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

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D. B. v. Vergennes Auto Inc. (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. B. Opinion No. 42-06WC
By: Margaret A. Mangan
v. Hearing Officer
Vergennes Auto Inc. For: Patricia Moulton Powden
Commissioner
State File No. U-02969
Hearing held in Montpelier on June 21, 2006
Record closed on July 10, 2006
APPEARANCES:
Mary G. Kirkpatrick, Esq., for the Claimant
Andrew C. Boxer, Esq., for the Defendant
ISSUES:
1) Is Claimant’s left shoulder condition causally related to her 2003 right shoulder injury?
2) Did Claimant reach medical end result in the summer of 2005?
3) Did the Defendant waive its right to contest left shoulder claims by voluntarily paying related medical bills?
EXHIBITS:
Claimant:
1. Letter of June 10, 2005 from adjuster to Claimant
2. Office note of June 1, 2005 from Dr. Nichols
3. A June 23, 2005 Travelers form signed by Dr. Nichols
4. An April 4, 2005 claim form which has work restrictions
5. Surveillance video (on CD) of April 27, 2005
6. Transcript from Claimant’s deposition
Defendant:
1. Post-it note from Dr.Claude Nichols
2. Reverse side of Defendant 1
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FINDINGS OF FACT:
1. Claimant has a long history of manual labor work.
2. Claimant was an employee and Vergennes Auto her employer within the meaning of the Vermont Workers’ Compensation Act. She had been working for Vergennes Auto for about a year and a half at the time of her work related injury in July 2003.
3. American Zurich Insurance Company was the workers’ compensation insurance carrier for Vergennes Auto on July 30, 2003.
4. It is undisputed that Claimant suffered a work related injury to her right shoulder on July 30, 2003 when a car hood fell on that shoulder. She is left hand dominant.
5. After the injury, Claimant received medical and physical therapy treatment for the right shoulder.
6. By November 2003 she was diagnosed with a full thickness rotator cuff tear. She had surgery on December 16, 2003. Two weeks later she was released to work with her right shoulder still in a sling.
7. Physical therapy continued even after Claimant’s return to work. Although she was left hand dominant, she was using that arm even more than usual.
8. Claimant was given restrictions against using the right arm in certain activities. A Spring 2004 MRI revealed that the right shoulder muscle was not completely healed.
9. Pain developed in her left shoulder as she used that arm more. In July 2004 she noted marked left shoulder pain that prompted her to seek medical attention when she lifted a gallon of milk from her refrigerator.
10. Claimant was diagnosed with impingement syndrome in the left shoulder.
11. Because of persistent pain and positive objective tests, Dr. Nichols performed a second operation on Claimant’s right shoulder in January 2005. Medical efforts then focused on her left shoulder.
12. Dr. Nichols diagnosed a full thickness tear in Claimant’s left shoulder, similar to what she had on the right side.
13. Physicians agree that the blood supply to the rotator cuff is poor, increasing the likelihood that with age and with manual labor, the rotator cuff would tear. Often such tears are asymptomatic.
14. Claimant continued physical therapy in an effort to quiet both shoulders. The insurance carrier paid for the treatment.
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15. Claimant’s pain in both shoulders continued. In June 2005, Dr. Nichols noted that Claimant had a work capacity for three to four hours a day at the sedentary level. He predicted that she would reach medical end result by July of that year, 2005.
16. Dr. Nichols recommended surgery on Claimant’s left shoulder, but in June 2005 she declined. Her condition has remained essentially unchanged since then.
17. In July 2005, Dr. John Johansson determined that Claimant had reached medical end result.
18. Dr. Lefkoe, a physiatrist, began treating Claimant for pain in July 2005. He determined that she had not yet reached medical end result because better pain management would improve her function. In his opinion, pain management is not merely palliative because functional outcome can be improved. Shoulder range of motion measurements have improved slightly under his care. Activities of daily living are easier for her.
19. Claimant continues to complain of pain in her left shoulder. Although she has received several treatment modalities, the only relief she has enjoyed is about an hour after a massage.
20. Although Claimant used her left arm more when the right was restricted, that use did not reach the level of overuse for the shoulder because it did not involve repetitive motions with her left arm elevated.
21. The carrier has paid for treatment of both shoulders, without accepting the left shoulder as compensable.
Causation
22. In 2006 Dr. Johansson opined that Claimant’s left shoulder condition is not causally related to her work related injury, although in his permanency report of 2005 he suggested that it was. He reasoned that the more likely cause of the left sided rotator cuff tear was normal aging since women of Claimant’s age have been known to develop such tears insidiously.
23. Dr. Claude Nichols, treating orthopedic surgeon, was called by the Claimant to testify at the hearing. He opined that it is more probable than not that Claimant’s left shoulder pain is related to the right shoulder work-related injury because of overuse of her left shoulder, although he could not say that the rotator cuff tear was caused by the overuse. In fact, the left sided tear could have happened before the work related injury.
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Medical End Result
24. Dr. Johansson opined that Claimant reached medical end result in the summer of 2005. At that time he predicted that no further treatment was required except home exercises.
25. According to Dr. Nichols, Claimant had reached medical end result once she decided against surgery.
CONCLUSIONS OF LAW:
Waiver
1. Claimant argues that Defendant waived its right to contest liability for her left shoulder tear because it had paid medical bills for both shoulders.
2. “A waiver is the intentional relinquishment of a known right.” Liberty Mutual Insurance Co. v. Cleveland, 127 Vt. 99, 103 (1968). (citing and quoting Beatty v. Employers’ Liability Assurance Corp., Ltd., 106 Vt. 25,31
3. The burden falls on the party asserting waiver to show an “act or an omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right at question.” M. S. v. Visiting Nurse Association, Opinion No. 10-06WC at 4 (2006). (citing Holden & Martin Lumber Co. v. Stuart, 118 Vt. 286, 289 (1954)).
4. While Defendant paid some medical bills related to the left shoulder injury, this alone is insufficient to show acceptance of a claim. Briggs v. Maytag Homestyle Repair, Opinion No.18-00WC (2000). The facts indicate that the Defendant made these payments in good faith, before it was certain whether or not the claim was actually compensible.
5. In short, the Defendant paid these medical bills without knowledge of all the relevant facts and, as a result, could not have waived its right to contest the claim. (See Hojohn v. Howard Johnson, Opinion No. 43-04WC at 6 (2004). Accordingly, the question of causation must be addressed.
Causation
6. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962).
7. To prevail on the contested issue Claimant must prove that her left shoulder injury arose out of and in the course of her employment. 21 V.S.A. § 618. Although not directly injured the day the car hood fell on her right shoulder, the left shoulder pain is compensable if it is a natural consequence of the right-sided injury. See 1 Larson’s Workers’ Compensation Law § 10.
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8. However, a temporal relationship alone is an insufficient basis for an award. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983).
9. Here, the requisite causal relationship between the right and left sided conditions has not been proven. No physician, including her treating surgeon, was able to say when the left sided tear occurred. Although Claimant used her left arm more than usual, the evidence does not support her argument that such use rose to the level of shoulder overuse because it did not involve repetitive movements with her arm elevated. In all likelihood it was the natural progression of years of hard labor and the normal aging process, not as a result of the right-sided injury. Accordingly, the left sided condition is not compensable.
Medical End Result
10. Next is the question of medical end result, which is “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant improvement is not expected, regardless of treatment.” WC Rule 2.1200.
11. Also called “maximum medical improvement,” this is a “condition or state that is well-stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not expected.” AMA Guides to the Evaluation of Permanent Partial Impairment, 5th Ed. at 601.
12. Although Claimant continues to receive treatment for pain with the hope of an increase in functionality, she has been at a plateau since the summer of 2005, as determined by Dr. Johansson. Minor increases in range of motion and modest improvements in basic activities of daily living do not rise to the substantial change necessary to counter the defense of medical end result.
13. In sum, Claimant’s left sided shoulder condition is not work related. Further, the defense position that Claimant had reached medical end result in the summer of 2005 is accepted.
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ORDER:
Therefore, based on the foregoing findings of fact and conclusions, of law:
1) Defendant did not waive its right to contest the conpensability of the left shoulder injury;
2) Claimant’s left shoulder claim is not compensable;
3) Claimant reached medical end result in 2005.
Dated at Montpelier, Vermont this 9th day of October 2006
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

