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D. D. v. Northeast Kingdom Human Services

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

J. C. v. Eveready Battery Company (April 3, 2007)

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

J. C. v. Eveready Battery Company (April 3, 2007)

STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No. 12-07WC
By: Phyllis Severance Phillips, Esq.
v. Hearing Officer
For: Patricia Moulton Powden
Eveready Battery Company Commissioner
State File No. T-12816
OPINION AND ORDER
Hearing held in Montpelier on February 2, 2007
Record closed on March 4, 2007
APPEARANCES:
Claimant, pro se
John Valente, Esq. for Defendant
ISSUE PRESENTED:
Whether Claimant’s ongoing chiropractic treatment is compensable under 21 V.S.A. §640(a).
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit 1: Billing statement from Todd Faxvog, D.C.
Claimant’s Exhibit 2: Receipt for postage
Claimant’s Exhibit 3: Excellent Attendance awards for 2003 and 2004
Claimant’s Exhibit 4: Photographs
Claimant’s Exhibit 5 (admitted following the hearing): Diagrams of stretching/strengthening exercises
CLAIM:
Medical benefits under 21 V.S.A. §640(a)
Costs under 21 V.S.A. §678
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FINDINGS OF FACT:
1. Claimant has been employed by Defendant for more than 36 years. On January 13, 2003 she suffered a repetitive stress injury to her neck and left shoulder, arm and hand, causally related to her job as a forklift operator for Defendant. The forklift was not ergonomically designed and in order to operate it Claimant had to turn and twist her neck, shoulders and arms continuously.
2. Defendant accepted Claimant’s injury as compensable and paid benefits accordingly.
3. Claimant treated for her injury with Verne Backus, M.D. Her symptoms included cervical pain radiating into her left shoulder, with numbness down her left arm and into her left fingers. Dr. Backus diagnosed a left C-6 radiculopathy and prescribed conservative treatment, including physical therapy, anti-inflammatories, nerve testing and epidural steroid injections.
4. Dr. Backus also referred Claimant to Nancy Binter, M.D., a neurosurgeon, for consideration of surgical treatment options. Dr. Binter examined Claimant in June 2003 and recommended further conservative management, including work hardening and increased strength training. At Dr. Binter’s referral, during the summer of 2003 Claimant attended a work conditioning program on a twice-weekly basis for four weeks. At the end of the program, she was released to return to her forklift driving job for up to 8 hours per day.
5. Concurrent with the treatment directed by Dr. Backus, Claimant also treated with Todd Faxvog, D.C., a chiropractor. Dr. Faxvog’s modalities included cervical adjustments, manual cervical traction, electric muscle stimulation, hot packs and deep tissue massage.
6. The frequency of Dr. Faxvog’s treatments has varied. During the spring of 2003 he treated Claimant at least 2 or 3 times each week. Treatment frequency then tapered off to once or twice per month until January 2004. At that point, treatment frequency spiked again, and Claimant resumed chiropractic visits on at least a weekly basis until April 2004. In May 2004 treatment frequency diminished to about two times per month and remained at that level throughout 2004. Treatment frequency in 2005 was approximately one visit every 3 or 4 weeks. Treatment frequency in 2006 was approximately one visit every 4 to 6 weeks.
7. Claimant’s symptoms improved with conservative treatment. In May 2004 she was reassigned to a new position, one that was far less stressful to her neck. This too helped ameliorate her condition. Her symptoms have never fully resolved, however, and she feels knots and pain in her neck every day.
8. In May 2004 Dr. Backus determined that Claimant had reached end medical result. He recommended that Claimant taper off her chiropractic treatments to stop “over a relatively short period of time.”
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9. In July 2004 Dr. Backus rated Claimant with a 16% whole person permanent impairment referable to her cervical spine injury. Dr. Backus’ ultimate diagnosis was chronic left C-6 radiculopathy superimposed on cervical spondylosis, particularly at that level. He prescribed ongoing chronic pain medications and reiterated his recommendation that Claimant continue to taper off her chiropractic treatment.
10. Claimant returned to see Dr. Backus in March 2005. She continued to suffer from neck and shoulder pain, and felt unable to taper off Dr. Faxvog’s chiropractic treatment beyond every other week. Dr. Backus referred her to Mary Flimlin, M.D., a physiatrist, for possible chronic pain treatment recommendations.
11. Dr. Flimlin examined Claimant in July, August and December 2005, and again in April 2006. Her treatment recommendations included chronic pain medications, a possible TENS unit trial and continued aerobic exercise and home exercise program for stretching and strengthening.
12. As to ongoing chiropractic treatment, Dr. Flimlin advised that chiropractic interventions should include only manual traction with deep tissue massage and myofascial release, but no cervical adjustments. Regarding frequency of chiropractic treatment, Dr. Flimlin concurred with Dr. Backus’ recommendation that it be tapered off gradually, first to once monthly and then to every other month. As of April 2006, Dr. Flimlin advised that chiropractic treatment be discontinued altogether within 3 to 4 months.
13. In January 2006 Donald Kinley, M.D.,an orthopedist, performed a medical records review at Defendant’s request. Dr. Kinley opined that Claimant’s treatment to date had been reasonable, but that further passive therapy, including chiropractic manipulation, would not be of any benefit. Rather, Dr. Kinley believed that Claimant should be on an active aerobic exercise program that would allow her to strengthen her cervical spine and upper extremities.
14. Dr. Faxvog testified on Claimant’s behalf at the hearing. He explained that his treatment is palliative, not curative. The focus is on stretching rather than strengthening. In Dr. Faxvog’s opinion, stretching the neck muscles increases their mobility and prevents them from splinting so that the nerve root will not be compressed.
15. Although there may be other things that Claimant could do to increase cervical mobility and decrease pain, according to Dr. Faxvog chiropractic treatment is the one thing that has given her the most relief.
16. Dr. Faxvog anticipates that Claimant likely will need ongoing chiropractic care for the foreseeable future. Without it, she is likely to suffer more flare-ups of neck pain and these ultimately may require her to miss work as a result. Dr. Faxvog’s goal is to relieve Claimant’s pain and maintain her symptoms at a manageable level so that she can continue to work.
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17. At Defendant’s request, in May 2006 Claimant underwent an independent medical evaluation with John Johansson, D.O., an osteopath. Osteopathic physicians perform a variety of manual therapy techniques, some of which are similar to chiropractic adjustments. Dr. Johansson testified on Defendant’s behalf at the hearing.
18. Dr. Johansson diagnosed Claimant with chronic cervical degenerative disc disease with subjective elements of C6 radiculopathy but no clinical correlation. In Dr. Johansson’s opinion, Claimant’s current symptoms relate to a combination of her work injury and ongoing and advancing degenerative disc disease.
19. According to Dr. Johansson, repeated chiropractic manipulations are not medically indicated for patients with degenerative disc disease and, in fact, are potentially harmful. Repetitive manipulations result in over-stretched ligaments and lax facet joints. Lax facet joints can complicate an underlying degenerative disc condition and cause further problems.
20. Contrary to Dr. Faxvog’s opinion that Claimant’s symptoms are best addressed by techniques that increase cervical mobility, Dr. Johansson believes that the most effective long-term treatment must focus on strengthening rather than stretching. According to Dr. Johansson, when a muscle is weak it is more easily fatigued. Muscle fatigue leads to muscle tightness, which leads to knotting up and decreased mobility. Chiropractic adjustments that stretch the muscle may provide short-term symptom relief, but are harmful in the long term. Strengthening the muscle addresses the underlying cause and therefore is both more effective and less harmful over time.
21. Dr. Johansson would recommend heat and medications for short-term relief of Claimant’s symptoms.
22. Claimant has a home exercise program, as prescribed by her physical therapists in accordance with both Dr. Backus’ and Dr. Binter’s treatment recommendations. The program involves both stretching and strengthening exercises. Claimant testified that she does stretching exercises two or three times per week. It is unclear to what extent she performs the strengthening exercises.
23. Claimant has never missed any time from work as a result of her injury. She does not have any modified-duty work restrictions. Her work station at her current job assignment has been ergonomically designed and does not require her to maintain positions that aggravate her symptoms. Outside of work, Claimant continues to be active, and engages in activities such as cross-country skiing, snow shoeing and swimming. In all of these activities, and with prolonged sitting or driving as well, Claimant is never pain-free, but the pain is not disabling.
24. With both Dr. Kinley’s and Dr. Johansson’s reports as support, Defendant filed its notice of intention to discontinue payment for Claimant’s ongoing chiropractic care on September 21, 2006. The Department approved the discontinuance on October 2, 2006. Since that time, Claimant has incurred a total of $1,142.77 in charges for chiropractic treatment. Claimant testified that but for the discontinuance she would continue to treat with Dr. Faxvog every 6 to 8 weeks.
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25. Claimant introduced evidence of costs totaling $4.05.
CONCLUSIONS OF LAW:
1. Under Vermont’s Workers’ Compensation Act, an employer is obligated to provide reasonable surgical, medical and nursing services when an injury arises out of and in the course of employment. 21 V.S.A. §640(a). Chiropractic treatment is included in that obligation. Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000); Smith v. Whetstone Log Homes, Opinion No. 70-96WC (Nov. 25, 1996) and cases cited therein.
2. Once a claimant has established that she is entitled to benefits under the Act, the burden shifts to the employer to establish the propriety of either ceasing or denying further compensation. Merrill v. University of Vermont, 133 Vt. 101 (1974). At issue here, therefore, is whether the medical evidence supports Defendant’s position that it is no longer responsible for Claimant’s chiropractic care.
3. Palliative care is compensable under the Act even after a claimant has reached end medical result if it is reasonable and necessary and causally related to the compensable work injury. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 532 (1996); Gagne v. Verdelle Village, Opinion No. 35-04WC (Aug. 25, 2004); Quinn v. Emery Worldwide, supra.
4. In determining what is reasonable under §640(a), the decisive factor is not what the claimant desires or what she believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s symptoms and maintain her functional abilities. Moyer v. Miller Building Systems, Opinion No. 22-01WC (July 20, 2001); Colbert v. Starr Farm Nursing Home, Opinion No. 5-01WC (Feb. 26, 2001); Quinn v. Emery Worldwide, supra.
5. To evaluate the expert evidence and choose between conflicting expert opinions, the Department traditionally looks to the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience. Quinn v. Emery Worldwide, supra; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998).
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6. In the context of the current claim, examining these five factors does not yield any clear-cut result. All of the experts provided evidence that was clear, thorough and objectively supported by relevant treatment records. All are well qualified in their respective fields, whether orthopedic, chiropractic, neurological or osteopathic. With the exception of Dr. Kinley, whose opinion was based on a medical records review only, all conducted comprehensive examinations of Claimant. Last, as to patient-provider relationship, Drs. Faxvog, Backus and Flimlin all maintained one with Claimant. Given that both Drs. Backus and Flimlin shared the opinions of Drs. Kinley and Johansson as to ongoing chiropractic care, one cannot either add or subtract weight from the latter opinions solely because they were not treatment providers.
7. The disputed issue here derives from a professional difference of opinion as to the efficacy of long-term chiropractic care and repetitive chiropractic manipulations as a reasonable, necessary and effective option for controlling pain and maintaining functionality. Dr. Faxvog believes strongly that the best palliative treatment for Claimant should include chiropractic adjustments to stretch the neck muscles and increase mobility. In contrast, Drs. Backus, Flimlin, Kinley and Johansson believe that the long-term focus of Claimant’s palliative care should be on strengthening the muscles so as to reduce fatigue, decrease tightness and increase mobility in that way.
8. Dr. Johansson’s testimony that by stretching ligaments that are already lax, repetitive chiropractic manipulations cause long-term harm to patients with degenerative conditions such as Claimant’s is persuasive. A palliative treatment that provides temporary relief of symptoms and maintains functionality is reasonable, but only if it does not cause further harm over time. Quinn v. Emery Worldwide, supra.
9. It is clear from the medical records and from her own testimony that Claimant has never invested fully in the muscle strengthening approach advocated by Drs. Backus, Flimlin, Kinley and Johansson. Her efforts in that regard have been temporary, sporadic and short-lived. In contrast, her devotion to Dr. Faxvog’s passive stretching technique has become so strong that she now views his treatment as both essential and irreplaceable. While it is her right to choose the treatment approach with which she feels most comfortable, under the circumstances it is not Defendant’s responsibility to fund it.
10. Defendant has sustained its burden of proof that it is not liable under 21 V.S.A. §640(a) to continue to pay for Claimant’s chiropractic treatment.
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ORDER:
Accordingly, based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for medical benefits under 21 V.S.A. §640(a) is DENIED.
Because Claimant has not prevailed, her claim for costs associated with this action is DENIED.
Dated at Montpelier, Vermont this 3rd day of April 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.

