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Wilbur Baraw v. F. R. Lafayette, Inc. (January 20, 2010)

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Wilbur Baraw v. F. R. Lafayette, Inc. (January 20, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Wilbur Baraw, Jr. Opinion No. 01-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
F.R. Lafayette, Inc.
For: Patricia Moulton Powden
Commissioner
State File No. Z-01098
OPINION AND ORDER
Hearing held in Montpelier on December 4, 2009
Record closed on December 28, 2009
APPEARANCES:
Steven Robinson, Esq, for Claimant
Kelly Smith, Esq., for Defendant
ISSUES:
1. Has Claimant reached an end medical result for his September 27, 2007 work injury?
2. Do Claimant’s current mental health counseling sessions constitute reasonably necessary treatment for his work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Orleans Medical Clinic referral, May 13, 2009
Defendant’s Exhibit A: Curriculum Vitae, William Nash, Ph.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorneys fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was 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 lives in Craftsbury, Vermont with his wife and daughter. On the date of his injury, Claimant was 33 years old.
4. Claimant worked for Defendant for ten years. For three of those years he was a truck driver. Subsequently, he operated a piece of heavy equipment used to drive posts into the ground. The machine is known as a “post pounder.”
5. On September 27, 2007 Claimant was operating the post pounder to replace roadside guard rails. As he pulled up a metal rod that supported the original guard rail, the rod broke and hit Claimant in the head between the eyes. Claimant immediately lost consciousness.
6. Defendant accepted Claimant’s injury as compensable and began paying both temporary total disability compensation and medical benefits accordingly.
7. Claimant attempted a return to work during both 2007 and 2008. He initially operated the post pounder but its constant movement and vibrations triggered migraines, dizziness and nausea. Claimant transferred to ground work as a laborer but the continual physical movements of that job caused the same symptoms. Claimant has not worked since October 2008.
On-going Treatment and End Medical Result
8. Dr. Haas, an occupational health physician, evaluated Claimant on August 6, 2008. He also reviewed Claimant’s then-existing medical records, including those of Dr. Haq, a neurologist, whom Claimant saw periodically between early October 2007 and late February 2008. Dr. Haq had diagnosed Claimant with post-traumatic migraine headaches and post-concussion syndrome.
9. Dr. Haas concurred with Dr. Haq’s diagnosis. He found no evidence of any traumatic brain injury. Based both on Claimant’s subjective report and on his objective examination, Dr. Haas concluded that Claimant’s condition had stabilized and that whatever symptoms persisted were relatively mild. Claimant reported that his headaches had been infrequent since December 2007 and that he had experienced only three episodes of dizziness in the previous six months. His wife reported that his memory deficits were stable. On objective examination, Dr. Haas found Claimant to be within normal limits for both coordination and balance. As for his mood, Claimant reported that he felt “like a million bucks” on most days at work.
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10. Dr. Haas noted that Claimant continued to experience episodic headaches and dizziness, mild positional vertigo, mild fatigue and memory difficulties, but doubted that these symptoms would likely resolve with further treatment. As for any suspected cognitive deficits, Dr. Haas felt that in the absence of a pre-injury baseline, further neuropsychological testing was unlikely to reveal anything new or lead to more effective treatment. Dr. Haas concluded, therefore, that Claimant had reached an end medical result and rated him with a 3% whole person permanent impairment. 1
11. On November 18, 2008 Claimant saw Dr. Haas again. Subjectively, Claimant reported that his headaches and dizziness had worsened since September 2008. Objectively, in contrast to his prior examination only three months earlier, this time Dr. Haas’ testing revealed evidence of vertigo and balance deficits. Dr. Haas was unable to explain why Claimant’s condition had worsened. In an effort to address these symptoms, Dr. Haas prescribed physical therapy for balance stabilization and additional medications for headaches.
12. On December 12, 2008 Claimant underwent a neuropsychiatric evaluation with Drs. Ammerman and McAllister at Dartmouth Hitchcock Medical Center. Claimant described the circumstances of his injury and reported persistent symptoms of insomnia, dizziness, nausea, head pain, motion sickness and memory loss. The doctors determined that Claimant had suffered a mild brain injury and had not yet returned to his functional baseline. For further treatment, they outlined the following plan:
• Referral to an ear, nose and throat specialist for further evaluation whether Claimant’s balance issues might be evidence of a middle or inner ear problem;
• Neuropsychological testing to identify and quantify Claimant’s cognitive complaints;
• Physical therapy to address Claimant’s dizziness symptoms;
• Medication adjustments to address Claimant’s depression; and
• Referral to the Dartmouth Hitchcock Headache Clinic for further evaluation of Claimant’s headaches.
1 Specifically, Dr. Haas rated Claimant with a 0% impairment referable to his headaches, 1% for his dizziness symptoms and 2% for deficits in cognitive performance.
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13. Although the medical records are incomplete, 2 it appears Claimant underwent each of the further evaluations Drs. Ammerman and McAllister recommended. Specifically:
• As reported by Dr. Orecchio in the context of his independent medical evaluation, Claimant was evaluated by Dr. Saunders, an otolaryngologist, in 2009 for his disequilibrium and dizziness symptoms. The record does not indicate what further treatment recommendations, if any, Dr. Saunders made.
• Claimant underwent a neuropsychological evaluation with Drs. Kumbhani and Roth on March 5, 2009. The findings were consistent with a traumatic brain injury, but also reflected Claimant’s pre-morbid level of functioning as well. The doctors suggested that Claimant might benefit from a behavioral medicine referral, but again, the record does not reflect whether Claimant pursued this recommendation. Beyond that, they recommended cognitive deficit coping strategies – avoiding environmental distractions or multi-step tasks, for example – but no real treatment per se. They also recommended psychological counseling for Claimant’s depression.
• Claimant underwent a course of physical therapy to address his dizziness and balance issues. The record does not reflect how this therapy progressed and/or the extent to which it was successful. Claimant testified at the formal hearing that he had concluded it.
• As discussed below, Claimant began treating with Dr. Ward, a neurologist at Dartmouth Hitchcock, primarily for his headaches but with some attention to his other symptoms as well.
14. At Defendant’s request, on May 1, 2009 Claimant underwent an independent medical evaluation with Dr. Orecchio. Dr. Orecchio is board certified in neurology with an added qualification in clinical neurophysiology. Dr. Orecchio reviewed Claimant’s medical records, including apparently some that are lacking from the record here, notably Dawna Pigeon’s physical therapy notes and Dr. Saunders’ otolaryngological evaluation.
15. As Dr. Haas had noted in his November 2008 examination, Dr. Orecchio found positive evidence of vertigo and balance issues, possibly indicative of an inner ear dysfunction. These issues had persisted despite the further treatment recommended not only by Dr. Haas, but by Drs. Ammerman and McAllister as well. Dr. Orecchio remarked that it was typical for an injury such as Claimant’s to generate symptoms that would wax and wane over time. Thus, despite his persistent, though occasional, headaches and disequilibrium symptoms, Dr. Orecchio concluded that Claimant had reached an end medical result, with a 3% whole person permanent impairment.
2 Records contained in the parties’ joint medical exhibit refer to various other providers who either treated or evaluated Claimant for his work injury, but whose records are not themselves included in the exhibit. It is apparent, for example, that Claimant underwent physical therapy with Dawna Pigeon and also an otolaryngological evaluation with Dr. Saunders, but those records are absent from the joint medical exhibit. In addition, the records pertaining to Claimant’s treatment with Dr. Ward, his current neurologist, are incomplete. These gaps in the factual record are significant.
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16. Dr. Orecchio reiterated his end medical result opinion on July 21, 2009. Having reviewed additional medical records, including apparently some from Dr. Ward, the neurologist who was treating Claimant’s headaches, Dr. Orecchio still maintained that Claimant had reached an end medical result for his balance dysfunction. As to Claimant’s persistent headaches, Dr. Orecchio deferred somewhat to Dr. Ward, stating that he believed Dr. Ward’s involvement in treating these was “important.” Dr. Orecchio anticipated that Dr. Ward’s treatment in this regard would consist primarily in monitoring and adjusting Claimant’s medications.
17. With Dr. Orecchio’s end medical result opinion as support, Defendant discontinued Claimant’s temporary total disability compensation effective July 30, 2009.
18. The record contains only one office note from Dr. Ward, dated July 21, 2009. That note reflects that Claimant had been maintaining a headache journal for some time, however, and thus may be indicative of prior office visits with Dr. Ward as well. Dr. Ward reported that Claimant’s headaches had been “quite intermittent” during the preceding months and that Claimant was able to control all of them with medication. He further reported that Claimant’s balance issues were being addressed with physical therapy. Dr. Ward remarked that he “might” seek another neuropsychological evaluation in three months’ time, but did not explain for what purpose he would do so. Last, Dr. Ward adjusted Claimant’s headache medication.
