Archive

Tag Archive for: IME

M. M. v. State of Vermont, Department of Corrections (May 13, 2008)

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

M. M. v. State of Vermont, Department of Corrections (May 13, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. M. Opinion No. 20-08WC
By: George K. Belcher
v. Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Department of Corrections Commissioner
State File No. U-11445
Hearing held on February 8, 2008 in Montpelier, Vermont.
Record closed on March 18, 2008.
APPEARANCES:
Heidi Groff, Esq., for the Claimant
Nathaniel K. Seeley, Esq., for the Defendant
EXHIBITS:
Pre-Trial Stipulation dated February 8, 2008
Joint Medical Exhibit: Medical Records of the Claimant
Claimant’s Exhibit A: Chart of Medical Opinions
Claimant’s Exhibit B: Curriculum Vitae of Dr. Mark Bucksbaum
Defendant’s Exhibit 1: Letter from K. Donahue to Mr. Seeley dated January 31, 2008
Defendant’s Exhibit 9: Insurance Claim from Dr. Bucksbaum dated January 25, 2008
ISSUES:
1. What permanent partial disability is the Claimant entitled to as a result of his work-related injury?
2. Is the Claimant entitled to reimbursement for the Functional Capacity Evaluation that was recommended by Dr. Shulman and Dr. Bucksbaum?
3. Is the Claimant entitled to reimbursement for the permanent partial disability evaluation performed by Dr. Bucksbaum (since the Claimant’s treating doctor, Dr. Shulman, does not do PPD evaluations)?
4. Are the Claimant’s chiropractic treatments following Dr. Boucher’s report of November 7, 2006 reasonable and necessary?
2
FINDINGS OF FACT:
1. At the time of his injury, the State of Vermont was Claimant’s employer and the Claimant was an employee of the State of Vermont as defined in the Workers’ Compensation Act.
2. The Claimant, Myron Messeck, was born on October 23, 1954. On February 2, 2004, he was working as a corrections officer for the State of Vermont, Department of Corrections. He suffered a workplace injury when an inmate assaulted him. This was a serious assault, which caused injuries to his face, eye socket, and neck.
3. At the time of the assault, the Claimant was moving a prisoner to a lock-down cell when the prisoner struck him with his right arm. The Claimant’s memory of the incident thereafter is poor but he was taken to the Northwestern Medical Center emergency room where he was examined. The examination showed irritated right and left eye, soft tissue swelling, cut and contusion over the right eyebrow. Mr. Messeck complained of double vision (diplopia). A CAT scan was performed which showed a “trace left parietal irregularity, which may be a very tiny SDH [subdural hematoma] versus bony artifact. The CAT scan showed evidence of an internal broken eye socket or sinus cavity. He also had some blurred vision.
4. The Claimant did not return to his job with the Department of Corrections, in large part, because of concerns by medical providers that another head injury would put him at greater risk due to the injuries of the assault.
5. As of the date of the hearing, the Claimant was complaining of neck pain, back pain, headaches, diplopia, impaired lateral vision, impaired memory, impaired concentration and altered speech (speaking in a high-pitched voice). In September of 2007, the Claimant returned to work for the State of Vermont at a Vermont Welcome Center for 32 hours per week.
6. It is not disputed that the Claimant suffered a work-related injury and that his spine, facial nerve, mental functioning, and eyesight were affected by the injury. Causation is not an issue. The issue in the case primarily involves the extent of permanent impairment of the Claimant. On this, the evaluating doctors disagree.
7. Concerning the facial nerve impairment, the doctors did agree that the Claimant’s facial nerve impairment justified a 1% whole person impairment. Concerning the claim that the Claimant’s voice was affected by the injury, there was no expert evidence offered in support of this claim. The other impairments are discussed separately.
3
8. The Claimant’s principal medical expert was Dr. Mark Bucksbaum. Dr. Bucksbaum is a medical doctor who is Board Certified by the American Board of Physical Medicine and Rehabilitation, the American Board of Pain Management, and the American Board of Independent Medical Examiners. He is licensed as a medical doctor in the states of Vermont, New York and Maine. See Claimant’s Ex. B. The Defendant’s principal medical expert was Dr. William F. Boucher. Dr. Boucher is a medical doctor who is licensed to practice medicine in Vermont, Maine, and New Hampshire. The bulk of his work is independent medical evaluations but he also maintains a part-time clinical practice. He is board certified in occupational medicine. The Defendant’s psychiatric expert was Dr. Albert M. Druckteinis who is a psychiatrist, medical doctor and juris doctor. He holds medical licenses in Vermont, New Hampshire, Maine, and Florida. He is board certified by the American Board of Psychiatry and Neurology, The American Board of Forensic Psychiatry, and the American Academy of Pain Management. He operates a part-time clinical practice but the bulk of his work is criminal and civil assessments and evaluations. All of the evaluators were equally familiar with the AMA Guides to the Evaluation of Permanent Impairments, 5th edition (hereinafter referred to as “the Guides”). All three experts regularly do evaluations and provide testimony in workers’ compensation cases. None of these three experts were the Claimant’s treating physician. The Claimant’s treating physician, Ned Shulman, MD, does not do permanency ratings.
Visual Impairment
9. The Claimant testified that he had double vision following the injury. He was prescribed prism lenses for his glasses, which appear to have substantially corrected the double vision. Mr. Meesick testified, however, that his left peripheral vision is still blurred and that he has trouble reading in weak light conditions and when the print is small.
10. Dr. Bucksbaum attributed a 10% whole person impairment on account of the Claimant’s vision. He made this assessment based upon a medical record which he interpreted to show an acuity impairment (20/25 right eye; 20/40 left eye; report of Dr. Fazzone dated February 9, 2005, Page 147 of the Joint Medical Exhibit). Dr. Bucksbaum used Table 12-4 of the Guides to calculate a 10% impairment of visual acuity, and Table 12-10 to calculate a ten per cent whole person impairment. (Testimony of Dr. Bucksbaum).1
1 Dr. Bucksbaum’s report of December 8, 2006 indicated that his conclusion as to vision was based on a visual examination of March 16, 2005 of Optimetrics Associates, Inc. That report showed that the corrected vision of the Claimant was 20/13 (right eye) and 20/25 (left eye).
4
11. According to Dr. Bucksbaum, even if the Claimant’s visual acuity were normal, the Claimant would be justified in a 10% whole person impairment due to the diplopia, loss of reserve vision capacity and the need for a vision aid device (prism glasses). Under Sec. 12.4b of the Guides, page 298, impairment to vision other than loss of acuity or field of vision (such as double vision) can be given an impairment rating. That section states in part,
If significant factors remain that affect functional vision and that are not accounted for through visual acuity or visual field loss, a further adjustment of the impairment rating of the visual system may be in order. The need for adjustment, however, must be well documented. The adjustment should be limited to an increase in the impairment rating of the visual system (reduction of FVS) by, at most, 15 points.