M. B. v. Price Chopper (May 8, 2007)

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

STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 13-07WC
M. B. By: Phyllis Severance Phillips, Esq.
Hearing Officer
v.
For: Patricia Moulton Powden
Price Chopper Commissioner
State File No. L-03387
OPINION AND ORDER
Hearing held in Montpelier on November 8, 2006
APPEARANCES:
Thomas Bixby, Esq. for Claimant
Keith Kasper, Esq. and David Berman, Esq. for Defendant
ISSUES PRESENTED:
1. Whether Claimant’s neck and/or right shoulder symptoms are causally related to her compensable August 1, 1997 low back injury;
2. Whether Claimant is entitled to temporary disability benefits retroactive to May 14, 2006: and
3. Whether the medical treatment proposed by Claimant’s treating chiropractor is reasonably necessary and causally related to her compensable August 1, 1997 injury.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records (CD format)
Joint Exhibit II: Medical Records supplement
Claimant’s Exhibits:
Claimant’s Exhibit 2: Form 22 Agreement for Permanent Partial Disability Compensation
Claimant’s Exhibit 4: Claimant’s Paycheck for week ending 1/15/06 and Form 21 Agreement for Temporary Total Disability Compensation
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CLAIM:
Temporary total disability benefits under 21 V.S.A. §642;
Medical benefits under 21 V.S.A. §640(a);
Attorney’s fees and costs under 21 V.S.A. §678.
FINDINGS OF FACT:
1. Claimant has worked as a cashier for Defendant since 1995. On August 1, 1997 she suffered a low back strain when she “turned just right” while scanning a heavy item. Defendant accepted the injury as compensable and paid benefits accordingly.
2. Prior to this date, Claimant had never suffered any injuries to her low back. She elected to treat with Brenda Davis, D.C., a chiropractor. Claimant experienced stiffness while standing and her left leg was sore, but she was able to continue working.
3. On August 19, 1997 Claimant tripped while going up the stairs at work. She caught her fall by reaching for the railing, but in doing so bent her right hand and forearm back. She was diagnosed with a right forearm strain/sprain, which appeared to resolve fairly quickly.
4. Claimant treated conservatively for her low back strain. Dr. Davis prescribed a lumbar support and recommended that she not lift heavy objects at work. Radiological studies conducted in December 1997 showed a central herniation at L4-5 but with no nerve root encroachment and therefore questionable clinical significance.
5. In February 1998 Claimant underwent a course of physical therapy with Julie Emond, R.P.T. Ms. Emond reported that Claimant presented with symptoms consistent with her diagnosis of low back strain with herniation at L4-5 as well as weakness in her trunk and lower extremities due to disuse. Claimant made good progress with both physical therapy and home exercise. Upon her discharge from therapy in April 1998 Ms. Emond noted that there had been good improvement, although some symptoms did remain.
6. Neither Dr. Davis nor Julie Emond noted any pain, discomfort, reduced range of motion or other symptoms in Claimant’s neck or right shoulder related either to the August 1, 1997 work injury or to the August 19, 1997 fall on the stairs.
7. In June 1998 Claimant’s low back pain recurred and she returned to Dr. Davis for treatment. As a result of this recurrence, Claimant was temporarily disabled from working from June 18, 1998 until November 2, 1998.
8. Dr. Davis’ treatment notes during this time reflect that Claimant experienced muscle spasms in her lumbar, dorsal and cervical spine. This is the first mention of any symptoms in Claimant’s neck and/or shoulders.
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9. Claimant also underwent another course of physical therapy with Ms. Emond during this time. Ms. Emond noted pain in the central lower back area as well as aching in the legs, arms and shoulder blades.
10. In October 1998 Defendant referred Claimant to Jon Thatcher, M.D. for a second opinion regarding her chronic low back pain. Dr. Thatcher diagnosed chronic low back pain presumably from degenerative L4-5 discs, or perhaps chronic muscle injury. For treatment, he advised Claimant to continue her home exercise program and also prescribed a lumbo-sacral corset for her to wear if necessary. Dr. Thatcher released Claimant to return to work with lifting restrictions. Last, he determined that Claimant had reached an end medical result and rated her with a 5% whole person permanent impairment.
11. Dr. Thatcher’s report made no mention of any shoulder or neck symptoms, either subjectively reported or objectively observed.
12. In February 1999 the parties executed a Form 22 Agreement for Permanent Partial Disability Compensation and Defendant paid permanency benefits in accordance with Dr. Thatcher’s 5% impairment rating.
13. Claimant did reasonably well with her return to work. Her symptoms waxed and waned, and she often experienced increased pain at the end of her shift, particularly on busy days. Presumably these symptoms were not severe enough to warrant medical attention. Claimant did not treat for any low back, leg, upper extremity or neck pain from December 1998 until February 2000.
14. On February 18, 2000 Claimant returned to Dr. Davis for chiropractic treatment relating to pain in her back, neck, legs and arms. Dr. Davis noted that Claimant gradually had stopped doing her home exercise program, and that her arms ached, especially in the morning. On examination, Dr. Davis found that Claimant was very stiff and tender in her neck and anterior shoulders.
15. Dr. Davis did not provide any ongoing treatment beyond the single visit on February 18th, but she did issue a written recommendation to Defendant that Claimant have a bagger to assist her for the next month, and thereafter “as often as possible.” In June, Dr. Davis supplemented this recommendation, advising that Claimant should alternate sitting and standing at the cash register.
16. There are no records of any medical treatment for Claimant’s low back, shoulder or neck from February 2000 until January 2002. In January 2002 Claimant began another course of physical therapy with Julie Emond, R.P.T., apparently at the referral of Tony Blofson, M.D. Ms. Emond reported that Claimant presented with a two-month history of increased cervical pain and limitation “without specific cause.” According to Ms. Emond, x-rays taken in November 2001 revealed degenerative disc disease of the cervical area. Ms. Emond noted that Claimant exhibited poor postural alignment and decreased range of motion in her neck and right shoulder. She was tender and tight throughout her right upper extremity.
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17. Ms. Emond reported in her January 11, 2002 treatment note that Claimant “feels that working at both jobs which requires increased arm movement has been part of the aggravation.” I find that the second job to which this note refers most likely was the part-time work Claimant performed for a time at a local dry cleaner. During this time Claimant worked 5 days per week for Defendant, and the other 2 days per week at the dry cleaner. Her duties there included marking, ironing and organizing shirts, all activities that would have required increased use of her right arm.
18. Claimant improved with physical therapy. Her pain decreased, her shoulder range of motion returned to normal and she was able to perform activities of daily living without difficulty. Claimant was discharged from physical therapy in February 2002. According to Ms. Emond, her prognosis for maintenance of improvements was good so long as she continued with her home exercises and self-care program.
19. Claimant did not treat for low back, neck or shoulder pain from February 2002 until May 2003. In February 2003 she presumably was examined by Denise Paasche, M.D., who issued a prescription pad note recommending that “due to a diagnosis of degenerative disc disease in her neck” Claimant should have a bagger to assist her with heavy lifting at work.
20. In May 2003 Claimant resumed chiropractic treatment with Dr. Davis. Dr. Davis reiterated her prior recommendations as to necessary workplace accommodations – that Claimant be provided with both a bagger to assist with heavy lifting and a stool so that she could alternate sitting and standing as necessary.
21. Claimant treated with Dr. Davis until October 2003, although the records do not reflect specifically what area(s) of pain, reduced range of motion or other symptoms were addressed.
22. In July 2004, at Defendant’s request, Claimant underwent an independent medical evaluation with Terrance Ryan, D.C. Dr. Ryan noted Claimant’s complaints of low back pain with occasional spasms and mild numbness into the tops of her legs, but did not mention any complaints of pain, limitation or reduced range of motion in Claimant’s neck, shoulder or upper extremities. Dr. Ryan diagnosed chronic recurrent L4-5 discopathy and rated Claimant with an 8% whole person permanent impairment referable to her lumbar spine. As for job accommodations, Dr. Ryan recommended that Claimant avoid heavy lifting and repetitive bending or twisting. Last, in an addendum to his initial report, Dr. Ryan advised that further treatment should focus on an active spinal stabilization program, either supervised or at home, to reduce the need for more passive, in-office treatments.
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23. On her attorney’s advice, in November 2004 Claimant obtained another impairment rating, this time performed by John Chard, M.D., an orthopedic surgeon. Dr. Chard’s report was consistent with Dr. Ryan’s, particularly in that there was no mention of any complaints of pain, reduced range of motion or other symptoms in Claimant’s neck, shoulders or upper extremities. Dr. Chard diagnosed a midline herniation of the L4-5 disc and concurred with Dr. Ryan’s 8% permanent impairment rating. Dr. Chard recommended against further chiropractic treatment, as it did not appear to be helpful. Instead, he suggested that Claimant might try pharmaceutical medications for pain relief.
24. Claimant elected not to follow Dr. Chard’s treatment recommendations, and opted instead for further chiropractic care, this time with Elizabeth Gillespie, D.C. In sharp contrast to the complaints she reported to both Dr. Ryan and Dr. Chard, the pain diagram Claimant completed upon her initial evaluation with Dr. Gillespie, just 2 weeks prior to Dr. Chard’s examination, reflected her complaints of moderately intense pain from her mid-back down through both lower extremities, as well as pain in her neck, shoulders and forearms.
25. Claimant has treated regularly with Dr. Gillespie from November 2004 until the present time. Her complaints have waxed and waned, and Dr. Gillespie’s treatments – manipulations, soft tissue massage, ultrasound and other passive modalities – have been directed at symptoms in her low back, legs, neck and right shoulder. In Dr. Gillespie’s opinion, all of Claimant’s symptoms are directly related to her August 1, 1997 work injury. According to Dr. Gillespie, the disc herniation in Claimant’s lower back causes pressure on her sciatic nerve. To relieve the pressure, Claimant has altered her posture by leaning forward. This altered postural pattern has caused increased stress to her neck and shoulders. Cumulative trauma related to the repetitive arm movements necessitated by Claimant’s work as a cashier also has contributed. Over time, bone spurs have formed in Claimant’s neck.
26. On January 13, 2006 Claimant reported to Dr. Gillespie that she was going to see her medical doctor because she was unable to raise her right arm. On January 14, 2006 Claimant presented to the Brattleboro Memorial Hospital Emergency Room with a chief complaint of right shoulder pain. She was tearful and extremely anxious. On examination, both paraspinal and trapezius muscle spasms were noted, as well as decreased range of motion due to pain. She was prescribed valium for pain and advised to follow up with her physician.
27. On January 16, 2006 Claimant followed up with Dr. Blofson. Dr. Blofson noted low back pain and both weakness and reduced range of motion in the right shoulder. He reported that Claimant advised that her pain was not changed by working. Dr. Blofson stated that although Claimant ascribed her shoulder pain to her long-standing chronic low back problem, he disagreed with that assessment. Dr. Blofson determined that Claimant was unable to work due to her right shoulder problem. He advised her to stop chiropractic treatment and referred her to Dr. Kinley for an orthopedic assessment of her right shoulder.
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28. Donald Kinley, M.D., an orthopedist, examined Claimant on January 17, 2006. He diagnosed right shoulder calcific tendonitis. Dr. Kinley treated Claimant with a corticosteroid injection. Immediately thereafter Claimant reported 90% pain relief and was able to both raise her arm overhead and rotate it as well. Dr. Kinley advised that Claimant would be able to return to work within the next day or two.
29. At her attorney’s suggestion, Dr. Chard evaluated Claimant on February 13, 2006 specifically for the purpose of determining whether her shoulder problems were causally related to her August 1, 1997 low back injury. Dr. Chard reviewed the available medical records and also examined Claimant. Having done so, he found no evidence that her current problem, right shoulder calcific tendonitis, was in any way related to her 1997 low back injury.
30. In March 2006 Claimant underwent another orthopedic evaluation, this time at Dr. Blofson’s referral, with Elizabeth McLarney, M.D. Dr. McLarney’s diagnosis, consistent with Drs. Kinley and Chard, was right shoulder calcific tendonitis. Dr. McLarney noted that Claimant had some radicular pain, particularly in her right arm, but could not determine whether this represented cervical radiculopathy or not.
31. At Defendant’s request, on April 3, 2006 Claimant underwent an independent medical evaluation with George White, M.D., an occupational medicine specialist. Dr. White concurred with the diagnosis of right shoulder calcific tendonitis. He stated that this was a separate problem, unrelated to Claimant’s low back pain or lumbar disc disease. In Dr. White’s opinion, although it is common for patients who suffer from degenerative disc disease in their lower backs to suffer from a similar degenerative process in their upper backs and/or necks as well, one does not in any way cause the other.
32. Dr. White did not observe any symptoms consistent with cervical radiculopathy in his examination of Claimant. He admitted, however, that the focus of his examination was on Claimant’s lumbar spine, not her cervical spine. At the formal hearing, Dr. White testified that Claimant did not exhibit or complain of the muscle weakness or pattern of sensory loss that most commonly is associated with cervical radiculopathy.
33. As to treatment of the low back, Dr. White strongly urged consideration of a multidisciplinary rehabilitation program, particularly one with a strong educational component, as he found that Claimant lacked understanding as to the nature of her low back condition and the symptoms it might (and might not) cause. Dr. White’s treatment approach would emphasize active rather than passive modalities, and would include strength training, walking and aerobic conditioning in addition to biofeedback and pain management strategies. Dr. White strongly advised against any type of cervical spine manipulation for fear that it might cause further injury.
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34. Dr. Gillespie’s treatment approach stands in sharp contrast to Dr. White’s recommendations. In addition to the passive modalities she has been providing since 2004 – chiropractic manipulations, soft tissue massage and ultrasound – most recently Dr. Gillespie has recommended a course of treatment with a spinal decompression unit. The goal of this treatment is to enlarge the disc spaces and relieve nerve pressure, thereby reducing the extent of any herniations and allowing the outer ligaments to be strengthened. At the time of the formal hearing, Dr. Gillespie had been using the unit on some of her patients for more than three months, and had observed excellent results.
35. It is not clear to what extent treatment with the decompression unit proposed by Dr. Gillespie is effective on patients whose pain is caused by bone spurs rather than those who suffer from disc herniation and/or nerve root impingement.
36. Drs. Gillespie and White also disagree as to Claimant’s current work capacity. Consistent with his belief that the best way to treat chronic low back pain is to encourage more rather than less activity, Dr. White has recommended that Claimant return to work in a light duty capacity, with restrictions against heavy lifting, bending or twisting. In contrast, Dr. Gillespie maintains that due to the combination of symptoms in her lower back, neck, arms and shoulders Claimant is unable to work at all.
37. In June 2006 Claimant underwent both cervical and lumbar spine MRI evaluations. The cervical spine MRI revealed degenerative discs and bone spurs at both C4-5 and C5-6. The lumbar spine MRI showed a central disc bulge at L4-5 and a rupture of the annulus fibrosis, but with no evidence of any significant impingement on the thecal sac or exiting nerve roots.
38. It is unclear to what extent Defendant has or has not complied with the various work restrictions and accommodations suggested by Claimant’s treatment providers since her August 1, 1997 injury. On several occasions Dr. Davis accused Defendant of aggravating Claimant’s condition by failing to provide necessary accommodations. Claimant admitted, however, that on many occasions she chose not to ask for accommodations for fear of upsetting her manager.
39. In May 2006 Defendant filed a Form 27 Notice of Intention to Discontinue Payments. Defendant argued that Claimant had failed to accept modified-duty work in accordance with Dr. White’s IME recommendations, thus terminating her right to ongoing temporary disability benefits. Defendant further argued, again on the basis of Dr. White’s report, that Claimant was not entitled to medical benefits for treatment of her right shoulder as that condition was not related causally to her compensable low back injury. The Department approved the Form 27 on May 16, 2006.
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40. That Claimant is a poor historian and that she is notably inconsistent with respect to the nature and extent of her symptoms is well documented in the medical records. At times she recalled that she first injured her shoulder when she tripped going up the stairs at work on August 19, 1997, although the medical records reflect only a minor forearm strain. At times she reported debilitating neck and shoulder pain, and then only days later failed to report any pain at all in these areas. At the formal hearing she testified to a specific event at work – lifting and then dropping a gallon container of milk – that caused her shoulder to become frozen on January 14, 2006. There is no such history reported in the medical records, however, and in fact Claimant already had advised her chiropractor on the day before that she planned to see her medical doctor because she could not lift her arm. These discrepancies make it difficult to determine when various symptoms arose and to what extent, if any, they were related to work activities.
CONCLUSIONS OF LAW:
Compensability of Neck and/or Shoulder Injury
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 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 probably 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 trier of fact may not speculate as to an obscure injury which is beyond the ken of laymen. Laird v. State Highway Department, 110 Vt. 981 (1938). Where the Claimant’s injury is obscure, and a layman could have no well grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for compensability. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979); Jaquish v. Bechtel Corp., Opinion No. 30-92WC (Dec. 29, 1992).
3. In this case, Claimant has alleged a variety of possible work-related causes for her neck and/or right shoulder symptoms, including (a) a traumatic injury caused when she tripped going up the stairs at work on August 19, 1997; (b) a traumatic injury caused when she dropped a gallon jug of milk at work on January 14, 2006; (c) cumulative trauma caused by the altered posture that resulted from her August 1, 1997 compensable low back injury; and/or (d) cumulative trauma caused by the repetitive arm movements involved in performing the job-related functions of a supermarket cashier.
4. As to the first possible cause, there is no evidence in any of the medical records to substantiate a neck or shoulder injury occurring on August 19, 1997. Dr. Davis was Claimant’s treating physician at the time, and her notes reflect only a minor forearm strain that resolved within a week’s time.
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5. As to the second possible cause, there is no medical evidence to connect Claimant’s neck and/or right shoulder injury to any specific incident occurring at work on January 14, 2006. In fact, Dr. Gillespie’s treatment notes reflect that Claimant was exhibiting signs of a frozen shoulder on the day before the alleged incident at work. The subsequent records relating to Claimant’s frozen shoulder, including those from the hospital emergency room and from Drs. Blofson, Kinley, Chard and Gillespie, make no mention of any incident at work involving a dropped gallon jug of milk. Without any such support in the medical records, Claimant’s account of this incident must be rejected as unreliable.
6. As to the possibility that cumulative trauma, related either to the August 1, 1997 low back injury or to her job as a cashier, has caused Claimant’s neck and/or shoulder injury, the expert medical opinions are conflicting. In these instances, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive, considering (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).
7. In this case, a wide variety of medical practitioners have voiced opinions as to the cause of Claimant’s neck and shoulder pain. Some are chiropractors, some are orthopedists, some have examined Claimant only once and some have enjoyed a long-standing treatment relationship with her, some can be identified as her own experts and some are Defendant’s. With this array of expert opinions to consider, analyzing each of the above factors individually will yield no clear-cut result. Simply put, the key question is which expert medical opinion is the most credible?
8. I conclude that the most credible medical evidence establishes that Claimant suffers from calcific tendonitis in her right shoulder and degenerative disc disease in her neck. Both of these conditions are degenerative biochemical processes. They can be caused or aggravated by numerous factors, including aging, repetitive stress, altered posture or reduced activity. To puzzle out which of these factors are at play in Claimant’s case requires more than supposition or hypothesis. It requires close scrutiny and scientific examination of all of the available evidence.
9. Dr. Gillespie’s theory of causation does not withstand such scrutiny. There was no evidence that she ever visited Claimant at her work site, or that she performed any kind of functional analysis of Claimant’s cashiering job. Had she done so, her conclusion that Claimant’s neck and shoulder problems were caused by repetitive arm movements at work might have been persuasive. Without such evidence, they are just one of many possible hypotheses, not the most probable one.
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10. Dr. Gillespie’s theory that Claimant’s neck and shoulder problems are most likely the result of altered posture due to her low back injury is also unconvincing. It must be noted, first of all, that Dr. Gillespie stands alone in this opinion, Drs. Blofson, Kinley, Chard, McLarney and White all having concluded that Claimant’s neck and right shoulder complaints were unrelated to her low back injury. More importantly, there is no basis for concluding that the degeneration in Claimant’s neck and shoulders is most probably due to this cause as opposed to the myriad of other possible causes for degeneration to occur.
11. I conclude, therefore, that Claimant has not sustained her burden of proving that her neck and shoulder complaints were caused or aggravated either by her work for Defendant or by her compensable low back injury.
Temporary Total Disability
12. It is important to note that Claimant’s most recent period of disability, which began in January 2006, stemmed not from her low back injury, but from her frozen right shoulder. Given my conclusion that Claimant’s neck and right shoulder complaints are not compensable, the only way she can qualify for temporary disability benefits is if her current inability to work, whether total or partial, is due at least in part to her compensable low back injury.
13. I find Dr. White’s opinion as to work capacity to be more credible than Dr. Gillespie’s in this regard. Even according to Dr. Gillespie’s description, Claimant does not appear to be so debilitated as to be incapable of performing even the lightest duty work, so long as appropriate accommodations are provided and proper precautions against re-injury are taken. Should a formal functional capacities evaluation be necessary in order to determine how best to proceed in this regard, then Defendant is well-advised to take that step.
Appropriate Medical Treatment
14. Last, I must determine which is the most appropriate treatment path for Claimant’s chronic low back injury – the spinal decompression approach advocated by Dr. Gillespie, or the multidisciplinary rehabilitation program recommended by Dr. White.1
1 It is unclear from either the parties’ pre-hearing statements or their post-hearing briefs whether Defendant is contesting the efficacy of the proposed spinal decompression unit solely with respect to treatment of Claimant’s neck and/or shoulder symptoms or with respect to treating her compensable lower back injury as well. Dr. Gillespie testified at the formal hearing that she planned to use the unit to treat both the cervical and lumbar spine. Dr. White testified that a multidisciplinary rehabilitation program would be a more effective treatment for Claimant’s low back injury, and that it offered benefits for her neck and upper extremity complaints as well. Given the testimony presented as to the appropriate treatment for Claimant’s cervical spine complaints as well as her lumber spine injury, I find there is sufficient evidence from which to determine the extent to which the proposed spinal decompression treatment is likely to be efficacious in either area.
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15. Dr. Gillespie’s treatment plan is problematic in two respects. First, it centers on a spinal decompression unit that is new, experimental and largely untested. Although Dr. Gillespie testified to having witnessed largely positive results in the three months since she began using the unit, this is too short a time frame within which to evaluate fully the merits of such a treatment, and particularly whether it produces long-lasting or merely temporary relief of symptoms.
16. Secondly, to the extent that Dr. Gillespie’s treatment plan incorporates the same type of passive treatment modalities that Claimant has long been receiving, clearly these have proven ineffective in terms of controlling her pain or improving her functional capacities. Will adding the spinal decompression unit to this mix of passive modalities produce better results? From the evidence presented, I cannot so conclude.
17. I find that the multidisciplinary rehabilitation approach advocated by Dr. White is more likely to lead Claimant back to an active life and productive work. It incorporates such elements as active physical therapy, strengthening and aerobic conditioning. As such, its focus is similar to the physical therapy and home exercise programs Claimant underwent in the past, both of which proved effective in controlling her pain and maintaining her functional abilities.
18. In addition, by providing education as to the anatomical bases for Claimant’s symptoms as well as training in biofeedback and other pain management strategies, a multidisciplinary approach offers a more realistic way of dealing with the type of chronic pain from which Claimant suffers, whether the source of that pain is in her low back or in her neck or shoulders. As such, Dr. White’s approach is more likely to lead to functional restoration of Claimant’s “whole person.”
19. For these reasons, I find that the spinal decompression treatment program proposed by Dr. Gillespie does not constitute reasonably necessary treatment under 21 V.S.A. §640(a).
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ORDER:
1. Claimant’s claim for workers’ compensation benefits associated with her neck and/or right shoulder symptoms is DENIED;
2. Claimant’s claim for temporary total disability benefits retroactive to May 14, 2006 is DENIED;
3. Claimant’s claim for medical benefits in accordance with the treatment program proposed by Dr. Gillespie is DENIED;
4. Because Claimant has not prevailed, she is not entitled to an award of attorney’s fees or costs under 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of May 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.