19. Also in July 2009 Dr. Ward responded to an inquiry from Claimant’s attorney as to whether Claimant had reached an end medical result, stating, “unsure, but if not, close” (emphasis in original). Later, in a letter to Claimant’s attorney dated September 23, 2009 Dr. Ward advised that Claimant had reached an end medical result for his headaches, but not for his disequilibrium symptoms. The letter does not specify what further treatment Dr. Ward was recommending to address those symptoms.3
20. Claimant testified that he saw Dr. Ward again in early December, apparently for the purpose of monitoring his headaches and adjusting his sleep medications. The record of that visit was not available at the hearing. Claimant testified that he was scheduled to see either Dr. Ward and/or Dr. McAllister again in early February 2010, but again, it was unclear from his testimony for what purpose.
Mental Health Counseling
21. As noted above, in the context of Claimant’s March 2009 neuropsychological evaluation Drs. Kumbhani and Roth recommended that Claimant undergo psychotherapy to address his depressive symptoms. To that end, Claimant began treating with Ruth Hale, M.S.W. in May 2009.
3 The letter references an enclosed office note dated September 17, 2009. Possibly Dr. Ward specified his treatment plan in that note, but once again, the parties’ joint medical exhibit does not include the record.
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22. Between May and August 2009 Ms. Hale conducted approximately thirteen counseling sessions with Claimant. Throughout these sessions the themes have been largely consistent. Claimant describes feeling worthless and frustrated at his inability to work and provide for his family. He has adapted poorly to spending more time at home, and his relationship with his wife has suffered as a result. He continues to feel hampered by his short-term memory deficits and his inability to complete household tasks. He admits to feeling depressed. Claimant reiterated these sentiments in his formal hearing testimony. Clearly they continue to weigh heavily upon him.
23. The tenor of Ms. Hale’s therapy was supportive, reflective and insight-oriented. She encouraged Claimant to express his feelings and as Claimant described, gave him an outlet for venting his frustrations.
24. In order to quantify the nature and extent of Claimant’s depressive symptoms, Ms. Hale administered a depression screening inventory on July 14, 2009 and again on August 18, 2009. The results indicated that Claimant’s depression had not improved with counseling, but rather had worsened slightly in the interim.
25. At Defendant’s request, in August 2009 Dr. Nash, a psychologist, reviewed Claimant’s medical and psychological treatment records for the purpose of determining whether Ms. Hale’s therapy constituted reasonable and necessary treatment for Claimant’s work injury. Dr. Nash testified at the formal hearing that he has performed numerous forensic examinations in workers’ compensation cases, for both claimants and defendants.
26. In Dr. Nash’s opinion, the cognitive and emotional consequences of Claimant’s injury would be much better addressed by focusing more on adaptive techniques and rehabilitation strategies and less on “talk therapy.” In fact, according to Dr. Nash, the therapy offered by Ms. Hale is counter-productive. Rather than encouraging Claimant to deal with his loss and then move forward, Ms. Hale’s sessions have allowed him to remain focused on his symptoms and entrenched in his disability. Indeed, according to Dr. Nash, Ms. Hale’s own depression screening inventories document that this is exactly what has occurred in Claimant’s case.
27. In support of his opinion Dr. Nash cited to various reported studies indicating that “passive” treatments such as supportive counseling are largely ineffective in the context of chronic pain management, and in fact may even be detrimental. Although these studies all involved patients who suffered from low back pain, Dr. Nash testified that their findings were equally applicable to patients whose chronic pain had developed from other injuries as well.
28. With these studies in mind, Dr. Nash suggested that a multidisciplinary rehabilitation program likely would be a more effective treatment for a chronic pain patient such as Claimant. Without personally having evaluated him, however, Dr. Nash stopped short of making a specific treatment recommendation to that effect.
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29. In sum, Dr. Nash concluded that Ms. Hale’s therapy has not ameliorated Claimant’s depression to any extent, and actually may have worsened it. In his opinion, therefore, her treatment is neither reasonable nor necessary.
30. With Dr. Nash’s report as support, Defendant discontinued coverage for Ms. Hale’s therapy sessions effective October 19, 2009.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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 first disputed issue in this claim, therefore – whether Claimant has reached an end medical result for his work-related injury – the burden of proof is on Defendant.
3. Defendant also bears the burden of proof as to the second disputed issue – whether Ms. Hale’s counseling sessions constitute reasonable and necessary treatment for Claimant’s work injury. Having initially accepted these treatments as compensable, Defendant now must prove that they are no longer reasonable and therefore not covered under 21 V.S.A. §640(a). Scranton v. The Book Press, Opinion No. 06-07WC (February 22, 2007). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable condition or injury. Sinon v. State of Vermont, Opinion No. 10-09WC (April 1, 2009); see also Morriseau v. State of Vermont Agency of Transportation, Opinion No. 8-00WC (May 17, 2004).
End Medical Result
4. Defendant relies on the opinions of Drs. Haas and Orecchio in support of its assertion that Claimant has reached an end medical result for his work injury. In response, Claimant relies on his ongoing treatment with Drs. Ward and McAllister as evidence that his condition has not yet reached a medical plateau.
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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).
6. The medical records demonstrate no disagreement on a number of points. Claimant sustained a serious blow to his head. He had numerous physiological symptoms after his injury, but principally dizziness, motion sickness, headaches, nausea and memory loss. Claimant’s symptoms were consistent with a diagnosis of post concussive syndrome. Waxing and waning symptoms are characteristic of this type of injury.
7. Dr. Haas initially found Claimant to be at end medical result as of his August 2008 evaluation. After re-evaluating him in November 2008, however, Dr. Haas noted that Claimant’s symptoms had worsened and prescribed further treatment in response. By doing so, in effect Dr. Haas retracted his prior finding of end medical result. I find his opinion to be insufficient support for Defendant’s position, therefore.
8. Following their examination of Claimant in December 2008 Drs. Ammerman and McAllister made various recommendations directed at further evaluating and treating Claimant’s ongoing headaches, disequilibrium and cognitive deficits. It appears from the record that each of these recommendations was followed to an appropriate conclusion. Dr. Orecchio so noted in the context of his May 2009 evaluation, as supplemented by his July 21, 2009 correspondence. On those grounds, Dr. Orecchio determined that Claimant had reached an end medical result by that latter date.
9. As for Dr. Ward, as of September 23, 2009 he acknowledged that Claimant had reached an end medical result for his headache symptoms, though not for his disequilibrium. Dr. Ward’s opinion is flawed, however, in that it makes no mention of any specific treatment recommendations that reasonably might be calculated to lead to significant further improvement. This is an essential requirement to negate an end medical result determination. Workers’ Compensation Rule 2.1200.
10. In the absence of any evidence relating to the purpose of Dr. Ward’s ongoing treatment, I simply cannot find sufficient support for a finding that Claimant has not yet reached an end medical result. If such evidence exists, it was not produced here.
11. Having eliminated both Dr. Haas’ and Dr. Ward’s opinions on the issue, I am convinced that Dr. Orecchio’s end medical result determination is the most credible. Dr. Orecchio conducted a thorough evaluation and appears to have reviewed all of the available medical records (including some that were not made available for my review here). His opinion was well-supported and persuasively established. I conclude, therefore, that Defendant’s July 30, 2009 discontinuance on end medical result grounds was proper.
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Compensability of On-going Mental Health Counseling Sessions
12. As to the compensability of Claimant’s on-going counseling sessions with Ms. Hale, I am convinced by Dr. Nash’s testimony that these are no longer reasonable and necessary. Dr. Nash’s explanation as to why the reflective, supportive therapy Ms. Hale offered was more likely to be detrimental than beneficial was borne out by Ms. Hale’s own objective measurements, which showed that Claimant’s depressive symptoms actually increased over the course of her treatment. While palliative care can be compensable in appropriate circumstances, it must be shown to be effective at maintaining function, not worsening it. J.C. v. Eveready Battery, Opinion No. 12-07WC (April 3, 2007). Ms. Hale’s treatment does not meet this standard.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for temporary total disability benefits after July 30, 2009 is DENIED. Claimant’s claim for medical coverage for Ms. Hale’s ongoing counseling sessions is DENIED.
DATED at Montpelier, Vermont this 20th day of January 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

