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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.

Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)

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

Leo Moulton v. J.P. Carrera, Inc. (October 11, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Leo Moulton Opinion No. 30-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
J.P. Carrera, Inc.
For: Anne M. Noonan
Commissioner
State File No. X-63476
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 25 and 26, 2011
Record closed on June 16, 2011
APPEARANCES:
James Dumont, Esq., for Claimant
James O’Sullivan, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant permanently and totally disabled as a consequence of his work activities on or about September 17, 2004?
2. If not, is Claimant entitled to vocational rehabilitation services as a consequence of his September 2004 work injury?
3. Is Defendant obligated to pay various medical bills incurred for treatment of Claimant’s neck condition as causally related to his September 2004 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: CD of x-rays, 4/14/11
Joint Exhibit III: Supplemental medical records
Claimant’s Exhibit 1: Various photographs
Claimant’s Exhibit 2: Various correspondence
Claimant’s Exhibit 3: Curriculum vitae, Gregory LeRoy
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CLAIM:
Permanent total disability benefits pursuant to 21 V.S.A. §645
Medical benefits pursuant to 21 V.S.A. §640
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
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.
Claimant’s Work as a Bridge Tensioner
3. Claimant began working for Defendant in June 2001. Defendant manufactures and installs precast concrete products, including bridge beams and planks.
4. Although initially Claimant was hired to do yard and janitorial work, within a few months’ time he began doing bridge tensioning work as well. Bridge tensioning is the process by which the cables that hold a bridge beam in place are installed and tightened. In Claimant’s case, the job entailed being suspended upside down from a harness attached to the bridge deck, pulling the cable through and using a heavy jack to adjust it to the appropriate tension. Each step in the process took two to five minutes of upside down harness work. Depending on the size of the bridge and the number of cables to be installed, Claimant might have to be suspended anywhere from 15 to 70 times in a day.
5. Between 2001 and 2004 Claimant estimated that he worked on 62 bridges. The work was somewhat sporadic; some weeks he might work on three bridges, some weeks none at all. When not assigned to tensioning work, Claimant continued with his regular janitorial duties.
6. Claimant often experienced neck pain while performing his bridge tensioning duties. On one occasion he worked on a job where instead of being suspended upside down in harnesses, the bridge tensioners knelt upright on temporary platforms. Claimant found this position to be much less stressful on his neck. Later he suggested that Defendant consider utilizing similar equipment, but it declined to do so.
Claimant’s Work Injury, Medical Course and Current Condition
7. In mid-September 2004 Claimant was driving home from a bridge tensioning job in Maine when he began to experience neck pain and vertigo. As to the latter condition, Claimant’s medical records document prior episodes of dizziness, with no cause ever ascribed. This time as well, neither specialist evaluations nor diagnostic testing revealed a clear etiology. Eventually the condition resolved on its own.
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8. Claimant had experienced occasional bouts of neck stiffness in the past as well. These episodes had always resolved with little treatment. This time, however, his symptoms, consisting of left-sided neck pain, stiffness, swelling and spasms, continued. Diagnostic testing revealed some degenerative changes in his cervical spine, but no evidence of disc herniation or other neurological compromise. Ultimately, Claimant was diagnosed with a myofascial pain syndrome focused in his left lateral neck.
9. Because Claimant’s neck pain was not radicular in nature, surgery was not an appropriate treatment option. Instead, he treated conservatively, first with physical therapy and later with botulism toxin (botox) injections. None of these treatments was effective at controlling his symptoms.
10. Having derived no benefit from botox injections, in July 2007 Claimant’s treating neurologist, Dr. Orecchio, determined that he had reached an end medical result. On those grounds, the Department approved Defendant’s discontinuance of temporary total disability benefits effective November 20, 2007. In April 2008 Dr. Bucksbaum, a physiastrist, rated Claimant with a 7% whole person permanent impairment referable to his cervical spine.
11. Currently Claimant suffers from extremely limited range of motion in his neck. He holds his left shoulder in an elevated position, as otherwise he experiences painful muscle spasms. Virtually any movement of his neck or left arm exacerbates his pain, as does any sustained posture, including sitting. When his neck is irritated it swells to the point where even swallowing hurts.
12. Claimant has not worked as a bridge tensioner since mid-September 2004. After a period of total disability, in late December 2005 he resumed his janitorial duties for Defendant. While performing these duties, in March 2006 he experienced an acute exacerbation of neck pain, as a result of which he was taken out of work again. Claimant has not returned to work since.