12. Dr. Bucksbaum concluded that, with the Claimant’s eye examination and his “incompletely controlled diplopia with the use of prism lens, he most closely fits into the entry end of Class 2 of the vision impairment table 12-10”. Joint Medical Exhibit, Page 319.2
13. Dr. Boucher, on the other hand, attributed a 5% whole person impairment for the Claimant’s vision. Dr. Boucher discounted any vision loss due to lack of visual acuity under the Guides because visual acuity is to be measured under the Guides with the “best correction”. See Section 12.2b, Page 282. Dr. Boucher recognized that up to 15 points under the Functional Vision Score can be attributed to diplopia, but he noted that the Claimant’s diplopia was “well rectified with glasses”. His rating of 5% placed the Claimant in the middle of the Class 1 of table 12-10.
14. Dr. Bucksbaum’s use of uncorrected acuity scores does not appear to be consistent with the Guides. His rating 10% whole person impairment without loss of acuity would have required at least a 10 point Functional Vision Score for the diplopia (which would be 10 of the 15 available points).3
Cervical Impairment
15. Dr. Bucksbaum evaluated the Claimant’s neck and determined that he was entitled to 8% whole person impairment based upon Table 15-5 of the Guides. Dr. Bucksbaum did an extensive physical examination of the Claimant and noted that he had asymmetrical loss of range of motion and muscle guarding. The Claimant had a well-documented history of neck pain and headaches following the injury. Dr. Bucksbaum placed the Claimant in the high end of the range of DRE Cervical Category II from Table 15-5 of the Guides because of the neck pain and headaches. He explained that it would be possible to place the Claimant in the low end of this range (5% whole person impairment) and allocate a separate 3% for Occipital Neuralgia. Dr. Bucksbaum felt, however, that it was more efficient to simply place the Claimant at the high end of the range.
2 Dr. Buckbaum continually referred to the prism glasses as “vision enhancements”. The Guides do not support his position.
3 On February 9, 2005, Dr. Fazzone found that the prism lenses improved the vision of the Claimant and that the Claimant “has no, or minimal, double vision.” Page 146 of Joint Medical Exhibit.
5
16. Dr. Boucher agreed that the Claimant fit within the same Category II and deserved a rating between 5-8%, but he placed him at 5% because “…the examinee’s cervical condition has a minimal effect on activities of daily living.”
17. The Claimant testified that he never had neck pains or problems before this injury. He now has neck pain, which radiates up into his head and causes headaches. The headaches sometimes become so severe that he develops an upset stomach. Frequently in the medical records, the Claimant’s neck pain and headaches were mentioned as significant obstacles to his ability to work and function.
Lumbar Impairment
18. The Claimant noticed lower back problems during the healing process of the other injuries. He had never had lower back problems before. He notices his lower back has pain when he sits for long periods of time or when he walks on uneven ground.
19. Dr. Bucksbaum examined the Claimant’s lower back. Dr. Bucksbaum’s examination showed abnormal range of motion in the Claimant’s lower back, and an asymmetrical range of motion. See page 313, Joint Medical Exhibit. In addition, he noted pain on palpation. The Claimant had a positive “Jolt test”, pain while walking on his toes, and “postural sway difficulty”. These indicators led Dr. Buckbaum to conclude that the Claimant had chronic mechanical low back pain caused by the injury and that the Claimant was justified in a 5% whole person impairment from Table 15-3 of the Guides for this problem.
20. Dr. Boucher also did an examination of the Claimant’s low back but approached the examination with a “low suspicion” of finding anything. Dr. Boucher measured the Claimant’s range of motion in the lumbar area once, using only one inclinometer instead of three readings using two inclinometers as recommended in the Guides.
21. Dr. Boucher noted that the Claimant’s range of motion was 20 degrees right and left lateral flexion, with normal being 25 degrees. Because the 20% reduction in flexion was equal on both sides, Dr. Boucher’s opinion was that the Claimant’s range of motion was “normal”. Dr. Boucher also noted tenderness in the lower back on palpation. Despite these findings, Dr. Boucher determined that the Claimant’s back condition was “normal” and gave a 0% impairment rating.
22. It was clear from the testimony that Dr. Bucksbaum did a much more thorough examination of the Claimant’s lower back than did Dr. Boucher. Dr. Bucksbaum’s examination was more consistent with the criteria set forth in the Guides.
Mental Condition
23. The Claimant complained of memory problems following the injury. His ability to focus seemed to be less. He had problems sleeping. He was worried that he might leave a store or public place and forget to take his daughter with him, so he always asked that she stay with him in public.
6
24. Dr. Bucksbaum diagnosed the Claimant as having Traumatic Head Injury/Post-concussion syndrome. He rated the Claimant as having a whole person impairment of 8% whole person impairment based upon Table 13-6 of the Guides. This table gives a range of whole person impairment from 1% to 14% for impairment related to mental status after evaluating memory, orientation, judgment and problem solving, community affairs, homes and hobbies and personal care. Clearly, Dr. Bucksbaum was rating the Claimant based upon the belief that the Claimant had a subdural hematoma or concussion. See page 319 of Joint Medical Exhibit. Dr. Bucksbaum noted that his assessment of impairment under Chapter 13 was “consistent with a Class II impairment rating under chapter 14; mental and behavioral disorder.” Id. He also emphasized that it was the impairment which was being rated and not the underlying cause, regardless of whether the cause was physiological or emotional.
25. Chapter 13 of the Guides is used to rate impairment of the central and peripheral nervous system. “Chapter 13 provides criteria for evaluating permanent impairment due to documented dysfunction of the brain, cranial nerves, spinal cord, nerve roots, and/or peripheral nerves and muscles.” Page 305 of the Guides.
26. Chapter 14 is used to evaluate the impairment of mental and behavioral disorders. This chapter of the Guides does not include percentage impairments. According to the Guides, “Numerical impairment ratings are not included, however, instructions are given for how to assess an individual’s abilities to perform activities of daily living.” See page 357 of the Guides. “The use of percentages implies a certainty that does not exist.” Page 361 of the Guides.
27. Dr. Drukteinus saw the Claimant for evaluation on February 22, 2005, January 13, 2006, and again on March 30, 2007. Dr. Drukteinus reviewed the medical records of the claimant and he administered various psychological tests. Dr. Drukteinus was doubtful that the Claimant actually suffered a subdural hematoma and was of the opinion that the Claimant did not have a traumatic brain injury or residual post-concussion syndrome. Rather he determined that the Claimant was suffering from anxiety disorder and adjustment disorder with depressed mood. He believed that these conditions were causally related to the injury and that the Claimant was at medical end result.