 

STATE OF VERMONT

DEPARTMENT OF LABOR

 

Laurel Zeno Opinion No. 27-10WC

 

v. By: Phyllis Phillips, Esq.

Hearing Officer

University of Vermont

For: Valerie Rickert

Acting Commissioner

 

State File No. Z-00033

 

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

ATTORNEYS:

 

Christopher McVeigh, Esq., for Claimant

Stephen Ellis, Esq., for Defendant

 

ISSUES PRESENTED:

 

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

 

2. Is Defendant entitled to judgment as a matter of law as to the extent of Claimant’s
permanent impairment, if any, causally related to her June 20, 2007 injury?

 

FINDINGS OF FACT:

 

Considering the facts in the light most favorable to the non-moving party, see, e.g., State v.
Delaney, 157 Vt. 247, 252 (1991), I find the following:

 

1. On June 20, 2007 Claimant suffered a work-related injury when she fell in Defendant’s
parking lot. Subsequently she sought treatment for right knee and left shoulder pain
causally related to her fall.

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Discovery and Disclosure Issues

 

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

 

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

 

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

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

 

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

 

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

 

DISCUSSION:

 

1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when
the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137
Vt. 425 (1979).

 

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

 

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

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

 

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

 

ORDER:

 

Defendant’s Motion for Summary Judgment is hereby DENIED.

 

 

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

 

 

 

 

_______________________

Valerie Rickert

Acting Commissioner

 

 

 

Appeal:

 

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

Robert Bruno v. Directech Holding Co. (May 19, 2010)