D. D. v. Northeast Kingdom Human Services

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

D. D. v. Northeast Kingdom Human Services
STATE OF VERMONT
DEPARTMENT OF LABOR
D. D. Opinion No. 47-06WC
By: Margaret A. Mangan
v. Hearing Officer
Northeast Kingdom Human Services For: Patricia Moulton Powden
Commissioner
State File No. U- 01564
Hearing held on March August 16, 2006
Record closed on September 1, 2006
APPEARANCES:
Steven P. Robinson, Esq. for the claimant
John W. Valente, Esq. for the defendant
ISSUES:
1. Did the Claimant reach medical end result on July 25, 2005?
2. Is the functional restoration program reasonable and necessary medical treatment as a result of the work related injury from May 1, 2003?
3. Attorneys’ Fees
EXHIBITS:
Joint I: Medical Records
OTHER EXHIBITS:
Defendant’s sealed envelope pertaining to attorney fee award.
FINDINGS OF FACT:
1. Before her work related injury, the Claimant worked in the healthcare field for approximately twenty years.
2. In the mid-1990’s the Claimant sustained a work related injury to her back. After completing a three-week functional restoration program, the Claimant was able to return to full time employment.
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3. By May 2003, the Claimant had been employed by Defendant Northeast Kingdom Human Services as a service provider and home care attendant for over three years.
4. On May 1, 2003, the Claimant suffered work related injuries to her back and right knee when she slipped down an entire flight of stairs.
5. On May 6, 2003, the Claimant consulted her primary care giver, Nurse Practitioner Susan Taney, at Concord Health Center. Ms. Taney referred the Claimant to physical therapy for her back injury. Dr. Berrian is also a health care provider Concord Health Center.
6. By May 20, 2003, the Claimant began taking Percocet to treat her continued knee and low back pain.
7. By July 30, 2003, the Claimant was diagnosed with situational depression as a result of the chronic back pain and limitations related to her work injury. To treat these symptoms, the Claimant was prescribed an antidepressant in addition to the Percocet.
8. While helpful for a time, the Claimant reached a plateau in physical therapy by October 2003. As a result, Ms. Taney referred the Claimant to Dr. Cody at the Spine Institute.
9. In May 2004, the Claimant began taking MS Contin in addition to the Percocet and antidepressants.
10. In June 2004, after injection therapy, water therapy, and a medial branch block failed to provide significant relief, Dr. Cody recommended that the Claimant would be the “perfect candidate” for a functional restoration program.
11. On July 12, 2004, the Claimant began a functional restoration program at the Work Enhancement Rehabilitation Center. After three days, the Claimant left the program because of a family emergency. As a result, the Claimant’s program was “put on hold” until July 26, 2004.
12. The Claimant was unable to return to the functional restoration program on July 26, 2004 because she underwent care for symptoms unrelated to her work injury.
13. On January 10, 2005, the Department notified the parties that the Defendant’s Form 27 to discontinue temporary total disability payments was approved because the Claimant was unable to treat the work related low back injury.
14. In February 2005, the Claimant attended physical therapy, but saw no real improvement in her low back condition.
15. In March 2005, the Claimant’s unrelated medical condition was successfully treated and the Claimant received medical release to resume the functional rehabilitation program.
16. In May 2005, the Claimant was still experiencing chronic low back pain and depression as a result of her work injury. At this time, the Claimant’s medications included MS
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Contin, Percocet and an antidepressant. The Claimant was also using a TENS unit to manage her pain.
17. On May 27, 2005, Dr. Gennaro performed an independent medical evaluation at the Defendant’s request. He determined that the Claimant’s primary barriers to recovery are obesity and physical deconditioning. Dr. Gennaro also noted the Claimant’s probable depression and narcotic addiction.
18. Dr Gennaro determined that the Claimant had reached an end medical result with a 5% whole person impairment because of non-verifiable radicular complaints and nonuniform loss of range of motion. Dr. Gennaro also determined that the Claimant had a sedentary to light work capacity.
19. While Dr. Gennaro recommended vocational rehabilitation, his June 21, 2005 note indicated that further treatment, such as physical therapy or the Spine Institute’s functional restoration program, would be unlikely to change her circumstances.
20. As a result of Dr. Gennaro’s assessment, the Defendant filed a form 27 to discontinue benefits. This form was approved by the Department on August 8, 2005.
21. In a June 16, 2005 progress note, Ms. Taney strongly disagreed with Dr. Gennaro’s assessment that the Claimant had a significant narcotic addiction and that the injury was not the most relevant factor in her symptoms.
22. On June 27, 2005, a functional capacity exam showed that the Claimant could sustain a light level of work for three hours out of an eight-hour day. The exam also noted that it might be possible for the Claimant to work more than three hours at a sedentary capacity.
23. In July 2005, Ms. Taney released Ms. Drew to work part-time at a light duty capacity.
24. On September 27, 2005, Ms. Taney’s practitioner’s note showed that the Claimant was prevented from starting a new job because of severe swelling in her legs.
25. In October 2005, Ms. Taney referred the Claimant for an MRI after the Claimant rolled over in bed and experienced an increase in the pain stemming from her the work injury. At this time, Ms. Taney continued to recommend that the Claimant resume the functional restoration program.
26. In a May 2006 letter to Claimant’s counsel, Dr. Berrian states that the June 27, 2005 FCE is consistent with her diagnosis of the Claimant. Dr. Berrian further notes that Ms. Drew is likely to remain disabled from her work injury until she receives the recommended physical therapy and behavioral care.
27. Although the Claimant is obese, she worked full time in the healthcare field at her current weight and has not gained additional weight since her work injury.
28. Dr. Berrian and Ms. Taney continue to assert that a functional restoration program
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would improve the Claimant’s chances for returning to work.
29. The Claimant is requesting attorney fees and costs. The Claimant’s itemized statement of professional services rendered lists 68.1 attorney hours at $90.00 per hour, and 3.4 paralegal hours at $60.00 per hour totaling $6, 333.00 in attorney fees. The Claimant also lists $447.68 in litigation costs.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference form the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. The Claimant has successfully shown that she has not yet reached a medical end result and that a functional restoration program is a reasonable and necessary treatment for her May 1, 2003 work injury.
Medical End Result
4. A medical end is reached when there is a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment. WC 2.1200. “Once the recovery process has ended, or the worker has achieved the maximum possible restoration of his earning power, he is no longer entitled to temporary disability benefit.” Sawyer v. Mt. Snow, Ltd., Opinion No. 22-97 WC (1997) (quoting Bishop v. Town of Barre, 140 Vt. 464, 571 (1982)).
5. The Defendant’s expert, Dr. Gennaro, ultimately found that the Claimant had reached a medical end and that she could not be helped by further treatment. However, Ms. Taney, Dr. Barrian, and Dr. Cody maintain that the Claimant would likely derive great benefit from a functional restoration program.
6. In a situation where experts disagree, the Department considers the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Jul. 20, 1998).
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7. The Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). The Defense argues that the Department should not rely on Nurse Practitioner Taney’s opinion, despite her long-time treatment of the Claimant, asserting a lack of objectivity, education and experience. I disagree. First, while it is true that Ms. Taney is not a physician, her opinion that the Claimant is a strong candidate for a functional restoration program is based on her first-hand knowledge of the Claimant’s condition combined with her training and experience as a healthcare provider. Furthermore, Ms. Taney’s opinion is shared by both Dr. Barrian and Dr. Cody. Second, after sustaining a back injury in the 1990’s, the Claimant was able to successfully return to work after completing a functional restoration program. Finally, the Claimant herself believes that there is a strong likelihood that she will meet her goal of returning to full time employment if given the opportunity to complete the work hardening program. The combination of these factors lends substantial weight to the opinion supported by Ms. Taney.
8. In light of Ms. Taney’s opinion, I believe that Dr. Gennaro’s assessment actually supports the validity of a functional restoration program for the Claimant. If obesity and deconditioning pose the major barriers to recovery, then an extensive functional restoration program that is structured to improve the Claimant’s pain management skills and overall physical condition increases the likelihood that the Claimant’s condition will improve.
9. Therefore, after acknowledging that a “Medical End Result” occurs only at “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,” it is evident that this Claimant has not yet reached medical end.
10. Furthermore, the Defendant’s assertion that the Claimant will not benefit from a functional restoration program because of her weight is untenable. “An employer takes each employee as is and is responsible under workers’ compensation for an injury which disables one person and not another.” Stoddard v. Northeast Rebuilders, Opinion No. 28-04WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935)). Before the work injury, the Claimant was fully capable of performing her job as a full time service provider and healthcare attendant at her current weight. Aside from obesity and deconditioning, the Defendant offers no other physical impediment that might bar the Claimant from benefiting from a work hardening program. As such, a functional restoration program designed to increase the Claimant’s conditioning and help her cope with her low back pain is an entirely reasonable and necessary treatment.
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Attorneys’ fees and costs
11. The Defendant has submitted a sealed envelope containing a settlement offer that was rejected by the Claimant. This envelope is to remain sealed until after the Department has written its decision. If the Claimant’s award is less than the rejected offer, then the Defendant argues that the Department should not award attorneys’ fees and costs to the Claimant.
12. While the Department has allowed a “last best offer” submission in the past, there are several persuasive arguments for why this practice should not continue in this forum. First, when a claimant’s attorney is certain that the client has a right to the benefits requested, that attorney should not feel compelled to urge the client to bargain with his or her right to a certain amount of benefits. Second, a large number of workers’ compensation claimants find themselves in a desperate financial situation as a result of their work-related injuries. This prevalent situation provides a strong impetus to settle for smaller sums than a claimant might be awarded after formal hearing. If allowed to prevail, the above practice might encourage attorneys to urge their clients to take inferior settlements out of fear that attorney fees could be denied after the hearing. Finally, this practice encourages eleventh-hour settlement offers where the claimant’s attorney has already put in the effort and expense of preparing for hearing. If the claimant does not accept this last-minute offer, then there is a danger the attorney will not be compensated for building a successful case.
13. As such, the Department has not considered the rejected settlement offer in this decision.
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ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, the Claimant has not yet reached a medical end result and is entitled to the following:
1. Medical benefits regarding the Claimant’s back injury and related depression, including the MRI of March 16, 2006;
2. Payment for a comprehensive work restoration program;
3. Past TTD from June 25, 2005 to the present, and ongoing until a medical end is reached;
4. Attorneys’ fees of $6,333.00 and costs of $447.68
Dated at Montpelier, Vermont this 9th day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

