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

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

 

STATE OF VERMONT

DEPARTMENT OF LABOR

 

Laurel Zeno Opinion No. 27-10WC

 

v. By: Phyllis Phillips, Esq.

Hearing Officer

University of Vermont

For: Valerie Rickert

Acting Commissioner

 

State File No. Z-00033

 

RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

ATTORNEYS:

 

Christopher McVeigh, Esq., for Claimant

Stephen Ellis, Esq., for Defendant

 

ISSUES PRESENTED:

 

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

 

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

 

FINDINGS OF FACT:

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Discovery and Disclosure Issues

 

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

 

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

 

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

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

 

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

 

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

 

DISCUSSION:

 

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

 

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

 

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

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

 

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

 

ORDER:

 

Defendant’s Motion for Summary Judgment is hereby DENIED.

 

 

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

 

 

 

 

_______________________

Valerie Rickert

Acting Commissioner

 

 

 

Appeal:

 

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

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.

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

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

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

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

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

Beth Holmes v. State of Vermont (June 21, 2012)

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Beth Holmes v. State of Vermont (June 21, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Beth Holmes Opinion No. 18-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont
For: Anne M. Noonan
Commissioner
State File No. AA-00186
OPINION AND ORDER
Hearing held in Montpelier on April 9, 2012
Record closed on April 24, 2012
APPEARANCES:
Beth Holmes, pro se
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for her compensable July 2008 work injury and if so, when did this occur?
2. Are Claimant’s cervical spine complaints causally related to her compensable July 2008 work injury and if so, to what workers’ compensation benefits is she entitled?
3. Did Claimant willfully make a false statement or representation for the purpose of obtaining a workers’ compensation benefit, in violation of 21 V.S.A. §708(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
Defendant’s Exhibit B: Curriculum vitae, Richard Levy, M.D.
Defendant’s Exhibit C: Curriculum vitae, William Boucher, M.D.
Defendant’s Exhibit D: Independent Medical Evaluation Questionnaire
Defendant’s Exhibit E: Surveillance videos (2 DVDs)
Defendant’s Exhibit F: Deposition of Beth Holmes, February 3, 2010 (excerpted pages)
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640(a)
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s files relating to this claim.
3. Claimant worked as a licensed practical nurse at Defendant’s Vermont Veterans’ Home. Her responsibilities included administering medications and other general duties.
4. On July 11, 2008 Claimant slipped and fell down the last two stairs of a stairway at work. As reflected in the contemporaneous medical records, Claimant reported that she grabbed the banister with her right hand and struck her left buttock and lower back on the stairs. She did not report striking her neck in the fall, nor did she report any complaints or injury referable to that area. To the contrary, she complained solely of low back pain, which her primary care physician, Dr. Friscia, diagnosed as a left buttock contusion. As treatment, Dr. Friscia prescribed narcotic pain medications and physical therapy.
5. Over the course of the next three months, Claimant began complaining of more diffuse aches, not just in her lower back but also in her hips, groin, upper back, elbows and shoulders. Concerned about her ongoing symptoms, particularly in the context of continued narcotic pain medications and physical therapy, Dr. Friscia referred her to Dr. Robbins, an orthopedic surgeon, for further consultation.
6. Claimant previously had treated with Dr. Robbins in September 2000, for a two-month history of neck pain with radicular-type symptoms in her right arm. Claimant underwent little if any treatment for these complaints, which she described at hearing as a “horrible” stiff neck and which Dr. Robbins diagnosed as C6 radiculopathy.1 Apparently her symptoms resolved on their own. In the intervening years leading up to her July 2008 fall at work, Claimant did not seek medical treatment for any further cervical spine-related complaints.
7. Dr. Robbins evaluated Claimant on October 27, 2008. During that evaluation, for the first time Claimant complained of neck pain in addition to her other symptoms, reporting that she felt her body had been “out of alignment” since her fall at work some three months earlier.
1 Claimant acknowledged this prior episode of neck pain at hearing, and explained that she failed to do so in her deposition either because she forgot or because she did not consider a stiff neck to be an “injury.” No matter what the specific explanation, I find that Claimant’s deposition testimony did not indicate a willful attempt to defraud or mislead for the purpose of obtaining a workers’ compensation benefit.