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

Robert Bruno v. Directech Holding Co. (May 19, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Bruno Opinion No. 18-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Directech Holding Co.
For: Patricia Moulton Powden
Commissioner
State File No. Y-50514
OPINION AND ORDER
Hearing held in Montpelier, Vermont on February 8, 2010
Record closed on March 19, 2010
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Marion Ferguson, Esq., for Defendant
ISSUE PRESENTED:
1. Has Claimant reached an end medical result for his July 7, 2006 work-related injury and, if so, when did that occur?
2. What is the appropriate permanent impairment rating referable to Claimant’s July 7, 2006 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Preservation deposition of Robert Beattie, M.D., January 8, 2010
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was 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. Judicial notice also is taken of the relevant portions of the AMA Guides to the Evaluation of Permanent Impairment, 5th ed. (the “AMA Guides”).
3. Claimant worked for Defendant as a satellite television installer. His job required him to climb ladders, carry equipment and run wires in tight spaces.
4. Claimant’s prior medical history includes cervical degenerative disc disease, migraine headaches and fibromyalgia, a generalized chronic pain syndrome. Notwithstanding these conditions Claimant was able to work with no formal restrictions prior to the injury at issue here.
Claimant’s Work Injury and Subsequent Treatment
5. On July 7, 2006 Claimant was completing a service call at a customer’s home when he fell from a small step. Claimant landed directly on his right knee, which immediately became swollen and painful.
6. Defendant accepted Claimant’s right knee injury as compensable and began paying workers’ compensation benefits accordingly.
7. Claimant’s knee pain failed to respond to conservative therapy. His knee remained swollen and painful and he was unable to bear weight on it. In October 2006 he underwent arthroscopic surgery with Dr. Beattie, an orthopedic surgeon. Dr. Beattie maintains a general orthopedic practice with an interest in sports medicine that has evolved predominantly towards knee and shoulder injuries.
8. Dr. Beattie surgically repaired Claimant’s torn meniscus, debrided his patellofemoral joint and removed a sebaceous cyst, all as treatment causally related to Claimant’s July 2006 fall.
9. Claimant’s symptoms failed to improve with surgery, and in fact worsened instead. He underwent a series of joint lubrication injections in early 2007, and then a second arthroscopic surgery in August 2007, but neither of these interventions alleviated his symptoms. Claimant continued to experience sensations of clicking, locking and popping in his knee, which Dr. Beattie attributed specifically to his patellofemoral joint. In addition, however, Claimant also experienced burning pain and numbness around the perimeter of his kneecap, down his shin and into his foot. These symptoms were more suggestive to Dr. Beattie of post-traumatic neuritis, or nerve irritation. Dr. Beattie suspected that a neuroma might have formed in a small subcutaneous branch of Claimant’s saphenous nerve, a sensory nerve in the lower leg.
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10. Claimant underwent a second series of joint lubricating injections in April and May 2008, but again to no avail. Dr. Beattie continued to believe that Claimant’s symptoms were multi-factorial, a combination of osteoarthritis in his knee joint and post-traumatic neuritis. Dr. Beattie postulated as well that Claimant might have developed complex regional pain syndrome (CRPS) in his right leg.
Neurologic and Orthopedic Consultations
11. In order to further evaluate and identify possible treatment options for Claimant’s multi-factorial symptoms, in May 2008 Dr. Beattie made two subsequent referrals – one to Dr. Howe, an orthopedic surgeon, for a second opinion primarily as to Claimant’s joint pain, and one to Dr. Tranmer, a neurosurgeon, for consideration of a neurectomy to treat his nerve pain. The purpose of a neurectomy is to decrease the irritation in the nerve by excising the neuroma and burying the nerve ending in a less vulnerable site. By doing so, the affected area becomes numb, but is no longer painful.
12. Dr. Tranmer first evaluated Claimant in July 2008. Although he noted the neurogenic nature of Claimant’s pain, in his clinical exam he could not identify any region where a neuroma likely was present. Thus Dr. Tranmer could not recommend a neurectomy. As an alternative, however, Dr. Tranmer suggested that Claimant might benefit from a spinal cord stimulator. A spinal cord stimulator does not address the root cause of a patient’s pain, but rather treats his or her pain symptoms in a more non-specific manner.
13. Even after evaluations by two other specialists, it remains unclear whether Claimant’s neurogenic symptoms are due to a neuroma. Dr. Pino, a pain management specialist who evaluated Claimant at Dr. Tranmer’s request in October 2008, concluded that a neuroma had formed in Claimant’s knee. However, after evaluating Claimant in December 2008 Dr. Penar, another neurosurgeon in Dr. Tranmer’s practice, concluded that the clinical findings were too equivocal to support the presence of a neuroma.
14. As Dr. Tranmer had, Dr. Penar also advised against a neurectomy as a means of addressing Claimant’s symptoms. According to Dr. Penar, because there is no specific well-defined single branch of the saphenous nerve, it would be very difficult to pinpoint and find a neuroma even by surgically exploring the area. In addition, Dr. Penar reported that Claimant “did not want” additional numbness in his foot, and therefore might not be satisfied with the outcome of such a procedure.
15. With these considerations in mind, Dr. Penar concurred with Dr. Tranmer that a spinal cord stimulator represented a better treatment option for Claimant’s nerve pain. If successful, a stimulator would provide long-lasting relief of Claimant’s pain. It also would treat a broader area of sensitivity than that likely due to a neuroma.
16. As to the orthopedic aspect of Dr. Beattie’s multi-factorial diagnosis, Claimant underwent a second opinion consultation with Dr. Howe in October 2008. Dr. Howe acknowledged that it was difficult to confirm the exact etiology of Claimant’s symptoms, whether orthopedic or neurologic. From an orthopedic perspective, in his opinion Claimant was not a candidate for a total knee replacement.
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17. As to Claimant’s nerve pain, Dr. Howe found “clear evidence” of a neuroma in Claimant’s clinical examination. Of note, furthermore, after Dr. Howe injected the suspected area of the neuroma with an anesthetic, Claimant reported significant pain relief. Dr. Howe interpreted this finding as further diagnostic evidence that a neuroma was in fact causing Claimant’s neurogenic symptoms. He deferred to make any treatment recommendations, however, and instead referred Claimant back to Drs. Beattie and/or Tranmer for further consideration of his options.
Evaluation for Complex Regional Pain Syndrome (CRPS)
18. At his attorney’s referral, in February 2009 Claimant underwent an evaluation with Dr. Zweber to assess whether he suffered from CRPS in his right lower extremity. Dr. Zweber is board-certified in physical medicine and rehabilitation, and has extensive credentials and experience in treating CRPS patients.
19. Dr. Zweber determined that Claimant did in fact suffer from CRPS. In reaching this conclusion Dr. Zweber noted such physical findings as changes in skin color, temperature and texture, joint stiffness, edema and abnormal hair and nail growth.
20. Notwithstanding his diagnostic conclusions, Dr. Zweber acknowledged that his examination of Claimant did not reveal sufficient physical findings to meet the diagnostic criteria for CRPS as contained in the AMA Guides. According to those criteria, a patient must exhibit at least eight of eleven designated signs and symptoms of the condition in order for the diagnosis to be used as the basis for rating permanent impairment. Dr. Zweber testified that the AMA Guides’ criteria were fairly arbitrary, somewhat outdated and not considered a “diagnostic bible” by CRPS practitioners.
21. Dr. Zweber testified that recent treatment advances have identified spinal cord stimulators as possibly effective in improving CRPS symptoms. If successful, the device is designed to control a patient’s pain level on a “more or less” permanent basis, though admittedly it is not in any way curative of the condition itself.
22. Dr. Zweber determined that “other than consideration for a spinal cord stimulator,” Claimant had reached an end medical result as of his February 2009 evaluation.
23. Even though Claimant did not satisfy the AMA Guides’ diagnostic criteria for CRPS, in rating the extent of his permanent impairment Dr. Zweber utilized the Guides’ methodology nonetheless. That method directs practitioners to consider the extent of a patient’s gait impairment when rating permanency due to CRPS in a lower extremity. Dr. Zweber categorized Claimant’s gait impairment as “moderate,” and therefore accorded him a 19% whole person impairment rating.
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Dr. White’s Independent Medical Evaluations
24. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. White, an occupational medicine specialist, in April 2008. At the time of this evaluation, Claimant had not yet completed Dr. Beattie’s second series of joint lubricating injections. Nevertheless, Dr. White determined that it was appropriate to rate the extent of Claimant’s permanent impairment. Having observed no signs of CRPS in his physical examination, Dr. White based his rating solely on range of motion deficits in Claimant’s knee. According to his calculation, Claimant had suffered a 4% whole person impairment.
25. With Dr. White’s report as support, the Department approved Defendant’s Notice of Intention to Discontinue Benefits (Form 27) on the grounds that Claimant had reached an end medical result. The discontinuance was effective May 8, 2008.
26. Dr. White supplemented his report with an addendum in January 2009, in which he clarified that Claimant had in fact reached an end medical result as of that date. Thereafter, Dr. White conducted a second independent medical evaluation in May 2009, followed by another addendum in June 2009. In the intervening months since Dr. White’s first evaluation Claimant had undergone the consultations noted above (with Drs. Tranmer, Pino, Penar and Howe), all of which were aimed primarily at evaluating possible treatment options to address his ongoing symptoms.
27. Dr. White found no basis in this interval history for retracting his previous end medical result determination. He acknowledged that a spinal cord stimulator was a reasonable treatment option, and that if successful it might provide up to 60% improvement in Claimant’s symptoms for as long as two years.1 Nevertheless, the treatment was not designed to be curative – it would not address the underlying cause of Claimant’s symptoms, but instead would serve only to mask his pain. Citing to both the definition of “end medical result” contained in Workers’ Compensation Rule 2.1200 and the concept of “maximum medical improvement” as defined by the AMA Guides, Dr. White concluded that Claimant’s condition was unlikely to change substantially, either with or without further treatment. Therefore, he remained at end medical result.