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

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Richard Marsha v. New England Construction (February 10, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Richard Marsha Opinion No. 06-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
New England Construction
For: Patricia Moulton Powden
Commissioner
State File No. W-07098
RULING ON CLAIMANT’S MOTION FOR RECONSIDERATION OF DISCONTINUANCE
APPEARANCES:
Frank Talbott, Esq, for Claimant
David Berman, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s failure to attend a scheduled functional capacities evaluation an appropriate basis for discontinuing his medical and vocational rehabilitation benefits?
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant suffered a work-related injury on April 6, 2005. He was treated for his injury, eventually reached an end medical result and was assessed a permanency rating in 2007.
4. As part of Claimant’s 2009 vocational rehabilitation efforts, Defendant scheduled a functional capacities evaluation. Claimant failed to attend. Another was scheduled and again Claimant failed to appear. In each case Claimant’s failure to attend was due to a breakdown in communication rather than any purposeful refusal.
5. Due to Claimant’s failure to attend the scheduled evaluations, Defendant filed a Form 27, successfully discontinuing Claimant’s medical and vocational rehabilitation benefits effective May 19, 2009.
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6. On June 16, 2009 Claimant attended a rescheduled functional capacities evaluation. Defendant immediately reinstated his medical and vocational rehabilitation benefits. In the interim, the Department had ordered Defendant to continue paying for Claimant’s medications, pending a safe taper plan. Defendant also agreed to pay for a previously scheduled meeting between Claimant and his vocational rehabilitation counselor. Claimant did, however, have to forego various medical and physical therapy appointments during the suspension period.
DISCUSSION:
1. As support for its discontinuance of benefits Defendant relies on 21 V.S.A. §655. That statute allows for a claimant’s workers’ compensation benefits to be suspended during any period in which he or she “refuses to submit . . . to or in any way obstructs” an employer-scheduled medical examination.
2. Claimant argues that a functional capacities evaluation is not a medical examination and therefore is not covered by §655. Claimant contends there is no statutory authority for Defendant to have suspended benefits in this case.
3. I do not read the statute so narrowly. Particularly in the context of vocational rehabilitation, a functional capacities evaluation provides both parties with critical information so that the return-to-work process can move forward as expeditiously as possible. A claimant who refuses to submit to such an evaluation can sabotage the system just as effectively as one who obstructs an independent medical examination.
4. I recognize that in this case Claimant’s refusal to attend was inadvertent, not intentional. Other claims might present circumstances in which it would be inappropriate to suspend benefits for such inadvertent behavior. Given the respective rights and responsibilities that our workers’ compensation law accords to both workers and employers, however, the fact that the missed appointment is a functional capacities evaluation rather than a medical examination probably will not be dispositive.
ORDER:
For the foregoing reasons, Claimant’s Motion for Reconsideration of Discontinuance is hereby DENIED.
Dated at Montpelier, Vermont this 10th day of February 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Jeffrey Marshall v. State of Vermont, Vermont State Hospital (January 25, 2011)

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Jeffrey Marshall v. State of Vermont, Vermont State Hospital (January 25, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeffrey Marshall Opinion No. 01-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont,
Vermont State Hospital For: Anne M. Noonan
Commissioner
State File No. S-22038
OPINION AND ORDER
Hearing held in Montpelier, Vermont on October 6, 2010
Record closed on November 12, 2010
APPEARANCES:
Patricia Turley, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional permanent partial disability and/or medical benefits referable to his June 2002 compensable work injury?
2. Did Defendant fail to give Claimant proper notice of its denial of various medical bills, and if yes, is Defendant thereby obligated to pay?
3. Is Defendant entitled to apportionment of any permanent partial impairment on account of Claimant’s 1989 and/or 1997 injuries?
4. Is Claimant barred by the statute of limitations from seeking additional permanent partial disability benefits referable to his 2002 injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Letter from Tim Vincent, August 7, 2003
Claimant’s Exhibit 2: Vocational Rehabilitation Progress Report, March 31, 2004
Claimant’s Exhibit 3: Letter from Susan Drapp, RN, March 28, 2005
Claimant’s Exhibit 4: Letter from Bruce Chenail (with attachments), August 1, 2005
Claimant’s Exhibit 5: Letter to Department (with attachments), September 6, 2005
Claimant’s Exhibit 6: Curriculum vitae, Sikhar Banerjee, M.D.
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Defendant’s Exhibit A: Form 22 approved February 3, 2004
Defendant’s Exhibit B: Form 22 approved December 28, 1993
Defendant’s Exhibit C: Deposition of Dr. William Boucher, September 29, 2010
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Permanent partial disability benefits pursuant to 21 V.S.A. §648
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 and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (5th ed.) (hereinafter the “AMA Guides”).
3. Claimant was employed by Defendant as a ward aide. On June 6, 2002 he was assisting a co-employee to restrain a self-abusive patient. At one point the patient lifted both legs off the floor, requiring Claimant and the co-employee to support his entire weight. Claimant felt the immediate onset of low back pain, with sciatic pain radiating down both legs.
Claimant’s Prior Low Back Injuries
4. At the time of this injury Claimant already had suffered three previous work-related low back injuries. The first one occurred in 1987. While working for a prior employer, Claimant experienced low back pain and radicular symptoms down his left leg as a result of a forklift accident. He was diagnosed with a significant left-sided L5-S1 disc herniation, for which he underwent surgery in 1989. The surgery went well, and aside from some minor residual numbness in his left foot Claimant’s symptoms completely resolved. He resumed his regular activities without restriction, both at work and recreationally. The latter included hunting, fishing, working on his land and other outdoor pursuits.
5. Claimant was not rated for his permanent impairment following the 1987 injury and subsequent surgery. He did not seek, and was not paid, any permanent partial disability benefits as a result.
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6. The second injury occurred in 1992, when Claimant lifted a heavy patient while at work for Defendant. He experienced the same symptoms he had suffered as a result of the 1987 injury – low back pain and radicular symptoms down his left leg – and was diagnosed with a recurrent disc herniation at L5-S1, the same disc that had ruptured previously. Again Claimant underwent disc surgery, and again his symptoms almost completely resolved, allowing him to resume both recreational and work activities without restriction.
7. Having reached an end medical result for his 1992 injury, in November 1993 Claimant’s treating surgeon rated him with a 10% permanent impairment of the spine. Defendant accepted this rating and paid permanent partial disability benefits accordingly. In doing so it made no attempt to determine whether some portion of Claimant’s permanent impairment should have been allocated back to his 1987 injury.
8. Claimant injured his back for the third time in June 1997, again while working with a patient in the course of his employment for Defendant. As before, his symptoms included low back pain and radicular symptoms down his left leg. Once again, Claimant was diagnosed with a recurrent disc herniation at L5-S1, for which he underwent surgery and then successfully recovered.
9. Claimant was not rated for his permanent impairment after the 1997 injury, and was not paid any permanent partial disability benefits referable to it.
Claimant’s Medical Course Following the June 2002 Low Back Injury
10. Claimant’s symptoms following the June 2002 injury were different from those he had experienced after any of his three previous injuries. Whereas the predominant symptoms after his prior injuries were radicular pain, numbness and tingling down his left lower extremity, this time Claimant’s low back pain was predominant, and his radicular symptoms were both left- and right-sided.
11. Claimant treated with Dr. Cyr, a chiropractor, following his 2002 injury. Diagnostic x-rays taken shortly after the event showed mild degenerative changes at L4, L5 and S1. A July 2002 MRI study revealed a small recurrent left-sided disc herniation at L5-S1, but did not note abnormalities at any other level. Specifically, the study did not mention any findings whatsoever at the L4-5 level.
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12. Claimant opted not to treat surgically for his 2002 injury. Dr. Tranmer, a spine surgeon with whom he consulted in August 2002, remarked that as he was managing “reasonably well” with exercises and chiropractic care, surgery to remove the recurrent disc herniation likely was not necessary. Dr. Krag, the surgeon who had treated Claimant following his 1997 injury, concurred with this assessment. In his opinion, it was unlikely that Claimant’s symptoms were associated with the July 2002 MRI findings. It was more likely that the June 2002 incident caused a muscle strain or ligament injury, and that Claimant’s current symptoms were attributable to resulting back spasms, perhaps also with a component of disc degeneration. Rather than surgery, therefore, as treatment Dr. Krag recommended physical therapy and home exercises aimed at strengthening Claimant’s back.
13. Given Claimant’s extensive history of low back injuries and surgeries, Dr. Tranmer, Dr. Krag and Dr. Cyr all recommended as well that Claimant not return to his prior job and that instead he seek less physically demanding work. The results of a January 2003 functional capacities evaluation indicated likewise.
14. Claimant treated regularly with Dr. Cyr throughout the fall and winter of 2002, and also underwent a course of physical therapy. On February 24, 2003 Dr. Cyr determined that Claimant had reached the point of maximum medical improvement, or end medical result. As discussed further infra, using the fifth edition of the AMA Guides Dr. Cyr rated Claimant with an 8% whole person impairment referable to the spine.
15. Unlike his course following his previous injuries, after reaching an end medical result for his 2002 injury Claimant still experienced lingering low back pain and radiculopathy. Having been advised not to return to his prior job, he was frustrated in his efforts to find suitable alternative work. He also was frustrated by his inability to resume the recreational activities he had enjoyed in the past.
16. Claimant voiced his frustration to Dr. Curchin, his primary care physician, at various times in 2004. At Dr. Curchin’s referral, he underwent an MRI study in November 2004 and then consulted with Dr. Grzyb, a spine specialist, in March 2005. The MRI revealed chronic changes at L5-S1, the site of Claimant’s previous disc injuries and surgeries. It also showed a disc protrusion at L4-5, possibly affecting the right L5 nerve root. This was a new finding, one that had not been evident at the time of Claimant’s July 2002 MRI. Notably, the possibility of right L5 nerve root irritation is consistent with Claimant’s right-sided radicular symptoms.
17. At Dr. Grzyb’s referral, in April 2005 Claimant underwent an evaluation with Dr. Borrello, a pain management specialist. Dr. Borrello suggested injection therapy, but Claimant was not interested, such treatments having proved ineffective in conjunction with one of his prior low back injuries. Instead he opted for medication as his primary pain management tool.
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18. Claimant continues to use prescribed medications for pain relief. Other than that, the medical records do not reflect that he has treated actively for his ongoing symptoms since 2005. His pain significantly limits his activities, and has continued to worsen in the years since Dr. Cyr declared him at end medical result. Claimant still has not returned to work.
The February 2004 Permanency Agreement
19. As noted above, Finding of Fact No. 14 supra, after determining that Claimant had reached an end medical result for his June 2002 injury, in February 2003 his treating physician, Dr. Cyr, rated him with an 8% whole person impairment referable to the spine. Both Claimant and Defendant accepted this permanency rating and entered into an Agreement for Permanent Partial Disability Compensation (Form 22) in accordance with it. As part of the agreement, the parties acknowledged that Claimant previously had been compensated for a 10% impairment of the spine in conjunction with his 1992 injury, see Finding of Fact No. 7 supra. That impairment having been calculated according to an earlier version of the AMA Guides, it was converted under the current version to a 6% whole person impairment. As mandated by statute, 21 V.S.A. §648(d), the parties then agreed to subtract that amount from the 8% that Dr. Cyr had rated, leaving 2% still owed as attributable to the June 2002 injury.
20. The Department approved the parties’ Form 22, and thus awarded Claimant permanency benefits equating to a 2% whole person impairment on February 3, 2004. Defendant timely paid these benefits.
21. At no time during the process of rating or paying the permanency due Claimant on account of his 2002 injury did Defendant raise the issue whether it was entitled to further apportionment of Dr. Cyr’s 8% rating on account of any permanency that might have been attributable to Claimant’s 1987 and/or 1997 injuries. Nor did Claimant investigate whether in fact he might have been owed additional permanency as a consequence of those injuries.
Defendant’s Denial of Payment for Drs. Grzyb and Borrello Evaluations
22. As noted above, Findings of Fact Nos. 16 and 17 supra, in March and April 2005 Claimant underwent evaluations with Dr. Grzyb, a spine specialist, and Dr. Borrello, a pain management specialist. The reason for these evaluations was to determine what, if any, additional treatments might prove effective at managing Claimant’s back pain and associated symptoms. Defendant denied payment of both bills on the grounds that the evaluations were not causally related to the June 2002 injury, but rather were for the purpose of supporting Claimant’s application for social security disability benefits. I find that although this issue may have been discussed, it was not the primary purpose of either doctor’s evaluation.
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23. Defendant’s denials, which were dated in August and September 2005 respectively, were issued well outside the 30-day time limit for either accepting or denying workers’ compensation-related medical bills under Workers’ Compensation Rule 40.021(C). In addition, Defendant mistakenly addressed both denials. As a result, Claimant did not receive either of them and therefore was not seasonably apprised of Defendant’s action. I find that Defendant had Claimant’s correct mailing address in its possession, and particularly when one of the denials was returned stamped “unable to forward,” it should have realized its mistake and acted to correct it. By its failure to do so, I find that Claimant was prejudiced in his ability to appeal Defendant’s determination.
24. It is unclear from the record whether these bills were paid by other insurance, whether Claimant himself paid them, or whether they remain unpaid to date.
Expert Opinions as to Claimant’s Permanent Impairment
25. Claimant has undergone three evaluations directed at assessing the extent of his permanent impairment following the June 2002 injury. As noted above, Finding of Fact No. 14 supra, Dr. Cyr rated Claimant’s permanent impairment in February 2003, after determining that he had reached an end medical result for the 2002 injury. At his attorney’s referral in July 2008, and as revised in August 2010, Dr. Banerjee rendered a second impairment rating. Last, at Defendant’s referral Dr. Boucher issued a third permanency rating in March 2010. In deriving their ratings, each doctor reviewed Claimant’s medical history, conducted his own evaluation and applied his findings in accordance with his particular interpretation of the AMA Guides.
(a) General Rating Principles under the AMA Guides
26. The AMA Guides provide two alternative methods for calculating permanent impairment referable to the lumbar spine. Under the “Diagnosis-Related Estimates” (DRE) method, the permanency rating is derived by assigning an individual to one of five categories of impairment based on his or her symptoms, signs and diagnostic test results. AMA Guides §15.3 at p. 381 and §15.4 at p. 384. Under the “Range of Motion” (ROM) method, in addition to considering the individual’s diagnosis, both range of motion deficits and nerve root impairment are factored in as well. Id. at §15.8 et seq. Particularly with respect to quantifying an individual’s range of motion, the Guides give specific instructions so as to ensure that all of the measurements used are valid and reproducible. This includes allowing the patient adequate opportunity to warm up prior to taking any measurements, requiring that measurements be discarded if they change substantially with repeated efforts, and taking care that the measurement device is properly positioned on the spine. Id. at §§15.8a and 15.8b.
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27. The AMA Guides direct evaluators to use the DRE method as the “principal methodology” for rating impairment due to a distinct injury. Id. at §15.2, p. 379. In some situations, however, the ROM method is preferable. For example, where there is multilevel involvement in the same spinal region (such as multiple lumbar disc herniations), or where there is recurrent radiculopathy caused by a recurrent disc herniation or injury, the Guides direct that the ROM method be used. Id. at p. 380. Last, recognizing that there exist some instances in which either method might be appropriate, the Guides direct the evaluator to use whichever one will yield the higher rating. Id.
28. As for apportioning impairment between a current and a prior injury, the Guides first acknowledge that “most states have their own customized methods for calculating apportionment.” Id. at §1.6b, p. 12. An examiner must therefore defer to the “jurisdiction practices” that will apply given the particular context in which an impairment rating is to be considered. Id. at §15.2a, p. 381. Within that framework, the Guides instruct as follows:
If requested, apportion findings to the current or prior condition, following jurisdiction practices and assuming adequate information is available on the prior condition. In some instances, to apportion ratings, the percent impairment due to previous findings can simply be subtracted from the percent based on the current findings. Ideally, use the same method to compare the individual’s prior and present conditions. If the ROM method has been used previously, it must be used again. If the previous evaluation was based on the DRE method and the individual now is evaluated with the ROM method, and prior ROM measurements do not exist to calculate a ROM impairment rating, the previous DRE percent can be subtracted from the ROM ratings. Because there are two methods and complete data may not exist on an earlier assessment, the apportionment calculation may be a less than ideal estimate.
Id.
(b) Dr. Cyr’s Impairment Rating
29. Dr. Cyr specifically referenced the DRE method as the basis for the 8% impairment rating he calculated in February 2003. Notably, at the time of Dr. Cyr’s rating there was not yet any indication that Claimant’s L4-5 disc was in any way contributing to his symptoms, and therefore presumably no basis yet existed for discarding the DRE method due to multilevel disc involvement. AMA Guides at p. 380, see Finding of Fact No. 27 supra. Similarly, although Dr. Cyr was well aware at the time that Claimant previously had suffered recurrent disc herniations at the L5-S1 level, there was no mention in his report of recurrent radiculopathy. Id. With this in mind, it is by no means clear from the evidence presented that Dr. Cyr was wrong to have used the DRE method given Claimant’s symptoms, signs and diagnostic test results as of February 2003.
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30. Dr. Cyr did not also calculate Claimant’s impairment using the ROM method, and therefore there is no way to know whether that method would have yielded a higher or lower rating than the 8% he calculated according to the DRE method.
(c) Dr. Banerjee’s Impairment Rating
31. Dr. Banerjee first evaluated Claimant in July 2008, more than six years after his injury. Dr. Banerjee is board certified in physical and rehabilitation medicine. He reviewed Claimant’s medical records and conducted his own physical examination. From that, he concluded that Claimant’s current symptoms were related to a right L4-5 disc herniation resulting from the June 2002 work injury. In reaching this conclusion, Dr. Banerjee relied primarily on the fact that Claimant’s current complaints had begun with the June 2002 injury and had remained consistent thereafter.
32. In formulating his opinion, Dr. Banerjee failed to explain why, if the June 2002 injury had caused an L4-5 disc herniation, this would not have been apparent on the July 2002 MRI study. As he did not personally review the study, he could only speculate that perhaps the finding had been missed. Dr. Banerjee also did not explain why in his opinion the L4-5 disc herniation was more likely due to injury-associated trauma as opposed to either age-related degeneration or some other cause. Disc herniations are very common in people of Claimant’s age, and although certainly they can be triggered by injury-related trauma, they often occur for no apparent reason at all.
33. Because he believed that Claimant’s current symptoms were entirely attributable to a different disc level (L4-5) from the one involved in his earlier injuries (L5-S1), initially Dr. Banerjee interpreted the AMA Guides as allowing a DRE-based impairment rating. Using this method, he calculated a 13% whole person impairment referable to the June 2002 injury. The difference between this rating and Dr. Cyr’s earlier 8% rating lies at least partially in the extent of the radicular signs that each doctor observed. Whereas Dr. Cyr did not mention radicular complaints at all as a basis for his DRE rating, Dr. Banerjee’s rating depended in part on them. I find from this evidence that Claimant’s radicular symptoms likely worsened in the years between Dr. Cyr’s evaluation and Dr. Banerjee’s.
34. Dr. Banerjee later determined that his interpretation of the AMA Guides had been incorrect, and that because Claimant had suffered lumbar disc herniations at multiple levels, it was more appropriate to rate impairment using the ROM method rather than the DRE method. Using the ROM method, Dr. Banerjee calculated Claimant’s current impairment at 25% whole person. He then apportioned away the 8% previously rated and paid in accordance with Dr. Cyr’s 2003 DRE-based evaluation, leaving 17% additional whole person impairment attributable to the June 2002 injury.
(d) Dr. Boucher’s Impairment Rating
35. Dr. Boucher evaluated Claimant in March 2010, at Defendant’s request. Dr. Boucher is board certified in occupational medicine. He is experienced at rating permanency under the AMA Guides, and was a contributor to the most recent edition.
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36. Based both on his review of Claimant’s medical records and on his physical examination findings, Dr. Boucher concluded that the June 2002 work injury consisted of a lumbosacral strain, which aggravated some pre-existing degenerative changes in his lumbar spine but did not in any way cause the L4-5 disc herniation. In Dr. Boucher’s opinion, more likely than not the June 2002 injury is no longer contributing significantly to Claimant’s ongoing complaints.
37. As Dr. Banerjee had, Dr. Boucher used the ROM method to calculate the extent of Claimant’s current impairment, which he rated at 20% whole person. The difference between this rating and Dr. Banerjee’s 25% rating is attributable to two factors. First, Claimant exhibited less severe range of motion deficits on Dr. Boucher’s examination than he had at the time of Dr. Banerjee’s evaluation. Second, having determined that the L4-5 disc herniation was not contributing in any way to Claimant’s current complaints, Dr. Boucher did not factor it into his rating, while Dr. Banerjee did.
38. Where Dr. Boucher’s opinion diverged most sharply from Dr. Banerjee’s was as to how best to apportion Claimant’s permanency between the current impairment and whatever impairment was – or should have been – rated previously. As noted above, Finding of Fact No. 34 supra, Dr. Banerjee did so simply by subtracting from his own 25% rating the 8% previously rated and paid in accordance with Dr. Cyr’s 2003 evaluation. As Dr. Banerjee’s rating was based on the ROM method, and Dr. Cyr’s on the DRE method, apportioning in this way may have led to what the AMA Guides acknowledge is “a less than ideal estimate.” AMA Guides §15.2a at p. 381; see Finding of Fact No. 28 supra. Nonetheless, it is what the Guides recommend where, as here, prior ROM measurements are not available. Id.
39. Dr. Boucher approached the problem differently. In his opinion, given Claimant’s multiple injuries and surgeries it would be inappropriate to use a DRE-based impairment rating for any part of the apportionment calculation. Instead, Dr. Boucher made a number of assumptions as to the range of motion deficits that he thought Claimant would have suffered after his 1997 surgery, and from those he attempted to recreate what he estimated Claimant’s ROM-based impairment would have been just prior to the June 2002 injury.
40. Using this methodology, Dr. Boucher determined that Claimant’s prior impairment would have been 18% whole person. Subtracting that amount from the 20% impairment Dr. Boucher rated at the time of his evaluation left an impairment of only 2% referable to the June 2002 injury. This is exactly the amount that was paid in accordance with the parties’ February 2004 permanency agreement. According to Dr. Boucher’s calculations, therefore, Claimant is not due any additional permanency relative to his June 2002 injury.
41. Given the care with which the AMA Guides instruct practitioners to measure range of motion deficits, see Finding of Fact No. 26 supra, the methodology Dr. Boucher employed seems particularly imprecise. For that reason, I find that Dr. Banerjee’s apportionment methodology comports more closely with the Guides’ directives.
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CONCLUSIONS OF LAW:
1. At issue in this case is Claimant’s claim to additional medical and permanency benefits causally related to his June 2002 work injury. Claimant alleges that his current low back pain and radicular symptoms are directly attributable to that injury. He bears the burden of proof, Egbert v. The Book Press, 144 Vt. 367 (1984), and as the issues presented are beyond a layperson’s expertise, he must establish his claim by way of credible expert testimony. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964).
2. Here, Claimant offered Dr. Banerjee’s testimony in support of his claims, while Defendant countered with that of Dr. Boucher. 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).
Claimant’s Entitlement to Additional Permanency Benefits
3. Claimant has presented two alternative grounds in support of his claim for additional permanency benefits. On the one hand, he asserts that his condition has worsened appreciably since his original permanency award in February 2004. On those grounds, he argues, the award should be modified and additional benefits paid in accordance with Dr. Banerjee’s 2008 evaluation and subsequent ROM-based impairment rating. See 21 V.S.A. §668.
4. Alternatively, Claimant asserts that because the parties were mutually mistaken as to the extent of Claimant’s permanent impairment as rated by Dr. Cyr in 2003, their prior Form 22 permanency agreement should be invalidated and Dr. Banerjee’s rating substituted instead. The basis for this assertion is that Dr. Cyr improperly interpreted the AMA Guides by deriving Claimant’s impairment using DRE-based rather than ROM methodology.
(a) Modification of Award on Grounds of Change in Condition
5. I cannot accept Claimant’s first argument. It is true that Claimant’s condition has worsened since Dr. Cyr first rated his impairment in 2003. This much is clear simply by comparing his 8% rating to Dr. Banerjee’s 13% DRE-based rating in 2008. Dr. Banerjee’s rating was based on his opinion that Claimant’s ongoing symptoms were attributable to an L4-5 disc herniation, which he believed occurred as a result of the June 2002 work injury even though it was not diagnosed until 2004.
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6. Dr. Banerjee’s opinion is deficient in two important respects, however. First, he failed adequately to explain why, if the June 2002 injury in fact caused the L4-5 disc herniation, this finding would not have been noted at the time of the July 2002 MRI. Second, he failed adequately to explain the basis for his conclusion that the herniation resulted from injury-related trauma as opposed to some other cause, such as, for example, age-related degeneration. Given these omissions, I find that Dr. Banerjee’s opinion lacks clarity, thoroughness and objective support.
7. In contrast, Dr. Boucher’s causation opinion – that the June 2002 work injury did not cause Claimant’s L4-5 disc herniation and is not responsible for his current condition – adequately accounts for the differences between the 2002 and 2004 MRI findings.
8. Considering the weaknesses in Dr. Banerjee’s analysis, I cannot accept his opinion as more credible than Dr. Boucher’s. As Claimant bears the burden of proof on this issue, I cannot conclude, therefore, that the June 2002 injury was responsible either for his worsened condition or for his increased permanent impairment in 2008.
(b) Material Mistake of Fact as Basis for Re-Opening Prior Permanency Award
9. As an alternative argument in support of his claim for additional permanency, Claimant asserts that the parties’ prior Form 22 permanency agreement is subject to reopening on the grounds that it was based on a material mistake of fact. I disagree.
10. It is generally accepted that once the parties to a workers’ compensation claim execute a Form 22 or other form agreement, and the Commissioner (or her designee) approves it, it becomes a binding and enforceable contract. Workers’ Compensation Rule 17.0000; Lushima v. Cathedral Square Corporation, Opinion No. 38-09WC (September 29, 2009). Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions of the form, and the Department will consider it to represent a final determination of any dispute as to its contents. Id.
11. It is important to note, first of all, that the “material portion” of the Form 22 at issue here concerns only the impairment rating to which the parties agreed – 8% whole person – not the methodology used to derive it. No evidence was introduced as to what that impairment rating would have been had Dr. Cyr calculated it according to the ROM method, as Claimant alleges he should have, rather than according to the DRE method. It is impossible to know, therefore, whether the 8% permanency to which the parties ultimately agreed would have been higher, or lower, or perhaps just the same.
12. Even if Dr. Cyr’s interpretation of the AMA Guides was mistaken, furthermore, I still cannot categorize the outcome as a mistake of fact. As the Guides acknowledge, rating impairment is both an “art” and a “science.” AMA Guides §1.5 at p. 11. The process combines objective, scientifically based data with a physician’s clinical judgment to produce an estimate that reflects the severity of an individual’s medical condition. Id. §1.2a at p. 4 and §1.5. The result is an opinion, not a fact.
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13. I conclude that there is no basis for awarding Claimant additional permanency benefits on the grounds that his prior award was based on a mutual mistake of fact.1
Defendant’s Responsibility for Medical Charges Denied in 2005
14. As a final issue, Claimant asserts that Defendant should be deemed responsible for the medical charges it denied in 2005, on the grounds that it failed to notify Claimant seasonably of its denial. I agree.
15. The workers’ compensation rules require prompt written notification to a claimant whenever an employer seeks to deny benefits. Workers’ Compensation Rule 3.0900. Where the employer fails to comply, the Commissioner has discretion to order that benefits be paid. Workers’ Compensation Rule 3.1300.
16. It is appropriate to exercise that discretion here. Defendant’s mistake was avoidable, and Claimant was prejudiced as a result. I conclude that Defendant is obligated to pay the medical charges associated with Dr. Grzyb’s and Dr. Borrello’s March and April 2005 evaluations, with interest from the date payment should have been made under Workers’ Compensation Rule 40.021(C). If either of these bills has already been paid, Defendant shall reimburse the payor, with interest.
17. Having already concluded that Claimant has failed to sustain his burden of proving that his current condition is causally related to his June 2002 work injury, his claim for ongoing medical benefits (aside from those denied in 2005) must fail as well.
Costs and Attorney Fees
18. Claimant having failed to substantially prevail on his claim, he is not entitled to an award of costs or attorney fees.
1 Having determined that Claimant is not entitled to additional permanency on either of the grounds he asserted, I need not decide the merits of Defendant’s statute of limitations defense. Nor is it necessary to consider Defendant’s claim that it is entitled to apportionment as a consequence of Claimant’s 1987 and/or 1997 injuries.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for additional permanent partial disability and/or ongoing medical benefits causally related to his June 6, 2002 work-related injury is hereby DENIED. Defendant is hereby ORDERED to pay:
1. Medical benefits in accordance with Conclusion of Law No. 16 above, with interest as required by 21 V.S.A. §664.
DATED at Montpelier, Vermont this 25th day of January 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.