L. M. v. Woodridge Nursing Home (December 6, 2006)

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

L. M. v. Woodridge Nursing Home (December 6, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. M. Opinion No. 46-06WC
By: Margaret A. Mangan
v. Hearing Officer
Woodridge Nursing Home For: Patricia Moulton Powden
Commissioner
State File No. W-51502
Hearing held in Montpelier on September 1, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq., for the Defendant
ISSUES:
1. Is Claimant’s current condition caused by her work-related injury?
2. When did Claimant reach medical end result for her work-related injury?
3. To what benefits, if any, is Claimant entitled?
EXHIBITS:
Medical Records
STIPULATION:
1. On August 15, 2004 Claimant was an employee of Defendant within the meaning of the Vermont Workers’ Compensation Act (Act).
2. On August 15, 2004, Defendant was the employer of Claimant within the meaning of the Act.
3. On August 15, 2004, Claimant suffered an injury by accident arising out of and in the course of her employment.
4. At the time of the injury, Claimant had an average weekly wage of $394.17 resulting in an initial compensation rate of $305.
5. At the time of her injury and thereafter, Claimant has had no dependents within the meaning of the Act.
6. Effective July 23, 2005, Defendant terminated temporary partial disability benefits on the basis that Claimant had reached medical end result. It also terminated medical treatment alleging that the treatment Claimant was receiving was unrelated to the work injury.
7. Claimant seeks reinstatement of her benefits and, if successful, an award of attorney fees and costs of the litigation process.
FINDINGS OF FACT:
1. In 2002, before the event at issue here, Claimant hurt her back lifting a patient. She sought medical attention, missed a few days at work and returned to work full time, full duty.
2. In August of 2004, Claimant was working as a licensed nursing assistant (LNA) at the Woodridge Nursing Home. She had been an LNA for five years.
3. On Friday August 15, 2004, Claimant was using a Hoyer lift to help a patient return to bed from a wheelchair. In the process, she leaned, slipped, and then fell back striking her right side (in the area over the kidney) against a nightstand. Claimant completed her task; she then reported the incident to her supervisor.
4. Claimant went to hospital emergency department the day of the incident where she was seen by a nurse and physician’s assistant (PA). The PA noted costo vertebral tenderness. Diagnoses were back contusion and possible compression fracture of the spine. Claimant was given an out of work note stating that she fell at work and sustained a lumbar sacral strain.
5. Claimant iced her back over the weekend and took anti-inflammatory medications.
6. On Monday, August 18, 2004, Claimant consulted with her primary care physician at the Health Center. Her pain was described as “right paralumbar pain and right SI [sacroliliac] joint pain.” The straight leg raise (SLR) on the right was negative. Claimant was referred to physical therapy (PT).
7. Stedman’s Medical Dictionary (25th ed.) defines lumbar as “[r]elating to the loins, or the part of the back and sides between the ribs and the pelvis.” The paralumbar muscles; sacroiliac joint; and costovertebral angle, higher in that area, are in the general lumbar region of the back.
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8. An August 28, 2004 PT note indicates that Claimant had fallen on her right side pelvis. The SLR test on the right was positive, which suggests nerve involvement.
9. On September 3, 2004, the physical therapist noted that Claimant was “sore on the other side now.”
10. On October 15, 2004, Dr. Rohan noted that Claimant still had a tender area where she was bumped. She had point tenderness in paraspinal muscles.
11. Tests performed in October of 2004—a CT scan and MRI—revealed multi level degenerative disc disease in Claimant’s lower back and facet arthrosis.
12. Claimant returned to work on a part time (three hours per day), light duty basis in September, 2004.
13. In July 2005, Dr. Boucher, Board Certified in Environmental Medicine, evaluated Claimant for the defense in June 2005. Dr. Boucher opined that Claimant’s only work related injury was a contusion to the right side of her lumbar area as documented in the original emergency department notes. He described her current complaints in paraspinal muscles as anatomically distinct from the area of injury and, therefore, unrelated. The straight leg raise test was negative at the time of Dr. Boucher’s evaluation.
14. Dr. Boucher noted that Claimant magnifies symptoms, a conclusion that is consistent with the medical records. He placed her at medical end result, an accurate assessment because her symptoms had reached a plateau. He found no permanent partial impairment.
15. Based on Dr. Boucher’s report, Claimant was informed that she would be fired from her job if she did not return full time. Claimant did not return to work full time.
16. A Functional Capacity Evaluation of Claimant, performed in September 2005, indicated that Claimant had a work capacity of “less than sedentary.”
17. In October 2005 Claimant was fired for not returning to work full time.
18. The carrier terminated temporary total and medical benefits based on Dr. Boucher’s evaluation.
19. Claimant has not looked for work within her restrictions.
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20. Dr. Davignon evaluated Claimant in February 2006. The evaluation included an examination of the Claimant and review of medical records, although he did not have her pre-injury records. He opined that her current symptoms are causally related to her work related injury. Unlike Dr Boucher, he did not find that the ED note regarding costovertebaral angle pain and subsequent notes documenting sacroiliac and low back pain indicated different phenomena. From the outset, Claimant’s pain has been in her lower back on the right. Her large body habitus makes precise location impossible.
21. Dr. Davignon opined that Claimant has a part time sedentary to light work capacity based on the FCE and physical examination. He acknowledged that Claimant had pre-existing degenerative conditions of the back, conditions aggravated by her work related injury.
22. No evidence had been produced to suggest that Claimant injured her back in any way other than at work.
23. Claimant submitted support for a claim for attorney fees based on 73.1 attorney hours at $90.00 per hour and 3.7 paralegal hours at $60.00 per hour as well as costs to $828.95.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. With an obscure injury and causation beyond the ken of a layperson, expert testimony is necessary to lay the foundation for an award. Lapan v. Berno’s Inc., 137Vt. 393 (1979).
4. In this case, as in many others, the medical evidence on which an order depends is in conflict. To resolve the differences, this Department traditionally has looked at several factors: 1) whether the expert has had a treating physician relationship with the claimant; 2) the professional education and experience of the expert; 3) the evaluation performed, including whether the expert had all medical records in making the assessment; and 4) the objective bases underlying the opinion. Yee v. IBM, Opinion No. 38-00WC (2000).
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5. Neither of the experts has a treating physician relationship with the Claimant. Both are well versed in the area of occupational medicine, although Dr. Boucher has an edge with his board certification. Both had available to them records and history relevant to this claim. Although Dr. Davignon had not seen the pre-injury records, he was well aware of preexisting degenerative disc disease. The difference lies with the interpretation of the symptoms and understanding of medical end result.
6. To accept Dr. Boucher’s opinion on causation, I would have to accept that the precise location of one’s pain is always clearly documented in the medical records and that it remains in that precise location at all times. Dr. Davignon’s opinion to the contrary is more logical. Claimant hurt her lower back on the right side at work. She described it as over her kidney at one time and in her lower back, which is slightly lower and more central, at other times. The areas are within inches of one another. No intervening events have been identified that would account for Claimant’s continuing symptoms. Although Claimant had a preexisting degenerative condition, that condition was asymptomatic prior to the injury at issue. It is well established that aggravation from a preexisting condition is compensable. Jackson v. True Temper Corp., 151 Vt. 592, 595-596 (1989). (citing to Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35-36 (1980); Laird v. State Highway Dep’t, 112 Vt. 67, 86 (1941); Gillespie v. Vermont Hosiery & Machinery Co., 109 Vt. 409, 415 (1938)).
7. On the question of ongoing disability, however, Dr. Boucher provided the more persuasive opinion. This claim fails for two reasons: medical end result and failure to conduct a job search.
8. “Medical end result means 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.” WC Rule 2.1200. The fact that some treatment such as drug or physical therapy continues to be necessary does not preclude a finding of medical end result if the underlying condition causing the disability has become stable and if further treatment will not improve that condition. Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996). “[A] claimant may reach medical end result, relieving the employer of temporary disability benefits, but still require medical care associated with the injury for which the employer retains responsibility.” Pacher v.Fairdale Farms, 166 Vt. 626, 629 (1997); Coburn, 165 Vt. at 532. The necessity of treatment such as physical therapy or medications is not inconsistent with finding medical end result. Pacher, 166 Vt. at 626. Claimant had reached a medical end result at the time Dr. Boucher had examined her, as demonstrated by the plateau in her symptoms, thereby justifying the termination of her temporary total disability benefits.
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9. Furthermore, Claimant has not proven that she is incapable of working. Claimant had been released to work yet failed to pursue any employment on her personal belief that she could not work. Such a subjective belief, however, cannot support such a claim for TTD. See Davis v. The Journal Co., Op. No. 31-92WC (1992).
10. However, since this is a compensable claim, Claimant’s medical benefits must be reinstated pursuant to 21 V.S.A. § 640(a).
11. The carrier must adjust the claim with payment of medical benefits and permanent partial disability benefits if so assessed, although it was justified in terminating temporary total disability benefits in July 2005 because Claimant had reached medical end result.
12. Because Claimant has prevailed on her claim for compensability and medical benefits, claims that depended on the same core set of facts as the claim for TTD that is denied, she is entitled to the requested attorney fees and costs pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000. See also The Electric Man, Inc. v. Charos 2006 VT 16. ¶ 9-12.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to adjust this claim, including payment of:
1. Medical Benefits;
2. Attorney fees and costs;
3. Permanent partial disability benefits, if so determined.
The claim for temporary total disability benefits is DENIED.
Dated at Montpelier, Vermont this 6th day of December 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.
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Beth Holmes v. State of Vermont (June 21, 2012)

