Archive

Tag Archive for: medical end result

D. D. v. Northeast Kingdom Human Services

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

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

Cecile Lushima v. Cathedral Square Corporation (September 29, 2009)

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

Cecile Lushima v. Cathedral Square Corporation (September 29, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cecile Lushima Opinion No. 38-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Cathedral Square Corporation For: Patricia Moulton Powden
Commissioner
State File No. Y-50129
OPINION AND ORDER
Hearing held in Montpelier on October 17th and 18th, 2008
Record closed on July 9, 2009
APPEARANCES:
Chris McVeigh, Esq. for Claimant
Wesley Lawrence, Esq. for Defendant
ISSUES:
1. Was Defendant justified in terminating Claimant’s temporary disability benefits on September 16, 2007 on the grounds that she had reached an end medical result for her compensable work injury?
2. Is Claimant barred from disputing the date of end medical result and the extent of her permanent impairment by virtue of the signed and approved Agreement for Permanent Partial Disability Compensation (Form 22)?
3. Is Claimant entitled to medical benefits for ongoing treatment of her left shoulder after June 24, 2007?
EXHIBITS:
Defendant’s Exhibit 1: Medical records
CLAIM:
Temporary partial disability benefits pursuant to 21 V.S.A. §644;
Medical benefits pursuant to 21 V.S.A. §640;
Permanent partial disability benefits pursuant to 21 V.S.A. §648;
Interest, costs and attorney fees pursuant to V.S.A. 21 §§664 and 678
2
FINDINGS OF FACT:
1. At all times relevant to the proceedings, Claimant was an employee and Defendant was her employer as those terms are defined under Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
3. Claimant was born in the Congo and moved to the United States by way of Niger and Europe. She moved from the Congo for political reasons. Claimant’s uncle, the first democratically elected Prime Minister of the Republic of Congo, was overthrown and murdered. Both because of this association and because of the country’s general instability, Claimant felt that it was unsafe to remain there. Ultimately she and her family settled in Vermont.
4. On the date of Claimant’s injury she was married to Wembo “Alex” Shungo, with whom she raised six children ranging in age from 10 to 20 years old. Claimant’s native language is French, but she is fluent in seven other languages, including English, which she reads, writes and speaks well.
Claimant’s Initial Work Injury
5. On June 20, 2006 Claimant was working for Defendant as a nurse’s aide. In the course of helping a stroke patient into bed, she injured her left shoulder. Defendant accepted the injury as compensable and began paying workers’ compensation benefits accordingly. Claimant continued to work, though in a modified-duty capacity, until February 2, 2007.
6. Initially Claimant treated conservatively for her injury, which was diagnosed as a shoulder strain. When her symptoms failed to improve, she underwent an arthrogram, which revealed a labral tear. Claimant continued to treat conservatively, but again her symptoms did not improve. After some time, she was referred to Dr. Lawlis, an orthopedic surgeon, for further evaluation. Dr. Lawlis diagnosed a superior labrum anterior and posterior (SLAP) tear, which he surgically repaired on February 20, 2007.
7. Following her surgery Claimant was referred for “aggressive” physical therapy. Her recovery was slow, and her left shoulder remained painful to such an extent that it severely limited her activities of daily living.
8. On April 6, 2007 Dr. Lawlis reevaluated Claimant on an urgent basis because of her increased pain. He noted that Claimant’s range of motion was extremely limited and concluded that she was suffering from severe fibrous capsulitis causally related to her shoulder surgery. Dr. Lawlis prescribed aqua therapy and recommended that Claimant progressively work at gentle stretching more frequently on her own at home. He also prescribed Oxycontin and Percocet for break-through pain.
3
9. Dr. Lawlis continued to monitor Claimant’s progress. On May 8, 2007 he determined that she should continue her pain medications and remain out of work for at least eight more weeks. In the meantime, Claimant continued to work diligently at her exercise regimen. Although her pain persisted, she was doing more. A June 20, 2007 physical therapy progress note indicated that the strength below her shoulder had improved “remarkably,” although Claimant still could not use her arm for overhead activity. Claimant’s progress at this point represented a significant improvement over what the physical therapy notes had documented in early May.
The June 24, 2007 Border Incident
10. On June 24, 2007 Claimant, her husband, her mother-in-law and her sister-in-law drove to Montreal. Claimant’s in-laws had been visiting, and the purpose of the trip to Montreal was to accompany them to the bus station so that they could travel home to western Canada. Claimant’s six children stayed home, with the older ones caring for the younger ones.
11. At the time, Claimant’s husband was working as a high school teacher in Brattleboro. Neither he nor Claimant had ever been arrested or otherwise involved in any criminal activity. On the trip up, they entered Canada without incident. On the return trip, however, Claimant and her husband were stopped at the Highgate Springs, Vermont entry point. After examining their passports, a border patrol officer directed them to park their car and proceed into the immigration building. The officer kept their passports.
12. A security videotape of the immigration building’s lobby depicts what happened next. Once inside, Claimant and her husband sat down. No one approached them. After a time, Claimant’s husband inquired of a border patrol officer as to why they were being detained. According to his testimony, he was told to continue waiting. When he tried to inquire further, an argument ensued among him, Claimant and various border patrol officers. Ultimately the border patrol officers approached Claimant’s husband and moved to take him into custody.
13. With this unfortunate development, Claimant became very upset. She clung to her husband and attempted to push the border patrol officers away. A struggle ensued, which went on for several minutes. The officers had to physically restrain Claimant in order to separate her from her husband, whom they handcuffed and removed to a detention cell. Claimant continued to remonstrate with the officers, both verbally and physically. Eventually she too was handcuffed, with her arms behind her back, and taken to a detention cell.
14. In the process of being handcuffed, the border patrol officers pushed on Claimant’s injured left shoulder, which was very painful to her. Both Claimant and her husband testified that they tried to explain to the border patrol officers that Claimant had recently undergone shoulder surgery, but to no avail.
4
15. Once in her cell, Claimant began complaining of severe pain in her left shoulder. After holding Claimant and her husband in custody for several hours, eventually border patrol personnel had them transported by ambulance to Northwestern Medical Center. Claimant underwent treatment in the emergency room for her left shoulder. Subsequently, both she and her husband were released from border patrol custody and proceeded home to Burlington.
Medical Evaluation and Treatment after June 25, 2007
16. On the day following the border patrol incident, Claimant saw Dr. Lawlis again. Diagnostic testing later revealed additional tears in the tendons of Claimant’s left shoulder, tendons that had been intact at the time of her first surgery. Because Defendant disputed its responsibility for medical treatment related to the incident, Claimant could only afford to treat sparingly, however. She continued her home exercise program and later attended physical therapy. As of the date of the formal hearing, it was unclear whether she would require additional surgery to repair the new tears.
17. After the border incident Claimant returned to work part-time, modified-duty, at a convent in Winooski. Later she began working in a medical office.
18. In Dr. Lawlis’ opinion, the border incident aggravated Claimant’s original shoulder injury and significantly delayed her recovery. He noted that had Claimant not been recovering from shoulder surgery at the time, the incident probably would not have resulted in any injury at all. As it was, however, the border incident probably caused the new tears in Claimant’s shoulder tendons that had not been present at the time of her original injury.
19. Dr. Lawlis determined that Claimant reached an end medical result for the original June 2006 work injury on March 3, 2008. In his opinion, she did not reach end medical result for the border incident injury until June 3, 2008.
20. At Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Johansson in July 2007. Dr. Johansson concluded that the June 2007 border incident caused either an aggravation or a new injury to Claimant’s left shoulder. In his opinion, had it not been for that event Claimant would have reached end medical result for her original work injury by the date of his evaluation, July 23, 2007. Dr. Johansson further found that Claimant had suffered a 7% whole person permanent impairment referable to her original work injury.
5
Claimant’s Response to Defendant’s Form 27 and Proposed Permanency Agreement
21. With Dr. Johansson’s opinion as support, in September 2007 Defendant filed a Notice of Intention to Discontinue Benefits (Form 27), seeking to terminate Claimant’s temporary disability benefits on end medical result grounds as of September 16, 2007. The Department approved the discontinuance on September 21, 2007.
22. On September 28, 2007 Claimant, who was unrepresented at the time, wrote to Defendant, advising that she disagreed with the decision to terminate her benefits and asking that Defendant reconsider its position. Defendant did not respond to this letter.
23. Shortly thereafter, Defendant mailed to Claimant a proposed Agreement for Permanent Partial Disability Compensation (Form 22). The Form 22 reflected that Claimant’s temporary total disability had ended on September 16, 2007. It referenced the Form 27 that had been filed to that effect on the grounds that she had reached an end medical result for her work-related injury, described as a “left shoulder SLAP repair.” The Form 22 further proposed to pay permanent partial disability benefits in accordance with Dr. Johansson’s 7% whole person impairment rating.
24. Claimant testified that she assumed that the Form 22 had been sent to her in response to her September 28, 2007 letter. She thought that its purpose was to reinstate her temporary disability benefits. She admitted that she did not even read the form, but instead merely signed it and sent it back.
25. The Department approved the Form 22 on October 24, 2007. Thereafter, Claimant received weekly permanent partial disability benefits, totaling $9,582.30, until March 30, 2008. Claimant testified that at least at first, she presumed that the checks she was receiving were for temporary total disability, not permanency.
26. On November 20, 2007 Claimant’s counsel entered his appearance on Claimant’s behalf and asked the Department both to reconsider its approval of the Form 27 and to rescind its approval of the Form 22. The Department’s Staff Attorney denied both requests and the claim subsequently was forwarded to the formal hearing docket.
CONCLUSIONS OF LAW:
1. Two interesting legal issues are raised by this claim. The first involves whether the June 2007 border incident constitutes an independent intervening event sufficient to break the causal link between Claimant’s original work-related injury and her subsequent disability and need for medical treatment. The second involves the extent, if any, to which Claimant is precluded from seeking additional benefits by virtue of the Form 22 permanency agreement that she signed. Because the second issue is somewhat dispositive, it will be considered first.
6
2. It is generally accepted that once the parties to a workers’ compensation claim execute a Form 22 or other form agreement, and the Commissioner (or her designee) approves it, it becomes a binding and enforceable contract. Workers’ Compensation Rule 17.0000; Blais v. Church of Jesus Christ of Latter Day Saints, Opinion No. 30-99WC (July 30, 1999). Absent evidence of fraud or material mistake of fact, the parties will be deemed to have waived their right to contest the material portions of the form, and the Department will consider it to represent a final determination of any dispute as to its contents. Rule 17.0000; id.
3. There is no evidence of fraud here, nor is there compelling evidence of any material mistake of fact. For such a mistake to exist, it must be mutual. Maglin v. Tschannerl, 174 Vt. 39 (2002). Here, only Claimant was mistaken. She thought the purpose of the form she was signing was to reinstate her temporary disability benefits, when in fact it was confirming the basis for their proper termination. Claimant’s failure to recognize the form’s import may be understandable, particularly because she was unrepresented at the time, but it still provides an insufficient basis for undoing a binding contract. Hawkins v. Visiting Nurse Association, Opinion No. 53-04WC (December 3, 2004).
4. The fact is, there was no way for either Defendant or the Department to have known whether Claimant had signed the Form 22 because she did not understand the ramifications of doing so, or whether she signed it because she had decided to take the permanency compensation offered rather than pursue a claim for additional temporary disability benefits. In hindsight, it may seem harsh to hold her to the agreement. To allow her to rescind it unilaterally, however, would result in an untenable loss of certainty as to what constitutes a binding, enforceable contract, not only to pay workers’ compensation benefits but also to accept them. Catani v. A.J. Eckert Co., Opinion No. 28-95WC (July 14, 1995).
5. Contrary to Claimant’s assertions, furthermore, Defendant was under no affirmative obligation to explain the form to her, or otherwise to caution her against signing it if she intended to pursue further her request that temporary disability benefits be reinstated. In the specific context of a workers’ compensation claim, the Vermont Supreme Court has ruled that an employer is under no duty to inform an employee of his or her rights under the Workers’ Compensation Act, instead upholding the “time-honored principle that all persons are presumed to know the law.” Longe v. Boise Cascade Corp., 171 Vt. 214, 226 (2000).
6. I conclude, therefore, that Claimant is bound by the terms of the Form 22 as to all of its material elements. These include the date upon which she reached end medical result for her work injury (whether aggravated by the June 2007 border incident or not) and the extent of her permanent impairment.
7
7. As the Form 22 establishes that Claimant reached end medical result on September 16, 2007 she is precluded from seeking additional temporary disability benefits after that date. 21 V.S.A. §§642, 643a. Even with the Form 22, however, her entitlement to further medical benefits remains open, provided she shows that ongoing treatment is necessitated by the work injury rather than by some intervening event for which Defendant bears no responsibility. It is in this context that I next must consider the legal import of the June 2007 border incident.
8. Both Claimant’s treating physician, Dr. Lawlis, and Defendant’s medical expert, Dr. Johansson, agreed that the border incident caused either an aggravation or a new injury to Claimant’s previously injured shoulder. Both also acknowledged, however, that Claimant probably would not have suffered any injury at all during that incident had her shoulder not already been in a weakened state as a result of her primary compensable injury. The question, therefore, is whether the second injury is sufficiently linked to the first to be compensable as well.
9. Once an injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from it likewise is deemed to have arisen out of the employment. 1 Larson’s Workers’ Compensation Law, §10, p. 10-1. An exception to this general rule exists as to consequences that result from an independent intervening non-industrial cause attributable to the claimant’s own intentional conduct. Id., quoted in Bowen v. Jobsite Services, Opinion No. 23-00WC (July 31, 2000). Such an event may be sufficient to break the chain of causation back to the primary injury and thereby may relieve the employer of further workers’ compensation liability.
10. Not all intervening events are sufficient to fall within the exception and thus sever the link between the work injury and any ongoing disability or need for treatment. It is to be expected, for example, that even injured workers will continue to engage in activities of daily living, and therefore injuries sustained during such activities are considered to be a natural consequence of the primary injury. Church v. Springfield Hospital, Opinion No. 40-08WC (October 8, 2008) (climbing step at home); Signorini v. Northeast Cooperatives, Opinion No. 36-04WC (September 1, 2004) (getting up from chair); Verchereau v. Meals on Wheels, Opinion No. 20-88WC (1988) (lifting groceries).
11. Where the intervening event does not arise in any way from the employment relationship, the chain of causation is deemed broken by either intentional or negligent claimant misconduct. Larson, supra at §10.05, p. 10-11. Even here, however, exceptions exist. Thus, in defining what constitutes negligent conduct, Professor Larson distinguishes spontaneous acts that may well be “impulsive and momentarily thoughtless,” but which because of the circumstances are better characterized as instinctive rather than negligent. Id. at §10.06, p. 10-13; see, e.g., McMillan v. Bertek, Inc., Opinion No. 95-95WC (January 29, 1996) (reaching for branch while falling from tree); Kelly v. Federal Shipbuilding and Drydock Co., 64 A.2d 92 (N.J. Super. 1949) (reaching for falling child). The claimant’s conduct in such cases does not rise to the level of negligence necessary to break the causal link back to the original injury.
8
12. The link is severed, however, if a claimant, knowing of certain weaknesses arising from the primary injury, “rashly undertakes activities likely to produce harmful results.” Johnnie’s Produce Co. v. Benedict & Jordan, 120 So.2d 12 (Fla. 1960); Larson, supra at §10.06[3], p. 10-17.
13. This was the case here. Arguably Claimant’s initial response to the border patrol officers’ approaching her husband and moving to take him into custody might be characterized as the kind of impulsive, momentarily thoughtless act that, though misguided, would not rise to the level of negligence. As the altercation progressed, however, and particularly after Claimant’s husband already had been moved to a detention cell, Claimant reasonably should have known that by continuing the battle she was risking further injury to her already weakened shoulder. Her actions at that point were no longer just “momentarily thoughtless,” they were deliberately so.
14. I conclude, therefore, that Claimant broke the chain of causation back to her primary work-related injury by virtue of her actions during the June 2007 border patrol incident. Defendant is not responsible for any workers’ compensation benefits necessitated as a result of that event.
15. Claimant having failed to prevail on her claim, she 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 is hereby DENIED.
DATED at Montpelier, Vermont this 29th day of September 2009.
_________________________
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.

