve root tension. However, Dr. Larson noted profound weakness in Claimant’s left ankle muscles. He prescribed an ankle brace as treatment and later added a self-guided ankle rehabilitation program as well.
16. Dr. Larson determined that Claimant was totally disabled from working from January 4, 2005 until February 1, 2005 as a result of both her low back and left leg pain and her left ankle sprain.
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17. On the evening of January 4 or 5, 2005 Claimant called the school nurse, Mary Waite, R.N., at home to report that she had injured herself at work and that Dr. Larson had taken her out of work for the month. Ms. Waite acknowledged receiving this call but could not recall any of its details.
18. Ms. Waite testified that it was unusual for a school employee to call her at home to report a work-related injury. She testified that under normal circumstances when an employee reports a work-related injury to her, she gives him or her a First Report of Injury form to fill out, with instructions to return the form to her within three days. If the employee fails to do so, it is Ms. Waite’s responsibility to follow up.
19. Ms. Waite testified that she did not record every request by an employee for ibuprofen. Nor did she keep a record of an employee’s complaint of pain or discomfort if she did not understand it to be work-related.
20. Ms. Waite did not provide Claimant with a First Report of Injury form, either on January 3, 2005 when she gave Claimant ibuprofen for her low back pain, or following Claimant’s telephone call on the evening of January 4 or 5, 2005.
21. Claimant did not file a First Report of Injury form until February 2, 2005 upon her return to work part-time.
22. Dr. Larson treated Claimant for her ankle sprain and foot drop throughout the months of January and February 2005. He prescribed a home therapy program and continued use of an ankle brace.
23. Dr. Corbett examined Claimant on January 14, 2005 and again on February 14, 2005. He noted Claimant’s left foot drop, with left-sided dorsiflexion weakness and some numbness as well. Ultimately, Dr. Corbett determined that Claimant had improved with lumbar flexion exercises and therefore did not require either epidural steroid injections or surgery. Aside from a final re-check on May 3, 2005 Claimant has not sought further treatment from Dr. Corbett.
24. Dr. Larson released Claimant to return to work half-days from February 1, 2005 through February 27, 2005. He released her to return to work full-time, full-duty on February 28, 2005.
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25. Both Dr. Corbett and Dr. Larson theorize the progression of Claimant’s symptoms as follows:
(a) Claimant had a degenerative condition in her lumbar spine at the L4-5 region for which she underwent surgery in December 1996;
(b) This degenerative condition caused Claimant to be more vulnerable to pinching a nerve in her lumbar spine;
(c) The bending, squatting, stooping and twisting Claimant performed while re-shelving books on January 3, 2005 are the types of activities that can cause an L-5 nerve root to become pinched, and based on the temporal relationship between these activities and the onset of Claimant’s severe low back and leg pain it is likely that this is in fact what caused Claimant’s L5 nerve root to become pinched;
(d) The nerve damage caused by the pinched L5 nerve root caused Claimant to suffer dorsiflexion weakness in her left foot, resulting in numbness and an inability to pick up the front of her left foot;
(e) This “foot drop” caused Claimant’s left ankle to be easily inverted, as happened on January 4, 2005 when she sprained her ankle.
26. At Defendant’s request, on March 1, 2005 Claimant underwent an independent medical evaluation with Todd Lefkoe, M.D., a physiatrist. Dr. Lefkoe reviewed all pertinent medical records and conducted a thorough physical examination. Dr. Lefkoe reported that Claimant described “going about her normal work activities, squatting and shelving books,” that “within a few hours of starting work, she became aware of some discomfort in the low back,” and that “over the course of the next 1 to 1-1/2 hours, pain became ‘excruciating’ in the left low back.” Dr. Lefkoe also remarked that Claimant “reported her symptoms to the school nurse, but [was] unsure whether an official report of injury was made.”
27. Dr. Lefkoe’s diagnosis was left L5 radiculopathy, L4-5 spondylolisthesis and L4-5 central stenosis secondary to spondylolisthesis and facet arthropathy.
28. As to causal relationship, Dr. Lefkoe opined that these conditions were not related to Claimant’s work activities on January 3, 2005 but rather were solely degenerative in nature. Dr. Lefkoe based this opinion primarily on the lack of a temporal relationship between Claimant’s work and the onset of her symptoms. Significantly, in reaching this conclusion Dr. Lefkoe relied on the January 3, 2005 Emergency Department record noting that Claimant had awoken with back pain on that day. In doing so, he chose to disregard Claimant’s own version of events as well as Drs. Larson and Corbett’s records, which reported that Claimant’s symptoms began at mid-morning on January 3rd, after she already had been at work for some time.
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29. Since 2005 Claimant has continued to experience left ankle weakness, fatigue and instability. She continues to use an ankle brace. According to Dr. Larson, her symptoms are stable and are not expected to improve with further treatment.