Linda Montague v. Tivoly Inc (September 22, 2011)

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

Linda Montague v. Tivoly Inc (September 22, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Linda Montague Opinion No. 28-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Tivoly, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-64639
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 21, 2011
Record closed on June 6, 2011
APPEARANCES:
Kelly Massicotte, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Was Claimant’s August 2010 fusion surgery reasonable, necessary and causally related to her January 31, 2008 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Hulda Magnadottir, M.D., April 13, 2011
(Curriculum vitae attached)
Claimant’s Exhibit 2: Compensation Agreements (Forms 21 and 22)
Defendant’s Exhibit A: Deposition of William Boucher, M.D., April 11, 2011
CLAIM:
All workers’ compensation benefits to which Claimant is deemed entitled as a consequence of her August 2010 fusion surgery;
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim.
Claimant’s January 2008 Fall, Prior Medical History and Course of Treatment
3. Claimant worked for Defendant as a machinist. As she was leaving work on January 31, 2008 she slipped on some icy outside stairs. Her feet came out from under her and she fell to the ground, landing on her back. Claimant injured her neck and left shoulder in the fall.
4. Defendant accepted Claimant’s injury as compensable and began paying workers’ compensation benefits accordingly.
5. As a result of her injury Claimant experienced severe neck pain and stiffness, with extremely limited range of motion. The pain radiated into the top of her left shoulder and between her shoulder blades. She experienced debilitating headaches as well.
6. Claimant’s prior medical history is significant for a two-level (C5-C7) cervical fusion following a motor vehicle accident some 20 years ago. More recently, in 2005 Claimant underwent surgery to repair a left rotator cuff tear following a work-related shoulder injury. Claimant fully recovered from both of these injuries and was experiencing no residual symptoms in either her neck or her left shoulder at the time of the January 2008 fall. Claimant also had a prior history of migraine headaches, most likely related to hormonal changes. Prior to her fall, these occurred on a monthly basis and were well controlled with medication.
7. Initially Claimant treated conservatively for the symptoms related to her January 2008 fall. She underwent a series of injections, but these were largely ineffective. Thereafter, Claimant underwent two surgical consultations, one with Dr. Braun, an orthopedic surgeon, and one with Dr. Ball, a neurosurgeon. Both doctors reviewed Claimant’s diagnostic imaging studies, which showed degenerative changes both above and below the level of her prior fusion but no clear evidence of spinal stenosis, or narrowing of the spinal canal. Nor did Claimant’s clinical examination reveal any signs of radiculopathy, such as asymmetric reflexes, decreased strength or sensory deficits in a dermatomal pattern. Lacking what they considered to be definitive evidence indicative of nerve root involvement, both doctors recommended against surgery as a treatment option.
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8. Surgical treatment options having apparently been eliminated, in July 2009 Claimant participated in a three-week intensive functional restoration program at Dartmouth Hitchcock Medical Center (DHMC). Claimant experienced improvements in both her physical capacity and her pain levels as a result of that program. She was less depressed, and less reliant on narcotic pain medications for symptom relief. Functionally, however, even after completing the program Claimant still was unable to meet her goals for vocational, recreational and daily living activities. Her pattern of neck pain radiating into the top of her left shoulder was relatively unchanged as well.
9. On September 11, 2009 Dr. Hazard, the doctor who had supervised Claimant’s participation in the DHMC functional restoration program, determined that she had reached an end medical result. Dr. Hazard rated Claimant with a 15% permanent impairment referable to her cervical spine as a result of her January 2008 work injury. In February 2010 the Department approved the parties’ Agreement for Permanent Partial Disability Compensation (Form 22) to that effect.
10. Over the ensuing months Claimant’s symptoms worsened. Her neck and shoulder pain continued, her headaches became constant and she spent much of her day in bed.
Dr. Magnadottir
11. At Claimant’s request, in March 2010 her primary care provider referred her to Dr. Magnadottir, a board certified neurosurgeon, for another opinion as to whether surgery might yet be an appropriate treatment option for her ongoing symptoms. Fusion surgeries are a routine aspect of Dr. Magnadottir’s practice; she estimates that she has performed approximately 1,000 such operations over the course of her career, at the rate of about 100 annually.
12. Based on her clinical exam findings, Dr. Magnadottir suspected that there was both a radicular and a myofascial component to Claimant’s pain presentation. The myofascial component stemmed from muscle tightness and spasms in her neck and between her shoulder blades, and would not be relieved by surgery. The radicular component seemed to stem from a bone spur that appeared on MRI to be impinging on Claimant’s C5 nerve root. If so, surgery might well be indicated to relieve at least some of her neck pain, as well as the radiating pain across the top of her left shoulder. The latter pain Claimant described as being particularly bothersome.
13. A diagnostic injection confirmed Dr. Magnadottir’s suspicions as to the radicular component of Claimant’s pain. Thereafter, on August 4, 2010 Dr. Magnadottir surgically decompressed Claimant’s C5 nerve root and fused her C4-5 vertebrae. Among her surgical findings, Dr. Magnadottir observed that a fragment of the bone spur she had viewed on MRI was actually dislocated, and that this was what was impinging on Claimant’s C5 nerve root. To a reasonable degree of medical certainty, Dr. Magnadottir concluded that although the bone spur itself likely preexisted, the dislocated fragment probably occurred as a result of Claimant’s January 2008 fall. In her view, the symptoms that followed, and the surgery necessitated to alleviate them, were therefore causally related to that work injury. I find this reasoning to be persuasive.
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14. As Dr. Magnadottir predicted, since the surgery Claimant’s radicular symptoms have largely resolved, particularly the pain across the top of her left shoulder. Her cervical range of motion has improved, and her headaches are no longer constant and persistent. She no longer requires narcotic medications for pain relief, and takes muscle relaxants only occasionally. Her activity level, though still quite limited by muscle-related pain and stiffness in her neck and shoulder blades, is noticeably improved as well.
15. Dr. Magnadottir determined that Claimant had reached an end medical result from her fusion surgery as of the date of her last office visit, February 23, 2011.
16. Based on the particular location of the nerve compression she viewed during surgery, Dr. Magnadottir discounted degenerative changes as the cause of Claimant’s more recent symptoms. In her opinion, furthermore, degenerative changes alone would not have caused the bone spur to fracture and dislocate as it did. I find this reasoning to be credible.
Dr. Boucher
17. At Defendant’s request, in May 2010 Claimant underwent an independent medical examination with Dr. Boucher, a board certified occupational medicine specialist. Dr. Boucher reviewed Claimant’s medical records and conducted a physical examination. From this he concluded that Claimant likely suffered a cervical strain as a result of her January 2008 fall at work.
18. Dr. Boucher strongly disagreed with Dr. Magnadottir’s decision to treat Claimant’s symptoms surgically. He believed it “quite clear” that Claimant’s condition was entirely musculoskeletal, not radicular, in origin. Citing to treatment guidelines issued by the American College of Occupational and Environmental Medicine, and lacking what he considered to be any evidence indicative of nerve root involvement, Dr. Boucher asserted that fusion surgery was neither reasonable nor necessary in Claimant’s case.
19. Dr. Boucher acknowledged that had there been evidence of developing radiculopathy, then the fusion surgery Dr. Magnadottir performed would have been medically appropriate. Even in that circumstance, however, Dr. Boucher would attribute the cause of such radiculopathy to the degenerative changes in Claimant’s cervical spine, not to her January 2008 fall at work. As noted above, however, the specific location of the nerve compression that Dr. Magnadottir observed during surgery makes this unlikely.
20. I find that Dr. Magnadottir effectively refuted the premise upon which Dr. Boucher’s conclusion was based. In her experience, quite often patients present with a pure radicular pain syndrome, without any accompanying sensory changes or motor dysfunction. The fact that a patient fails to exhibit signs of more severe nerve damage – strength deficits or numbness in a dermatomal pattern, for example – does not negate a finding of radiculopathy. In Claimant’s case, Dr. Magnadottir sufficiently established the presence of radiculopathy pre-operatively by other means, including both clinical and diagnostic testing, and then later confirmed it in her surgical findings.
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21. The fact that since her fusion surgery Claimant has experienced significant improvement in the symptoms that Dr. Magnadottir identified as radicular in nature also undermines Dr. Boucher’s conclusion that her condition was entirely musculoskeletal. Dr. Boucher predicted that Claimant’s neck pain would not improve with fusion surgery, and that her range of motion would worsen. In fact, however, as Claimant credibly testified and as Dr. Magnadottir’s notes corroborate, the opposite has occurred.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue presented here is whether Claimant’s August 2010 fusion surgery is compensable. 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. §§618, 640(a); Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). 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. Id.; Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fusion surgery. 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).
4. Here I conclude that Dr. Magnadottir’s opinion was more credible than Dr. Boucher’s. With her experience in evaluating and treating patients with complaints such as Claimant’s, Dr. Magnadottir was better positioned to discern the possibility that at least some of Claimant’s symptoms were radicular in origin. The conclusions she drew from Claimant’s clinical exam and diagnostic studies were confirmed by her surgical findings and therefore objectively supported. That Claimant improved thereafter provides further corroboration.
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5. I also conclude that Dr. Magnadottir’s analysis of the causal relationship between Claimant’s January 2008 work injury and her developing radiculopathy was more persuasive than Dr. Boucher’s. Again, Dr. Magnadottir’s surgical findings effectively discounted degenerative changes alone as the cause of Claimant’s condition, and instead pointed to her work-related fall as the inciting factor.
6. I conclude that Claimant’s August 2010 fusion surgery was both medically necessary and causally related to her compensable work injury. It therefore constitutes reasonable medical treatment, for which Defendant is obligated to pay all associated medical and indemnity benefits.
7. As Claimant has 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.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All workers’ compensation benefits to which Claimant proves her entitlement as causally related to her August 2010 fusion surgery; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 22nd day of September 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.

Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)

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

Arthur Saffold v. Palmieri Roofing Inc. (June 21, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Arthur Saffold Opinion No. 15-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Palmieri Roofing, Inc. For: Anne M. Noonan
Commissioner
State File No. H-22526
OPINION AND ORDER
ATTORNEYS:
David Williams, Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s lumbar spine condition since 2006 compensable as a direct and natural consequence of his September 1994 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Medical summary
Claimant’s Exhibit 1: Workers’ Compensation Rule 14.9240
Claimant’s Exhibit 2: Operative procedure, November 30, 1994
Claimant’s Exhibit 3: Operative report, June 30, 2006
Claimant’s Exhibit 4: Dr. McLellan office note, July 3, 2008
Claimant’s Exhibit 5: Letter from Dr. Ross, December 15, 2008
Claimant’s Exhibit 6: Letter from Dr. Ross, February 19, 2010
Defendant’s Exhibit A: Medical records reviewed by Dr. Ross
Defendant’s Exhibit B: Radiology report, March 17, 1997
Defendant’s Exhibit C: Curriculum vitae, Victor Gennaro, D.O.
CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as causally related to his lumbar spine condition since 2006
Costs and attorney fees pursuant to 21 V.S.A. §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.
Claimant’s 1994 Injury and Subsequent Treatment
3. Claimant worked for Defendant as a general laborer and roofer. On September 30, 1994 he injured his back while carrying a heavy roll of roofing paper.
4. Claimant presented to Littleton Orthopaedics on November 8, 1994 with complaints of low back and right-sided radicular pain. A subsequent myelogram revealed findings suggestive of an L4-5 disc herniation.1 On November 30, 1994 Claimant underwent a laminectomy and discectomy at that level.
5. Initially Claimant recovered well from the November 1994 surgery. His low back pain lessened significantly, and the pain, numbness and tingling in his right lower extremity abated as well.
6. Claimant underwent physical therapy in early 1995, during which he made steady progress but continued to complain occasionally of numbness in his thigh and/or foot. His therapy was interrupted for a time after he suffered a heart attack in March 1995. After his recovery from that event, Claimant continued to experience some residual low back pain, as well as radicular symptoms into his right lower extremity.
7. In December 1996 Claimant’s treating physician, Dr. Howard, determined that he had reached an end medical result and rated him with a 20% whole person permanent impairment. Even at that time, Claimant continued to experience symptoms in his low back and right leg, particularly with prolonged standing or sitting. Claimant also complained of ongoing weakness, numbness and tingling from his right leg down into his foot.
8. At Defendant’s request, in February 1997 Claimant underwent an independent medical examination with Dr. Jennings, who rated his permanent impairment at 10% whole person. Subsequently, the parties executed an Agreement for Permanent Partial Disability Compensation (Form 22) that reflected a compromise of the two impairment ratings, which the Department approved in July 1997.
1 Claimant has six lumbar vertebrae, which can lead to some confusion when counting disc levels. Early radiological studies and operative reports referred to the lowest (most inferior) lumbar disc level as L5-6; this corresponds to what later is referred to as the L4-5 level.
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9. Despite having reached an end medical result, Claimant continued to experience both low back pain and radicular symptoms down his right leg. For the most part, for the nine-year period between early 1997 and April 2006 he opted not to seek medical treatment for these symptoms. While always somewhat problematic, furthermore, they did not preclude him from working.
10. Claimant held a variety of jobs during this time, though none after March 2004. From July 1996 until some time in 1997 he worked at Hitchener’s, a golf club manufacturing company. For approximately two years thereafter, he owned and operated a small coffee shop; that business closed in 2000. From 2001 until 2004 he worked as a lathe operator at NSA Industries.
11. Following triple-bypass surgery in September 2001, Claimant was disabled from working at NSA Industries for six months. Upon returning to work he continued to experience cardiac symptoms. As a result, in March 2004 his doctors again advised him to stop working, which he did.
12. There is no credible evidence that Claimant’s work activities from 1997 through 2004 either caused or aggravated his low back pain or radicular symptoms.
13. In addition to his cardiac condition, which has required fairly constant medical vigilance since 2001, in 2004 Claimant also began experiencing pain in his upper extremities. These were diagnosed as repetitive stress injuries, arguably related to his employment at NSA, and for which he underwent multiple surgeries in 2005. Claimant testified that during the periods when these other medical conditions were requiring active treatment, his low back and leg pain “took a back seat.” I find this testimony credible.
14. Claimant has not worked since March 2004. He has been receiving social security disability benefits since that time, primarily due to his cardiac condition.
Claimant’s 2006 Surgery
15. In April 2006 Claimant experienced the spontaneous onset of low back pain with radicular symptoms down his right leg. Contemporaneous medical records reflect that Claimant was “simply walking along” when he felt a “spasm” in his back, followed by worsening pain, tingling, numbness and weakness down his right lower extremity. The symptoms were exactly the same as those he had experienced prior to his 1994 surgery.
16. Claimant testified that although he had never been symptom-free since his original injury in 1994, the pain he felt in April 2006 was significantly worse. Contemporaneous medical records corroborate this testimony, which I find credible.
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17. A May 2006 MRI revealed a right-sided disc herniation at L4-5, the same level as had been operated on in 1994. There also was evidence of scar tissue at the site. Upon reviewing the MRI, Dr. Sengupta, the orthopedic surgeon to whom Claimant had been referred, observed that the disc herniation “appears to be moderate in size, but it appears that because of the scar tissue around the right L5 nerve root it is producing significant symptoms on the right leg.”
18. As treatment for Claimant’s symptoms, Dr. Sengupta recommended a repeat L4-5 discectomy, which Claimant underwent on June 29, 2006. In his operative findings, Dr. Sengupta reported “scar tissue identified from prior surgery.” Dr. Sengupta removed some of this scar tissue in order to better release the nerve root.
19. The medical records reflect that after the June 2006 surgery Claimant initially experienced good relief of his symptoms, but by the following year his radicular complaints had returned. A June 2007 MRI study showed disc degeneration at both L4-5 and L5-S1, but no evidence of disc herniation at either level. In addition, once again there was significant scar tissue around the L5 nerve root.
20. Claimant’s symptoms still persist. Having failed to realize significant relief from two prior surgeries, it is unlikely that a third surgery will prove successful.
Expert Medical Opinions
(a) Dr. Gennaro
21. At Defendant’s request, in October 2006 Claimant underwent an independent medical examination with Dr. Gennaro, an orthopedic surgeon. In addition to personally examining Claimant and taking his history, Dr. Gennaro also reviewed Claimant’s entire medical record and his deposition testimony as well. The question put to him was whether Claimant’s June 2006 surgery represented a recurrence causally related to his 1994 work injury and subsequent disc surgery or alternatively, whether it reflected an unrelated aggravation or new injury.
22. Dr. Gennaro concluded that Claimant’s 2006 surgery reflected neither an aggravation nor a recurrence. As Claimant had not identified any specific work or other activity that might have provoked a disc herniation, Dr. Gennaro discarded the possibility of an aggravation or new injury. Given the number of years that had passed since Claimant’s original surgery, furthermore, Dr. Gennaro deemed it unlikely that the 2006 surgery would have been caused by a recurrent disc herniation, as those typically occur within a relatively short period of time (6 to 36 months) after the original injury and surgery.2
2 Dr. Gennaro acknowledged his use of the term “recurrent disc herniation” referred to its medical definition – a reherniation of disc material at the same level and the same side as previously. As discussed infra, Conclusion of Law No. 5, the term “recurrence” as defined in Workers’ Compensation Rule 2.1312 has a somewhat different legal meaning.
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23. Having discarded both aggravation and recurrence as likely causes, Dr. Gennaro concluded that the symptoms Claimant began experiencing in 2006 most likely represented the manifestation of longstanding chronic degenerative disc disease in his lumbar spine. The natural progression of this disease is evidenced not only by worsening degeneration at the L4-5 disc level (the site of Claimant’s 1994 surgery), but also at other levels as well.
24. Degenerative disc disease is an evolving process. As a disc begins to degenerate, the jelly-like central portion, or nucleus pulposus, becomes less elastic and begins to flatten out. This causes the harder exterior covering, or annulus, to bulge. As the process continues, the annulus may weaken and crack, allowing disc material to herniate through the opening.
25. When a disc herniates, enzymes are released, which irritate the nerve root. This chemical irritation is the primary cause of most nerve root, or radicular, symptoms. Once irritated, the nerve root becomes inflamed and is less able to tolerate a smaller space within the spinal canal. Scar tissue from a previous surgery can make this small space even smaller, but does not itself cause the nerve root to become irritated or inflamed.
26. It is quite typical for patients with degenerative disc disease to experience episodic flare-ups and remissions. According to studies cited by Dr. Gennaro, furthermore, disc surgery does not alter the natural progression of the condition. That is, over the long term patients who have undergone disc surgery are just as likely to experience recurrent symptoms as those who have not had surgery. The presence or absence of scar tissue from a prior surgery appears not to be a relevant factor, therefore.3
27. To summarize, Dr. Gennaro concluded that Claimant’s condition since 2006 has been the consequence solely of “aging and time.” Notwithstanding some residual symptoms over the years, his 1994 surgery was successful – his condition markedly improved from its pre-surgery state, and then stabilized to the point where he was able to return to work and resume normal activities for many years thereafter. The degenerative disease in his spine continued to progress naturally, however, until worsening symptoms attributable entirely to that condition led to repeat surgery in 2006.
(b) Dr. McLellan
28. At Dr. Sengupta’s referral, in July 2008 Claimant underwent an evaluation with Dr. McLellan, a physician at Dartmouth Hitchcock Medical Center. Upon reviewing Claimant’s June 2007 MRI Dr. McLellan remarked that it revealed evidence of a disc herniation and post-operative changes at L4-5, and also “considerable scar tissue around [the] right L5 nerve root.”
3 Claimant correctly notes that one of the studies cited by Dr. Gennaro, published by Drs. Cinotti and Roysam in 1998, may have limited applicability to patients whose symptoms recurred as shortly after surgery as Claimant’s did. Dr. Gennaro cited additional studies as well, but these were not made available for the hearing officer’s review.
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29. Absent a more comprehensive review of Claimant’s medical records, Dr. McLellan declined to issue a final opinion as to the causal relationship, if any, between Claimant’s 1994 surgery and the symptoms that led to his 2006 surgery. Speaking “in a more generic way,” however, Dr. McLellan stated:
[Claimant] clearly had a disc herniation back in 1994. Individuals who have had disc herniations are at high risk of recurrence. In the absence of an intervening injury, recurrent symptoms on the same side at the same level are more probably than not related to the original injury. Given insidious onset of [symptoms] in the same dermatomal pattern as before and given the MRI results, the current radicular symptoms are also more probably than not related to the original injury.
30. Dr. McLellan did not conduct any further review of Claimant’s medical records, did not issue a final opinion specific to Claimant’s case and did not testify at the formal hearing. I find it difficult, therefore, to accord much weight to his generic statement as to the cause of Claimant’s recurrent symptoms.
(c) Dr. Ross
31. At the request of Claimant’s attorney, Dr. Ross, an orthopedic surgeon, conducted a medical records review in December 2008. Although his initial report was somewhat confusing, ultimately Dr. Ross concluded that Claimant’s 2006 disc herniation, subsequent surgery and current condition most likely were causally related to his 1994 injury and surgery. Dr. Ross testified to this effect at the formal hearing.
32. From his review of a select portion of Claimant’s medical records, Dr. Ross gleaned that Claimant never fully recovered from the 1994 surgery, that his pain began to recur within a matter of weeks, and that his clinical course for years thereafter was punctuated by frequent exacerbations and only temporary remissions. From this, Dr. Ross concluded that the 1994 surgery had been unsuccessful. Thus, he would have advocated for repeat surgery to more fully relieve the L5 nerve root compression much sooner, certainly well before 2006.
33. From his review of Dr. Sengupta’s surgical findings in 2006, Dr. Ross concluded that the scar tissue that resulted from Claimant’s 1994 surgery was itself compressing his L5 nerve root. To a reasonable degree of medical certainty, therefore, in his opinion the 1994 surgery was a “major factor” in causing the symptoms for which Claimant underwent surgery in 2006.
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34. Dr. Ross acknowledged that there was no radiological evidence that Claimant’s 1994 surgery had failed to decompress his L5 nerve root adequately. Rather, his conclusion in this regard was based on his understanding of Claimant’s clinical presentation in the weeks, months and years thereafter. Dr. Ross never reviewed Claimant’s entire medical record, however, which is voluminous, nor did he ever interview Claimant personally or read his deposition. Given these omissions, it is difficult to understand how Dr. Ross was able to appreciate Claimant’s clinical course and pattern of recurrent symptoms accurately. I find that his conclusions are rendered less credible as a result.
35. Dr. Ross disagreed with Dr. Gennaro’s assertion that a patient who has undergone prior disc surgery is no more likely to suffer a recurrent herniation than one who hasn’t. According to Dr. Ross, both because a prior surgery is likely to cause scar tissue to form and because an annulus that has torn once is more likely to tear again, recurrent symptoms are more prevalent in the surgical population.
36. Dr. Ross also disagreed with Dr. Gennaro as to the expected progression of Claimant’s degenerative disc disease. In his opinion, there was no basis from which to conclude that the natural history of Claimant’s disc degeneration would have caused his symptoms to recur in 2006 had the 1994 surgery not predisposed him to further deterioration. At the same time, however, Dr. Ross admitted that he had no specific knowledge or opinion as to whether Claimant’s 1994 surgery actually accelerated the progression of his degenerative disc disease in any way.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue in this claim is one of causation. Claimant asserts that his condition since 2006 represents a recurrence of symptoms causally related to his compensable 1994 injury and subsequent surgery. Defendant asserts that Claimant’s condition has resulted from the natural progression of his degenerative disc disease, and that his symptoms are not causally related at all to his 1994 injury and surgery.
3. When a primary injury is determined to be compensable, all of the medical consequences and sequelae that flow from it are deemed compensable as well. 1 Larson’s Workers’ Compensation Law §10.01 at p. 10-3 (Matthew Bender, Rev. Ed.). Thus, once the work-connected character of an injury or condition has been established, its subsequent progression remains compensable, so long as the worsening is not shown to have been produced by an independent nonindustrial cause. Id., §10.02 at p. 10-3.
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4. For the purposes of determining workers’ compensation liability, it is critical to distinguish between a condition that has worsened as a direct and natural result of a compensable primary injury and one that has worsened independently from any work-related event. In the first instance, the causal link back to the primary injury remains intact, and the employer on the risk at the time remains responsible for whatever treatment and/or disability results from the worsening. See, e.g., Jackson v. True Temper Corp., 151 Vt. 592 (1989). In the second instance, the causal link is severed, and the employer is no longer liable. See 1 Larson’s Workers’ Compensation Law, supra at §10.02D, n.9 and cases cited therein.
5. Both parties here have framed their arguments at least partially as a dispute as to whether Claimant’s 2006 surgery and current condition should be characterized as a “recurrence.” Workers’ Compensation Rule 2.1312 defines a recurrence as “the return of symptoms following a temporary remission.” This term most often is distinguished from an “aggravation,” which Rule 2.1110 defines as “an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events.”
6. I do not consider the issue presented by this claim as one involving either a recurrence or an aggravation. Although Claimant credibly testified that he suffered from residual symptoms continuously from the time of his 1994 surgery forward, he also testified that they did not worsen to the point of requiring medical treatment until 2006. I cannot characterize these facts as a “return” of symptoms following a “temporary” remission.
7. Nor can I characterize Claimant’s worsening symptoms in 2006 as the type of intervening “event” that would trigger an aggravation analysis. The more appropriate question, therefore, is simply to determine whether Claimant’s condition since 2006 has flowed directly from his compensable 1994 injury, or whether it has resulted from some entirely independent cause. See Pacher v. Fairdale Farms, 166 Vt. 626, 628 (1997) (finding of new injury, distinct from prior injury, does not have to be either aggravation or recurrence).
8. Each party here presented its own expert testimony on this issue. Dr. Ross concluded that scar tissue from Claimant’s 1994 surgery was a “major factor” in causing the symptoms for which he underwent surgery in 2006, and from which he continues to suffer currently. Dr. Gennaro concluded that the 1994 surgery was irrelevant to the process, and that Claimant’s degenerative disc disease worsened independently to the point where the 2006 surgery became necessary.
9. 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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10. The first factor does not favor either expert, as neither was a treating provider. The fifth factor is also neutral, as both experts are well-qualified to render opinions on the causation issue presented here.
11. The second and fourth factors favor Dr. Gennaro. He reviewed Claimant’s entire medical record, read his deposition and most importantly, interviewed Claimant personally as to the history of his injury and the progression of his symptoms from 1994 forward. In contrast, Dr. Ross reviewed only a portion of Claimant’s medical record. From this he determined that Claimant’s 1994 surgery had failed completely, that he never fully recovered and that his symptoms were almost as troublesome in the years thereafter as they became in 2006. From the records Dr. Ross reviewed, I cannot discern how he could have reached these conclusions.
12. The third factor weighs in Dr. Gennaro’s favor as well. His opinion was clear, thorough and objectively supported. It adequately accounted for the presence of disc degeneration at other levels in Claimant’s lumbar spine at the same time that it discounted scar tissue as a contributing factor. The fact that Dr. Gennaro’s conclusions were consistent with findings reported in the medical literature, while by no means determinative, also lends support to his opinion. See, e.g., Kurant v. Sugarbush Soaring Association, Inc., Opinion No. 17-10WC (May 4, 2010).
13. I conclude that Dr. Gennaro’s opinion was more persuasive than Dr. Ross’. I also conclude, therefore, that Claimant has failed to establish the required causal link back to his compensable 1994 injury so as to render either his 2006 surgery or his current condition compensable. Claimant’s current condition is not the direct and natural result of his compensable primary injury. It is the result of degenerative disc disease, which has progressed independently from any work-related injury or sequelae of treatment.
14. Claimant having failed to prevail on his claim, he is not entitled to an award of costs or attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his 2006 surgery and subsequent condition is hereby DENIED.
DATED at Montpelier, Vermont this 21st day of June 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.

Lorrie Cahill v. Benchmark Assisted Living (April 27, 2012)