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8. In addition to her increasingly diffuse pain complaints, in the years since her injury Claimant has suffered from anxiety and depression as well. The medical records reflect that she had long treated for these conditions in the past, as a consequence of stress related to financial difficulties and the responsibilities of single parenting. Those stressors have continued, and now include chronic pain and decreased function as well. Claimant has not worked since her injury. She has been receiving social security disability benefits for the past two years.
9. Notwithstanding that the contemporaneous medical reports do not reflect it, Claimant has become convinced that she likely struck her neck in the course of her July 2008 fall down the stairs at work, and that this accounts for both the neck pain and the diffuse upper extremity symptoms of which she has complained since. Based in part on the varying descriptions of the fall to which Claimant testified at formal hearing and in part on the clear and concise history reported in the earliest, most reliable medical records, I find that Claimant’s recollection of events is likely no longer accurate. For that reason, I question the extent to which some of her treating doctors, most notably her osteopath, Dr. Woodworth, and her neurologist, Dr. Edwards, have relied upon this version of events in formulating their theories as to the etiology of Claimant’s current complaints.
10. Though neither testified at formal hearing, both Dr. Woodworth and Dr. Edwards have stated their causation opinions in writing. Both believe that Claimant’s cervical condition is a direct result of her July 2008 fall at work. Dr. Edwards in particular is convinced that Claimant’s neck and upper extremity symptoms are attributable to a free disc fragment compressing on her spinal cord at the C6-7 level, as indicated in a May 2011 MRI study. Two prior MRI studies, one in March 2009 and one in September 2009, had documented disc degeneration and/or protrusion at that level, but no extruded disc fragments.
11. Aside from stating that Claimant’s cervical disc herniation is “consistent with” her July 2008 fall, Dr. Edwards provided no other rationale for his conclusion that the two are causally related. In fact, previously Dr. Edwards had acknowledged that because he had not reviewed Claimant’s prior medical records, he lacked sufficient information to make any determination at all as to causation. In his earlier statement, Dr. Edwards also had noted the lack of a temporal relationship between Claimant’s fall and her neck pain as a further barrier to establishing causation. With no explanation for the apparent shift from these prior statements to his current opinion, I find it difficult to credit Dr. Edwards’ position as to causation.
12. As treatment for her cervical disc herniation, and particularly given his concern that she was exhibiting symptoms of myelopathy, or spinal cord compression, Dr. Edwards strongly recommended that Claimant undergo a neurosurgical evaluation. This she did, with Dr. Simmons in November 2011. Interestingly, although Dr. Simmons stated that he was “not overly impressed” with the amount of spinal cord deformation evidenced on MRI, nevertheless he recommended that Claimant undergo a C6-7 disc fusion. The purpose of that surgery, which Claimant was scheduled to undergo in the weeks following the formal hearing, is primarily to prevent any myelopathy from progressing, not necessarily to improve her current symptoms.
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13. Credible medical evidence exists in support of another explanation for Claimant’s diffuse complaints, including those involving her neck and upper extremities – fibromyalgia, possibly exacerbated by a bout of Lyme disease in 2009. Among the medical professionals propounding this theory was Dr. Friscia, Claimant’s primary care physician from 2003 through 2010. In Dr. Friscia’s opinion, the disc disease documented on Claimant’s MRI studies was not nearly severe enough to account for her varied symptoms. Coupled with the fact that Claimant’s neck and upper extremity complaints did not arise until some months after her initial injury, Dr. Friscia concluded that a causal relationship between the two was unlikely. I find Dr. Friscia’s reasoning credible in all respects.
14. Not surprisingly, all of Defendant’s independent medical examiners have concluded likewise. The first of these, Dr. Boucher, an occupational medicine specialist, examined Claimant in February 2009. Among his pertinent findings:
• Claimant exhibited only minimally decreased cervical range of motion, with no evidence of radiculopathy;
• Claimant did not complain of any tenderness in her left buttock, and exhibited normal low back and hip motion, all of which indicated that her original injury – a left buttock contusion – had resolved;
• Claimant’s diffuse complaints, which included statements such as “all over pain” and “everything is different than before my injury,” were almost certainly psychogenic in origin and completely unrelated to her work injury; and
• Claimant exhibited a high degree of symptom magnification and somatic overlay, as well as possible drug-seeking behavior.
15. Dr. Boucher concluded to a reasonable degree of medical certainty that Claimant had reached an end medical result for her work-related injury, with no permanent impairment and an unrestricted work capacity.
16. Claimant underwent a second independent medical examination, this time with Dr. Levy, a board certified neurologist, in March 2010. As Dr. Boucher had, Dr. Levy concluded that Claimant’s work-related injury consisted solely of a left buttock contusion, which had long since resolved. In addition, according to Dr. Levy:
• There is no scientific evidence that fibromyalgia is traumatically induced; therefore, there is no basis for concluding that Claimant’s buttock contusion evolved in that manner;