28. Dr. White considered the possibility of a neurectomy in a similar vein. In his opinion, that too would be a reasonable treatment option, but again one that due to its small likelihood of success probably would not significantly affect Claimant’s underlying condition.
29. Dr. White acknowledged that despite the additional consultations Claimant had undergone, the anatomic etiology of his symptoms remained unclear.
1 Dr. White testified that a spinal cord stimulator’s efficacy sometimes can be extended beyond two years by replacing its batteries, though eventually the device’s positive effect will dissipate nonetheless.
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30. As for permanency, Dr. White reiterated that his examination failed to reveal sufficient signs or symptoms of CRPS to justify an impairment rating for that condition under the AMA Guides. As a consequence, he could not support Dr. Zweber’s 19% rating. However, Dr. White did determine that Claimant exhibited greater losses in range of motion in his May 2009 evaluation than he had at the time of his April 2008 evaluation. On those grounds, he increased Claimant’s permanent impairment rating from 4% whole person to 8%.
Claimant’s Recent Treatment and Current Status
31. At Dr. Pino’s direction, on August 6, 2009 Claimant underwent a spinal cord stimulator trial. Unfortunately he did not experience effective symptom relief and therefore was determined not to be a good candidate for permanent implantation. Dr. Pino removed the device on August 13, 2009.
32. Dr. Beattie last evaluated Claimant in September 2009. His treatment note for that date does not reflect any additional recommendations or referrals for Claimant’s ongoing right knee symptoms. In his January 2010 deposition, however, Dr. Beattie continued to maintain that Claimant might benefit from a neurectomy. In his opinion, the fact that Claimant had experienced significant pain relief after Dr. Howe injected his saphenous nerve with anesthetic was evidence that a neuroma existed at the site. Notwithstanding both Dr. Tranmer’s and Dr. Penar’s misgivings, therefore, Dr. Beattie testified that “if it was my knee, I would consider another opinion.” Dr. Beattie acknowledged that if it was determined after a third neurosurgical opinion that Claimant was not an appropriate candidate for a neurectomy, then he would be at end medical result.
33. Claimant testified at the formal hearing that at Dr. Beattie’s referral he was scheduled to see a third neurosurgeon, Dr. Ball, in the coming week. Aside from Dr. Beattie’s deposition testimony, however, there is no medical record documenting that referral.
34. Claimant has not returned to work since his injury. He wears a knee brace and walks with a cane. He takes a variety of prescription medications, some of which affect his concentration and make him sleepy during the day. He described his pain level as “intolerable.” Recently he began seeing a therapist for depression and anxiety.
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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. 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); Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. This claim raises two distinct issues. Defendant bears the burden of proof as to the first issue – whether it properly discontinued Claimant’s temporary disability benefits on end medical result grounds in May 2008. Claimant bears the burden of proof as to the second issue – what is the extent of his permanent impairment and specifically, whether it is appropriate to consider CRPS as a rating factor.
End Medical Result
4. Vermont’s workers’ compensation rules define the terms “end medical result” and “palliative care” as follows:
“End medical 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. Workers’ Compensation Rule 2.1200.
“Palliative care” means medical services rendered to reduce or moderate temporarily the intensity of an otherwise stable medical condition, but does not include those medical services rendered to diagnose, heal or permanently alleviate or eliminate a medical condition. Workers’ Compensation Rule 2.1310.
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5. With those terms in mind, I find that Defendant’s May 2008 discontinuance on end medical result grounds was premature. Not only was Claimant in the midst of a series of joint lubrication injections at the time, but in the subsequent months he underwent additional evaluations, both orthopedic and neurosurgical, with the goal of properly diagnosing his condition and developing an appropriate treatment plan. Dr. White himself admitted that the anatomic etiology of Claimant’s symptoms was unclear. The specialist evaluations Claimant underwent with Drs. Tranmer, Howe, Pino and Penar in July, October and December 2008 represented reasonable attempts to remedy that lack of diagnostic clarity and in that way further his medical recovery process.
6. In fact, the evidence establishes that Claimant did not reach an end medical result until August 13, 2009 when his spinal cord stimulator trial concluded. At the time it was undertaken, this treatment was reasonably calculated to lead to further improvement in Claimant’s medical recovery process. It is sufficient, therefore, to negate a finding of end medical result as that term is defined in Workers’ Compensation Rule 2.1200. Luff v. Rent Way, Opinion No. 07-10WC (February 16, 2010).
7. Defendant argues strenuously that Luff was incorrectly decided, that it impermissibly conflicts with the Vermont Supreme Court’s holding in Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996), and that its precedential value should either be strictly limited or, better yet, reconsidered. Defendant asserts that by endorsing the possibility that a spinal cord stimulator implantation can, in appropriate circumstances, negate a finding of end medical result, the effect of Luff is to eliminate the necessary element of finality in a workers’ compensation indemnity claim.
8. Defendant’s analysis is misguided. As the Luff decision explained, a spinal cord stimulator involves a finite course of treatment, consisting of a brief trial and, if successful, surgical implantation shortly thereafter. Once implanted, the device’s beneficial effect may last for years, but the treatment itself is concluded and an end medical result is achieved. Unlike open-ended chiropractic maintenance programs such as the Supreme Court considered in Coburn, treatment with a spinal cord stimulator does not undermine the element of finality, it enhances it.
9. As for Defendant’s fear that Luff will be interpreted to allow “an infinite loop of sequential ‘finite’ treatments” such as “biofeedback, prolotherapy, Vodou or a trip to Lourdes,” this is equally groundless. Nothing in Luff undermined in any way the requirement that a treatment be reasonable, necessary and likely from a medical perspective to advance the claimant’s recovery process in order for it to negate a finding of end medical result.
10. As was the case in Luff, I conclude here that Claimant’s spinal cord stimulator trial was reasonably calculated to lead to further improvement in his medical recovery process and that therefore he did not reach an end medical result at least until August 13, 2009 when the effort proved unsuccessful.
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11. Claimant maintains that even that date is premature, however. With Dr. Beattie’s deposition testimony as support, he argues that he should not be deemed to be at end medical result at least until he has obtained a third neurosurgical opinion as to whether a neurectomy might still be a reasonable treatment option.
12. I cannot agree. First, notwithstanding Dr. Beattie’s deposition testimony, the medical records themselves do not reflect any discussion of a third neurosurgical opinion, nor a specific referral for that purpose. Discussing treatment options with one’s patient in the context of a medical appointment is qualitatively different from discussing them in the context of a legal proceeding. I am reluctant to extend the date of end medical result based solely on the latter, with no documentation of the former having occurred as well.
13. Having not seen Dr. Beattie since September 2009, furthermore, Claimant cannot be said to have actively treated in the intervening months. Without having done so, it would be inappropriate to extend his end medical result date to cover that period.
14. Depending on the outcome of Claimant’s third neurosurgical opinion, it is conceivable that Defendant will be obligated to resume his temporary disability benefits. This will depend, of course, on what treatment recommendations, if any, that opinion yields, and whether they are deemed reasonable in the context of the entire medical record. That issue is not before me now. In the meantime, as noted above, I find it appropriate to consider Claimant to have reached an end medical result as of August 13, 2009.
Permanent Impairment Rating
15. The second disputed issue in this claim concerns the extent of Claimant’s permanent impairment. At the heart of this issue is whether it is appropriate to consider CRPS as a basis for rating impairment, as Dr. Zweber did, or whether that diagnosis should be excluded for rating purposes, as Dr. White did.
16. As was noted in a very recent opinion, Vermont’s workers’ compensation statute specifically mandates that all permanency ratings be made in accordance with the fifth edition of the AMA Guides. 21 V.S.A. §648(b); Brown v. W.T. Martin Plumbing & Heating, Opinion No. 14-10WC (April 15, 2010). In the context of CRPS, this means that the AMA Guides’ diagnostic criteria must be met in order for the condition to form the basis of an impairment rating.
17. Here, Dr. Zweber acknowledged that Claimant had failed to exhibit sufficient signs or symptoms of CRPS to meet the AMA Guides’ criteria. And while I might agree that the AMA Guides is not a “diagnostic bible” for CRPS practitioners generally, when the issue is permanency the statute leaves no room for discretion.2
2 As was noted in Brown, Conclusion of Law No. 7 at note 4, the statutory mandate in favor of the AMA Guides applies only in the context of determining the “existence and degree” of an injured worker’s permanent impairment. The Guides’ diagnostic criteria are not necessarily determinative where other workers’ compensation benefits are at issue.
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18. As Dr. Zweber’s rating does not comport with the AMA Guides’ criteria I have no choice but to discard it. Instead, I accept Dr. White’s 8% whole person impairment rating as the appropriate measurement of Claimant’s permanency.
19. As Claimant has prevailed only on his claim for temporary disability benefits, he is entitled to an award of those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). As for attorney fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of his allowable costs and attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary disability benefits from May 8, 2008 through August 13, 2009;
2. Permanent partial disability benefits in accordance with Dr. White’s 8% whole person impairment rating;
3. Interest on the above amounts in accordance with 21 V.S.A. §664; and
4. Costs and attorney fees in amounts to be determined pursuant to 21 V.S.A. §678.
DATED at Montpelier, Vermont this 19th day of May 2010.
______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