L. G. v. Chittenden County Transportation Authority (November 25, 2008)

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

L. G. v. Chittenden County Transportation Authority (November 25, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. G. Opinion No. 48-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Chittenden County For: Patricia Moulton Powden
Transportation Authority Commissioner
State File No. Y-55221
OPINION AND ORDER
Hearing held in Montpelier on August 1, 2008
Record closed on September 15, 2008
APPEARANCES:
Richard Cassidy, Esq. for Claimant
Jason Ferreira, Esq. for Defendant
ISSUES PRESENTED:
1. Is Claimant at end medical result for her November 9, 2006 low back injury and if so, to what permanency benefits is she entitled?
2. Is Claimant’s left shoulder injury compensable and if so, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Deposition of Susan LaBarge, R.P.T., taken on July 22, 2008
Claimant’s Exhibit 1: Deposition of Philip Davignon, MD, taken on May 15, 2008
Claimant’s Exhibit 2: Curriculum vitae, Philip Davignon, MD
Claimant’s Exhibit 3: Report of Dr. Davignon, July 2, 2007
Claimant’s Exhibit 4: Employee’s Incident Report, November 9, 2006
Claimant’s Exhibit 5: Employee’s Statement of Injury Facts, November 24, 2006
Claimant’s Exhibit 6: Concentra Health Services medical records
Claimant’s Exhibit 7: Physical therapy records
Claimant’s Exhibit 8: Hand drawing (not to scale) of angle of lift platform tilt
2
Defendant’s Exhibit A: Curriculum vitae, John Johansson, D.O.
Defendant’s Exhibit B: Letter from Graydon Wilson to Dr. Davignon, June 22, 2007
Defendant’s Exhibit C: Concentra “Presenting Problem Information” questionnaire, November 9, 2006
Defendant’s Exhibit D: Report of Dr. Johansson, April 14, 2007
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Interest pursuant to 21 V.S.A. §664
Attorney’s fees and costs pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. Judicial notice is taken of all forms and correspondence contained in the Department’s file relating to this claim.
2. At all times relevant to these proceedings Claimant was an employee and Defendant was an employer as defined in Vermont’s Workers’ Compensation Act.
3. Claimant is 34 years old and resides in Plattsburgh, New York. Beginning in 2004 she was employed by Defendant as a bus driver in Burlington, Vermont.
Claimant’s Work-Related Injury
4. On November 9, 2006 Claimant was using an elevator platform to off-load a wheelchair-bound passenger from the bus she drove. The passenger was a large man, and including both his wheelchair and the duffel bag he held on his lap, Claimant estimated his total weight to be more than 350 pounds.
5. The platform jammed as Claimant was lowering it to street level. She tried several times to get it to descend properly, but without success. Finally the platform tilted downward. Afraid that the passenger would roll or fall forward, Claimant pulled both him and his wheelchair back onto the bus. As she did so, she immediately felt back pain.
6. After reporting the incident to the Assistant Manager of Operations, Claimant ended her route and was instructed to go to Concentra Health Services for medical treatment.
3
Claimant’s Medical Treatment
7. Claimant treated initially with Dr. Richard Pembrook. On her patient intake form she complained of pain in her middle to lower back on both the right and left sides. Dr. Pembrook diagnosed a lumbar strain. He restricted her from bus driving, prescribed ibuprofen and instructed her to begin intensive physical therapy immediately.
8. Claimant’s pain worsened overnight. She returned to Dr. Pembrook the following day. Although she continued to complain primarily of back pain, Dr. Pembrook also noted some tenderness “up in the interscapular region,” a reference to the area in Claimant’s upper back between her shoulder blades. Notwithstanding this notation, however, Dr. Pembrook maintained the diagnosis of lumbar strain. As treatment, he prescribed a narcotic pain medication and a heating pad.
9. Claimant maintained during her testimony that she complained of left shoulder pain to her doctors throughout her treatment history. However, none of the many professionals with whom she treated noted shoulder pain until almost two months after her injury.
10. Specifically, throughout November and December 2006 Claimant treated with numerous primary care providers at Concentra, including Drs. Mercia and Waldman. She underwent two courses of physical therapy, one with Eduardo Plantilla and one with Susan LaBarge, and also was evaluated by Dr. John Peterson, an osteopath. None of these providers’ notes make any mention whatsoever of left shoulder pain. All of their reported findings were consistent with Dr. Pembrook’s initial diagnosis of lumbar strain. Some noted positive Waddell’s signs, possibly indicating a psychological component to Claimant’s pain. At least one provider also noted that Claimant voiced additional pain complaints in her hips and knees.
11. In addition, Claimant herself failed to make any mention of left shoulder pain in the “Employee’s Statement of Injury Facts” form she completed for Defendant on November 24, 2006.
12. The first report of left shoulder pain documented in the medical records was on December 20, 2006 when Claimant saw Dr. Elizabeth White. Dr. White reported that Claimant recently had experienced some left shoulder pain and right inguinal discomfort while undergoing physical therapy. Dr. White diagnosed Claimant with lumbar strain, shoulder strain and inguinal ligament strain. She concluded that Claimant’s left shoulder pain “likely” was due to physical therapy.
13. Susan LaBarge, the physical therapist with whom Claimant treated beginning in late November 2006, questioned Dr. White’s conclusion that Claimant’s shoulder pain “likely” was due to physical therapy. Ms. LaBarge testified that Claimant did not complain of shoulder pain at any point during her therapy. The physical therapy treatment notes confirm that testimony.
4
14. In January 2007 Claimant asked that her care providers at Concentra begin treating her for a left shoulder injury. Dr. Waldman questioned the causal relationship between her shoulder complaints and the work injury. He noted that Claimant now was wearing a splint for right wrist pain and complained of right groin tenderness as well. Dr. Waldman suggested that Claimant might be exhibiting signs of a “chronic pain syndrome.” Certainly Claimant’s pain complaints were confusing. Initially she appeared to be focused on her left shoulder, but many of the subsequent symptoms she reported were on her right side.
15. Throughout Claimant’s treatment for the lumbar strain that was diagnosed following the November 2006 work injury, it was never suggested that anything but conservative treatment was necessary for Claimant’s back injury. As of the formal hearing, no further treatment has been recommended for this injury.
16. Delores Burroughs-Biron at Concentra also treated Claimant. Dr. Burroughs-Biron diagnosed Claimant with chronic lumbar strain, groin strain and a “questionable” shoulder injury. She observed that Claimant moved well in and out of her examination chair and noted positive Waddell’s signs as well.
17. Dr. Burroughs-Biron placed Claimant at end medical result on August 2, 2007. Neither of the independent medical evaluators who examined Claimant has disputed this determination.
18. In January 2008 Claimant returned to full-time employment as a convenience store manager in the Plattsburgh, NY area.
Claimant’s Expert Medical Opinion
19. At Claimant’s request, Dr. Philip Davignon conducted an independent medical evaluation on August 7, 2007. Dr. Davignon has retired from direct patient care and his primary focus now is conducting independent medical examinations, permanency evaluations, second opinions and records reviews. Dr. Davignon has been a licensed occupational medicine provider for more than twenty years. In addition to maintaining his own private practice, he has been associated with Fletcher Allen Health Care and the Spine Institute of New England.
20. Although Dr. Davignon essentially agreed that the primary diagnosis for Claimant’s work injury was a lumbar strain, he also concluded that her left shoulder injury most likely was causally related as well. In support of this conclusion, Dr. Davignon noted that a left shoulder injury was consistent with the mechanism of how Claimant’s work injury had been sustained, and also that there was no evidence of any other incident or injury involving the left shoulder. Dr. Davignon did acknowledge that there was a behavioral component to Claimant’s pain complaints, but also observed that her upper extremities had never been evaluated. Last, Dr. Davignon admitted that he had based his determination, at least in part, on Claimant’s subjective representations and assumed that they were true and correct.
5
21. As to Claimant’s lumbar injury, Dr. Davignon did not comment on either end medical result or the extent of any permanent impairment.
Defendant’s Expert Medical Opinion
22. At Defendant’s request, Dr. John Johansson, an osteopathic physician, conducted an independent medical evaluation of Claimant on March 28, 2007. Dr. Johansson is the medical director and co-founder of the Vermont Center for Occupational Rehabilitation (VCOR) and Champlain Sports Medicine.
23. During the course of his examination, Dr. Johansson observed positive Waddell’s signs. He determined that Claimant’s pain symptoms were very exaggerated, and that her subjective complaints outweighed the objective findings.
24. Dr. Johansson stated that normally a complaint of shoulder pain from the type of injury Claimant experienced would have become evident within 72 hours to a week. In Claimant’s case, however, he observed that the medical records did not document any complaints of shoulder pain until almost two months after the work injury. Dr. Johansson noted in this regard that the interscapular pain reported by Dr. Pembrook on the day after Claimant’s work injury cannot be interpreted to refer to shoulder pain, as this area of the back is not directly related to the shoulder at all.
25. Dr. Johansson further noted that aside from her left shoulder, Claimant’s complaints were focused primarily on her right side. Last, Dr. Johansson determined from his own examination that there was nothing wrong with Claimant’s left shoulder. Considering all of these factors, Dr. Johansson concluded that Claimant’s complaints of left shoulder pain were not causally related to her work injury.
26. Dr. Johansson reevaluated Claimant on October 11, 2007. After doing so, he concurred with Dr. Burroughs-Biron’s finding of end medical result as of August 2, 2007. Dr. Johansson rated Claimant with a 2% permanent impairment referable to her low back injury.
CONCLUSIONS OF LAW:
1. Claimant asserts that she injured both her left shoulder and her low back in the November 9, 2006 work incident. As to the low back injury, she seeks permanent partial disability benefits. As to the left shoulder, she seeks a finding of compensability.
6
2. 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). Sufficient competent evidence must be submitted verifying the character and extent of the injury and disability, as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984).
Permanent Partial Disability for Claimant’s Low Back Injury
3. The medical experts agree that Claimant suffered a compensable low back injury on November 9, 2006. Both Dr. Burroughs-Biron and Dr. Johansson opined that she reached an end medical result for that injury on August 2, 2007. There is no medical evidence to refute that conclusion, only Claimant’s continued subjective complaints, which I find to be insufficient. I conclude, therefore, that the appropriate end medical result date for Claimant’s low back injury is August 2, 2007.
4. As for permanency, the only expert medical evidence produced was Dr. Johansson’s 2% whole person rating. I accept this calculation as the appropriate impairment.
Compensability of Left Shoulder Injury
5. As to the left shoulder, Claimant has the burden of establishing the causal relationship between her claimed injury and the November 9, 2006 work accident. Expert testimony is the sole means of laying a foundation for an award of compensability. Lapan v. Berno’s, Inc., 137 Vt. 393 (1970).
6. 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
7. In the instant case, Dr. Johansson reviewed all of the medical records, including those subsequent to his first independent medical evaluation, some of which Dr. Davignon did not review. Given the mechanism of injury, Dr. Johansson determined that had Claimant injured her left shoulder in the November 2006 work incident, she would have felt symptoms there within a short period of time thereafter. Yet none of the many physicians who saw Claimant during the six-week period after her work injury noted any symptoms indicative of a left shoulder injury. This fact renders Claimant’s testimony that she repeatedly told her doctors of her concern about her left shoulder less credible. Although it is conceivable that one physician could fail to note the left shoulder injury, it is not conceivable that four or five doctors would fail to do so.
8. I find that the other medical opinions that arguably establish causation are flawed. Dr. White’s assumption that Claimant’s left shoulder symptoms resulted from her participation in physical therapy was contradicted by the physical therapist herself, whose testimony I find credible. As for Dr. Davignon, his opinion suffers from too great a reliance on Claimant’s subjective statements, and does not adequately account for the lack of corroboration in the medical records themselves.
9. Thus, viewing the medical record as a whole, and based as well on Dr. Johansson’s credible testimony, I find that Claimant has failed to meet her burden of proving that her left shoulder injury was causally related to the November 9, 2006 work accident.
10. As Claimant has prevailed on her claim for permanency benefits for her low back injury, she is entitled to an award of only those costs that relate directly thereto. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003), citing Brown v. Whiting, Opinion No. 7-97WC (June 13, 1997). As for attorney’s fees, in cases where a claimant has only partially prevailed, the Commissioner typically exercises her discretion to award fees commensurate with the extent of the claimant’s success. Subject to these limitations, Claimant shall have 30 days from the date of this opinion to submit evidence of her allowable costs and attorney’s fees.
8
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits for her left shoulder injury is DENIED. As for the low back injury, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with a 2% whole person impairment referable to the spine, commencing as of the date of end medical result, August 2, 2007;
2. Medical benefits covering all reasonably necessary medical services and supplies related to treatment of Claimant’s low back injury;
3. Interest on the above in accordance with 21 V.S.A. §664; and
4. Costs and attorney’s fees in accordance with Conclusion of Law 10 above.
DATED at Montpelier, Vermont this 25th day of November 2008.
__________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