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

Lorrie Cahill v. Benchmark Assisted Living (April 27, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Lorrie Cahill Opinion No. 13-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Benchmark Assisted Living
For: Anne M. Noonan
Commissioner
State File No. BB-53987
OPINION AND ORDER
Hearing held in Montpelier on January 27, 2012
Record closed on March 12, 2012
APPEARANCES:
William Skiff, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUE PRESENTED:
Is proposed lumbar fusion surgery a medically reasonable and necessary treatment for Claimant’s work-related chronic low back pain?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Robert Monsey, M.D.
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, M.D., M.P.H.
Defendant’s Exhibit B: ACOEM Occupational Medicine Practice Guidelines
Defendant’s Exhibit C: Brox, JI et al., Randomized Clinical Trial of Lumbar Instrumented Fusion and Cognitive Intervention and Exercises in Patients with Chronic Low Back Pain and Disc Degeneration, SPINE, 2003; 28(17):1913-1921; Brox, JI et al, Lumbar instrumented fusion compared with cognitive intervention and exercises in patients with chronic back pain after previous surgery for disc herniation: A prospective randomized controlled study, Pain, 2006; 122:145-155
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Defendant’s Exhibit D: Fairbank, J et al., Randomised controlled trial to compare surgical stabilization of the lumbar spine with an intensive rehabilitation programme for patients with chronic low back pain: the MRC spine stabilization trial, BMJ, doi:10.1136/bmj.38441.620417BF (23 May 2005)
Defendant’s Exhibit E: Fritzell, P et al., 2001 Volvo Award Winner in Clinical Studies: Lumbar Fusion Versus Nonsurgical Treatment for Chronic Low Back Pain, SPINE, 2001; 26(23):2521-2534
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant has worked as a licensed practical nurse at The Arbors, a dementia care community owned by Defendant, since 2007. Her duties have included performing assessments on new residents, training new staff, completing patient charts and often, lifting residents and assisting with bed, bathroom and chair transfers. The latter function in particular is physically strenuous.
Claimant’s Work Injury and Subsequent Medical Treatment
4. On October 9, 2009 Claimant was assisting a wheelchair-bound resident with a bathroom transfer. Midway through the transfer, the resident, who weighed approximately 200 pounds, began to fall. Claimant supported his weight and guided him back into the wheelchair. As she did so, she felt a pull in the right side of her lower back.
5. Claimant promptly reported her injury and then sought medical care in accordance with Defendant’s established procedures. To date, her treatment has been conservative in nature, as overseen by Dr. Bjornson, the provider to whom Defendant initially referred her. Claimant has undergone courses of physical therapy, osteopathic manipulation, epidural steroid injections, medial branch blocks and radiofrequency ablation. She has fully complied with all treatment recommendations, and has maintained a home exercise program that includes walking and daily exercise. Despite these efforts, none of the conservative therapies she has undergone have provided effective long-term relief of her symptoms.
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6. Since her injury Claimant has continued to suffer from low back pain, sometimes accompanied by a pinching sensation in her lumbosacral spine. The pain interferes with her sleep. It is relieved somewhat by sitting, and aggravated by standing or walking. It precludes her ability to engage in many of the recreational activities she used to enjoy, such as hiking with her family, playing with her grandchildren, snow shoeing, sledding and camping. At the formal hearing, Claimant became visibly and credibly upset when discussing these limitations.
7. After a relatively brief period of temporary total and/or partial disability, Claimant returned to work full time in January 2010. She was restricted, however, from lifting, pushing or pulling more than ten pounds. This restriction, which remains in effect today, precludes her from performing her full duties as a floor nurse. Claimant can no longer assist with patient transfers. She has difficulty getting down to floor level to assess a patient who has fallen. She frequently requires help from co-employees to complete tasks that she used to be able to undertake on her own. Having to do so, she stated, “makes me feel like I’m one of my patients instead of a whole person.” Again, Claimant became visibly and credibly upset when discussing the impact that the injury has had on her work.
8. To its credit, Defendant has fully accommodated Claimant’s work restrictions, and as a result she has continued to be employed there on a full time basis. As she did prior to her injury, Claimant works two days per week in the office, performing patient assessments and other administrative tasks. Clearly, however, her inability to do the type of direct patient care she enjoyed previously weighs heavily on her. Claimant testified credibly that she devotes her entire work day to dealing with her pain, to the point where at the end of every day she is exhausted. If her pain continues at its current level, she is concerned that she may not be able to maintain full time work at a job she loves. I find this concern to be justified.
Dr. Monsey’s Surgical Recommendation
9. Claimant has undergone numerous MRI scans since her injury. These have revealed mild degenerative changes from L4-5 to L5-S1, including a small central disc herniation at the latter level, but with no evidence of nerve root impingement.
10. At Dr. Bjornson’s referral, in October 2010 Claimant underwent an evaluation with Dr. Monsey, a board certified orthopedic surgeon. Dr. Monsey diagnosed mechanical low back pain, with no evidence of myelopathy, radiculopathy or spinal instability.
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11. To assist in determining the source of her pain, at Dr. Monsey’s referral Claimant underwent further diagnostic testing, known as discography. Proponents of discography theorize that the test provides a means of identifying whether a particular disc is the source of a patient’s mechanical low back pain. During testing, needles are inserted in the middle of various discs, and the patient’s pain response is noted accordingly. If the patient experiences “concordant pain,” that is, pain identical in location and character to his or her chronic pain, then the disc injected is presumed to be the pain generator. If the patient fails to experience concordant pain, then the injected disc is presumed not to be the pain generator.
12. Noting the correlation between Claimant’s reported symptoms, her diagnostic imaging studies and her response to discography, Dr. Monsey identified her L4-5 and L5-S1 discs as the source of her low back pain. As treatment, he has recommended fusion surgery. The procedure he proposes is complicated. It involves both anterior and posterior incisions, with placement of a cage to support the spine from the front and pedicle screws to support it from the back.
13. In Dr. Monsey’s estimation, there is a 70 percent chance that the fusion surgery he has proposed will provide Claimant with good relief of symptoms, a 30 percent chance that it will not result in any appreciable change, and a 1 to 2 percent chance that it will cause her symptoms to worsen.
14. Dr. Monsey has characterized the proposed fusion surgery as one involving a quality of life decision for Claimant. It is based solely on her assessment of how severe her pain is and how much it impacts the quality of her life, balanced against the risk that surgical intervention will not work and might even cause her pain to increase.
15. Claimant’s primary treating physician, Dr. Bjornson, has expressed support for Dr. Monsey’s proposed surgery as a reasonable treatment option given Claimant’s failure to respond adequately to conservative treatment measures.
16. Claimant testified credibly that she understands the potential risks of surgery as Dr. Monsey explained them to her, including the risk that she might suffer serious surgical complications, that she might require repeat surgery and/or that the surgery might prove ineffective. In her estimation, the risks of undergoing the procedure are more than outweighed by the possibility that it will increase the quality of her life and restore her ability to function.
Dr. Backus’ Opinion; the ACOEM Practice Guidelines
17. At Defendant’s referral, Claimant has undergone two independent medical examinations with Dr. Backus, the first in April 2010 and more recently in January 2012. Dr. Backus is a board certified specialist in occupational and environmental medicine. He also holds a master’s degree in public health. Dr. Backus’ educational background includes a focus on epidemiology and statistics. With this training, he strives to analyze and incorporate the results of so-called “evidence-based” medical research studies into his treatment recommendations.
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18. Based both on his review of Claimant’s medical records and on his own physical examination, Dr. Backus has concluded, to a reasonable degree of medical certainty, that her current complaints are causally related to her compensable work injury. He disagrees, however, with Dr. Monsey’s surgical treatment recommendation. In Dr. Backus’ opinion, fusion surgery does not constitute reasonable and necessary medical treatment for the type of mechanical low back pain from which Claimant suffers.
19. In formulating his opinion as to the reasonableness of Dr. Monsey’s proposed surgery, Dr. Backus relied heavily on the practice guidelines published by the American College of Occupational and Environmental Medicine (ACOEM). In developing these practice standards, which encompass a wide range of occupational injury treatment strategies, the ACOEM uses panels of specialists to identify and review original research studies and then grade them for design, execution and analysis of results. Based on these reviews, the panels evaluate the strength of evidence showing that a particular treatment, test or intervention improves important health and functional outcomes. Balancing the potential benefit against both the potential harm and the anticipated cost, the ACOEM decides whether to issue a recommendation either for or against each treatment’s use.
20. In matters germane to this claim, the ACOEM has studied both the use of discography as a diagnostic tool and spinal fusion as a treatment option for patients with non-specific, mechanical low back pain. It has designated both interventions as “moderately not recommended,” meaning that at least “moderate evidence1” exists that they are either ineffective and/or that the harms or costs outweigh their benefits.
21. As to discography, the ACOEM practice guideline cites “quality studies” finding that the test’s positive predictive value is at or below 50 percent, meaning that it does not reliably indicate what particular disc is the source of a patient’s pain. The lack of standardized technique, the invasive nature of the test and potential adverse side effects also mandate against its use as a surgical planning tool, according to the ACOEM.
22. In explaining the rationale behind its spinal fusion practice guideline, the ACOEM discussed four “high quality” studies at some length. All four studies, copies of which were introduced into evidence, compared the efficacy of treating patients suffering from mechanical low back pain with surgical intervention (lumbar fusion) as opposed to non-operative therapies (either ongoing physical therapy or a combination of cognitive behavioral therapy and exercise). The earliest study, conducted in 2001, showed significantly better outcomes in the surgical group, in terms of both diminished pain and decreased disability, but was criticized by subsequent researchers for its faulty design. No clear evidence emerged from the later studies, conducted in 2003, 2005 and 2006, that spinal fusion surgery produced significantly better outcomes than non-operative therapies. With no definitive evidence of the surgery’s efficacy, and factoring in what it terms a “significant rate of serious complications” and a “substantial cost,” the ACOEM currently recommends against “routinely providing” lumbar fusion as treatment for chronic non-specific low back pain.
1 The ACOEM defines “moderate evidence” as involving at least one “high quality” study or multiple “moderate quality” studies relevant to the topic and the working population.
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23. It is important to note that none of the four studies specifically discussed in the ACOEM practice guideline concluded that lumbar fusion was ineffective at treating mechanical low back pain. Indeed, the reported results included a 33 percent reduction in back pain among the surgical patients in the 2001 study, a 70 percent surgical success rate in the 2003 study, and a 50 percent surgical success rate in the 2006 study. Rather, with the exception of the 2001 study the primary finding of the more recent studies was simply to establish the efficacy of non-operative interventions, particularly those with both a cognitive behavioral and an exercise component, as an effective alternative to surgery, one that carries fewer potential risks and comes at a lower cost than fusion.2
24. In formulating his opinion as to the efficacy of Dr. Monsey’s proposed fusion surgery as treatment for Claimant’s low back pain, Dr. Backus relied not only on the ACOEM practice guidelines but also on his own clinical experience. He has treated many patients for whom fusion surgery has failed to provide effective long-term relief. Dr. Backus acknowledged, however, that as a surgeon Dr. Monsey likely has followed more fusion patients. He agreed, furthermore, that were Dr. Monsey to perform the surgery he has proposed, this would not constitute malpractice or qualify in any way as outside the accepted medical standard of care.
25. Neither Dr. Monsey nor Dr. Bjornson has ever recommended that Claimant undergo a combination of cognitive behavioral therapy and intensive exercise such as that offered to the non-operative groups in the 2003, 2005 and 2006 research studies. Given that Claimant has continued to work full time, Dr. Backus acknowledged that she likely has already incorporated at least some of the components of such a program into her life.
CONCLUSIONS OF LAW:
1. 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).
2. The treatment issue here revolves solely around the medical necessity question. Both parties’ experts agree that Claimant’s current condition is causally related to her compensable injury. Where they disagree is as to whether fusion surgery is a medically appropriate treatment option for her mechanical low back pain.
2 To compare, the non-operative success rate in the 2003 study was 76 percent; in the 2006 study it was 48 percent.
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3. 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).
4. I conclude here that Dr. Monsey’s opinion is the most persuasive. His status as Claimant’s treating physician merits serious consideration. He is a well qualified surgeon, whose treatment recommendation is based on his own experience with similar patients. I have no reason not to believe his prediction that the fusion surgery he has proposed likely will be successful.
5. Neither the ACOEM practice guidelines nor the research studies upon which Dr. Backus relied are sufficient to convince me otherwise. None of those sources went so far as to advocate against the use of fusion surgery in every circumstance, or even to posit that it is an ineffective treatment. Even notwithstanding such evidence-based research, therefore, the door remains open for an experienced treating surgeon to recommend the procedure for a particular patient, as Dr. Monsey has done here.
6. The determination whether a treatment is reasonable 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. 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). I conclude that this is the case here.
7. I acknowledge what the available research appears to show, namely that in appropriate circumstances a combination of cognitive behavioral therapy and intensive exercise may be as effective as fusion surgery at treating mechanical low back pain. To the extent that this non-surgical option comes with fewer risks and lower costs, in some cases it may well be the more attractive alternative. This does not mean, however, that the surgical option is automatically rendered unreasonable as a result. Lackey, supra. The test remains one of balancing the relative risks and benefits to a particular patient in a particular case. See, e.g., Estate of George v. Vermont League of Cities and Towns, 2010 VT 1 (cautioning against use of epidemiological studies to establish specific work-related causation in a workers’ compensation claim).
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8. Although the workers’ compensation statute mandates that employers pay only for “reasonable” medical treatment, it does not in any way require that injured workers thereby forfeit the right to direct their own medical care. Lackey, supra. I am convinced by the evidence here that Dr. Monsey has proposed a reasonable treatment option, one that likely will relieve Claimant’s symptoms and improve her ability to function, and that Claimant has chosen it after thoughtfully weighing the inherent risks against the potential benefits. This is her prerogative.
9. I conclude that the fusion surgery Dr. Monsey has proposed constitutes medically necessary treatment for Claimant’s work injury, and is thus reasonable under the circumstances. Defendant is therefore obligated to pay for the medical and indemnity costs associated with it.
10. As Claimant has 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.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits associated with Dr. Monsey’s proposed fusion surgery, in accordance with 21 V.S.A. §640(a); and
2. Costs and attorney fees in amounts to be established, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 27th day of April 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.

Scott Davis v. Wal-Mart (May 16, 2012)

