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Laurel Zeno v. University of Vermont (August 19, 2010)

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Laurel Zeno v. University of Vermont (August 19, 2010)

 

STATE OF VERMONT

DEPARTMENT OF LABOR

 

Laurel Zeno Opinion No. 27-10WC

 

v. By: Phyllis Phillips, Esq.

Hearing Officer

University of Vermont

For: Valerie Rickert

Acting Commissioner

 

State File No. Z-00033

 

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

ATTORNEYS:

 

Christopher McVeigh, Esq., for Claimant

Stephen Ellis, Esq., for Defendant

 

ISSUES PRESENTED:

 

1. Do any genuine issues of material fact exist as to whether Defendant’s May 1,
2008 discontinuance of benefits on end medical result grounds was proper?

 

2. Is Defendant entitled to judgment as a matter of law as to the extent of Claimant’s
permanent impairment, if any, causally related to her June 20, 2007 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. On June 20, 2007 Claimant suffered a work-related injury when she fell in Defendant’s
parking lot. Subsequently she sought treatment for right knee and left shoulder pain
causally related to her fall.

 

2. Claimant has an extensive prior medical history, including right shoulder surgery in 1998,
left shoulder surgery in 2006 and right knee arthroscopy in 2003. Claimant also suffers
from cerebral palsy on her left side.

 

Medical Evidence as to the Cause, Nature and Extent of Claimant’s Injury

 

3. Since her June 2007 fall Claimant has treated primarily with Dr. Campbell for her right
knee symptoms and with Dr. Macy for her left shoulder symptoms. She also has treated
regularly with Dr. Hageman, her primary care provider, for general health issues.

4. In his office notes, Dr. Campbell has described the etiology of Claimant’s right knee
symptoms as “multifactorial” and consistent with some combination of osteoarthritis,
iliotibial band friction syndrome and tibiofibular joint pain. More recently, in a July 12,
2010 letter to Claimant’s attorney Dr. Campbell stated that the preexisting arthritis in
Claimant’s right knee “was certainly aggravated” by her June 2007 fall.

 

5. As treatment for Claimant’s right knee symptoms, Dr. Campbell has at various times
prescribed injections, physical therapy and Celebrex.

 

6. As for Claimant’s left shoulder complaints, Dr. Macy first addressed these in September
2007. His treatment plan at the time included physical therapy. Claimant participated in
physical therapy from September 2007 through March 2008, at both Dr. Campbell’s and
Dr. Macy’s referral.

 

7. At Defendant’s request, in March 2008 Claimant underwent an independent medical
examination with Dr. Levy. In Dr. Levy’s opinion, “the most probable cause of
[Claimant’s] longstanding widespread pain is degenerative arthritic change in all regions
involved, including both shoulders and knees.” Dr. Levy determined that the June 2007
fall had resulted in a flare-up of Claimant’s “pre-existing problem,” but had not caused
any aggravation in her underlying condition. According to his diagnosis, Claimant had
suffered only a bruised right knee and a soft tissue injury to her left shoulder as a result of
her June 2007 fall at work.

 

8. In Dr. Levy’s opinion, Claimant would have reached an end medical result for her right
knee within 7 to 14 days after her fall, and for her left shoulder “sometime in the fall of
2007 after she did four to six weeks of physical therapy.” As for permanency, Dr. Levy
rated Claimant with a 0% impairment referable to the June 2007 fall.

 

9. With Dr. Levy’s independent medical examination as support, in April 2008 Defendant
denied responsibility for any other injuries Claimant allegedly suffered as a consequence
of her June 2007 fall. It also filed a Notice of Intention to Discontinue Payments (Form
27) as to both temporary disability and medical benefits on the grounds that Claimant had
reached an end medical result for her compensable injuries. The Department approved
Defendant’s discontinuance effective May 2, 2008.

 

10. On May 9, 2008 Claimant filed a Notice and Application for Hearing (Form 6), in which
she sought temporary partial disability benefits, permanent partial disability benefits,
medical benefits and attorney fees on account of her June 2007 fall. Claimant stated the
issues in dispute as: “Whether [Claimant] is at a medical end result; whether the Form 27
is supported by a probability of the evidence; whether [Claimant] is entitled to a gym
membership.”1
1 Claimant appears to have withdrawn her request for a gym membership.
11. Notwithstanding Defendant’s discontinuance, Claimant has continued to treat
sporadically with Dr. Campbell for her persistent right knee discomfort. The medical
records reflect additional physical therapy referrals in both June 2008 and December
2009. Claimant also underwent injections in December 2009 and again in May 2010. In
April 2010 she underwent a bone scan.

 

12. Claimant also has treated on two occasions with Dr. Macy since Defendant’s
discontinuance, once in December 2009 and again in January 2010. The December 2009
office note describes both left and right shoulder pain, but according to Dr. Macy, “at this
point, her right shoulder is more bothersome.” Dr. Macy determined that the left
shoulder could not be repaired surgically. His treatment plan was to obtain a right
shoulder MRI. Dr. Macy reviewed the results of the MRI at Claimant’s January 2010
visit, and prescribed a course of physical therapy for her right shoulder. His office note
does not reflect any further treatment recommendations for Claimant’s left shoulder
discomfort.

 

13. In her December 17, 2007 office note, Dr. Hageman stated her opinion that Claimant’s
previous injuries “were definitely aggravated” by her June 2007 fall. Dr. Hageman also
remarked that Claimant “would likely benefit from continued physical therapy/aqua
therapy” for her left shoulder symptoms. Presumably this was a reference to the therapy
Claimant already was undergoing at Dr. Macy’s referral.

 

Discovery and Disclosure Issues

 

14. In anticipation of the formal hearing in this claim, which previously was scheduled for
October 2009, in July 2009 Defendant filed its final disclosures, in which it identified the
disputed issues as including (1) whether Claimant had reached an end medical result for
her compensable work injury on June 20, 2007; and (2) if yes, whether there was any
resulting permanent impairment.

 

15. Also anticipating the previously scheduled formal hearing, Claimant filed her final
disclosures in October 2009, in which she characterized the issues for determination as
including “the extent of benefits” due her under the Workers’ Compensation Act.
Claimant identified Dr. Campbell as her witness regarding the care and treatment of her
knee injury, and Dr. Macy as her witness regarding the treatment of her left shoulder
injury.

 

16. Initially both parties had included as a disputed issue the question whether Claimant
sustained a compensable work-related injury as a result of her June 20, 2007 fall.
Defendant later conceded that she did, and now characterizes the disputed issues as
involving only the nature and extent of that injury. Defendant has identified Dr. Levy as
its expert witness on these issues. Presumably Dr. Levy will testify in accordance with
the opinions noted in Findings 7 and 8 above.

17. In January 2010 Defendant served expert interrogatories on Claimant. Claimant did not
initially respond, whereupon the hearing officer ordered her to do so no later than May
21, 2010. Claimant notified Defendant by letter on that date that she intended to call Dr.
Campbell to testify regarding her knee condition. Claimant specified that Dr. Campbell
would testify that her current knee condition was the result of her June 20, 2007 fall at
work, and that his testimony would be “consistent with his medical records.”

 

18. The formal hearing now has been rescheduled to October 8, 2010 with final disclosures
due no later than September 10, 2010.

 

19. On July 13, 2010 Claimant filed a “Supplemental Disclosure” with the hearing officer, in
which she named both Dr. Hageman and Dr. Macy as additional expert witnesses whom
she anticipates calling at hearing. Claimant anticipates that Dr. Hageman will testify
“consistent with her medical notes in which she opined that [Claimant’s] June 20, 2007
fall aggravated her left shoulder and right knee conditions.” Claimant anticipates that Dr.
Macy will testify “consistent with his medical records that [Claimant] has had an ongoing
left shoulder condition for which he has recommended physical therapy.”

 

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. Here, Defendant contends that Claimant has failed to adduce sufficient evidence to
establish that she had not reached an end medical result for the injuries she sustained in
her June 2007 fall at least by May 2, 2008, the effective date of Defendant’s Form 27
discontinuance. Thus, Defendant argues, it is entitled to summary judgment in its favor
on the question whether its discontinuance was properly supported.

 

3. I cannot agree with Defendant’s characterization of the evidence, particularly as it
pertains to Claimant’s right knee injury. Dr. Campbell’s office notes reflect ongoing,
albeit somewhat sporadic, treatment well beyond May 2008 and as recently as May 2010.
Given his opinion that the June 2007 fall “certainly aggravated” the pre-existing arthritis
in Claimant’s right knee, genuine issues of material fact exist as to whether this treatment
was necessitated by that aggravation. If it was, then Claimant may not have reached an
end medical result as early as Defendant contends. This, therefore, is a factual issue
sufficient to defeat summary judgment.

