Archive

Tag Archive for: medical causation

Christopher Harrington v. John A. Russell Corp. (August 30, 2010)

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

Christopher Harrington v. John A. Russell Corp. (August 30, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Christopher Harrington Opinion No. 29-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
John A. Russell Corp.
For: Valerie Rickert
Acting Commissioner
State File No. X-15430
OPINION AND ORDER
Hearing held in Montpelier, Vermont on June 28, 2010
Record closed on July 28, 2010
APPEARANCES:
William McCarty, Jr., Esq., for Claimant
Robert Cain, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s left hip condition causally related to his January 29, 1986 work-related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Dr. Czajka, June 16, 2010
Defendant’s Exhibit A: Vermont Department of Agriculture records
CLAIM:
Workers’ compensation benefits causally related to Claimant’s left hip condition
Costs and attorney fees pursuant to 21 V.S.A. §678
2
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as an equipment operator and construction laborer. On January 29, 1986 he injured his low back and right hip when he slipped and fell at work. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
Dr. Belmonte’s Independent Medical Examinations
4. At Defendant’s request, in October 1988 Claimant underwent an independent medical examination with Dr. Belmonte.1 According to his letterhead, Dr. Belmonte is engaged in the practice of occupational medicine.
5. Dr. Belmonte reported that Claimant had undergone a prolonged course of conservative treatment since his 1986 fall, but that his right hip pain persisted. X-rays revealed advanced degenerative changes in Claimant’s right hip, and some degenerative disease in his left hip as well, though considerably less advanced. Consistent with these findings, Claimant exhibited significantly restricted range of motion in his right hip. Claimant also demonstrated restricted range of motion in his left hip, but again, to a lesser extent than on the right. According to Dr. Belmonte, Claimant denied any left hip symptoms.
6. With these findings in mind, Dr. Belmonte remarked that the question whether Claimant’s right hip condition was causally related to his 1986 fall was “clouded” by the bilateral nature of his degenerative disease, as according to him Claimant admitted that the fall had not involved his left hip at all. Nevertheless, Dr. Belmonte concluded that it was “not unreasonable” to assume that the fall could have aggravated Claimant’s right hip condition. In that sense, therefore, it was work-related.
7. Dr. Belmonte performed a second independent medical examination in October 1991. He reported that Claimant had undergone right total hip replacement surgery in February 1989 and had done well immediately thereafter. Over time, however he had once more developed pain in his right hip. According to Dr. Belmonte, Claimant also complained of some pain and demonstrated mild deficits in range of motion in his left hip, but again these symptoms were not as severe as his right-sided symptoms were.
1 Dr. Belmonte’s various independent medical examination reports provide the only documentation of Claimant’s medical course in the years immediately following his injury. The paper files maintained by Claimant’s treating orthopedic surgeon, the employer’s workers’ compensation insurance carrier and the Department have long since been destroyed.
3
8. Dr. Belmonte next evaluated Claimant in December 1992. He reported that Claimant continued to complain of general soreness and intermittent pain in his right hip, and walked with a right-sided limp. Dr. Belmonte concluded that Claimant had reached an end medical result for his work-related right hip injury. He rated Claimant’s permanent impairment at 46% of the right lower extremity and determined that he was fit for light sedentary work on a full-time basis.
9. In the course of his December 1992 evaluation Dr. Belmonte also reported that Claimant had “recently noted” some gradual and progressive left hip symptoms. Dr. Belmonte described these symptoms, which he attributed to arthritis, as “chronic and mild.” Noting that Claimant had denied any trauma to his left hip in the 1986 fall, Dr. Belmonte concluded that Claimant’s left hip condition represented unrelated pathology that was developmental in nature and therefore neither caused nor aggravated by the work injury.
10. Dr. Belmonte reiterated this conclusion in September 1993, in response to a contrary opinion apparently expressed by Dr. Czajka, the orthopedic surgeon who had performed Claimant’s right total hip replacement surgery in 1989. Dr. Czajka is board certified in orthopedic surgery and also has completed fellowship training in hip and knee reconstructive surgery.
11. Dr. Belmonte reported that Dr. Czajka had remarked in his July 1993 medical record that Claimant had injured “his back and both hips” in the 1986 fall. In August 1993 Dr. Czajka had reported his assessment that Claimant ultimately would need a left total hip replacement.2 While not disputing that Claimant very well might some day require surgery on his left hip to address his ongoing symptoms, Dr. Belmonte continued to maintain that this was necessitated solely by the progressive nature of his degenerative disease. In Dr. Belmonte’s opinion, any such surgical intervention would not be causally related to the 1986 injury.
Claimant’s Course from 1993 until 2007
12. Claimant did not treat with Dr. Czajka from 1993 until 2007. During that period, Claimant trained himself as a butcher and opened his own meat cutting shop. He processed deer, beef, pork and lamb. Claimant’s shop was equipped with an overhead rail from which a carcass would be suspended, such that he could process cuts of meat directly onto a table without having to lift the entire animal. Even so, the work was physical and required prolonged standing. Although the workload varied depending on the season, Claimant testified that he averaged 30 to 40 hours weekly at this business from 1993 until the mid-2000’s. Business dropped off at that point, due to both economic factors and to changes in the state’s meat processing rules. As a result, Claimant’s hours dropped as well, down to approximately 18 to 20 weekly.
2 As noted previously, Dr. Czajka’s medical records from this period are no longer available. Therefore, it is impossible to evaluate fully the context in which the remarks quoted by Dr. Belmonte might have occurred.
4
13. A heavy-set man to begin with, Claimant also gained between 20 and 40 pounds during this period.
14. It is difficult to piece together the progression of Claimant’s hip pain during the years from 1993 until 2007. Claimant testified that he continued to favor his right side even after his 1989 hip replacement, with the result that his left hip ached constantly. His wife testified that Claimant always had hip pain, and to her mind the question was simply “which one was worse on what day.”
15. Contemporaneous medical records corroborate both Claimant’s and his wife’s testimony. Specifically, Dean Measeck, an orthopedic physician’s assistant who evaluated Claimant for left hip discomfort in December 2000, remarked that Claimant walked with an antalgic gait, or limp, on the right. Favoring one’s right side in this way puts additional weight, and thereby stress, on the left side.
16. X-rays taken at the time of Mr. Measeck’s evaluation were indicative of advancing osteoarthritic changes in the left hip. Notably, x-rays also revealed that the replacement socket in Claimant’s right hip had rotated, an indication that his right total hip replacement had failed. Mr. Measeck urged Claimant to contact Dr. Czajka “sooner rather than later” about this finding, as it might signal the need for further surgical intervention. Claimant did not immediately do so, however, despite the fact that he continued to experience pain and stiffness in both hips thereafter.
Claimant’s Course since April 2007
17. On the morning of April 30, 2007, as Claimant was getting into his truck, he felt a pop in his right hip. The pain was severe. Claimant went immediately to Dr. Czajka’s office. X-rays revealed that the replacement socket in Claimant’s right hip had loosened and become totally displaced. Claimant was immediately hospitalized, and Dr. Czajka performed revision surgery to replace the loosened component the following day.
18. Claimant was on crutches for at least three months after the revision surgery. Claimant testified that this put even more stress on his left hip, with the result that the pain in that joint continued to worsen. Claimant’s wife testified that after the 2007 surgery, “[the right] hip now becomes the good hip, and the left hip is now the bad hip.”
19. Initially Defendant denied responsibility for Claimant’s 2007 revision surgery. It maintained that intervening factors, including both his meat cutting work and his weight gain, had caused his right hip to fail. Defendant maintained its denial until just days before the formal hearing, at which time it reversed its position and voluntarily accepted responsibility for the 2007 surgery.
20. In the years since his 2007 revision surgery, Claimant has continued to experience pain and stiffness in both hips. X-rays taken in February and December 2009 documented significantly worsening arthritis in his left hip. As treatment, Dr. Czajka has recommended a left total hip replacement.
5
21. Both Claimant and his wife testified as to his current limitations. Claimant cannot now stand, sit, recline or walk for any period of time without pain. He ambulates with crutches, requires his wife’s assistance to dress and cannot do household chores. Getting into and out of his car is a struggle. Claimant works only limited hours at his meat cutting shop. He has been receiving Social Security disability benefits since approximately 2003 solely on account of his right hip condition.
Expert Medical Opinions as to Cause of Claimant’s Left Hip Condition
22. In Dr. Czajka’s opinion, Claimant’s work, his body habitus and the multiple surgeries he has undergone on his right hip all have combined to cause his left hip arthritis to worsen more quickly than it otherwise might have. Specifically as to the impact that Claimant’s right hip condition has had on the progression of the degenerative disease in his left hip, Dr. Czajka suggested “a probable 40 to 50% causal relationship of the left hip problem because of the right hip arthritis and injury sustained.”
23. Dr. Czajka testified that Claimant’s left hip “took the brunt of his activities,” particularly during the times following his right hip surgeries when he was on crutches. As a result, in Dr. Czajka’s opinion Claimant’s left hip arthritis was “significantly aggravated” by the problems he has had with his right hip.
24. Dr. Johansson, who conducted a medical records review at Defendant’s request, disagreed with this assessment. Dr. Johansson is an osteopathic physician who specializes in the non-surgical treatment of musculoskeletal injuries.
25. Dr. Johansson found no evidence from which to conclude, to the required degree of medical certainty, that Claimant’s right hip surgeries have played any role in the progression of the arthritis in his left hip. To the contrary, in Dr. Johansson’s view Claimant’s left hip symptoms have progressed exactly as one would expect in a patient with documented evidence of arthritis dating back to 1988.
26. There are many possible causes of osteoarthritis, including excessive weight, work-related stressors, trauma or genetic predisposition. With that in mind, Dr. Johansson expressed no opinion as to the most likely cause of Claimant’s left hip arthritis. According to his review of the medical records, both Claimant’s weight and his meat cutting activities were possible contributing factors.
27. Notably, Dr. Johansson dismissed Claimant’s right hip surgeries as irrelevant to the progression of his left hip disease in part because he found no evidence in the medical records indicating that Claimant walked with an antalgic gait or otherwise experienced any ongoing problems with his right hip. In fact, Dr. Belmonte documented in his December 1992 permanency evaluation that Claimant walked with a right-sided limp. As noted in Finding of Fact No. 15 above, furthermore, a December 2000 medical record documented the same antalgic gait pattern eight years later.
6
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 here is whether the osteoarthritis in Claimant’s left hip was either caused or aggravated by the right hip injury he sustained as a consequence of his 1986 fall at work. Defendant having accepted the compensability of Claimant’s right hip injury, it is responsible as well for all of the natural consequences that flow directly from it. A.B. v. Peerless Insurance Co., Opinion No. 16-08WC (April 16, 2008); see generally, 1 Larson’s Workers’ Compensation Law §10.01. This includes the consequence Claimant alleges in this claim – that as a result of his compensable right hip injury the osteoarthritis in his left hip was aggravated and accelerated. See 1 Larson’s Workers’ Compensation Law §10.03 and cases cited therein.
3. Where, as here, the preexisting condition is a progressively degenerative disease, the test for determining work-related causation is whether, “due to a work injury or the work environment, ‘the disability came upon the claimant earlier than otherwise would have occurred.’” Stannard v. Stannard Co., Inc., 175 Vt. 549, 552 (2003), citing Jackson v. True Temper Corp., 151 Vt. 592, 596 (1989).
4. Notably, this test asks only whether a claimant’s work injury contributed to accelerate the underlying condition, not whether other factors may have contributed as well. Medical causation is often multi-factorial, and the pace at which a progressive condition degenerates may be due to a number of contributing circumstances. The causal link back to the work injury is not broken, however, unless the medical evidence clearly establishes some other factor as the superseding cause. Jackson, supra at 597.
5. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
7
6. Here, Dr. Czajka identified Claimant’s work-related right hip injury as the reason why his left hip “took the brunt of his activities,” particularly after the 2007 revision surgery. Both Claimant and his wife testified credibly to the same effect. Their testimony was supported by medical records documenting that Claimant had continued to favor his right hip even after his first hip replacement surgery.
7. Those same medical records undermine Dr. Johansson’s opinion that Claimant’s right hip injury played no role whatsoever in the progression of his left hip arthritis. True, the condition probably would have progressed “even if left to itself,” Jackson, supra at 596, but that is not the appropriate standard for measuring compensability. Stannard, supra. Equally plausible, as Dr. Johansson testified, other factors, such as Claimant’s weight or his meat cutting work, may have contributed to accelerate the disease. Notably, however, Dr. Johansson stopped short of identifying those as superseding causes to the required degree of medical certainty.
8. Considered one against the other, I find Dr. Czajka’s opinion more credible than Dr. Johansson’s. I conclude, therefore, that as a natural consequence of Claimant’s work-related right hip injury the underlying arthritis in his left hip was accelerated. Claimant’s left hip condition, therefore, is compensable.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,151.66 and attorney fees totaling $16,877.50. An award of costs to a prevailing claimant is mandatory under the statute, and therefore these costs are awarded.
10. As for attorney fees, these lie within the Commissioner’s discretion, subject to the limitations of Workers’ Compensation Rule 10.1210. That rule recently has been amended. An award of attorney fees incurred prior to June 15, 2010, the effective date of the amendment, is limited to a maximum rate of $90.00 per hour. For fees incurred on or after June 15, 2010 the new maximum rate is $145.00 per hour. Claimant’s billing statement encompasses a total of 130.25 hours, all but 47 incurred prior to June 15th. Applying the appropriate maximum billing rates, the total requested is $14,307.50. This amount is awarded.
8
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 his entitlement causally related to his compensable left hip condition;
2. Costs totaling $2,151.66 and attorney fees totaling $14,307.50.
DATED at Montpelier, Vermont this 30th day of August 2010.
____________________
Valerie Rickert
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

Stefan Kurant v. Sugarbush Soaring Association, Inc. (May 4, 2010)