• Had Claimant traumatized a cervical disc in her July 2008 fall, she likely would have experienced significant neck pain and radicular symptoms shortly thereafter, not three months or more later; and
• Claimant’s cervical radiculopathy is likely due to the natural progression of age-related degenerative disc disease, not trauma.
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17. I find the rationale underlying Dr. Levy’s opinions persuasive in all respects.
18. Most recently, at Defendant’s request Dr. Binter, a board certified neurosurgeon, conducted a medical records review in January 2012.2 Dr. Binter concluded to a reasonable degree of medical certainty that Claimant’s current cervical complaints are not causally related to her July 2008 fall at work in any respect. Her rationale was essentially the same as that propounded variously by Drs. Friscia, Boucher and Levy, that is:
• With a prior medical history of cervical complaints dating back to 2000, and no mention of new cervical symptoms until many months after her July 2008 fall, it is unlikely that the fall caused a cervical injury;
• Neither the March 2009 nor the September 2009 MRI studies showed pathology significant enough to explain the global pain and diffuse symptoms of which Claimant was complaining at the time;
• More than two years later, the May 2011 MRI study revealed a new disc herniation, which given the passage of time would not likely be related to Claimant’s original injury; furthermore, even that herniation is not causing enough cord compression to account for her symptoms; and
• Claimant’s longstanding history of anxiety, depression and Lyme disease might explain her hypersensitivity to pain and subsequent fibromyalgia-type symptoms.
19. In formulating her opinion, Dr. Binter particularly noted that some of her observations would not have been apparent to those who had not reviewed Claimant’s prior medical records, including both Dr. Woodworth and Dr. Edwards. I concur that analyzing Claimant’s prior medical history is critical to a full understanding of the causation issues in this case.
20. Dr. Binter recommended against fusion surgery as treatment for Claimant’s current condition. With a longstanding history of smoking, global pain complaints and narcotic medications, in Dr. Binter’s opinion the prognosis for post-surgical improvements in either pain or function is poor. I find this reasoning credible, though I acknowledge that a treating neurosurgeon, in close consultation with his or her patient, might weigh the potential risks and benefits differently.
2 Claimant had been scheduled to undergo an independent medical examination, but failed to appear.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The primary disputed issue here is whether Claimant’s current cervical condition is causally related to her July 2008 work injury. The parties presented conflicting medical opinions on this issue. In such circumstances, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. I conclude that the opinions of Drs. Friscia, Boucher, Levy and Binter are more credible than those of Drs. Woodworth and Edwards. In reaching this conclusion, I note the following:
• As Claimant’s treating primary care provider for many years both before and after her July 2008 fall, Dr. Friscia was best positioned to evaluate her symptoms from a global perspective, more so than either Dr. Woodworth or Dr. Edwards;
• Drs. Friscia, Boucher, Levy and Binter reviewed all of Claimant’s prior medical records, whereas Drs. Woodworth and Edwards failed to do so; this omission is particularly relevant in a case such as this, where the prior records contain information pertinent to other possible causes for her current condition; and
• Drs. Woodworth and Edwards’ causation opinions relied in large part on Claimant’s recollection as to the mechanism of her fall, which I have found to be unreliable; in contrast, Drs. Friscia, Boucher, Levy and Binter’s opinions were more objectively based and accounted more completely for the global symptoms she reported.
4. I conclude that Claimant has failed to sustain her burden of proving that her current cervical condition is causally related to her July 2008 fall at work. I further conclude that Claimant had reached an end medical result for her work injury – a left buttock contusion – at least as of the date of Dr. Boucher’s independent medical examination, February 2, 2009, with no permanent impairment and no need for further medical treatment.
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5. Having found that Claimant’s cervical condition is not work-related, I need not decide whether Dr. Simmons’ proposed fusion surgery is reasonable. Under the particular circumstances of this case, this is a matter best left to Claimant and her treating providers to decide.
6. To the extent that Claimant now suffers from anxiety and depression causally related to her chronic pain and decreased function, I conclude that these conditions were neither caused nor aggravated by her July 2008 work injury and are not compensable.
7. Last, I conclude that Defendant has failed to establish that Claimant’s deposition testimony, in which she denied having treated previously for neck pain, constituted a willful intent to defraud or misrepresent for the purpose of obtaining a workers’ compensation benefit. Therefore, there has been no violation of 21 V.S.A. §708(a).
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional workers’ compensation benefits causally related to her July 2008 work injury, and specifically for benefits referable to her current cervical condition, is hereby DENIED.
DATED at Montpelier, Vermont this 21st day of June 2012.
___________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Debra Morrisseau v. Hannaford Brothers (August 8, 2012)