28. Because the Guides do not use percentages in Chapter 14 assessments, Dr. Drukteinus looked to the Colorado system of rating mental impairments. Under this system of percentage allocation, and, considering that the Claimant’s mental condition was in partial remission, he calculated that the Claimant’s impairment was minimal to mild and that it deserved a rating of 5% whole person impairment. Dr. Drukteinus left open the possibility of an additional award for pain, but felt that the pain question should have been taken into account with the other medical impairment assessments.
7
Functional Capacity Examination
29. Dr. Ned Shulman (the primary care physician) recommended to the Department on October 19, 2006 and May 11, 2007 that the Claimant have a Functional Capacity Examination. Pages 257 and 329, Joint Medical Exhibit. Dr. Shulman did not testify in this case as to why he wanted the Claimant to have a functional capacity examination. Before he made these recommendations, Dr. Shulman made a fairly detailed evaluation of the Claimant’s work capacity, including lifting capacity, in a letter dated September 6, 2006. Joint Medical Exhibit, Pages 250-252. The emphasis in his letter was upon his diagnosis of “post traumatic stress disorder”.4 It is unclear in the record why Dr. Shulman felt a functional capacity examination would assist him or the Claimant.
30. Dr. Bucksbaum recommended in his report of December 8, 2006 that the Claimant could benefit from a functional capacity examination. Joint Medical Exhibit, page 320. His recommendation was that an FCE could assist in determining his work tolerances. Dr. Bucksbaum felt that the Claimant’s plan of becoming a commercial truck driver was “likely above his work limits”. Id. Dr. Peyser had determined on August 3, 2006 that, “There is no reason why Mr. Meeseck could not be employed as a truck driver.” Page 243 Joint Medical Exhibit. Dr. Drukteinus came to the same conclusion on April 5, 2007. Page 328, Joint Medical Exhibit. Dr. Todd Faxvog, Chiropractor, also thought commercial driving was feasible, at least for a trial. Page 246, Joint Medical Exhibit.
31. The Commissioner takes judicial notice under Vermont Workers’ Compensation and Occupational Health Rule 7.1800 of the Vocational Rehabilitation forms in the Department’s file. The Claimant was found to be eligible for vocational rehabilitation services on September 8, 2004. On February 28, 2007 Vocational Rehabilitation Counselor, Wayne Sullivan, reported that he and Mr. Meesek had agreed to place the Vocational Rehabilitation file on “suspension” for six months so that the Claimant’s employment status with the State of Vermont could be determined. It appears from the records that the vocational rehabilitation counselor had not requested the FCE, and, in fact, the vocational rehabilitation case was in “suspension” at the time the FCE was performed. See Department File, Wayne Sullivan Voc. Rehab. Report of February 28, 2007. No Individual Written Rehabilitation Plan was ever formulated by the counselor.
32. The Claimant participated in a functional capacity examination on July 20, 2007. He paid the expense of this and would now like this expense ($1,500.00) to be assessed against the employer. The FCE determined that the Claimant had a medium, full-time work capacity. See page 353, Joint Medical Exhibit.
4 This diagnosis was consistently made by Dr. Shulman as late as August, 2007, (Page 362, Joint Medical Exhibit) despite the conclusions by Dr. Drukteinis, Janis M Peyser, PhD, Dr. Steve Sobel, that this diagnosis did not apply to the Claimant. See pages 179, 249, and 327, Joint Medical Exhibit.
8
Ongoing Chiropractic Care
33. Dr. Shulman recommended in July of 2005 that the Claimant see a chiropractor. Page 301, Joint Medical Exhibit. The Claimant has regularly seen Dr. Todd Faxvog about every two weeks. During the visits he regularly has a manipulative adjustment and moist heat packs. He also receives a massage after the chiropractic treatment. The Claimant testified that the adjustments and massages help him with coping with his neck and back pain and doing his activities. The chiropractic treatments seemed to help him with his headaches as well. When he must miss an appointment, he finds that it is very difficult to last until the next appointment.
34. Dr. Bucksbaum testified that the chiropractic treatment was palliative and helpful to the Claimant in coping with his pain without medication. His opinion was that this treatment was reasonable. Dr. Shulman originally recommended the chiropractic treatments in July of 2005. His medical notes of May 18, 2006 indicated that Dr. Shulman thought that the Claimant will “most likely need to continue treatment such as chiro indefinitely.” Page 231, Joint Medical Exhibit. On May 22, 2006 Dr. Shulman’s notes state that, “I am aware he continues with Dr. Faxvog on weekly basis for correction and ideal resolution of cephalgia.” Page 232, Joint Medical Exhibit. Neither Dr. Bucksbaum or Dr. Shulman addressed the need for massages as a separate, on-going treatment.
35. Dr. Boucher testified that the chiropractic treatments and massages probably made the Claimant feel better immediately afterward, but that the treatments did not improve function and would not be missed if they were discontinued for several months. In his report at page 271 of the Joint Medical Exhibit, Dr. Boucher stated,
As regards to the examinee’s neck pain, further chiropractic adjustments are not indicated. Studies have shown that manipulative therapies can be helpful in the acute phase of injury, but are not helpful in the chronic situation. In this case, the examinee has no ongoing benefit (i.e. improvement) from current chiropractic adjustments and further adjustments are neither reasonable or necessary.
36. Dr. John Peterson, D.O. did a medical evaluation of the Claimant on October 31, 2005. His report questioned the frequency of the chiropractic treatments but acknowledged that the Claimant seemed to benefit from them and that they might be serving a “palliative” purpose. Page 208, Joint Medical Exhibit.
Costs and Attorneys Fees
37. The Claimant incurred litigation costs in this matter of $1,201.00. This amount excludes Dr. Bucksbaum’s permanency assessment which is dealt with in paragraph 49 and it does not include the $1,500.00 paid for the functional capacity examination. The Claimant has entered a contingent fee agreement with his counsel calling for attorney’s fees of 25% of the gross award.
9
CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. Under Vermont practice, impairments to various body parts and functions are rated pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment. 21 VSA Sec. 648(b); Workers’ Compensation Rule 11.2210. The application of the Guides in this case is a complex matter which can be confusing at times, even to the experts. The experts in this case agreed on only one of the claims of impairment: the facial nerve impairment.
3. Where the claimant’s injury is obscure, and the layman could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s Inc., 137 Vt. 393 (1979). The Claimant’s complaint concerning his voice alteration must be denied since no expert testimony was offered to support it.
4. When choosing between conflicting medical opinions, the Department has looked at several factors: (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. 37-03 WC (Sept. 17, 2003).
5. Here Drs. Bucksbaum and Boucher have similar experience, education, and history with the Claimant. Both appear to have examined all the pertinent records.