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

Stefan Kurant v. Sugarbush Soaring Association, Inc. (May 4, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Stefan Kurant Opinion No. 17-10WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Sugarbush Soaring Association, Inc.
For: Patricia Moulton Powden
Commissioner
State File No. M-08732
OPINION AND ORDER
Hearing held in Montpelier, Vermont on February 11, 2010
Record closed on March 1, 2010
APPEARANCES:
Patricia Turley, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s bilateral shoulder condition causally related to his October 5, 1998 work injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Sikhar Banerjee, M.D.
Claimant’s Exhibit 2: Dr. Banerjee deposition, December 2, 2009
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, M.D., M.P.H., C.I.M.E.
Defendant’s Exhibit B: Dr. Backus deposition, January 6, 2010
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
2
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 1998 Compensable Injury
3. On October 5, 1998 Claimant was seriously injured when the glider plane he was piloting crashed. Claimant suffered multiple injuries, including a burst fracture in his thoracolumbar spine, a traumatic brain injury, bilateral ankle fractures and trauma to his knees.
4. Defendant initially disputed the compensability of Claimant’s injury on the grounds that he was not an employee. After a formal hearing on the merits, Claimant’s claim was determined to be compensable. Kurant v. Sugarbush Soaring Association, Opinion No. 10-01WC (April 18, 2001). Subsequently the Department approved the parties’ proposed Form 14 Settlement Agreement, which resolved Claimant’s entitlement to indemnity benefits causally related to his injury.
5. Claimant has recovered remarkably well from his injuries. He leads an independent and productive life and works from his home as a self-employed information technology specialist.
6. While Claimant suffered extensive injuries to his lower extremities in the 1998 accident, aside from a fractured left hand his upper extremities were largely unaffected.
Claimant’s Bilateral Shoulder Symptoms
7. Claimant testified that he first began experiencing pain in his shoulders in June 2007. He sought treatment with Dr. Rodeo, the orthopedic surgeon who had treated him in conjunction with his 1998 injuries. Dr. Rodeo first examined Claimant on July 30, 2007. His office note reflects that Claimant reported that he had been experiencing left shoulder pain for the past two months, but that he could not recall any one distinct precipitating injury. According to Dr. Rodeo’s note, Claimant further reported that the pain occurred when he arose from a seated position by pushing down with his arms, and also when he engaged in overhead activities. Dr. Rodeo suspected a left shoulder impingement and/or rotator cuff tear. As treatment he administered a subacromial steroid injection.
8. Claimant testified that following Dr. Rodeo’s appointment he began to think back on his activities to see if he might recall a precipitating incident for his shoulder pain. Ultimately he recalled a Sunday in early June when he lost his balance at home and saved himself from falling by bracing his arms against the wall. Claimant reported this incident to Dr. Rodeo, and to all subsequent medical providers as well, as the event that triggered his left shoulder pain.
3
9. Claimant testified that he has had balance issues ever since his 1998 accident. He rarely falls to the ground because he is able to catch himself with his arms and break his fall. Claimant estimated that these near-fall incidents have occurred approximately two times every month for the past eleven years.
10. Claimant underwent formal equilibrium testing in February 2009, which confirmed findings of both unsteadiness and decreased reaction time for recovery. Although Claimant’s medical records prior to 2007 make no mention whatsoever of any ongoing balance issues, such problems are not uncommon among traumatic brain injury patients. Claimant’s orthopedic injuries also may be a contributing factor.
11. Since initially complaining of pain and restricted motion in his left shoulder in July 2007, Claimant has treated for similar symptoms in his right shoulder as well. Claimant believes this is due to overcompensation for the pain in his left shoulder.
12. Claimant has metal hardware in his body from his prior surgeries, and therefore cannot undergo an MRI scan to aid in diagnosing his shoulder condition. His current treating orthopedic surgeon has recommended a shoulder arthroscopy, for both diagnostic and therapeutic purposes.
Expert Medical Opinions
13. At his attorney’s referral, Claimant underwent an independent medical evaluation with Dr. Banerjee, a physiatrist, in October 2008. Dr. Banerjee described a scenario of “repeated” and “frequent” falls causally related to Claimant’s balance deficits. He likened the resulting stress to Claimant’s shoulders to that experienced by workers whose jobs require constant repetitive movements. The repetitive stress causes microtrauma, which gradually accumulates and becomes symptomatic.
14. In Dr. Banerjee’s opinion, Claimant’s shoulder symptoms are causally related to his frequent falls and near-falls, which in turn are causally related to the balance deficits that have resulted from the injuries he suffered in 1998. In this way, according to Dr. Banerjee, Claimant’s shoulder symptoms are causally related to his 1998 work-related accident.
15. Dr. Banerjee admitted that he did not discern from Claimant exactly how often he experiences episodes requiring him to use his shoulders in order to catch himself from falling. In that respect, Dr. Banerjee made no attempt to quantify the extent of the microtrauma to which Claimant likely has been exposed under his theory of causation.
16. At Defendant’s request, in July 2009 Claimant underwent an independent medical evaluation with Dr. Backus. Dr. Backus is board certified in occupational and environmental medicine, and also has completed a master’s degree in public health. His training includes specific expertise in biostatistics, epidemiology and occupational injury causation.
4
17. Citing to a “mega-analysis” of the medical literature on causation of shoulder tendinitis, impingement and rotator cuff tears,1 Dr. Backus determined that the proposition that Claimant’s bilateral shoulder injuries were related to repeatedly catching himself from falling was “an interesting theory,” but one that could not be sustained to a reasonable degree of medical certainty. More specifically, Dr. Backus testified that the frequency of these incidents – twice a month, according to Claimant – was insufficient either to qualify as “repetitive” or to cause a significant accumulation of microtrauma so as to result in injury.
18. According to the treatise cited by Dr. Backus, there is “some evidence” that highly repetitive work, either alone or in combination with other factors such as force and awkward posture, is an occupational risk factor for shoulder tendinitis, impingement and/or rotator cuff tears. At the same time, there is “strong evidence” of non-occupational risk factors for these injuries. For example, such “biopsychosocial” factors as high job stress, depression and/or previous shoulder or neck discomfort are associated with an increased incidence of tendinitis, impingement and/or rotator cuff tears. Obesity is also a risk factor. Last, there is “strong evidence” of age as a risk factor; according to one study cited in the treatise, among the factors with the highest predictive value for identifying a person likely to develop shoulder tendinitis in the near future is “age older than 40 years.”2
19. Dr. Backus acknowledged that it certainly is possible for Claimant’s suspected shoulder condition to have been caused by trauma. He cautioned against assuming that to be the case, however, as a non-occupational cause might be equally plausible. To do as Claimant did, therefore – assume a traumatic cause for his symptoms and then look back for a likely incident – often leads to an erroneous conclusion.
20. Dr. Backus was not asked to determine, to a reasonable degree of medical certainty, what the most likely cause of Claimant’s shoulder condition was. He admitted that not all of the various risk factors identified in the medical literature “mega-analysis” cited above were present in Claimant’s case. In Dr. Backus’ experience, it is not always possible to identify the exact cause of an injury to the required degree of medical certainty. In his opinion, that is the case here.
1 Melhorn, J. Mark, and Ackerman, William E., AMA Guides to the Evaluation of Disease and Injury Causation, chapter 9 at pp. 184-190.
2 Claimant was approximately 45 years old when he first began experiencing pain and restricted motion in his shoulders.
5
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
3. Carefully weighing these factors in the current claim, I conclude that Dr. Banerjee’s opinion is deficient, and that Dr. Backus’ is the most persuasive. I accept Dr. Banerjee’s conclusion that Claimant’s repeated falls and near-falls most likely have resulted from balance deficits causally related to his 1998 work injury. However, I cannot find sufficient evidence to sustain Dr. Banerjee’s ultimate conclusion – that as a result of those falls Claimant sustained repetitive microtrauma sufficient to cause his bilateral shoulder symptoms.
4. Dr. Banerjee conducted only a cursory inquiry into the nature, severity and frequency of Claimant’s falls. He provided no supporting documentation for his assertion that a frequency averaging only two such incidents per month, even when sustained over a period of eleven years, would equate to the conditions faced by workers engaged in constant repetitive activities in the course of their jobs. The medical literature “mega-analysis” cited by Dr. Backus seems to indicate otherwise.
5. I acknowledge that a causation opinion such as Dr. Backus’, which is based primarily on an analysis of the medical literature as to risk factors, is not always persuasive. Typically this type of analysis involves statistical associations across sample populations, not specific facts in individual cases. Even so, by either adding to or detracting from the significance of specific facts, statistical associations assist in the process of determining which causation theories are sustainable and which are not. Compare Brace v. Jeffrey Wallace, DDS, Opinion No. 28-09WC (July 22, 2009) with Daignault v. State of Vermont, Economic Services Division, Opinion No. 35-09WC (September 3, 2009).
6
6. Here, Dr. Banerjee’s reliance on Claimant’s history of “frequent” and “repeated” falls as support for his theory that repetitive microtrauma caused Claimant’s shoulder injury is undermined both factually and statistically. The stress to his shoulders was in no sense “highly repetitive,” nor did it involve any additional factors such as force or awkward posture.3 There is no basis, therefore, for identifying the near-falls as any more likely a cause of Claimant’s shoulder pain than, for example, his age.
7. I note, finally, that while it is somewhat unsatisfying for Dr. Backus to rule out Claimant’s falls and near-falls as the most likely cause of his shoulder condition without at the same time conclusively ruling in an alternative cause, the burden was not on him to do so. Claimant bears the burden of proof as to causation, and unless he does so to the required degree of medical certainty his claim must fail. Burton v. Holden Lumber Co., 112 Vt. 17, 20 (1941). I conclude that he has not met his burden here.
8. As Claimant has not prevailed, he is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to his bilateral shoulder symptoms is hereby DENIED.
DATED at Montpelier, Vermont this 4th day of May 2010.
_______________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.
3 In his proposed findings Claimant cites to one of the studies reviewed in the “mega-analysis” as support for his contention that the “awkward postures” to which he was subjected as a result of his falls and near-falls also contributed to create a significantly higher risk of shoulder injury. In fact, the two studies referred to both involved sustained and prolonged awkward postures of a type presumably not at issue here. AMA Guides to the Evaluation of Disease and Injury Causation, supra at p. 188.

J. K. v. Joe Knoff Illuminating (July 7, 2006)

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

J. K. v. Joe Knoff Illuminating (July 7, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. K. Opinion No. 28-06WC
By: Margaret A. Mangan
v. Hearing Officer
Joe Knoff Illuminating For: Thomas W. Douse
Acting Commissioner
State File No. P-16619 (II)
APPEARANCES:
Josef J. Knoff, pro se, Claimant
William J. Blake, Esq., for the Defendant
ISSUE:
Whether the cervical spine surgery Dr. Phillips proposes to treat Claimant is causally related to employment with Josef Knoff Illuminating.
EXHIBITS:
Claimant:
A. Dr. Phillips’s opinion letter (February 13, 2006)
B. Dr. Wepsic’s opinion letter (September 18, 2000)
C. Cervical Spine x-ray report (February 16, 2000)
D. Northwestern Medical Center Pain Clinic Report (July 28, 2000)
E. MRI Cervical Spine report (February 18, 2000)
F. Dr. Levy’s opinion letter (December 18, 2005)
G. Dr. Levy’s letter (December 27, 2005)
H. Dr. Levy’s letter (February 27, 2006)
I. Transcript of deposition of Dr. Levy (April 14, 2006)
J. Dr. Archambault’s report of office visit (April 11, 2000)
K. Dr. Roomet’s letter (May 12, 2000)
L. Dr. Penar’s office note (June 5, 2000)
M. Dr. Johansson’s Independent Medical Examination (November 14, 2000)
N. MRI Cervical Spine report (November 14, 2000)
O. Dr. Wepsic’s report on cervical spine x-ray and MRI (December 8, 2000)
P. Dr. Wepsic’s letter (December 8, 2000)
Q. Vocational Rehabilitation Plan Amendment for self employment (unsigned, undated)
R. Memorandum from WC Specialist (March 20, 2001)
S. Department policy re: TTD when Disability not continuous (August 14, 2000)
2
T. Dr. Johansson’s impairment rating (February 10, 2001)
U. Dr. Johansson’s progress note (May 27, 2003)
V. Notice of Reliance Insurance Company’s liquidation and referral to State Guarantee Fund
W. Dr. Manchester’s office note (May 20, 2003)
X. Vermont Center for Occupational Rehabilitation note (June 5, 2003)
Y. Dr. Wing’s Independent Medical Examination Report (July 16, 2003)
Z. Dr. Manchester’s November 3, 2003 note
AA. Dr. Manchester’s November 3, 2003 letter
BB. Attorney William J. Blake’s Notice of Appearance (July 6, 2004)
CC. Dr. Backus’s Independent Medical Examination (July 26, 2004)
DD. Claims Examiner Reid’s letter to Claimant regarding preauthorization
EE. Meridian Medical fax re: acupuncture (June 7, 2005)
FF. Office note of Dr. Johansson (March 31, 2005)
GG. Office note of Dr. Johansson (April 14, 2005)
HH. Dr. Phillips’s report (July 7, 2005)
II. MRI Cervical Spine (September 9, 2005)
JJ. Dr. Phillips’s report (September 13, 2005)
KK. Fax from James Reid to Attorney Blake (October 12, 2005)
Defendant:
1. Medical Records 2000 to 2006
2. Curriculum vitae of Richard L. Levy, M.D.
CLAIM:
Payment for a C7 foraminotomy and all medical and rehabilitation costs associated with the proposed surgery by Neurosurgeon Joseph M. Phillips, M.D., Ph.D.
FINDINGS OF FACT:
1. Claimant was a self-employed owner and manager of Illuminating Consulting Service and Supply (ICSS), also known as Josef Knoff Illuminating, for fifteen years.
2. Many of Claimant’s duties involved overhead work and climbing while retrofitting lighting fixtures, work he did for fifteen years.
3. Before February of 2000, Claimant did not have cervical symptoms of any kind.
4. On February 1, 2000, Claimant suffered neck pain while working at an ICSS job site. Diagnostic tests revealed degenerative disc disease as well as a C5-6 herniated disc and suggestion of a disc at C6-7.
5. A cervical spine x-ray taken on February 16, 2000 revealed marked to severe degenerative changes with disc space narrowing and osteophyte formation.
3
6. Dr. Stewart Manchester wrote a letter to the insurance adjuster on February 17, 2000, stating that Claimant’s right-sided neck and arm pain was caused by overhead work with his head extended.
7. A February 18, 2000 MRI revealed a herniated disc at C5-6 and a suggestion of a small central to left C6-7 disc.
8. Claimant’s complaints increased after he removed snow from his roof in February 2000, as reflected in Dr. Jacques Archambault’s note of February 22, 2000.
9. By March of 2000 Dr. Archambault noted that Claimant began to have symptoms on his left side. The doctor also noted that Claimant had arthritic changes at C5-6 and C6-7 as well as a bulge on the right at C5-6 and on the left at C6-7.
10. In May of 2000, Dr. Andres Roomet interpreted clinical and electrophysiologic data as showing that Claimant had minimal C7 radiculitis, among other problems, although Claimant had no deficits.
11. In June of 2000, Claimant was seen by Dr. Paul Penar who noted degenerative changes at C4 through C7 and the presence of a disc herniation at C5-6. Claimant declined Dr. Penar’s offer to operate at C5-6 because of potential risks.
12. In July 2000, Dr. William Roberts at the Northwestern Medical Center Pain Clinic noted that Claimant had a “significant symptom complex related to a C6-7 cervical spine disc herniation.”
13. A November 2000 MRI was first read as revealing a C5-6 herniation, but not one at C6-7. However, on December 8, 2000 Dr. James Wepsic interpreted that study as one revealing a disc complex at C5-6 and a “smaller protrusion at C6-7 to the left of midline.” In a letter to a medical case manager, Dr. Wepsic described, “moderate compression on the left at C6-7.” At that time Claimant had left sided symptoms.
14. Claimant treated at Green Mountain Physical and Occupational Medicine for pain relief. In February 2001, Dr. John Johansson placed Claimant at medical end result, a conclusion that Claimant did not dispute.
15. Claimant sold ICSS and embarked on an e-commerce business, MyNaturals.com in 2002 or 2003.
16. On May 20, 2003, Claimant saw Dr. Manchester who described an “exacerbation of his previous Worker’s Compensation injury.”
17. In 2003, when most of his work was at a computer, Claimant underwent a new course of treatment, including physical therapy, massage therapy, and pool therapy.
18. On July 16, 2003, Dr. Daniel Wing at Occupational Health and Rehabilitation, performed an Independent Medical Examination. Dr. Wing related Claimant’s neck pain and bilateral arm weakness to his 2000 work related injury and suggested that
4
foraminotomy may be indicated. Finally, Dr. Wing recommended that Claimant’s workstation be evaluated.
19. On July 26, 2004, Dr. Verne Backus performed an Independent Medical Examination. Although Dr. Backus could not find that Claimant’s computer work aggravated his work-related condition, he opined that such a conclusion might be made if further diagnostics show objective changes.
20. In March and April of 2005, Claimant participated in a three-week program with Dr. Johansson for cervical disc syndrome with left arm pain. Because Claimant did not improve during that program, Dr. Johansson recommended a neurosurgical consult.
21. In the summer of 2005, Claimant began treating with Dr. Joseph Phillips, neurosurgeon. Dr. Phillips noted that most of Claimant’s symptoms were in the left shoulder, radiating to the arm, whereas some time before, most symptoms were on the right side.
22. A September 2005 MRI revealed that the C5-6 herniated disc had resolved. While no herniation could be seen at C6-7, the foramen had narrowed due to spurring.
23. Dr. Phillips offered to perform a C7 foraminotomy to treat the left sided radicular complaints, surgery that is the subject of this dispute.
24. Dr. Phillips concluded that the osteophytes causing Claimant’s symptoms now are the result of the injury he sustained in 2000. He supported his opinion with Claimant’s records and history showing a C6-7 disc herniation with protrusion to the left, seen by Dr. Wepsic, which set in motion a process that resulted in foraminal stenosis, creating Claimant’s current clinical picture. He explained that the development of the spurring “is nature’s way of trying to achieve some stability and prohibition of movement at that level.”
25. The defense asked neurologist and diagnostician, Dr. Richard Levy, to review Claimant’s medical records and offer an opinion regarding any causal link between Claimant’s work at ICSS and the proposed surgery. Dr. Levy found no evidence to support that causal link, although he agreed that overhead work with hyperextension of the neck involves the cervical vertebrae, particularly C5-6 and C6-7. He agreed that such overhead work could accelerate changes in the neck. Factors that contribute to narrowing in the spine include certain occupations. Overall, however, on the facts of this case, Dr. Levy concluded that Claimant’s current problems are the result of the natural progression of cervical spondylosis, not to a work-related injury or to any other single inciting event.
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).
5
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. Under the Workers’ Compensation Act, the employer must furnish “reasonable surgical, medical and nursing services in an injured employee,” 21 V.S.A. § 640(a), if that treatment is causally related to a work-related injury.
4. In considering conflicting expert opinions, this Department has traditionally examined the following criteria: 1) the length of time the physician has provided care to the claimant; 2) the physician’s qualifications, including the degree of professional training and experience; 3) the objective support for the opinion; and 4) the comprehensiveness of the respective examinations, including whether the expert had all relevant records. Miller v. Cornwall Orchards, Op. No. WC 20-97 (Aug. 4, 1997); Gardner v. Grand Union Op. No. 24-97WC (Aug. 22, 1997).
5. In this case, there is no real advantage as the treating physician. Dr. Phillips, as Claimant’s surgeon, treated him for a short time. Dr. Levy only examined him once. Both experts have equal qualifications in the aspects of neurology: Dr. Phillips as a neurosurgeon, Dr. Levy as a neurologist. Both reviewed relevant records. The crucial difference lies in the objective support for the opinion as to whether or not the surgery was causally related to the 2000 work injury. The documents and opinion letters of Dr. Manchester, Dr. Archambault, Dr. Penar, Dr. Roberts, Dr. Wing, and especially Dr. Wepsic all support causation for Claimant’s surgery. These physicians were not subject to cross-examination. However, they provided a basis for Dr. Phillips’s opinion that the osteophyte formation was the product of a herniated disc. The moderate compression on the left at C6-7, a finding by Dr. Wepsic, had most likely set the osteophyte formation in motion. Also, Dr. Backus opined that this condition was caused by work, but he could not say, without conducting further diagnostics, that Claimant’s computer work was aggravated by this injury. Overall, Dr. Phillips’s opinion was amply supported by the findings of other surgeons, thus outweighing the objective support for Dr. Levy’s opinion against causation. Taken all of these factors into consideration, the advantage of the third factor weighs heavily in Claimant’s favor. Therefore, this is a compensable claim.
6
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay for Claimant’s C7 foraminotomy and all medical and rehabilitation costs associated with the proposed surgery.
Dated at Montpelier, Vermont this ____ day of July 2006.
________________________________
Thomas W. Douse
Acting Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