13. In a typical week now, Claimant might take one or two short walks in the meadowlands behind his home, often with a camera, which he uses to photograph wildlife. He is at least somewhat computer literate, and will spend up to 30 minutes at a time on his computer, though not daily. He is restricted physically in this activity by his inability to sit for extended periods of time as well as by his limited ability to use his left hand. He no longer drives, as he cannot turn his head enough to see cars approaching at intersections. Most nights he sleeps in a recliner rather than in bed. Other than extra-strength Tylenol, he does not use any pain control medications.
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Medical Opinions as to Causation
14. Various doctors have given opinions as to the causal relationship, if any, between the bridge tensioning work that Claimant performed for Defendant in the months leading up to September 2004 and his current symptoms. Based on Claimant’s description of his work activities, Dr. Klitzner, his primary care provider, Dr. Orecchio, his neurologist, and Dr. Bucksbaum, a physiatrist, found that such a relationship was likely. All three pointed specifically to the pressure that being suspended upside down from a harness would have put on the left side of Claimant’s neck.
15. With training in both physiatry and biomechanical engineering, Dr. Bucksbaum’s causation opinion is particularly insightful. Biomechanical engineering is the study of how the human body reacts to mechanical forces placed upon it. According to Dr. Bucksbaum, the harness that Claimant used for his bridge tensioning work was not designed with upside down suspension in mind. When used for that purpose, the harness’ straps put significant force on the muscles, ligaments, tendons and supporting soft tissues in his neck. In an upside down position, the weight of Claimant’s head, combined at times with that of a heavy jack, would have supplied a significant amount of pulling force, or traction, to those tissues. First they stretched, and then they tore. As the tissues failed, the cervical spine became distracted, resulting in muscle tightness and nerve irritation. Superimposed on Claimant’s pre-existing degenerative disc disease, over time the damage became permanent and the condition chronic.
16. Defendant’s medical expert, Dr. Glassman, disagreed with this analysis. In his opinion, Claimant’s work activities in September 2004 likely caused a cervical and trapezius strain, but that injury has long since resolved. His current cervical symptoms are the product solely of his pre-existing degenerative disc disease.
17. Dr. Glassman did not address the possibility, as Dr. Bucksbaum did, that the traction forces applied to Claimant’s neck in the course of his bridge tensioning work might have aggravated his underlying disc disease. Nor did he explain the basis for his opinion that Claimant’s work-related cervical strain likely resolved within a matter of weeks, and that almost immediately thereafter his degenerative disease became the primary symptom generator. These gaps in Dr. Glassman’s causation analysis are troubling.
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Claimant’s Current Work Capacity
18. Claimant has undergone two functional capacity evaluations, the first in October 2007 and the second in April 2008. For the most part, the results of both evaluations were consistent. The 2008 evaluation documents a full time capacity for light work, with some abilities extending into the medium range as well, but with the following functional restrictions:
• Maintain neutral neck positions;
• Avoid activities that require sustained cervical and upper extremity postures;
• Limit forward reaching tasks to those that allow the elbows to be maintained within 4 to 6 inches from the body, so as to reduce stress on the cervical spine;
• Limit stooping or overhead activities, and avoid any functional work tasks requiring sustained stooping (cervical stress in a forward flexed position) or cervical extension;
• Avoid driving as a primary job function, due to safety concerns associated with limited cervical mobility; and
• Avoid work activities at elevated surfaces requiring high levels of balance.
19. Both Dr. Orecchio and Dr. Bucksbaum endorsed the 2008 FCE as an accurate reflection of Claimant’s work capacity. Defendant’s expert, Dr. Glassman, generally endorsed the results as well, though he attributed Claimant’s functional restrictions entirely to a combination of his subjective pain complaints and his underlying degenerative disc disease, and not at all to his work injury.
20. Dr. Klitzner questioned the FCE results, particularly as to Claimant’s capacity for sustained sitting, standing or upper extremity use. For example, in the context of the 2008 FCE Claimant demonstrated the ability to sit for more than an hour without a stretch break, while Dr. Klitzner estimated his sitting tolerance as limited to only 15 or 20 minutes before his symptoms became exacerbated.