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

Beth Holmes v. State of Vermont (June 21, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Beth Holmes Opinion No. 18-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
For: Anne M. Noonan
Commissioner
State File No. AA-00186
OPINION AND ORDER
Hearing held in Montpelier on April 9, 2012
Record closed on April 24, 2012
APPEARANCES:
Beth Holmes, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for her compensable July 2008 work injury and if so, when did this occur?
2. Are Claimant’s cervical spine complaints causally related to her compensable July 2008 work injury and if so, to what workers’ compensation benefits is she entitled?
3. Did Claimant willfully make a false statement or representation for the purpose of obtaining a workers’ compensation benefit, in violation of 21 V.S.A. §708(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
Defendant’s Exhibit B: Curriculum vitae, Richard Levy, M.D.
Defendant’s Exhibit C: Curriculum vitae, William Boucher, M.D.
Defendant’s Exhibit D: Independent Medical Evaluation Questionnaire
Defendant’s Exhibit E: Surveillance videos (2 DVDs)
Defendant’s Exhibit F: Deposition of Beth Holmes, February 3, 2010 (excerpted pages)
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640(a)
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 files relating to this claim.
3. Claimant worked as a licensed practical nurse at Defendant’s Vermont Veterans’ Home. Her responsibilities included administering medications and other general duties.
4. On July 11, 2008 Claimant slipped and fell down the last two stairs of a stairway at work. As reflected in the contemporaneous medical records, Claimant reported that she grabbed the banister with her right hand and struck her left buttock and lower back on the stairs. She did not report striking her neck in the fall, nor did she report any complaints or injury referable to that area. To the contrary, she complained solely of low back pain, which her primary care physician, Dr. Friscia, diagnosed as a left buttock contusion. As treatment, Dr. Friscia prescribed narcotic pain medications and physical therapy.
5. Over the course of the next three months, Claimant began complaining of more diffuse aches, not just in her lower back but also in her hips, groin, upper back, elbows and shoulders. Concerned about her ongoing symptoms, particularly in the context of continued narcotic pain medications and physical therapy, Dr. Friscia referred her to Dr. Robbins, an orthopedic surgeon, for further consultation.
6. Claimant previously had treated with Dr. Robbins in September 2000, for a two-month history of neck pain with radicular-type symptoms in her right arm. Claimant underwent little if any treatment for these complaints, which she described at hearing as a “horrible” stiff neck and which Dr. Robbins diagnosed as C6 radiculopathy.1 Apparently her symptoms resolved on their own. In the intervening years leading up to her July 2008 fall at work, Claimant did not seek medical treatment for any further cervical spine-related complaints.
7. Dr. Robbins evaluated Claimant on October 27, 2008. During that evaluation, for the first time Claimant complained of neck pain in addition to her other symptoms, reporting that she felt her body had been “out of alignment” since her fall at work some three months earlier.
1 Claimant acknowledged this prior episode of neck pain at hearing, and explained that she failed to do so in her deposition either because she forgot or because she did not consider a stiff neck to be an “injury.” No matter what the specific explanation, I find that Claimant’s deposition testimony did not indicate a willful attempt to defraud or mislead for the purpose of obtaining a workers’ compensation benefit.
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8. In addition to her increasingly diffuse pain complaints, in the years since her injury Claimant has suffered from anxiety and depression as well. The medical records reflect that she had long treated for these conditions in the past, as a consequence of stress related to financial difficulties and the responsibilities of single parenting. Those stressors have continued, and now include chronic pain and decreased function as well. Claimant has not worked since her injury. She has been receiving social security disability benefits for the past two years.
9. Notwithstanding that the contemporaneous medical reports do not reflect it, Claimant has become convinced that she likely struck her neck in the course of her July 2008 fall down the stairs at work, and that this accounts for both the neck pain and the diffuse upper extremity symptoms of which she has complained since. Based in part on the varying descriptions of the fall to which Claimant testified at formal hearing and in part on the clear and concise history reported in the earliest, most reliable medical records, I find that Claimant’s recollection of events is likely no longer accurate. For that reason, I question the extent to which some of her treating doctors, most notably her osteopath, Dr. Woodworth, and her neurologist, Dr. Edwards, have relied upon this version of events in formulating their theories as to the etiology of Claimant’s current complaints.
10. Though neither testified at formal hearing, both Dr. Woodworth and Dr. Edwards have stated their causation opinions in writing. Both believe that Claimant’s cervical condition is a direct result of her July 2008 fall at work. Dr. Edwards in particular is convinced that Claimant’s neck and upper extremity symptoms are attributable to a free disc fragment compressing on her spinal cord at the C6-7 level, as indicated in a May 2011 MRI study. Two prior MRI studies, one in March 2009 and one in September 2009, had documented disc degeneration and/or protrusion at that level, but no extruded disc fragments.
11. Aside from stating that Claimant’s cervical disc herniation is “consistent with” her July 2008 fall, Dr. Edwards provided no other rationale for his conclusion that the two are causally related. In fact, previously Dr. Edwards had acknowledged that because he had not reviewed Claimant’s prior medical records, he lacked sufficient information to make any determination at all as to causation. In his earlier statement, Dr. Edwards also had noted the lack of a temporal relationship between Claimant’s fall and her neck pain as a further barrier to establishing causation. With no explanation for the apparent shift from these prior statements to his current opinion, I find it difficult to credit Dr. Edwards’ position as to causation.
12. As treatment for her cervical disc herniation, and particularly given his concern that she was exhibiting symptoms of myelopathy, or spinal cord compression, Dr. Edwards strongly recommended that Claimant undergo a neurosurgical evaluation. This she did, with Dr. Simmons in November 2011. Interestingly, although Dr. Simmons stated that he was “not overly impressed” with the amount of spinal cord deformation evidenced on MRI, nevertheless he recommended that Claimant undergo a C6-7 disc fusion. The purpose of that surgery, which Claimant was scheduled to undergo in the weeks following the formal hearing, is primarily to prevent any myelopathy from progressing, not necessarily to improve her current symptoms.
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13. Credible medical evidence exists in support of another explanation for Claimant’s diffuse complaints, including those involving her neck and upper extremities – fibromyalgia, possibly exacerbated by a bout of Lyme disease in 2009. Among the medical professionals propounding this theory was Dr. Friscia, Claimant’s primary care physician from 2003 through 2010. In Dr. Friscia’s opinion, the disc disease documented on Claimant’s MRI studies was not nearly severe enough to account for her varied symptoms. Coupled with the fact that Claimant’s neck and upper extremity complaints did not arise until some months after her initial injury, Dr. Friscia concluded that a causal relationship between the two was unlikely. I find Dr. Friscia’s reasoning credible in all respects.
14. Not surprisingly, all of Defendant’s independent medical examiners have concluded likewise. The first of these, Dr. Boucher, an occupational medicine specialist, examined Claimant in February 2009. Among his pertinent findings:
• Claimant exhibited only minimally decreased cervical range of motion, with no evidence of radiculopathy;
• Claimant did not complain of any tenderness in her left buttock, and exhibited normal low back and hip motion, all of which indicated that her original injury – a left buttock contusion – had resolved;
• Claimant’s diffuse complaints, which included statements such as “all over pain” and “everything is different than before my injury,” were almost certainly psychogenic in origin and completely unrelated to her work injury; and
• Claimant exhibited a high degree of symptom magnification and somatic overlay, as well as possible drug-seeking behavior.
15. Dr. Boucher concluded to a reasonable degree of medical certainty that Claimant had reached an end medical result for her work-related injury, with no permanent impairment and an unrestricted work capacity.
16. Claimant underwent a second independent medical examination, this time with Dr. Levy, a board certified neurologist, in March 2010. As Dr. Boucher had, Dr. Levy concluded that Claimant’s work-related injury consisted solely of a left buttock contusion, which had long since resolved. In addition, according to Dr. Levy:
• There is no scientific evidence that fibromyalgia is traumatically induced; therefore, there is no basis for concluding that Claimant’s buttock contusion evolved in that manner;
• Had Claimant traumatized a cervical disc in her July 2008 fall, she likely would have experienced significant neck pain and radicular symptoms shortly thereafter, not three months or more later; and
• Claimant’s cervical radiculopathy is likely due to the natural progression of age-related degenerative disc disease, not trauma.
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17. I find the rationale underlying Dr. Levy’s opinions persuasive in all respects.
18. Most recently, at Defendant’s request Dr. Binter, a board certified neurosurgeon, conducted a medical records review in January 2012.2 Dr. Binter concluded to a reasonable degree of medical certainty that Claimant’s current cervical complaints are not causally related to her July 2008 fall at work in any respect. Her rationale was essentially the same as that propounded variously by Drs. Friscia, Boucher and Levy, that is:
• With a prior medical history of cervical complaints dating back to 2000, and no mention of new cervical symptoms until many months after her July 2008 fall, it is unlikely that the fall caused a cervical injury;
• Neither the March 2009 nor the September 2009 MRI studies showed pathology significant enough to explain the global pain and diffuse symptoms of which Claimant was complaining at the time;
• More than two years later, the May 2011 MRI study revealed a new disc herniation, which given the passage of time would not likely be related to Claimant’s original injury; furthermore, even that herniation is not causing enough cord compression to account for her symptoms; and
• Claimant’s longstanding history of anxiety, depression and Lyme disease might explain her hypersensitivity to pain and subsequent fibromyalgia-type symptoms.
19. In formulating her opinion, Dr. Binter particularly noted that some of her observations would not have been apparent to those who had not reviewed Claimant’s prior medical records, including both Dr. Woodworth and Dr. Edwards. I concur that analyzing Claimant’s prior medical history is critical to a full understanding of the causation issues in this case.
20. Dr. Binter recommended against fusion surgery as treatment for Claimant’s current condition. With a longstanding history of smoking, global pain complaints and narcotic medications, in Dr. Binter’s opinion the prognosis for post-surgical improvements in either pain or function is poor. I find this reasoning credible, though I acknowledge that a treating neurosurgeon, in close consultation with his or her patient, might weigh the potential risks and benefits differently.
2 Claimant had been scheduled to undergo an independent medical examination, but failed to appear.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The primary disputed issue here is whether Claimant’s current cervical condition is causally related to her July 2008 work injury. The parties presented conflicting medical opinions on this issue. In such circumstances, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. I conclude that the opinions of Drs. Friscia, Boucher, Levy and Binter are more credible than those of Drs. Woodworth and Edwards. In reaching this conclusion, I note the following:
• As Claimant’s treating primary care provider for many years both before and after her July 2008 fall, Dr. Friscia was best positioned to evaluate her symptoms from a global perspective, more so than either Dr. Woodworth or Dr. Edwards;
• Drs. Friscia, Boucher, Levy and Binter reviewed all of Claimant’s prior medical records, whereas Drs. Woodworth and Edwards failed to do so; this omission is particularly relevant in a case such as this, where the prior records contain information pertinent to other possible causes for her current condition; and
• Drs. Woodworth and Edwards’ causation opinions relied in large part on Claimant’s recollection as to the mechanism of her fall, which I have found to be unreliable; in contrast, Drs. Friscia, Boucher, Levy and Binter’s opinions were more objectively based and accounted more completely for the global symptoms she reported.
4. I conclude that Claimant has failed to sustain her burden of proving that her current cervical condition is causally related to her July 2008 fall at work. I further conclude that Claimant had reached an end medical result for her work injury – a left buttock contusion – at least as of the date of Dr. Boucher’s independent medical examination, February 2, 2009, with no permanent impairment and no need for further medical treatment.
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5. Having found that Claimant’s cervical condition is not work-related, I need not decide whether Dr. Simmons’ proposed fusion surgery is reasonable. Under the particular circumstances of this case, this is a matter best left to Claimant and her treating providers to decide.
6. To the extent that Claimant now suffers from anxiety and depression causally related to her chronic pain and decreased function, I conclude that these conditions were neither caused nor aggravated by her July 2008 work injury and are not compensable.
7. Last, I conclude that Defendant has failed to establish that Claimant’s deposition testimony, in which she denied having treated previously for neck pain, constituted a willful intent to defraud or misrepresent for the purpose of obtaining a workers’ compensation benefit. Therefore, there has been no violation of 21 V.S.A. §708(a).
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional workers’ compensation benefits causally related to her July 2008 work injury, and specifically for benefits referable to her current cervical condition, is hereby DENIED.
DATED at Montpelier, Vermont this 21st day of June 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.