4. I also must reject Defendant’s assertion that it is entitled to summary judgment on the
question whether Claimant suffered any permanent impairment as a consequence of her
June 2007 fall. Defendant contends that Claimant has not produced any evidence to
negate Dr. Levy’s determination that there was no ratable permanency referable to the
limited injuries he diagnosed. This is true, but it does not follow that summary judgment
on the issue is therefore warranted. At the heart of the parties’ dispute is Claimant’s
assertion that the June 2007 fall caused injuries far more substantial than what Dr. Levy
diagnosed, that her treatment has not yet concluded and that therefore it is premature to
estimate the extent of her permanent impairment. Genuine issues of material fact abound
here, which render summary judgment inappropriate.

 

5. Last, Defendant argues that because Claimant’s “Supplemental Disclosure” of Drs.
Hageman and Macy as witnesses was filed after the deadline for responding to its expert
interrogatories, it should be disregarded. I do not condone in any respect Claimant’s
failure to respond to Defendant’s discovery requests in a complete and timely manner.
Nevertheless, I am mindful of the fact that the hearing officer’s final disclosure deadline
has not yet passed and that there is still ample time for Defendant to prepare for these
witnesses’ appearance prior to the October 8, 2010 formal hearing. Under these
circumstances, I will not grant the relief Defendant seeks.

 

ORDER:

 

Defendant’s Motion for Summary Judgment is hereby DENIED.

 

 

DATED at Montpelier, Vermont this 19th day of August 2010.

 

 

 

 

_______________________

Valerie Rickert

Acting Commissioner

 

 

 

Appeal:

 

Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

Robin Houle v. Ethan Allen (February 25, 2010)