6. Concerning the vision impairment, I find that Dr. Boucher offered the most clear and thorough analysis of the vision impairment. His rating of a 5% whole person impairment for vision loss was more consistent with the language of the Guides, including the use of corrected vision capability.
7. Concerning the cervical impairment, I find that Dr. Bucksbaum’s analysis was more persuasive since he gave due consideration to the Claimant’s headaches and pain. Dr. Boucher seemed to downplay the continued pain and neck soreness which appears constantly through the medical records and which was never seriously questioned as to its veracity. Dr. Buckbaum’s rating of 8% whole person impairment is more thorough and supported.
10
8. Concerning the lumbar impairment, I find that Dr. Bucksbaum’s examination was significantly more thorough than that of Dr. Boucher. The examination provided a basis for Dr. Bucksbaum’s opinion which makes his opinion the more persuasive. His rating of 8% to the lumbar spine is accepted.
9. Concerning the evaluation of mental impairment, I find that Dr. Drukteinus had more information due to his examination of the Claimant at three different times over a longer period of time. Moreover, his diagnosis of adjustment disorder and anxiety disorder was supported by other evaluations and was more credible. I find that the qualifications and experience of Dr. Drukteinus in rating a mental or neurological impairment is superior to that of Dr. Bucksbaum. Dr. Drukteinus convincingly refuted Dr. Bucksbaum’s diagnosis of traumatic brain injury/post concussion disorder. Dr. Drukteinus’ rating of a 5% whole person impairment is the more cogent assessment. The Department has recognized the Colorado system for the purpose of assigning an impairment percentage to mental disorders. See, e.g. Bodell v. Webster Corporation, Opinion No. 62-96WC (October 22, 1996), Sargent v. Town of Randolph Fire Department, Opinion No. 37-02WC (August 22, 2002).
10. The various impairments are combined pursuant to Workers’ Compensation Rules 11.2200, 11.2300, and the Combined Values Chart of the Guides. The vision impairment of 5%, plus mental impairment of 5%, plus nerve impairment of 1% equal 11% whole person impairment, times 405 weeks, to equal 44.55 weeks. The spine impairment is: 8% cervical impairment, plus 5% lumbar impairment, for a total of 13% whole person impairment, times 550 weeks, to equal 71.5 weeks. The total permanent partial impairment award is 116.05 weeks of benefits.
11. The Claimant asks that the expense of Dr. Bucksbaum’s permanency assessment be paid by the Defendant. According to Workers’ Compensation Rule 11.2400,
It shall be the employer’s responsibility to pay for at least one permanency examination and impairment rating from the claimant’s treating physician, notwithstanding its decision to obtain a rating from another medical examiner as well if it so desires. All impairment ratings received by the employer shall be copied to the claimant or [to] his or her attorney. At the commissioner’s discretion, the employer may be ordered to pay for additional permanent impairment evaluations.
12. Since Dr. Shulman did not do permanency evaluations, it made sense for someone with familiarity with the Guides to do such an evaluation. Both Dr. Bucksbaum and Dr. Boucher agreed that a thorough record review and examination of the Claimant would be necessary for an assessment of permanent impairment. The rule’s reference to “treating physician”, should not bar the Claimant from having at least one evaluation paid for by the employer which is independent from the employer’s own expert. The Commissioner has, on occasion, exercised her discretion to order that such evaluations be paid for by the employer. See Sanz v. Collins, Opinion No. 25-05 WC (April 26, 2005). In this case it is appropriate for the employer to pay for Dr. Bucksbaum’s assessment ($2,160.00). The Commissioner approves it, in her discretion, for payment by the Defendant.
11
13. The Claimant also asks that the Defendant pay for the functional capacity examination. Although the Claimant’s treating physician recommended that such an examination be done, it was not proven that this was needed for treatment. In fact, it is unclear why it was needed at all. The Claimant had been cleared by most of the evaluators to do the job of truck driver. Although, Dr. Bucksbaum questioned that conclusion, he was evaluating the physical impairment of the Claimant and he was not structuring an employment plan.
14. The Claimant has cited no express authority by which the Defendant can be ordered to pay for a functional capacity examination. Such examinations are often ordered as part of a vocational rehabilitation plan, but in this case the vocational rehabilitation program was “suspended” with the approval of the Claimant.
15. The Commissioner has concern that if Employers are to be charged with the expense of functional capacity examinations, then the necessity for such an examination should be shown as a clear medical purpose or as part of a vocational rehabilitation assessment/plan as contemplated by the statute. 21 VSA Sec. 641. Otherwise, such examinations might become a routine tactic in litigation preparation. In this case, there was no clear medical need for the functional capacity examination. There was no evidence that the vocational rehabilitation counselor asked for this evaluation. The Defendant should not be charged for it. Other facts in other cases might justify such an order, but not here.
16. The Claimant has shown through his own testimony, the testimony of Dr. Bucksbaum, and the report of Dr. Peterson, that the ongoing chiropractic treatments have a beneficial, palliative affect. They benefit the Claimant by relieving his pain, without the need for additional medication. They assist in his maintenance of function. They are recommended by the treating physician, Dr. Shulman. Under prior rulings of the Commissioner, continuing chiropractic care may be ordered when recommended by persuasive medical authority. See Forrest v. Rockingham School District, Opinion No. 30-96 WC (May 16, 1996), but see also Burnah v. Carolina Freight Carriers, Opinion No. 37-98 WC (June 28, 1998). The weight of the evidence in this case is in favor of the compensability of such treatments as a palliative measure.
17. The Claimant seeks costs which are mandatory under 21 VSA Sec. 678. (The costs allowed in this case do not include Dr. Bucksbaum’s permanency assessment since that is being awarded under a different rule and costs do not include the cost of the FCE since that has been determined to be unrelated to this litigation and not recoverable under other provisions.) Recoverable costs are $1,201.00.
12
18. An award of interest is mandatory under 21 VSA Sec. 664 from the date on which the employer’s obligation to pay compensation began. The evidence does not reflect the specific amount of the chiropractic bills, nor the amounts paid by the Claimant or his insurer. Likewise the dates upon which permanent partial disability payments have become due is unclear from the record. Under the statute I conclude that the Defendant is obligated to reimburse Claimant for any amounts he paid, along with interest at the statutory rate from the date of payment forward. The defendant is obligated to reimburse any third party payors as well, including interest charges or other late payment penalties assessed by them. To the extent that the Claimant is entitled to permanent partial disability benefits which were due according to this order but which have not yet been paid, the Defendant is obligated to pay interest from the due date to the date of payment.