T. S. v. State of Vermont, Agency of Transportation (November 12, 2008)

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

T. S. v. State of Vermont, Agency of Transportation (November 12, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
T. S. Opinion No. 45-08WC
v. By: Phyllis G. Phillips, Esq.,
Hearing Officer
State of Vermont
Agency of Transportation For: Patricia Moulton Powden,
Commissioner
State File No. X-06039
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
William Blake, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant entitled to judgment as a matter of law on the question whether Claimant has reached an end medical result?
FINDINGS OF FACT:
The following facts are undisputed:
1. On May 23, 2006 Claimant had been an eighteen-year employee of the State of Vermont, then working for the Mapping Division of the Agency of Transportation. While at work on that day, Claimant was knocked to the ground when a visitor to her office inadvertently stepped backward into her path.
2. Claimant was transported to the hospital complaining of low back and increased right leg pain.
3. Claimant attempted to return to work on June 27, 2006 but fell again and was unable to continue.
4. Defendant accepted both the May 23, 2006 and June 27, 2006 falls as involving compensable injuries and began paying workers’ compensation benefits accordingly.
5. Claimant has a prior medical history of chronic pain disorder focused in the low back, hip and right leg relating to a snowmobile accident in 1991. Several treatment providers noted non-physiological components to Claimant’s examinations following that accident, and psychological factors were found to be significant.
2
6. At Defendant’s request, on July 27, 2006 Claimant underwent an independent medical evaluation with Dr. Verne Backus. Dr. Backus stated his diagnosis as follows:
Chronic low back and right sciatica by history. Illness behavior (e.g. symptom magnification behavior) was severe.
. . .
Her current presentation is best described by a Pain Disorder.
7. As to causation, Dr. Backus stated:
Based on the available information, to a reasonable degree of medical certainty, the primary diagnosis was only a temporary exacerbation of her pre-existing condition. She has a well-established history of chronic pain disorder focused in the low back to SI and hip to right leg for many years that has been progressing in subjective symptoms over the last year without any evidence of progressive signs.
There was no objective evidence of an injury on any of the diagnostic studies and, in this examiner’s opinion, the falls at work were limited to soft tissue injuries that healed within 2-3 weeks maximum each time with subjective symptoms beyond that being only manifestations of her pre-existing pain disorder.
8. As to end medical result, Dr. Backus stated:
Maximum medical improvement has been reached at this time being one month from her second fall at work, which is more than enough time for her soft tissue injuries to have healed. It is difficult to see this given the superimposed pain disorder, but that is characteristic of that condition.
9. As to work capacity, Dr. Backus stated:
Based on the analysis of this case Ms. Southworth has no restrictions that are directly related to her work injuries. However, I would not recommend she return to work but rather stay on short-term disability until her pain syndrome is addressed, as discussed below.
10. Last, as to further treatment recommendations, Dr. Backus stated:
Based on a careful review of the clinical issues with this case, to a reasonable degree of medical certainty, no further medical care, surgical interventions or physical therapy is required that is directly related to her work injuries. In order for her to return to work, however, unrelated to her work injuries I agree an IDE at SpINE to evaluate for a multidisciplinary approach has a reasonable chance of success in returning her to work and at the same time may further define and guide her to what appropriate
3
psychological treatment may help her pre-existing non-work-related pain disorder.
11. Relying on Dr. Backus’ report, Defendant filed a Form 27 on September 21, 2006. On October 11, 2006 the Department rejected the proposed discontinuance on the grounds that “Dr. Backus’ report and opinion that claimant has reached pre-injury status is not persuasive.”
12. On October 25, 2006 Defendant filed a Notice and Application for Hearing on the issue of end medical result.
13. On December 4, 2006 Defendant filed a second Form 27, again based on Dr. Backus’ IME report. Again the Department rejected the proposed discontinuance, finding that Dr. Backus’ conclusion that Claimant had returned to her pre-injury baseline was inconsistent with his recommendation that she not return to work until she received further treatment for her pre-existing pain syndrome.
14. On May 25, 2007 the Department reconsidered its denial of Defendant’s Form 27. Considering not only Dr. Backus’ end medical result opinion but also the lack of any further treatment recommendations from Dr. Chronister, one of Claimant’s treating physicians, the Department concluded that Claimant had failed to provide any medical evidence to refute a finding of end medical result. This time, therefore, it approved the discontinuance.
15. Notwithstanding the discontinuance of her workers’ compensation benefits, Claimant continued to treat. From May 14, 2007 through May 21, 2007 she was an in-patient at a rehabilitation hospital in Concord, New Hampshire, under Dr. Chronister’s care.
16. Claimant filed a Notice and Application for Hearing to appeal the discontinuance. Claimant identified her treating physicians, Dr. Hart and Dr. Chronister, as expert medical witnesses.
17. Defendant deposed Dr. Chronister on December 6, 2007. Dr. Chronister testified that in his opinion Claimant suffered from complex regional pain syndrome (CRPS) and that her fall at work in May 2006 destabilized what previously had been a stable medical condition. Dr. Chronister further testified that there were two physicians affiliated with the pain center at Massachusetts General Hospital who do research in CRPS. With their expertise in mind, Dr. Chronister referred Claimant on for evaluation, diagnosis and possible treatment. Having done so, Dr. Chronister testified that he had no further treatment recommendations to offer Claimant and that he no longer was following her care.
18. Defendant deposed Dr. Hart on January 10, 2008. Dr. Hart testified that she did not hold an opinion to the required degree of medical certainty either as to Claimant’s medical diagnosis or as to whether further medical treatment would improve her condition significantly.
4
19. Claimant underwent an evaluation with Drs. Rivera and Gulur at the Massachusetts General Hospital Pain Center on November 2, 2007. As to diagnosis, the report of this evaluation states, “It is likely that [the] primary component of the patient’s pain is neuropathic in nature with inflammatory contribution as well.” As for treatment, Drs. Rivera and Gulur commented as follows:
[W]e advise the patient at length that her presentation was certainly atypical for [complex regional pain syndrome] and regardless of the co-diagnosis, the treatment would be the same, which is primarily self-motivated physical therapy and strengthening exercise. We then further emphasize the need for aggressive prolonged physical therapy and that the patient may benefit from short-term inpatient physical therapy course, however, that would need to be decided upon between her and her primary care physician.
CONCLUSIONS OF LAW:
1. Defendant seeks summary judgment on the issue of end medical result. It contends that because neither of Claimant’s treating physicians has made any specific recommendations for further treatment, as a matter of law Claimant thereby lacks the evidence necessary to refute Dr. Backus’ end medical result finding.
2. 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 judgment in its favor as a matter of law. Samlid 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. Heritage Realty of Vermont, 137 Vt. 425 (1979).
3. Defendant argues that having produced sufficient evidence to support its discontinuance at the informal level pursuant to 21 V.S.A. §643a, the burden then shifted to Claimant to prove her entitlement to additional benefits. Vermont law clearly provides to the contrary. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that to do so is proper. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974). This is true even if, as was the case here, the discontinuance previously had been approved at the informal level. F.B. v. Visiting Nurse Association, Opinion No. 29-06WC (July 7, 2006). Because the standard of proof is different – reasonable support at the informal level, preponderance at the formal level – different conclusions logically may result.
5
4. Defendant’s evidence fails to achieve this standard, because it centers on the wrong question. The true focus of the debate in this claim is whether Claimant’s work-related falls aggravated her underlying pain disorder, not whether she has reached end medical result yet. If the work-related falls caused a compensable aggravation, then arguably Claimant has not yet reached end medical result. Further treatment, in the form of self-directed and/or in-patient physical therapy as recommended by Drs. Rivera and Gulur, still might improve her condition. If, on the other hand, the work-related falls caused nothing more than a minor soft tissue injury that neither aggravated nor accelerated Claimant’s underlying pain disorder, then perhaps Dr. Backus’ end medical result determination will stick.
5. Taking the evidence in the light most favorable to Claimant, genuine issues of material fact exist that preclude summary judgment. Dr. Chronister testified that Claimant’s work-related falls destabilized what previously had been a stable medical condition. With that statement he provided the foundation for what ultimately might be a compensable work-related aggravation. If so, the treatment suggested by Drs. Rivera and Gulur reasonably might be interpreted to negate a finding of end medical result.
6. The sole purpose of summary judgment review is to determine if a genuine issue of material fact exists. If such an issue does exist, it cannot be adjudicated in the summary judgment context, no matter how unlikely it seems that the party opposing the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973). However tenuous or unlikely the evidence in support of Claimant’s claim that her work-related falls aggravated her underlying pain disorder, she is entitled nonetheless to present the evidence and litigate the question. Summary judgment against her is not appropriate.
ORDER:
Defendant’s Motion for Summary Judgment is DENIED.
DATED at Montpelier, Vermont this 12th day of November 2008.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