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

Robin Houle v. Ethan Allen (February 25, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robin Houle Opinion No. 09-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Ethan Allen
For: Patricia Moulton Powden
Commissioner
State File No. P-03516
OPINION AND ORDER
Hearing held in Montpelier, Vermont on September 21, 2009
Record closed on October 30, 2009
APPEARANCES:
Patricia Turley, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s right shoulder condition compensable?
2. Was the Department’s review and approval of Defendant’s discontinuance appropriate?
EXHIBITS:
Joint Exhibit 1: Medical records
Claimant’s Exhibit 1: Deposition of Andrew Chen, M.D., September 1, 2009
Claimant’s Exhibit 2: Curriculum vitae, Andrew Chen, M.D.
Claimant’s Exhibit 3: Deposition of Bruce Latham, D.O., August 4, 2009
Defendant’s Exhibit A: Brad Baker statement, February 13, 2008
CLAIM:
Workers’ compensation benefits causally related to Claimant’s right shoulder condition
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 began working at Defendant’s furniture manufacturing factory in 1997. Initially she was assigned to the “trim and wax” process. This job involves removing drawers from a finished dresser, sanding and waxing them, installing hardware and then returning them to the dresser.
Claimant’s Left Shoulder Injury
4. In August 1999 Claimant injured her neck and left shoulder while pulling on a drawer to remove it from its dresser. She treated conservatively for this injury, which was diagnosed variably as a left elbow, wrist and/or shoulder strain, tendonitis, or cervical radiculopathy. Claimant reached an end medical result in December 2000 and received permanent partial disability benefits in accordance with a 9.5% impairment referable to her neck.
5. Following her 1999 injury Claimant continued to experience pain and weakness in her left shoulder and arm. Her medical providers imposed modified duty restrictions that precluded her from using her left arm for reaching, lifting more than 10 pounds or repetitive motion, including sanding. In order to comply with these restrictions, Defendant reassigned Claimant away from the “trim and wax” process and into an inventory control/stockroom clerk position.
6. Claimant’s duties in the inventory control position were quite varied. She counted shelves, hardware bags, sanding pads, screws and other materials, and distributed them to workers on the manufacturing floor. She monitored the contents of the trucks that arrived and departed from the factory to ensure that they were loaded and routed correctly. She ordered parts and supplies and made sure that each shift of workers had the materials they needed to complete their assigned tasks. Throughout the day she fielded telephone calls from co-workers who needed supplies and dealt with other inventory issues as they arose.
7. Interspersed among these duties, Claimant also wrapped finished shelves to prepare them for shipping. Depending on production needs, and also on the number of interruptions she encountered, she might wrap as many as 200 to 250 shelves in a day.
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8. Until 2007 Claimant performed all of her duties in an enclosed area called “the cage.” Claimant testified that she had arranged her work space in a way that was well-suited to her needs and took into account her left shoulder restrictions. She had a small table for wrapping shelves and was easily able to fit that activity in around her inventory control and stockroom tasks. Claimant testified that she was comfortable with her duties in the cage and was able to manage all of her assigned tasks without using her left arm repetitively.
9. In October 2007 Defendant changed Claimant’s job responsibilities, by reassigning her to the “trim and wax” process. Initially this assignment was to have been limited to no more than one hour per day, but Claimant testified that after a time she was assigned to the task for as much as two hours daily. Claimant was unhappy with the assignment, as she believed it conflicted with her modified duty restrictions, but she did the work nonetheless.
10. Also in October 2007 Defendant moved Claimant’s work station from the cage out to the production floor. In Claimant’s opinion, the move was ill-advised. The space was more cramped, and the set-up required her to turn and reach more in order to access some of the materials she needed to complete tasks. Other materials were still located in the cage, and in order to retrieve the heavier items Claimant had to use a jack or trolley to pull them to her work station.
11. Claimant testified that the combination of being reassigned to “trim and wax” and moving to a work station that was not well-suited for her caused increased stress to her left shoulder and required her to use her right arm more to compensate.
12. On February 6, 2008 Claimant’s supervisor assigned her to work on the “sand and seal” line. Using a wet rag, Claimant’s job was to wipe the dust from dressers and prepare them to be lacquered. The task required repetitive motions with both arms, and also some reaching overhead. Claimant’s supervisor worked with her, and did most of the areas Claimant could not easily reach. Even with this assistance, however, after just thirty minutes at the job Claimant began to feel burning pain in her neck and shoulders. She remained at the task for approximately an hour and a half, and then returned to her other job duties.
13. The next day, February 7, 2008 Claimant reported to Defendant’s nurse that her neck and left shoulder were very painful and that she needed to seek medical treatment. Defendant subsequently determined that it could no longer accommodate Claimant’s modified duty work restrictions. Consequently, Claimant did not return to work after February 6, 2008.
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Claimant’s Right Shoulder Symptoms
14. Initially Claimant treated for the increased symptoms in her shoulder and neck with Dr. Latham, her primary care provider. Dr. Latham in turn referred her to Dr. James, an orthopedist, for further evaluation. Dr. James evaluated Claimant on May 15, 2008. He noted that she was complaining not only of left shoulder and neck pain but also, to a lesser extent, right shoulder pain as well. Dr. James indicated that without comparison records he did not have a complete diagnostic history, but he suspected that Claimant’s left shoulder complaints most likely were due to her repetitive work for Defendant. As for her right shoulder pain, however, Dr. James felt it unlikely that these symptoms were in any way related to Claimant’s prior history of work-related left shoulder pain. Instead, he attributed them to the normal wear and tear to be expected in someone of Claimant’s age group.
15. Claimant was dissatisfied with Dr. James’ evaluation. She voiced her concern that Dr. James somehow was biased in Defendant’s favor to Dr. Latham. Dr. Latham responded by referring her to Dr. Chen, an orthopedic surgeon, for further evaluation and treatment.
16. Dr. Chen first evaluated Claimant in July 2008. Notably, Dr. Chen reported that according to Claimant she injured both of her shoulders in August 1999, not just her left shoulder. Dr. Chen reviewed a May 2008 MRI of Claimant’s left shoulder, which revealed both degenerative changes in her acromioclavicular joint and also a small rotator cuff tear. To repair the tear, Claimant underwent arthroscopic surgery in November 2008.
17. As to the right shoulder, an August 2008 MRI revealed findings indicative not only of degenerative changes (as in the left shoulder) but also of two rotator cuff tears – an inferior labral tear and a “bucket handle” SLAP tear.1 Although further diagnostic imaging was recommended to enhance the accuracy of these findings, Dr. Chen testified that given the severity of the tear he was confident in this diagnosis.
18. According to Dr. Chen, the combination of Claimant’s repetitive work for Defendant and her need to compensate for the pain and weakness in her left shoulder most likely resulted in a “cumulative dose injury” to her right shoulder. Rather than one major trauma, an accumulation of smaller injuries, or micro traumas, ultimately caused a significant rotator cuff tear. In reaching this conclusion, Dr. Chen acknowledged that SLAP tears often result from the natural wear and tear of the aging process. In his opinion, however, the tears Claimant appears to have suffered – a bucket handle SLAP tear combined with an inferior labral tear – most commonly are associated with either trauma or repetitive motion, not simply aging.
1“SLAP” is an acronym referring to a tear of the superior labrum from anterior to posterior.
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19. Dr. Chen admitted that he lacked detailed information as to the nature of Claimant’s work for Defendant, particularly the type, extent and duration of any repetitive activities her job assignments required. He noted, however, that it would be quite common for a person with a long-standing history of symptoms in one shoulder to overcompensate and thereby develop problems in the other shoulder as well.
20. Dr. Latham concurred with Dr. Chen’s analysis. Again, however, in concluding that Claimant’s right shoulder condition was causally related to her work for Defendant Dr. Latham lacked any detailed information as to the specific requirements of Claimant’s job assignments. To the contrary, Dr. Latham made erroneous assumptions about the extent to which Claimant must have engaged in repetitive heavy lifting based on solely on his own understanding of what goes on in a furniture manufacturing plant.
21. Both Dr. Wieneke, an orthopedic surgeon, and Dr. Johansson, an osteopath, disagreed with Dr. Chen’s analysis. At Defendant’s request, Dr. Wieneke performed a medical records review in April 2009. He also reviewed Claimant’s deposition and from that became aware of her specific job duties. Dr. Johansson conducted a similar review, and also performed an independent medical evaluation of Claimant in August 2009. Both doctors concluded that Claimant’s right shoulder symptoms most likely were the result of the degenerative changes in her joint rather than any rotator cuff tear. As to the latter, Dr. Wieneke asserted that even if such tears exist (which in his opinion has not yet been conclusively determined), the medical literature does not support any causal association whatsoever with the type of light duty repetitive work Claimant performed for Defendant.