19. In the discretion of the Commissioner, the prevailing party may be awarded “reasonable” attorney fees. 21 VSA Sec. 678 (a). Rule 10.1000 Vermont Workers’ Compensation and Occupational Health Rules. The Commissioner has discretion as to whether to base an award of attorney fees on either an hourly or contingency basis. Rule 10.1200 Vermont Workers’ Compensation and Occupational Health Rules. The Claimant prevailed in this formal proceeding on four of the seven issues presented (lumbar spine impairment, cervical spine impairment, permanency rating recovery, and chiropractic care). While counsel for the Claimant submitted a copy of the contingency fee agreement, she did not submit any evidence of her itemized time. In past cases, the Commissioner has weighed various factors in making determinations of reasonableness of attorney fees including the difficulty of the issues involved, the results achieved, the time and effort expended and whether the claim for fees is proportional to the efforts of the attorney. See Estate of Lyons v. American Flatbread, Opinion No. 36A-03 WC. Without some evidence as to the time and effort expended, the Commissioner cannot in this case make a reasoned decision as to the reasonableness of attorney fees. Accordingly, the record should remain open for the Claimant to submit such evidence. See Estate of Roland Pion v. Vermont Asbestos Group, Inc. Opinion No. 02R-07 WC.
13
ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant’s claim for workers’ compensation benefits, is approved in part and the Defendant is ORDERED to pay:
1. Permanent Partial Impairment benefits of 11% whole person impairment not related to the spine (vision 5%; facial nerve 1%; mental condition 5%) and spine impairment of 13% whole person impairment (8% cervical and 5% lumbar) for a total of 116.05 weeks of permanent partial disability benefits;
2. Dr. Bucksbaum’s permanency assessment cost of $2,160.00;
3. Litigation costs of $1,201.00;
4. Unpaid chiropractic bills;
5. Interest upon any of the items in paragraphs 1, 2, and 4 at the legal rate from the date the charges were incurred as set forth in paragraph 55 above;
6. Claimant’s attorney may submit to the Department with a copy to the Defendant, within 30 days of the date of this order, an itemized statement of the time expended and the work performed. The Defendant shall have 10 days from the date of receipt to file any objection to the submission. The Commissioner will then act upon the issue of attorney fees.
Dated at Montpelier, Vermont this 13th day of May 2008.
____________________________
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. Sec. 670, 672.

P. B. v. The Store at Sugarbush (February 23, 2007)

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

P. B. v. The Store at Sugarbush (February 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. B. Opinion No. 10-07WC
v. Phyllis Severance Phillips, Esq.,
Hearing Officer
Robert & Jacqueline Rose
dba The Store at Sugarbush Patricia Moulton Powden, Commissioner
and Zurich Insurance
State File No. P-17967
OPINION AND ORDER
Submitted on briefs without evidentiary hearing
APPEARANCES:
Patricia K. Turley, Esq. for Claimant
John W. Valente, Esq. for Defendant
ISSUE PRESENTED:
Whether Vermont’s workers’ compensation law precludes Defendant from relying on the opinion of a third independent medical examiner when the opinions of its first two independent medical examiners were deemed insufficient to support a termination of Claimant’s workers’ compensation benefits.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical records
Claimant’s Exhibits:
Claimant’s Exhibit 1: Various correspondence
Claimant’s Exhibit 2: August 5, 2004 letter to Attorney Turley
Claimant’s Exhibit 3: Affidavit of Attorney’s Fees
STIPULATIONS:
1. On October 16, 2000 Claimant was employed by The Store at Sugarbush, which was insured by Zurich Insurance for workers’ compensation purposes.
2. Claimant incurred an injury to her back at work (the “work injury”). Her average weekly wage from The Store at Sugarbush was $420.
2
3. Zurich accepted the claim and paid medical benefits associated with the work injury.
4. Claimant was taken out of work in October 2004 by Dr. Mahoney due to continued and escalating problems with her low back. In April 2005 Zurich paid TTD benefits retroactive to October 2004, without a reservation of rights.
5. Zurich sent Claimant to an IME with Dr. Philip Davignon on May 10, 2005.
6. Zurich filed a Form 27 to terminate Claimant’s entitlement to TTD and chiropractic treatment, supported with Dr. Davignon’s IME report. The Department rejected the Form 27 because “Dr. Davignon did not have the complete medical history to made (sic) an informed decision.”
7. Zurich sent Claimant to another IME with Dr. Verne Backus on October 20, 2005.
8. Zurich filed a Form 27 to terminate Claimant’s entitlement to TTD and chiropractic benefits after the first 12 visits, supported by Dr. Backus’ IME report. The Department rejected the Form 27 because Dr. Backus “did not have all the medical records to review before making his determination.”
9. Counsel for both parties discussed the situation and compiled a complete set of records.
10. Claimant arranged for her own IME with John Peterson, D.O. in August 2005. The report from this IME was provided to Zurich on October 13, 2005. Dr. Peterson opined that Claimant had reached maximum medical improvement, had an 8% whole person impairment for her back injury, and that she may need palliative chiropractic care in the future.
11. In May 2006 Zurich sent Claimant another IME notice for an evaluation with a third provider.
12. Claimant objected to the third IME provider, John Johansson, D.O. on May 11, 2006 and requested the Department schedule an informal conference to address the issue.
13. The third IME was rescheduled to June 21, 2006. Despite the rescheduled appointment, the Department did not rule on Claimant’s objection prior to the appointment.
14. The carrier indicated it would file a Form 27 to terminate benefits if Claimant refused to attend the scheduled IME.
15. Faced with the filing of a Form 27, Claimant attended the third IME under protest, expecting that the Department would rule on the appropriateness of the third IME promptly.
16. No ruling on the objection was provided by the Department.
3
17. The carrier filed two Form 27s supported by the third IME report. The Department allowed the third IME report to be used as support for the termination of benefits, while it referred the ruling on the objection to the third IME to a formal hearing.
18. The Claimant contests the use of the third IME report for the discontinuance of certain medical benefits, where that discontinuance was only supported by the contested report and the previously rejected report of Dr. Backus.
19. Claimant does not contest the approval of the Form 27 which terminated her TTD benefits, as one of the records supporting the Form 27 was Dr. Peterson’s report.
20. Claimant requested an expedited hearing to address the lack of a ruling on the propriety of a third IME with a third provider.
FINDINGS OF FACT:
1. Stipulations 1-20 above are accepted as true.
2. Claimant suffered a low back strain while in the course and scope of her employment for Defendant in March 1997. She treated with Sean Mahoney, D.C., a chiropractor, and Francis Cook, M.D. At their referral, she underwent physical therapy and also an evaluation at The Spine Institute of New England.
3. On October 16, 2000 Claimant suffered another work-related low back strain. She sought treatment with Dr. Cook on that day and resumed treatment with Dr. Mahoney the following day.