A. R. v. EHV Weidman (August 10, 2006)

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

A. R. v. EHV Weidman (August 10, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
A. R. Opinion No. 36-06WC
By: Margaret A. Mangan
v. Hearing Officer
EHV Weidman For Patricia Moulton Powden
Commissioner
State File No. X-19525
Hearing Held in Montpelier on June 6, 2006
Record closed on June 20, 2006
APPEARANCES:
Vincent Illuzzi, for the Claimant
Nicole R. Vincent, for the Defendant
ISSUE:
Is the Claimant’s ongoing membership in a health club compensable?
EXHIBITS:
Joint I: Medical records
Claimant’s 1: Affidavit of Thomas Turek, D.C.
Claimant’s 2: Curriculum vitae of Dr. Turek
Defendant A: Transcript of deposition of Victor Gennaro, D.O.
FINDINGS OF FACT:
1. Claimant was an employee and EHV Weidmann his employer within the meaning of the Workers’ Compensation Act from 1973 until Claimant retired in 1999.
2. In the fall of 1985, Claimant injured his upper back when he tried to catch a large heavy cylinder and twisted in the process. He was diagnosed with a thoracic strain.
3. Before the 1985 work related incident, Claimant did not have symptoms of back problems. However, he had a condition called osteogenesis imperfecta that is known to cause ligament laxity and fractures. Before the work-related injury, Claimant also had an exaggerated thoracic kyphosis that was asymptomatic.
2
4. After his work related injury, Claimant consulted with several health care providers, including Thomas Turek, D.C. who treated him with spinal manipulation, ultra-sound therapy and exercise therapy.
5. Dr. Turek placed Claimant at medical end result in July 1991. Palliative care continued. Dr. Turek recommended that Claimant continue flexibility exercises, which could be done at home.
6. An x-ray taken in 1991 revealed a thoracic level compression fracture that was not present in 1985.
7. In 1991 Dr. Peterson examined the Claimant. He determined that Claimant had reached medical end result and assigned a permanency rating. He also determined that Claimant would need continued chiropractic treatment on an infrequent basis and that he should continue daily exercise, including strength training.
8. In 1992 Claimant was advised to have aqua therapy for low back and leg pain unrelated to the work-related injury.
9. Claimant consistently follows an exercise routine recommended by his physicians and developed by a physical therapist at his local gym.
10. On occasions when Claimant had to stop his exercise regimen, his upper back pain returns.
11. The goal of a several month physical therapy program Claimant had in 1994 was to prepare him for an independent home exercise program.
12. In 1999 Claimant fell and fractured his hip. Treatment required hospitalization. He never returned to work after that injury.
13. In 2004 Claimant fell and sustained a clavicle fracture.
14. Dr. Turek opined that Claimant requires periodic treatment to maintain his status. Claimant’s first visit to Dr. Turek in fifteen years was in August of 2005. At that time, he opined that Claimant’s work related injury required continued use of the health club.
15. In February 2006 Dr. Victor Gennaro examined Claimant for the defense. He noted that those with osteogenesis imperfecta and thoracic kyphotic curvature frequently have chronic pain and spinal deformity. Dr. Gennaro opined that any symptoms Claimant now experiences are not from the 1985 injury, but from more recent causes. He based that decision on the diagnosis in 1985 (thoracic sprain), date of medical end result (1991), Claimant’s other medical conditions, and the difference in Claimant’s current symptoms compared to those in 1995. Further, Dr. Gennaro opined that the health club membership would be reasonable management for the osteogenesis imperfecta, but not for the work-related sprain. It would be reasonable because Claimant chose it. But all the exercises Claimant needs could be done with an exercise ball and walking, without the expense of a gym.
3
16. Dr. Hebert, Claimant’s primary care physician, opined that the health club membership was reasonable treatment for Claimant’s spinal compression fractures. Those fractures were not work-related.
17. Claimant has managed his symptoms by joining a gym and actively exercising.
18. The exercises Claimant needs to manage any persistent symptoms from his thoracic strain could be done at home. Claimant is more likely to do them if he goes to the gym regularly.
19. Claimant has submitted support for an attorney fee award based on 43 hours of work and necessary costs of $429.82.
CONCLUSIONS OF LAW:
1. A Claimant injured in an accident that arose out of and in the course of his employment is entitled to reasonable medical treatment causally related to that injury. 21 V.S.A. § 618; 640(a).
2. Assuming that the gym membership is reasonable, the issue for decision is whether it is causally related to the 1995 work related injury.
3. In determining causation, there must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the work related injury caused the need for the gym membership; proof that it is more probable is necessary. See Burton v. Holden Lumber Co., 112 Vt. 17 (1941).
4. Claimant is to be commended for his regular exercise regime from which he has reaped benefits. However, a careful review of all records, including early records from Dr. Turek, supports the defense position that the work-related thoracic strain does not account for the symptoms Claimant claims are helped by participation in the gym.
5. First, home exercises were all that was needed for the thoracic strain after physical therapy ended in 1994. Claimant’s preference for a gym membership is a personal one, not a medical requirement for the work-related injury. The decisive factor is not what the Claimant desires or what he believes to be the most helpful, but what is shown by competent expert evidence to be reasonable and casually related to the work related injury. Britton v. Laidlaw Transit, Opinion No 47-03WC (2003). Second, the exercised Claimant performs at the gym are more likely needed because of the fractures that occurred after the work-related injury and Claimant’s preexisting conditions, as one of Claimant’s treating physicians and both defense exerts have opined.
6. Because the crucial element of causation is lacking, the carrier is no longer responsible for paying the gym membership fee.
4
ORDER:
Therefore based on the foregoing findings of fact and conclusions of law, this claim is DENIED.
Dated at Montpelier, Vermont this 10th day of August 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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

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

D. B. v. Vergennes Auto Inc. (October 9, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
D. B. Opinion No. 42-06WC
By: Margaret A. Mangan
v. Hearing Officer
Vergennes Auto Inc. For: Patricia Moulton Powden
Commissioner
State File No. U-02969
Hearing held in Montpelier on June 21, 2006
Record closed on July 10, 2006
APPEARANCES:
Mary G. Kirkpatrick, Esq., for the Claimant
Andrew C. Boxer, Esq., for the Defendant
ISSUES:
1) Is Claimant’s left shoulder condition causally related to her 2003 right shoulder injury?
2) Did Claimant reach medical end result in the summer of 2005?
3) Did the Defendant waive its right to contest left shoulder claims by voluntarily paying related medical bills?
EXHIBITS:
Claimant:
1. Letter of June 10, 2005 from adjuster to Claimant
2. Office note of June 1, 2005 from Dr. Nichols
3. A June 23, 2005 Travelers form signed by Dr. Nichols
4. An April 4, 2005 claim form which has work restrictions
5. Surveillance video (on CD) of April 27, 2005
6. Transcript from Claimant’s deposition
Defendant:
1. Post-it note from Dr.Claude Nichols
2. Reverse side of Defendant 1
2
FINDINGS OF FACT:
1. Claimant has a long history of manual labor work.
2. Claimant was an employee and Vergennes Auto her employer within the meaning of the Vermont Workers’ Compensation Act. She had been working for Vergennes Auto for about a year and a half at the time of her work related injury in July 2003.
3. American Zurich Insurance Company was the workers’ compensation insurance carrier for Vergennes Auto on July 30, 2003.
4. It is undisputed that Claimant suffered a work related injury to her right shoulder on July 30, 2003 when a car hood fell on that shoulder. She is left hand dominant.
5. After the injury, Claimant received medical and physical therapy treatment for the right shoulder.
6. By November 2003 she was diagnosed with a full thickness rotator cuff tear. She had surgery on December 16, 2003. Two weeks later she was released to work with her right shoulder still in a sling.
7. Physical therapy continued even after Claimant’s return to work. Although she was left hand dominant, she was using that arm even more than usual.
8. Claimant was given restrictions against using the right arm in certain activities. A Spring 2004 MRI revealed that the right shoulder muscle was not completely healed.
9. Pain developed in her left shoulder as she used that arm more. In July 2004 she noted marked left shoulder pain that prompted her to seek medical attention when she lifted a gallon of milk from her refrigerator.
10. Claimant was diagnosed with impingement syndrome in the left shoulder.
11. Because of persistent pain and positive objective tests, Dr. Nichols performed a second operation on Claimant’s right shoulder in January 2005. Medical efforts then focused on her left shoulder.
12. Dr. Nichols diagnosed a full thickness tear in Claimant’s left shoulder, similar to what she had on the right side.
13. Physicians agree that the blood supply to the rotator cuff is poor, increasing the likelihood that with age and with manual labor, the rotator cuff would tear. Often such tears are asymptomatic.
14. Claimant continued physical therapy in an effort to quiet both shoulders. The insurance carrier paid for the treatment.
3
15. Claimant’s pain in both shoulders continued. In June 2005, Dr. Nichols noted that Claimant had a work capacity for three to four hours a day at the sedentary level. He predicted that she would reach medical end result by July of that year, 2005.
16. Dr. Nichols recommended surgery on Claimant’s left shoulder, but in June 2005 she declined. Her condition has remained essentially unchanged since then.
17. In July 2005, Dr. John Johansson determined that Claimant had reached medical end result.
18. Dr. Lefkoe, a physiatrist, began treating Claimant for pain in July 2005. He determined that she had not yet reached medical end result because better pain management would improve her function. In his opinion, pain management is not merely palliative because functional outcome can be improved. Shoulder range of motion measurements have improved slightly under his care. Activities of daily living are easier for her.
19. Claimant continues to complain of pain in her left shoulder. Although she has received several treatment modalities, the only relief she has enjoyed is about an hour after a massage.
20. Although Claimant used her left arm more when the right was restricted, that use did not reach the level of overuse for the shoulder because it did not involve repetitive motions with her left arm elevated.
21. The carrier has paid for treatment of both shoulders, without accepting the left shoulder as compensable.
Causation
22. In 2006 Dr. Johansson opined that Claimant’s left shoulder condition is not causally related to her work related injury, although in his permanency report of 2005 he suggested that it was. He reasoned that the more likely cause of the left sided rotator cuff tear was normal aging since women of Claimant’s age have been known to develop such tears insidiously.
23. Dr. Claude Nichols, treating orthopedic surgeon, was called by the Claimant to testify at the hearing. He opined that it is more probable than not that Claimant’s left shoulder pain is related to the right shoulder work-related injury because of overuse of her left shoulder, although he could not say that the rotator cuff tear was caused by the overuse. In fact, the left sided tear could have happened before the work related injury.
4
Medical End Result
24. Dr. Johansson opined that Claimant reached medical end result in the summer of 2005. At that time he predicted that no further treatment was required except home exercises.
25. According to Dr. Nichols, Claimant had reached medical end result once she decided against surgery.
CONCLUSIONS OF LAW:
Waiver
1. Claimant argues that Defendant waived its right to contest liability for her left shoulder tear because it had paid medical bills for both shoulders.
2. “A waiver is the intentional relinquishment of a known right.” Liberty Mutual Insurance Co. v. Cleveland, 127 Vt. 99, 103 (1968). (citing and quoting Beatty v. Employers’ Liability Assurance Corp., Ltd., 106 Vt. 25,31
3. The burden falls on the party asserting waiver to show an “act or an omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right at question.” M. S. v. Visiting Nurse Association, Opinion No. 10-06WC at 4 (2006). (citing Holden & Martin Lumber Co. v. Stuart, 118 Vt. 286, 289 (1954)).
4. While Defendant paid some medical bills related to the left shoulder injury, this alone is insufficient to show acceptance of a claim. Briggs v. Maytag Homestyle Repair, Opinion No.18-00WC (2000). The facts indicate that the Defendant made these payments in good faith, before it was certain whether or not the claim was actually compensible.
5. In short, the Defendant paid these medical bills without knowledge of all the relevant facts and, as a result, could not have waived its right to contest the claim. (See Hojohn v. Howard Johnson, Opinion No. 43-04WC at 6 (2004). Accordingly, the question of causation must be addressed.
Causation
6. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1962).
7. To prevail on the contested issue Claimant must prove that her left shoulder injury arose out of and in the course of her employment. 21 V.S.A. § 618. Although not directly injured the day the car hood fell on her right shoulder, the left shoulder pain is compensable if it is a natural consequence of the right-sided injury. See 1 Larson’s Workers’ Compensation Law § 10.
5
8. However, a temporal relationship alone is an insufficient basis for an award. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983).
9. Here, the requisite causal relationship between the right and left sided conditions has not been proven. No physician, including her treating surgeon, was able to say when the left sided tear occurred. Although Claimant used her left arm more than usual, the evidence does not support her argument that such use rose to the level of shoulder overuse because it did not involve repetitive movements with her arm elevated. In all likelihood it was the natural progression of years of hard labor and the normal aging process, not as a result of the right-sided injury. Accordingly, the left sided condition is not compensable.
Medical End Result
10. Next is the question of medical end result, which is “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant improvement is not expected, regardless of treatment.” WC Rule 2.1200.
11. Also called “maximum medical improvement,” this is a “condition or state that is well-stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not expected.” AMA Guides to the Evaluation of Permanent Partial Impairment, 5th Ed. at 601.
12. Although Claimant continues to receive treatment for pain with the hope of an increase in functionality, she has been at a plateau since the summer of 2005, as determined by Dr. Johansson. Minor increases in range of motion and modest improvements in basic activities of daily living do not rise to the substantial change necessary to counter the defense of medical end result.
13. In sum, Claimant’s left sided shoulder condition is not work related. Further, the defense position that Claimant had reached medical end result in the summer of 2005 is accepted.
6
ORDER:
Therefore, based on the foregoing findings of fact and conclusions, of law:
1) Defendant did not waive its right to contest the conpensability of the left shoulder injury;
2) Claimant’s left shoulder claim is not compensable;
3) Claimant reached medical end result in 2005.
Dated at Montpelier, Vermont this 9th day of October 2006
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