22. Claimant testified credibly that she used her right arm predominantly for most job-related tasks during the last year of her work for Defendant. Prior to Dr. James’ evaluation in May 2008, however, her medical records contain only brief occasional references to pain or other symptoms in her right shoulder or arm.
23. As of the date of the formal hearing, it was unclear what further treatment Claimant might undergo for her right shoulder symptoms. Dr. Chen testified that because her recovery from left shoulder surgery was less than optimal, he was as yet unsure whether to recommend right shoulder surgery.
Procedural History
24. In the aftermath of the events of February 6, 2008 Defendant accepted Claimant’s neck and left shoulder symptoms as compensable, but denied any responsibility for her right shoulder condition as not causally related. Defendant’s Form 2 to that effect was filed on September 16, 2008. As supporting evidence Defendant relied on Dr. James’ May 15, 2008 evaluation (supra, Finding of Fact No. 14).
6
25. Claimant disputed the denial. Following an informal conference, on January 22, 2009 the Department’s Workers’ Compensation Specialist determined that Defendant had produced evidence sufficient to reasonably support its position. On those grounds, and citing the Commissioner’s decision in Jurden v. Northern Power Systems, Opinion No. 37-08WC (October 8, 2008), the Specialist denied Claimant’s request for an interim order of benefits.
26. Claimant next requested that the Workers’ Compensation Division Staff Attorney review and reconsider the Specialist’s determination. After reviewing all of the medical evidence submitted to date, including the medical reports of Drs. James, Latham and Chen, on April 22, 2009 the Staff Attorney reversed the Specialist’s determination and issued an interim order directing Defendant to pay benefits covering Claimant’s right shoulder condition.
27. Defendant next filed a Notice of Intention to Discontinue Benefits (Form 27), effective May 14, 2009, in which it purported to discontinue “any and all benefits that could be claimed under the Department’s April 22, 2009 interim order.” As support for the discontinuance, Defendant submitted Dr. Wieneke’s April 27, 2009 records review (supra, Finding of Fact No. 21), in which he declared that Claimant’s right shoulder condition most likely was not causally related to her employment.
28. What followed was a confusing series of communications by which Defendant’s proposed discontinuance was routed first to the Staff Attorney, then to the Specialist and finally back to the Staff Attorney for her review. Ultimately, the Staff Attorney determined that the discontinuance was reasonably supported and allowed Defendant to terminate Claimant’s benefits. In doing so, the Staff Attorney observed that in her opinion Dr. Wieneke’s report had sufficiently addressed the deficiencies she previously had noted when reviewing Defendant’s evidence prior to issuing her April 22nd interim order.
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. 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).
Compensability of Right Shoulder Condition
3. The medical evidence here is difficult to evaluate, as both parties’ expert opinions are deficient in some respects. Neither Dr. Latham nor Dr. Chen endeavored to understand the specifics of Claimant’s job activities. Their conclusions as to the repetitive nature of her work and its probable impact on her right shoulder condition are somewhat suspect, therefore. As for Defendant’s experts, while both Dr. Wieneke and Dr. Johansson focused their attention on the light duty nature of Claimant’s work, neither adequately addressed the extent to which Claimant still may have overused her right arm in order to compensate for the deficits in her left shoulder.
4. Although it is a close question, I am persuaded both by Claimant’s credible testimony and by Dr. Chen’s status as her treating orthopedic surgeon that Claimant’s right shoulder condition is causally related to her work. Whether it resulted directly from her job activities, and/or from overcompensation for her work-related left shoulder injury, in either event it is compensable.
Procedural Issues
5. In addition to the substantive issue of compensability, Claimant also has raised procedural concerns as to the Department’s approval of Defendant’s May 2009 discontinuance. She argues that because the Department already had issued an interim order in response to Defendant’s denial of Claimant’s right shoulder claim, it applied both the wrong process and the incorrect legal standard when it later approved Defendant’s discontinuance.
Defendant’s May 2009 Discontinuance
6. The statutory authority for the issuance of an interim order following an employer’s denial or discontinuance flows from 21 V.S.A. §§643a and 662(b).2 The intent of the statute is to protect injured workers from having their claims disallowed or their benefits terminated abruptly by mandating, in appropriate circumstances, that benefits continue “until a hearing is held and a decision is rendered.”
2 Section 643a governs the issuance of interim orders in the context of an employer’s proposed discontinuance; §662(b) governs the issuance of interim orders when a claim has been denied from the outset. The standard of review is the same in both cases. For the purposes of this discussion, therefore, both situations can be considered together. See T.B. v. University of Vermont, Opinion No. 06-08WC (February 12, 2008) at Conclusion of Law No. 3, note 1.
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7. What Defendant did here was to disguise its objection to the Department’s April 22, 2009 interim order, which had issued in response to Defendant’s denial of Claimant’s right shoulder claim, as a discontinuance instead. The evidence it submitted in support did not suggest that Claimant’s condition had changed in any way, such that ongoing benefits were no longer appropriate. To the contrary, Defendant’s evidence consisted simply in providing another medical opinion to challenge the causal relationship between Claimant’s work and her right shoulder condition. This was exactly the defense it had asserted in its original denial, exactly the defense that the Specialist initially accepted as reasonably supported, and exactly the defense that the Staff Attorney later rejected in issuing her interim order.
8. Once the interim order issued, Defendant’s recourse under the statute was to proceed to formal hearing while continuing to pay benefits in the meantime. What the Department allowed it to do instead was to discontinue benefits barely a month later. This was improper. Unless Defendant presented evidence establishing that benefits once started now were inappropriate – because Claimant had refused a suitable return-to-work offer, for example, or because the medical treatment she was receiving was no longer reasonable and necessary – its proposed discontinuance should have been rejected.
The “Jurden” Standard
9. Claimant also argues that the Department applied the wrong standard to its review of Defendant’s discontinuance. She claims that the so-called Jurden standard represents an incorrect application of the statute.3
10. The standard enunciated in Jurden requires the Commissioner to review a denial or discontinuance of benefits with an eye towards the employer’s burden of producing evidence, not the claimant’s. This mandate comes directly from the language of the statute, which requires the commissioner to order that benefits be paid pending a formal hearing “if the evidence does not reasonably support” the employer’s position. 21 V.S.A. §§643a and 662(b). As was noted in Jurden, this is a different inquiry from one that asks whether the evidence reasonably supports the claimant’s claim. It places the burden of production on the employer, not the claimant.
11. Claimant correctly notes that in analyzing the employer’s evidence in order to determine if it reasonably supports a denial or discontinuance the Commissioner is obligated to consider “the record as a whole,” taking into account “whatever in the record fairly detracts” from the weight of the evidence so produced. 21 V.S.A. §601(24). Nothing in Jurden states otherwise.
3 Here, the Department applied the Jurden standard not only when it reviewed Defendant’s original claim denial but also when it granted Defendant’s May 2009 discontinuance. Notwithstanding my determination that the discontinuance was improper given the context in which it was proposed, I find it necessary nonetheless to clarify the standard by which all interim order requests are considered.
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12. Reading §601(24) and either §643a or §662(b) together, however, what Jurden acknowledges is that the burden of production matters. The question, “Viewing the record as a whole, has the employer produced enough evidence to reasonably support its denial or discontinuance?” is different from the question, “Viewing the record as a whole, has the claimant produced sufficient evidence to support his or her claim?” In reviewing the evidence for and against an interim order both questions easily might be answered affirmatively. The statute requires the Commissioner to ask the former question, not the latter one.
13. I conclude that the Department correctly applied the statute in determining whether to approve Defendant’s discontinuance, but that it did so in the wrong context given the procedural posture of the claim. Having determined that Claimant’s right shoulder injury is compensable in any event, the Department’s error does not affect the ultimate result.
14. As Claimant has prevailed, she is entitled to an award of costs and attorney fees pursuant to 21 V.S.A. §678. In accordance with §678(e), Claimant shall have 30 days from the date of this decision within which to submit her claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves her entitlement as causally related to her compensable right shoulder injury;
2. Interest, costs and attorney fees in accordance with 21 V.S.A. §§664 and 678.
DATED at Montpelier, Vermont this 25th 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.