C. F. v. S. D. Ireland Concrete (September 17, 2008)

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

C. F. v. S. D. Ireland Concrete (September 17, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. F. Opinion No. 35-08WC
By: Jane Dimotsis
v. Hearing Officer
S.D. Ireland Concrete For: Patricia Moulton Powden
Commissioner
State File No. U-52496
Formal Hearings held in Montpelier on August 28, 2007 and October 31, 2007
Record Closed December 2007
APPEARANCES:
Steven P. Robinson, Esquire, for the Claimant
Keith J. Kasper, Esquire, for the Defendant
ISSUES:
1. When did Claimant reach end medical result?
2. Is Claimant permanently and totally disabled under 21 V.S.A. §644(b)?
3. If not, what is extent of claimant’s permanent partial impairment?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Joint Exhibit II: Supplemental Medical Exhibit
Joint Exhibit III: Louise Lynch Deposition Transcript
Claimant’s Exhibit 1: Bushey Letter
Claimant’s Exhibit 2: Gregory LeRoy’s CV
Defendant’s Exhibit A: Fran Plaisted’s CV
CLAIM:
Temporary total disability benefits through July 24, 2006 pursuant to 21 V.S.A. § 642;
Permanent total disability benefits under 21 V.S.A. § 644(b) or alternatively,
permanent partial disability benefits under 21 V.S.A. 648;
attorney’s fees and costs under 21 V.S.A. § 678.
2
FINDINGS OF FACT:
1. Claimant was an employee within the meaning of the Workers’ Compensation Act and S.D. Ireland was an employer under the Act on the date of Claimant’s injury.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim.
3. Claimant’s injury occurred on April 14, 2004 and caused chronic left shoulder pain and other limitations. Claimant underwent a shoulder arthroscopy subacromial distal clavicle excision and open rotator cuff repair by Dr. Bryan Huber on July 27, 2004. The surgery was not successful. Claimant was left with a significant amount of pain and little to no use of his left arm. This injury was determined compensable by the Department in a decision and order dated July 19, 2005.
4. After Claimant suffered his shoulder injury he was unable to continue working for the Defendant as an equipment operator. Defendant assigned him to work as a flagger for two weeks, and later terminated his employment in June of 2004.
5. The insurer paid benefits in the form of Temporary Total Disability Benefits (TTD) from November 5, 2005 until December 22, 2005. At that time, the Claimant had an average weekly wage of $704.49 resulting in an initial compensation rate of $469.33. Claimant had returned to work for a former employer on a less than full time basis from December 11, 2004 until approximately October 31, 2005 due to financial necessity. This former employer also terminated him due to his inability to use his left arm.
6. Claimant is a 67-year-old male. He had formal schooling through the eighth grade and can read and write. He has the reading ability of a fifth grader and math abilities on a sixth grade level. Claimant rarely reads and relies on his wife to fill out paper work for him. Claimant has had experience in logging, construction, operating heavy equipment and driving trucks. At the time of his injury Claimant was working as an equipment operator for Defendant.
7. Claimant wants to go back to work. He has worked all of his life beginning with farming. He had planned on working until he was 70 years old. However, his left arm is painful and he has loss of sensation in his left hand. He feels numbness from his fingers up his arm into his neck. Most of the time he keeps his arm in his pocket. He has no grip with his left hand. He drives by keeping his left arm under the steering wheel. He can’t drive more than a distance of 10 miles due to the inability to use his left arm. He does not take prescription drugs because he does not want to become addicted to them. He does take Ibuprofen for pain.
3
8. Claimant has received physical therapy and chiropractic care for his injury, but continues to have constant pain and numbness in his left arm, hand and shoulder. In order to alleviate the weight of his arm pulling on his shoulder, he must keep his left hand in his pocket while walking or standing. He has poor tolerance to cold weather, and has difficulty sleeping at night. Additionally, he is unable to do most household chores. He is able to walk eight miles a day.
9. Since the time of the injury, Claimant’s physician, Dr. Huber, has treated Claimant’s condition. This treatment included physical therapy, an EMG, an MRI, cervical x-rays, medications, surgical consults, and injection therapy. Because Dr. Huber believed surgery would only have a 20% chance of being successful, Claimant declined this treatment option.
10. In several of the examinations, Dr. Huber noted a modest improvement in Claimant’s condition, and in other examinations, he did not find any improvement to have occurred. On November 19, 2005 Dr. Huber filled out a form stating that the Claimant could return to work with the following restrictions:
a) no repetitive motion
b) no lifting greater than 10 pounds
c) no overhead use of upper extremity
d) no overhead lifting
e) may need periodic rest
f) may return to desk work only/ no truck driving.
11. On April 4, 2006 Dr. Huber wrote that he believed that Claimant had “basically met maximal medical improvement.” On May 5, 2006 Dr. Huber answered “no” when asked if Claimant could return to the traditional labor force at the present time. Barely a month later, on May 23, 2006, Dr. Huber gave Claimant an injection to help his arm move better. This injection was not effective, and Dr. Huber told Claimant that there was nothing else he could do to treat his condition. On July 24, 2006 Dr. Huber placed Claimant at end medical result with a 13% permanent impairment. In doing so, Dr. Huber recognized that Claimant’s underlying condition would not have changed even if his pain level decreased.
12. Dr. Johansson performed an independent medical examination on October 11, 2005, and reviewed his subsequent medical records. He held that Claimant reached end medical result on December 9, 2005 because his condition did not improve after that date.
13. George Fotinopoulos, a vocational rehabilitation counselor, provided an assessment of whether vocational rehabilitation services would benefit Claimant. He found that due to Claimant’s advanced age, limited residual functional abilities, restricted driving ability, extended time out of work, and computer illiteracy he would not be able to return to the work force with vocational rehabilitation services within a reasonable length of time. He did initially explore limited work options for Claimant, primarily making bird houses. Claimant could not do this work due to his shoulder injury. Mr. Fotinopoulos then recommended closure of vocational rehabilitation services, which the Department approved.
4
14. Iris Banks also performed a vocational assessment on Claimant. She found that vocational rehabilitation could be beneficial for placement in several different occupations. However, she also found that Claimant faced several significant barriers preventing him from returning to work, including his high level of pain and limited stamina and the lack of a high school diploma or GED. She found that if he was to work in a stationary situation, he would require an adjustable workstation that would allow for positional adjustment of his hands and arms. She also noted that a vehicle would have to be modified to allow him to drive with his right hand and provide support for his left hand. Also, Claimant most likely would have to be retrained to do sedentary work. She noted he has no computer skills and no GED.
15. Louise Lynch, a physical therapist and certified work capacity evaluator, performed two functional capacity evaluations on Claimant. In the first evaluation on February 26, 2006, she found that Claimant did not have the ability to return to work as an equipment operator or work as a laborer or tandem driver, but did have a LIGHT work capacity for full time work with occasional use of the left upper extremity below chest level. In the second evaluation, eighteen months later, she found that he did not have a sustainable full time work capacity based upon the Dictionary of Occupational Titles. This referred only to his ability to go to work on a day-to-day basis with the use of both of his hands. She found that he had some positional abilities for sitting, standing, and walking for both SEDENTARY and LIGHT work, and that he could use his right dominate hand on a frequent basis at a LIGHT level. She believed that he could have a full time work capacity if accommodations were made for his left arm and hand.
16. Fran Plaisted, a vocational expert, performed an independent vocational evaluation (“IVE”) on Claimant in July 2006 which she updated on October 19, 2007. She found that the Claimant could return to regular gainful employment in the labor market with further vocational rehabilitative services. She noted that his barriers to employment were not unlike those barriers faced by other individuals with disabilities returning to work. She believed that a plan could have been provided to Claimant including a vocational assessment, adult tutoring for his GED, a driving evaluation, tutoring for computer skills, and vocational exploration to determine occupations that existed in his area that can be performed one-handed or could be modified to be done with one hand.
17. Greg LeRoy, also a vocational expert, performed a vocational rehabilitation assessment on Claimant. He found that vocational rehabilitation would not result in the Claimant being able to return to regular gainful work. He disagreed with the suggestions made for employment by some of the other experts, holding that Claimant does not meet the qualifications for the jobs suggested. Mr. LeRoy also noted that in addition to Claimant’s limited type of work experience, skills, education, and difficulty driving, his age and time out of work also would make it too difficult for him to return to work. He determined that the amount of time needed to bring Claimant’s skills up to the necessary level for sedentary work were unrealistic when considering his age of 67. The fact that the Claimant lives in a very rural area of Hyde Park, Vermont also played a small part in his decision.
5
18. Attorney’s fees in the amount of $17,514.00 and costs of $6,332.81 were requested by Claimant’s attorney.
CONCLUSIONS OF LAW
1. The main issue in this case is whether further vocational rehabilitation services are available that would make Claimant employable, or whether he is permanently totaled disabled. There is also a disagreement regarding when end medical result occurred.
End Medical Result
2. When evaluating and choosing between conflicting medical opinions, the Department has traditionally considered several factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience. Morrow v. VT Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Sept. 1 & July 20, 1998); Miller v. Cornwall Orchards, Opinion No. 20-97WC (Aug. 4, 1997).
3. The parties each rely on the opinion of one doctor: Dr. Huber, Claimant’s treating physician, an orthopedic surgeon, and Dr. John Johansson, Defendant’s independent medical evaluator, an osteopath.
4. Of the factors used in choosing between the conflicting medical opinions, I find several to be equally persuasive. Each doctor had an opportunity to review Claimant’s medical records and each doctor undertook a comprehensive physical examination of Claimant. However, Dr. Huber his treating physician operated on him.
5. Under Workers’ Compensation Rule 2.1200, end medical result is the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment. The proper test to determine end medical result is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement. Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). Here, the doctors disagree about the appropriate date on which Claimant reached end medical result.
6. First, as to the nature of treatment and length of time there has been a patient-provider relationship, it appears that Dr. Huber treated Claimant since the date of his injury, including performing his surgery and treatment. Dr. Johansson has examined Claimant only for the IME. However, Dr. Johansson is much more familiar with the Guides and the IME process. He found the date of end medical result to be December 9, 2005.
6
7. Although Dr. Huber noted in his reports that he continued to speak with Claimant regarding different treatment options, there only existed a small percentage of hope that doing another surgery would be helpful. Claimant did not choose to go forward with the surgery due to the low odds of it being helpful. Dr. Huber originally stated that he felt that Claimant may have reached maximal medical improvement on April 4, 2006. As a final alternative Dr. Huber gave Claimant an injection in May 2006. The injection was the type used for palliative care or relief of pain. It did not result in any significant further improvement in his condition.
8. As was the case in Coburn, Dr. Huber’s treatment caused Claimant’s injury to be more stable, but did not improve his underlying condition. With that in mind, I find Claimant reached end medical result on December 9, 2005 as Dr. Johansson determined.
Permanent and Total Disability
9. Under 21 V.S.A. § 644(b) and Workers’ Compensation Rule 11.3100:
A claimant shall be permanently and totally disabled if their work injury causes a physical or mental impairment, or both, the result of which renders them unable to perform regular, gainful work. In evaluating whether or not a claimant is permanently and totally disabled, the claimant’s age, experience, training, education, occupation and mental capacity shall be considered in addition to his or her physical or mental limitations and/or pain. In all claims for permanent total disability under the Odd Lot Doctrine, a Functional Capacity Evaluation (FCE) should be performed to evaluate claimant’s physical capabilities and a vocational assessment should be conducted and should conclude that the claimant is not reasonably expected to be able to return to regular, gainful employment. A claimant shall not be permanently totally disabled if he or she is able to successfully perform regular, gainful work. Regular, gainful work shall refer to regular employment in any well-known branch of the labor market. Regular, gainful work shall not apply to work that is so limited in quality, dependability or quantity that a reasonably stable market for such work does not exist.
10. Regular employment means work that is not casual and sporadic. Gainful employment means that the hiring is not charitable and the person earns wages. Rider v. Orange East Supervisory Union, et. al., Opinion No. 14-03WC (2003).
11. Based on Louise Lynch’s FCE, it appears at best that Claimant can only perform a LIGHT level job that requires the use of only one-hand. The remaining experts disagree on whether Claimant can find regular gainful employment given his barriers to employment. Even if it is possible for Claimant to find employment, it is not likely.
7
12. Here, both Iris Banks and Fran Plaisted have suggested possible jobs for Claimant that would accommodate his injury and other employment barriers. However, in his vocational rehabilitation assessment, Greg LeRoy disagreed that Claimant could meet the qualifications for these jobs. Mr. LeRoy offered objective support for his opinion that many of the jobs suggested were not feasible for Claimant and I find his reasoning convincing as to the jobs not discussed in his assessment as well.
13. As Workers’ Compensation Rule 11.3100 establishes, the Odd Lot Doctrine does not require that a Claimant establish his inability to perform any work whatsoever in order to qualify for permanent total disability. The focus is on his or her ability to perform “gainful work” in which a reasonably stable market can be presumed to exist.
14. The expert testimony establishes that Claimant may in fact be able to be retrained so as to perform some work at a LIGHT level and using only his right hand. However, given Claimant’s age, his experience and training in only physical jobs requiring both arms, his limited education, his restricted driving ability and his residual pain, I find that the opportunities for gainful work in the rural area in which he lives are most likely non-existent. To the contrary, Claimant appears to present the very picture of the permanently disabled worker for which the old lot doctrine was enacted.
15. Defendant argues that because of the similarity of this case to Kreuzer v. Ben & Jerry’s Homemade and Royal Sun Insurance, Opinion No. 15-03WC, the Department should require that Claimant exhaust all vocational rehabilitation services before finding permanent total disability. While I agree there are similarities to Kreuzer, I do not find the holding there to be binding here. Odd lot cases are extremely fact-specific by nature, and to generalize from one to another usually ill-advised.
16. Consequently, because the evidence supports that Claimant would not find gainful work even through vocational rehabilitation, I find him to be permanently and totally disabled.
17. The parties stipulated that Claimant’s average weekly wage was $704.49 resulting in an initial compensation rate of $469.33 at the time of the injury. He had no dependents.
18. Claimant has submitted a request for attorney’s fees totaling $17,514.00 and costs totaling $6,332.81. Defendant raises various issues as to both amounts. Defendant is correct that attorney’s fees should only be awarded for the time spent litigating the issues in the current claim, and not for time spent on Claimant’s tort action against the insurer. Nor can Claimant seek attorney’s fees for time spent on the prior litigation of this claim before this Department. Last, Defendant is correct that paralegal time spent should be billed at the appropriate paralegal rate, $60.00 per hour, rather than at the attorney’s rate. Claimant shall have 30 days from the date of this decision to submit an amended bill reflecting only time spent on the current litigation and billed a the appropriate hourly rate.
8
19. As for costs, I find that all of the charges submitted are properly connected to litigation of the current claim. However, Mr. LeRoy’s charges are not documented with sufficient capacity to determine their compliance with Workers’ Compensation Rule 40. Claimant shall have 30 days from the date of this decision to submit an amended bill from Mr. LeRoy, showing time spent and rates charged.
ORDER:
Based on the foregoing findings and conclusions, Defendant is hereby ordered to pay:
1. Permanent total disability commencing on December 9, 2005, the date Claimant reached end medical result;
2. Interest at the statutory rate commencing on December 22, 2005;
3. Attorney’s fees and costs in an amount to be determined based on Claimant’s supplemental filing in accordance with Conclusions of Law #s 17 & 18 above.
DATED at Montpelier, Vermont this 17th day of September 2008.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