21. Upon close examination I find that Dr. Klitzner did not repudiate the FCE results entirely. To the contrary, at least with respect to Claimant’s sitting tolerance her opinion comports with them. The FCE acknowledged that the primary limiting factor in that regard was associated with sustained postures, such as prolonged neck positioning with a combination of reaching and functional hand use. Dr. Klitzner’s estimate was presented in the context of the possibility that Claimant might be retrained to work at a desk job in computer-related employment, an activity that presumably would involve some of those same postures. Beyond that, to the extent that Dr. Klitzner’s opinion as to Claimant’s work capacity is still somewhat inconsistent with the 2008 FCE, I find that the FCE more accurately reflects Claimant’s current functional capacity.
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Claimant’s Work History and Vocational Rehabilitation Efforts
22. Claimant has a high school education, but no advanced coursework or training beyond that. Growing up, he worked on his family’s dairy farm. After his father died he purchased the farm from his mother and ran it for some years. Claimant was responsible not just for the physical labor, but also for the associated paperwork – tracking production and breeding schedules, preparing budgets and paying bills, for example.
23. Declining milk prices forced Claimant to sell his farm in 1987. For a time thereafter he worked on a neighboring dairy farm. Later he suffered a knee injury, following which he decided to seek lighter work. From 1995 until 2000 Claimant worked as a groundskeeper at the Swift House Inn in Middlebury. His duties there included both interior work, such as painting and patching walls, and exterior work, such as snow shoveling and plowing in the winter and lawn mowing and garden maintenance in the summer. Claimant left the Inn after a falling out with his supervisor. In 2001 he began working for Defendant.
24. Claimant was found entitled to vocational rehabilitation services in June 2009. His functional limitations precluded him from returning to the type of medium and heavy work he had done before. Hoping to capitalize on Claimant’s prior experience, his vocational rehabilitation counselor, Jay Spiegel, suggested CAD technician, project estimator or welding supervisor as possible alternative employment options.
25. As a first step to determining whether the tentative job goals he had identified were reasonable, Mr. Spiegel proposed that Claimant enroll in a computer class to enhance his skills in that area. When asked to approve the proposal, however, Claimant’s treating physician, Dr. Klitzner declined to do so. Dr. Klitzner did not doubt Claimant’s intellectual ability to perform the type of work for which Mr. Spiegel sought to prepare him. As noted above, however, she did question Claimant’s physical capacity for either computer class work or subsequent employment given the amount of sustained sitting and keyboarding that would be required.
26. Without Dr. Klitzner’s approval, Mr. Spiegel did not feel it appropriate to proceed. With the Department’s consent, in December 2009 vocational rehabilitation services were suspended pending resolution of the factual and legal issues that Dr. Klitzner had raised as to Claimant’s work capacity and employability potential.
Expert Opinions as to Employability
27. Both parties presented expert opinions from certified vocational rehabilitation counselors as to Claimant’s ability to secure and maintain regular gainful employment. According to Claimant’s expert, Gregory LeRoy, he is unemployable. According to Defendant’s expert, Clayton Prinson, he has a work capacity, is employable and should be conducting his own self-directed job search.
(a) Mr. LeRoy’s Analysis
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28. To assist in his analysis of Claimant’s vocational rehabilitation potential, Mr. LeRoy referred him for both psychological and vocational aptitude testing. Dr. Hedgepeth, a clinical and neuropsychologist, conducted the psychological evaluation. He determined that Claimant was of average intelligence, academic ability and learning and memory skills. His evaluation did not reveal any evidence of clinically significant psychopathology or other disabling psychological factors impacting Claimant’s ability to work.
29. To assess Claimant’s vocational aptitude, Mr. LeRoy referred him to Jack Bopp, a vocational evaluator. Through formal testing, Mr. Bopp analyzed Claimant’s aptitudes, interests and transferable skills, and then applied them to various vocational scenarios assuming either a sedentary or a light work capacity. Among his findings:
• There are no sedentary or light occupations (as classified by the U.S. Department of Labor) to which Claimant could transfer his current vocational skills and knowledge.
• There are a limited number of unskilled sedentary or light occupations for which Claimant possesses the worker traits1 generally required for average successful performance and which likely exist in his labor market area. These include such occupations as janitors, security guards, couriers and general office clerks.
• To be employed in these occupations, Claimant would have to be able to manage his pain effectively enough so as to maintain work quantity, quality and attendance standards. He also would require accommodation for his physical limitations.