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

Debra Morrisseau v. Hannaford Brothers (August 8, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Debra Morrisseau Opinion No. 21-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Hannaford Brothers
For: Anne M. Noonan
Commissioner
State File No. BB-00676
OPINION AND ORDER
Hearing held in Montpelier on May 9, 2012
Record closed on June 25, 2012
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Robert Mabey, Esq., for Defendant
ISSUES PRESENTED:
1. Does Dr. Fenton’s proposed treatment plan constitute reasonable medical treatment causally related to Claimant’s August 20, 2009 compensable work injury?
2. Did Claimant reach an end medical result for her compensable work injury on or before April 30, 2011?
3. Is Claimant entitled to additional temporary total and/or temporary partial disability benefits?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Temporary partial disability benefit calculation, with supporting pay stubs
Defendant’s Exhibit A: Medical records
Defendant’s Exhibit B: Curriculum vitae, Richard Levy, M.D.
Defendant’s Exhibit C: Dr. Levy report, October 2, 2011
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 675
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant began working as a part time associate in Defendant’s bakery in 2002. Her duties included preparing baked goods for sale, decorating cakes and generally servicing the bakery department.
Claimant’s August 2009 Work Injury and Subsequent Treatment Course
4. On August 20, 2009 Claimant was lifting a box of frozen cookie dough at work when she felt a pop in her right hand, followed by intense pain in her palm and triggering in her ring and small fingers. She reported the injury to her supervisor, and later in the day sought medical treatment.
5. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
6. Initially Claimant was diagnosed with a right wrist sprain. Her pain predominated on the ulnar (outer) side of her palm and wrist, radiating out to her ring and small fingers and up into the ulnar area of her elbow. Intermittently she experienced sharp, severe pains, which she described as “zingers,” as well, emanating from the wrist joint itself.
7. When her symptoms failed to improve with physical therapy, in September 2009 Claimant was referred to Dr. Frenzen, an orthopedic surgeon, for further evaluation. Diagnostic imaging studies revealed a TFCC (triangular fibrocartilage complex) tear in her wrist, as well as some evidence of ulnar impaction syndrome. The latter condition occurs when there is a variance in length between the ulna and the radius (the two forearm bones) at the wrist.
8. Imaging studies also documented degenerative changes in Claimant’s wrist joint. These were most likely age-related and/or accelerated by a fracture she had sustained many years earlier on the distal (thumb) side of her wrist.
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9. Dr. Frenzen attributed Claimant’s ulnar-sided wrist pain to her TFCC tear. Without making a clear statement as to causal relationship, he acknowledged that “certainly the [August 2009 work injury] has set up a series of events by which her wrist has become painful.”
10. After rest and a cortisone injection proved ineffective, in December 2009 Dr. Frenzen performed arthroscopic surgery to address both the TFCC tear and the ulnar variance at Claimant’s wrist.
11. Post-surgery, Claimant continued to suffer aching pain and diminished range of motion in her wrist, intermittent but painful “zingers,” and numbness and tingling in her ring and small fingers. Electrodiagnostic studies in May 2010 documented mild carpal tunnel and cubital tunnel syndromes, as well as mild swelling of the ulnar nerve at the wrist. Dr. Frenzen was unable to explain these findings in the context of his TFCC repair surgery.
12. At Defendant’s request, in June 2010 Claimant underwent an independent medical evaluation with Dr. Davignon. Based both on his physical examination and on his review of the pertinent medical records, Dr. Davignon concluded as follows:
• That Claimant’s right wrist symptoms were causally related to her work injury;
• That all treatment to date had been reasonable and necessary; and
• That the degenerative changes in Claimant’s wrist were probably preexisting, but likely were aggravated by the work injury.
13. In June 2010 Dr. Frenzen referred Claimant to Dr. Johansson for further treatment. Dr. Johansson, an osteopath, is the medical director of the Vermont Center for Occupational Rehabilitation (VCOR). Among the services VCOR offers are physical therapy, myofascial therapy, biofeedback and pain management.
14. Claimant participated in the VCOR intensive rehabilitation program from June through November 2010. When her symptoms failed to respond to a cortisone injection midway through the program, Dr. Johansson referred her to Dr. Murphy, an orthopedic surgeon at Dartmouth Hitchcock Medical Center, for a second opinion.