J. D. v. Employer R (August 2, 2007)

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

J. D. v. Employer R (August 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. D. Opinion No. 22-07WC
By: George K. Belcher
v. Hearing Officer
Employer R. For: Patricia Moulton Powden
Commissioner
State File No. X-00111
OPINION AND ORDER
Hearing held in Montpelier on March 23 and 24, 2007. Proposed findings and documentation of attorneys’ fees were received on May 16, 2007. The record was closed on June 1, 2007.
APPEARANCES:
Christopher McVeigh, Esq., for the Claimant
William B. Skiff, II, Esq., for the Defendant
ISSUES PRESENTED:
1. Whether the Claimant’s psychological condition is caused by her work injury on June 30, 2005;
2. Whether the Claimant has reached a medical end result for her right-sided back, leg and knee injuries suffered in her June 30, 2005 fall at work;
3. Whether the Claimant’s right shoulder condition is related to the injury at work on June 30, 2005 and has the right shoulder reached a medical end result.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records, Medical Bills, and Prescription Summary
Joint Exhibit II: Civil Complaint
Joint Exhibit III: Dept. of Labor Form 25, Wage Statement
2
Claimant’s Exhibits:
Claimant Exhibit I: Photograph of Storage Area
Claimant’s Exhibit II: Photograph of bar area
Claimant’s Exhibits III: Photograph of bruising of Employee’s right hip
Claimant’s Exhibits IV: Photograph of bruising of Employee’s right ankle
Claimant’s Exhibits V: Photograph of bruising of Employee’s right knee
Claimant’s Exhibit VI: Envelopes, checks and notations
Claimant’s Exhibit VII: Kinney Prescriptions
STIPULATIONS:
1. The Claimant had an appointment with Dr. Mercia for a physical evaluation which was scheduled in September of 2006 and cancelled by counsel for the Defendant.
2. The caption of this case will not identify the Claimant or the Defendant because of the sensitive nature of the history of sexual abuse of the Claimant.
FINDINGS OF FACT:
1. The Claimant is an employee within the meaning of the Vermont Workers’ Compensation Act.
2. The Defendant is an employer within the meaning of the Vermont Workers’ Compensation Act.
3. The Claimant is a 52 year old married woman. She began working for the Defendant in December of 2003. Her job was as a daytime bartender.
4. She worked for almost a year and half for the defendant without incident. During this time she was a good employee with no discipline problems or noticeable emotional problems. She got along well with the customers and the staff. Her duties included service at the bar and some waitressing in the bar area. She would clean the bar area in the mornings. She was also active in decorating and arranging special events at the bar on holidays and on birthdays for the regular customers.
3
5. On June 30, 2005 she was working at the bar in advance of the July Fourth celebration. She was moving from the bar area to a narrow storage area at the rear of the bar at about 10:50 AM. She tripped and fell. As she fell forward she twisted onto her right side. Some boxes fell onto her. The fall was significant and for some period of time (between five and twenty minutes) she lay on the floor. She was discovered by another employee. Following the fall she was in pain and upset. She drove herself to the home of a friend and called her husband. She then went to her primary medical care provider, Molly Backup, PAC, at Evergreen Family Health.
6. Molly Backup, PAC, had been the Claimant’s regular, primary, medical provider for about eight years. Ms. Backup has an undergraduate degree from Harvard University in Social Anthropology in 1972 and a two year Physician’s Assistant Certification from Yale University in 1974. She has worked at Evergreen Family Health since 1998 with prior experience in other family practices. She works under the supervision of three medical doctors in her practice, but she sees patients, examines them, diagnoses them and treats them without the physicians necessarily being present. She does not prescribe Class V drugs (such as heroin), but she prescribes all other classes of drugs. She does not have hospital privileges. She diagnoses and treats most types of ailments. She does not deliver babies. She diagnoses mental illnesses when a psychiatric consult is not available or not warranted.
7. PAC Backup observed the Claimant on June 30, 2005 (the same day as the fall) as limping and in apparent severe pain in her right hip, right leg, and right shoulder with a decreased range of motion in her right shoulder. Ms. Backup prescribed pain medication and ordered further diagnostic tests. (See Evergreen Family Health note of June 30, 2005). At their next appointment on July 14, 2005, Ms. Backup noted bruises over the Claimant’s right knee, hip and right shoulder and decreased sensation in her right leg. The bruising indicated the severity of the injury. The pain in the right side of the back and the right leg were totally new to the Claimant. On July 6, 2005 the Claimant had a series of x-rays which were normal except for mild degenerative changes. An MRI performed on July 10, 2005 was likewise showing no objective evidence of a noticeable change from an MRI done before the fall.
8. The Claimant’s husband photographed the bruising of her right hip, ankle and knee. (See Claimant’s Exhibits 3, 4, and 5).
9. Following the fall, the Claimant attempted to return to work several times. Each time the pain was too significant. On July 11-13 she worked but could not stand the pain and could not return to work.
10. Between the time of the fall on June 20, 2005 and mid July 2005, the Claimant was asked by her treating medical providers for a Workers’ Compensation number so that they could present their bills to the insurer.
4
11. The Claimant later contacted the Department of Labor and was told that no first report of injury had been filed by the Defendant. The Defendant filed a First Report of Injury on July 28, 2005. The Claimant filed her own Form 21 and Form 25 in September of 2005. She was contacted by one of the principals of the Defendant and was asked whether she had private disability insurance. She was told by this person that the Defendant would get back to her, which did not happen. In early August, 2005, the Claimant was told by the Department of Labor that the Defendant had no Workers’ Compensation insurance. According to the Department’s file, the Workers’ Compensation insurer cancelled the Defendant’s Workers’ Compensation policy for non-payment of premium on December 26, 2003. A representative of the Defendant testified that they were unaware that they had no insurance.
12. The Claimant was unable to work and was surprised to learn that the Defendant had no Workers’ Compensation insurance.
13. One of the principals of the Defendant (B.M.) promised to call her every Friday and did not do so. Also no payments to the Claimant were forthcoming until August 23, 2005, at which time one of the principals of the Defendant came to the home of the Claimant and presented a check for the accrued Workers’ Compensation benefits. Thus, the first check which was delivered covered a period of time of almost seven weeks.
14. The next check received by the Claimant was received on October 8, 2005, covering a six week period. On October 21, 2005, the Claimant, a representative of the Defendant, and a representative of the Department of Labor, had a conference in which it was resolved that the Defendant would pay the Claimant a disability check every two weeks henceforth.
15. Of the 28 checks for compensation delivered to the Claimant between August 24, 2005 and October 31, 2006, the average delay between the end of the payment period and the mailing or delivery of the check was 13 days. The checks were consistently late without explanation. When asked about the tardiness of the checks, one of the principals of the Defendant (S.M.) stated that the Claimant could have come to the employer’s place of business to pick up the check, despite no evidence that this was ever her obligation or the arrangement for delivery of the checks. In addition to the tardiness of the checks, many of the checks were written to the Claimant with her name spelled incorrectly. Starting with a check written in February of 2006, the memorandum section of some of the checks contained language such as “out since June pay-deep bruising” (2/1/06), “on going injury”(5/22/06),”Deep bruising/psychological”(6/5/06), “deep bruising from a simple fall” (6/20/06), “ongoing deep bruising” (8/11/06), “unbelievable” (8/31/06), “rip-off” (10/19/06). See CL. Ex. 6. These comments on the checks were written by SM, a principal of the Defendant.
16. There was little contact between the Defendant and the Claimant and no one specifically called her to find out how she was doing.
5
17. During the previous years in which Ms. Backup had treated the Claimant, she had never suspected that the Claimant was clinically depressed. She had never before asked her to complete a depression questionnaire. Ms. Backup first suspected that the Claimant was becoming depressed on July 29, 2005. She administered a questionnaire to test for depression but the Claimant, at that time, did not meet the clinical definition of depression. Ms. Backup again administered the depression test to the Claimant on September 22, 2005. She determined, at that time, that the Claimant met the definition of clinical depression.
18. The Claimant continued to experience right sided back pain, right leg pain and right shoulder pain. She was given a no-work slip and was not able to work.
19. By October or November of 2005, the Claimant began staying in bed, feeling like she was being treated as a “nobody”. During periods during the fall of 2005 she would not answer the telephone and “could not face anything.”
20. In March of 2006 the Claimant was admitted to the Fletcher Allen Hospital psychiatric ward where she was evaluated and treated by Dr. Richard Bernstein, who is a board certified psychiatrist and a member of the University of Vermont Medical School faculty, teaching and practicing general psychiatry. He diagnosed the Claimant as having “Major Depressive Disorder and Post Traumatic Stress Disorder”. This admission was from March 20, 2006 through April 3, 2006. The Claimant was admitted to the same psychiatric ward on the following dates: May 8, 2006 through May 16, 2006; June 20, 2006 through June 26, 2006; August 19, 2006 through August 21, 2006; and December 14, 2006 through December 21, 2006. These admissions were voluntary, but it is clear from the records that the Claimant was severely depressed, anxious, withdrawn, and unable to function at the time of most of her admissions. Several of her admissions were accompanied by suicidal ideation.
21. The Claimant had a history of right shoulder pain and treatment before her fall of June 2005. The medical records report right shoulder problems going back to October, 1997. In May of 2003 her right shoulder was causing her pain and she received an injection; In November of 2003 her right shoulder was still causing her some pain.
22. In the opinion of Ms. Backup the right shoulder injury, which is the subject of the instant case, was a sprain to the right rotator cuff, with spasms. This diagnosis was distinct from the prior right shoulder diagnosis which was “calcific tendonitis” of the right shoulder. A distinguishing factor between the two injuries was that the previous condition seemed to respond to therapy by injections whereas the right shoulder problem which arose from the June 30, 2005 injury did not respond as well to this treatment.
6
23. PAC Backup was quite certain in her medical opinions. The right shoulder, the right hip and back and right leg pain were causally related to the fall on June 30, 2005. Moreover, the Claimant’s depression was causally related to the fall as well. She explained her opinion by pointing out that the Claimant had never sought to be out of work in prior injuries. She was always anxious to return to work. She had never presented as a depressed patient before the fall. The depression developed soon after the fall and during the period when the Workers Compensation benefits were in question.
24. The Claimant has been in physical therapy for her right-sided back and right leg pain since the injury on June 30, 2005. She did a series of 18 visits with Long Trail Physical Therapy between July 19, 2005 and August 29, 2005. She then treated with Porter Rehab and Ortho Services at Porter Medical Services Inc. She started treatment there on August 9, 2006. In a report of September 26, 2006 the physical therapist noted in the assessment section of her report, “Pt is reporting slow gains” and, “She is very motivated and has realistic goals.”
THE EMOTIONAL AND MEDICAL HISTORY OF THE CLAIMANT BEFORE JUNE 30. 2005
25. In order to evaluate the causation and extent of the compensable injuries, the pre-injury medical, emotional, and employment history of the Claimant becomes relevant.
26. The Claimant was born in Vermont and her father died at an early age. She moved to Connecticut and Massachusetts. At the age of 15 she was the subject of sexual abuse by her step-father. She was made to drop out of high school and was home-schooled. She suffered the sexual abuse between the ages of 15 and 25 during which time she lived at home. She had been threatened by her step-father and felt that by staying in the home she might preclude her younger sister from being molested by him. Her step-father died when she was 25 years old and the abuse stopped. She later learned that he had abused at least one of her other sisters. She did not often disclose the abuse. It was not disclosed to the medical professionals such as Molly Backup, or to the psychiatric professionals such as Dr. Bernstein or Dr. Erickson, until it became a matter of a public disclosure on June 14, 2006.
27. At age 30 she married. She worked at a milk hauling business for 15 years doing a variety of jobs including scheduling, routing, dispatching, and bookkeeping. She was responsible for thirty truck drivers. She later divorced from her first husband but she remained on good terms with him.
7
28. She then worked at a local Vermont restaurant for seven years as a waitress/manager. She worked hard and had to be fast to keep up. She met her current husband in 2000 while working at this restaurant and he described her as the best waitress, being very capable. This was a busy job which was physically demanding. On April 24, 2002 she had an L-5/S-1 laminectomy/discectomy in order to treat increasing pain in her left back. This surgery left her with some nerve damage. She also had some bursitis in her left hip. She was almost fully recovered from her hip surgery and she was preparing to return to work, when she was involved in a motor vehicle accident on July 10, 2002. In the motor vehicle accident she injured the left side of her back. She also “banged” her right shoulder. Following the accident she had chronic pain on her left side in her back and her left leg. She also developed pelvic floor pain.
29. Following her motor vehicle accident she returned to work again at her prior job in September of 2002. She worked there for about a year but she was not able to keep up with the fast pace. Also, some of the other waitresses were not willing to return her to the prime shifts. She voluntarily left this job in September of 2003. In December of 2003 she was hired by the Defendant as a bartender. She disclosed her prior back problem to the employer but she clearly felt that she could do this job which required less lifting and running. She continued to work at the job without problem until June 30, 2005.
30. In 2003 and 2004 she had injections to her right shoulder for pain.
31. Prior to the incident on June 30, 2005 the Claimant usually had a positive disposition. She was spontaneous. She had friends and liked to engage with her close friends. She was active in Weight Watchers and was concerned about her weight and her grooming. While she occasionally had ordinary ups and downs, neither her husband nor two close friends who testified, noticed what they would call clinical depression. The Claimant had never been treated for significant depression by a therapist or psychiatrist before the accident and she had never been on anti-depressants for a significant period of time as a treatment for depression. 1 Most importantly, she had never been depressed in a way which interfered with her ability to work and to function in her personal life.
32. The Claimant had a history of increasing left back pain and left leg pain which had continued from the surgery in 2002 to the time of the fall in 2005. She was referred to Dr. Tarver at the Fletcher Allen Health Care pain clinic in June of 2005 concerning this ongoing pain. Similarly the Claimant had a gradual and consistent rise in her prescription of Hydrocodone from June in 2001 at the rate of 12 per month, to 150 per month as of May 2005. On June 29, 2005 (the day before the work injury) the Claimant was seen at Evergreen Family Health complaining of increasing pain and the need for more pain medication. During that visit her discomfort was obvious with her sitting sideways on the edge of her chair. She reported that it was hard to work with the pain. Nonetheless, she went to work the following day.
1 The Claimant did take a low dose of an antidepressant for a short time following the death of a relative several years before her fall. This was insignificant to the issues being considered in this action.
8
33. It is clear that as a result of her spine surgery and motor vehicle accident she had chronic pain in her left back and left leg. She also had lower pelvic pain, rectal and vaginal pain, which also affected her sexual life.
34. There was some evidence introduced that the Claimant may have had some level of depression before the fall in June of 2005. When the Claimant was admitted to the Fletcher Allen Health Care mental health unit it was noted that the claimant had a “four year history of intermittent depression, PTSD, and chronic, severe low-back pain”. See Fletcher Allen Health Care note of March 22, 2006. The entry was repeated in several of the ongoing medical records of the Claimant during subsequent days during this admission and in other admissions. It was the position of the Defendant that the Claimant had a preexisting condition of depression, chronic pain syndrome, post-traumatic stress disorder, and sexual abuse history and that it was a combination of these factors (unrelated in any way to the fall on June 30, 2005, which caused her psychiatric hospitalizations). This concept was refuted by Dr. Bernstein.
35. Dr. Bernstein testified that this first note of a “four year history of depression, PTSD, chronic, severe low back pain” was likely made by the weekend on-call psychiatrist, without the level of specificity which would be done by a treating psychiatrist for a regular in-patient. It was clear that even though Dr. Bernstein had signed as having reviewed these notes, he did not agree that the Claimant had a four year history of depression. She had not been treated for depression before her admission, there was no medical history of treatment, and even if she were to have such a history, it did not interfere with her ability to work. There were no independent medical or psychiatric records from other providers which corroborated such a history.
36. The Claimant had not disclosed to her psychiatrists her history of sexual abuse until it was disclosed in June of 2006. Since the sexual abuse had not been disclosed, and since there were inconsistencies in the medical records, the Defendant argues that the subjective information given by the Claimant to her medical providers was suspect, inconsistent and incredible. Therefore, the Defendant argues, the opinions which were in large part based upon this information were likewise unsupported.