4. Claimant had treated on a regular and consistent basis with both Dr. Cook and Dr. Mahoney at least since 1997. Dr. Cook’s treatment consisted primarily of prescription medications. Dr. Mahoney did spinal manipulations on at least a weekly basis from 1997 until March 2000.
5. Claimant also treated with Dr. Cook for a variety of other, non-work-related ailments.
6. From October 2000 through December 2004, Claimant treated with Dr. Mahoney on at least a weekly basis, often twice per week, for a total of more than 280 sessions.
7. On May 10, 2005 at Defendant’s request, Philip Davignon, M.D. performed an independent medical examination (IME) of Claimant. As background medical information, Dr. Davignon had Dr. Mahoney’s treatment notes from July 2004 through March 2005. He lacked the medical records relating to Claimant’s treatment following her 1997 injury, including not only Dr. Mahoney’s records from 1997 through June 2004, but also Dr. Cook’s records, physical therapy notes, the records of Claimant’s evaluation at The Spine Institute of New England and Dr. Kenneth Ciongoli’s prior IME report.
8. Dr. Davignon noted in his IME report that he lacked sufficient medical documentation to comment on either (1) the causal relationship between Claimant’s October 2000 low back injury and her 1997 injury; or (2) the reasonable necessity of her treatment to date. He did,
4
however, have sufficient information from which to conclude that Claimant had reached medical end result and had no ratable permanent impairment.
9. Dr. Davignon also noted a significant behavioral overlay to Claimant’s symptoms, and recommended behavioral counseling as treatment. As to the efficacy of Claimant’s ongoing chiropractic treatment, Dr. Davignon stated only that such treatment was not curative, but rather “more of a maintenance level.” He did not address whether it was reasonable for Claimant to continue to receive chiropractic treatment and, if so, how often.
10. On June 20, 2005 Defendant filed a Form 27, seeking to discontinue its responsibility for chiropractic treatment on the basis of Dr. Davignon’s IME report. On June 28, 2005 the Department rejected the Form 27, stating that Dr. Davignon lacked a complete medical history and therefore could not have made an informed decision as to the reasonable necessity of ongoing chiropractic care.
11. In late June and early July 2005, both Dr. Cook and Dr. Mahoney made referrals for Claimant to receive psychological treatment for depression resulting from her work-related low back injury. Dr. Cook’s referral was for three to six months of psychological counseling; Dr. Mahoney’s was non-specific. Both of the referrals were in keeping with Dr. Davignon’s IME findings and recommendation that Claimant undergo behavioral counseling.
12. In August 2005 Claimant’s attorney referred her to Jon Peterson, D.O., an osteopath, for an IME. Dr. Peterson determined that Claimant had reached medical end result, with an 8% whole person permanent impairment. Dr. Peterson noted that the passive treatment Claimant had received to date, including not only Dr. Mahoney’s chiropractic treatment but also physical therapy, massage therapy, myofascial release, neuromuscular therapy and cranio-sacral sessions, was excessive. In his opinion, Claimant would be have been much better served by a referral to a multi-disciplinary program such as that at The Spine Institute of New England. Nevertheless, Dr. Peterson opined that 12 chiropractic visits per year would constitute reasonable ongoing palliative care for Claimant.
13. On October 20, 2005 Defendant referred Claimant to Verne Backus, M.D. for an IME. Dr. Backus had Dr. Mahoney’s treatment notes from January 2005 forward to review, as well as the treatment notes relating to Claimant’s recent psychological counseling. Based on these records, Claimant’s reported history and his physical examination, Dr. Backus concluded that Claimant had reached medical end result and required no further medical care, surgical intervention or physical therapy related to her October 2000 injury. Dr. Backus further concluded that the chiropractic treatment and massage therapy Claimant had received was excessive and not reasonably necessary, and that her psychological treatment was not causally related to her work injury. As to permanency, Dr. Backus determined that Claimant’s pain-related impairment was moderate, but did not give a permanent impairment rating per se.
14. With Dr. Backus’ IME report as support, on December 14, 2005 Defendant filed a second Form 27, again seeking to discontinue its responsibility for Claimant’s ongoing chiropractic treatment. The Department initially approved the discontinuance, but subsequently rescinded its approval. By letter dated January 4, 2006 the Department noted that Dr.
5
Backus lacked Claimant’s complete medical history. On those grounds, the Department concluded that Dr. Backus’ report was insufficient to support a discontinuance of benefits.
15. In November 2005 Dr. Cook gave Claimant a referral for massage therapy. In February 2006 Dr. Cook referred Claimant for a course of pool therapy. In March 2006 Dr. Cook recommended that Claimant undergo a functional capacities evaluation. Also in March 2006 Dr. Cook recommended that Claimant continue with psychological counseling.
16. In April 2006 Defendant notified Claimant that it had scheduled her to undergo another IME, this time with Jon Johansson, D.O., an osteopath. Claimant objected to the third IME on the grounds that Defendant was engaging in impermissible doctor-shopping. Claimant requested that the IME be postponed until the Department could rule on her objection. Defendant agreed to do so.
17. Dr. Johansson’s IME was rescheduled until June 21, 2006. By the time that date had arrived the Department still had not ruled on Claimant’s objection. Claimant attended the IME under protest, fearing that if she did not do so Defendant would seek to terminate her benefits for failing to present herself for examination.
18. Dr. Johansson was provided with a complete set of medical records in conjunction with his IME. Based on his review of those records as well as his physical examination, Dr. Johansson concluded that Claimant had reached medical end result with no ratable permanent impairment. Dr. Johansson further concluded that the chiropractic treatment Claimant had received was excessive, and that neither ongoing chiropractic care nor massage therapy was medically necessary.
19. On September 13, 2006 Defendant filed a Form 27 to discontinue Claimant’s temporary disability benefits on the grounds that she had reached medical end result. As support for the discontinuance, Defendant cited its IME reports from Drs. Davignon, Backus and Johansson, as well as Claimant’s IME report from Dr. Peterson. The Department approved the Form 27 on September 28, 2006.
20. Also on September 13, 2006 Defendant filed a second Form 27, in which it sought to discontinue responsibility for Claimant’s chiropractic, massage, cranial-sacral and Reiki therapies. As support for this discontinuance, Defendant cited Dr. Johansson’s and Dr. Backus’ IME reports. The Department approved this second Form 27 on September 28, 2006.
21. Claimant did not object to the first discontinuance, relating to termination of her temporary disability benefits, because it was based in part on Dr. Peterson’s medical end result finding. However, Claimant did object to the second discontinuance, relating to the termination of her medical benefits, on the grounds that it was based primarily on Dr. Johansson’s IME report. Claimant argued that Defendant had no right to require her to attend Dr. Johansson’s IME, that she had done so under protest, and that any medical opinions arising from that IME should not be considered in ruling on Defendant’s discontinuance.