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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Rhonda Luff v. Rent Way (February 16, 2010)

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

Rhonda Luff v. Rent Way (February 16, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Rhonda Luff Opinion No. 07-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Rent Way
For: Patricia Moulton Powden
Commissioner
State File No. Y-59829
OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 12, 2009
Record closed on October 26, 2009
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Does Claimant’s ongoing treatment since September 10, 2008 negate Defendant’s previous end medical result determination?
EXHIBITS:
Joint Exhibit 1: Medical records
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
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3. Claimant has worked for Defendant, a rent-to-own business, since 2004. Beginning in 2006 she was the manager of Defendant’s Morrisville, Vermont store. As part of her job duties, Claimant was responsible for arranging and rearranging the showroom floor. This was a physically demanding job, which required her to move both furniture and appliances, sometimes without assistance.
4. On March 6, 2007 Claimant was rearranging the showroom floor. As she attempted to move a front-loading washing machine, her back “gave way.” Claimant experienced the immediate onset of severe low back pain radiating down to her left leg.
5. Claimant was diagnosed with a herniated disc at L5-S1, for which she underwent lumbar spine surgery with Dr. Archambault on May 1, 2007. Following surgery Claimant experienced some relief of her back pain, but the pain and paresthesias in her left leg continued.
6. At Dr. Archambault’s referral, in September 2007 Claimant underwent EMG testing with Dr. Roomet, a neurologist. Dr. Roomet reported normal findings, and questioned whether there might be a psychophysiologic overlay to her ongoing complaints.
7. In October 2007 Claimant was referred to Dr. Penar, a neurosurgeon, for further evaluation and treatment. Dr. Penar in turn referred Claimant to Dr. Munoz, a pain management specialist. Dr. Munoz administered two epidural steroid injections, the first in January 2008 and the second in April 2008. Such injections serve both diagnostic and therapeutic purposes. Unfortunately, in Claimant’s case they proved ineffective at relieving her left lower extremity symptoms.
8. Upon learning that the steroid injections had failed to alleviate Claimant’s leg pain, in April 2008 Dr. Penar suggested that it might be appropriate to consider a spinal cord stimulator. This is a surgically implanted device comprised of electrodes that are placed in the epidural space of the spine. When the electrodes are activated, they prevent chronic pain signals from getting through. By doing so, the device provides long-term pain relief, even though it does not “fix” the underlying disc defect or nerve root injury in any way.
9. Not every chronic pain patient is an appropriate candidate for a spinal cord stimulator. Not only must the patient have tried and failed conservative treatment, but he or she also must be cleared psychologically. Even then, the device is not always effective at controlling pain. For that reason, before it is fully implanted surgically, a patient first must undergo an external trial.
10. Shortly after Dr. Penar’s April 2008 evaluation, on April 25, 2008 Claimant was involved as a passenger in a motor vehicle accident. Claimant presented to the hospital emergency room complaining of both head and low back pain. X-rays were negative. Claimant testified that the accident exacerbated her pain for a few days; then it returned to its baseline level. None of the medical professionals who have treated and/or evaluated her since then have in any way attributed her ongoing symptoms to the motor vehicle accident.
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11. In May 2008 Dr. Munoz discussed the spinal cord stimulator treatment option with Claimant. Without a more complete history and physical examination, as well as psychological clearance, Dr. Munoz felt unable at that point to determine whether Claimant was an appropriate candidate.
12. For her part, Claimant testified that her understanding of the spinal cord stimulator treatment as Dr. Munoz had described it was that the trial implantation would leave her essentially bed-ridden for at least two months. If the trial was successful, Claimant understood that following implantation of the permanent device her activities would be severely limited for an additional six months after that. With five children to care for, Claimant found this scenario untenable. She decided not to pursue the treatment.
13. At Defendant’s request, on July 18, 2008 Claimant underwent an independent medical evaluation with Dr. Davignon, an occupational medicine practitioner. Dr. Davignon testified that he discussed the spinal cord stimulator option with Claimant, and she advised him she did not wish to proceed with it. With that in mind, Dr. Davignon determined that Claimant had exhausted her treatment options and thus was at end medical result, with a 12% whole person permanent impairment.
14. With Dr. Davignon’s end medical result determination as support, Defendant discontinued Claimant’s temporary total disability benefits effective August 15, 2008.
15. On September 10, 2008 Claimant presented for evaluation and treatment with Dr. Bonnabesse, a pain management and rehabilitation specialist. Dr. Bonnabesse diagnosed Claimant with lumbar radiculopathy, possibly due to a recurrent disc herniation, or to epidural scarring from her 2007 surgery, or to some combination of both.
16. In Dr. Bonnabesse’s opinion Claimant was not at end medical result as of his September 10, 2008 evaluation. As treatment, he recommended another series of epidural steroid injections and possibly a trial of lumbar epidurolysis. Dr. Bonnabesse also considered a spinal cord stimulator trial to be a reasonable treatment option, though admittedly a last resort alternative in the event his other recommendations proved unsuccessful.
17. Claimant testified that as Dr. Bonnabesse described the spinal cord stimulator treatment, the trial period would last only five days. Were it to prove successful, after implanting the permanent device Claimant’s activities would be somewhat restricted for approximately six weeks. Claimant found these timeframes to be far more manageable than what she had understood from Dr. Munoz. Consequently, she decided that the treatment was worth pursuing.
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18. Upon learning that Claimant had “had a change of heart” and now wished to proceed with further therapy, including both injections and a spinal cord stimulator trial, Dr. Davignon reconsidered his end medical result determination. He doubted that further injection therapy would be of significant benefit to Claimant, though he acknowledged that that did not make it an unreasonable treatment option. As for the spinal cord stimulator, Dr. Davignon felt incapable of assessing whether it would be beneficial, but again acknowledged that it was a reasonable option for Claimant to pursue. As to the question of end medical result, however, Dr. Davignon refused to concede that Claimant’s “change of heart” had materially undermined his July 2008 determination. In his opinion, neither treatment was likely to result in significant improvement in her underlying condition.
19. Claimant has treated regularly with Dr. Bonnabesse (or with his nurse practitioner, Russell Jones) since September 2008. Dr. Bonnabesse’s records document the following:
• In January 2009 Claimant underwent another epidural steroid injection. Dr. Bonnabesse suspected that the injections Dr. Munoz had administered in 2008 may not have adequately covered the involved nerve root, and therefore felt that a repeat series with more precise needle placement was appropriate.
• In March 2009 Claimant underwent another EMG study, which revealed abnormal findings indicative of nerve root compromise. Dr. Bonnabesse testified that the abnormal findings were very subtle and may have been present but undetected at the time of Dr. Roomet’s September 2007 EMG testing.
• In May 2009 Dr. Bonnabesse recommended another injection, but Defendant refused to approve payment. At this point, Dr. Bonnabesse reported that Claimant was awaiting a neurosurgery consultation at Dartmouth Hitchcock Medical Center.1
• In August 2009 Claimant underwent a repeat MRI, which documented nerve root impingement in a manner consistent with Claimant’s symptoms.
• In September 2009 Dr. Bonnabesse retracted his recommendation for another injection, as he believed this would at best give Claimant only temporary relief of her symptoms. Instead, Dr. Bonnabesse advocated for a spinal cord stimulator trial.
20. Dr. Bonnabesse testified that the goal of the spinal cord stimulator treatment is to achieve better long-term control of Claimant’s chronic pain, improve her ability to function and reduce her reliance on pain medications.
1 At the formal hearing, which occurred on October 12, 2009, Claimant testified that she was scheduled to see Dr. Sengupta, a Dartmouth Hitchcock neurosurgeon, the following day. Claimant understood the purpose of this evaluation to be a second opinion as to whether surgery might be a viable treatment option for her.
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21. At the formal hearing, Claimant described the pain in her left leg as “tormenting.” She testified that it is always present, and has had a severe impact on her daily life. Claimant expressed hope that the spinal cord stimulator will improve her ability to move about and function more comfortably. Dr. Davignon acknowledged in his testimony that if the spinal cord stimulator treatment successfully improved Claimant’s ability to perform daily living activities, this might result in a minor decrease in her permanent impairment rating.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974).
3. Here, Claimant does not dispute that based on Dr. Davignon’s July 18, 2008 end medical result determination Defendant properly discontinued her temporary disability benefits in August 2008. Where the parties disagree is as to the legal significance of Claimant’s subsequent “change of heart” regarding the spinal cord stimulator treatment. Defendant argues that the spinal cord stimulator is a palliative treatment, one that might alleviate her pain symptoms but will not alter the underlying pathology in her lumbar spine in any way. Therefore, Defendant asserts, Claimant’s decision to pursue the treatment has not changed her end medical result status in any way. Claimant disagrees. She argues that if successful, the treatment will significantly improve her pain condition, increase her ability to function and thus advance her “medical recovery process.” This, she asserts, negates Defendant’s previous end medical result determination.
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4. Vermont’s workers’ compensation rules define the terms “end medical result” and “palliative care” as follows:
“End medical 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. Workers’ Compensation Rule 2.1200.
“Palliative care” means medical services rendered to reduce or moderate temporarily the intensity of an otherwise stable medical condition, but does not include those medical services rendered to diagnose, heal or permanently alleviate or eliminate a medical condition. Workers’ Compensation Rule 2.1310.
5. The Vermont Supreme Court has applied these concepts to determine an employer’s right to discontinue temporary disability benefits. In Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996), the Court was asked to reject an employer’s discontinuance on end medical result grounds because the claimant was continuing to undergo chiropractic treatments designed to relieve his ongoing symptoms. The treatments improved his ability to walk, restored his sleep patterns, enabled him to work part time and allowed him to perform simple household chores. Nevertheless, the Court determined that the treatments, though medically necessary, did not negate a finding of end medical result because they were not “reasonably expected to bring about significant medical improvement” in his underlying condition. Id. at 533.
6. Defendant correctly notes that the Commissioner has applied the Court’s reasoning in Coburn to at least one recent case involving palliative chiropractic care, see N.C. v. Kinney Drugs, Opinion No. 18-08WC (May 9, 2008). In another recent case, however, the Commissioner determined that the claimant’s physician had proposed further treatments, including both spine injections and a spinal cord stimulator trial, which effectively negated the employer’s end medical result determination. M.A. v. Ben & Jerry’s, Opinion No. 44-08WC (November 5, 2008).
7. The difference between the two decisions lies in the nature of the treatments at issue. In N.C. v. Kinney Drugs, the chiropractic treatments the claimant was continuing to undergo were entirely open-ended time-wise, but yet provided only short-term, temporary symptom relief. To allow such treatments to negate a finding of end medical result effectively would have extended the claimant’s right to temporary disability benefits indefinitely.
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8. As is the case here, however, the therapies proposed in M.A. v. Ben & Jerry’s involved relatively discrete, finite courses of treatment with anticipated long-term results. The distinction is critical. With a defined treatment period, the risk of delaying the point of end medical result beyond what is a reasonable time frame for gauging success is minimized. Because such treatments offer long-term symptom relief rather than just a temporary reprieve, furthermore, they provide real hope of significant improvement in the claimant’s medical recovery process.2
9. The Supreme Court has directed that Vermont’s workers’ compensation law be liberally construed in keeping with its benevolent objectives and remedial nature. Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983). Interpreting the concept of a “medical recovery process” to include a finite course of treatment directed at an injured worker’s long-term functional restoration accomplishes this goal. Excluding such treatment from consideration in the context of end medical result does not.
10. I conclude, therefore, that Dr. Davignon’s July 2008 end medical result determination ceased to control Claimant’s entitlement to temporary disability benefits as of September 10, 2008, the date she opted to pursue the course of treatment Dr. Bonnabesse recommended. Notably, Dr. Bonnabesse’s treatment plan included not just spine injections and consideration of a spinal cord stimulator (both of which Dr. Davignon agreed were reasonable treatment options), but also further diagnostic testing. Considered as a whole, Dr. Bonnabesse’s suggested course was reasonably calculated to lead to further improvement in Claimant’s medical recovery. As of the date Claimant elected to proceed, therefore, she was no longer at end medical result.
2 The Commissioner also has ruled that a claimant’s participation in a functional restoration program negates a finding of end medical result. Cochran v. Northeast Kingdom Human Services, Opinion No. 31-09WC (August 12, 2009); D.D. v. Northeast Kingdom Human Services, Opinion No. 47-06WC (January 9, 2007). As the name suggests, the goal of such a program is to restore function, typically not by “fixing” the underlying condition but rather by teaching the patient how best to work through pain. Like the treatments at issue in the current claim, and unlike the chiropractic treatments at issue in both Coburn and K.C. v. Kinney Drugs, functional restoration programs involve a defined treatment period designed to achieve long-term results.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits commencing on September 10, 2008 and continuing until properly discontinued pursuant to 21 V.S.A. §§643 and 643a, with interest in accordance with 21 V.S.A. §664; and
2. Costs and attorney fees in amounts to be established in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this ____ day of February 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)