F. N. v. Montpelier School District (December 20, 2006)

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

F. N. v. Montpelier School District (December 20, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. N. Opinion No. 52-06WC
By: Margaret A. Mangan
v. Hearing Officer
Montpelier School District For: Patricia Moulton Powden
Commissioner
State File No. U-52182
Hearing held on Montpelier on November 3, 2006
Record closed on November 13, 2006
APPEARANCES:
Richard Davis, Jr., Esq., for the Claimant
Jason R. Ferreira, Esq., for the Defendant Cambridge Integrated Services
Timothy Vincent, adjuster for Defendant VSBIT
ISSUES:
1. Whether the treatment proposed by Dr. Cody is medically necessary and causally related to Claimant’s work-related low back injury.
2. If so, what carrier is responsible for this claim?
EXHIBITS:
I: Joint Exhibits
A. Medical Records
B. Deposition of Dr. Rayden Cody
II: Defense Exhibits:
A. Curriculum vitae of Dr. John Johansson
B. Affidavit dated July 25, 2006
III: Claimant’s exhibit:
A. Curriculum vitae of Dr. Rayden Cody
2
FINDINGS OF FACT:
1. In March 2004 and April 2005 Claimant was an employee and the Montpelier School District his employer within the Vermont Workers’ Compensation Act.
2. Cambridge Integrated Services provided workers’ compensation insurance for the Montpelier School District between March 2004 and June 2004.
3. In July 2004, the Vermont School Board Insurance Trust (VSBIT) began providing workers’ compensation insurance for the Montpelier School District.
4. Claimant began working as a custodian for the Montpelier schools in December 2001. His duties included dusting, mopping, cleaning floors, bathrooms, locker rooms, the auditorium and some classrooms. During the school year, he worked from midnight to 8:00 a.m., during the summer from 2:00 p.m. to 10:00 p.m.
5. About ten years before the incidents at issues here, Claimant hurt his back when he slipped at a bowling alley. In March of 1999 Dr. Christopher Merriam characterized Claimant’s low back pain as chronic. At that time, Claimant complained of a worsening of symptoms with sharp pain in his low back. Dr. Merriam diagnosed Claimant’s condition at the time as muscular, although he also noted that a CT scan revealed a disc bulge at L4-L5.
6. On March 22, 2004, Claimant was lifting a trash bag at work for the school district when he felt inguinal and back pain.
7. As a result of the lifting incident, Claimant had a hernia and low back pain. He sought medical care, was taken out of work and received physical therapy. In April 2004 Claimant had surgery to repair the inguinal hernia.
8. Claimant’s initial attempt to return to work failed, but he was able to return to full duty in June 30, 2004 after he demonstrated in physical therapy that he could lift fifty pounds without difficulty.
9. On November 10, 2004, at the carrier’s request, Claimant had an independent medical examination with Dr. Jonathan Fenton who determined that Claimant had not yet reached medical end result. At Dr. Fenton’s recommendation, Claimant had SI joint injections.
10. In March 2005, Claimant was released medically for overtime work “as tolerated.”
3
11. In April 2005, while Claimant was still treating with Dr. Fenton, he was working on a platform in a music room changing filters, a job that necessitated climbing a ladder. After changing a filter, Claimant was stepping from the platform to the ladder when he heard a snap in his back, and felt as though he was being stabbed. In addition, he had pain, numbness and weakness in his right lower extremity.
12. Claimant was again taken out of work and treated with physical therapy. He has not returned to work since.
13. Dr. Peterson, who recommended physical therapy, questioned whether there was a behavioral component to Claimant’s back pain.
14. Records demonstrate physicians’ concerns about Claimant’s use of narcotics. For example, a June 2005 note by Dr. Ruth Crose referred to Claimant’s history of mixed substance abuse and heavy alcohol use.
15. In May 2005, a physical therapist noted that Claimant had not been attending physical therapy consistently and questioned whether he would benefit from further therapy.
16. In August 2005, Dr. Peterson recommended a work hardening program with a behavioral component.
17. A September 26, 2005 MRI revealed minor dehydration at L3-4, L4-5 and L5-S1 and a slight bulge at L5-S1.
18. Claimant treated at the Vermont Center for Occupational Rehabilitation under the direction of Dr. John Johansson from November 21, 2005 until February 9, 2006.
19. During the five-week program, Claimant first underwent a behavioral medicine and pain management evaluation. He then had extensive physical therapy, pool therapy, training on body mechanics and posture and instruction on how to perform the work of custodian ergonomically. The physical therapy portion of the program was scheduled for three sessions each week for the five weeks. Claimant missed eight of the sessions. He also missed several of the behavioral medicine components.
20. On February 9, 2006, Dr. Johansson placed Claimant at medical end result with a 5% whole person rating and released him to work at medium duty work. In the final evaluation for the program Dr. Johansson noted that Claimant had “absence issues.”
21. In March 2006, Dr. Merriam diagnosed Claimant’s problem as likely ligamentous. He recommended aerobic exercises, stretching and physical therapy.
22. The school district offered to modify Claimant’s job to make it consistent with a medium duty work capacity.
4
23. Claimant then returned to the Plainfield Health Center with significant complaints of pain and asked for another referral. On that referral he went to Dr. Rayden Cody at the Spine Institute of New England who is an expert in the field of interventional pain management.
24. The drug test Dr. Cody ordered was positive for several substances. Yet, Claimant denied any drug use.
25. Dr. Cody noted a high intensity zone in Claimant’s MRI that he opined was the source of Claimant’s pain. In Dr. Cody’s opinion, its source was either disc or facet. On examination, he noted that Claimant’s spinal flexion was worse than his extension, suggesting a disc source of the pain.
26. Dr. Cody recommended a bundle branch block (BBB) to determine whether the facet joint was the pain source. If the result proved positive, he would then recommend radio frequency ablation (RFA) to treat the pain. According to Dr. Cody, these procedures help a significant number of patients. Although they do not always work, “for the most part they don’t cause damage…” explained Dr. Cody.
27. If the bundle branch block were negative, Dr. Cody would recommend a discogram to determine if the disc is the source for the pain. If so, he would recommend interdiscol electro thermal therapy, known by its acronym IDET.
28. Dr. Cody determined that Claimant’s past narcotic use would not affect his opinion regarding the recommended procedures.
29. Dr. Jerry Tarver at Fletcher Allen Health Care Division of Pain Management agreed with the medial BBB followed by RFA or discogram followed by IDET.
30. The procedure recommended by Dr. Cody is qualitatively different from the pain management program Claimant underwent under Dr. Johansson’s supervision.
31. Dr. Cody opined that the work related incident aggravated Claimant’s preexisting disc desiccation condition (dehydration in the discs).
32. Dr. Johansson opined that the radiofrequency ablation would have a low likelihood of relieving Claimant’s pain or improving his functional status. He attributes Claimant’s pain to degenerative disc disease, not to facets.
33. Doctors Cody and Johansson agreed that the second work related incident aggravated his previous injury or caused a new injury. The opinions were based on the facts that Claimant was able to return to work full duty after the first injury, but not after the second; that he was able to continue with the physical activities after the first injury, but not after the second; and that he was on stronger pain medications after the second injury. Overall, he was worse off after the second injury.
5
34. In June 2006 Claimant was involved in a physical altercation. He was intoxicated at the time. Dr. Cody opined that the incident had no effect on his opinion.
35. Finally, Dr. Cody explained that Claimant is in considerable pain. He proposes to intervene regardless of a history of narcotic use.
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. A medical treatment is compensable if it is reasonable and causally related to a work related injury. 21 V.S.A. § 640(a).
4. Defendants make much of the Claimant’s narcotic use in urging the Commissioner to deny this claim. Ironically, that is one factor that supports the progressive steps outlined by Dr. Cody. He convincingly testified that Claimant is entitled to pain relief despite that history. If the treatment is successful, any prescriptions for the narcotics may be reduced or stopped completely. And, of course, such use certainly will be monitored during treatment.
5. Claimant needed further intervention for pain relief before the 2006 physical altercation. Therefore, that incident cannot operate to defeat this claim.
6. Accordingly, Claimant has proven that the treatment proposed by Dr. Cody is reasonable.
7. Next is the question whether Claimant’s condition is an aggravation or recurrence, a dispute on which the most recent carrier, VSBIT, has the burden of proof because pursuant to 21 V.S.A. § 662(c), “the employer or insurer at the time of the most recent personal injury …shall have the burden of proving another employer’s or insurer’s liability.” Farris v. Bryant Grinder, 177 Vt. 456, 461 (2005).
8. “Aggravation” means an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events. WC Rule 2.1110. “Recurrence” means the return of symptoms following a temporary remission. Rule 2.1312.; see also Pacher v. FairdaleFarms 166 Vt. 626, 629 (1997) (mem).
6
9. Facts this Department examines to determine if an aggravation occurred, with the greatest weight being given the final factor, are whether: 1) a subsequent incident or work condition destabilized a previously stable condition; 2) the claimant had stopped treating medically; 3) claimant had successfully returned to work; 4) claimant had reached an end medical result; and 5) the subsequent work contributed independently to the final disability. Trask v. Richburg Builders, Opinion No. 51-98WC (1998).
10. Most factors devolve toward aggravation in this case. Claimant’s stable condition before the 2005 incident was destabilized when he moved from the platform to the ladder at the school and felt excruciating pain. Although he had not stopped treating medically, Claimant had successfully returned to full time, full duty work. Although he had not been placed at medical end result officially before the 2005 incident, his condition had reached a plateau. Finally, the 2005 incident contributed to the Claimant’s final disability as each doctor clearly opined.
11. Therefore, VSBIT is the responsible carrier because Claimant suffered an aggravation under its watch.
ORDER:
Based on the foregoing findings of fact and conclusions of law, VSBIT is ORDERED to adjust this claim, including the payment for the diagnostic work and treatment proposed by Dr. Cody.
Dated at Montpelier, Vermont this 20th day of December 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Rebecca Collins v. State of Vermont (August 8, 2011)