22. Claimant has submitted an affidavit of attorney’s fees totaling $2,898.00.
6
CONCLUSIONS OF LAW:
1. Vermont’s workers’ compensation statute allows an employer to obtain its own independent medical opinion as to the nature and extent of a claimant’s injury and disability. 21 V.S.A. §655 states:
After an injury and during the period of disability, if so
requested by his employer, or ordered by the commissioner,
the employee shall submit himself to examination, at reasonable
times and places, to a duly licensed physician or surgeon
designated and paid by the employer. The employee shall have
the right to have a physician or surgeon designated and paid
by himself present at such examination. Such right, however,
shall not be construed to deny to the employer’s physician the
right to visit the injured employee at all reasonable times and
under all reasonable conditions during total disability.
2. Neither the statute nor the workers’ compensation rules specify what constitutes a “reasonable” time, place or condition for conducting an examination under §655. Even without such clarification, certainly the term “reasonable” connotes that both parties’ interests be balanced and safeguarded. On the one hand, the claimant has a right to be protected against excessive, unnecessary or unduly intrusive medical evaluations. On the other hand, the employer has the right to contest key medical findings or opinions with contrary opinions from its own appropriately credentialed experts.
3. Claimant argues that the reference in §655 to “a duly licensed physician” limits the employer to only one chosen expert for all of its IMEs. The Department has never read the statute so narrowly. It has considered IME opinions from multiple medical professionals in a number of formal hearing decisions. See, e.g., Seguin v. Ethan Allen, Opinion No. 28-02WC (June 26, 2002); Pelkey v. Chittenden County Sheriff’s Dept., Opinion No. 24-02WC (May 29, 2002); Miller v. Moyer Building Systems, Opinion No. 22-01WC (July 20, 2001); Matheny v. Velan Valve, Opinion No. 41-99WC (Sept. 21, 1999); Robinson v. Vermont SubAcute Corp., Opinion No. 3-97WC (March 27, 1997); Hall v. Maple Grove Farms, Inc., Opinion No. 33-95WC (Aug. 8, 1995); Catani v. A.J. Eckert Co., Opinion No. 28-95WC (May 17, 1995). More likely, the legislature intended by use of the singular article that a claimant be subjected to only one independent medical evaluator per examination, not that the evaluator be the same for the duration of the entire claim.
7
4. Claimant also argues that §640(c) limits the employer’s right to independent medical examinations. That section states that in situations where the employee has elected to treat with a medical provider other than the one initially designated by the employer, the employer “shall have the right to require other medical examinations as provided in this chapter.” This language does no more than to make clear the employer’s option to avail itself of the rights provided in §655 in circumstances where §640(c) has been triggered. It does not in any way limit the application of §655 solely to §640(c) situations.1
5. In cases in which the employer has requested multiple IMEs, striking the appropriate balance between the parties’ competing interests requires that a number of factors be considered. How many IMEs has the claimant already attended? How much time has passed since the most recent IME? Has the claimant commenced treatment with a new medical provider in the interim, and/or have new treatments been proposed? Is there a legitimately “new” medical question to be addressed, or is the employer simply searching for a second IME opinion that is more favorable to its position than its first one?
6. Each of these questions must be considered in order to determine what is a “reasonable” request for an IME in any particular claim. Without making a blanket pronouncement on the issue, Department precedent establishes that the final question – whether the employer is simply searching for a more favorable opinion to buttress its position – carries great weight. A “yes” answer to that question means that the employer might be doctor-shopping. Absent other legitimate reasons to bolster its IME request, the Department should discourage that practice.
7. For example, in Durand v. Okemo Mountain, Opinion No. 41-98WC (July 20, 1998), the Department denied the employer’s request to have the claimant undergo a fifth IME. The claimant already had submitted to four physical examinations by three prior IME physicians. The employer was dissatisfied with the most recent IME report, which concluded that the claimant had incurred a significant permanent impairment as a result of his work injury. The claimant did not challenge the IME physician’s permanency rating and did not seek one of his own. The Commissioner determined that the issue in dispute arose from the conflicting IME opinions already solicited by the employer and therefore did not really involve the claimant at all. Citing the reasonableness requirement of §655 the Commissioner concluded, “Additional independent medical examinations are not reasonable when the claimant has accepted the carrier’s independent evaluation and has never requested one of his own.” Id., Conclusion of Law #6. See also, Therrien v. Lydall Central, Opinion No. 50-02 (Dec. 19, 2002) (employer precluded from disavowing earlier IME opinions as to causation merely because it obtained a more favorable one subsequently).
1 Claimant argues that Dr. Cook was Defendant’s designated physician, and because she agreed to treat with him, §640(c) was never triggered, so therefore Defendant had no right to any IMEs at all. It is not clear from the evidence submitted, however, that Dr. Cook was Defendant’s designated physician; Claimant had treated with him often in the past, for both work-related and non-work-related ailments. More importantly, the medical evidence establishes that Dr. Mahoney was Claimant’s chosen treatment provider with respect to the October 2000 injury, as he was the one who assumed primary responsibility for directing Claimant’s care. In effect, therefore, by opting to treat with Dr. Mahoney Claimant did in fact trigger the operation of §640(c).
8
8. This is not the case here. All of the IME physicians who examined Claimant at Defendant’s request in the current claim agreed that the chiropractic care and other passive treatments she had received was excessive and that further treatments of this kind were not reasonably necessary. Were it not for Claimant’s challenge and the Department’s rejection of the first two IME reports submitted by Defendant on the grounds that they were based on insufficient medical documentation, Defendant would not have sought a third IME. Defendant was not “doctor-shopping” to find a different, more favorable opinion, it was endeavoring to prove its case to the Department’s satisfaction.
9. Claimant argues that Defendant should have responded to the Department’s rejection of its first two IME reports by providing the missing medical documentation to the IME physicians and soliciting an additional report from them. Certainly Defendant might have chosen this route. Unless the questions posed above as to the reasonableness of a requested IME under §655 mandate a different response, however, this is a matter of trial tactics in which the Department has no place.
10. As to the reasonableness questions posed above, all point to allowing the third IME. It had been eight months since the prior IME occurred. In the intervening period Claimant’s providers had prescribed new treatments, such as massage and pool therapy, and had recommended that previously prescribed treatments, such as psychological counseling, be extended beyond their originally estimated completion date. Claimant also had undergone a functional capacities evaluation, to which Defendant was entitled to react. Last, Defendant was entitled to respond to the opinions of Claimant’s own independent medical examiner, an osteopath, with an osteopathic opinion of its own.