Richard Marsha v. New England Construction (February 10, 2010)

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Richard Marsha v. New England Construction (February 10, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Richard Marsha Opinion No. 06-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
New England Construction
For: Patricia Moulton Powden
Commissioner
State File No. W-07098
RULING ON CLAIMANT’S MOTION FOR RECONSIDERATION OF DISCONTINUANCE
APPEARANCES:
Frank Talbott, Esq, for Claimant
David Berman, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s failure to attend a scheduled functional capacities evaluation an appropriate basis for discontinuing his medical and vocational rehabilitation benefits?
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant suffered a work-related injury on April 6, 2005. He was treated for his injury, eventually reached an end medical result and was assessed a permanency rating in 2007.
4. As part of Claimant’s 2009 vocational rehabilitation efforts, Defendant scheduled a functional capacities evaluation. Claimant failed to attend. Another was scheduled and again Claimant failed to appear. In each case Claimant’s failure to attend was due to a breakdown in communication rather than any purposeful refusal.
5. Due to Claimant’s failure to attend the scheduled evaluations, Defendant filed a Form 27, successfully discontinuing Claimant’s medical and vocational rehabilitation benefits effective May 19, 2009.
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6. On June 16, 2009 Claimant attended a rescheduled functional capacities evaluation. Defendant immediately reinstated his medical and vocational rehabilitation benefits. In the interim, the Department had ordered Defendant to continue paying for Claimant’s medications, pending a safe taper plan. Defendant also agreed to pay for a previously scheduled meeting between Claimant and his vocational rehabilitation counselor. Claimant did, however, have to forego various medical and physical therapy appointments during the suspension period.
DISCUSSION:
1. As support for its discontinuance of benefits Defendant relies on 21 V.S.A. §655. That statute allows for a claimant’s workers’ compensation benefits to be suspended during any period in which he or she “refuses to submit . . . to or in any way obstructs” an employer-scheduled medical examination.
2. Claimant argues that a functional capacities evaluation is not a medical examination and therefore is not covered by §655. Claimant contends there is no statutory authority for Defendant to have suspended benefits in this case.
3. I do not read the statute so narrowly. Particularly in the context of vocational rehabilitation, a functional capacities evaluation provides both parties with critical information so that the return-to-work process can move forward as expeditiously as possible. A claimant who refuses to submit to such an evaluation can sabotage the system just as effectively as one who obstructs an independent medical examination.
4. I recognize that in this case Claimant’s refusal to attend was inadvertent, not intentional. Other claims might present circumstances in which it would be inappropriate to suspend benefits for such inadvertent behavior. Given the respective rights and responsibilities that our workers’ compensation law accords to both workers and employers, however, the fact that the missed appointment is a functional capacities evaluation rather than a medical examination probably will not be dispositive.
ORDER:
For the foregoing reasons, Claimant’s Motion for Reconsideration of Discontinuance is hereby DENIED.
Dated at Montpelier, Vermont this 10th 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.

Namir Puric v. Dunkin Donuts (July 29, 2011)