30. Claimant’s employment contract with Defendant for the 2004-2005 school year provides as follows:
1. This agreement . . . is hereby made for the school year beginning July 1, 2004 and ending June 30, 2005.
2. The period of service shall begin August 23, 2004 and continue for not more than 180 teaching days. In addition, the teacher agrees to attend educational meetings and inservice programs for a period of time not to exceed five (5) additional days during or immediately following the school year, as directed by the Superintendent of Schools.
3. [T]he teacher’s total compensation under this contract [is determined] to be $43,815.
31. During the school year, Claimant received her pay on a bi-weekly basis. During the summer months, Claimant had the option of receiving the remainder of her annual salary in a lump sum rather than continuing with biweekly payments. Claimant chose the lump sum option.
CONCLUSIONS OF LAW:
Compensability
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). Sufficient competent evidence must be submitted verifying the character and extent of the injury and disability, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. It is black-letter law that an employer takes its employee as it finds him or her, and that therefore the work-related aggravation of a pre-existing condition is compensable. See Pacher v. Fairdale Farms, 166 Vt. 626 (1997); J.M. v. Vencor/Starr Farm Nursing Center, Opinion No. 09-04WC (Feb. 12, 2004); Moran v. City of Barre, Opinion No. 33-02WC (July 31, 2002).
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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). With these factors in mind, the key question is which expert medical opinion is the most credible? Bonenfant v. Price Chopper, Opinion No. 13-07WC (May 8, 2007).
4. The disputed issue in the current claim centers on whether the left foot drop from which Claimant now suffers, which followed the episode of severe low back and left leg pain she experienced on January 3, 2005 is causally related to her book re-shelving activities on that day. Drs. Larson and Corbett say yes; Dr. Lefkoe says no.
5. At the heart of the doctors’ dispute as to causation is the existence, or lack thereof, of a temporal relationship between the onset of Claimant’s symptoms and her work activities on January 3, 2005. Drs. Larson and Corbett’s opinion as to causation stems in large part from their belief that Claimant’s symptoms arose at work. Both doctors concluded that the type of activities in which she was engaged at the time – bending, squatting, twisting and stooping – involved movements that reasonably could be expected to cause her to suffer a pinched nerve in her lumbar spine, particularly given her pre-existing degenerative condition. The symptoms she experienced, including both the severe pain she suffered on January 3rd and the left foot drop that developed subsequently, were consistent with their causation theory. Their opinions were clear, thorough and objectively supported by medical fact and anatomical reality.
6. In contrast, Dr. Lefkoe’s causation opinion takes as its starting point that Claimant’s symptoms began when she awoke on January 3, 2005 and therefore already were present when she arrived at work on that day. Were that fact true, Dr. Lefkoe’s conclusion that Claimant’s symptoms were not causally related to her work would be more convincing, and her claim might fail.
7. I find no reason to disbelieve Claimant’s version of events, however. Her testimony at formal hearing was both credible and consistent with what she had reported to both Drs. Larson and Corbett and, in fact, to Dr. Lefkoe as well. The only discrepancy in the medical record comes from Dr. Stein’s Emergency Department report. I find it reasonable to surmise that Dr. Stein simply misunderstood.
8. It is true that a temporal relationship alone may be insufficient to support a finding of medical causation. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983). However, if evidence of a temporal relationship is combined with (1) a pre-existing condition that makes the resulting injury more likely to occur; and (2) work activity of a type that is likely to cause the symptoms that in fact result, the necessary causal connection may be established. See McMillan v. Westaff, Opinion No. 52-03 (Dec. 17, 2003).
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9. I find that Drs. Larson and Corbett’s opinions as to causation are credible and convincing. I conclude, therefore, that Claimant injured her lower back and developed a left foot drop while engaged in the course and scope of her employment for Defendant on January 3, 2005. Her claim, therefore, is compensable.
Average Weekly Wage and Compensation Rate
10. Having concluded that Claimant suffered a compensable injury, the remaining issue concerns the appropriate average weekly wage and compensation rate. Claimant argues that her average weekly wage should be calculated on the basis of a 43-week annualized salary, as this was the period of service specified in her teacher contract. Defendant argues that Claimant’s average weekly wage should be calculated on the basis of a 52-week annualized salary. Defendant’s calculation yields the average weekly wage that Claimant actually received during the 12 weeks preceding her injury. Claimant’s calculation yields a higher average weekly wage than what she actually received during that 12-week period.
11. A claimant who is temporarily disabled as a result of a work-related injury is entitled to receive weekly compensation benefits equal to two-thirds of his or her average weekly wages. 21 V.S.A. §642. Average weekly wages “shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding an injury.” 21 V.S.A. §650(a).