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.

Aida Puzic v. Huber + Suhner (February 5, 2013)

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

Aida Puzic v. Huber + Suhner (February 5, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Aida Puzic Opinion No. 05-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Huber+Suhner
For: Anne M. Noonan
Commissioner
State File No. T-13448
OPINION AND ORDER
Hearing held in Montpelier on October 3, 2012
Record closed on November 29, 2012
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Jennifer Moore, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant appropriately placed at end medical result for her November 2002 compensable work injury in April 2003?
2. Was Claimant’s August 2010 right shoulder surgery necessitated by, and causally related to, her November 2002 compensable work injury?
3. Are Claimant’s continued pain complaints and functional limitations causally related to her November 2002 compensable work injury?
4. If yes, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Deposition of John Macy, M.D., February 15, 2012
Claimant’s Exhibit 1: Curriculum vitae, Ann Goering, M.D.
Defendant’s Exhibit A: Request for Separation and Payment Information
Defendant’s Exhibit B: Disability Determination Explanation
Defendant’s Exhibit C: Curriculum vitae, Kuhrt Wieneke, M.D.
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant, a Bosnian immigrant, worked for Defendant as a cable assembly technician. Many of her job tasks required repetitive use of her upper extremities. Because she is right-handed, Claimant used her right arm more than her left arm for tasks involving forceful pushing and pulling.
Claimant’s 2002 Work Injury, Treatment and End Medical Result Determination
4. On November 14, 2002 Claimant reported that she was suffering from pain and swelling in her right neck and shoulder area as a result of repetitive pressure while assembling cable. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly.
5. Initially Claimant’s injury was diagnosed as a trapezius muscle inflammation or strain. Other early diagnoses included cervical and thoracic strain, possible thoracic outlet syndrome and/or myofascial strain. As treatment, she underwent physical therapy and chiropractic manipulation, and also was prescribed a home exercise program. At work, she was restricted from repetitive activities and tasks involving forceful pulling. She also was required to take a five-minute stretch break every half hour.
6. In March 2003 Claimant was discharged from work hardening, having demonstrated the ability to perform the essential functions of her cable assembly job.
7. Although she was able to work, Claimant continued to complain of pain in the right side of her neck, radiating down into her arm and forearm. In April 2003 she underwent electrodiagnostic testing, which revealed mild bilateral carpal tunnel syndrome. There was no evidence of either ulnar neuropathy or cervical radiculopathy, however.
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8. At Defendant’s request, in April 2003 Claimant underwent an independent medical examination with Dr. Johansson, an osteopath, for the purpose of determining whether she had reached an end medical result for her work-related injury. Other than some minor tightness in her neck and shoulder, Dr. Johansson described a “fairly benign” examination. Claimant demonstrated normal range of motion and no significant spasms, trigger points or evidence of impingement. Based on these findings, he concluded that she had reached an end medical result for her work injury, which he diagnosed as a resolving cervicothoracic myofascial strain, with no ratable permanent impairment.
9. Defendant’s occupational health provider, Dr. Wing, also examined Claimant in April 2003. Despite some persistent complaints of tenderness in her right shoulder and arm, Dr. Wing concluded, as Dr. Johansson had, that Claimant had reached an end medical result with no ratable permanent impairment either neurologically or in her cervical spine.
10. Although neither Dr. Johansson nor Dr. Wing considered Claimant’s work injury to be permanent, both recommended ongoing work restrictions. Due to her lack of endurance, Dr. Johansson recommended that she avoid repetitive overhead work and sustained carrying and lifting. Dr. Wing recommended that she continue to take a five-minute stretch break every half hour.
Claimant’s Post-End Medical Result Symptoms, Diagnosis and Treatment
11. Barely a week after Dr. Wing’s end medical result determination, in late April 2003 Claimant reported to her then-primary care provider, Dr. Dougherty, that she was having difficulty at work due to ongoing pain and weakness in her hands, wrists, arms, shoulders and neck. Nevertheless, she continued working until September 2003, when she and some other employees were laid off. Thereafter, she collected unemployment benefits for a period of time. Claimant has not worked since her lay-off.
12. Since reporting her initial symptoms in November 2002 Claimant has never stopped seeking treatment. In addition to regular evaluations by her primary care providers (first Dr. Dougherty, and since 2004, Dr. Goering), in the past ten years she has treated with two physiatrists (Drs. Cody and Flimlin), a rheumatologist (Dr. Jones), an osteopath (Dr. Winslow), a hand surgeon (Dr. Mogan), four orthopedic surgeons (Drs. Nichols, Shafritz, Macy and Nutting), a psychiatrist (Dr. Erickson), an anesthesiologist (Dr. Roberts), a pain management specialist (Dr. Covington), and numerous physical therapists. Although various diagnoses have at times been proffered, by far the most prevalent conclusion among the myriad of practitioners who have evaluated and/or treated Claimant is that the etiology of her neck, shoulder and arm pain is unclear.
13. One possible diagnosis that merits special discussion is that of Dr. Jones, the rheumatologist. Dr. Jones evaluated and treated Claimant over a period of months in 2003. Her diagnosis was seronegative rheumatoid arthritis.
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14. Rheumatoid arthritis is a systemic inflammatory disorder that attacks the tissues, cartilage, bones and linings of involved joints. In typical rheumatoid arthritis, the disease is indicated by a particular blood factor and corroborated by clinical signs. In seronegative rheumatoid arthritis, the diagnosis is made based on clinical signs only, notwithstanding negative blood tests.
15. In Claimant’s case, Dr. Jones’ diagnosis was based on hand x-rays showing erosions in the wrist consistent with the disease. As treatment, she strongly encouraged Claimant to accept a prescription for methotrexate. Fearing side effects, Claimant declined to do so. Dr. Jones prescribed other medications instead, but Claimant reported little improvement from them. She discontinued treatment with Dr. Jones in early 2004 and has never resumed any rheumatoid arthritis-directed therapies since.
16. Rheumatoid arthritis can cause swelling in the tissues of the wrist, thus leading to carpal tunnel syndrome, and also inflammation in the tendons of the shoulder. Patients who suffer from the disease are more prone to tendon tears, joint destruction and pain control issues. Thus, if the evidence clearly established that Claimant indeed suffers from rheumatoid arthritis, it might explain why her upper extremity complaints have proven so diffuse and difficult to treat over the years.
17. Notwithstanding Dr. Jones’ diagnosis, Claimant consistently has maintained that her symptoms are not due to rheumatoid arthritis. There is evidence to support this position:
• Rheumatoid arthritis being a progressive disease, one would expect worsening erosions in the joints in Claimant’s hand over time, however, repeat x-rays failed to document any such change;
• Neither diagnostic studies nor arthroscopic surgery have ever revealed any erosions of the cartilage, bone or joint lining in Claimant’s right shoulder.
18. I find that there is insufficient evidence either to rule in the diagnosis of rheumatoid arthritis as the cause of Claimant’s shoulder, neck and upper extremity symptoms, or to rule it out.
19. Despite having been off work since 2003 and therefore no longer exposed to repetitive stress, over time Claimant’s subjective complaints have both worsened and become increasingly diffuse. They are best described as involving non-specific pain throughout her entire right shoulder and arm, radiating in a non-dermatomic distribution from her neck to her hand. Claimant has at times exhibited extreme anxiety about her pain, as well as poor postural muscle control and severe deconditioning. I find from the medical records that these latter factors have impeded her ability to accept the efficacy of such treatments as aggressive physical therapy, functional restoration or psychological pain management.
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20. Prior to 2010, the objective evidence as to the nature and extent of any pathology in Claimant’s shoulder or neck was scant. MRI studies in 2004, 2006 and 2009 failed to reveal any rotator cuff tear or other structural lesion of sufficient severity to account for her right shoulder symptoms. Nor did either MRI or electrodiagnostic studies document any significant cervical spine pathology.
21. Three of the four orthopedic surgeons with whom Claimant has consulted in the years since her injury concluded that her symptoms were unlikely to resolve with shoulder surgery. Neither Dr. Nichols (in both 2004 and 2012), nor Dr. Shafritz (in 2005), nor Dr. Nutting (in 2009) were able to localize the etiology of her pain complaints to any intrinsic shoulder pathology. As Dr. Shafritz aptly observed in 2005, with no impingement signs, nearly full range of motion and no relief from a steroid injection into the joint, the likelihood of surgical intervention being of benefit was “zero.”
22. Prior to 2010, Dr. Macy as well expressed reservations regarding the efficacy of shoulder surgery. Given Claimant’s diffuse pain pattern, the absence of any significant pathology on her MRI studies and her long-term pain management issues, in both 2006 and 2008 Dr. Macy concluded that she was not a good surgical candidate. Nevertheless, on both occasions he offered diagnostic arthroscopy as a means of determining whether there might be some undetected pathology in the joint. At the same time, he cautioned that even if he found something amenable to surgical repair, it was unlikely that all of Claimant’s symptoms would be ameliorated thereby. At hearing, Claimant testified that because Dr. Macy could not guarantee significant symptom improvement with surgery, prior to 2010 she opted not to pursue it.
Claimant’s Medical Treatment since 2009
23. On November 21, 2009 Claimant slipped and fell while grocery shopping. Although her testimony at hearing was somewhat contradictory, I find from the contemporaneous medical records that as she fell she likely landed on her outstretched hands. A fall of this type can cause the tendons in and around the rotator cuff to tear.
24. Claimant injured her right wrist in this fall. Although she continued to complain of right shoulder pain as well, I find from the contemporaneous medical records that the symptoms she reported in her shoulder and arm were not appreciably different from those she had reported as recently as two weeks before. Therefore, I find it unlikely that the fall caused any significant aggravation or exacerbation of her longstanding right shoulder, neck or upper extremity symptoms.
25. In May 2010 Claimant returned again to Dr. Macy for another evaluation of her right shoulder. Notably, she reported a significant increase in her pain over the prior year, and exhibited significantly reduced range of motion as compared with Dr. Macy’s previous examinations in 2006 and 2008. Also in contrast to prior evaluations, this time an updated MRI study revealed a partial tear of one of the tendons in Claimant’s shoulder. In his deposition, Dr. Macy credibly testified that this tear likely arose some time after his 2008 examination.
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26. The 2010 MRI having revealed a structural lesion consistent with at least some of Claimant’s shoulder symptoms, Dr. Macy again offered arthroscopic surgery as a treatment option. As he had in the past, even as he did so he expressed concern about Claimant’s deconditioned state, her longstanding chronic pain and her difficult pain management issues.
27. This time Claimant elected to proceed with surgery. At hearing, she credibly testified that she did so because she believed this was her last opportunity to undergo possibly curative treatment for her shoulder. She also viewed surgery as a means of expressing her frustration at what she understood to be Dr. Macy’s prior attempts to direct her towards psychologically oriented treatment instead.
28. In August 2010 Claimant underwent arthroscopic shoulder surgery, during which Dr. Macy repaired tendon tears in both her rotator cuff and her labrum. Notably, he did not observe any arthritis or inflammation in the joint.
29. Unfortunately, as Dr. Macy had suspected might occur, Claimant realized little if any symptom improvement after surgery. She continued to complain of persistent shoulder pain, resisted repeated suggestions that she be more aggressive with physical therapy and reported that she was unable to use her arm for any functional activities. Claimant insisted that there was still something intrinsically wrong in her shoulder, but a subsequent MRI study failed to reveal any new pathology. Nor could Dr. Macy discern a cause for her ongoing symptoms. His final diagnosis, as of June 2011, was “chronic right shoulder, arm and scapular pain of unknown etiology.”
30. Most recently, in June 2012 Claimant underwent a functional capacity evaluation, which concluded that she was capable of only part-time, left-handed sedentary work. No evidence was presented from a vocational rehabilitation perspective as to whether she is employable within these parameters. Notably, following this evaluation Claimant reported increased pain not just in her right shoulder but also in her left shoulder and neck as well. X-ray findings were non-specific, and the record does not reflect whether these new complaints have yet been diagnosed.