9
THE MEDICAL AND PSYCHIATRIC OPINIONS
37. Molly Backup, PAC, was of the opinion that the Claimant’s right-sided back pain, leg pain and shoulder pain were related to the fall on June 30, 2005. She noted that the right-sided, low back pain and leg pain had never been experienced before by the Claimant and that the right shoulder pain seemed to be different from the previous “intermittent” right should problem which had responded well to treatments. It was also her opinion that the Claimant’s depression was related to the fall of June 30, 2005 and the aftermath of frustration with the compensation issues. In her opinion, the injuries and pain, coupled with a feeling of betrayal by the treatment by the employer, was a primary cause of the Claimant’s depression. Finally, when asked whether the Claimant was at a medical end result for the injuries suffered in the fall, she stated that she “hoped not”. She went on to explain that it was her belief that the ongoing physical therapy would help the Claimant continue to improve. She testified that the Claimant was “definitely not” at an end result concerning the depression. It was her opinion that the Claimant is not able to work at the present time due to her depression and her medication.
38. Dr. Brian Erickson is a licensed psychiatrist, in the State of Vermont. He is a 1987 graduate of the University of Minnesota Medical School and did his psychiatric residence at the University of Vermont in 1991. He did ten years of general psychiatry in Minnesota before returning to Vermont in 2001. He is the Medical Director for Electro-convulsive Therapy at Fletcher Allen Health Care and also works at the Center for Pain Medicine which is a chronic pain clinic. He was board certified in 1993. His special areas of practice are ECT and chronic pain.
39. The Claimant was referred to Dr. Erickson on November 22, 2005 by Drs. Fenton and Tarver for back problems and pain associated with a 2002 laminectomy/discectomy, the 2002 motor vehicle accident and the 2005 fall. Dr. Tarver made the referral associated with a pain assessment and Dr. Fenton made the referral associated with PTSD surrounding the motor vehicle accident. Dr. Erickson is one of the treating psychiatrists of the Claimant and he has continued to treat her since the referral. During the time that the Claimant was treating with him he noted an increasing depression which eventually resulted in her hospitalization. It was the opinion of Dr. Erickson that the Claimant’s depression was causally related to her fall at the Defendant’s place of employment. More than the pain, the Claimant’s feeling that she was betrayed by her employer re-ignited feelings which had been suppressed concerning low self-esteem and fear. He diagnosed her as having depression, “pain disorder with psychological factors and medical condition”, and post-traumatic stress disorder. In his opinion, the post-traumatic stress disorder was a product of the motor vehicle accident and not a product of, or aggravated by, the fall at work. He testified that her PTSD symptoms are less now than they were, and that he is not now treating her for PTSD. The pain disorder diagnosis was the result of pain from the laminectomy/discectomy, the motor vehicle accident and the fall, but he could not say how much each of these contributed to her overall pain condition.
10
40. Dr. William Mercia is a Vermont medical doctor who received his undergraduate degree and medical degree from the University of Vermont. He became a medical doctor in 1977. He works in the area of occupational health at Occupational Health and Rehabilitation, Inc.
41. The Defendant asked Dr. Mercia to give a second opinion concerning the Claimant’s condition. He examined the Claimant on March 6, 2006 and reviewed many of her medical records. While he gave the Claimant a physical examination, he did not examine her right shoulder, which was an oversight on his part. His report dated March 20, 2006 concluded that the Claimant had a right low back injury and right knee injury and the injury was ongoing. See Medical Records Exhibit, Tab 12. According to the report,
The right lower back and right extremity symptoms do appear to be causally related to her work injury of 6/30/05. This appears to represent a mechanical low back problem that has been resistant to skilled PT and, with exacerbation of chronic low back pain and sciatica, appears to require substantial doses of narcotic analgesics and muscle relaxants. Her recovery has been negatively impacted by overlying depression and anxiety. I would characterize her present rehabilitation potential as fair, because of the psychosocial factors. If she is to be successful in returning to work in a meaningful way, I feel a multidisciplinary, function-oriented program will be necessary.
The report went on to recommend further tests and the use of another program. If she were to decline, he then would suggest an Independent Medical Exam to assess the claim “in a more comprehensive manner” and to comment on whether she has reached a medical end result. A second evaluation was scheduled for the Claimant to visit Dr. Mercia, but before the evaluation could occur, Dr. Mercia disclosed to Defendant’s counsel that it was his opinion that the Claimant was not at a medical end result. Thereafter, the second examination was cancelled by Defendant’s counsel. In his first report he determined that the Claimant’s right shoulder problem was related to the fall, but after consulting with counsel for the Defendant, he changed his opinion. It is his current opinion that the Claimant has lost function and physical fitness and coping skills as a direct result of the fall at work. His opinion is that she had chronic pain syndrome before the fall at work and that she had this condition after her fall. He agrees that the fall exacerbated her chronic pain syndrome. He now believes that the Claimant is now at a medical end result.
11
42. Dr. John R. Johansson is a Doctor of Osteopathy. He completed his training in Osteopathy in 1982. He is board certified in family medicine and he works at Champlain Sports Medicine. He regularly treats musculatoskeletal injuries. He also does independent medical examination and impairment ratings. He did not physically examine the Claimant. Rather, he did a record review of her medical records. Dr. Johansson issued a report on September 18, 2006 (Medical records, Tab 18). In this report it was his conclusion that the Claimant received a bruise from her fall and that the “majority of her physical findings subsequent to that fall were related to her chronic lower back condition, which was actively treated before and subsequent to this accident.” In making this determination he relied heavily upon Dr. Fenton’s report of August 30, 2005 was made following a complete physical examination of the Claimant. Dr. Johansson also opined that the Claimant’s right shoulder problem was unrelated to her fall. On October 10, 2006 he added an addendum to his report without additional findings to the effect that the “contusion she sustained associated with the work injury has reached a medical end result.” See Tab 18, Medical Records. Dr. Johansson testified that most sprains or strains heal within 4-6 weeks and that most bones heal within three months. He admitted that some of the records upon which he relied in his opinions were not clearly identified in his report. He also admitted that a physical examination is preferable to a record review in making a determination of medical end result.
43. Dr. Johansson’s report states in part,
I have reviewed thoroughly all the medical records that were provided and mentioned in my initial paragraph. It is my opinion within a reasonable degree of medical certainty, that the patient had no findings, either objective on clinical examination throughout the records, or more specifically, MRI findings, that indicate objective worsening of her condition as a result of the fall she sustained at the [Defendant’s place of work].
This statement ignores the significant bruising of the right hip, right knee and right shoulder which was observed by Molly Backup and the decreased range of motion in the right shoulder observed by Ms. Backup. Dr. Johansson’s opinion is contradicted by the opinion of Dr. Mercia, who like Dr. Fenton did a physical exam and determined that: (1) the fall on June 30, 2005 created an ongoing injury as of March, 2006; (2) the fall caused a lumbosacral sprain which affected the right side and right knee; (3) and that the fall on June 30, 2005 exacerbated her existing chronic pain syndrome. Finally, Dr. Johansson’s opinions are greatly swayed by the examination of Dr. Fenton. Dr. Fenton did an IME of the Claimant on August 30, 2005. Dr. Fenton’s report was done at the request of the attorney representing the Claimant in her motor vehicle accident claim. Dr. Fenton’s report did not address the Claimant’s complaint of right leg and right back pain. It did not specifically address the right shoulder pain. Because Dr. Fenton found no objective evidence of injury which would explain the right sided pain, and because his report did not deal with her complaints, Dr. Johansson concluded that the right-sided problem was simply not there.
12
44. Rebecca Winokur, MD, was of the opinion on November 8, 2006, that the Claimant had: (1) a right rotator cuff sprain with chronic spasms of the rhomboids and trapezium; (2) multiple psychiatric co-morbidities including [the Claimant’s] challenges in coping with the injuries and chronic pain she has had. See Joint Medical Exhibit, Tab 9. This is the same diagnosis of the right shoulder problem that was made by Molly Backup, PAC.
45. Dr. Richard Bernstein graduated with a BS from Dartmouth College, a Medical Degree from Boston University and a residency in psychiatry from the University of Vermont. For many years Dr. Bernstein has been on the faculty at the University of Vermont Medical School. He has practiced psychiatry for over thirty years and is a staff psychiatrist at the Fletcher Allen Health Care Adult-In-Patient Unit. He was the treating psychiatrist for the Claimant during her various admissions as an in-patient at FAHC. He is Board Certified in general adult psychiatry. He diagnosed the Claimant with “major depressive disorder’ and post-traumatic stress disorder. In his opinion the depression is causally related to the fall at work. In his opinion the Claimant’s prior sexual abuse did not contribute to her depression except that it made up part of her history. He rationalized that she had been a productive person and had “moved on” in her life from the sexual abuse. It was also his opinion that pain, and chronic pain, can be a stressor which is associated with depression. When asked whether the past complications of the Claimant’s life (her prior sexual abuse and its recent disclosure, her chronic pain from 2002, the motor vehicle accident of 2002, the loss of sexual function from the motor vehicle accident) were the real cause of the Claimant’s depression and hospitalization, Dr. Bernstein was quite clear. She had been able to cope with many of these events and she had remained functional. It was the fall at work, her ultimate pain and unemployment, and the feeling of disloyalty from her employer, which were the true causes of her depression, on his opinion.
46. The Claimant’s attorney expended 240.8 hours in representation of the Claimant in this matter and costs in the amount of $4,623.31. The Claimant executed a written fee agreement with her counsel. The bill for legal services, costs and fee agreement were filed on or about May 30, 2007. The amount of time expended by the Claimant’s attorney at first blush seems unusually large, however the nature of this claim, the complexity of the Claimant’s medical history and the legal issues involved persuade me that the fees are reasonable. There was an objection that the fees were not billed in increments of one-tenth of an hour, however the one-tenth of an hour increment was used. There were simply no charges of less than two tenths of an hour.
13
CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the Claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The Claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. 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 from the facts proven must be the more probable hypothesis. Burton v. Holden and Martin Lumber Co. 112 Vt. 17 (1941).
3. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical opinion is necessary. Lapan v. Berno’s Inc., 137. Vt. 393 (1979).
4. To establish a physical-mental claim, the claimant must prove a causal nexus between a compensable physical injury and psychological impairment. See Blais v. Church of the Latter Day Saints, Op. No. 30-00 WC (1999).
5. When evaluating between conflicting expert opinions, this Department has weighed several factors: 1) whether a medical expert has had a treating physician relationship with the claimant; 2) the professional education and experience of the expert; 3) the nature of the evaluation performed, including whether the expert had all the medical records in making the assessment; and 4) the objective bases underlying the opinion. See Yee v. IBM, Op. No. 38-00 WC (2000); Miller v. Cornwall Orchards, Op No. 20-97 WC (1997).
6. In this case, Physician’s Assistant Molly Backup, Dr. Erickson, and Dr. Bernstein all testified that the Claimant’s depression was related to the injury and its aftermath. They are all in a treating physician relationship with the Claimant. Drs. Johansson and Mercia were not in a treating relationship with the Claimant.
7. Clearly, Ms. Backup had the longest association with the Claimant before the accident and afterward. She had the ability to evaluate the functional capability of the Claimant through all of her complex injuries and medical problems. Her strong and unequivocal opinion is entitled to great weight. (See Drew v. Northeast Kingdom Human Services, Op. No. 47-06 WC (2007) in which the testimony of a nurse practitioner, supported by two other physicians, was more credible than a countervailing expert opinion by a medical doctor.)
8. An employer takes each employee as is, and is responsible under Workers’ Compensation for an injury which disables one person and not another. Paton v. State of Vermont Dep’t of Corrections, Op. No. 4-04 WC (2004) (citing Morrill v. Bianchi, 107 Vt. 80 (1935).
14
9. Larson’s Workers’ Compensation Law, Sec. 10, Synopsis to Chapter 10 provides in the section captioned “Range of Compensable Consequences” as follows:
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to claimant’s own intentional conduct. More specifically, the progressive worsening or complication of a work-connected injury remains compensable, so long as the worsening is not shown to have been produced by an intervening, nonindustrial cause.
Slayton v. Consolidated Memorials, Op. No. 49-06 (2007)
10. The Claimant has produced credible expert testimony that her disabling depression was caused by the work related injury, the resulting pain and inability for her to work, and her upset caused by the employer’s inability to process her workers’ compensation claim in a timely and professional manner. There was no expert testimony introduced by the Defendant that the Claimant’s depression and five hospitalizations were not related to her fall at work. Likewise there was no significant question raised as to the sincerity of the Claimant’s descent into a very serious depression following the injury. While the Defendant highlights several inconsistent medical records and the Claimant’s failure to disclose her past sexual abuse, these problems with Claimant’s case were either explained or were understandable given the nature of Claimant’s history. (Contrast Carpenter v. Bell Atlantic, Op. No. 03-04 WC (2004) where claimant’s symptoms were found to be erratic and magnified.) I conclude that the psychological injury of depression is related to the fall at work. The Claimant also has a diagnosis of post traumatic stress disorder but this psychological injury is not related to the fall at work and has not interfered with her capacity for work.
11. Concerning the right shoulder injury, again the testimony of Molly Backup, PAC, was particularly persuasive. She had treated the Claimant’s right shoulder for a long period of time. The intermittent problem of calcific tendonitis was distinct and separate from the post-fall diagnosis of rotator cuff sprain with spasms. Her opinion as to diagnosis was buttressed by Dr. Winokur. The right shoulder injury is causally related to the injury at work.
12. On October 17, 2006, the Department partially accepted a Form 27 (Employer’s Notice of Intent to Discontinue Payments) in response to the report and opinion by Dr. Johansson on October 10, 2006. Essentially Dr. Johansson determined that the Claimant had suffered only simple bruising in her fall and that the bruising had long since healed. Dr. Mercia also testified that the Claimant had reached a medical end result for her injuries.
13. “Medical end result means the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected regardless of treatment.” WC Rule 2.1200.
15
14. While the Claimant has the burden of proof in the first instance, once the claim is accepted and benefits are paid, the employer must show that the Claimant has either returned to work or that the discontinuance of the benefits is warranted. 21 VSA Sec. 643a. The burden of proof to terminate a claim which has been accepted is upon the employer. Merrill v. University of Vermont, 133 Vt. 101 (1974). I find that the Defendant has not met its burden of proof concerning medical end result for the right back and right leg problem. It was on or around September, 2006 when Dr. Mercia’s appointment was cancelled when it became known that he felt the Claimant was not at end result. Dr. Johansson’s opinion about end result never really addressed the Claimant’s right sided pain as a new development, or the fact that her injury to the right side aggravated her existing, left-sided, low back pain. Ms Backup explained that she felt the physical therapy was helping the Claimant.
15. The Claimant provided evidence that the right shoulder injury is improving with physical therapy (according to Molly Backup).The Defendant did not address right shoulder maximum medical improvement since Dr. Johansson and Dr. Mercia simply determined that the right shoulder problems were unrelated to the fall. Neither of them examined the right shoulder. I conclude that the Claimant has not reached a medical end result from the overall injuries which were proven since she is still functionally unable to work as a result of her depression and that this psychological injury has not reached maximum improvement.
16. The Claimant has prevailed in her claim for compensability of the psychological condition, causation related to the right shoulder and the issue of end result. She is entitled to the requested attorney fees and costs pursuant to 21 VSA Sec. 687 and WC Rule 10.000.
16
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to adjust this claim including the payment of:
1. Medical benefits associated with the right arm;
2. Medical benefits associated with the psychiatric hospitalizations;
3. Past temporary total benefits from the date temporary total benefits ceased until a medical end result is reached or until the Claimant returns to work, whichever is earlier;
4. Interest on the unpaid temporary total benefits from the date such benefits should have been paid consistent with this order.
5. Attorney’s fees in an amount of $21,672.00 and costs of $4,623.31.
Dated at Montpelier, Vermont this 2nd day of August 2007.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. Sec. 670, 672.