15. Dr. Murphy evaluated Claimant in September 2010. He concluded that there was no good surgical solution to her ongoing symptoms. Instead, he recommended continued conservative management, including injections, splinting, anti-inflammatories and activity modification. From my review of the medical evidence, I find that Claimant already had undergone the therapies Dr. Murphy suggested, with no appreciable improvement in her symptoms.
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16. As for the cause of Claimant’s symptoms, Dr. Murphy concluded that the August 2009 work injury likely resulted in an aggravation of the preexisting, underlying arthritis and pathology in her wrist.1
17. Following Dr. Murphy’s examination, Claimant returned to VCOR to complete her rehabilitation program. At his final evaluation on November 30, 2010 Dr. Johansson commented that Claimant still experienced pain, swelling and “zingers” in her wrist, but that she had developed coping strategies to allow her to better manage her pain. Dr. Johansson concluded that Claimant had reached an end medical result for her work injury, and rated her with a 5 percent permanent impairment referable to her wrist. He also released her to return to work on a full time basis, but with permanent light duty restrictions. These included limitations against lifting more than 10 pounds occasionally or performing repetitive tasks.
18. Dr. Johansson attributed the cause of Claimant’s symptoms to a “flare up” of her preexisting osteoarthritic condition, which he asserted had been in a state “where it was more likely than not going to become a problem sooner rather than later” even had the August 2009 work injury not occurred. Notwithstanding this prediction, I find from the medical evidence that in fact Claimant’s preexisting condition had been entirely asymptomatic for many years prior to her work injury, and particularly that it had not restricted her ability to function in any respect. Dr. Johansson’s conclusion that despite ongoing pain and now permanent work restrictions Claimant had returned to her preexisting osteoarthritic baseline is plainly contradicted by this evidence.
19. At her attorney’s recommendation, and because she was dissatisfied with the conclusions stated in Dr. Johansson’s final report, in March 2011 Claimant returned to Dr. Murphy for an additional evaluation. Dr. Murphy found her condition to be essentially unchanged from his September 2010 exam, and reiterated his opinion that her symptoms would likely best be managed conservatively rather than surgically. Given the persistent numbness and tingling in her wrist, however, Dr. Murphy suggested that repeat electrodiagnostic studies would be helpful to determine whether her carpal tunnel syndrome had progressed.
20. With Dr. Johansson’s November 2010 end medical result determination as support, the Department approved Defendant’s discontinuance of temporary disability benefits effective April 30, 2011.
21. In June 2011 Claimant underwent repeat electrodiagnostic studies, as Dr. Murphy had suggested, with Dr. Zweber, the same neurologist who had performed her prior studies in May 2010. In his report, which documented no significant changes from the prior exam, Dr. Zweber noted that Claimant was considering a second opinion with Dr. Fenton, a specialist in interventional pain management. Dr. Zweber considered this to be an appropriate approach for Claimant to pursue.
Dr. Fenton’s Proposed Treatment Plan
1 Although Dr. Murphy did not specify the work injury as the cause of the aggravation in the report of his September 2010 evaluation, he did so later, in the context of his repeat evaluation in March 2011. See Finding of Fact No. 19, infra.
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22. Claimant began treating with Dr. Fenton on September 1, 2011. Dr. Fenton, an osteopath, is board certified in physical medicine and rehabilitation. His clinical focus is on musculoskeletal and non-surgical orthopedic medicine. Fifty percent of his current practice involves upper extremity conditions.
23. Dr. Fenton diagnosed Claimant with osteoarthritis, joint inflammation and mild carpal tunnel syndrome at the wrist, and cubital tunnel syndrome and nerve irritation, or neuritis, at the elbow. In his analysis, which I find credible, all of these conditions were either caused or aggravated by the August 2009 work injury. According to Dr. Fenton, the abnormal motion and muscle guarding that resulted from both the injury and the subsequent surgery likely caused Claimant’s ulnar neuritis to develop. Similarly, abnormal motion in the context of preexisting osteoarthritis in the wrist likely increased the pressure on her median nerve and thus led to the development of carpal tunnel syndrome.
24. The treatment approach that Dr. Fenton has suggested for these conditions is somewhat controversial. It is comprised of the following components:
• Diagnostic ultrasound of the median and ulnar nerves to better evaluate the extent of nerve compression and irritation;
• Ultrasound-guided hydro-dissection of the ulnar nerve at the elbow; and
• Ultrasound-guided corticosteroid injection in the wrist to identify the primary pain generator, followed by ultrasound-guided injections of platelet rich plasma.