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

Rebecca Collins v. State of Vermont (August 8, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Rebecca Collins Opinion No. 22-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont For: Anne M. Noonan
Commissioner
State File No. AA-03636 OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 29, 2011
Record closed on April 29, 2011
APPEARANCES:
Kelly Massicotte Esq., for Claimant
William Blake, Esq., for Defendant
ISSUES PRESENTED:
1. Was Claimant’s right hip injury causally related to her April 13, 2009 work accident?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Weiss consultation, June 16, 2009
Claimant’s Exhibit 2: Curriculum vitae, George White, M.D.
Claimant’s Exhibit 3: Excerpted sections of AMA Guides to the Evaluation of
Permanent Impairment, 5th ed.
Defendant’s Exhibit A: Deposition of John Johansson, D.O., November 30,
2010
Defendant’s Exhibit B: Curriculum vitae, John Johansson, D.O.
Defendant’s Exhibit C: Medical records prior to April 13, 2009
Defendant’s Exhibit D: M. Groh and J. Herrera, A Comprehensive Review of
Labral Tears, Current Review of Musculoskeletal
Medicine 2:105-117 (2009)
Defendant’s Exhibit E: Denial of Workers’ Compensation Benefits (Form 2)
2
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
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 an 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 works for Defendant as a probation and parole officer. Her duties include supervising convicted offenders on parole, probation and house arrest status. This often involves conducting field checks on offenders at their homes.
4. Claimant is a physically active person. She enjoys running, golf, tennis hiking, biking and other activities.
Claimant’s April 13, 2009 Work Injury
5. On April 13, 2009 Claimant traveled in her car to Milton, Vermont to perform a field check at a client’s home. Upon arrival she parked in the driveway, which was somewhat slanted, then exited the car and proceeded to the house. She knocked on the door, and as she was waiting for the client to open it she glanced back and saw that her car was rolling backwards down the driveway. Claimant ran to her car and positioned herself behind it, with her left shoulder against the rear end and her right leg braced as an anchor, but the car kept rolling. Over the next few moments, she tried repeatedly to re-anchor her right leg, but as the car picked up speed its force continued to jerk her down the driveway. Finally she stepped aside and watched as the car rolled across the road, through a ditch and into a neighbor’s yard.
6. Claimant was understandably shaken by this incident. Nevertheless, she retrieved her car and drove back to her office. Her right leg was hurting and shaking, in what she described as a “weird body sensation.” Claimant reported the incident to her supervisor, worked the remainder of the day, then went home and iced her ankle, which seemed to be hurting the most.
7. The next day Claimant presented to her primary care provider, Dr. Dill, complaining of right ankle pain. Dr. Dill diagnosed a right ankle sprain and prescribed ice, elevation and an air cast for up to one month. She also advised Claimant not to run for two weeks.
3
8. Dr. Dill’s office note does not reflect that Claimant complained of any pain in her right hip at the time of her April 14th examination. Claimant does not recall if she did so or not. She was focused on her right ankle at the time because that was where she was experiencing the most pain.
9. In keeping with Dr. Dill’s advice, Claimant refrained from running until early May. By then her ankle pain had improved and so she resumed her routine. With running, however, Claimant noticed that she was experiencing a deep, sharp pain in her right hip and groin.
10. Claimant’s hip pain continued through May and June 2009. During this time she self-treated with ice and ibuprofen. She also altered her exercise routine by running more slowly and for less distance. Regardless of her activity level, however, her pain did not abate. Getting into and out of her car was painful, as was walking up and down inclines and arising from a sitting to a standing position.
11. Claimant did not play golf at all in May 2009. In June she played three or four times. Her hip bothered her when she did so, but the activity did not make it any better or worse.
12. On June 16, 2009 Claimant consulted with a pulmonologist, Dr. Weiss, for treatment of a persistent cough. According to Dr. Weiss’ office note, Claimant reported that she had been experiencing right hip pain for the past five weeks, which significantly increased whenever she coughed. This disclosure dates the onset of Claimant’s hip pain back to mid-May 2009, approximately four weeks after the April 13, 2009 incident and within a week or so of when she resumed running.
13. On July 6, 2009 Claimant returned to see Dr. Dill. This time she reported that she had been experiencing right hip pain since the April 13th incident with her car. Claimant reported that she did not think golf aggravated her hip, but that she was a “cripple” when she ran. Dr. Dill recommended an orthopedic evaluation.
14. Coincidentally, on the same day that she saw Dr. Dill Claimant also had a previously scheduled appointment with her orthopedist, Dr. Frenzen, who was following her for an unrelated issue. Dr. Frenzen suspected that the mechanism of Claimant’s April 2009 injury, which involved torque, or rotation against resistance, might have caused a labral tear in her hip.
15. Diagnostic imaging studies confirmed Dr. Frenzen’s suspicions. The studies revealed that that the labrum in Claimant’s hip – the rim of cartilage that provides support and stability to the joint – had either torn or separated from the acetabulum, or socket part of the hip. Claimant underwent surgery to repair the separation on October 15, 2009. Thereafter, she was totally disabled from working through November 10, 2009. At that point she returned to work part-time (four hours per day). On December 2, 2009 she returned to full-time, full-duty work.
4
Expert Medical Opinions as to Causation
16. Both parties presented expert medical testimony as to the causal relationship, if any, between the April 2009 incident and the labral separation in Claimant’s hip. Dr. White concluded that such a relationship existed. Dr. Johansson concluded that Claimant’s recreational activities were a more likely cause.
(a) Dr. White
20. Dr. White is board certified in occupational medicine. He has performed thousands of independent medical evaluations, for both claimants and employers. He also is well experienced in rating permanent impairment. Dr. White saw Claimant for an independent medical examination on August 30, 2010. He also reviewed her medical records and diagnostic imaging studies.
21. To a reasonable degree of medical certainty, Dr. White concluded that Claimant’s right hip injury was causally related to the April 2009 incident. His opinion was based primarily on the mechanism of her injury on that day. Even as she attempted to use her right leg as an anchor, the car kept rolling backwards. This forced her to constantly reposition her leg as it was jerked repeatedly out of place.
22. Dr. White found support for his causation theory in the surgical findings. These revealed only one localized area of injury in Claimant’s right hip, in the upper front part of the joint. Had the hip been arthritic, there likely would have been evidence of degeneration throughout the joint.
23. Dr. White discredited Claimant’s exercise activities, either running or golf, as causative factors. Based on his review of the sports medicine literature, neither golfers nor runners are at increased risk for labral injuries to the hip. Tears of this type are not easily recognized, and symptoms can be vague and difficult to diagnose. It is neither unusual nor inappropriate, therefore, for a person to continue to engage in exercise even with a labral tear. As Dr. White noted, Mike Lowell, a professional baseball player, played an entire season with a tear in his labrum. A recreational athlete will not inflict further damage by continuing with activities to the extent that he or she can tolerate the discomfort.
24. Dr. White also was not troubled by the fact that Claimant did not complain of hip pain until some weeks after the April 2009 incident. Initially she felt the most pain in her ankle, and thus was distracted from her hip pain until the ankle began to improve. In Dr. White’s experience, this type of reaction is not uncommon among patients. Once she became aware of her hip symptoms, Claimant gave a consistent history of her complaints to other providers. Given this history, and with no prior history of right hip pain or injury, the April 2009 incident thus became the most likely causative event.
25. I find Dr. White’s analysis as to the causation of Claimant’s labral separation to be credible in all respects.
5
26. According to Dr. White, surgery is the treatment of choice for labral injuries of the type Claimant suffered. He determined that Claimant had reached an end medical result as of the date of his examination, August 30, 2010. Dr. White rated the extent of Claimant’s permanent impairment at 8% whole person.
(b) Dr. Johansson
27. Dr. Johansson, an osteopath, is board certified in family medicine. His current practice is approximately 75% clinical work and 25% forensic work. At Defendant’s request, Dr. Johansson saw Claimant for an independent medical examination on December 1, 2009. He also reviewed Claimant’s medical records, though he acknowledged that this was not a “totally comprehensive review.”
28. According to Dr. Johansson, the medical evidence does not support a causal relationship between the April 2009 incident and Claimant’s hip injury to the required degree of medical certainty. In reaching this conclusion, Dr. Johansson pointed to two factors – first, the fact that Claimant did not complain of hip pain until some time after the April 2009 incident, and second, the fact that she was an avid runner, golfer and recreational athlete. According to Dr. Johansson, these activities provided a more likely explanation for Claimant’s labral separation than the April 2009 incident.
29. As to the first factor, Dr. Johansson pointed to Dr. Dill’s July 6, 2009 office note, almost three months after the April 2009 incident, as documenting Claimant’s first complaint of hip pain. In fact, however, Dr. Weiss’ June 16, 2009 note provides the first indication of hip pain. Given the emphasis that Dr. Johansson placed on the timing of Claimant’s first report of hip pain, for him to have missed this reference is troublesome.
30. Dr. Johansson also found significant the fact that even after the April 2009 incident Claimant still was able to engage in running, hiking and golf activities. In support of his opinion that these activities most likely caused or contributed to Claimant’s labral separation, Dr. Johansson referenced a medical journal article that examined the cause of such injuries.1 According to the authors of that article, the area of the hip in which Claimant’s tear occurred is subjected to greater stress than other regions, which explains why more tears occur there. At the same time, however, the authors conceded that trauma can cause tears in that region as well. With that in mind, I find that the article fails to provide substantial guidance as to the cause of Claimant’s tear.
31. Dr. Johansson acknowledged that the mechanism of injury that Claimant described in conjunction with the April 2009 incident could cause the labral separation that her surgery later revealed. He maintained that Claimant’s recreational activities were a more likely cause, however.
32. Dr. Johansson did not perform a permanent impairment rating referable to Claimant’s hip injury.
1 M. Groh and J. Herrera, A Comprehensive Review of Labral Tears, Current Review of Musculoskeletal Medicine 2:105-117 (2009).
6
Procedural History of Current Claim
33. Upon learning of the April 2009 incident, Defendant accepted Claimant’s right ankle sprain as compensable and paid medical benefits accordingly.
34. Claimant did not file a claim for benefits referable to her hip injury until mid-August 2009. She attributed the delay first, to her attempts to self-treat her symptoms and second, to being distracted by other personal issues with which she was struggling during that summer. I find her explanation in this regard to be credible.
35. In September 2009 Defendant denied the compensability of Claimant’s hip injury as not causally related to the April 2009 incident. Claimant appealed the denial. Upon reviewing the available medical evidence, on September 30, 2009 the Department determined that Defendant’s denial was not reasonably supported. It ordered Defendant to pay temporary total disability and medical benefits accordingly.
36. In early October, Defendant noticed Claimant’s deposition. Claimant was unrepresented at the time; she had contacted her current attorney but had not yet received definitive word back as to whether the attorney would take the case. Claimant telephoned Defendant’s attorney a day or two before the scheduled deposition and asked that it be rescheduled until she could confirm legal representation. It is unclear whether Defendant’s attorney responded. Shortly thereafter, Claimant’s current attorney decided to take the case. She also contacted Defendant’s attorney as to rescheduling the deposition but again, it is unclear whether Defendant’s attorney responded.
37. Claimant did not appear for the noticed deposition. On those grounds, Defendant filed a Notice of Intention to Discontinue Payments (Form 27), in which it sought to discontinue all workers’ compensation benefits effective October 16, 2009. As the Department did not rule on the discontinuance, Defendant terminated benefits accordingly.
38. In December 2009 Defendant filed a second Form 27, this time discontinuing medical benefits on the basis of Dr. Johansson’s conclusion that Claimant’s hip injury was not causally related to the April 2009 incident. The Department approved this discontinuance effective December 29, 2009.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
7
2. The disputed issue in this claim is one of causation. Claimant asserts that her right hip injury resulted from the April 13, 2009 incident. Defendant argues that the injury was caused by the physically active lifestyle she has maintained for some time.
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. Both of the experts here were independent medical examiners, not treating physicians. Both examined all of the pertinent records, and both were qualified to render opinions as to causal relationship.
5. Dr. Johansson admitted that his review of Claimant’s medical records was not “totally comprehensive,” and this might explain why he missed Dr. Weiss’ June 16, 2009 reference to Claimant’s report of hip pain. Dr. White’s evaluation contained no such gaps. On those grounds I conclude that it was more comprehensive.
6. I conclude as well that Dr. White’s opinion was clearer, more thorough and better supported than Dr. Johansson’s. He appropriately analyzed the mechanism of Claimant’s injury in the context of her non-contributory medical history. He also reviewed the medical literature and found no studies establishing any connection between labral tears and either running or golfing. Having done so, he persuasively established the causal connection between the April 2009 incident and Claimant’s hip injury.
7. I conclude that Claimant has sustained her burden of proving that her right hip injury was caused by the April 2009 incident and is therefore compensable.
8. As for Defendant’s discontinuance of benefits on account of Claimant’s failure to attend her noticed deposition, neither the statute nor the rules justify this. The statute does allow for benefits to be suspended when a claimant fails to attend an independent medical examination. 21 V.S.A. §655 and Workers’ Compensation Rule 14.5500. Even were I to interpret this section to encompass a claimant’s failure to attend a deposition, however, the circumstances here would not justify Defendant’s discontinuance. Claimant’s failure here occurred at a very early stage of the proceedings, with prior notice to Defendant’s attorney and with no demonstrable prejudice resulting.
9. 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 to submit her claim.
8
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from October 15, 2009 through November 11, 2009, in accordance with 21 V.S.A. §642;
2. Temporary partial disability benefits from November 12, 2009 through December 2, 2009, in accordance with 21 V.S.A. §646;
3. Permanent partial disability benefits as compensation for an 8% whole person impairment referable to the right hip, in accordance with 21 V.S.A. §648;
4. Interest on the above amounts calculated in accordance with 21 V.S.A. §664;
5. Medical benefits covering all reasonable and necessary medical services and supplies causally related to treatment of Claimant’s right hip injury, in accordance with 21 V.S.A. §640; and
6. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of August 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.