31. At hearing, Claimant wore her right arm in a sling. She testified that she tries to keep moving her arm, but I find it unlikely that she does so to the extent her doctors have recommended. She relies on family members for assistance with both household chores and self-care activities. She was at times tearful, and has been diagnosed with reactive depression as a consequence of her chronic pain.
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Expert Medical Opinions as to Causation
32. Four doctors provided expert medical testimony – Drs. Macy (by deposition) and Goering, who were treating physicians, and Drs. White and Wieneke, who were independent medical examiners.
(a) Dr. Macy
33. As reflected in his contemporaneous office notes, Dr. Macy was never able to discern with any certainty the etiology of Claimant’s symptoms. In his deposition testimony, he acknowledged that the rotator cuff tear he surgically repaired in 2010 might have been caused by a fall similar to the one Claimant experienced in 2009. He also acknowledged the possibility that rheumatoid arthritis might be a causative factor in her case. Dr. Macy did not state either of these possibilities to a reasonable degree of medical certainty, however.
34. Dr. Macy was never asked, and did not render an opinion as to whether Claimant’s shoulder pain had at any time been causally related to her November 2002 compensable work injury. He did state with certainty that it would be “very difficult” to localize her diffuse, chronic shoulder and arm pain to the small rotator cuff tear he repaired in 2010. I find this opinion credible.
(b) Dr. Goering
35. Dr. Goering, Claimant’s primary care provider since 2004, also had difficulty identifying a specific cause for Claimant’s shoulder, neck and upper extremity symptoms. She found it highly unlikely that rheumatoid arthritis was a contributing factor, and also expressed doubt that Claimant’s 2009 fall while shopping appreciably worsened her condition. As noted above, Finding of Fact No. 24 supra, I share Dr. Goering’s doubts as to the impact that Claimant’s 2009 fall likely had on her ongoing symptoms. However, I remain unconvinced as to the role that rheumatoid arthritis may or may not have played in her chronic pain condition.
36. Dr. Goering’s testimony regarding the causal relationship between Claimant’s 2002 work injury and her chronic shoulder, neck and upper extremity pain was somewhat equivocal. She stated that to the best of her knowledge Claimant’s underlying pain was causally related to her work injury, but admitted that her opinion was based solely on the fact that this was when Claimant’s symptoms reportedly began. Beyond that, Dr. Goering was able to conclude only that some of the tears Dr. Macy addressed in his 2010 arthroscopic surgery could have been causally related, but not that they likely were so.
(c) Dr. Wieneke
37. At Defendant’s request, in June 2011 Claimant underwent an independent medical examination with Dr. Wieneke, a board certified orthopedist. Dr. Wieneke conducted a physical examination and reviewed both medical records and deposition testimony.
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38. During his physical examination, Dr. Wieneke observed several signs of symptom magnification, including dramatic shoulder pain and range of motion deficits. This was at odds with his examination of Claimant’s shoulder musculature, which was symmetrical bilaterally and lacked any signs of atrophy. Dr. Wieneke credibly concluded from these observations that Claimant’s complaints were largely subjective in nature.
39. To a reasonable degree of medical certainty, Dr. Wieneke concluded that Claimant’s diffuse chronic pain and current complaints were not in any way causally related to her 2002 work injury. In reaching this conclusion, Dr. Wieneke noted that Claimant had reached an end medical result for her work injury in 2003, with no documented atrophy, loss of muscle strength or range of motion deficits noted and no permanent impairment rated. In his opinion, there is no medical diagnosis consistent with the “profound” ongoing pain syndrome of which she has complained since then that reasonably can be related causally back to that injury. I find this analysis persuasive.
40. As for the etiology of the rotator cuff tears that Dr. Macy surgically repaired in 2010, Dr. Wieneke concluded that Claimant’s 2009 fall was the most likely culprit. However, he was unaware that Claimant already had been complaining of increased shoulder pain even before that event. For that reason, I find his opinion unconvincing. Dr. Wieneke also posited that at least some of Claimant’s diffuse, chronic pain was consistent with rheumatoid arthritis. As noted above, Finding of Fact No. 17 supra, I concur that this is a possibility, but given the conflicting evidence I cannot find it to be more probable than not.
41. Regardless of what event or condition might have caused the rotator cuff tears that Dr. Macy surgically repaired in 2010, Dr. Wieneke was emphatic in his opinion that neither the tears nor the surgery were causally related to Claimant’s 2002 compensable work injury. The tears were not apparent in 2006, either via imaging studies or on clinical exam, and according to Dr. Macy likely did not occur until some time after 2008. In Dr. Wieneke’s opinion, given this chronology there is no medical process by which the work injury likely would have caused them to develop. I find this reasoning persuasive.
(d) Dr. White
42. At her attorney’s request, in December 2011 Claimant underwent an independent medical examination with Dr. White, an occupational medicine specialist.
43. As was the case with all of the medical providers who have evaluated and/or treated Claimant, Dr. White had no definitive diagnosis for her condition. He acknowledged that there likely was a substantial psychosocial component to her symptoms. As Dr. Goering had, he dismissed both Claimant’s 2009 fall and the possibility of rheumatoid arthritis as likely causes for her chronic pain. He expressed uncertainty as to whether the rotator cuff tears revealed by the 2010 MRI represented a new finding or not.
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44. Dr. White concurred with Dr. Johansson’s and Dr. Wing’s determination that Claimant had reached an end medical result for her 2002 work injury by April 2003, stating that this period of time would have been typical for the type of strain she appeared to have suffered. He agreed that her objective findings, most notably shoulder range of motion, worsened significantly at some point after Dr. Macy’s 2008 examination, and that this occurred outside the context of any repetitive work or activity.
45. As for whether Claimant’s current symptoms are causally related to her November 2002 work injury, Dr. White stated the following opinion:
Within a reasonable degree of medical certainty, there is a relationship. Ms. Puzic reports initial onset of symptoms in association with upper extremity usage in her work environment, and she had an accepted workers’ compensation claim. Her symptoms have persisted since that time, and the medical records demonstrate a waxing and waning course, which is not uncommon for musculoskeletal problems of this nature. From time to time her treatment over the years has focused on other pathology (such as carpal tunnel syndrome), but she has had chronic proximal (shoulder region) symptoms as well.
46. From my own review of the medical records, I find no indication that Claimant’s symptoms ever diminished, only that they worsened. Therefore, I cannot accept as credible Dr. White’s assertion that the records demonstrate a “waxing and waning course.” Nor can I accept his assertion that Claimant’s presentation over the years “is not uncommon” for musculoskeletal strains of the type her work injury presumably caused. Indeed, the fact that no treatment provider has yet been able to determine the etiology of her symptoms with any certainty is itself proof of how atypical her course has been.
47. According to Dr. White’s analysis, Dr. Macy’s 2010 arthroscopic surgery was driven by the same symptoms of shoulder pain from which Claimant had suffered since her 2002 work injury. Therefore, in his opinion the surgery was causally related. Dr. White noted that Dr. Macy had offered essentially the same surgical option as a diagnostic tool in both 2006 and 2008. The goal at the time would have been to uncover a structural defect in her shoulder that was not apparent on MRI studies. In Dr. White’s opinion, this was a reasonable treatment approach. Beyond that, Dr. White did not state an opinion as to whether the rotator cuff tears that Dr. Macy found and surgically repaired in 2010 were causally related in any way to Claimant’s 2002 work injury.
48. Dr. White acknowledged in his testimony that the basis of his causation opinion, as to both the need for Claimant’s 2010 surgery and her current condition, was the unbroken timeline from her initial report of work-related symptoms in 2002 forward. With no subsequent “smoking gun” to account for her worsening pain, according to Dr. White this temporal relationship alone was sufficient to establish a causal link.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue here is whether Claimant’s current condition, for which she underwent arthroscopic surgery in 2010, is causally related to her November 2002 compensable work injury. The parties presented conflicting expert medical opinions on this question. In such circumstances, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. Two of the four experts who testified were treating physicians – Drs. Macy and Goering. Dr. Macy did not offer an opinion as to the causal relationship, if any, between Claimant’s 2002 work injury and her chronic shoulder pain. His 2010 arthroscopic surgery was undertaken in an attempt to discern the etiology of Claimant’s symptoms. That question remained unanswered post-surgery, as Dr. Macy himself admitted that Claimant’s diffuse, chronic pain could not easily be localized to the small rotator cuff tears he repaired. In the end, therefore, despite his status as a treating physician Dr. Macy’s testimony did not further Claimant’s cause in any way.
4. Dr. Goering testified that Claimant’s ongoing pain was causally related to her work injury, but this opinion was based solely on the fact that that was when her symptoms reportedly began. Notably, Dr. Goering did not become Claimant’s primary care provider until some two years later, and her office notes from that point forward reflect the same lack of clarity as to the etiology of Claimant’s symptoms that all of the other treatment providers involved in this case have expressed. With that in mind, and with only a temporal relationship to support the opinion she stated at hearing, I conclude that Dr. Goering’s analysis is unpersuasive.
5. As for the causal relationship between Claimant’s work injury and the rotator cuff tears that Dr. Macy surgically repaired in 2010, Dr. Goering could not state an opinion to the required degree of medical certainty. Her testimony on this issue is unavailing, therefore.
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6. As was the case with Dr. Goering, Dr. White’s causation opinion also was based solely on the temporal relationship between Claimant’s 2002 work injury and the progression of her symptoms thereafter. Although he characterized Claimant’s course as “not uncommon” for the type of injury she suffered, I can find no objective support for that assertion. Nor did Dr. White ever state a definitive diagnosis, one that clearly identified both the nature of her injury and the pathology that drove her symptoms. A causation analysis such as this, which relies exclusively on a temporal relationship and nothing more, is rarely sufficient to establish compensability. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983); Daignault v. State of Vermont, Economic Services Division, Opinion No. 35-09WC (September 2, 2009); cf. Brace v. Vergennes Auto, 2009 VT 49. I conclude that it is inadequate here.
7. Because I do not accept as credible Dr. White’s opinion that Claimant’s ongoing symptoms were causally related to her work injury, I also must reject his opinion that Dr. Macy’s 2010 arthroscopic surgery was causally related. That opinion was based solely on the fact that the surgery was driven by the same symptoms of shoulder pain from which Claimant had suffered since 2002. If, as I have concluded, those symptoms likely were not causally related after 2003, then the surgery cannot be tied back to the work injury either.
8. Dr. Wieneke was the only medical expert to express an opinion against work-related causation. I do not accept as credible his conclusion that Claimant’s ongoing symptoms were most likely due either to rheumatoid arthritis or to her 2009 fall while shopping. However, I do accept as credible his conclusion that there is no medical basis whatsoever for relating Claimant’s symptoms back to her 2002 work injury. That injury, which was diagnosed at the time as a myofascial strain caused by repetitive shoulder activities, resulted in no permanent impairment, no documentable structural defects, no objectively verifiable range of motion limitations and only minor functional restrictions. I conclude that there is no medical process by which Claimant’s ongoing symptoms, which in the nine years since have both worsened and become more diffuse, reasonably can be attributed to her initial work-related insult.
9. In sum, I conclude the following from the most credible evidence:
• That Claimant suffered a cervicothoracic myofascial strain as a consequence of repetitive work activities in November 2002;
• That she reached an end medical result for that injury in April 2003;
• That although no definitive diagnosis has yet been established for her symptoms since then, they likely are not causally related to that injury; and
• That Dr. Macy’s 2010 arthroscopic surgery likely was not necessitated by that injury.
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10. I therefore conclude that Claimant is not entitled to an award of workers’ compensation benefits beyond what she already has received.
11. As Claimant has failed to prevail, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of February 2013.
_________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Borislavka Lukic v. Rhino Foods (December 15, 2009)