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

Craig Hankins v. Fred’s Plumbing & Heating (April 5, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Craig Hankins Opinion No. 13-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Fred’s Plumbing & Heating
For: Patricia Moulton Powden
Commissioner
State File No. X-04015
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 6, 2009
Record closed on December 10, 2009
APPEARANCES:
Steven Robinson, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for his compensable work-related injury?
2. If yes, is Claimant entitled to permanent total disability benefits?
3. If not, is Claimant entitled to additional temporary total disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Vocational rehabilitation records
Claimant’s Exhibit 1: Deposition of Robert McLellan, M.D., October 27, 2009
Claimant’s Exhibit 2: Curriculum vitae, Robert McLellan, M.D.
Claimant’s Exhibit 3: Claimant’s Form 8, January 18, 2007
Defendant’s Exhibit A: Various surveillance reports with accompanying DVDs
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
Alternatively, temporary total disability benefits pursuant to 21 V.S.A. §642
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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 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.
Claimant’s Work Injury
3. Claimant worked for Defendant as a propane delivery truck driver. On January 23, 2006 he slipped and fell on the ice while making a delivery. Claimant fell to the ground with a twisting motion and landed hard on his back. He immediately felt pain in his lower back, with pain and numbness radiating down his right leg.
4. Claimant’s medical records reveal at least two prior instances of low back pain, one in the fall of 2003 and another one in early 2004. In both cases, Claimant complained of severe unrelenting back pain and demonstrated pain behaviors that appeared to be over-exaggerated. Also in both cases Claimant required very high dosages of narcotic pain medications to control his symptoms, apparently because he has a very high opioid metabolism rate.
5. As a result of the January 2006 fall, Claimant suffered a right-sided L5-S1 disc herniation. Consistent with his prior episodes of low back pain, Claimant complained of severe, relentless pain, exacerbated by even light activity and alleviated only briefly by extremely high dosages of narcotic analgesics. Conservative attempts to manage his symptoms, including physical therapy, epidural steroid injections and facet blocks, all failed.
6. In December 2006 Claimant underwent surgery, a right-sided L5-S1 microdiscectomy performed by Dr. Tranmer. Post-operatively he continued to experience severe lumbar radiculopathy and debilitating pain. Diagnostic studies revealed a recurrent disc herniation. In August 2007 Claimant underwent a second surgical procedure at the same level. Once again, his symptoms continued virtually unabated.
Current Symptoms and Treatment Recommendations
7. Claimant’s symptoms today are for the most part unchanged. He experiences severe low back pain, with pain and numbness radiating down his right leg and into his right foot. Often he suffers painful muscle spasms as well. He sleeps poorly at night and takes sporadic cat-naps during the day to catch up. He needs help washing his back and cannot tie his own shoes. Claimant testified that on a good day, he can walk short distances, run errands in his truck (which is equipped with a seat he finds comfortable), drive a riding lawn mower, push a grocery cart and carry a bag of groceries. On a bad day, he can do little more than sit and read.
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8. None of the doctors who have treated or examined Claimant since his second surgery can find a specific anatomical cause for the severe symptoms he continues to experience. Virtually every doctor has commented on the extreme pain behaviors Claimant exhibits on examination. They have described Claimant at various times as “writhing in pain,” moaning audibly, grimacing, crying and presenting “in pain extremis.”1 Most if not all also have expressed concern about Claimant’s ongoing use of narcotic pain medications, which he continues to take in very high dosages, though none have found any evidence that he is misusing the drugs in any way.
9. Currently Claimant continues to treat with Dr. McLellan, the chief of occupational medicine at Dartmouth Hitchcock Medical Center. Dr. McLellan is board certified in occupational medicine and experienced in pain management. Dr. McLellan first evaluated Claimant in April 2006, at the referral of Dr. Haas, Claimant’s treating physician at the time. Dr. McLellan again evaluated Claimant in February 2009, and has been monitoring his care since then.
10. In Dr. McLellan’s opinion Claimant now suffers from post-laminectomy syndrome, which essentially refers to a patient for whom surgery has failed to alleviate ongoing back and leg pain. Dr. McLellan acknowledges that spine imaging studies have not revealed a specific “pinch” point or other anatomic basis for Claimant’s lower extremity pain. For this reason, and also because Claimant already has failed two previous disc surgeries, Dr. McLellan does not consider him to be an appropriate candidate for additional surgery. This is consistent with the opinions of other consulting physicians as well.
11. Dr. McLellan also does not consider Claimant to be an appropriate candidate for a functional restoration program. Such a program encourages patients to develop appropriate coping strategies so that they are able to focus less on their pain and more on increasing their functional abilities. Psychological counseling and cognitive behavioral therapy are key components of functional restoration.
12. According to Dr. McLellan, unless the patient welcomes the concept and is interested in pursuing this type of approach, functional restoration is unlikely to be successful. Unfortunately, by all reports Claimant lacks insight as to the extent to which his symptoms might be driven at least in part by psychological factors. He appears stubbornly resistant, therefore, to the possibility that psychologically-based treatment might help alleviate his pain experience and thereby improve his functioning.
1 Claimant demonstrated some of these pain behaviors during the formal hearing. He frequently grimaced, sighed, changed his position while seated, stood up, leaned on his chair and moved about the room.
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13. This resistance was particularly evident in the context of the comprehensive pain evaluation Claimant underwent, at Dr. McLellan’s referral, with Dr. Fanciullo, a Dartmouth Hitchcock pain specialist. In his June 11, 2009 office note, Dr. Fanciullo described the visit in some detail:
I asked him early on about whether or not he had seen a mental health practitioner or a psychologist or psychiatrist. He responded that he does not like it when people talk to him about psychiatry. He spent almost the entire visit convincing me that he had pain and trying to convince me that he had requisite psychological skills to determine that he does not need to see a psychologist when it was so obvious that he does need to see a psychologist. . . . I explained to him on multiple occasions that this has been going on for over three years now and he really has to try to get over it, and he has not been able to get over it by himself and he needs some help to try to help him get over it.
. . .
Plan: We spent a long time together today . . . with me explaining to him that I would not be able to care for him unless he saw a psychiatrist. He insisted over and over that this problem was not in his head.
. . .
I have spent, as I mentioned, a great deal of time with him today talking about coping skills, the fact that it is likely that even if the opioids work, they will only reduce his pain by 30% and that he needs to learn how to cope with the pain and have . . . value [in] his life despite the fact that he has the pain and that he must eliminate the dramatic and abnormal pain behaviors that he exhibits so prominently. I think he disagrees with everything about the plan . . .
14. There is no indication in the medical records that Claimant ever pursued the psychiatric treatment upon which Dr. Fanciullo had insisted. At this point, given his low level of functioning and extreme pain focus, Dr. McLellan no longer considers him to be an appropriate candidate for functional restoration. Dr. McLellan testified that assuming Claimant’s attitude towards such an approach remains unchanged, in his opinion Claimant is at end medical result for his January 2006 injury.
15. Defendant presented evidence from three independent medical evaluators to the effect not only that Claimant is at end medical result, but also that he reached that point some time ago. Dr. Gennaro conducted an independent medical evaluation on April 3, 2008 and later determined that Claimant had reached an end medical result as of August 11, 2008. Dr. Ensalada performed a medical records review and, based on Dr. Gennaro’s earlier exam, determined that Claimant had reached an end medical result “no later than” April 3, 2008. Last, Dr. Kirkpatrick conducted an independent medical evaluation in October 2009 and concluded that Claimant likely had achieved end medical result in early 2009.
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16. In reaching their conclusions as to end medical result, both Dr. Gennaro and Dr. Kirkpatrick agreed that Claimant’s ongoing symptoms were either caused or aggravated by his January 2006 work injury. Notably, however, Dr. Ensalada came to view Claimant’s presentation differently.2 In Dr. Ensalada’s opinion, Claimant suffers from both somatoform pain disorder and an opioid abuse disorder. Dr. Ensalada believes that it is those two conditions, and not the January 2006 work injury, that account for Claimant’s persistent reports of severe pain and total incapacity.
17. Somatoform pain disorder refers to a mental or behavioral condition characterized by subjective complaints that far exceed any objectively determined evidence of physical pathology. It is a recognized behavioral disorder according to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Patients who suffer from this condition unconsciously exaggerate their physical symptoms for psychological purposes.
18. Dr. Ensalada pointed to Claimant’s prior episodes of low back pain (referred to in Finding of Fact No. 4 above) as evidence of his “propensity to somaticize.” He noted that in both 2003 and 2004 Claimant’s treating physicians had commented on Claimant’s exaggerated pain behaviors and heavy use of narcotic pain medications. With that in mind, Dr. Ensalada concluded that at the time of Claimant’s January 2006 work injury both his somatoform pain disorder and his opioid abuse disorder were “active and pre-existing,” and that the 2006 event had neither caused nor aggravated nor accelerated those conditions in any way.
19. Dr. Ensalada acknowledged that he is not a licensed psychologist or psychiatrist and that he arrived at his diagnosis without personally having examined or interviewed Claimant. He also acknowledged that he previously had reviewed the medical records relating to Claimant’s prior episodes of low back pain in the context of his 2007 records review, but did not attribute Claimant’s symptoms to a psychological condition rather than a physical one at the time.
Claimant’s Work Capacity
20. Claimant has not worked since his January 2006 accident. In July 2009 he underwent a functional capacities evaluation. Based on that testing, the evaluator concluded that Claimant did not have sufficient work capacity to seek gainful employment. In reaching that conclusion, the evaluator noted that Claimant had self-limited on certain tests due to pain, such that his actual physical strength might have been somewhat greater than what he demonstrated. Even apart from Claimant’s strength testing, however, the evaluator determined that Claimant’s low tolerance for sitting, standing or weighted lifting precluded even sedentary work.
2 Initially, following an October 2007 medical records review Dr. Ensalada determined that the relationship between Claimant’s January 2006 work injury and the subsequent development of his radicular symptoms was “one of aggravation.” At Defendant’s request, Dr. Ensalada took a “second look” at Claimant’s medical records in May 2009, and in the course of that review reached his current opinion as to causation.
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21. Dr. McLellan concurs in this assessment of Claimant’s work capacity. In his opinion, Claimant is permanently and totally disabled. Dr. McLellan testified that the thought of Claimant being employable is incompatible with his presentation on exam – his pain-focused behaviors, his inability to stand straight and his described low level of functioning.
22. Defendant’s medical experts disagree. Drs. Gennaro, Ensalada and Kirkpatrick all opined that Claimant has a sedentary work capacity. In reaching this conclusion, both Dr. Gennaro and Dr. Ensalada discounted the results of the July 2009 functional capacities evaluation. In their opinion, an FCE measures only what a patient feels capable of doing on a particular day, and the results may be skewed by his or her fear of pain or reinjury. Consequently, while such testing may be helpful in terms of identifying a patient’s functional capacity, it is not necessarily definitive.
Vocational Rehabilitation
23. At Defendant’s referral, in August 2006 Claimant met with John May, a certified vocational rehabilitation counselor, to begin the process of determining whether Claimant was entitled to vocational rehabilitation services. At the meeting, Mr. May obtained information from Claimant as to his educational background and prior work experience. At the conclusion of the meeting Mr. May asked Claimant to review, sign and send back a medical release form so that Mr. May could review Claimant’s medical records.