V. O. v. Windsor Hospital (March 27, 2008)

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

V. O. v. Windsor Hospital (March 27, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. O. Opinion No. 12-08WC
By: David J. Blythe, Esq.
Hearing Officer
v.
For: Patricia Moulton Powden
Commissioner
Windsor Hospital
State File No. T-00023
FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER
I. INTRODUCTION
Claimant presents three distinct issues in her claim:
(1) Are Claimant’s lower back pain and right leg problems causally related to her workplace injury of June 25, 2002 and thereby compensable in this claim?
(2) Was Claimant at medical end result between August 20, 2005 and June 4, 2006?
(3) Is Claimant’s massage therapy reasonable and necessary treatment for her compensable injury/ies?
II. HEARING
This matter came on for final evidentiary hearing on May 2, 2007 before David J. Blythe, Hearing Officer and designee of the Commissioner of Labor for this case. Claimant was present and was represented by Attorney Christopher J. McVeigh. Defendant Windsor Hospital and its workers’ compensation insurer, Royal & Sunalliance Insurance Company (“Carrier”) were represented by Attorney Keith J. Kasper. Claimant presented testimony and called the following witnesses (who all appeared and testified telephonically): Mark Bucksbaum, MD, Stephen W. Gordon, Karen Curran and Mark Hamilton, MD. Defendant and Carrier did not present witness testimony at the hearing.
2
III. EVIDENTIARY EXHIBITS; JUDICIAL NOTICE
(a) The following Exhibits were admitted by stipulation of the parties:
Joint Exhibit 1: Medical Records (provided electronically on CD);
Joint Exhibit 2: Supplemental Medical Records (paper copies);
Joint Exhibit 3: Letter from Mark Hamilton, MD, dated April 19, 2007;
Claimant’s Exhibit 1: Deposition of Dr. Joseph Phillips, dated March 12, 2007;
Defense Exhibit A: Letter from Attorney McVeigh relating to Claimant’s subsequent earnings; and
Defense Exhibit B: Deposition of Victor Gennaro, DO, dated April 23, 2007.
(b) Judicial notice may be taken of all forms filed by any party with the Commissioner of Labor (Commissioner) in connection with this case.
IV. FINDINGS OF FACT Stipulated Facts
The parties stipulated to the following facts, which are here FOUND and are here incorporated verbatim as presented as paragraphs 1 through 4 in a written Stipulation dated May 9, 2007 and May 11, 2007 by the parties:
1. On June 21, 2002, Claimant suffered a personal injury by accident arising out of and in the course of her employment with Defendant within the meaning of the Vermont Workers Compensation Act (hereinafter, “Act”).
2. On June 25, 2002, and at all relevant times thereafter, Claimant has had one dependent within the meaning of the Act.
3. On August 5, 2005, Defendant filed a Form 27, with an effective date of August 20, 2005. This was approved by the Commissioner terminating Claimant’s total temporary disability benefits on the basis of Dr. Wing’s report finding Claimant had reached medical end result, and Defendant began advancing permanency benefits based upon this determination by Dr. Wing.
4. After Dr. Gennaro found the surgery Dr. Phillips proposed to be reasonable medical treatment, Defendant reinstated temporary disability benefits as of June 4, 2006. On July 13, 2006, Claimant underwent cervical surgery by Dr. Phillips. While initially denying the compensability of Claimant’s ongoing massage therapy, Defendant did agree to pay for twice monthly massage therapy sessions.
3
Additional Findings of Fact
General History; Causal Relationship Between Workplace Injury and Lower Back and Leg Pain
5. In August 1999 (almost three years before the workplace injury), Claimant consulted with Dr. Nancy Bagley, to discuss her chronic cervical neck problems. Dr. Bagley determined that Claimant was suffering from C-7 radiculopathy on the right side. Later, Claimant underwent a C-7 block which provided complete, but only temporary, pain relief. A follow up MRI revealed that Claimant suffered from cervical stenosis (degenerative disk disease) at multiple levels. Joint Medical Exhibit – Report of Dr. Bagley dated May 1, 2001.
6. In January 2000, Claimant consulted with Dr. Kimberly Harbaugh due to neck and right arm pain. Claimant informed Dr. Harbaugh that she had been suffering from neck and arm pain for several years prior to this consultation. In 2000, Claimant underwent physical therapy and took medication in an attempt to reduce the pain. Joint Medical Exhibit – Dr. Harbaugh’s notes dated January 27, 2000.
7. In the medical history portion of Dr. Harbaugh’s neurosurgical consultation report, Claimant reported having a “history of intermittent right sciatica.” At that time, Dr. Harbaugh found that Claimant had “no significant toe response with plantar simulation on either foot.” Id.
8. In her neurosurgical consultation report, Dr. Harbaugh concluded that Claimant suffered from cervical stenosis and had posterior disc bulges at C4/5, C5/6 and C6/7. Claimant also had a small central disc bulge at C4/5. Dr. Harbaugh further concluded that Claimant’s pain symptoms were consistent with the “rupture of a cervical disc with resultant C7 radiculitis.” Dr. Harbaugh, however, did not see significant nerve root compromise at C7 and, thus, she opined that Claimant may be suffering from a “fibrous band in the region of the enlarged C7 costal element.” If Claimant had this fibrous band, Dr. Harbaugh concluded that it is likely that Claimant would suffer from lower trunk dysfunction. Id.
9. In a follow up appointment with Dr. Bagley in May 2001, Claimant continued to complain of chronic cervical neck pain. Dr. Bagley reiterated her conclusion that Claimant suffered from degenerative disk disease. Joint Medical Exhibit – Report of Dr. Bagley, dated May 1, 2001.
4
10. At the time of her injury, Claimant was working as a nurse at Windsor Hospital. When the injury occurred, Claimant was assisting a stroke patient who was on the toilet. When Claimant opened the door to the patient’s bathroom, the patient fell forward off the toilet towards Claimant. Claimant testified that she attempted to break the patient’s fall and when she did so, the patient landed on her chest and knocked her back into the wall. Claimant’s Testimony.
11. As a result of the incident described above, Claimant was in a great deal of pain and was taken to the emergency room. Id.
12. Claimant recalled that she took the brunt of the blow near her left shoulder. Claimant testified that her whole upper body hurt, but that the acute pain was in her neck, left shoulder and left arm. Id.
13. Windsor Hospital emergency room records indicate that Claimant was seen for left shoulder and neck pain. The emergency room assessment was that Claimant suffered a left trapezius strain and that she was to treat it by applying ice and heat. Joint Medical Exhibit – Dr. Mark Bucksbaum, Permanency Evaluation at 2 (October 6, 2005).
14. Claimant testified that approximately one month later, sometime in July of 2002, her right foot began to go numb. Claimant testified that she began stumbling and having difficulty walking due to the numbness in her foot. Claimant’s Testimony.
15. In July 2002, Claimant began seeing a chiropractic physician, Dr. Donald Anderson, for treatment of her neck and shoulder. Claimant treated with Dr. Anderson from July 2002 through May 2005. Joint Medical Exhibit – Dr. Donald Anderson’s notes generally.
16. In an initial interview with Dr. Anderson on July 10, 2002, Claimant described her pain as being located in her neck, shoulders and arm. At that time, Claimant did not describe any right leg pain. Id. at July 10, 2002 notes.
17. Claimant testified that sometime in the Winter of 2002-2003, she told Dr. Anderson of her right leg pain because he noticed she was limping. Claimant’s Testimony.
18. Dr. Anderson noted on February 26, 2003 that Claimant had “no leg complaints.” Joint Medical Exhibit – Dr. Anderson’s notes at February 26, 2003.
19. Dr. Anderson’s notes make no mention of Claimant suffering leg pain until August 30, 2004. Id. generally and at August 30, 2004.
5
20. Karen Curran became Claimant’s medical case manager in February of 2003 and worked with her until July of 2004. Karen Curran’s Testimony. As Claimant’s case manager, Ms. Curran was responsible for helping Claimant coordinate her medical care and obtain appropriate treatment. Id.
21. Ms. Curran worked closely with Claimant on her case and testified to having significant contact with her – sometimes talking to her more than once a day. The first time Claimant mentioned to Ms. Curran that she (Claimant) was having difficulty with her right foot, such that it was causing her to trip and fall, was July 2003. Id. The first reference in Ms. Curran’s medical notes to Claimant tripping due to her right foot was in August 2003. Id.
22. In May 2003, Claimant met with Dr. Hulda Magnadottir to discuss her continuing neck pain. At that time, Dr. Magnadottir noted that Claimant did not have any difficulties with her gait. Joint Medical Exhibit – Neurosurgical Consultation with Dr. Magnadottir dated May 19, 2003; Dr. Phillips’ Deposition at 34 (Claimant not complaining of leg pain in May 2003).
23. In May 2003, Claimant also met with Dr. Dennis Coombs to discuss her neck pain. Dr. Coombs examined Claimant and, in pertinent part, found that Claimant had a normal gait. Joint Medical Exhibit – Dr. Coombs’ notes dated May 30, 2003.
24. On June 3, 2003, Claimant met with and was examined by Dr. William Abdu to discuss the possibility of having disk fusion surgery. At this initial meeting, Claimant told Dr. Abdu that she suffered from “neck pain with some pain in her arms radiating down to the elbow, with occasional distal pain.” Joint Medical Exhibit – Office Notes of Dr. Abdu dated June 3, 2003. Claimant did not relate having any lower extremity pain at that time. During Dr. Abdu’s physical examination of Claimant, he found that her gait was normal and that her toe walking and heel walking were normal. Id.
25. On August 25, 2003, Dr. Abdu performed a surgical procedure to fuse Claimant’s cervical spine at C4-5. The purpose of this procedure was to alleviate pain in both of Claimant’s arms and her neck. Joint Medical Exhibit – Dartmouth Hitchcock Medical Center notes generally and Dr. Abdu’s notes of August 1, 2003; Claimant’s Testimony.
26. In his notes from a post-surgical examination of Claimant on November 11, 2003, Dr. Abdu noted that Claimant’s gait was normal. Joint Medical Exhibit – Dartmouth Hitchcock Medical Center – Dr. Abdu’s notes dated November 11, 2003.
27. Mark Hamilton, MD became Claimant’s treating physician in October 2003. Although Claimant saw Dr. Hamilton on a regular basis, she apparently did not tell him about her right foot problems until September 9, 2004. Joint Medical Exhibit – Dr. Hamilton’s notes dated September 9, 2004.
6