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

Namir Puric v. Dunkin Donuts (July 29, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Namir Puric Opinion No. 20-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Dunkin Donuts
For: Anne M. Noonan
Commissioner
State File No. Z-59994
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 9, 2011
Record closed on April 12, 2011
APPEARANCES:
Namir Puric, pro se
Eric Johnson, Esq., for Defendant
ISSUE PRESENTED:
1. Did Defendant appropriately discontinue Claimant’s temporary total disability benefits on end medical result grounds?
2. Are Claimant’s current symptoms, need for medical treatment and/or alleged disability causally related to his February 6, 2008 work injury?
3. Has Claimant willfully made false statements and/or representations so as to justify forfeiture of his right to workers’ compensation benefits under 21 V.S.A. §708(a)?
2
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Deposition of Locke Bryan, M.D., February 17, 2009
Defendant’s Exhibit B: Surveillance video DVDs
Defendant’s Exhibit C: Deposition of Namir Puric, February 6, 20091
Defendant’s Exhibit D: Police incident report, August 9, 2008
Defendant’s Exhibit E: Chittenden Criminal Division records
Defendant’s Exhibit F: Employment application, December 4, 2007
CLAIM:
Additional workers’ compensation benefits to which Claimant proves his entitlement as causally related to his February 6, 2008 work injury.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a baking finisher. His job involved preparing and decorating doughnuts.
Claimant’s Work Injury and Subsequent Course
4. On February 6, 2008 Claimant experienced groin pain while lifting a 50-pound bag of powdered sugar. The following day he presented to the Fletcher Allen Health Care (FAHC) emergency department for treatment. In listing Claimant’s symptoms, the notes for that encounter specifically state, “No back pain.” Claimant was diagnosed with a right groin strain and possible inguinal hernia, for which he was advised to follow up with a surgeon.
5. On March 3, 2008 Claimant presented to Dr. Hebert for a surgical consult. Dr. Hebert doubted that Claimant’s groin pain was due to a hernia, and suspected instead that he had pulled a muscle in the area. Notably, on physical examination Dr. Hebert reported that Claimant looked well, could stand straight and had no back tenderness.
1 The Department granted Claimant’s attorney’s Motion to Withdraw in February 2010. Thereafter, Claimant pursued his claim pro se. He personally participated in a telephone status conference on September 22, 2010 at which time the March 9, 2011 formal hearing was scheduled. The Department confirmed this date in writing. Despite being thus duly notified, Claimant failed to appear at the formal hearing. On Defendant’s motion, in lieu of Claimant’s live testimony, his deposition testimony was admitted into evidence instead.
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6. Claimant sought treatment thereafter with his primary care providers, first Dr. Brooklyn and later Dr. Bryan. Over the course of time he began to complain of severe, disabling low back pain, with radiating symptoms into his lower extremities bilaterally. Diagnostic imaging studies have failed to reveal any disc herniation or other pathology sufficient to account for these symptoms. At this point, their etiology is unclear.
7. In relating the history of his injury to his providers, and also in his sworn deposition testimony, Claimant asserted that his low back and leg symptoms came on immediately after the February 6, 2008 lifting incident. This version of events is directly contradicted by both the contemporaneous emergency department record and by Dr. Hebert’s examination, and on those grounds I find it is not credible.
8. Claimant’s deposition testimony is rife with other inconsistencies. He testified that he had never sought treatment for lower back or leg complaints prior to the February 2008 incident, but his medical records very clearly indicate otherwise. He asserted that he had never suffered from depression until after he began experiencing chronic low back pain following that incident, when in fact the medical records document both depression and a prior suicide attempt in 2005. He testified that he no longer consumes alcohol, having sworn off of it in 2006, but medical and criminal records document more recent episodes of use and/or intoxication.
9. Claimant testified in his deposition that his pain is constant, even with narcotic medications. He stated that since his injury he walks slowly, carefully and with a limp, which worsens if he walks for more than five minutes or so. He asserted that he cannot bend, lift more than five pounds, sit for more than 30 minutes or negotiate stairs without increased pain. He alleged that he cannot drive, not only because he cannot tolerate sitting but also because he cannot easily rotate his torso to the right or left in order to see behind him.
10. Claimant presented to his providers in a similar manner, as a person who was in chronic, constant pain. He reported that the pain affected his ability to engage in such activities as walking, sitting, carrying groceries, driving any distance, riding his bicycle or playing soccer. The only symptom relief he reported was with narcotic pain medications.
11. Surveillance video taken on five different occasions – May 14th and 19th, 2008 and February 6th, 10th and 19th, 2009 – show Claimant engaging in activities entirely inconsistent with both his presentation to providers and with his deposition testimony. On one video he is observed walking, at a brisk pace and with a relatively normal gait, for more than an hour through downtown Burlington. In the course of his travels on this day he is observed to walk easily and with fluid movements down a short flight of steps. On another occasion he is seen sitting in a chair at the library for 15 minutes without moving about, changing position or getting up to stretch. On two separate days he is observed bending forward from the waist, once to straighten some papers and another time to pick something up off the ground. At no time do any of these movements appear guarded or apprehensive. Nor are they accompanied by grimacing, wincing or other obvious pain behaviors.
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12. At times Claimant is observed on surveillance to be walking with a slight limp, sometimes favoring his right leg, sometimes his left. On one occasion – May 14, 2008 – he is seen walking slowly, stiffly and with a stooped posture into his doctor’s office for a scheduled appointment. At that appointment Claimant rated his pain as a 7 out of 10 and described it as discomforting, sharp and aggravated by daily activities. Earlier on that same day, however, Claimant was observed puttering in and around his car, performing tasks that involved bending and leaning forward from the waist without hesitation. And later, after leaving the appointment, Claimant was observed walking to his car with a more fluid gait, climbing into his seat and then turning his torso first to the left to reach his seat belt and then to the right to fasten it. I cannot reconcile the discrepancy between the limping gait and stooped posture that Claimant demonstrated upon entering his doctor’s office on that day with his observed ability to move about more freely both before and after.
13. The only surveillance video that depicts Claimant walking with a cane is on February 6, 2009, as he was entering and later leaving the building in which his deposition was held.
14. The medical records reveal other inconsistencies as to Claimant’s ability to engage in certain activities. Despite telling his medical providers that he could not ride his bicycle on account of his pain, in June 2008 Claimant sought treatment at the FAHC emergency department for injuries sustained while doing just that. And in a similar vein, Claimant presented to the emergency department in September 2009 for treatment of a right toe injury sustained while playing soccer, although he previously had reported that his low back and leg symptoms precluded him from doing so.
15. Aside from narcotic pain medications, Claimant has reported no significant symptom relief from conservative treatments such as physical therapy and injections. In August 2008 he consulted with Dr. Rinehart, an orthopedic surgeon, as to possible surgical treatment measures. Dr. Rinehart noted various discrepancies between Claimant’s clinical presentation and the results of his diagnostic imaging studies. For example, Claimant reported right greater than left leg pain and sat with a list to the left when his MRI findings suggested that his left-sided symptoms should have been more troublesome.
16. As a result of these inconsistencies Dr. Rinehart felt unable to make a specific diagnosis. He therefore concluded that Claimant was not an appropriate surgical candidate. Instead he suggested that Claimant be evaluated for participation in a functional restoration program.
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17. Claimant underwent the interdisciplinary evaluation Dr. Rinehart suggested and was determined to be a good candidate for functional restoration, but declined to participate because he felt his pain levels were too high. In his deposition, Claimant testified that he was scheduled to undergo another epidural steroid injection at the time, and preferred to wait for that treatment to conclude before considering functional restoration. In a letter to Defendant’s adjuster, however, Dr. Rinehart stated that injection therapy was unlikely to be successful and that functional restoration was the only viable treatment option. Having declined that treatment, Dr. Rinehart determined that Claimant had reached an end medical result for his February 2008 work injury. I find Dr. Rinehart’s analysis in this regard to be credible.
18. Claimant was again evaluated for entry into a functional restoration program in January 2011. Because he could not identify any functional or occupational goals, and also because he did not appear willing to work through his pain, he was determined not to be an appropriate candidate.
Expert Medical Opinions
19. At Defendant’s request, Claimant underwent two independent medical examinations – first with Dr. White, an occupational medicine specialist, in June 2008 and later with Dr. Ensalada, a specialist in both pain and occupational medicine, in January 2009. Claimant also was scheduled to undergo an evaluation with Dr. Mann, a psychologist, in February 2009 but when he did not appear Dr. Mann performed a medical records review instead. Both Dr. Ensalada and Dr. Mann testified at the formal hearing.
(a) Dr. White
20. Based both on his subjective history and on his clinical presentation, initially Dr. White determined that Claimant’s low back and leg symptoms were causally related to the February 2008 lifting incident at work. Later, after viewing the surveillance videos Dr. White acknowledged that Claimant’s appearance was inconsistent with the degree of disability his treatment providers previously had described. Later still, Dr. White reviewed both Claimant’s deposition and his criminal records. From that review Dr. White concluded that he could no longer trust Claimant’s recollection of events as truthful. Therefore, he could no longer state to a reasonable degree of medical certainty that Claimant’s low back injury was work-related.
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(b) Dr. Ensalada
21. Dr. Ensalada’s opinion was more strongly stated. To a reasonable degree of medical certainty he determined that Claimant was malingering, that is, falsely exaggerating his symptoms for external reward. As support for his opinion, Dr. Ensalada pointed to a number of factors, including:
• The lack of any objective findings on physical examination indicative of either lumbar sprain or radiculopathy;
• The presence of Waddell signs, which are indicative of a non-organic component to a patient’s low back pain;
• The medical records most contemporaneous to the February 2008 incident, in which Claimant specifically denied any low back pain or tenderness;
• The discrepancies between Claimant’s ability to move about as evidenced on the surveillance videos and the pain level he consistently reported to his treatment providers; and
• Claimant’s documented untruthfulness as to his prior medical and psychological treatment, alcohol use and criminal record.
22. Dr. Ensalada concluded that at best Claimant had suffered a minor groin strain as a result of the February 2008 lifting incident, and that his current symptoms were in no way causally related to that event. I find this opinion to be credible.
(c) Dr. Mann
23. Although he did not personally interview or examine Claimant, upon reviewing his medical and criminal records, his deposition testimony and the surveillance videos Dr. Mann also determined that Claimant was malingering. He found most compelling the extent to which Claimant had integrated a pattern of deceptive behavior in many different contexts over many years. With so many misrepresentations evident, in Dr. Mann’s opinion Claimant’s symptom presentation simply was not credible.
(d) Dr. Bryan
24. Though initially supportive, after reviewing the surveillance videos even Claimant’s treating physician, Dr. Bryan, could no longer affirm, to the required degree of medical certainty, that Claimant’s current symptoms were causally related to his February 2008 work injury. To the contrary, in his deposition testimony Dr. Bryan reluctantly admitted that more likely than not Claimant had engaged in malingering behavior.
7
Procedural Posture of Claim
25. Defendant initially accepted Claimant’s February 2008 work injury as a compensable low back strain. It paid both temporary total disability and medical benefits accordingly.
26. With Dr. Rinehart’s end medical result determination as support, in October 2008 Defendant sought to discontinue Claimant’s temporary total disability benefits. The Department approved the discontinuance effective October 13, 2008.
27. Citing to Dr. Ensalada’s determination that Claimant’s current symptoms were not causally related to the February 2008 lifting incident, in February 2009 Defendant sought to discontinue Claimant’s medical benefits. The Department approved this discontinuance effective February 17, 2009.
28. On April 1, 2009 Defendant filed a Form 2 denial of Claimant’s claim on the grounds that the medical records, surveillance video and reports of Drs. White and Ensalada all suggested material misrepresentations.
CONCLUSIONS OF LAW:
1. At issue in this claim is (a) whether Defendant appropriately terminated Claimant’s temporary disability benefits on end medical result grounds in October 2008; (b) whether it appropriately terminated medical benefits in February 2009 on the grounds that Claimant’s symptoms were no longer causally related to his work injury; and (c) whether Claimant’s alleged misrepresentations justify forfeiture of his right to further workers’ compensation benefits.
2. As to the first two issues, Defendant has produced expert medical evidence that I find sufficient to justify its discontinuance of both temporary disability and medical benefits. Specifically, I conclude that Dr. Rinehart’s end medical result determination, based as it was on Claimant’s decision not to participate in functional restoration, was credibly supported and is therefore persuasive. I also find credible Dr. Ensalada’s determination that Claimant suffered only a minor groin sprain as a result of the February 2008 work injury, the effects of which were no longer causally related to the ongoing symptoms he alleged in February 2009.
3. In reaching these conclusions, I am struck by the many inconsistencies in Claimant’s version of how limiting his pain has been since the February 2008 lifting incident as compared with his activity level while under surveillance. The discrepancies between Claimant’s documented medical history and criminal record, on the one hand, and what he told his doctors – and swore to at his deposition – on the other, are equally distressing. Reluctantly I must conclude, as Drs. Ensalada, Mann and Bryan did, that Claimant has engaged in malingering behavior for financial gain.
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4. Under 21 V.S.A. §708(a), a claimant whom the commissioner determines has willfully made a false statement or representation for the purpose of obtaining a workers’ compensation benefit or payment “shall forfeit all or a portion of any right to compensation . . .”. The intent of this statute is both to deter and sanction false claims and to relieve employers from responsibility for paying claims they otherwise would not have to honor. Butler v. Huttig Building Products, 175 Vt. 323, 328 (2003). By granting the commissioner discretion to determine how great a forfeiture to declare, §708(a) “also evidences an intent that the sanction . . . have some relationship to the claimant’s fraud.” Id.
5. I conclude here that Claimant has willfully misrepresented his condition so as to secure workers’ compensation benefits to which he otherwise would not be entitled. From the evidence presented, it is difficult to determine exactly when Claimant’s subterfuge began, but certainly it was apparent at least by the time of Defendant’s February 17, 2009 discontinuance. Given the nature and extent of his deception, I cannot conceive of any way in which Claimant might establish his right to future benefits, be they temporary total, permanent partial, medical or vocational rehabilitation. I conclude that it is appropriate for Claimant to forfeit his entitlement to all such benefits.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits subsequent to February 17, 2009 is hereby DENIED.
DATED at Montpelier, Vermont this 29th day of July 2011.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Namir Puric v. Dunkin Donuts (July 29, 2011)