25. Dr. Fenton has been using diagnostic ultrasound as a complement to electrodiagnostic testing for peripheral nerve entrapment disorders for more than eight years. Such testing is the standard of care among European orthopedists, and is also well accepted in the United States, though it is not prevalent in Vermont. Particularly with respect to diagnosing ulnar nerve compression, ultrasound has a very low false negative, meaning that it rarely misses abnormal findings. In contrast, although many U.S. doctors consider electrodiagnostic studies to be the gold standard for diagnosing both median and ulnar nerve compression syndromes, they yield a much higher rate of false negative findings and often do not correlate well with the severity of a patient’s symptoms.
26. In Claimant’s case, diagnostic ultrasound indicated fairly severe inflammation of the ulnar nerve at the elbow, which in Dr. Fenton’s assessment required further intervention. Given the correlation between Dr. Fenton’s findings and the severity of Claimant’s ongoing symptoms, I find his analysis in this regard credible.
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27. Dr. Fenton has recommended hydro-dissection as treatment for Claimant’s ulnar nerve irritation. This procedure uses a series of fluid injections to open up the space between the nerve and the tissue surrounding it, in much the same manner that a scalpel would during surgery. Though not experimental, hydro-dissection is still an emerging treatment approach, and therefore the medical literature as to its effectiveness is limited. Nevertheless, it is, as Dr. Fenton described it, “quite hot in the international pain world,” and is widely performed in that arena as a safer alternative to surgery.
28. Claimant already has undergone one hydro-dissection procedure in her elbow, in September 2011. Subsequently, her symptoms improved significantly for some time, with less discomfort and fewer “zingers” than previously. Dr. Fenton anticipates that Claimant will require one or two additional treatments, each spaced approximately twelve weeks apart, in order to realize lasting, restorative benefit. Given that Claimant derived substantial benefit from the first procedure, I find persuasive Dr. Fenton’s prediction of additional success with further treatments.
29. As for the wrist, with the benefit of ultrasound guided cortisone injections Dr. Fenton recently has identified an area on the thumb side of Claimant’s wrist as the most likely pain generator. As treatment, he has recommended that she undergo a series of platelet rich plasma (PRP) injections. Plasma that is highly concentrated in platelets is thought to release growth factors that attract stem cells and stimulate tissue regeneration. PRP injection therapy is widely accepted among sports medicine orthopedists, but due to the paucity of evidence-based studies is still considered experimental in cases involving joint injuries. In his own clinical experience, Dr. Fenton estimates he has obtained excellent results in approximately 75 percent of the wrist injuries he has treated with PRP injections.
30. Claimant has not yet undergone any PRP injections, as neither Defendant nor her group health insurer has agreed to cover them. As an alternative, Dr. Fenton has performed a series of local anesthetic injections. These have afforded Claimant some limited palliative relief of her wrist symptoms, but do not have any long-lasting, regenerative effect. Were she to undergo PRP injection therapy, Dr. Fenton anticipates a series of three injections, each four to six weeks apart.
31. Because both hydro-dissection and PRP injection therapies are restorative rather than palliative in nature, in Dr. Fenton’s opinion Claimant should not be considered at end medical result until both series of treatments have been completed.
32. Dr. Fenton acknowledged that he did not review Claimant’s medical records, was unfamiliar with the surgical technique Dr. Frenzen utilized to address the ulnar variance in her wrist and did not personally study the results of Dr. Zweber’s electrodiagnostic testing. I find that these omissions were not critical to the formulation of his treatment plan, which was based instead on his specialized experience with the therapies he has proposed.
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Dr. Levy
33. Defendant’s expert, Dr. Levy, presented a different view of Dr. Fenton’s proposed treatment plan. Dr. Levy is a board certified neurologist. He did not personally examine Claimant, but reviewed her medical records in October 2011.
34. Dr. Levy acknowledged that Claimant’s August 2009 work injury likely caused her TFCC tear, and that Dr. Frenzen’s surgery constituted reasonable treatment. He also concurred with Dr. Murphy’s opinion that the work injury likely aggravated the underlying osteoarthritis in her right wrist, at least for a time. In Dr. Levy’s opinion, however, at this point Claimant’s ongoing symptoms are due solely to the natural progression of that preexisting condition, and are no longer related to her work injury in any respect.