• Given his age (62 as of Mr. Bopp’s evaluation), years since last in an educational setting (44) and low average verbal comprehension and processing speed abilities, Claimant is a poor candidate for acquiring new marketable skills through classroom retraining.
30. Mr. LeRoy also referred Claimant for a driving evaluation with Miriam Monahan, a certified driver rehabilitation specialist. Ms. Monahan determined that Claimant’s ability to drive safely was limited by both pain and reduced range of motion in his neck and left arm. These issues could be addressed in part with adaptive equipment, such as a steering wheel knob and a wide-angle side view mirror. With these adaptations, Ms. Monahan expected that Claimant would be able to drive within the local Middlebury area, where he currently resides. She recommended that he avoid driving in complex traffic or for more than 20 to 30 minutes at a time.
1 The “worker traits” referred to in Mr. Bopp’s analysis are diverse and extensive. They include physical abilities, such as kneeling, stooping and reaching; intellectual aptitudes, such as for verbal, numerical and spatial reasoning; demonstrated aptitudes for manual dexterity and motor coordination; and temperaments, such as for decision-making, following instructions and performing repetitive work.
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31. Based both on these specialist evaluations and on his own expertise in vocational rehabilitation, Mr. LeRoy concluded that Claimant has no reasonable prospect of securing and sustaining regular gainful employment. His age, education, transferable skills and time out of work, combined with his physical limitations and chronic pain, all present substantial barriers to employment, particularly in skilled occupations. As for unskilled occupations, his need for accommodations such as frequent stretch breaks and his inability to commute beyond his local area would make it difficult for him to compete successfully against a pool of less restricted applicants.
32. Mr. LeRoy acknowledged that there might be specific job openings in the Middlebury area for which Claimant might be hired – jobs in which taking a stretch break would not necessarily impact his productivity, for example. Mr. LeRoy’s opinion is based on probabilities, however. From that perspective, the chances that Claimant will be able to find and keep a suitable job are slight. I find this testimony to be credible.
33. As for whether Claimant’s employment prospects might improve with further vocational rehabilitation services, Mr. LeRoy asserted that this was unlikely. Medically, Claimant’s condition is chronic and therefore the prognosis for further improvement is poor. Vocationally, Claimant’s other employment barriers are unlikely to be overcome even with further assistance. With or without additional vocational rehabilitation services, in Mr. LeRoy’s opinion Claimant is now permanently incapable of securing and maintaining regular gainful work.
(b) Mr. Prinson’s Analysis
34. Mr. Prinson’s analysis of Claimant’s employability focused primarily on return to work alternatives he might consider given his interests, prior work experience and physical capacity. Mr. Prinson identified hardware, pet/pet supplies and nursery sales, automatic film developer, flagger or host as possibilities. Later, after considering the restrictions suggested by the 2008 FCE, Mr. Prinson added to the list such occupations as dairy farm manager, plant care worker, sheet metal worker, machinist, caretaker/overseer and exterminator.
35. Mr. Prinson also conducted a limited review of the Middlebury labor market area to search for currently existing employment opportunities for which he felt Claimant might qualify. Among the job openings being advertised were custodian, wholesale horticultural manager and laundry worker. Mr. Prinson did not contact any employers directly, and therefore had no information as to the specific job qualifications and duties required for any of the jobs he identified.
36. Mr. Prinson acknowledged Claimant’s age, extended period of time out of work and limited driving tolerance as barriers to employment, but also noted his good worker traits, respectable work history and willingness to take on challenging work assignments as positive indicators. Considering both these and the alternative work options he had identified, Mr. Prinson concluded that Claimant has a viable work capacity, is not unemployable and therefore is not permanently and totally disabled. To the contrary, in Mr. Prinson’s opinion Claimant is not even entitled to vocational rehabilitation services, and should be conducting his own self-directed search for suitable employment.
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37. When questioned as to the return to work alternatives that Mr. Prinson had identified, Mr. LeRoy effectively discounted most of them. Many, such as hardware, pet supplies and nursery sales, horticultural manager and laundry worker, are classified as medium physical demand level occupations, and thus would exceed Claimant’s work capacity as measured by the 2008 FCE. Others, such as sheet metal worker, caretaker and exterminator, typically require frequent stooping, forward reaching or sustained non-neutral neck positions, again in violation of the restrictions suggested by the 2008 FCE. Still others, such as automatic film developer and dairy farm manager (assuming no physical labor), likely do not exist in Vermont.