12. Although many states have adopted an annualized basis for determining a claimant’s average weekly wage and compensation rate, Vermont is not one of them. By determining that the twelve weeks preceding the injury must be used to compute the average weekly wage, the legislature provided a “bright line direction,” one that “favors ease of administration over proration.” Smith v. Rock of Ages, Opinion No. 19-98WC (Apr. 15, 1998).
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13. To use a 43-week annualized salary as the basis for determining Claimant’s average weekly wage would contradict the clear language of §650(a). Using such a method could lead to other unanticipated consequences as well. Imagine, for example, that Claimant was disabled for an entire year and therefore receiving temporary disability benefits for 52 weeks. Using the calculation mandated by §650(a), her workers’ compensation benefits would total $29,224:
Annual salary = $43,815
AWW for 12 weeks pre-injury
(based on 52-week year) = $ 843
Compensation rate (2/3 AWW) = $ 562
52 weeks TTD ($562 x 52) = $29,224 = 2/3 annual salary
Using the calculation suggested by Claimant, however, her workers’ compensation benefits would total $35,360:
Annual salary = $43,815
AWW based on 43-week year = $ 1019
Compensation rate (2/3 AWW) = $ 680
52 weeks TTD ($680 x 52) = $35,360 = 80% annual salary
Under this scenario, the compensation awarded Claimant on the basis of her proposed method of calculation – 80% of her annual salary – would violate the statutory mandate that a claimant’s compensation benefit equal two-thirds of her average wage. 21 V.S.A. §642. There is no basis for allowing a claimant to reap such a windfall, particularly in light of clear legislative intent and statutory language to the contrary.
14. In support of her argument, Claimant cites to a training manual published by this Department in 2001 that states: “To determine the average weekly wage for a teacher, the amount of the contract is divided by the number of weeks in the employment contract.” 2001 Vermont Workers’ Compensation Training Manual, Indemnity Benefits, Paragraph H. Given that this instruction has never been codified into an administrative rule, and more importantly, given that it directly conflicts with the plain language of the statute, I cannot consider it to be valid legal authority.
15. Claimant also cites to a number of cases from other jurisdictions in support of her position. The statutes at issue in those cases differ in important respects from Vermont’s statute, however. Most significantly, in none of them is the time period to be used in determining a claimant’s average weekly wage specified in the same manner as in §650(a). For example, in Powell v. Industrial Commission, 451 P.2d 37 (Ariz. 1969), the statute provided for a claimant’s compensation rate to be based on his or her average monthly wage, and did not specify the number of months to be used in the calculation. Importantly, the statute required that the average wage be based on a reasonable representation of the claimant’s earning capacity, not the claimant’s earnings, as is the case under §650(a). See also Magnet Cove School District v. Barnett, 97 S.W.3d 909 (Ark. App. 2003)(time period for computing average weekly wage not specified); Lynch v. U.S.D. No. 480, 850 P.2d 271 (Kan. App. 1993)(statute provided specific guidance in cases where wage rate was not fixed by year, month, week or hour).
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16. I conclude, therefore, that Claimant’s compensation rate must be based on her average weekly wages for the twelve weeks preceding her injury, as required by §650(a), so that it does not conflict with the two-thirds limitation contained in §642.
Attorney’s Fees and Costs
17. Claimant has submitted a request under 21 V.S.A. §678 and Workers’ Compensation Rule 10.0000 for costs totaling $679.99 and attorney’s fees representing 78.5 hours of legal services performed.
18. An award of costs to a prevailing claimant is mandatory under 21 V.S.A. §678; awarding attorney’s fees, however, lies within the Commissioner’s discretion. When a claimant has partially prevailed, a fee will be based on the degree of success. J.R. v. Benchmark Assisted Living, Opinion No. 46A-05WC (Nov. 23, 2005).
19. The key dispute in this claim centered on compensability, and in fact this is reflected in the attorney’s itemized billing statement. Although Claimant did not succeed on the average weekly wage issue, I find that she has substantially prevailed on her claim as a whole. Therefore, I award attorney’s fees in the full amount, 78.5 hours at the rate mandated by Rule 10.1210, $90 per hour, for a total of $7,065.
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ORDER:
1. Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
2. Temporary total disability benefits for the period from January 3, 2005 through January 28, 2005;
3. Temporary partial disability benefits for the period from February 1, 2005 through February 28, 2005;
4. Permanent partial disability benefits in an amount to be determined based on the extent of Claimant’s permanent impairment;
5. Interest on the above amounts in accordance with 21 V.S.A. §664;
6. Costs in the amount of $679.99; and
7. Attorney’s fees in the amount of $7,065.
All disability benefits are to be paid at a compensation rate calculated based on Claimant’s average weekly wage for the twelve weeks prior to her injury. Claimant’s claim for compensation benefits to be paid at a higher rate is DENIED.
Dated at Montpelier, Vermont this 2nd day of August 2007.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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