35. Dr. Levy also concluded that there likely was no causal relationship between Claimant’s work injury and her peripheral nerve entrapment disorders. In his opinion, an injury to the outer part of her wrist could not possibly have resulted in nerve compression at the elbow. As for her median nerve compression, Dr. Levy maintained that this likely was caused solely by preexisting osteoarthritis.
36. Dr. Levy acknowledged his unfamiliarity with the use of ultrasound as a tool for diagnosing peripheral nerve disorders, and emphasized instead that in Claimant’s case, electrodiagnostic studies had revealed only mild entrapment. In his opinion, those results did not justify anything other than conservative treatment, such as splinting, stretching, physical therapy and possibly corticosteroid injections. However, I find from the medical evidence that Claimant already has undergone these therapies, without any appreciable improvement in her symptoms.
37. Dr. Levy was also unfamiliar with the efficacy of either hydro-dissection or PRP injections as treatment for Claimant’s symptoms. He has no personal experience with either therapy, and gleaned only limited information about them from online research. In his opinion, neither treatment meets the recognized standard of care at this time.
Claimant’s Post-Injury Wages and Temporary Disability Claim
38. Claimant’s average weekly wage at the time of her August 2009 injury was $421.05. This yields a current weekly compensation rate for temporary total disability of $378.96.
39. As documented by her pay stubs, on August 14, 2011 Claimant began working as a home support aide for developmentally disabled adults. She also worked briefly as a substitute teacher, but stopped doing so when her home support aide hours increased. The work is non-physical and therefore is largely unaffected by the ongoing symptoms in her wrist. Claimant acknowledged in her formal hearing testimony that at least since February 2012 any differential between her current wages and her pre-injury wages is due primarily to client scheduling issues, not to any injury-related disability.
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40. In support of her claim for temporary partial disability benefits, Claimant submitted a calculation sheet purporting to summarize the weekly differentials between the wages she has received since returning to work and her pre-injury wages. The calculation sheet lists September 9, 2011 as the first week during which Claimant earned wages; however, the accompanying pay stubs show wages paid beginning on August 14, 2011. Factoring in those wages (two weeks at $206.94 per week), I find that through February 3, 2012 the total differential between Claimant’s pre-injury wages and her post-injury earnings was $4,418.64. Should she be deemed entitled to temporary partial disability benefits for this period, in accordance with 21 V.S.A. §646 the total amount owed would be $2,916.30.
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. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. The disputed issues here implicate both of these grounds for determining reasonableness. Claimant asserts that her ongoing symptoms are causally related to her work injury, that Dr. Fenton’s proposed treatment plan is medically necessary, and that until she completes it she cannot be deemed to have reached an end medical result. Defendant argues that she has reached an end medical result for her work injury, that her ongoing symptoms are no longer causally related, and that even if they were Dr. Fenton’s proposed treatments are unproven and therefore medically inappropriate.
4. The parties presented conflicting medical evidence as to the causal relationship question. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
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5. Neither party’s expert dominates when considering these factors. Dr. Fenton failed to review the pertinent medical records, but benefitted nonetheless from having personally examined Claimant on numerous occasions. Dr. Levy conducted a complete file review, but never discussed the severity of Claimant’s symptoms directly with her. Both experts stated their causation opinions emphatically, but neither provided much in the way of detailed explanation. Both possess impressive qualifications, though their training and experience is in markedly different areas.
6. After closely considering the evidence, I conclude that Dr. Fenton’s causation analysis is the most credible. I am persuaded that Claimant’s current symptoms are attributable to the abnormal motion and muscle guarding that followed her August 2009 work injury and subsequent surgery, thus aggravating the preexisting pathology in her wrist.
7. Even Dr. Levy acknowledged that the work injury likely caused some aggravation of the underlying pathology in Claimant’s wrist, at least for a time. Without explaining when or why the consequences of that aggravation ended, however, I cannot accept his conclusion that her symptoms are no longer related. It is true that a temporal relationship alone is often insufficient to establish causation, Norse v. Melsur Corp., 143 Vt. 241, 244 (1983), but where symptoms that did not exist before are lit up by a work injury and then continue essentially unabated thereafter, breaking the causal link requires more than mere speculation. See J.G. v. Eden Park Nursing Home, Opinion No. 52-05WC (September 8, 2005), and cases cited therein.