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

Namir Puric v. Dunkin Donuts (July 29, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Namir Puric Opinion No. 20-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Dunkin Donuts
For: Anne M. Noonan
Commissioner
State File No. Z-59994
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 9, 2011
Record closed on April 12, 2011
APPEARANCES:
Namir Puric, pro se
Eric Johnson, Esq., for Defendant
ISSUE PRESENTED:
1. Did Defendant appropriately discontinue Claimant’s temporary total disability benefits on end medical result grounds?
2. Are Claimant’s current symptoms, need for medical treatment and/or alleged disability causally related to his February 6, 2008 work injury?
3. Has Claimant willfully made false statements and/or representations so as to justify forfeiture of his right to workers’ compensation benefits under 21 V.S.A. §708(a)?
2
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Deposition of Locke Bryan, M.D., February 17, 2009
Defendant’s Exhibit B: Surveillance video DVDs
Defendant’s Exhibit C: Deposition of Namir Puric, February 6, 20091
Defendant’s Exhibit D: Police incident report, August 9, 2008
Defendant’s Exhibit E: Chittenden Criminal Division records
Defendant’s Exhibit F: Employment application, December 4, 2007
CLAIM:
Additional workers’ compensation benefits to which Claimant proves his entitlement as causally related to his February 6, 2008 work injury.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a baking finisher. His job involved preparing and decorating doughnuts.
Claimant’s Work Injury and Subsequent Course
4. On February 6, 2008 Claimant experienced groin pain while lifting a 50-pound bag of powdered sugar. The following day he presented to the Fletcher Allen Health Care (FAHC) emergency department for treatment. In listing Claimant’s symptoms, the notes for that encounter specifically state, “No back pain.” Claimant was diagnosed with a right groin strain and possible inguinal hernia, for which he was advised to follow up with a surgeon.
5. On March 3, 2008 Claimant presented to Dr. Hebert for a surgical consult. Dr. Hebert doubted that Claimant’s groin pain was due to a hernia, and suspected instead that he had pulled a muscle in the area. Notably, on physical examination Dr. Hebert reported that Claimant looked well, could stand straight and had no back tenderness.
1 The Department granted Claimant’s attorney’s Motion to Withdraw in February 2010. Thereafter, Claimant pursued his claim pro se. He personally participated in a telephone status conference on September 22, 2010 at which time the March 9, 2011 formal hearing was scheduled. The Department confirmed this date in writing. Despite being thus duly notified, Claimant failed to appear at the formal hearing. On Defendant’s motion, in lieu of Claimant’s live testimony, his deposition testimony was admitted into evidence instead.
3
6. Claimant sought treatment thereafter with his primary care providers, first Dr. Brooklyn and later Dr. Bryan. Over the course of time he began to complain of severe, disabling low back pain, with radiating symptoms into his lower extremities bilaterally. Diagnostic imaging studies have failed to reveal any disc herniation or other pathology sufficient to account for these symptoms. At this point, their etiology is unclear.
7. In relating the history of his injury to his providers, and also in his sworn deposition testimony, Claimant asserted that his low back and leg symptoms came on immediately after the February 6, 2008 lifting incident. This version of events is directly contradicted by both the contemporaneous emergency department record and by Dr. Hebert’s examination, and on those grounds I find it is not credible.
8. Claimant’s deposition testimony is rife with other inconsistencies. He testified that he had never sought treatment for lower back or leg complaints prior to the February 2008 incident, but his medical records very clearly indicate otherwise. He asserted that he had never suffered from depression until after he began experiencing chronic low back pain following that incident, when in fact the medical records document both depression and a prior suicide attempt in 2005. He testified that he no longer consumes alcohol, having sworn off of it in 2006, but medical and criminal records document more recent episodes of use and/or intoxication.
9. Claimant testified in his deposition that his pain is constant, even with narcotic medications. He stated that since his injury he walks slowly, carefully and with a limp, which worsens if he walks for more than five minutes or so. He asserted that he cannot bend, lift more than five pounds, sit for more than 30 minutes or negotiate stairs without increased pain. He alleged that he cannot drive, not only because he cannot tolerate sitting but also because he cannot easily rotate his torso to the right or left in order to see behind him.
10. Claimant presented to his providers in a similar manner, as a person who was in chronic, constant pain. He reported that the pain affected his ability to engage in such activities as walking, sitting, carrying groceries, driving any distance, riding his bicycle or playing soccer. The only symptom relief he reported was with narcotic pain medications.
11. Surveillance video taken on five different occasions – May 14th and 19th, 2008 and February 6th, 10th and 19th, 2009 – show Claimant engaging in activities entirely inconsistent with both his presentation to providers and with his deposition testimony. On one video he is observed walking, at a brisk pace and with a relatively normal gait, for more than an hour through downtown Burlington. In the course of his travels on this day he is observed to walk easily and with fluid movements down a short flight of steps. On another occasion he is seen sitting in a chair at the library for 15 minutes without moving about, changing position or getting up to stretch. On two separate days he is observed bending forward from the waist, once to straighten some papers and another time to pick something up off the ground. At no time do any of these movements appear guarded or apprehensive. Nor are they accompanied by grimacing, wincing or other obvious pain behaviors.
4
12. At times Claimant is observed on surveillance to be walking with a slight limp, sometimes favoring his right leg, sometimes his left. On one occasion – May 14, 2008 – he is seen walking slowly, stiffly and with a stooped posture into his doctor’s office for a scheduled appointment. At that appointment Claimant rated his pain as a 7 out of 10 and described it as discomforting, sharp and aggravated by daily activities. Earlier on that same day, however, Claimant was observed puttering in and around his car, performing tasks that involved bending and leaning forward from the waist without hesitation. And later, after leaving the appointment, Claimant was observed walking to his car with a more fluid gait, climbing into his seat and then turning his torso first to the left to reach his seat belt and then to the right to fasten it. I cannot reconcile the discrepancy between the limping gait and stooped posture that Claimant demonstrated upon entering his doctor’s office on that day with his observed ability to move about more freely both before and after.
13. The only surveillance video that depicts Claimant walking with a cane is on February 6, 2009, as he was entering and later leaving the building in which his deposition was held.
14. The medical records reveal other inconsistencies as to Claimant’s ability to engage in certain activities. Despite telling his medical providers that he could not ride his bicycle on account of his pain, in June 2008 Claimant sought treatment at the FAHC emergency department for injuries sustained while doing just that. And in a similar vein, Claimant presented to the emergency department in September 2009 for treatment of a right toe injury sustained while playing soccer, although he previously had reported that his low back and leg symptoms precluded him from doing so.
15. Aside from narcotic pain medications, Claimant has reported no significant symptom relief from conservative treatments such as physical therapy and injections. In August 2008 he consulted with Dr. Rinehart, an orthopedic surgeon, as to possible surgical treatment measures. Dr. Rinehart noted various discrepancies between Claimant’s clinical presentation and the results of his diagnostic imaging studies. For example, Claimant reported right greater than left leg pain and sat with a list to the left when his MRI findings suggested that his left-sided symptoms should have been more troublesome.
16. As a result of these inconsistencies Dr. Rinehart felt unable to make a specific diagnosis. He therefore concluded that Claimant was not an appropriate surgical candidate. Instead he suggested that Claimant be evaluated for participation in a functional restoration program.
5
17. Claimant underwent the interdisciplinary evaluation Dr. Rinehart suggested and was determined to be a good candidate for functional restoration, but declined to participate because he felt his pain levels were too high. In his deposition, Claimant testified that he was scheduled to undergo another epidural steroid injection at the time, and preferred to wait for that treatment to conclude before considering functional restoration. In a letter to Defendant’s adjuster, however, Dr. Rinehart stated that injection therapy was unlikely to be successful and that functional restoration was the only viable treatment option. Having declined that treatment, Dr. Rinehart determined that Claimant had reached an end medical result for his February 2008 work injury. I find Dr. Rinehart’s analysis in this regard to be credible.
18. Claimant was again evaluated for entry into a functional restoration program in January 2011. Because he could not identify any functional or occupational goals, and also because he did not appear willing to work through his pain, he was determined not to be an appropriate candidate.
Expert Medical Opinions
19. At Defendant’s request, Claimant underwent two independent medical examinations – first with Dr. White, an occupational medicine specialist, in June 2008 and later with Dr. Ensalada, a specialist in both pain and occupational medicine, in January 2009. Claimant also was scheduled to undergo an evaluation with Dr. Mann, a psychologist, in February 2009 but when he did not appear Dr. Mann performed a medical records review instead. Both Dr. Ensalada and Dr. Mann testified at the formal hearing.
(a) Dr. White
20. Based both on his subjective history and on his clinical presentation, initially Dr. White determined that Claimant’s low back and leg symptoms were causally related to the February 2008 lifting incident at work. Later, after viewing the surveillance videos Dr. White acknowledged that Claimant’s appearance was inconsistent with the degree of disability his treatment providers previously had described. Later still, Dr. White reviewed both Claimant’s deposition and his criminal records. From that review Dr. White concluded that he could no longer trust Claimant’s recollection of events as truthful. Therefore, he could no longer state to a reasonable degree of medical certainty that Claimant’s low back injury was work-related.
6
(b) Dr. Ensalada
21. Dr. Ensalada’s opinion was more strongly stated. To a reasonable degree of medical certainty he determined that Claimant was malingering, that is, falsely exaggerating his symptoms for external reward. As support for his opinion, Dr. Ensalada pointed to a number of factors, including:
• The lack of any objective findings on physical examination indicative of either lumbar sprain or radiculopathy;
• The presence of Waddell signs, which are indicative of a non-organic component to a patient’s low back pain;
• The medical records most contemporaneous to the February 2008 incident, in which Claimant specifically denied any low back pain or tenderness;
• The discrepancies between Claimant’s ability to move about as evidenced on the surveillance videos and the pain level he consistently reported to his treatment providers; and
• Claimant’s documented untruthfulness as to his prior medical and psychological treatment, alcohol use and criminal record.
22. Dr. Ensalada concluded that at best Claimant had suffered a minor groin strain as a result of the February 2008 lifting incident, and that his current symptoms were in no way causally related to that event. I find this opinion to be credible.
(c) Dr. Mann
23. Although he did not personally interview or examine Claimant, upon reviewing his medical and criminal records, his deposition testimony and the surveillance videos Dr. Mann also determined that Claimant was malingering. He found most compelling the extent to which Claimant had integrated a pattern of deceptive behavior in many different contexts over many years. With so many misrepresentations evident, in Dr. Mann’s opinion Claimant’s symptom presentation simply was not credible.
(d) Dr. Bryan
24. Though initially supportive, after reviewing the surveillance videos even Claimant’s treating physician, Dr. Bryan, could no longer affirm, to the required degree of medical certainty, that Claimant’s current symptoms were causally related to his February 2008 work injury. To the contrary, in his deposition testimony Dr. Bryan reluctantly admitted that more likely than not Claimant had engaged in malingering behavior.
7
Procedural Posture of Claim
25. Defendant initially accepted Claimant’s February 2008 work injury as a compensable low back strain. It paid both temporary total disability and medical benefits accordingly.
26. With Dr. Rinehart’s end medical result determination as support, in October 2008 Defendant sought to discontinue Claimant’s temporary total disability benefits. The Department approved the discontinuance effective October 13, 2008.
27. Citing to Dr. Ensalada’s determination that Claimant’s current symptoms were not causally related to the February 2008 lifting incident, in February 2009 Defendant sought to discontinue Claimant’s medical benefits. The Department approved this discontinuance effective February 17, 2009.
28. On April 1, 2009 Defendant filed a Form 2 denial of Claimant’s claim on the grounds that the medical records, surveillance video and reports of Drs. White and Ensalada all suggested material misrepresentations.
CONCLUSIONS OF LAW:
1. At issue in this claim is (a) whether Defendant appropriately terminated Claimant’s temporary disability benefits on end medical result grounds in October 2008; (b) whether it appropriately terminated medical benefits in February 2009 on the grounds that Claimant’s symptoms were no longer causally related to his work injury; and (c) whether Claimant’s alleged misrepresentations justify forfeiture of his right to further workers’ compensation benefits.
2. As to the first two issues, Defendant has produced expert medical evidence that I find sufficient to justify its discontinuance of both temporary disability and medical benefits. Specifically, I conclude that Dr. Rinehart’s end medical result determination, based as it was on Claimant’s decision not to participate in functional restoration, was credibly supported and is therefore persuasive. I also find credible Dr. Ensalada’s determination that Claimant suffered only a minor groin sprain as a result of the February 2008 work injury, the effects of which were no longer causally related to the ongoing symptoms he alleged in February 2009.
3. In reaching these conclusions, I am struck by the many inconsistencies in Claimant’s version of how limiting his pain has been since the February 2008 lifting incident as compared with his activity level while under surveillance. The discrepancies between Claimant’s documented medical history and criminal record, on the one hand, and what he told his doctors – and swore to at his deposition – on the other, are equally distressing. Reluctantly I must conclude, as Drs. Ensalada, Mann and Bryan did, that Claimant has engaged in malingering behavior for financial gain.
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4. Under 21 V.S.A. §708(a), a claimant whom the commissioner determines has willfully made a false statement or representation for the purpose of obtaining a workers’ compensation benefit or payment “shall forfeit all or a portion of any right to compensation . . .”. The intent of this statute is both to deter and sanction false claims and to relieve employers from responsibility for paying claims they otherwise would not have to honor. Butler v. Huttig Building Products, 175 Vt. 323, 328 (2003). By granting the commissioner discretion to determine how great a forfeiture to declare, §708(a) “also evidences an intent that the sanction . . . have some relationship to the claimant’s fraud.” Id.
5. I conclude here that Claimant has willfully misrepresented his condition so as to secure workers’ compensation benefits to which he otherwise would not be entitled. From the evidence presented, it is difficult to determine exactly when Claimant’s subterfuge began, but certainly it was apparent at least by the time of Defendant’s February 17, 2009 discontinuance. Given the nature and extent of his deception, I cannot conceive of any way in which Claimant might establish his right to future benefits, be they temporary total, permanent partial, medical or vocational rehabilitation. I conclude that it is appropriate for Claimant to forfeit his entitlement to all such benefits.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits subsequent to February 17, 2009 is hereby DENIED.
DATED at Montpelier, Vermont this 29th day of July 2011.
_____________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Selajdin Sadriu v. The Home Depot (February 23, 2012)