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

Borislavka Lukic v. Rhino Foods (December 15, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Borislavka Lukic Opinion No. 49-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Rhino Foods
For: Patricia Moulton Powden
Commissioner
State File No. X-61669
OPINION AND ORDER
No hearing held; claim submitted on written record and pleadings
Record closed on July 29, 2009
APPEARANCES:
Douglas Bishop, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for her January 25, 2006 work injury and if so, when did that occur?
2. Is Defendant obligated under 21 V.S.A. §640 to pay for Claimant’s September 23, 2008 evaluation by the Work Enhancement and Rehabilitation Center and/or for her February 2, 2009 MR arthrogram?
3. Is Defendant obligated under 21 V.S.A. §640 to pay for Claimant’s March 19, 2009 rotator cuff revision surgery and associated follow-up treatment?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Form 27 filed September 18, 2008
Claimant’s Exhibit 2: Form 2 filed November 15, 2008
Claimant’s Exhibit 3: February 24, 2009 correspondence from Attorney Blake
Claimant’s Exhibit 4: Form 2 filed June 30, 2009
Claimant’s Exhibit 5: Deposition of John Macy, M.D., May 12, 2009
Claimant’s Exhibit 6: Deposition of Claimant, March 4, 2009
Claimant’s Exhibit 7: Curriculum vitae, John Macy, M.D.
Claimant’s Exhibit 8: Itemized statement of costs and attorney fees
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Claimant’s Exhibit 9: Correspondence from Claimant’s attorney
Claimant’s Exhibit 10: Correspondence from Claimant’s attorney
Defendant’s Exhibit A: Form 2
Defendant’s Exhibit B: First Report of Injury
Defendant’s Exhibit C: Form 27 and accompanying correspondence, July 3, 2007
Defendant’s Exhibit D: August 2, 2007 correspondence from Marge McCluskey
Defendant’s Exhibit E: Stipulation and Order
Defendant’s Exhibit F: April 28, 2008 correspondence from Attorney Blake
Defendant’s Exhibit G: July 30, 2008 correspondence from Attorney Bishop
Defendant’s Exhibit H: August 22, 2008 correspondence from Attorney Blake
Defendant’s Exhibit I: Form 27 approved 9/26/08
Defendant’s Exhibit J: September 19, 2008 correspondence from Marge McCluskey
Defendant’s Exhibit K: January 9, 2009 correspondence from Attorney Bishop
Defendant’s Exhibit L: February 4, 2009 correspondence and attached Interim Order
Defendant’s Exhibit M: April 30, 2009 correspondence and attached Interim Order
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Defendant hired Claimant to work on its production line in January 2001. Her duties were varied, as she rotated among seven or eight different positions on the line. Most of her work was repetitive in nature.
4. Claimant’s prior medical history includes two work-related right upper extremity injuries. In August 2003 she was diagnosed with a repetitive use syndrome. Claimant treated conservatively for this condition, and by November 2003 she had reached an end medical result and returned to work without restrictions. In April 2004 Claimant again treated conservatively for a right upper extremity injury, this time diagnosed as a trapezius strain. By September 2004 she was able to return to full duty work.
5. On January 25, 2006 Claimant injured her right shoulder while performing repetitive tasks on the production line. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly.
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6. As she had in the past, Claimant treated conservatively for this injury, diagnosed initially as a right shoulder strain. She continued to work, but with various restrictions, including no excessive repetitive use of her right arm or reaching above her right shoulder. Subsequently additional restrictions were added, and Defendant could no longer accommodate them. As a result, Claimant ceased work on May 31, 2006 and Defendant began paying temporary total disability benefits.
7. Claimant’s right shoulder pain persisted, and radiated into her neck as well. An MRI revealed a small partial rotator cuff tear, which Dr. Macy, her treating orthopedic surgeon and a fellowship-trained shoulder specialist, surgically repaired on August 29, 2006.
8. Following surgery Claimant underwent physical therapy. She made slow progress, but continued to experience pain, reduced strength and ongoing impingement symptoms.
9. In May 2007 Claimant underwent a functional capacities evaluation, which determined that she had a medium work capacity, albeit with restrictions. At a follow-up appointment in June 2007 Dr. Macy determined that Claimant had reached an end medical result and released her to return to work in accordance with the functional capacities evaluation. Shortly thereafter, at her attorney’s referral Claimant underwent a permanency evaluation with Dr. Davignon, who rated her with a 4% whole person impairment.
10. With Dr. Macy’s end medical result opinion as support, the Department approved Defendant’s discontinuance of Claimant’s temporary total disability benefits effective July 7, 2007. Also as of that date Defendant began advancing permanency benefits in accordance with Dr. Davignon’s 4% impairment rating.
11. Still Claimant’s symptoms persisted. At the suggestion of both Dr. Macy and Dr. Davignon, in August 2007 Claimant underwent an evaluation with Dr. Rinehart to determine if there might be a cervical origin to her complaints. A prior MRI had revealed degenerative disc disease in Claimant’s neck, but nerve conduction studies revealed no evidence of cervical radiculopathy. Dr. Rinehart concluded that Claimant’s symptoms most likely represented musculoskeletal shoulder dysfunction, not cervical nerve root involvement.
12. Dr. Monsey, the orthopedic surgeon to whom Claimant was referred by Dr. Rinehart, agreed with this analysis. He recommended against any treatment for the neck, surgical or otherwise, and instead advocated that treatment be focused on Claimant’s shoulder.
13. There is insufficient evidence from which to conclude, to the required degree of medical certainty, that Claimant’s cervical disc disease was either caused or aggravated by her work for Defendant.
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14. Claimant returned to Dr. Macy for a re-evaluation of her ongoing shoulder complaints in mid-September 2007. Dr. Macy suspected a partial re-tear, subacromial adhesions or chronic rotator cuff tendinitis. To aid in diagnosis and further treatment Dr. Macy recommended an MR arthrogram. Pending the results of that testing, he determined that Claimant was no longer at end medical result.
15. The MR arthrogram revealed a small full thickness re-tear of Claimant’s rotator cuff tendon. As treatment, Dr. Macy performed a second rotator cuff surgery on January 24, 2008.
16. Dr. Macy having determined that Claimant was no longer at end medical result, the parties negotiated a resumption of her temporary total disability benefits effective October 30, 2007. At the same time, they stipulated to leave as is the permanency benefits Claimant had received from July through October, representing the 4% impairment that Dr. Davignon had rated.
17. Again Claimant underwent post-surgical physical therapy. Again she made at best only inconsistent gains and continued to complain of disabling pain and reduced strength and mobility. Nevertheless, upon re-evaluating Claimant’s condition in July 2008 Dr. Macy anticipated that she would reach an end medical result by the end of September.
18. At Defendant’s referral, in August 2008 Claimant underwent an independent medical evaluation with Dr. Backus. Dr. Backus determined that Claimant had reached an end medical result and rated her with a 9% whole person permanent impairment. Based on this opinion, Defendant again sought to terminate Claimant’s temporary total disability benefits on end medical result grounds. The Department approved this discontinuance effective September 28, 2008. Defendant began advancing permanency benefits in accordance with Dr. Backus’ rating (taking a credit for the 4% previously paid pursuant to Dr. Davignon’s earlier rating).
19. In the meantime, Claimant had returned to both Dr. Monsey and Dr. Macy for further evaluation of her ongoing symptoms. Dr. Monsey again concluded that Claimant’s complaints most likely were referable to her shoulder, not her neck. As treatment he recommended that she be referred to the Work Enhancement and Rehabilitation Center (WERC) for possible participation in a multidisciplinary functional restoration program.
20. Claimant underwent the WERC evaluation on September 23, 2008 and was determined an appropriate candidate for their program. Defendant refused either to pay for the evaluation or to approve Claimant’s participation in the program, however. Defendant asserted that the WERC program did not constitute reasonably necessary treatment causally related to Claimant’s compensable shoulder injury, but rather was focused on treating her non-work-related cervical condition.
21. Dr. Macy supported Claimant’s entry into the WERC program as reasonably necessary treatment directed at her work-related shoulder injury. Pending Claimant’s completion of the program, furthermore, Dr. Macy determined that she was not yet at end medical result.