Shauna LaBelle v. Mylan Technologies (February 8, 2010)

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

Shauna LaBelle v. Mylan Technologies (February 8, 2010)
STATE OF VERMONT
DEPARTMENT OF LABOR
Shauna LaBelle Opinion No. 05-10WC
v. By: Sal Spinosa, Esq.
Hearing Officer
Mylan Technologies
For: Patricia Moulton Powden
Commissioner
State File No. AA-02370
RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT1
ATTORNEYS:
Beth Robinson, Esq., for Claimant
Kelly Smith, Esq., for Defendant
ISSUE PRESENTED:
Is there a genuine issue of material fact concerning whether Claimant suffered a compensable work-related injury?
FINDINGS OF FACT:
Considering the facts in the light most favorable to the non-moving party, see, e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. Claimant worked in Defendant’s packaging department. Her job involved different activities at more than one work station. She walked from station to station in order to perform these job requirements.
2. On January 6, 2009 Claimant was working her usual job when she felt a sudden pain in her right lower side and lower back. No one present witnessed the moment of injury. After a short recuperative period Claimant finished her shift and went home.
3. Claimant saw Defendant’s medical providers for her injury, where she received treatment and periodic work restrictions. Claimant described the physical movements that triggered the onset of her symptoms as an act of turning on one foot to step with the other. Defendant’s video shows Claimant performing such movements, and others, at one of her work stations. The same video shows the obvious onset of Claimant’s symptoms while she is walking, ostensibly from one work station to another. Claimant also told two
1 Although Claimant initially brought this motion Defendant responded in like manner seeking summary judgment in its favor. This will be treated as cross motions for summary judgment.
2
different medical providers on two different dates respectively that her symptoms occurred while walking.
4. On April 24, 2009 Claimant saw Dr. Barnum, an orthopedist. Claimant told Dr. Barnum that she was lifting, turning and stepping when her symptoms came on suddenly. Based on this specific description of the mechanics of Claimant’s injury, Dr. Barnum concluded that her symptoms probably were related to her work activities. Dr. Barnum believed that Claimant had exacerbated a prior injury she suffered in 2006 as a result of a motor vehicle accident.2
5. Claimant also saw Robert Hemond, a physician’s assistant at the Spine Institute of New England. Mr. Hemond noted possible disc abnormalities at L4-5. Mr. Hemond was aware of Claimant’s 2006 auto accident injuries but opined that those injuries were unrelated to Claimant’s current symptoms.
6. According to Paul Oszurek, who works in Defendant’s safety department, Claimant told him that she had been having recurrent hip issues related to her prior car accident. Both the content and date of this conversation are uncertain.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. In support of her position Claimant argues that her account of the injury event is credible. She also relies on Defendant’s video, which she argues demonstrates irrefutably that her injury occurred at work, and Dr. Barnum’s opinion that her injury was work-related.
3. Defendant, on the other hand, asserts that Claimant’s account of how her injury occurred is inconsistent and therefore not credible. It argues that there is a legal difference between an injury that occurs while simultaneously lifting, turning and stepping at a work station, as Dr. Barnum assumed, and one that occurs while merely walking across the floor from one work station to another, as Claimant described at other times and as it alleges its video shows. In Defendant’s view, while the former description may give rise to a compensable claim, the latter one reflects an idiopathic injury which may not be compensable under Vermont law.
2 Claimant fractured her pelvis, hip and ribs in that accident. Her treatment had concluded by late 2006.
3
4. To establish a compensable claim under Vermont’s workers’ compensation law, a claimant must show both that the accident giving rise to his or her injury occurred “in the course of the employment” and that it “arose out of the employment.” Miller v. IBM, 161 Vt. 213, 214 (1993); Carlson v. Experian Information Solutions, Op. No. 23-08WC (June 5, 2008); Boucher v. Peerless Insurance Co. Op. No. 16-08WC (April 16, 2008); 21 V.S.A. §618.
5. An injury occurs in the course of employment “when it occurs within the period of time when the employee was on duty at a place where the employee was reasonably expected to be while fulfilling the duties of [the] employment contract.” Miller, supra at 215, quoting Marsigli Estate v. Granite City Auto Sales, Inc., 124 Vt. 95, 98 (1964).
6. An injury arises out of the employment “if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where [claimant] was injured.” Shaw v. Dutton Berry Farm, 160 Vt. 594, 599 (1993), quoting 1 Larson, Workers’ Compensation Law §6.50 (1990) (emphasis in original). This so-called “positional risk” analysis lays responsibility on an employer when an employee’s injury would not have occurred “but for” the employment and the worker’s position at work. Id.
7. There is no dispute in the current claim as to the “in the course of” requirement. Claimant’s injury occurred while she was at Defendant’s work place, performing the job duties she was hired to do at the time she was supposed to be doing them.
8. The dispute here concerns the “arising out of” component, and it is driven by this question: Was Claimant’s injury caused by her work or, alternatively, was it the consequence of a medical condition that was purely personal to her, that is, an idiopathic condition? The answer to that question depends on the credibility of the evidence offered by each party in support of its position.
9. Dr. Barnum’s medical opinion is as reliable as the factual premise upon which it is based. In stating that Claimant’s work contributed to her injury, Dr. Barnum relied on Claimant’s description of her work activity at the very onset of her symptoms, specifically, that she was at that moment lifting, turning and stepping simultaneously at one of her work stations. However, this description of the injury event is countered by a co-worker, other medical reports and Defendant’s video.
10. Mr. Oszurek’s assertion that Claimant had complained about recurring back pain prior to the instant work injury points to a non-work-related cause for her current symptoms. Claimant strongly denies Mr. Oszurek’s claim. She questions both the content of his discussion with her and its timing.
11. When Claimant herself apparently stated to two separate medical providers that she was walking when her symptoms first appeared, rather than lifting, turning and stepping, she created a conflict in the medical reports of her account. These conflicts are not de minimis, as Claimant argues. Taken together, they raise questions of material fact relative to both causation and compensability.
4
12. Defendant’s video of Claimant at work is particularly revealing. Claimant does indeed lift, turn and step in close sequence at one of her work stations. Her sudden onset of pain, however, is not apparent at this work station. Rather, she first displays pain while walking toward a different work station. This is not how Claimant described her injury to Dr. Barnum. Claimant may have undermined the value of Dr. Barnum’s causation opinion when she provided him with an account that may not be entirely accurate. Credible evidence concerning the circumstances that led to Claimant’s injury is essential to Dr. Barnum’s opinion and may bear directly on whether her injury is compensable under Vermont law.
13. Had the evidence been uncontroverted that Claimant was injured while lifting, turning and stepping at her work station, her motion for summary judgment might merit stronger consideration. The fact that it might have occurred while merely walking, however, casts both legal and factual doubt on her claim. While Dr. Barnum did find Claimant’s work to be the cause of her injury, he did so based on a factual account at odds with other evidence in the case. If presented with other facts, Dr. Barnum might be compelled to change his opinion.
14. For the purpose of these motions it is not my function to make findings of fact. Fritzeen v. Trudell Consulting Eng’rs, Inc., 170 Vt. 632 (2000). I do find, however, that genuine issues of material fact remain in this case. Where that is so, summary judgment may not serve as a substitute for a determination on the merits. Id.; Human Rights Commission v. Benevolent & Protective Order of Elks, 2003 VT 104, (2003).
ORDER:
For the foregoing reasons, both Claimant’s and Defendant’s Motions for Summary Judgment are DENIED.
DATED at Montpelier, Vermont this 8th 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.

Robert Gadwah v. Ethan Allen (October 20, 2011)

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

Robert Gadwah v. Ethan Allen (October 20, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Robert Gadwah Opinion No. 33-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Ethan Allen For: Anne M. Noonan
Commissioner
State File No. P-09814
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 1, 2011
Record closed on June 22, 2011
APPEARANCES:
William Skiff, Esq., for Claimant
Wesley Lawrence, Esq., for Defendant
ISSUE:
Was Claimant’s January 2009 fusion revision surgery causally related to his 1999 work injury?
EXHIBITS
Joint Exhibit I: Medical records
Claimant’s Exhibit A: New Hampshire Department of Labor decision, Gadwah v. Weir Tree Farms, Case #63734
Claimant’s Exhibit B: Curriculum vitae, Andrew Forrest, M.D.
Defendant’s Exhibit 1A: Letter to Attorneys Skiff and Lawrence, July 28, 2009
Defendant’s Exhibit 1B: Letter to Attorneys Fox and Seeley, February 23, 2008
Defendant’s Exhibit 1C: Letter from Claimant, June 4, 2007
Defendant’s Exhibit 1D: Letter to Attorney Lawrence, March 18, 2010
Defendant’s Exhibit 2 Functional Capacity Evaluation, June 19, 2002
Defendant’s Exhibit 3: Functional Capacity Evaluation, February 9, 2005
Defendant’s Exhibit 4: Correspondence from Dr. Levy, April 25, 2010 and June 9, 2009
Defendant’s Exhibit 5: Letters to Claimant, February 29 and October 16, 2008
Defendant’s Exhibit 6: Weir Tree Farms website information
Defendant’s Exhibit 7: Weir Tree Farms payroll records
Defendant’s Exhibit 8: Social Security File, March 2011 (CD)
Defendant’s Exhibit 9: Formal Hearing Audio Transcript, March 2011 (CD)
2
Defendant’s Exhibit 10: Medical records (CD)
Defendant’s Exhibit 11: Deposition of Claimant, April 16, 2010
CLAIM:
All workers’ compensation benefits to which Claimant proves his entitlement as a consequence of his January 29, 2009 surgery;
Interest, costs and attorneys 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 and correspondence contained in the Department’s file relating to this claim.
3. Claimant has worked at manual labor for his entire life. He completed the ninth grade in school. By his own characterization, he does not read or write very well. Any correspondence between Claimant and others related to this claim was written by his wife but signed by Claimant.
Claimant’s 1999 Work Injury, Subsequent Medical Course and 2001 Fusion Surgery
4. Claimant worked at Defendant’s Beecher Falls plant from 1989 until approximately 2002. His duties there consisted of pulling boards and piling lumber. The work required constant lifting and twisting.
5. On October 12, 1999 Claimant injured his lower back at work. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly.
6. Claimant was diagnosed with herniated discs at both L4-5 and L5-S1. Initially he treated conservatively for his injury. His symptoms, which included both low back pain and pain radiating down his legs, failed to abate. In February 2000 his treating orthopedic surgeon, Dr. Howard, surgically removed the herniated disc material at both levels.
6. Claimant’s symptoms failed to resolve with surgery. He continued to complain of low back pain radiating down both legs, with swelling and muscle spasms as well. Diagnostic imaging studies in March 2001 revealed recurrent disc herniations at L4-5 and L5-S1. As treatment, Dr. Howard recommended a two-level disc fusion.
7. Claimant underwent Dr. Howard’s disc fusion surgery on May 17, 2001. Defendant acknowledged that the treatment was reasonable, necessary and causally related to Claimant’s 1999 work injury, and therefore paid workers’ compensation benefits accordingly.
3
8. Unfortunately, Claimant never achieved complete relief of his symptoms following the May 2001 fusion surgery. In fact, as he credibly testified, both his low back and leg pain continued as before. Claimant managed his pain as best he could, with prescription pain medications and soaking baths. He also reduced his activity level, particularly as to recreational pursuits that he had enjoyed previously, such as hunting, fishing and snowmobiling.
9. The medical records corroborate at least some of Claimant’s ongoing complaints during this period, though perhaps not the same level of activity restrictions. To the contrary, functional capacity evaluations in both 2002 and 2005 determined that Claimant was capable of performing full time work at a heavy physical demand level.
10. Claimant worked at a variety of jobs following the 2001 fusion surgery, none for any extended period of time. He worked as a dishwasher at a local restaurant, on a roofing job and at a rock-crushing machine. He also did mowing and other small jobs around the house. Claimant was never pain-free during this time and often worked less than full time. He acknowledged that he sometimes downplayed his symptoms to Dr. Howard, however, so that Dr. Howard would release him to work without restrictions. As Claimant described it, “I took my pills and went to work.” I find this testimony to be credible in all respects.
11. Claimant’s wife fully corroborated Claimant’s testimony, both as to his ongoing symptoms and as to his desire to keep working nevertheless. She often accompanied Claimant on his medical appointments, and testified that Dr. Howard’s notations to the contrary, Claimant was never “one hundred percent” or “pain free.” I find this testimony to be credible.
12. At Defendant’s request, in December 2002 Claimant underwent an independent medical examination with Dr. Gennaro. Dr. Gennaro determined that Claimant had achieved a “good result” from fusion surgery and was now at end medical result. He rated Claimant with a 23 percent whole person permanent impairment referable to his 1999 work injury.
13. Notwithstanding Dr. Gennaro’s end medical result determination, Dr. Howard had been questioning for some time whether Claimant’s fusion was in fact solid. Periodic x-rays from July 2001 through October 2003 indicated that it was not. As early as March 2003 Dr. Howard postulated that Claimant’s ongoing symptoms might be due to a non-union, and that he might require additional surgery to further stabilize his lumbar spine.