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).
Medical Causation
2. The first disputed issue in this claim is medical causation. Drs. Klitzner, Orecchio and Bucksbaum all concluded that Claimant’s current condition is causally related to his work activities for Defendant. Dr. Glassman concluded that any work-related injury has long since resolved, and that Claimant’s current condition is the result solely of his pre-existing degenerative disc disease.
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).
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4. I conclude here that the evidence provided by Claimant’s experts is more credible than that provided by Dr. Glassman. In reaching this conclusion, I am particularly mindful of Dr. Bucksbaum’s unique qualifications as both a physiatrist and a biomechanical engineer. With this training, he was better positioned than Dr. Glassman was to analyze the likely impact of Claimant’s bridge tensioning work on the muscles, ligaments, tendons and supporting soft tissues in his neck. Dr. Bucksbaum adequately explained how the work-related stress to those structures likely aggravated Claimant’s pre-existing degenerative disease to the point where symptoms that had been at best minor and episodic became chronic and disabling. Dr. Glassman’s analysis fell far short in this regard.
5. I conclude that Claimant has sustained his burden of proving that the neck pain and associated symptoms from which he has suffered continuously since September 17, 2004 are causally related to his work activities for Defendant. In addition to paying indemnity benefits, Defendant is responsible for whatever reasonable and necessary medical treatment he has undergone as a consequence.
Permanent Total Disability
6. The second disputed issue is whether Claimant’s work-related neck injury has rendered him permanently and totally disabled. Under Vermont’s workers’ compensation statute, a claimant is entitled to permanent total disability benefits if he or she suffers one of the injuries enumerated in §644(a), such as total blindness or quadriplegia. In addition, §644(b) provides:
The enumeration in subsection (a) of this section is not exclusive, and, in order to determine disability under this section, the commissioner shall consider other specific characteristics of the claimant, including the claimant’s age, experience, training, education and mental capacity.
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7. The workers’ compensation rules provide further guidance. Rule 11.3100 states:
Permanent Total Disability – Odd Lot Doctrine
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate the claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment.
A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
8. As Professor Larson describes it, the essence of the odd lot test is “the probable dependability with which [the] claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck or the superhuman efforts of the claimant to rise above crippling handicaps.” 4 Lex K. Larson, Larson’s Workers’ Compensation §83.01 at p. 83-3 (Matthew Bender, Rev. Ed.).
9. I conclude that Mr. LeRoy’s analysis of Claimant’s employability more accurately reflects the fundamental nature of odd lot permanent total disability than Mr. Prinson’s does. Mr. LeRoy focused on the probability that Claimant would be able to compete successfully for jobs within his physical capabilities, and concluded that for him to do so would be highly unlikely. In contrast, Mr. Prinson focused on a few specific jobs for which Claimant conceivably might apply, and disregarded how improbable it would be, given his age, education, limited transferable skills, chronic pain and physical restrictions, for him actually to be hired.
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10. Vermont’s workers’ compensation statute “is remedial in nature and must be liberally construed to provide injured employees with benefits unless the law is clear to the contrary.” Cyr v. McDermott’s, Inc., 2010 VT 19 at ¶7, citing St. Paul Fire & Marine Insurance Co. v. Surdam, 156 Vt. 585, 590 (1991). It would be a harsh result to deny an injured worker’s claim for permanent total disability benefits solely because the possibility exists, however slight, that he or she might someday find a job. The standard required by Rule 11.3100 is what is reasonably to be expected, not what is remotely possible.
11. I conclude that Claimant has sustained his burden of proving that as a result of his work injury he is unable to successfully perform regular, gainful work. This circumstance is unlikely to change even with the provision of further vocational rehabilitation services. Claimant is permanently and totally disabled.
12. Having concluded that Claimant is permanently and totally disabled, the question whether he is entitled to continued vocational rehabilitation services is now moot.
13. As Claimant has prevailed on his claim for benefits, he 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 his itemized claim.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable and necessary treatment causally related to Claimant’s compensable neck injury, in accordance with 21 V.S.A. §640;
2. Permanent total disability benefits in accordance with 21 V.S.A. §645, with interest from the date indemnity benefits were last paid as computed in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be determined, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 11th day of October 2011.
______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

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