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22. Dr. Macy also supported Claimant’s request for a repeat MR arthrogram, though somewhat tepidly. An MR arthrogram might reveal another re-tear in Claimant’s rotator cuff. Even if it did, however, Dr. Macy feared that further revision surgery might not alleviate her pain complaints completely, given the chronic nature of her symptoms, the fact that she already had undergone one only marginally successful revision surgery and the fact that she suffered concurrently from cervical disc disease in addition to her rotator cuff issues.
23. Notwithstanding that Dr. Macy did not concur with Dr. Backus’ end medical result determination, Claimant did not initially notify the Department that she disputed Defendant’s discontinuance of her temporary disability benefits. Instead, Claimant used the ongoing-treatment-versus-end-medical-result issue as the starting point for a discussion with Defendant as to the possibility of negotiating a global settlement of her workers’ compensation claim. This discussion continued throughout November and December 2008, but the parties were unable to reach agreement. Thus, in early January 2009 Claimant notified the Department that she disputed Dr. Backus’ end medical result determination and asked that it rescind its approval of Defendant’s discontinuance. This the Department declined to do.
24. Claimant underwent the MR arthrogram, which Dr. Macy ultimately had endorsed, in February 2009. It revealed another small full thickness re-tear in her rotator cuff tendon. On March 19, 2009 Dr. Macy performed a third surgery to repair the tear. Claimant has not yet reached an end medical result from that procedure. She is again in physical therapy and has reported that she feels better than she did at this point in her recovery from either of her previous surgeries. She has not yet been released to return to work, although Dr. Macy testified that she might be able to do so provided the job is sedentary and involves no use at all of her right upper extremity.
25. At Defendant’s request, Dr. Backus reviewed Dr. Macy’s most recent operative report, as well as Claimant’s physical therapy progress notes since undergoing the third surgery. Dr. Backus concluded that it is impossible to tell if Claimant will achieve significant further improvement from the March 2009 surgery. In his opinion, her prognosis is guarded.
26. Defendant has refused to pay either for the February 2009 MR arthrogram or for the March 2009 surgery and ensuing treatment. It asserts that these treatments were neither reasonably necessary nor causally related to Claimant’s compensable shoulder injury.
27. Dr. Macy testified that Claimant’s treatment has been both reasonably necessary and causally related. He noted that once repaired, rotator cuff tendons have a very high re-tear rate. To compound the problem, Claimant’s rotator cuff tendon is very thin, and therefore even more susceptible to re-tearing. According to Dr. Macy, Claimant’s re-tear most likely occurred because her tendon was both thin (a result of her anatomy) and diseased (a result of her original work injury). In his opinion, therefore, it was causally related to her compensable injury to the same extent as each of her prior tears and re-tears were.
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28. Dr. Macy also testified that the treatment Claimant has received to date, including her most recent surgery, has been reasonably necessary. He noted that Claimant was relatively young, did not smoke, had not reinjured herself and although slightly obese, did not have any other significant biological factors working against her. In his opinion, it was reasonable to attempt a third surgical repair. Dr. Macy admitted, however, that it was highly unlikely that he would consider any additional surgeries at this point.
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). As to the reasonable necessity of medical treatment, however, Claimant bears the burden of proof. MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009).
3. In this claim, Defendant maintains that Claimant reached an end medical result, as Dr. Backus determined, in August 2008. It asserts that all subsequent treatment, including the September 2008 WERC evaluation, the February 2009 MR arthrogram and the March 2009 rotator cuff revision surgery, was either palliative in nature or not causally related. Therefore, it argues, its discontinuance was proper.
4. With Dr. Macy’s testimony as support, Claimant counters that the treatment she has undergone since September 2008 was reasonably calculated to lead to further improvement in her medical condition, and that it therefore negates a finding of end medical result.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
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6. I find Dr. Macy’s opinion to be the most credible one here. His credentials as an orthopedic surgeon and shoulder specialist are strong, and his opinion as to the causal relationship between Claimant’s original rotator cuff tear and her subsequent re-tears is based on his own surgical experience. Although he might initially have viewed the third surgery with some trepidation, his decision to go forward with it represented a reasonable attempt to restore a higher level of function in Claimant’s shoulder.
7. In contrast, Dr. Backus’ opinion does not even address the causal relationship between Claimant’s original work injury and her treatment after September 2008. As to reasonable necessity, furthermore, Dr. Backus states only that Claimant’s prognosis remains guarded and that it is impossible to predict whether she will realize significant further improvement from the March 2009 surgery. The reasonable necessity of medical treatment is to be determined from the perspective of what was known at the time it was undertaken, however, not in hindsight. MacAskill, supra.
8. I conclude, therefore, that the more credible medical evidence establishes that Claimant’s treatment from September 2008 forward was both reasonably necessary and causally related to her work injury. I further conclude that the treatment was reasonably calculated to lead to further improvement in her medical condition. For that reason, I conclude that Claimant did not reach an end medical result in August 2008, that she has not yet reached an end medical result and that Defendant’s September 2008 discontinuance was improper.
9. As a final defense, Defendant argues that Claimant should be precluded from disputing its September 2008 discontinuance because she did not seasonably notify the Department of her intention to do so. I can find neither a legal nor an equitable basis for this assertion. The statute is silent as to the appropriate time frame for a claimant to request that the Department reconsider its approval of an employer’s discontinuance. Without a clear legislative directive, I am unwilling to apply a thirty-day limit, as is mandated both in the context of appealing a formal hearing decision, see 21 V.S.A. §§670, 672, and in the context of appealing a trial court decision to the Vermont Supreme Court, see V.R.A.P. 4. Nor is the ten-day limit for filing post-judgment motions under V.R.C.P. 59(e) appropriate. Perhaps the six-month time frame provided by 21 V.S.A. §656(a) and/or the three-year statute of limitations provided by §660(a) might be appropriate, but even those provisions are not on their face applicable to the current situation.
10. Under the particular circumstances of this case, furthermore, Defendant was fully aware that Claimant disputed Dr. Backus’ end medical result determination, and was not prejudiced in any way by her delay in triggering the Department’s involvement. To be sure, following the Department’s approval of its discontinuance Defendant did advance permanency benefits in accordance with Dr. Backus’ impairment rating, but these were benefits that would have been owed in any case. The fact that in hindsight Defendant may have paid them prematurely does not affect Claimant’s entitlement to temporary disability benefits in any respect.
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11. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $40.80 and attorney fees totaling $6,174.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded as well.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits retroactive to their discontinuance on September 28, 2008 and ongoing properly discontinued pursuant to 21 V.S.A. §643a and Workers’ Compensation Rule 18;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to Claimant’s January 25, 2006 work injury, including but not limited to the September 2008 WERC evaluation, the February 2009 MR arthrogram and the March 2009 rotator cuff revision surgery and associated follow-up treatment;
3. Interest on the above amounts in accordance with 21 V.S.A. §664; and
4. Costs totaling $40.80 and attorney fees totaling $6,174.00.
DATED at Montpelier, Vermont this 15th day of December 2009.
________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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