8. Having concluded that Dr. Fenton’s treatment plan is reasonable in the sense that it is related to Claimant’s compensable injury, I next consider whether it is medically necessary. I conclude that it is.
9. The determination whether a treatment is medically necessary must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000). An injured worker’s subjective preferences cannot render a medically unreasonable treatment reasonable. See, Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003). As is the case with many aspects of medical decision-making, however, there can be more than one right answer, and thus more than one reasonable treatment option for any given condition. Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010).
10. Weighing the expert testimony here, I conclude that Dr. Fenton’s opinion as to the efficacy of ultrasound as a complement to electrodiagnostic testing in cases such as Claimant’s is more credible than Dr. Levy’s. Dr. Levy acknowledged his unfamiliarity with the use of this technique, which renders his opinion less persuasive. In contrast, Dr. Fenton’s experience weighs heavily in his favor. The fact that ultrasound testing revealed findings consistent with the severity of Claimant’s symptoms, whereas electrodiagnostic studies failed to do so, is also telling. I conclude that the ultrasound testing was medically necessary and therefore compensable.
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11. I also conclude that Dr. Fenton’s proposed treatment plan, including both hydro-dissection of the ulnar nerve at the elbow and PRP injections at the wrist, are medically necessary and therefore compensable as well. Again, I accept Dr. Fenton’s opinion as more credible than Dr. Levy’s on this issue. I am convinced both by his clinical experience with other patients and by Claimant’s own positive response to the initial procedure that Dr. Fenton’s plan offers a reasonable prospect of symptom relief and improved function.
12. Dr. Levy’s principal argument against both hydro-dissection and PRP injections appears to be simply that they are new and unfamiliar to him. This is true. Dr. Levy did not cite to any specific studies establishing the treatments to be either unsafe or ineffective, however, and Dr. Fenton testified credibly that at least in his experience the opposite has so far proven true. Claimant already has tried the more conservative therapies Dr. Levy suggested without success, furthermore. Under the particular circumstances of this case, I conclude that it is appropriate to afford her the opportunity to attempt a different approach.
13. I conclude that Dr. Fenton’s treatment plan is medically necessary and therefore compensable. Because the treatment is intended to be restorative rather than merely palliative, furthermore, I conclude that Claimant cannot be considered at end medical result until she completes it. 21 V.S.A. §642; Coburn v. Frank Dodge & Sons, 165 Vt. 529 (1996).
14. As Claimant had neither reached an end medical result nor successfully returned to work as of April 30, 2011 I conclude that Defendant was not justified in terminating her temporary total disability benefits on that date. 21 V.S.A. §643. To the contrary, I conclude that Claimant should have received ongoing temporary total disability benefits until August 14, 2011, the date upon which she began working at her current job. This period totals 15 weeks, payable at the temporary total disability rate of $378.96 per week, or $5,684.40.
15. I conclude that Claimant was entitled to temporary partial disability benefits beginning August 14, 2011, but only for so long as her reduced earning power was related to her work injury rather than to other factors, such as her clients’ scheduling issues. 21 V.S.A. §646; Orvis v. Hutchins, 123 Vt. 18 (1962). Based on Claimant’s own testimony, I conclude that any differential between pre- and post-injury wages after February 3, 2012 was no longer attributable to a work-related disability. For the period from August 14, 2011 through February 2, 2012 I conclude that Claimant is owed temporary partial disability benefits totaling $2,916.30.
16. As Claimant has substantially prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits totaling $5,684.40, in accordance with 21 V.S.A. §642, with interest calculated from April 30, 2011 in accordance with 21 V.S.A. §664;
2. Temporary partial disability benefits totaling $2,916.30, in accordance with 21 V.S.A. §646, with interest calculated from August 14, 2011 in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s August 20, 2009 work injury, including but not limited to the treatments rendered to date and currently proposed by Dr. Fenton, in accordance with 21 V.S.A. §640; and
4. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of August 2012.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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

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

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

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