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

Selajdin Sadriu v. The Home Depot (February 23, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Selajdin Sadriu Opinion No. 07-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Home Depot
For: Anne M. Noonan
Commissioner
State File No. Y-50633
OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 5, 2011
Record closed on January 13, 2012
APPEARANCES:
Selajdin Sadriu, pro se
Christopher Callahan, Esq., for Defendant
ISSUES PRESENTED:
1. Was Defendant justified in discontinuing Claimant’s temporary total disability benefits effective March 24, 2011 on the grounds that he had failed to conduct a good faith search for suitable work?
2. Was Defendant justified in discontinuing Claimant’s temporary total disability benefits effective June 25, 2011 on the grounds that he had reached an end medical result?
EXHIBITS:
Claimant’s Exhibit 1: Job search logs
Claimant’s Exhibit 2: Dr. Braun Consultation Summary, April 4, 2011
Claimant’s Exhibit 3: Dr. Krag After-Visit Summary, November 9, 2011
Claimant’s Exhibit 4: English language instruction log
Defendant’s Exhibit A: Medical records (CD)
Defendant’s Exhibit B: Letter from Attorney Callahan, March 1, 2011
Defendant’s Exhibit C: Letter from Anne Coutermarsh, March 14, 2011
Defendant’s Exhibit D: Letter from Attorney Callahan, March 14, 2011
Defendant’s Exhibit E: Leunig’s Bistro employment application
Defendant’s Exhibit F: Letter from Anne Coutermarsh, May 4, 2011
Defendant’s Exhibit G: Letter from John May, April 1, 2010 [sic]
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Defendant’s Exhibit H: Letter from Attorney McVeigh, June 17, 2011
Defendant’s Exhibit I: Payment history
CLAIM:
Temporary total disability benefits retroactive to March 30, 2011 and continuing, pursuant to 21 V.S.A. §642
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a stock clerk. His primary language is Albanian, though he is able to speak, comprehend and read English to at least a limited extent. He was assisted by an Albanian interpreter at the formal hearing.
4. On July 8, 2006 Claimant injured his lower back while lifting at work. Defendant accepted this injury as compensable and began paying workers’ compensation benefits accordingly.
5. Claimant’s symptoms failed to respond to conservative therapies. In April 2007 he underwent L4-5 disc surgery. After a prolonged recovery, in September 2008 he returned to work for Defendant.
6. Following his return to work Claimant’s symptoms gradually recurred. After some time he left Defendant’s employment and began working instead as a cab driver. By April 2010 his symptoms had progressed to the point where he was again unable to work.
7. Defendant initially denied responsibility for Claimant’s renewed disability, but did not appeal when the Department ordered it to resume temporary total disability benefits as of April 27, 2010.
8. In October 2010 Claimant underwent L4-5 fusion surgery with Dr. Braun, an orthopedic surgeon. Since the surgery his low back pain has improved; however, he continues to experience constant pain radiating into his right hip, thigh and leg. The pain worsens with prolonged sitting or driving, and interferes with his sleep. Claimant is able to walk, and in fact that activity is less bothersome than either sitting or standing in a static position for an extended period of time.
Defendant’s March 2011 Discontinuance
9. At Defendant’s request, in February 2011 Claimant underwent an independent medical examination with Dr. White, a specialist in occupational medicine. Dr. White determined that Claimant’s ongoing symptoms were causally related to his July 2006 work injury and
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that his medical treatment to date had been reasonable and necessary. He further determined that Claimant had not yet reached an end medical result.
10. As to work capacity, Dr. White concluded that Claimant’s injury was only partially disabling. He recommended that Claimant return to work in a position that would allow him to sit, stand and change positions as necessary, with restrictions against heavy or repetitive lifting and bending or twisting. In imposing these restrictions, Dr. White noted that they were based solely on Claimant’s symptom tolerance, not on any specific anatomical or physiologic factor per se. Dr. White also encouraged Claimant to walk as much as tolerable.
11. On March 1, 2011 Defendant notified Claimant by letter of his obligation, pursuant to Workers’ Compensation Rule 18, to conduct a good faith search for suitable work in accordance with Dr. White’s February 2011 report, or else risk termination of his workers’ compensation benefits. Defendant enclosed a job search log for Claimant to complete and submit weekly, documenting between ten and twenty contacts each time.
12. Two weeks after receiving Defendant’s Rule 18 notification, on March 14, 2011 Claimant telephoned the Department’s workers’ compensation specialist to inquire whether he was in fact obligated to seek work in accordance with Dr. White’s report. The specialist confirmed that he was. As reflected in the specialist’s letter to both parties dated that same day, Claimant asserted that he would not search for work until his next scheduled follow-up evaluation with Dr. Braun, his treating orthopedic surgeon, on April 4, 2011.
13. Claimant having failed to submit any job search logs up to that point, and having indicated that he would not immediately commence to do so, Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), which the Department approved effective March 24, 2011. Defendant’s final temporary total disability check paid Claimant through March 30, 2011.
14. As scheduled, Claimant followed up with Dr. Braun on April 4, 2011. Dr. Braun noted that while Claimant’s low back pain had improved significantly, his right leg pain continued. As to his work capacity and Dr. White’s report, Dr. Braun remarked:
[Claimant] did request additional time off work given his persistent symptoms, and I gave him a form for this. [Claimant] may indeed need a formal disability exam if he is not able to return to work in 3 months. He did have an IME recently that suggested he should be actively looking for work but he states that he is not able to do this as he is not able to sit in a car for a prolonged period of time.
15. The form referred to in Dr. Braun’s remarks was a one-page “Consultation Summary,” in which he stated, “Claimant is recovering from a lumbar fusion surgery and is not ready to return to work” until July 5, 2011. Dr. Braun did not otherwise explain why in his opinion Claimant was unable to seek work within the restrictions that Dr. White had suggested.
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16. As for further treatment, Dr. Braun recommended reconditioning exercises and possibly an epidural steroid injection to reduce Claimant’s leg pain. The latter treatment was not immediately scheduled, presumably to give Claimant additional time either to improve and/or to consider his treatment options.
17. Between mid-March and mid-June 2011 Claimant submitted various job search logs, ostensibly documenting his efforts to find work. Many of the log entries were incomplete, unverifiable or otherwise deficient; in one instance, for example, the same telephone number was listed for two entirely separate and unaffiliated employers. Between the logs themselves and Claimant’s conflicting and confusing formal hearing testimony, it is impossible to decipher which of the listed employers he actually contacted, and for which jobs he actually submitted applications. At least one application that he did submit (a copy of which Defendant introduced at hearing) was completed in such haphazard fashion that it could not possibly have led to employment.
18. Having been determined eligible for vocational rehabilitation services, from February through July 2011 Claimant was assisted in his job search efforts by John May, a certified vocational rehabilitation counselor. Mr. May informed Claimant of local job fairs, instructed him as to completing Defendant’s job search log and provided specific job leads. One such lead was for a delivery driver at a Domino’s Pizza that was only one mile from Claimant’s house. Because Claimant had experience as a cab driver and was not restricted from driving, Mr. May thought this to be a particularly good opportunity for him. Unfortunately, Claimant failed to apply for the position. Nor did he attend any of the job fairs or follow up on the contacts Mr. May forwarded to him thereafter.
19. Mr. May also suggested that Claimant enroll in free English classes, offered weekly at the local library, as a means of enhancing his employability. Claimant attended four such classes and then stopped.
20. Mr. May testified that in his opinion Claimant did not participate in the vocational rehabilitation process to the extent necessary to establish that he was making a good faith search for suitable work. Based on the evidence presented, I concur.
Defendant’s June 2011 Discontinuance
21. At Defendant’s request, in June 2011 Claimant underwent a second independent medical examination with Dr. White. Dr. White reported that Claimant was anticipating another consultation with Dr. Braun, that spinal injections might be offered and that “further investigation” might lead to a plan for another surgical procedure. Notwithstanding these potentially ameliorative treatments, Dr. White determined that Claimant had reached an end medical result, with a 22 percent whole person permanent impairment referable to his lower back.1
1 Of the 22 percent rated, 10 percent had been paid in accordance with a previous impairment rating done in 2009. Pursuant to the Department’s interim order, on July 1, 2011 Defendant began making weekly payments on the remaining 12 percent due in accordance with Dr. White’s rating.
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22. With Dr. White’s June 2011 report as support, the Department approved Defendant’s discontinuance of Claimant’s temporary total disability benefits on end medical result grounds effective June 25, 2011.
23. Claimant did in fact consult again with Dr. Braun, in August 2011. Subsequently he underwent a spinal injection, both to help diagnose the source of his radiating pain and to provide some therapeutic relief. Most recently, in October and November 2011 Claimant underwent a surgical consult with Dr. Krag. Dr. Krag has rejected surgery as an appropriate treatment option for Claimant’s current symptoms. Instead he has recommended that Claimant be evaluated for possible entry in an interdisciplinary rehabilitation program.2 Claimant was scheduled to undergo this evaluation within days after the formal hearing.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
3. Defendant here asserts two grounds for discontinuing Claimant’s temporary disability benefits – first, that he failed to conduct a good faith search for suitable work once released to do so; and second, that he reached an end medical result for his work-related injury.
4. Discontinuances based on a claimant’s failure to conduct a good faith search for suitable work are governed by Workers’ Compensation Rule 18.1300. Underlying any such discontinuance there must be credible evidence establishing that it is medically appropriate for the claimant to return to work, either with or without restrictions. Worker’s Compensation Rule 18.1310.
2 Dr. Krag’s brief “After Visit Summary” includes the following remark as to Claimant’s work capacity: “Temporary total disability until at least completion of the [interdisciplinary evaluation].” As discussed infra, Conclusion of Law No. 5, I consider this statement to have the same weight as that accorded Dr. Braun’s April 2011 disability determination, see Finding of Fact No. 15 supra.
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5. I conclude that Dr. White’s February 2011 report and opinion as to Claimant’s work capacity constitutes sufficiently credible medical evidence to establish Claimant’s obligation to seek suitable work. In reaching this conclusion, I must discount both Dr. Braun’s and Dr. Krag’s conclusory statements to the contrary. Dr. Braun’s statement is particularly troublesome because it appears to have been motivated at least in part by Claimant’s own preference to remain off work rather than by a well-reasoned medical determination as to his work capacity. Beyond that, merely stating that a patient is “not ready to return to work” or is “totally disabled” is unlikely to be persuasive in cases such as this one, where the claimant obviously retains the ability to engage in at least some work-related activities. See, e.g., Lewia v. Stowe Motel, Opinion No. 19-11WC (July 25, 2011).
6. Having concluded that it was medically appropriate for Claimant to return to work, I further conclude that he failed to conduct a good faith search for suitable work once Defendant informed him of his obligation to do so. At best he was passive and inept; at worst, he was non-compliant. In either case, his actions fell far short of what reasonably should be expected of someone who is truly invested in the process of finding a job.
7. I conclude that Defendant was justified in terminating Claimant’s temporary total disability benefits effective March 24, 2011 on the grounds that he had failed to conduct a good faith search for suitable work.
8. Provided a claimant has not yet reached end medical result, benefits that were discontinued for failure to conduct a good faith search for suitable work can be reinstated once he or she engages appropriately in the job search process. Lewia, supra. With that in mind, it is necessary to consider Defendant’s alternate ground for discontinuing Claimant’s temporary disability benefits – that he reached an end medical result for his work-related injury in June 2011. I conclude that he did not.
9. Vermont’s workers’ compensation rules define “end medical result” as “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200. If reasonable treatment options exist that might yet yield positive results once they are adequately explored, then the claimant has not yet reached end medical result. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996); Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
10. In this case, Dr. White determined that Claimant had reached an end medical result by June 2011, but even he acknowledged that further treatment options were still under consideration, including possibly another surgery. Dr. White thus negated his own end medical result determination. And although surgery now has been ruled out, as of the date of the formal hearing Claimant had yet to be evaluated for possible entry into an interdisciplinary rehabilitation program. This is another treatment option that, until adequately investigated, might well preclude a finding of end medical result. Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009).
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11. I conclude that Defendant has failed to sustain its burden of proving that Claimant had reached an end medical result by June 25, 2011. Its discontinuance of benefits on those grounds, therefore, was inappropriate.
12. In sum, I conclude that Defendant was justified in discontinuing Claimant’s temporary disability benefits on the grounds that he had failed to conduct a good faith search for suitable work, but not on the grounds that he had reached an end medical result. Should Claimant re-engage in the job search process at any time before he reaches an end medical result, Defendant will be obligated to reinstate his benefits accordingly. Lewia, supra. Defendant also remains obligated to pay for all reasonable and necessary medical services and supplies causally related to Claimant’s compensable work injury.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for temporary total disability benefits retroactive to March 30, 2011 and continuing is DENIED.
DATED at Montpelier, Vermont this 23rd day of February 2012.
_________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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