14. Claimant did not treat for his low back symptoms from April 2005 until May 2006. He testified that his pain complaints were unchanged during this period. To his mind, Dr. Howard appeared to be offering little in terms of treatment. Rather than continuing with periodic office visits, Claimant chose instead to self-treat with pain medications and hot baths.
15. Claimant returned to Dr. Howard in early May 2006, once again complaining of swelling in his lower back. As before, x-rays indicated that his fusion was not solid, with slight motion evident particularly at the L4-5 level.
4
Claimant’s Employment at Weir Tree Farms and Renewed Treatment Thereafter
16. In June 2006 Claimant began working at Weir Tree Farms in Colebrook, New Hampshire. Claimant had been born and raised nearby, and both he and his parents were friends of the Weir family. Claimant’s job duties at the tree farm included spreading fertilizer and trimming, cutting and boxing trees. Claimant worked through the 2006 holiday season, averaging close to 40 hours weekly. His employment terminated on January 6, 2007.
17. Claimant testified that his work at the tree farm did not change the frequency or severity of the pain in his lower back and legs in any way. Although his duties required bending and lifting, he had a helper to assist him and was able to sit down and rest when necessary. Nor did Claimant recall any specific aggravating incident related to his employment there. I find this testimony to be credible.
18. Shortly after his job at the tree farm ended, on January 17, 2007 Claimant returned to Dr. Howard. Dr. Howard’s office note reflects that “without incident” Claimant’s symptoms, consisting of low back pain with radicular symptoms into his legs, had worsened over the past few weeks. X-rays of his lumbar spine were again indicative of a non-union at L4-5. As he had in the past, Dr. Howard again suspected that Claimant’s symptoms might be attributable to a failed fusion at that level.
19. A subsequent MRI study confirmed that this was in fact the case. In addition, the MRI revealed a new disc herniation at L2-3. There is no credible medical evidence linking this more recent disc herniation in any way either to Claimant’s 1999 work injury and/or to his 2001 fusion surgery. To the contrary, the medical evidence establishes that the L2-3 herniation was caused either by Claimant’s work activities at Weir Tree Farms or by naturally occurring degenerative disc disease.
20. At Dr. Howard’s recommendation, initially Claimant treated conservatively for his worsened symptoms. Defendant resisted paying for the treatment, however, on the grounds that Claimant’s condition was referable to his work at Weir Tree Farms and therefore not its responsibility. In order to clarify this issue, at Defendant’s request Claimant underwent an independent medical examination with Dr. Davignon in May 2007. Dr. Davignon previously had examined Claimant in December 2006, also at Defendant’s request.
21. In the context of his December 2006 evaluation Dr. Davignon had concluded that all of the treatment Claimant had received up to that point was reasonable, necessary and causally related to his 1999 work injury. As for further treatment, Dr. Davignon had suggested that if concern remained as to whether or not Claimant’s fusion was solid, additional diagnostic imaging studies would not be unreasonable.
5
22. This time, Dr. Davignon acknowledged the possibility that Claimant’s new L2-3 disc herniation might be attributable to his tree farm work. It was equally plausible, however, that his condition “could also be caused by an aggravation of his prior [1999] injury and subsequent surgical intervention.” In raising this possibility, Dr. Davignon specifically observed that Claimant had never been asymptomatic since the time of his 2001 fusion surgery.
23. Despite conservative treatment, Claimant’s symptoms continued to worsen. Having lost faith in Dr. Howard, in September 2008 Claimant sought a surgical consult with another orthopedic surgeon instead, Dr. Brummett. Once again, diagnostic imaging studies revealed non-union of the 2001 fusion, particularly at the L4-5 level, as well as the more recent disc herniation at L2-3. Dr. Brummett recommended surgery as treatment for both conditions.
24. Claimant underwent Dr. Brummett’s surgery on January 26, 2009. As the operative record reflects, the surgery encompassed two separate procedures – (a) decompressing the L2-3 nerve root structures; and (b) revising the non-union at L4-5 to provide further stabilization in that area. It is not apparent from either the operative record itself or from Dr. Brummett’s office notes that he considered either procedure to be of any higher priority than the other.
25. Since Dr. Brummett’s surgery Claimant’s symptoms have improved significantly. He still experiences some leg weakness, but his pain level is dramatically reduced. Where he used to take soaking baths and pain medications daily, now he does so only once or twice monthly. His activity level has increased as well.
The New Hampshire Workers’ Compensation Claim
26. Defendant having denied responsibility for Claimant’s renewed treatment after May 2007 on the grounds that he had suffered a new injury at Weir Tree Farms, at some point thereafter Claimant filed a workers’ compensation claim against that employer in New Hampshire. He did so at the advice of his then-attorney, even though he continued to doubt that his symptoms were in any way attributable to his work there. Claimant testified to that effect at the formal hearing before the New Hampshire Department of Labor. Evidence also was presented by Dr. Sobel, an orthopedic surgeon, who reached the same conclusion after reviewing Claimant’s medical records.
27. After considering the evidence, in February 2010 the New Hampshire Department of Labor upheld the denial of Claimant’s claim against Weir Tree Farms on the grounds that he had failed to sustain his burden of proving any work-related injury during his employment there.
6
Expert Medical Opinions
28. Both Claimant and Defendant presented expert medical opinions as to the causal relationship, if any, between Claimant’s January 2009 surgery and either his 1999 work injury or his Weir Tree Farms employment. Dr. Forrest concluded that the 2009 surgery was necessitated at least in part by Claimant’s 1999 injury and the failed fusion that followed. Dr. Levy concluded that the 2009 surgery would not have occurred but for Claimant’s L2-3 disc herniation, a condition that was in no way related to his 1999 injury.
(a) Dr. Forrest
29. Dr. Forrest is board certified in physical medicine and rehabilitation. He performed an independent medical examination, consisting of both a physical examination and a medical records review, in October 2008.
30. To a reasonable degree of medical certainty, Dr. Forrest concluded that Claimant was suffering from two separate conditions in his lumbar spine. One, the L2-3 disc herniation, did not become evident until 2007 and most likely was caused by Claimant’s work at Weir Tree Farms. In Dr. Forrest’s opinion, therefore, any surgery directed at that level would be the responsibility of that employer.
31. As for the failed fusion at L4-5 and/or L5-S1, Dr. Forrest concluded that any surgery directed at revising the non-union at those levels would be Defendant’s sole responsibility. In reaching this conclusion, Dr. Forrest noted first, that diagnostic imaging studies had indicated motion at those levels before Claimant’s tree farm employment even began. Second, Claimant had complained of back and leg pain consistently since his original 2001 fusion. More likely than not, therefore, the dysfunction at both L4-5 and L5-S1 was attributable solely to Claimant’s 1999 injury, and not at all to his work at the tree farm. This analysis is amply supported by the medical records and I find it to be credible in all respects.
7
32. Dr. Forrest reiterated his opinions in October 2009, after reviewing the medical records relating to Dr. Brummett’s January 2009 surgery. In particular, Dr. Forrest concluded that the portion of Dr. Brummett’s surgery that related specifically to the non-union revision at L4-5, that is, “the L4-5 posterior arthrodesis, L4-5 posterior instrumentation [and] L4-5 local autologous bone grafting,” were all attributable to Claimant’s 1999 work injury.
(b) Dr. Levy
33. Dr. Levy is a board certified neurologist. He conducted a medical records review, but did not personally examine Claimant. Based on his review, Dr. Levy concluded that the primary purpose of Dr. Brummett’s January 2009 surgery had been to address Claimant’s L2-3 disc herniation, not to revise his failed fusion. Noting that two functional capacity evaluations had rated Claimant as capable of heavy work after his 2001 fusion, and finding no definitive evidence of ongoing symptoms attributable to it, Dr. Levy reasoned that the fact that the fusion had failed was clinically irrelevant.
34. I can find no support in the medical records for Dr. Levy’s assertion that Dr. Brummett’s intent at the time of the January 2009 surgery was to treat Claimant’s L2-3 disc herniation, and that the non-union revision procedure was merely incidental to that. As for Dr. Levy’s claim that the failed fusion was clinically irrelevant, I find more credible Dr. Forrest’s assertion, as supported by the medical records, that following the 2001 fusion Claimant continued consistently to complain of symptoms attributable to his 1999 injury but still uncorrected by that surgery. It is clear both from this evidence and from Claimant’s own credible testimony that the failed fusion was in fact clinically relevant.
CONCLUSIONS OF LAW:
1. Defendant frames this claim as an aggravation/recurrence dispute, or alternatively, as one involving an intervening cause. It asserts that Claimant’s January 2009 surgery was necessitated not by his failed L4-5 fusion but rather by his L2-3 disc herniation, a condition that resulted either from his work at Weir Tree Farms from June through December 2006 or from naturally occurring degenerative disc disease.
2. Vermont’s workers’ compensation rules define an aggravation as “an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events.” Workers’ Compensation Rule 2.1110. A recurrence is defined as “the return of symptoms following a temporary remission.” Workers’ Compensation Rule 2.1312.
8
3. In Trask v. Richburg Builders, Opinion No. 51-98WC (August 25, 1998), the Commissioner identified five factors that typically will support a finding of aggravation, thus severing the causal connection back to an earlier injury:
(1) Whether there has been a subsequent incident or work condition which destabilized a previously stable condition;
(2) Whether the claimant had stopped treating medically;
(3) Whether the claimant had successfully returned to work;
(4) Whether the claimant had reached an end medical result; and
(5) Whether the subsequent incident or work condition contributed independently to the final disability.
In accordance with the Vermont Supreme Court’s holding in Pacher v. Fairdale Farms, 166 Vt. 626 (1997), the fifth factor – whether the subsequent incident or work condition contributed independently to cause the final disability – is accorded the greatest weight. Id.
4. There is no question here but that Claimant was declared to have reached an end medical result for his 1999 work injury in December 2002, some months after his May 2001 fusion surgery. There also is little question but that Claimant was able to return to work thereafter, even notwithstanding his ongoing symptoms. And although Claimant continued to see Dr. Howard regularly for some time after his 2001 surgery, for the most part the medical records document only ongoing complaints, but no meaningful treatment to address them until January 2007. Arguably, therefore, these factors all point to an aggravation or new injury for which Defendant might not be responsible.
5. The first Trask factor points away from any aggravation. Clearly there is no evidence of any specific new incident that might account for Claimant’s worsened symptoms in January 2007. Nor is there any evidence that Claimant’s work at Weir Tree Farms, which admittedly involved some amount of bending and lifting, in any way destabilized the condition for which Defendant was responsible, that is, the prior fusions at L4-5 and L5-S1. Not even Defendant’s expert, Dr. Levy, so concluded.
6. The key to this dispute rests with the fifth factor, that is, whether Claimant’s work at Weir Tree Farms contributed independently to cause his need for surgery in January 2009. With Dr. Levy’s opinion as support, Defendant argues that the true intent of Claimant’s 2009 surgery was to address his L2-3 disc herniation, a condition that even Claimant’s expert acknowledges was not causally related either to his 1999 injury or to his 2001 fusion.
9
7. 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).
8. With strong reliance on the third factor, I conclude that Dr. Levy’s opinion as to the medical reasoning behind Claimant’s January 2009 surgery is not credible. I simply can find no support in the record for his assumption that Dr. Brummett’s surgical motivation was any more to address Claimant’s L2-3 disc herniation than it was to correct his failed fusion at L4-5. In fact, I conclude that the opposite is more likely true. Claimant consistently had complained of symptoms at the L4-5 and L5-S1 levels both before and after his 2001 fusion, and certainly well before his tree farm employment even began. His wife credibly corroborated these complaints, and they were documented in the medical records as well. There is no reason to believe that Dr. Brummett would not have found these symptoms alone to be worthy of surgical intervention, even without the new herniation at L2-3.
9. I accept as more credible Dr. Forrest’s opinion that the purpose of Claimant’s January 2009 surgery was to address two conditions concurrently, neither one of higher priority than the other. To the extent that one of those conditions – the failed L4-5 fusion – was causally related to Claimant’s 1999 injury, Defendant bears responsibility for both the medical charges and any resulting disability attributable thereto.1
10. I conclude that Claimant has sustained his burden of proving that his 2009 non-union revision surgery was causally related to his 1999 injury, and not to any subsequent aggravation or intervening event.
11. As Claimant has prevailed on his claim for benefits, he is entitled to an award of costs and attorneys fees. In accordance with 21 V.S.A. §678(e) Claimant shall have 30 days from the date of this opinion to submit his claim.
1 To the extent that the costs associated specifically with the surgical treatment of Claimant’s L2-3 disc herniation reasonably can be separated out from those attributable to revising the non-union at L4-5, I acknowledge that Defendant bears no responsibility for them.
10
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 his entitlement as causally related to the January 2009 surgical revision of his failed L4-5 fusion; and
2. Costs and attorneys fees in amounts to be determined in accordance
with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 20th 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.