11. Under these circumstances, the balance between Claimant’s right to be protected from excessive, unnecessary or unduly intrusive medical evaluations and Defendant’s right to obtain a timely, independent review of key medical issues and treatment recommendations tilts in Defendant’s favor. Dr. Johansson’s IME was reasonably scheduled for appropriate purposes, and it was permissible for the Department to consider his report in determining whether to approve Defendant’s proposed discontinuance.
9
ORDER:
Claimant’s request that the Department be precluded from considering Dr. Johansson’s IME report in conjunction with Defendant’s proposed discontinuance of medical benefits is DENIED.
Because Claimant has not prevailed on her claim, she is not entitled to an award of attorney’s fees.
DATED at Montpelier, Vermont this 23rd day of February 2007.
__________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

S. H. v. Athena’s Healing Arts LLC (August 23, 2007)

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

S. H. v. Athena’s Healing Arts LLC (August 23, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
S. H. Opinion No. 25-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
Athena’s Healing Arts, LLC For: Patricia Moulton Powden
Commissioner
State File No. X-61522
RULING ON DEFENDANT’S MOTION TO DISMISS
On July 27, 2007, Defendant moved to dismiss Claimant’s case pursuant to V.R.C.P. 41(b)(2). Defendant asserts that Claimant’s case should be dismissed with prejudice for her failure to: (i) provide Defendant with a Form 7 Medical Authorization; (ii) clarify what benefits she is claiming; (iii) attend a scheduled Independent Medical Evaluation; and (iv) advise the Department whether she wishes to reschedule a pre-trial conference or withdraw her appeal to the formal hearing docket.
To date, Claimant has not responded to Defendant’s filing.
Workers’ Compensation Rule 7.1000 states that “[t]he Vermont Rules of Civil Procedure … shall . . . apply to all [formal Workers’ Compensation] hearings . . . insofar as they do not defeat the informal nature of the hearing[s].”
V.R.C.P. 41(b)(2) provides that “a defendant may move for dismissal of an action or of any claim against the defendant” if “the plaintiff [fails] to prosecute.” V.R.C.P. 41 (b) (3) states that “[u]nless the . . . order for dismissal otherwise specifies, a dismissal under . . . subdivision (b) . . . operates as an adjudication upon the merits.”
Defendant cites four reasons why Claimant’s case should be dismissed. Of these four reasons, the second and third do not warrant dismissal.
2
First, Defendant’s assertion that Claimant’s case should be dismissed because she failed to clarify what benefits she is seeking has no legal basis. If Defendant’s assertion is based upon V.R.C.P. 12(b)(6) (failure to state a claim upon which relief can be granted), the Department will not “dismiss a cause of action for failure to state a claim upon which relief may be granted unless it appears, beyond doubt, that no circumstances or facts exist which could prove entitlement to relief. This type of motion is not favored and rarely granted.” See Walker v. Johnson Fuel Service, Opinion No. 07D-99WC (citing Ass’n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443 (1985)). Further, if Defendant’s assertion is based upon V.R.C.P. 56(c) (summary judgment), the Department will only award “summary judgment . . . if [the moving party] can demonstrate that there is no genuine issue as to any material fact and [that] it is entitled to judgment as a matter of law. . . . [Also,] the nonmoving party receives the benefit of all reasonable doubts and inferences.” Walker, Opinion No 07D-99WC (citing Samplid Enter., Inc. v. First Vermont Bank, 165 Vt. 22 (1996); also citing Murray v. White, 155 Vt. 621 (1991)). Finally, “the [Workers’] Compensation Act, having benevolent objectives, is remedial in nature and must be given a liberal construction; no injured employee should be excluded unless the law clearly intends such an exclusion or termination of benefits.” See Montgomery v. Brinver Corp., 142 Vt. 461, 463 (1983).
Next, Claimant’s failure to attend the scheduled IME only warrants assessment of all or part of the cost of the missed examination, and not dismissal of her claim. See Rule 14.7000.
However, Defendant’s first and fourth arguments above do support dismissal of Claimant’s case.
First, Claimant’s failure to provide Defendant with a Form 7 Medical Authorization warrants dismissal of her claim. Indeed, Rule 3.0830 allows “a claim [to be] dismissed without prejudice if a claimant fails or refuses, without good cause, to provide a medical authorization upon request.” On June 28, 2007, Defendant sent a letter to Judy Barone, Esq. (Claimant’s then attorney) requesting a medical authorization from the Claimant. Since Ms. Barone did not file her Motion to Withdraw as Claimant’s attorney until July 6, 2007, the Department assumes she sent the medical authorization to the Claimant for her signature. However, the Claimant never sent a signed medical authorization to the Defendant; further, the Claimant never explained to the Department or to the Defendant why she failed to do so. Therefore, the Department finds that the Claimant failed, without good cause, to provide a medical authorization upon request. Since the medical authorization sought by the Defendant would generate evidence relevant to the claim, and since the Claimant has not shown good cause for her failure to sign the medical release, her claim can be dismissed without prejudice. See Woznek v. Champlain College, Opinion No. 49D-95WC.
3
Claimant’s failure to respond to Department correspondence could also warrant dismissal of her claim. Indeed, in Cox v. Staffing Network, Opinion No. 9-95WC, the Claimant’s case was dismissed with prejudice because the Claimant failed to attend the final hearing and failed to respond to the Defendant’s Motion to Dismiss. Further, in Gursky v. Pizzagalli Construction, Opinion No. 47-95WC, the Claimant’s case was dismissed without prejudice, despite the fact that the Claimant frequently contacted and attended hearings at the Department, because the Claimant failed to produce medical records supporting his claim. Finally, in E.C. v. Reel Hospitality, LLC, Opinion No. 17-07WC, the Claimant’s case was dismissed without prejudice because the Claimant failed to respond to Department correspondence and failed to attend the status conference and hearing on his claim. In the case at hand, the Department indefinitely continued the pre-trial conference scheduled for July 16, 2007 due to Ms. Barone’s withdrawal as Claimant’s attorney. However, a condition of the continuance was that the Claimant contact the Department by July 25, 2007 to advise whether she wanted to reschedule the pre-trial conference or withdraw her appeal to the formal hearing docket. The Claimant never responded to the Department’s request and no further conferences were scheduled. Further, the Claimant has not replied to the Defendant’s Motion to Dismiss. Thus, based on the above-cited Department case law, Claimant’s case can be dismissed without prejudice.
ORDER
While the Department is loathe to dismiss claims, especially those of pro se claimants, unless all parties have been given a full and fair hearing on the matter, the Claimant’s conduct in this case dictates that her claim be dismissed. See Gursky, Opinion No. 47-95WC. Therefore, the Defendant’s Motion to Dismiss is granted; however, the dismissal is without prejudice.
DATED at Montpelier, Vermont this 23rd day of August 2007.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

© Copyright - -