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

Scott Davis v. Wal-Mart (May 16, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Scott Davis Opinion No. 14-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Wal-Mart
For: Anne M. Noonan
Commissioner
State File No. Z-52910 OPINION AND ORDER
Hearing held in Montpelier, Vermont on December 13, 2011
Record closed on March 15, 2012
APPEARANCES:
Ronald Fox, Esq., for Claimant
Marion Ferguson, Esq. and Glenn Morgan Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to permanent total disability benefits as a consequence of his August and September 2007 compensable work injuries?
2. If not, is Claimant entitled to permanent partial disability benefits as a consequence of his August and September 2007 compensable work injuries?
3. Is Claimant entitled to additional medical benefits as a consequence of his August and September 2007 compensable work injuries?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Vocational assessment, May 27, 2011
Claimant’s Exhibit 2: Curriculum vitae, Mark Bucksbaum, M.D.
Claimant’s Exhibit 3: Curriculum vitae, James Parker
Claimant’s Exhibit 4: Curriculum vitae, Louise Lynch
Claimant’s Exhibit 5: Photo of Claimant with deer
Claimant’s Exhibit 6: Correspondence to Dr. Wieneke, February 7, 2008
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Defendant’s Exhibit A: Photo of Claimant with deer
Defendant’s Exhibit B: Correspondence to Claimant, February 25, 2008
Defendant’s Exhibit C: Correspondence to Wendy Madigan, March 5, 2008
Defendant’s Exhibit D: Correspondence to Claimant (undated)
Defendant’s Exhibit E: Curriculum vitae, Kuhrt Wieneke, M.D.
CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §644
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
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 Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant is currently 33 years old. He began working at Defendant’s Bennington, Vermont store as an overnight stocker in 2002. He excelled at his job and over the course of the ensuing five years was regularly promoted – first to inventory control specialist, then to customer service manager, then to sporting goods department manager, and then to assistant manager at Defendant’s Pittsfield, Massachusetts store. Claimant returned to the Bennington area for personal reasons in January 2007, whereupon he resumed his prior position as sporting goods department manager in the Bennington store.
Claimant’s Prior Medical History
4. Claimant stands at 6 feet, 1 inch tall. He has struggled with obesity since elementary school. In high school he weighed 380 pounds. With diet and exercise, he lost some weight thereafter, down to approximately 350 pounds in March 2006, but by September 2007 it had increased again, back up to 385 pounds. In February 2008 he weighed 395 pounds. By February 2010, he weighed 491 pounds. As of September 2011 he weighed more than 500 pounds.
5. Claimant was diagnosed with both diabetes and high blood pressure in 2006. He also suffers from chronic gastroesophageal reflux disease (GERD), edema and peripheral neuropathy.
6. According to the medical records, Claimant has a strong family history of obesity. Both of his parents are obese, as are two of his three siblings. His father, mother and four maternal aunts and uncles suffer from diabetes.
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7. Despite his obesity and related medical issues, as of August and September 2007 Claimant was fully able to work and engage in activities of daily living. He enjoyed hiking, camping, fishing, four-wheeling, going places and reading. He could walk, bend, kneel and squat without limitation.
Claimant’s August and September 2007 Work Injuries
8. In late August 2007 Claimant was assisting a co-employee to retrieve an elliptical machine from a high shelf. The machine, which was boxed, weighed between 80 and 100 pounds. As the co-employee, who was standing on a ladder, handed the box down to Claimant, it slipped from his grasp, dropped 1 or 2 feet and struck Claimant on the left side of his head and neck. Claimant felt a sharp pain in his neck, but shook it off and continued working.
9. Claimant reported the incident to Defendant’s human resources department. He remained at work, but gradually developed pain in his right shoulder, particularly with lifting. Then, on September 3, 2007 he was walking through the store when he tripped over the edge of a pallet and fell backwards onto a mobile staircase. Claimant hit both his neck and lower back on two of the staircase’s stability bars.
10. Claimant lay on the floor for some time, as he was in extreme pain. He screamed for help, but no one heard his cries. Ultimately he managed to get to the employee break room. A co-employee called the assistant manager, and Claimant called his wife, who took him to the hospital emergency department.
Claimant’s Post-Injury Medical Course
11. Initially Claimant treated with Dr. Whittum, an orthopedist. He also consulted with Dr. Hazard, another orthopedist, at Dartmouth Hitchcock Medical Center. Claimant’s symptoms included right shoulder and neck pain and low back pain with numbness extending into his lower extremities. A lumbar MRI study revealed chronic degenerative disc disease at both L4-5 and L5-S1, likely aggravated by more recent trauma and including some nerve root compression as well. A cervical MRI failed to reveal any clear nerve root impingement. Claimant’s shoulder symptoms were attributed either to acute bursitis and/or to a possible rotator cuff tear.
12. Claimant has undergone only limited treatment for his work injuries. He was unable to complete a course of physical therapy due to pain complaints, and could not undergo epidural steroid injections because of his large body mass. Neither the lumbar nor the cervical MRI scans suggested surgery as an appropriate treatment option. At one point Dr. Hazard suggested that Claimant consider pursuing a functional rehabilitation approach, but Defendant refused to authorize an evaluation. From the credible medical evidence, I find that such an approach was unlikely to be successful in any event. See Finding of Fact No. 37, infra.
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13. Numerous independent medical evaluators, including Dr. Wieneke, Dr. McLarney and Dr. Kinley, have commented on the fact that Claimant’s pain complaints are non-verifiable and, for the most part, subjective. In multiple examinations he has exhibited positive Waddell’s signs, including give-away weakness, hypersensitivity, unreliable range of motion and non-physiologic pain radiation. Claimant exhibited some of these signs in the context of two functional capacity evaluations as well, one in October 2008 and another in March 2011. Such signs are indicative of a psychological or non-organic component to his pain, but do not necessarily signify malingering or deception.
14. Currently Claimant manages his pain with narcotic and other medications. He is largely inactive on most days. He reports constant low back pain and fatigue. He rarely leaves his house and spends most of his time alternating between sitting in his recliner and standing. He walks to his mailbox daily, a distance of 20-25 yards; the excursion typically takes him almost 30 minutes to complete. Because he has difficulty focusing, he no longer reads to the extent that he used to, and can only sit at his computer for brief intervals. His sleep is not restorative, and he suffers from sleep apnea. He is severely deconditioned, from both a muscular and a cardiovascular standpoint. He cannot bend over or tie his shoes.
15. The medical evidence establishes that many of Claimant’s current deficits are due primarily to his obesity. His obesity is to blame for the fact that he is severely deconditioned cardiovascularly, for example. In addition, both his difficulty focusing and his fatigue are likely a consequence of his sleep apnea, which is itself a consequence of his obesity.
Claimant’s 2010 Weight Loss Efforts
16. At his primary care provider’s referral, in February 2010 Claimant began treatment in the Albany Medical Center’s Bariatric Surgery & Nutrition program. At the time he weighed 491 pounds, an increase of 106 pounds in the two and a half years since his 2007 work injuries. Claimant’s goal in attending this program was to lose sufficient weight – approximately 50 pounds – to be eligible for weight loss surgery. As reported in the program records, his motivation was “to extend his life and lose weight and hopefully eliminate diabetes and hypertension and possibly to relieve his back pain.”
17. Claimant was monitored in the bariatric program, in terms of both diet and exercise, by a clinical dietician, a bariatric surgeon and a clinical nutritionist. Upon entering the program he reported that despite his chronic low back and neck pain he already was exercising, walking 30 minutes daily four days per week.
18. By the end of April 2010 Claimant had lost 12 pounds. Again, despite his chronic low back and neck pain he was still walking regularly, and had added squats and wall pushups to his exercise regimen as well.
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19. By May 2010 Claimant was reporting “no difficulty” with brisk, 40-minute daily walks. Unfortunately, however, he had gained two pounds in little more than a week, possibly as a result of edema in his ankles. Notwithstanding this setback, Claimant reported that he was still compliant with both his diet and his walking regimen.
20. In early June 2010 Claimant reported that his back pain precluded him from walking more than 40 minutes daily, but that he was able to maintain that amount, with two hills included. His edema had worsened, however, and in the intervening month he had gained an additional five and a half pounds. Claimant was advised to consult with his primary care physician about his blood pressure and edema, but otherwise to continue with his current diet and exercise program.
21. Two days later, Claimant presented to the hospital emergency room complaining of increased edema and burning pain in his right lower leg. The next day he followed up with his primary care physician, who attributed the condition primarily to his weight, and possibly aggravated by a recent salty meal he had eaten.
22. By mid-July 2010 Claimant was reporting to his primary care physician that his lower extremity edema had worsened to the point that he could not even walk up a flight of stairs. The following week he reported to his bariatric program nutritionist that he had been rendered sedentary because of the condition. Claimant had gained another five and a half pounds since June, and now weighed 493 pounds, two pounds more than when he had entered the program in February. As Claimant consistently had reported that he was vigilant with his diet throughout this period, it seems likely that his weight gain was largely attributable either to his edema itself and/or to his inability to exercise as a result.
23. Claimant did not schedule his planned follow-up appointments, and did not participate further in the bariatric program after mid-July 2010. Although the record is somewhat unclear as to exactly why he dropped out, I find that it was in no way connected to his work-related injuries.
24. With a change in medications, by October 2010 Claimant’s edema had improved. He did not resume his exercise regimen, however. By the time of his March 2011 functional capacity evaluation he became extremely short of breath after walking just 150 feet, and needed three rest breaks in a span of three minutes to do so. There having been no reported change in his chronic low back pain during the intervening months, I find that this reduced capacity likely was not due to any worsening of his work-related injuries.
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Medical Opinions as to the Extent of Claimant’s Permanent Partial Impairment
25. Drs. McLarney, Kinley, Bucksbaum and Wieneke all have rendered permanent impairment ratings relative to Claimant’s work-related neck, shoulder and lower back injuries. Drs. McLarney and Bucksbaum were retained by Claimant to do so; Drs. Kinley and Wieneke did so on Defendant’s behalf.
(a) Dr. McLarney
26. Dr. McLarney is an orthopedic surgeon. She conducted an independent medical evaluation of Claimant, at his attorney’s request, in April 2009.
27. Dr. McLarney diagnosed Claimant with the following conditions attributable to his work-related injuries:
• Right upper extremity cervical radiculopathy, without identifiable cause on MRI;
• Right shoulder weakness consistent with either rotator cuff tendinopathy or tear; and
• Chronic low back pain with L4 radiculopathy.
28. With reference to the AMA Guides to the Evaluation of Permanent Impairment (5th ed.), Dr. McLarney assessed the following permanent impairment ratings attributable to these injuries:
• An 8 percent whole person impairment attributable to Claimant’s cervical spine, based on non-verifiable radicular complaints without objective findings (DRE cervical category II);
• A 12 percent whole person impairment attributable to range of motion deficits in Claimant’s right shoulder; and
• An 8 percent whole person impairment attributable to Claimant’s lumbar spine, based on asymmetric loss of range of motion and non-verifiable radicular complaints (DRE lumbar category II).
29. Dr. McLarney failed to specify whether she complied with the protocol mandated by the AMA Guides for consistently and reliably measuring a patient’s range of motion. Nor did she combine her ratings to achieve a final whole person impairment, as is also required by the Guides.1 For these reasons, I find her analysis to be incomplete.
1 Under Vermont law, the basis for calculating permanency benefits differs with respect to injuries referable to the spine as opposed to those referable to other body parts. 21 V.S.A. §§648(a) and (c); Workers’ Compensation Rule 11.2000. As to Dr. McLarney’s rating, therefore, only the cervical and lumbar spine ratings should have been combined as required by the AMA Guides; the right shoulder rating would then be added in separately. Workers’ Compensation Rule 11.2220.
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30. Barring Claimant’s possible participation in a multidisciplinary pain clinic, Dr. McLarney determined that he had reached an end medical result as of the date of her evaluation, April 9, 2009.
(b) Dr. Kinley
31. Dr. Kinley, an orthopedic surgeon, evaluated Claimant at Defendant’s request in July 2009.
32. Dr. Kinley diagnosed Claimant with a cervical strain causally related to his work injuries, for which he found no ratable impairment. Nor did he rate any impairment for the right shoulder, as he concluded that Claimant’s range of motion testing was completely subjective and therefore unreliable.
33. Dr. Kinley did find some permanent impairment referable to Claimant’s lumbar spine, but his 9 percent whole person rating was calculated according to the 6th edition of the AMA Guides rather than the 5th edition, as is required by Vermont law, 21 V.S.A. §648(b). For that reason, I cannot consider it.
(c) Dr. Bucksbaum
34. At Claimant’s request, Dr. Bucksbaum conducted an independent medical examination in April 2011. Dr. Bucksbaum is board certified in physical and rehabilitative medicine.
35. Dr. Bucksbaum rated the permanency attributable to Claimant’s work-related injuries as follows:
• A 5 percent whole person impairment attributable to Claimant’s chronic cervical sprain/strain (DRE cervical category II);
• An 8 percent whole person impairment attributable to Claimant’s chronic right rotator cuff injury with residual loss in range of motion; and
• An 8 percent whole person impairment attributable to Claimant’s chronic mechanical low back pain (DRE lumbar category II).
36. Using the AMA Guides’ combined values chart, Dr. Bucksbaum determined that the total whole person impairment referable to Claimant’s work-related injuries was 19 percent.2
37. Dr. Bucksbaum specifically noted in his report that his range of motion measurements were calculated in compliance with the Guides’ protocol. For that reason, although their analyses were quite similar I find that Dr. Bucksbaum’s impairment rating is more reliable, and therefore more persuasive, than Dr. McLarney’s.
2 As noted in footnote 1 supra, though consistent with the AMA Guides’ protocol, in order to comply with Vermont law Dr. Bucksbaum should not have combined all three impairments to arrive at a final rating, but rather only the two attributable to the spine.
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38. Dr. Bucksbaum determined that Claimant had reached an end medical result for his work-related injuries by the date of his evaluation, April 20, 2011. He did recommend that Claimant pursue bariatric surgery options and also that he maintain a home exercise program, but these recommendations were directed at prolonging Claimant’s life, not at treating his work injuries. Dr. Bucksbaum expressed doubt that the type of multidisciplinary functional restoration program first suggested by Dr. Hazard in 2007 and later reiterated by Dr. McLarney would be effective at increasing Claimant’s work capacity or otherwise improving his condition. I find his reasoning in this regard credible.
(d) Dr. Wieneke
39. At Defendant’s request, Dr. Wieneke conducted an independent medical examination for the purposes of rating Claimant’s permanent impairment in September 2011.3 Dr. Wieneke is a board certified orthopedic surgeon.
40. Dr. Wieneke diagnosed Claimant with chronic neck and right shoulder girdle pain and low back pain. Having observed no positive findings either on clinical examination or on diagnostic studies, Dr. Wieneke found no ratable impairment to Claimant’s cervical spine. Nor did he rate any impairment to Claimant’s right shoulder. As for Claimant’s lower back, Dr. Wieneke rated a 5 percent whole person impairment based on non-verifiable radicular pain (DRE lumbar category II).
41. Dr. Wieneke admitted in his deposition testimony that he did not use the protocol mandated by the AMA Guides for measuring the extent of any range of motion deficits, as Dr. Bucksbaum did. For that reason, I find his impairment rating to be less reliable.
Medical Opinions as to Work Capacity and Permanent Total Disability
42. Claimant has not worked since his September 3, 2007 injury. Initially his treating providers disabled him from working, and Defendant paid temporary total disability benefits accordingly.
(a) Discontinuance of Temporary Disability and Medical Benefits
43. At Defendant’s request, in early February 2008 Claimant underwent an independent medical examination with Dr. Wieneke. In the context of this evaluation Dr. Wieneke recommended that Claimant undergo further diagnostic studies to rule out cervical radiculopathy. If the results were negative, Dr. Wieneke stated that Claimant would be able to return to work, first as a greeter and then at his regular job.
3 Claimant underwent a prior independent medical examination with Dr. Wieneke, also at Defendant’s request, in February 2008. See Finding of Fact No. 43, infra.
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44. Shortly after making this recommendation, in mid-February 2008 Dr. Wieneke was presented with a photograph that purported to show Claimant exhibiting a deer he had killed during the October 2007 bow hunting season. Upon viewing the photo, Dr. Wieneke revised his opinion as to work capacity. If Claimant was capable of the type of physical activity required to successfully hunt a deer, Dr. Wieneke reasoned, then he was capable of returning to work full-time, at least as a greeter and probably at his regular job as well.
45. In fact, Claimant did not hunt or kill the deer depicted in the photograph. According to his testimony, which I find credible, an acquaintance had shot the deer, but because he lacked the proper license, or “tag” for it, he asked Claimant to use his tag instead. Even though this was an illegal use of Claimant’s tag, he agreed to do so. He thus accompanied the friend to the weigh station and was photographed with the tagged deer.
46. Notwithstanding this explanation of events, and based instead on Dr. Wieneke’s revised work capacity opinion, on February 25, 2008 Defendant wrote to offer Claimant light duty work as a greeter. Claimant did not respond. Thereafter, Defendant filed a Notice of Intent to Discontinue Payments (Form 27), in which it sought to terminate Claimant’s temporary total disability benefits effective March 6, 2008 on the grounds that he had refused a suitable offer of modified duty work. The Department rejected the discontinuance. Having found that Dr. Wieneke’s revised opinion was based on a faulty premise, that is, that Claimant had shown himself to be capable of hunting when in fact he was not, I find that it was proper for the Department to do so.
47. Following a medical records review by Dr. Rosati, an occupational medicine specialist, in November 2008 Defendant again sought to terminate Claimant’s temporary total disability benefits on the grounds that he was capable of returning to modified duty work as a greeter and had failed to do so when requested. Defendant also sought to discontinue Claimant’s narcotic pain medications, based on Dr. Rosati’s assessment that these constituted inappropriate treatment for complaints that were unconfirmed by MRI studies. This time the Department approved the discontinuance, effective November 27, 2008.
48. Claimant’s new primary care provider, Mark Schiffner, a physician’s assistant, disagreed with Dr. Rosati’s assessment as to Claimant’s modified duty work capacity. Mr. Schiffner had only recently assumed Claimant’s care, and had not yet reviewed his medical history. Nevertheless, he recommended that Claimant remain out of work “until further notice.” Mr. Schiffner failed to specify the rationale behind his recommendation, and therefore I find it to be relatively unpersuasive. Instead, based on Dr. Rosati’s records review I find that Claimant’s temporary total disability benefits were appropriately terminated in November 2008.
49. I find that Dr. Rosati’s records review did not provide sufficient support for Defendant to have discontinued Claimant’s narcotic pain medications, however. Dr. Bucksbaum has recommended that so long as Claimant continues to be monitored with periodic urine toxicology and appropriate laboratory studies, his prescribed medications constitute reasonable and appropriate treatment. I find this reasoning persuasive.
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(b) Functional Capacity Evaluations
50. Claimant has undergone two functional capacity evaluations – the first in October 2008 with Robb Wright, an occupational therapist, and the second in March 2011 with Louise Lynch, a physical therapist.
51. Claimant’s performance on the October 2008 functional capacity evaluation was striking for its unreliable results. According to Mr. Wright, Claimant demonstrated subjective limitations that were incongruous and out of proportion to his presenting musculoskeletal challenges. His pain sense and perception of disability were maladaptive. Perhaps most disturbing, to Mr. Wright’s observation Claimant made no effort to adapt, compensate or explore ways in which to enhance his ability or tolerance. To the contrary, he consistently self-limited and on at least one test appeared actively to under-represent his ability level.
52. In light of Claimant’s unreliable effort in testing, Mr. Wright felt unable to fully understand or appreciate the extent of his low back and right shoulder complaints. Nor was he able to delineate those complaints from the ones attributable to Claimant’s gross obesity, poor conditioning and cardiovascular challenge. Thus, although Mr. Wright categorized Claimant’s work capacity as “none/undetermined to sedentary,” he emphasized that this was intended only as a description of Claimant’s performance, not as an accurate determination of his functional capacities. I concur.
53. Claimant was determined to have a less than sedentary work capacity following Ms. Lynch’s March 2011 functional capacity evaluation as well, but this time his performance was not deemed nearly as unreliable as it had been with the earlier testing. Ms. Lynch observed that Claimant was willing to attempt all activities, but needed verbal cues and encouragement to exhibit full effort. Without implying any bad motive or intent, Ms. Lynch concluded from this that Claimant likely was capable at times of doing more physically than he demonstrated. I find her conclusion in this regard to be credible.
54. Claimant’s activity level, both as he reported it and as demonstrated during Ms. Lynch’s testing, was markedly less than what he had been able to achieve and maintain a year earlier, when he was engaged in the Albany Medical Center bariatric program. He was extremely short of breath and sweaty, even when sitting, and severely limited in walking. His endurance level and cardiovascular conditioning were poor as well.
55. Ms. Lynch concluded that Claimant’s functional limitations precluded even sedentary work. She attributed these deficits to Claimant’s work injuries, stating that they “[have] led to significant cardiovascular and muscular deconditioning and weight gain that make most daily functional activities difficult.” Notably, I cannot discern from the record whether in reaching this conclusion Ms. Lynch was aware of Claimant’s exercise tolerance while in the Albany Medical Center bariatric program. Given that it was Claimant’s edema, a condition related solely to his other medical issues and not at all to his work injuries, that caused him to curtail his activities while in that program, I must question her conclusion that the latter are to blame for his current limitations.
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(c) Claimant’s Vocational Rehabilitation Prospects
56. In the opinion of his vocational rehabilitation expert, James Parker, the multiple disabilities and related functional limitations from which Claimant suffers have effectively disabled him from regular gainful employment in any well known branch of the labor market.
57. Mr. Parker based his assessment of Claimant’s vocational prospects in large part on the results of Ms. Lynch’s March 2011 functional capacity evaluation. I do not discern from Mr. Parker’s analysis any consideration of the extent to which Claimant may have self-limited his activity level in that testing, as even Ms. Lynch observed. Mr. Parker acknowledged, furthermore, that chronic pain, which Claimant identified as his most significant limiting factor, is difficult to quantify. Nevertheless, I find that there is sufficient objective evidence in Ms. Lynch’s evaluation, including notations as to Claimant’s heart rate, sweaty skin and shortness of breath, to justify Mr. Parker’s reliance on that report. Certainly, to the extent that Claimant’s severe deconditioning, fatigue and endurance levels impact his ability to sustain work activities, I accept that these pose significant, and likely insurmountable, vocational barriers.
(d) Permanent Total Disability
58. In the context of his April 2011 independent medical examination, Dr. Bucksbaum concluded, to a reasonable degree of medical certainty, that Claimant’s neck, right shoulder and low back injuries were causally related to his August and September 2007 accidents at work. Based both on Ms. Lynch’s determination that Claimant is unable to work at even a sedentary level, and on his own determination that Claimant has reached an end medical result for his work-related injuries, Dr. Bucksbaum further concluded that Claimant is now permanently and totally disabled. I find that these conclusions are adequately supported by the credible evidence.
59. As to the causal relationship between Claimant’s work injuries and his permanent inability to work, Dr. Bucksbaum’s opinion is somewhat less clear. Dr. Bucksbaum attributes only 65 pounds (approximately one-half) of Claimant’s post-injury weight gain to inactivity; the rest, in his opinion, is a consequence of Claimant’s dietary habits. Dr. Bucksbaum did not state any opinion as to whether Claimant would have been permanently and totally disabled had his weight gain been limited only to that attributable to his work injuries and not also to his food intake. I find this gap in his reasoning troublesome.
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60. Equally troublesome is Dr. Bucksbaum’s failure to address the increased activity level that Claimant demonstrated while enrolled in the Albany Medical Center bariatric program in 2010. Given his own training in nutrition and weight loss, which includes membership in the American Society of Bariatric Physicians, I would have expected Dr. Bucksbaum to scrutinize closely the reasons behind Claimant’s failed weight loss attempt in that program. More importantly, I would have expected Dr. Bucksbaum to explain why either the chronic pain and/or the weight gain attributable to Claimant’s 2007 work injuries would be causing such an extreme degree of inactivity now when they did not do so in 2010. Again, the fact that Dr. Bucksbaum did not address these issues renders his opinion as to the causal connection between Claimant’s work injuries and his permanent total disability less persuasive.
Claimant’s Credibility
61. Defendant cited to various incidents in Claimant’s past that it alleges indicate a pattern of dishonesty serious enough to call his credibility into question. These include:
• The incident referred to above, Finding of Fact No. 45 supra, in which Claimant allowed his own deer tag to be used to weigh in and register his friend’s kill, even though he knew it was illegal to do so;
• Claimant’s acceptance of wages paid “under the table” by a former employer; and
• Claimant’s use of a separate address (the basement of his parent’s home) as a means of qualifying for food stamps and fuel assistance even though he did not actually live there.
62. I agree with Defendant that these instances of questionable conduct demonstrate a disturbing tendency on Claimant’s part either to mislead authorities and/or to flaunt the law for financial gain. I also agree that these events provide good cause for me to examine closely Claimant’s assertions as to his chronic pain and inability to function. I will not go so far, however, as to conclude that he is purposely exaggerating his pain complaints or intentionally faking his disability.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
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2. In addition to establishing the connection between a claimant’s injury and his or her employment, another prerequisite to any workers’ compensation award is proof of a causal nexus between the injury and the specific benefits claimed. This applies to both medical and indemnity benefits. See, e.g., Mujic v. Vermont Teddy Bear Factory, Opinion No. 04-12WC (February 7, 2012); Pitaniello v. GE Transportation, Opinion No. 03-08WC (January 17, 2008).
Permanent Total Disability
3. Claimant’s claim for permanent total disability benefits is based on his assertion that the chronic pain and inactivity attributable to his work injuries combined with his preexisting obesity to cause him to become totally incapacitated from ever maintaining regular gainful employment. Should the medical evidence establish, to the required degree of medical certainty, that the work injuries did in fact aggravate, accelerate or otherwise contribute to cause Claimant’s ultimate disability, then he will have laid the appropriate foundation for this claim. Jackson v. True Temper Corp., 151 Vt. 592 (1989).
4. Claimant points to Dr. Bucksbaum’s opinion to establish the required connection. Dr. Bucksbaum did conclude, to a reasonable degree of medical certainty, that Claimant’s inactivity from September 2007 forward likely caused him to gain approximately 65 pounds. I have no reason to doubt this conclusion.
5. What I do doubt, however, is Dr. Bucksbaum’s conclusion that Claimant’s inactivity, and therefore 65 pounds of his weight gain, was attributable to his work injuries. To my mind, Claimant’s ability to maintain a significantly higher activity level while enrolled in the Albany Medical Center bariatric program – taking brisk, 40-minute daily walks, for example – effectively undercuts any such conclusion. That this occurred in early 2010, more than two and a half years after the work injuries and by which point Claimant already had gained 106 pounds, means that notwithstanding any injury-related sequelae he was capable of walking, standing, squatting and moving about to a far greater extent than he is now. There being no evidence that Claimant’s work-related injuries have worsened since 2010, I can only attribute the dramatically increased functional limitations he now exhibits to other, non-injury-related factors.
6. Similarly, I find significant the fact that, after his initial success in the bariatric center program, Claimant’s weight loss efforts were derailed not by any work injury-related complications or consequences, but rather by a serious bout of edema. Again, I conclude from this that Claimant’s work injuries were not a factor in his subsequent decline.
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7. I acknowledge that aside from Defendant’s assertion that Claimant may have been exaggerating his subjective pain complaints, the evidence as to his current functional limitations and vocational rehabilitation potential was largely undisputed. The most significant of these limitations, however, and the ones that impact most upon his vocational potential, relate to Claimant’s limited endurance, severe deconditioning and fatigue levels, deficits that I cannot attribute to his work injuries. Thus, while I reasonably can conclude that Claimant likely is permanently and totally disabled, I cannot conclude that this disability was caused, aggravated or accelerated by his compensable work injuries. For that reason, his claim for permanent total disability benefits must fail.
Permanent Partial Disability
8. Conflicting medical evidence was submitted as to the extent of Claimant’s permanent partial disability. 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).
9. With particular reliance on the third factor, I conclude that Dr. Bucksbaum’s permanency opinion is the most credible. Dr. Bucksbaum demonstrated the greatest familiarity with the AMA Guides and scrupulously documented his adherence to the appropriate impairment rating protocol. For that reason, his ratings are both more reliable and more persuasive than those of Drs. McLarney, Kinley or Wieneke.
10. I conclude, therefore, that as a result of his work-related injuries Claimant has sustained a 5 percent whole person permanent impairment referable to his cervical spine, an 8 percent whole person impairment referable to his lumbar spine and an 8 percent whole person impairment referable to his right shoulder.
11. I must disregard Dr. Bucksbaum’s 19 percent total combined whole person impairment rating, however, as his methodology does not comply with the requirements of 21 V.S.A. §648 and Workers’ Compensation Rule 11.2220. Taking judicial notice of the AMA Guides’ combined values chart (5th ed., p. 604), I conclude that Claimant is entitled to permanent partial disability benefits in accordance with a 13 percent whole person permanent impairment referable to his spine and an 8 percent whole person permanent impairment referable to his right shoulder.
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12. The permanency benefits so awarded constitute lump sum compensation for a permanent impairment that will affect Claimant for the rest of his life. Calculated from the date of the formal hearing, at which point he was 33 years old, according to National Vital Statistics Reports, Vol. 54, No. 14 (April 19, 2006) Claimant’s remaining life expectancy is 47 years, or 564 months. Claimant may submit a request to prorate the amounts awarded for his permanent disability in accordance with 21 V.S.A. §652.
13. Claimant has submitted a request for reimbursement of costs totaling $8,670.13 and attorney fees totaling $17,636.50.4 As Claimant has prevailed only on his claim for permanent partial disability benefits, he is entitled to an award of only 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).
14. I conclude that the costs billed for Ms. Lynch’s and Mr. Parker’s services, totaling $3,935.00, related solely to Claimant’s claim for permanent total disability benefits. As he failed to prevail on this claim, these costs are disallowed. The remaining costs, totaling $4,735.13, are hereby awarded.
15. 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. Here, Claimant prevailed only on his claim for permanent partial disability benefits, the value of which is significantly less than his unsuccessful permanent total disability claim. With that in mind, I conclude that it is appropriate to award him 30 percent of his requested fees, or $5,290.95.
4 Claimant’s fee request details 27.6 hours billed prior to June 15, 2010, for which the maximum reimbursement rate according to Workers’ Compensation Rule 10 was $90.00 per hour, and 104.5 hours billed thereafter, for which the reimbursement rate is $145.00 per hour.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits as compensation for a 13 percent whole person impairment referable to the spine, a total of 71.5 weeks, and an 8 percent whole person impairment referable to the shoulder, a total of 32.4 weeks, in accordance with 21 V.S.A. §648 and Workers’ Compensation Rule 11.2220;
2. Interest on the above calculated from the date when temporary total disability benefits terminated (November 27, 2008), in accordance with 21 V.S.A. §664;
3. Medical benefits for ongoing treatment of Claimant’s compensable injuries, including coverage for prescription pain medications, in accordance with 21 V.S.A. §640; and
4. Costs totaling $4,735.13 and attorney fees totaling $5,290.95, in accordance with 21 V.S.A. §675.
DATED at Montpelier, Vermont this 16th day of May 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.