Cheryl Goodwin-Abare v. State of Vermont, Agency of Human Services (December 14, 2011)

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

Cheryl Goodwin-Abare v. State of Vermont, Agency of Human Services (December 14, 2011)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cheryl Goodwin-Abare Opinion No. 41-11WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont Agency
of Human Services For: Anne M. Noonan
Commissioner
State File No. CC-54110
OPINION AND ORDER
Hearing held in Montpelier on October 14, 2011
Record closed on November 14, 2011
APPEARANCES:
Patricia Turley, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUE PRESENTED:
Are Claimant’s bilateral carpal tunnel syndrome and left cubital tunnel syndrome causally related to her work for Defendant?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Sikhar Banerjee, MD
Claimant’s Exhibit 2: Workplace Safety Ergonomic Evaluation, 10/29/2010
Claimant’s Exhibit 3: Job Fit Analysis, December 17, 2010
Claimant’s Exhibit 4: Rossignol M, et al., Carpal Tunnel Syndrome, What is Attributable to Work? The Montreal Study, Occupational and Environmental Medicine, 1997, 54: 519-5231
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, MD, MPH
Defendant’s Exhibit B: Deposition of Richard Levy, MD, October 12, 2011
Defendant’s Exhibit C: Curriculum vitae, Richard Levy, MD
Defendant’s Exhibit D: Deposition of Craig Uejo, MD, September 28, 2011
1 At the hearing officer’s request, and over Defendant’s objection on due process grounds, this exhibit was admitted into evidence after the record had closed.
2
Defendant’s Exhibit E: Melhorn JM and Ackerman WE, Guides to the Evaluation of Disease and Injury Causation (AMA 2008), Chapter 9, pp. 169-180 and 191-202
CLAIM:
All workers’ compensation benefits to which Claimant proves her entitlement as causally related to her bilateral carpal tunnel syndrome and left cubital tunnel syndrome
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 been employed in various secretarial positions for the State of Vermont for almost 25 years. Since 2006 she has worked as a medical secretary at the Vermont State Hospital. Her duties involve taking and transcribing meeting minutes, maintaining patient charts, answering the telephone and generally providing administrative support to the psychiatrists, psychologists and social workers assigned there.
4. Functionally, Claimant spends up to 80% of her day on her computer, either typing or working with a mouse. In addition, she handles patient charts up to ten times per day. These are contained in three-ring binders, which Claimant frequently opens and closes in order to insert or remove chart notes. For filing new notes, she uses a three-hole punch.
5. Claimant first experienced symptoms indicative of carpal tunnel syndrome in 2008, when she began to suffer from nocturnal tingling and numbness in the third and fourth fingers of her right hand. Over a period of months she noticed that she was dropping things easily. Thereafter her symptoms progressed to include pain, first inside her right elbow and then later radiating as well from her wrist up her forearm. This presentation – from nocturnal numbness and tingling in her fingers to weakness in her hand to pain in her wrist – is classic for carpal tunnel syndrome.
6. Carpal tunnel syndrome consists of a constellation of symptoms and signs resulting from compression of the median nerve at the wrist. It is the most commonly diagnosed peripheral nerve entrapment disorder. The gold standard for diagnosing carpal tunnel syndrome is a nerve conduction study, which measures the speed at which an electrical signal travels as it moves through the nerve from a stimulus point above the wrist to a point at the base of the thumb. The more compressed the nerve is within the carpal tunnel, the slower the signal will be.
7. In Claimant’s case, nerve conduction studies confirmed bilateral carpal tunnel syndrome – mild to moderate on the right, mild on the left – in November 2010. By that time, she
3
was describing excruciating pain in her right arm, from her hand to her elbow, with similar though less severe symptoms in her left arm. The studies also documented mild left-sided cubital tunnel syndrome, an entrapment of the ulnar nerve at the elbow.
8. As treatment for her right carpal tunnel syndrome, Claimant underwent endoscopic release surgery on December 30, 2010. She returned to modified duty work on January 10, 2011 and resumed her regular full-time duties on February 1st.
9. Both pre- and post-surgery, Claimant’s symptoms have manifested themselves primarily with work activities. She feels pain in her hands while typing and using her computer mouse, and has difficulty grasping, opening and closing patient chart binders. Following ergonomic evaluations in October and December 2010 various changes were made to her work station, including a different keyboard and mouse, easier-to-grip pens, smaller binders and a lateral file storage cabinet. These modifications have been somewhat helpful, but have not completely alleviated the symptoms she experiences while working.
10. Though manageable at the beginning of her work week, Claimant’s symptoms typically worsen as the week progresses. By Friday they are severe. Over the weekend, with less use of her hands they abate, but then the cycle begins anew with her return to work activities each Monday. Recently, when her Waterbury work site was flooded on account of Hurricane Irene, Claimant was off work for approximately six weeks. During that time, she testified, her right wrist felt “wonderful.” Even with her first day back at work, however, her symptoms immediately began to worsen.
Expert Medical Opinions as to Causation
(a) Claimant’s Treating Providers
11. Both Claimant’s primary care provider, Dr. Carr, and her orthopedic surgeon, Dr. Meriam, have stated that her carpal tunnel syndrome is causally related to her work activities, specifically typing, filing, hole punching and other repetitive tasks, all conducted in what Dr. Carr described as an ergonomically deficient work environment. Neither doctor provided any detailed analysis to support this theory, however. For that reason, I find their causation opinions unpersuasive.
(b) Dr. Backus
12. At Defendant’s request, in January 2011 Claimant underwent an independent medical examination with Dr. Backus. Dr. Backus is board certified in occupational and environmental medicine, and also has a master’s degree in public health. These credentials include specialized training in both epidemiology and the science of causation.
13. Dr. Backus concurred with Claimant’s treating providers’ diagnosis of bilateral carpal tunnel syndrome and left cubital tunnel syndrome. He disagreed, however, that these conditions were either caused or aggravated by her work activities.
4
14. Dr. Backus’ causation opinion is based on a review of the medical literature regarding the known risk factors, both occupational and non-occupational, for developing carpal tunnel syndrome. His primary source is a meta-analysis2 reported in the AMA Guides to the Evaluation of Disease and Injury Causation.3 Among the salient points of that analysis:
• Carpal tunnel syndrome is a multi-factorial disease, which may be work-related, but also occurs in the general population. Occupational exposures are not necessarily risk factors in every case of carpal tunnel syndrome, though adverse working conditions can cause, aggravate or accelerate the disease.
• There is insufficient evidence to establish keyboarding activities alone as a risk factor for carpal tunnel syndrome. There is, however, strong evidence of an association between carpal tunnel syndrome and work activities that combine forceful gripping with either repetition or awkward posture. There is insufficient evidence to establish duration of employment as a risk factor.
• The highest rates of carpal tunnel syndrome occur in occupations with high physical demands that include intensive manual exertion, for example, meatpacking, poultry processing and automobile assembly work.
• There is very strong evidence of an association between carpal tunnel syndrome and both age (over 40) and body mass index (greater than 30). As these indicators increase, so does the risk of carpal tunnel syndrome.
• There is strong evidence of an association between carpal tunnel syndrome and female gender.
• There is strong evidence of an association between carpal tunnel syndrome and diabetes.
• In a review4 that used a quantitative scale to rate causation criteria in 117 published studies on carpal tunnel syndrome, the quality and strength of evidence supporting biological risk factors (e.g., genetics, race and age) was described as moderate, while the quality and strength of evidence supporting occupational risk factors (e.g., job type, repetitive hand use and vibration) was described as poor.
2 In a meta-analysis, researchers weigh the quality of other published studies, taking into account such factors as sample size and bias, and use the cumulative results to derive more generalized conclusions.
3 Melhorn JM and Ackerman WE, Guides to the Evaluation of Disease and Injury Causation (AMA 2008), Chapter 9, pp. 169-180 and 191-202.
4 Ring D, Carpal Tunnel Syndrome Causation, cited in Guides to the Evaluation of Disease and Injury Causation, supra at p. 178 and n.179.
5
15. The AMA Guides’ meta-analysis acknowledged the need for further study in order to better understand the biomechanics of carpal tunnel syndrome. For example, research is ongoing both as to how various wrist postures affect the shape of the carpal tunnel and as to the interior changes that occur in the connective tissues over time. For now, however, the study authors quoted the following perspective as instructive:
Even if a patient experiences symptoms only at work, an honest clinician is still unable to describe the extent to which the patient’s [carpal tunnel syndrome] is related to the job. It is unfortunate that workers’ compensation determinations must be made in individual cases, where it is impossible to quantify the contribution of the job to the clinical problem.5
16. Applying the research findings summarized in the AMA Guides’ meta-analysis, Dr. Backus observed that the repetitive action required by Claimant’s keyboarding and mouse work, which by her own account comprises 80 to 85% of her activities, primarily involves motion of the finger joints, not the wrist. Neither those tasks nor her other work activities involve a combination of forceful gripping with either repetition or awkward posture. Claimant is not exposed to any occupational risk factors for developing the condition, therefore. In contrast, by virtue of her age (47 at the time of Dr. Backus’ evaluation), body mass index (34.98 as of March 2011) and gender, she presents with very strong non-occupational risk factors. There being no scientific basis for establishing work-related causation, therefore, to a reasonable degree of medical certainty Dr. Backus concluded that Claimant’s right carpal tunnel syndrome was most likely non-occupationally caused.
17. Dr. Backus acknowledged the difference between a risk factor for a disease and the disease’s specific cause. He agreed, for example, that while obesity has been shown to be a risk factor for carpal tunnel syndrome, obesity itself does not cause the condition. Unfortunately, as the AMA Guides’ meta-analysis noted, the specific mechanism by which carpal tunnel syndrome develops is not yet understood. What the known risk factors establish, however, is that Claimant was equally likely to develop the condition at this stage of her life whether she was working at her current job or not.
18. Dr. Backus described the symptoms Claimant experienced while performing work-related activities as “an expression” of her carpal tunnel disease, not a cause of it. Over time, people who suffer from carpal tunnel syndrome tend to find it more and more difficult to use their hands. A person like Claimant, who uses her hands more intensively at work than at home, is likely to experience more symptoms with work-related tasks. That does not mean that work has either caused or aggravated the underlying condition, however.
5 Szabo, RM, Madison M, Carpal Tunnel Syndrome as a Work-Related Disorder, quoted in Guides to the Evaluation of Disease and Injury Causation, supra at p. 170 and n.102.
6
19. As for Claimant’s left-sided carpal tunnel and cubital tunnel syndromes, Dr. Backus theorized that these could have resulted either from the same non-occupational causes that led to her right carpal tunnel syndrome and/or from compensating for her right-sided symptoms. In either case, Dr. Backus concluded that the conditions were not work-related in any way.
(c) Dr. Banerjee
20. At her attorney’s referral, in April 2011 Claimant underwent an independent medical examination with Dr. Banerjee, a board certified specialist in physical medicine and rehabilitation. By Claimant’s account, which I find credible, Dr. Banerjee spent significantly more time discussing the hand and arm movements necessitated by her specific work activities than Dr. Backus had.
21. From the history Claimant described, particularly the fact that almost all of her symptoms occurred during the work week and dissipated over the weekend, Dr. Banerjee hypothesized that her carpal tunnel syndrome was work-related. To test this hypothesis, he suggested that Claimant undergo serial nerve conduction studies – one on a Monday, and then a second one on a Friday. If the studies showed that the electrical impulses traveling through the carpal tunnel were slower at the end of the week than at the beginning of the week, in Dr. Banerjee’s view this would provide objective evidence of a work-related contribution to her condition.
22. Claimant underwent the nerve conduction studies Dr. Banerjee suggested, the first on April 18, 2011 (a Monday), the second on April 29th (a Friday). As by this time her right-sided carpal tunnel syndrome already had been surgically addressed, not surprisingly the results showed a normally functioning median nerve. Of greater interest to Dr. Banerjee, the study also indicated a very mild worsening in the nerve’s ability to conduct electrical signals, a difference in velocity of 0.1 to 0.2 milliseconds between the Monday test and the Friday test.
23. Among the factors influencing the variability of nerve conduction test results are hand temperature and placement of the stimulus probe. Cold hands produce slower nerve conduction velocities, and therefore this factor must be controlled if the results of multiple tests are to be compared. Similarly, if the stimulus probe is not placed in exactly the same spot for all tests, this also can affect the validity of any comparison between tests. To account for such minor variations, the accepted margin of error for nerve conduction testing is plus or minus 0.2 to 0.3 milliseconds. A differential that falls within the margin of error is considered to be statistically insignificant.
24. In Claimant’s case, because the differential noted between the Monday and Friday studies was within the margin of error, it is statistically insignificant. Nevertheless, in Dr. Banerjee’s opinion even a small differential confirmed that by the end of Claimant’s work week there is more compression of her median nerve than was present at the beginning of the week. Dr. Banerjee cited this information as one of the two bases for his conclusion that Claimant’s carpal tunnel syndrome was in fact work-related.
7
25. As the second basis for his causation opinion, Dr. Banerjee cited to a 1997 study (the “Rossignol” study)6 in which seven work categories were identified as being high risk for the development of carpal tunnel syndrome. “Data processing operator” was the second highest risk job category identified, and the only one among all clerical occupations with an increased incidence of carpal tunnel syndrome. From this study, Dr. Banerjee found scientific support for his conclusion that Claimant’s carpal tunnel syndrome was occupationally caused.
26. The Rossignol study cites to the 1980 Canadian standard occupational classifications as the basis for the job categories it studied, but otherwise does not describe the specific job duties encompassed by any category. Presumably Dr. Banerjee placed Claimant in the “data processing operator” category as opposed to the “clerical worker” category, though he did not explain on what basis he did so. From Claimant’s own testimony as to her various job duties, I doubt whether such a categorization would be appropriate. For that reason, I find that the Rossignol study offers limited if any support for Dr. Banerjee’s causation opinion.
27. Dr. Banerjee identified Claimant’s typing and hole punching activities as the ones most likely to have caused and/or aggravated her carpal tunnel syndrome. Hole punching in particular requires a certain amount of squeezing pressure and forceful hand movement. Although Claimant was thus exposed to a certain amount of forceful gripping, I cannot find from the evidence presented that this occurred in combination with either repetition or awkward posture sufficient to qualify it as an occupational risk factor.
28. Dr. Banerjee discounted the AMA Guides’ meta-analysis as a valid basis for denying occupational causation in Claimant’s case. The studies considered in that analysis were retrospective, which Dr. Banerjee described as among the weakest designed of scientific studies. He acknowledged, however, that the 1997 study upon which he relied to support his causation opinion also was retrospective. In any event, Dr. Banerjee explained that as a clinician he looks to the patient him- or herself to determine the specific cause of a condition in a particular case, not to studies.
(d) Dr. Uego
29. At Defendant’s request, in September 2011 Dr. Uego reviewed Claimant’s medical records and deposition testimony. Dr. Uego is board certified in occupational medicine. He is a physician reviewer of the AMA Guides to the Evaluation of Permanent Impairment (6th ed.) and also an editorial board member of The Guides Newsletter, another AMA publication. Of particular relevance to the current litigation, in 2009 he authored a newsletter article dealing specifically with the question whether carpal tunnel syndrome is occupationally related.7 In the course of his research for that article, Dr. Uego reviewed some of the most recent medical literature on carpal tunnel syndrome causation.
6 Rossignol M, et al., Carpal Tunnel Syndrome, What is Attributable to Work? The Montreal Study, Occupational and Environmental Medicine, 1997, 54: 519-523.
7 Uego, C, Carpal Tunnel Syndrome – Occupationally Related or Not?, AMA Guides Newsletter, May/June 2009.
8
30. Dr. Uego concluded that there was no causal link, to the required degree of medical certainty, between Claimant’s work and her carpal tunnel syndrome. In reaching this conclusion, he cited to much the same research evidence upon which Dr. Backus had relied – that carpal tunnel syndrome is likely multi-factorial in origin, that the most significant risk factors are non-occupational and that repetitive activities alone do not increase the risk of carpal tunnel syndrome unless combined with some other factor such as force or awkward posture.
31. Applying this research to Claimant’s case, Dr. Uego identified the same non-occupational risk factors that Dr. Backus had found relevant, namely, her age, her body mass index and her gender.8 Consistent with Dr. Backus’ analysis, he could not identify any occupational risk factors. Dr. Uego agreed that Claimant’s keyboarding and hole punching activities involve a certain amount of repetition, but not of a frequency typically associated with increased occupational risk. Nor could he conclude from the available evidence that these activities likely occurred in the context of sufficient force, vibration or awkward posture to establish them as occupationally causative.
32. Dr. Uego cautioned against finding causation solely in the temporal relationship between symptoms and activity. For example, when a person shakes hands with an individual who suffers from osteoarthritis in his or her thumb, it hurts. Hand shaking neither causes nor aggravates the osteoarthritis, but it does cause pain every time it occurs. Similarly here, the fact that Claimant experiences carpal tunnel syndrome symptoms primarily at work establishes only a temporal relationship, not a causative one.
33. Given that Claimant presented with several non-occupational risk factors but no occupational risk factors, to a reasonable degree of medical certainty Dr. Uego concluded that her carpal tunnel syndrome was entirely non-occupational in origin and had been neither caused nor aggravated by her work.
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).
8 Dr. Uego also identified diabetes as a non-occupational risk factor in Claimant’s case. In fact, Claimant has been diagnosed as pre-diabetic, a diagnosis that is medically distinguishable from diabetes and therefore is of no relevance here.
9
2. At issue here is whether Claimant’s bilateral carpal tunnel syndrome and left cubital tunnel syndrome were caused and/or aggravated by her work. Conflicting expert medical testimony was presented on this issue. In such situations, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
3. With particular reliance on the third factor, I conclude that the opinions of Defendant’s experts are more credible than that of Claimant’s expert. Their analysis of the current state of the research regarding carpal tunnel syndrome causation was clear, compelling and thorough. Applying that research to the current claim, they identified strong non-occupational risk factors, including Claimant’s age, her body mass index and her gender. Although these risk factors do not in themselves cause carpal tunnel syndrome, their presence renders less speculative the conclusion that Claimant likely developed the disease regardless of her work activities, not because of them.
4. I acknowledge that the question whether a condition is work-related or not is rarely answered solely with reference to risk factors. The fact that a claimant is equally likely to suffer from a disease regardless of his or her work activities does not necessarily preclude a finding that work has either caused or aggravated the condition in a particular case. Marsigli’s Estate v. Granite City Auto Sales, 124 Vt. 95 (1964); Brace v. Jeffrey Wallace, DDS, Opinion No. 28-09WC (July 22, 2009). Where occupational risk factors are lacking at the same time that non-occupational risk factors abound, however, occupational causation becomes more speculative. Daignault v. State of Vermont Economic Services Division, Opinion No. 35-09WC (September 2, 2009). It is the claimant’s burden of proof in such cases to produce sufficient additional evidence so as to cross the threshold from speculation to probability.
5. Upon close examination, I conclude that the evidence upon which Dr. Banerjee relied in support of his opinion is insufficient to establish probable rather than merely speculative occupational causation. The serial nerve conduction studies failed to produce any statistically significant differences in velocity from the beginning of a work week to the end of a work week, and thus I cannot attribute any meaningful importance to them. And although the evidence established that at times Claimant’s job tasks involved elements of repetition, forceful gripping and/or awkward postures, these factors were never quantified to the extent necessary for me to conclude that they were likely causative.
6. The evidence also was insufficient to establish that Claimant’s job duties in fact placed her in the high risk category of “data processing operators” so as to make the Rossignol study’s findings relevant to this claim. For that reason, I find Dr. Banerjee’s reliance on that study to be unconvincing as well.
10
7. Considering all of the available evidence, I conclude that at best a temporal relationship existed between Claimant’s work activities and her symptoms. That alone is insufficient to establish work-related causation. Norse v. Melsur Corp., 143 Vt. 241, 244 (1983); Daignault, supra. Nor is it enough that Claimant’s job aggravated her symptoms. To be compensable, there must be proof that her work either caused or accelerated the underlying condition itself. Stannard v. Stannard Co., Inc., 175 Vt. 549, 552 (2003). That proof was lacking here.
8. I conclude that Claimant has failed to sustain her burden of proving that her bilateral carpal tunnel syndrome and left cubital tunnel syndrome were either caused or aggravated by her work for Defendant.
9. As Claimant has not prevailed, she is not entitled to an award of costs or attorney fees.
ORDER:
Claimant’s claim for workers’ compensation benefits causally related to her bilateral carpal tunnel syndrome and left cubital tunnel syndrome is hereby DENIED.
DATED at Montpelier, Vermont this 14th day of December 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.

© Copyright - -