24. Despite repeated subsequent requests, Claimant refused either to sign the medical release form or to provide a written explanation for his refusal to do so. Ultimately, Mr. May determined that Claimant was not interested in pursuing vocational rehabilitation services and closed his file.
25. Mr. May testified that had Claimant indicated his willingness to continue with the entitlement process, the next step would have been to identify a suitable vocational goal. In order to do so, Mr. May testified, he might have sought a more formal assessment of Claimant’s functional abilities, aptitudes and skills. In addition, he might have investigated various training options, adaptive equipment and assistive technologies that conceivably could help expand Claimant’s vocational options. Last, Mr. May testified that he might have reviewed Claimant’s medical treatment options to see how pursuing one or another would impact his vocational abilities. Without having done any of these things, Mr. May testified that he was unable either to identify an appropriate vocational goal or to develop a suitable return to work plan.
26. Claimant testified that he only vaguely recalled his interactions with Mr. May. He stated that he was in great pain at the time of Mr. May’s initial visit and that subsequently, during the time when Mr. May would have been sending his follow-up letters, he was recovering from his second surgery. Thereafter, in early 2007 Claimant sought to change vocational rehabilitation providers from Mr. May to another counselor who had been recommended to him. However, because he used the wrong form to do so the Department never acted on his request, and Claimant never pursued the matter himself.
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27. At the request of Claimant’s attorney, Greg LeRoy, a certified vocational rehabilitation counselor, met with Claimant to evaluate his ability to benefit from vocational rehabilitation services and return to gainful employment. Mr. LeRoy also reviewed Claimant’s medical records.
28. In Mr. LeRoy’s opinion, Claimant’s chronic pain, his use of narcotic pain medications, his poor coping skills and his psychologically driven pain behaviors preclude him from sustaining competitive employment, either with or without vocational rehabilitation services. In reaching this conclusion, Mr. LeRoy relied heavily on the results of the July 2009 functional capacities evaluation, which determined that Claimant lacked even a sedentary work capacity, and also on Dr. McLellan’s determination that Claimant had reached an end medical result and was permanently and totally disabled.
29. According to Mr. LeRoy, vocational rehabilitation services are appropriate only in cases in which the injured worker either has a viable work capacity or reasonably is expected to regain some with further treatment. Vocational rehabilitation services alone cannot create a work capacity. Thus, Mr. LeRoy testified, given that Claimant has reached an end medical result without having regained any work capacity, there is no basis for providing vocational rehabilitation services.
Surveillance
30. Defendant introduced evidence of eighteen non-consecutive days of surveillance conducted over a period of fourteen months, from August 2008 through October 2009. In addition to the investigators’ written reports, Defendant introduced approximately five hours of video documentation. The videos show Claimant performing such activities as mowing his lawn with a riding mower, driving to and from various locations, walking, standing, bending at the waist, pushing a shopping cart, and using a broom to clear snow from his truck.
31. The videos do not depict any clear instances of the type of marked pain behaviors Claimant’s doctors often noted. Notably, there is no audio component to the videos, so it is impossible to discern whether Claimant might have been expressing pain at any time while he was being monitored. Nevertheless, he is not observed to be visibly writhing in pain, grimacing or crying, for example. There are a few occasions during which it appears Claimant might be favoring his right leg slightly while walking, and one occasion during which it appears he might be leaning on a shopping cart for support, but even these instances are not so clearly depicted as to be conclusive. In all, at least during the five hours during which filming occurred, the videos appear to show Claimant attending to his daily activities in little, if any, apparent distress.
32. When asked to comment on the surveillance, Dr. Gennaro testified that he only reviewed a few minutes of the videos and that he saw nothing that was inconsistent with the July 2009 functional capacities evaluation. Dr. Ensalada testified that he watched all of the videos, and that Claimant’s behavior appeared very different from what had been documented in the medical records he had reviewed.
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33. Dr. McLellan did not watch the videos. Upon hearing a description of the types of activities depicted, he acknowledged that they seemed at odds with Claimant’s typical presentation during most of his office visits. Dr. McLellan also acknowledged, however, that he would expect Claimant to have both “good” and “bad” days, and that he would encourage him to be as active as possible every day.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where 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).
3. The dispute here centers on whether Claimant’s January 2006 work injury has rendered him permanently and totally disabled. Claimant points to three pieces of evidence in support of his claim – first, the July 2009 functional capacities evaluation, which determined that he lacked even a sedentary work capacity; second, Dr. McLellan’s opinion that he is permanently and totally disabled; and third, Mr. LeRoy’s conclusion that he is not an appropriate candidate for vocational rehabilitation services.
4. Against this evidence, Defendant counters with the opinions of Drs. Gennaro, Ensalada and Kirkpatrick, all of whom determined that Claimant has a sedentary work capacity. Beyond that, Defendant argues that Claimant failed to engage properly with the vocational rehabilitation services that Mr. May offered him in 2007, and that it is premature to consider him permanently unemployable until he does so. Third, Defendant points to Dr. Ensalada’s diagnosis of somatoform pain disorder rather than the January 2006 work injury as the cause of Claimant’s current symptoms. Last, Defendant asserts that the surveillance reports and videos document Claimant engaging in activities that are inconsistent with his subjective complaints of pain and previously demonstrated pain behaviors.
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Permanent Total Disability
5. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
6. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacities Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
7. A finding of odd-lot permanent total disability is not to be made lightly. Gaudette v. Norton Brothers, Inc., Opinion No. 49-08WC (December 3, 2008). For that reason, and as Rule 11.3100 makes clear, typically there must be evidence to establish first, what the injured worker’s functional capabilities are, and second, that no viable vocational options exist within those capabilities. Id.; Prescott v. Suburban Propane, Opinion No. 42-09WC (November 2, 2009).
8. Here, I accept the results of the July 2009 functional capacities evaluation, together with Dr. McLellan’s opinion, as the most credible evidence of Claimant’s functional capabilities. Based on that evidence, I find that Claimant’s low tolerance for sitting or standing, his heavy reliance on narcotic pain medications and his pain-focused behaviors preclude even a sedentary work capacity. While it may be true, as Drs. Gennaro and Ensalada attested, that a functional capacities evaluation measures only what a patient feels able to do on a particular day, Defendant provided no objective evidence that Claimant probably would have tested better on a different day.3 Without such evidentiary support, Defendant’s expert opinions are unpersuasive.
3 Of note, neither Dr. Gennaro nor Dr. Ensalada could point to any specific activities captured on the surveillance videos that were inconsistent with the results of Claimant’s functional capacities evaluation.
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9. I agree with Claimant’s vocational expert, furthermore, that vocational rehabilitation has no place in a case where, as here, the injured worker lacks the functional capacity to support even sedentary work. As Mr. LeRoy cogently explained, vocational rehabilitation services alone cannot create a work capacity where one does not otherwise exist.
10. Last, I find credible Dr. McLellan’s assertion that Claimant is unlikely to benefit from further treatment, including functional restoration, and that therefore his disability is now permanent. Were Claimant a different person, one less focused on his pain and more open to the interplay between the mind and the body, he might be receptive to a psychologically based treatment approach. Unfortunately, however, Dr. McLellan appropriately acknowledged that he is not. Indeed, not even Defendant’s medical experts have recommended further treatment along these lines.
11. Having concluded that a functional restoration program is not a viable treatment option, I accept as most credible Dr. Gennaro’s determination that Claimant reached an end medical result for his January 2006 work injury on August 11, 2008.
Somatoform Pain Disorder
12. I conclude, therefore, that Claimant has met his burden of proving that he is permanently and totally disabled. To establish his right to benefits, however, Claimant also must show that his disability was either caused or aggravated by his January 2006 work injury. Defendant points to Dr. Ensalada’s expert opinion as evidence that it was not.
13. Dr. Ensalada testified that the best explanation for Claimant’s current symptoms and disability is somatoform pain disorder. According to him, this diagnosis is more a characteristic of Claimant’s psychological makeup, not a consequence of his January 2006 work injury.
14. I find Dr. Ensalada’s analysis unconvincing. First, although I acknowledge his impressive credentials, Dr. Ensalada is not a trained or licensed mental health professional. I question the propriety of accepting his diagnosis of a psychologically-based behavioral disorder without the benefit of more formal psychological testing and evaluation.
15. In addition, I find troubling the fact that Dr. Ensalada did not even interview Claimant himself, but rather based his diagnosis solely on his review of the medical records. Diagnosing a psychological condition is not the same as reviewing x-rays or MRI scans. To do so based only on second-hand reports noted in a cold medical record seems unreliable and unscientific.
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16. Last, it is not clear to me from Dr. Ensalada’s testimony exactly what the basis for his diagnosis was. Certainly many doctors commented on Claimant’s pain-focused behaviors and propensity to magnify his symptoms. But presumably not every instance of symptom magnification merits a diagnosis of somatoform pain disorder. To the contrary, presumably this is where further psychological testing typically is called upon to provide the additional information necessary either to support or to refute a diagnosis of somatoform pain disorder. See, e.g., Karabegovich v. Monahan SFI, Opinion No. 37-09WC (September 29, 2009).
17. For all of these reasons, I find Dr. Ensalada’s analysis unpersuasive. I accept instead Dr. McLellan’s determination, with which both Dr. Gennaro and Dr. Kirkpatrick concurred, that Claimant’s current symptoms and disability were either caused or aggravated by his January 2006 work injury.
Surveillance
18. As a final defense, Defendant asserts that the surveillance reports and videos document activities that are at odds with Claimant’s subjective complaints and dramatic pain behaviors, so much so as to call his credibility into question and undermine any finding of permanent total disability. I disagree. The videos do no more than depict Claimant engaging in activities that he admitted he was able to undertake on a “good” day, such as using a riding lawn mower, driving in his truck and running errands. They do not show what he is able to do – or not – on a “bad” day. They are extremely limited in scope – just five hours of video spread out over a period of fourteen months – and have no audio component. I do not find in them sufficient evidence either to undermine Claimant’s own testimony or to negate the conclusions of his medical and vocational experts.
19. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $5,017.56 and attorney fees totaling $15,327.00. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
20. As for attorney fees, Claimant’s request includes not only the fees incurred pursuing the current matter to formal hearing, but also fees incurred in 2007 and 2008 relating to issues that ultimately were resolved short of formal hearing. According to Workers’ Compensation Rule 10.1300, such fees are recoverable only in limited instances, under circumstances that do not apply here. I find that the total amount of fees incurred pursuing issues unrelated to the current hearing was $3,942.00; these fees are not recoverable. As to the remainder, which total $11,385.00, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these fees are awarded.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent total disability benefits commencing on August 11, 2008;
2. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
3. Costs totaling $5,017.56 and attorney fees totaling $11,385.00.
DATED at Montpelier, Vermont this 5th day of April 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

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

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

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

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

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