Muris Dzano v. Agri-Mark Inc (June 6, 2012)

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

Muris Dzano v. Agri-Mark Inc (June 6, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Muris Dzano Opinion No. 15-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Agri-Mark, Inc.
For: Anne M. Noonan
Commissioner
State File No. CC-60494 OPINION AND ORDER
Hearing held in Montpelier, Vermont on February 16, 2012
Record closed on March 15, 2012
APPEARANCES:
Jennifer Pacholek, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant suffer a low back injury causally related to his work for Defendant on or about May 3, 2010?
2. If so, to what workers’ compensation benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: First aid log
Claimant’s Exhibit 2: Email from Carla Messier, May 6, 2010
Claimant’s Exhibit 3: Carla Messier notes, April 7, 2011
Claimant’s Exhibit 4: Carla Messier notes of conversation with Bob Andrews, October 13, 2011
Claimant’s Exhibit 5: Carla Messier notes of conversation with Jason Hale, October 13, 2011
Claimant’s Exhibit 6: Email from Fletcher Allen Health Care, February 16, 2012
Claimant’s Exhibit 7: First Report of Injury (Form 1), April 7, 2011
Claimant’s Exhibit 8: Robert Andrews statement, October 14, 2011
Defendant’s Exhibit A: Claimant’s work log
Defendant’s Exhibit B: Final Warning of Violations, August 6, 2010
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Defendant’s Exhibit C: Claimant’s affidavit, October 19, 2011
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was 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 is a 38-year-old immigrant from Bosnia. He and his wife came to the United States in 2001 to escape discrimination in their homeland.
4. Claimant does not understand or speak English well. He was assisted by an interpreter during the formal hearing.
5. Claimant began working for Defendant seven years ago, first on the production line and more recently on the third-shift sanitation line. His wife also works for Defendant.
6. As of May 3, 2010 Claimant’s average weekly wage was $604.88, which results in an initial compensation rate of $403.25, including two dependents.
7. Claimant has no prior medical history of low back pain or related complaints.
Claimant’s May 3, 2010 Work Injury
8. On May 3, 2010 Claimant was working his normal sanitation line shift. As he began washing in and around the cheese cutting machine on line four, he noticed that the pan under the shrink tunnel was dirty. Claimant removed the pan, which rests three inches off the floor and weighs approximately 40 pounds, from its brackets and washed it.
9. After cleaning the pan, Claimant bent over to slide it back into place. As he did so, he felt a sharp pain in his back. He immediately let the pan fall to the floor.
10. Claimant next went outside to see if he could find someone to help him slide the pan back onto its brackets and under the shrink tunnel. His line leader, Jason Hale, helped him do so.
11. Soon thereafter, Claimant reported his back injury to Robert Andrews, his supervisor. Mr. Andrews recorded the event in Defendant’s first aid log, noting that on May 3, 2010 Claimant had experienced back pain while maneuvering the pan under the shrink tunnel
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on line four. He thus provided contemporaneous corroboration of both the date and mechanism of injury as Claimant initially reported it.
12. Claimant did not initially seek medical treatment or lose any time from work as a result of his May 3, 2010 injury. Mr. Andrews testified credibly that he followed up with him in the two days following the incident to inquire if his back was still bothering him, and Claimant told him that it was all right. Mr. Andrews passed this information along to Defendant’s Human Resource Administrator, Carla Messier, in response to her May 6, 2010 email inquiry about the event. Having learned that Claimant had neither sought treatment nor lost time from work, she determined that it was not necessary to file a First Report of Injury.
Claimant’s Course of Treatment
13. After completing his shift on May 3, 2010 Claimant returned home. Although his back pain was worsening, he did not seek medical treatment. Instead, the next day he purchased a back brace to help alleviate his pain and enable him to work. Claimant wore the back brace over a tee shirt but under his uniform and apron, such that it was not readily visible to others. This explains why neither Mr. Hale nor Mr. Andrews could recall observing it.
14. Although his low back pain continued to nag at him, Claimant did not seek medical treatment for more than nine months after the May 2010 incident. He testified that he was reluctant to do so because he feared that his and his wife’s jobs with Defendant would be jeopardized as a result. Given their recent immigration to the United States, unfamiliarity with the law and lack of fluency in the English language, I find Claimant’s reasoning in this regard both understandable and very credible.
15. Finally, at his wife’s insistence, on February 24, 2011 Claimant sought treatment for his low back pain at the hospital emergency room. Although the record of that visit indicates that the mechanism of injury involved a motor vehicle accident, I find that this was an inaccurate description most likely caused by Claimant’s limited English proficiency.1 Claimant testified that he told the emergency department staff that while he had been involved in motor vehicle accidents in the past, he had not injured himself as a result. He further testified that he advised the emergency room physician that he had suffered no recent trauma, and that his pain had been worsening gradually over a period of months. I find Claimant’s testimony in this regard to be completely credible.
16. X-rays taken at the emergency department failed to reveal any compression fractures or other recent trauma. Claimant was diagnosed with left paralumbar radiculopathy and advised to follow up with his regular physician.
1 Although Claimant’s wife accompanied him to the hospital and assisted with interpreting, I find it likely that a significant language barrier still remained between Claimant and the attending medical staff.
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17. Three weeks later, in March 2011 Claimant sought treatment with Dr. Gleiner, his primary care physician. He reported that he had been experiencing low back pain for approximately one year, and that the onset of the injury had been related to lifting at work. Claimant also reported (a) that he routinely lifted items weighing 40 to 50 pounds at work; (b) that he had reported his injury to his supervisor, but that the supervisor had taken no action; and (c) that both Claimant and his wife felt vulnerable over the possibility that they might lose their jobs with Defendant. I find these reports to be both credible and consistent with Claimant’s formal hearing testimony.
18. Dr. Gleiner diagnosed Claimant with lumbar radiculopathy at the L4 level, possibly related to “an injury at work that was not reported.” He recommended physical therapy as treatment.
19. Some two weeks later, in response to a telephone inquiry from Claimant’s wife, Dr. Gleiner provided Claimant with a note temporarily disabling him from working. Claimant presented this note to Mr. Hale on April 6, 2011. He has remained out of work since.
20. Claimant met with the physical therapist three times in April 2011. Notwithstanding that Claimant’s wife accompanied him to his appointments to help translate, the therapist specifically noted that her treatment efforts were impeded by the language barrier that existed between them.
21. Upon returning to see Dr. Gleiner in May 2011, Claimant reported that neither physical therapy nor pain medications had provided him with any relief. An MRI scan revealed a disc herniation with nerve root compression at the L4-5 level, and also a mass on the spinal cord at L2-3. Otherwise the scan was normal, with no degenerative disease or pathology noted at any other levels.
22. Dr. Gleiner referred Claimant to Dr. Penar, a neurosurgeon, for further evaluation and treatment. As Dr. Penar’s June 2011 office note indicates, Claimant reported that he had been experiencing low back pain since suffering a lifting injury at work in July 2010. He further reported that although he notified his supervisor of his injury, no action was taken, and that he was fearful of taking additional steps himself lest he jeopardize his and his wife’s jobs. Aside from a minor discrepancy as to the date of injury, Claimant’s history as he reported it to Dr. Penar was thus entirely consistent with the history that Dr. Gleiner had reported.2
2 As the physical therapist had reported, and notwithstanding that Claimant’s wife assisted with interpreting, Dr. Penar specifically noted that given the language barrier it was difficult to obtain precise details from Claimant. I find that this fact, either alone or in combination with Claimant’s fading memory more than a year later, adequately accounts for the discrepancy as to the date of injury.
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23. Dr. Penar recommended treating Claimant’s L4-5 disc herniation surgically. To that end, Claimant underwent a disc excision on July 1, 2011. Thereafter, on July 26, 2011 Dr. Penar performed a second surgery, in which the mass at L2-3 was removed. This mass, which was diagnosed as a benign nerve sheath tumor, in no way contributed to Claimant’s low back symptoms and was not in any way related to his May 2010 work injury. Both surgeries were accomplished without complications.
24. Since his disc excision surgery Claimant’s low back pain has improved, though it is still not entirely asymptomatic. Claimant testified credibly that his back gets achy with changes in the weather, and that he still has difficulty with bending, lifting his children, and walking or sitting for extended periods of time.
25. Although he never formally released him to do so, Dr. Penar estimated that Claimant would be capable of returning to work within three months after his second surgery, or by October 26, 2011. By this point, however, Defendant already had terminated his employment, in accordance with its policy precluding employees from being out of work for more than six months.
26. Defendant has never formally notified Claimant of his obligation to make a good faith search for suitable work in accordance with Workers’ Compensation Rule 18.1000. As of the formal hearing, he was still unemployed. He has requested a functional capacity evaluation prior to seeking another job, though no physician has yet referred him for one.
27. Claimant has not yet been declared at end medical result for his L4-5 disc herniation.
Expert Medical Opinions as to Causation
28. The parties presented conflicting medical evidence as to the causal relationship, if any, between Claimant’s L4-5 disc herniation and his work for Defendant.
(a) Dr. Penar
29. Based on his review of Dr. Gleiner’s records, the MRI scan and the history given him by Claimant, Dr. Penar concluded that Claimant likely injured his lower back while lifting at work. Although Dr. Penar understood that the injury occurred in July 2010, I already have found that this discrepancy was minor and does not undermine the basis for his medical opinion in any respect. Nor do I find significant the fact that Dr. Penar may not have reviewed either the emergency room records or the physical therapy notes prior to rendering his opinion as to causation.
(b) Dr. Backus
30. Dr. Backus is a specialist in occupational and environmental medicine. At Defendant’s request he reviewed Claimant’s medical records, as well as various witness statements, in January 2012.
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31. Dr. Backus concluded, to a reasonable degree of medical certainty, that Claimant suffered a minor lower back strain on May 3, 2010. In his opinion, this soft tissue injury likely resolved quickly and neither caused nor contributed in any way to the subsequently diagnosed L4-5 disc herniation.
32. Rather than relating it to any work-induced trauma, Dr. Backus attributed Claimant’s L4-5 disc herniation solely to lumbar degenerative disc disease. In reaching this conclusion, Dr. Backus relied primarily on two factors. First, he asserted that the inconsistencies in Claimant’s reported history as to both the date and mechanism of any work-related injury rendered his account unreliable. Second, Dr. Backus asserted that the medical literature fails to support a causal link between a single lifting incident and a herniated lumbar disc.
33. I have already found that Claimant’s poor command of the English language, combined with his faulty memory for dates, likely accounted for the inconsistencies reported in his medical records. I question whether Dr. Backus’ heavy reliance on such discrepancies as a means of discrediting Claimant’s version of events was justified, therefore. This is particularly true given that even Dr. Backus acknowledged that a language barrier likely existed between Claimant and his treatment providers.
Claimant’s Credibility
34. Defendant has noted inconsistencies among the various versions of events that Claimant reported, whether to his doctors, or in his October 2011 affidavit, or in his formal hearing testimony, that it contends fatally undermine his credibility. For example:
• At various times, Claimant reported that his lower back injury had occurred in May, June or July 2010; at other times he asserted that he did not recall when it occurred;
• Claimant asserted at one point in his formal hearing testimony that he did not tell anyone other than Mr. Andrews, Mr. Hale and his friend Bill about his injury, but later conceded that others probably knew of it;
• Claimant testified at hearing that his injury occurred while he was attempting to slide the pan back under the shrink tunnel; in his affidavit he described it as occurring while lifting the pan itself;
• Claimant reported variously (a) to his physical therapist, that his back pain abated after wearing a brace for 15 to 20 days; (b) to emergency room staff, that his pain had gradually worsened over the course of some months; and (c) to Dr. Penar and at formal hearing, that he was in constant pain from the date when the injury first occurred.
35. I do not find any of these inconsistencies to be significant. At best, they indicate only that Claimant’s memory for dates was not perfect and that his English language skills impeded his ability to communicate effectively at times. I do find significant the fact that the core components of Claimant’s story – that he injured his lower back at work while cleaning in and around the shrink tunnel – were consistent throughout.
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36. Defendant also points to inconsistencies between Claimant’s testimony and both Ms. Messier’s and Mr. Andrews’ as to comments made during a disciplinary meeting in August 2010. Claimant recalled that he advised at that point that he had injured his back at work and wanted to file a workers’ compensation claim. Ms. Messier and Mr. Andrew denied that any such discussion took place. Again, although the discrepancy is difficult to reconcile, given both the language barrier and Claimant’s questionable recollection I do not consider it fatal.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue in this case is whether or not Claimant’s herniated disc and subsequent need for surgical intervention arose out of and in the course of his employment for Defendant. Claimant asserts that his disc herniation occurred while at work on May 3, 2010 when he attempted to replace a pan under the shrink tunnel after cleaning it. Defendant asserts first, that the inconsistencies in Claimant’s varying versions of events render his account incredible, and second, that the medical evidence does not support a work connection.
3. I conclude from the credible evidence, which includes not only Claimant’s formal hearing testimony but also Mr. Andrews’ contemporaneous first aid log entry, that on May 3, 2010 Claimant suffered a work-related lower back injury while maneuvering the pan under the shrink tunnel on line four.
4. I further conclude that despite notations contained in various medical providers’ notes, Claimant did not suffer any subsequent trauma to his lower back, whether work-related or not, between May 3, 2010 and February 24, 2011, when he first sought treatment.
5. What remains to be considered is whether the credible medical evidence establishes a causal connection between Claimant’s May 2010 work injury and the L4-5 disc herniation that was diagnosed almost a year later. The parties presented conflicting expert evidence on this issue. In such cases, 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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6. Based primarily on the third factor, I conclude here that Dr. Penar’s causation opinion carries the most weight. Considering the credible evidence establishing (a) a consistent mechanism of injury; and (b) the absence of any intervening event between May 2010 and February 2011, I find persuasive Dr. Penar’s conclusion that the May 2010 lifting incident was the most likely cause of Claimant’s L4-5 disc injury.
7. In contrast, I am troubled by Dr. Backus’ analysis, which seems to be based as much on his determination as to Claimant’s credibility as it is on his medical expertise. Many of the supposed inconsistencies upon which he relied either did not exist or have been adequately explained. His opinion thus lacks factual support, to the point where I find it unpersuasive.
8. I conclude that Claimant has sustained his burden of proving that his L4-5 disc herniation was caused by his May 3, 2010 work-related lifting injury, and is therefore compensable.
9. As a result of his compensable injury Claimant was totally disabled from April 6, 2011 until at least October 26, 2011 when Dr. Penar estimated that he could safely return to work. As Claimant had not yet reached an end medical result, at a minimum Defendant was obligated at that point to notify him of his responsibility to make a good faith search for suitable work, pursuant to Workers’ Compensation Rule 18.1000. This it failed to do. Defendant remains liable, therefore, for ongoing temporary total disability benefits until such time as it can establish an appropriate basis for terminating them in accordance with Rule 18.1000.3
10. Claimant also is entitled to coverage for all reasonable medical treatment causally related to his compensable injury, including his July 2011 disc excision surgery and necessary follow-up care.
11. As Claimant did not provide any medical evidence regarding the need for a functional capacity evaluation, he has not carried his burden of proof on that issue. However, given its ongoing responsibility for temporary total disability benefits so long as Claimant maintains a good faith search for suitable work, it may be in Defendant’s best interests to arrange and pay for such evaluation in any event.
12. Claimant has submitted a request for reimbursement of costs totaling $1,047.21 and attorney fees totaling $16,544.50, representing 114.1 hours billed at $145.00 per hour. An award of costs to a prevailing claimant is mandatory under the statute, 21 V.S.A. §678(a). As Claimant has prevailed, these are awarded.
3 Defendant could have avoided this result by accepting the possibility that Claimant’s claim might be compensable, and consequently following both his medical care and his return to work efforts more closely.
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13. As for attorney fees, these lie within the commissioner’s discretion. Here, Defendant has objected to various billing entries on the grounds that they relate to Claimant’s pursuit of long-term disability benefits rather than to his workers’ compensation claim. Upon review, I concur that for this reason Claimant’s attorney fee award should be reduced by 8.5 hours.4
14. In addition, it is unclear whether a portion of five other billing entries also may have related to matters not pertinent to Claimant’s workers’ compensation claim.5 These entries total six hours. Claimant shall have 30 days from the date of this decision to provide the necessary clarification as to the work reflected on these billing entries. In the meantime, his fee award is reduced accordingly.
15. As thus reduced, the undisputed fees amount to 99.6 hours, or $14,442.00, which is hereby awarded.
4 The disallowed billing entries are for services rendered in 2011 on July 19th and 26th, August 2nd, 8th, 9th, 25th and 31st, and November 22nd (second entry).
5 The billing entries in question are for services rendered in 2011 on July 27th, August 3rd, August 18th, September 23rd and November 22nd.
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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 from April 6, 2011 and ongoing until appropriately terminated in accordance with Workers’ Compensation Rule 18.1000;
2. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonable medical services and supplies causally related to the treatment of Claimant’s work-related L4-5 disc herniation, in accordance with 21 V.S.A. §640;
4. Costs totaling $1,047.21 and attorney fees totaling $14,442.00, the latter amount to be supplemented in accordance with Conclusion of Law No. 14, supra.
DATED at Montpelier, Vermont this 6th 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.

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