28. On July 26, 2005, Claimant met with Dr. Daniel Wing for an independent medical evaluation (hereinafter “Wing IME”). During the Wing IME, Claimant told Dr. Wing that her biggest problem was right buttock and right leg pain followed by neck and shoulder pain. Joint Medical Exhibit – report of Dr. Wing dated July 26, 2005. Relying upon his review of her medical records and his examination of Claimant, Dr. Wing concluded that Claimant’s right buttock and right leg pain were unrelated to her workplace injury on June 25, 2002. Dr. Wing concluded that Claimant’s lower extremity pain was likely caused by her extensive lumbar degenerative disk disease and spinal stenosis. Dr. Wing was influenced in his opinion that the right leg pain was unrelated to the workplace accident by the fact that Claimant did not report any right leg pain for a significant period of time after her workplace accident. Id.
29. On October 6, 2005. Claimant underwent a permanency evaluation with Dr. Mark Bucksbaum. In his report, Dr. Bucksbaum cited extensively to Claimant’s medical history and the supporting medical records. In concluding that Claimant’s lower back and right leg pain are causally related to the June 25, 2002 workplace accident, Dr. Bucksbaum acknowledged that he relied primarily on Claimant’s statements and his physical evaluation of Claimant, which examination took place more than three years after the work-related injury and after her initial surgery. Joint Medical Exhibit – Permanency Evaluation by Dr. Bucksbaum dated October 6, 2005; Dr. Bucksbaum’s Testimony.
30. In coming to the conclusion that Claimant’s right leg pain and sciatica were causally related to her workplace injury on June 25, 2002, Dr. Bucksbaum testified that he relied in part on the fact that Claimant said she began suffering right foot numbness followed by leg pain close in time to her workplace accident. In particular, Dr. Bucksbaum testified that he relied on Claimant’s statements because he “had no reason to dispute them.” Dr. Bucksbaum’s Testimony.
7
31. In March 2006 on behalf of Defendants, Victor Gennaro, D.O., conducted a physical examination of Claimant (hereinafter, “Gennaro IME”). Joint Medical Exhibit – Dr. Gennaro’s IME Report dated March 14, 2006. In addition to the physical exam, Dr. Gennaro reviewed Claimant’s medical records and some (but apparently not all) of the MRIs taken of Claimant at various times. Joint Medical Exhibit – Dr. Gennaro’s IME Report dated March 14, 2006. Dr. Gennaro concluded there was no causal relationship between Claimant’s workplace accident in June 2002 and her right foot and leg problems. Joint Medical Exhibit – Deposition Testimony of Dr. Gennaro dated April 23, 2007, at 12. Dr. Gennaro did not believe the two were related as he did not “see any evidence [in the record] that [Claimant’s right leg problems] were occurring at the time of her injury or even in close proximity.” Id. Dr. Gennaro testified that in his opinion, if Claimant’s workplace injury had been sufficient to cause “either myelopathy or issues with her cervical spine” that resulted in lower extremity problems, he would expect to see the onset of these problems immediately following the accident. Id. at 13. Dr. Gennaro concluded that there was no evidence that Claimant was significantly myelopathic. Significant myelopathy would cause compression of her spinal cord at the level of her neck and could result in lower extremity problems. Id.
32. Moreover, Dr. Gennaro concluded that if Claimant’s right leg problems were caused by significant spinal cord compression as a result of the workplace accident, he would expect to see on the MRI changes within the substance of her spinal cord in her neck. Dr. Gennaro found no such changes in his review of Claimant’s MRIs. Id. at 12. Dr. Gennaro concluded that Claimant’s current right leg problems are more likely a logical progression of the degenerative disk disease which existed prior to her workplace accident. Id. at 13; see also Findings 5-9 supra.
33. In September 2005, Dr. Joseph Phillips recommended an additional surgical procedure to alleviate pain in Claimant’s arms and neck. Joint Medical Exhibit – Dr. Phillips’ Deposition dated March 12, 2007, at 19-20.
34. Claimant underwent the second surgical procedure on July 13, 2006. Joint Medical Exhibit – Dr. Phillips’ Deposition, at 21.
35. As a result of the July 13, 2006 surgery, Claimant obtained significant relief from the pain and limited mobility in her arms and neck. Joint Medical Exhibit – Dr. Phillips’ Deposition, at 25; Claimant’s Testimony.
8
Massage Therapy
36. Claimant has been blind in her right eye since the age of three years. Claimant’s Testimony.
37. Claimant has been receiving massage therapy from Steve Gordon and Heidi Smertz since June 2004. Joint Medical Exhibit – notes of Steve Gordon; Joint Medical Exhibit – notes of Heidi Smertz.
38. Currently, Claimant receives massage therapy on a bi-weekly basis. She usually alternates between seeing Steve Gordon and Heidi Smertz. Claimant’s Testimony.
39. Claimant began massage therapy treatment in June 2004 based on the advice of her medical case manager, Karen Curran. Karen Curran’s Testimony.
40. Ms. Curran testified that she recommended massage therapy for Claimant to help reduce her muscle spasms. Id.
41. Ms. Curran further testified that she believes physical therapy and massage therapy work as complementary treatments for Claimant. However, Ms. Curran acknowledged that she has not been involved in Claimant’s case for nearly three years and does not know Claimant’s current medical status. Id.
42. Claimant’s treating physician, Dr. Mark Hamilton, recommended that Claimant receive massage therapy in part because Claimant reported that the massage therapy helped reduce her muscle spasms and overall pain. Although Dr. Hamilton specifically testified that the massage therapy is useful treatment for Claimant’s present condition, he did not offer a specific expert opinion that it is a necessary complement to the physical therapy Claimant receives or is independently medically necessary. Dr. Hamilton’s Testimony.
43. Steve Gordon is a licensed massage therapist in the State of New Hampshire. Steven Gordon’s Testimony.
44. Mr. Gordon is not licensed in Vermont, as Vermont does not license massage therapists. Id.
45. Claimant testified that she receives considerable relief from discomfort and increased range of motion in her neck as a result of regular massage therapy. Claimant’s Testimony.
46. Claimant also testified that because she is blind in one eye, maximizing the range of motion in her neck is especially important for both professional and personal activities. Id.
9
47. In the Gennaro IME report, Dr. Gennaro opined that massage therapy would not have any medical benefit for Claimant’s condition. Dr. Gennaro testified that under certain circumstances he uses massage therapy in his clinical practice, but that Claimant’s condition is not one of those circumstances. Dr. Gennaro testified that in his opinion massage therapy is not medically necessary as it is unlikely to change Claimant’s clinical condition over time. Joint Medical Exhibit – Deposition Testimony of Dr. Gennaro at 10.
Medical Endpoint – August 20, 2005 to June 4, 2006
48. In a follow up appointment with Dr. Abdu on March 1, 2004, Claimant reported that she was doing reasonably well, but was beginning to have some pain again in her right shoulder and right paraspinal region. Claimant also had some numbness in her upper right arm. Joint Medical Exhibit – Dr. Abdu’s notes dated March 1, 2004.
49. Claimant testified credibly that beginning in April 2004 and continuing into 2005, the pain and numbness in her neck, shoulders, arms and right leg began to increase substantially. Claimant’s Testimony.
50. Claimant met with Dr. Phillips in November 2004 to discuss medical options to relieve her neck and arm pain. Dr. Phillips advised that one option was to have an additional disk surgery. He also advised that more conservative therapies (specifically physical therapy and massage therapy) were reasonable under the circumstances. Joint Medical Exhibit – Dr. Phillips’ Deposition Testimony at 12 and at 16-17.
51. Dr. Phillips said that this proposed surgery was not imperative and, in fact, he could not be sure it would effectively relieve Claimant’s symptoms unless she was first willing to undergo a diagnostic nerve block. Id at 12-13.
52. Claimant told Dr. Phillips that she was “very, very uninterested in surgery” and did not undergo the nerve block. Id. at 14, 29.
53. On July 26, 2005, at Defendant’s request Claimant underwent an independent medical examination with Dr. Daniel Wing. Dr. Wing reviewed Claimant’s medical records and conducted a physical exam of her. Following his examination, Dr. Wing concluded that Claimant was at medical end result. Joint Medical Exhibit – Independent Medical Examination of Dr. Daniel Wing dated July 26, 2005.
10
54. Additionally, Dr. Wing concluded that as of that time, the therapies she was receiving (massage therapy, acupuncture, and chiropractic therapy) were for palliative and maintenance purposes only and would not lead to a significant improvement in her medical condition. Id. at 61. Additionally, Dr. Wing concluded that because in his opinion Claimant’s lower back and right leg problems were not causally related to her June 25, 2002 workplace injury, these pain issues did not factor into his finding that Claimant was at medical end result. Id.
55. Based upon Dr. Wing’s IME report, the Defendant filed a Form 27 alleging medical end result as of August 20, 2005.
56. Claimant met with Dr. Phillips again in September 2005. Dr. Phillips testified that during this appointment Claimant described having pain in both her right and left arm. Dr. Phillips decided to order an MRI to determine the cause of this pain. Joint Medical Exhibit – Deposition of Dr. Phillips at 18.
57. In March 2006, Dr. Gennaro concluded that Claimant was at medical end result. In defining medical end result, Dr. Gennaro explained that in his opinion, medical end result means that the patient’s condition has stabilized and that it is unlikely to change in the foreseeable future regardless of any additional medical treatment. Joint Medical Exhibit – Deposition of Dr. Gennaro at pg. 7. Dr. Gennaro said that a finding of medical end result does not mean that a patient’s condition will not change or that other medical care can never be appropriate. It simply means that for the foreseeable future, the patient’s condition has plateaued. Id.
58. Under this definition, Dr. Gennaro concluded that Claimant had reached medical end result. Id.
59. Although Dr. Gennaro was aware of Dr. Phillips’ recommendation that further surgery was an option, this fact did not change his opinion regarding medical end result because the surgery was not imperative and there was no guaranty that it would be effective. Moreover, at that point in time, all indications were that Claimant had no interest in further surgery. Therefore, Dr. Gennaro concluded that Claimant was at medical end result in March 2006 and the fact that she subsequently underwent surgery in July 2006 does not change his opinion. Id. at pg. 7-9.
60. Claimant underwent a permanency evaluation with Dr. Bucksbaum on October 6, 2005. Dr. Bucksbaum issued his report from this evaluation in March 2006, in which he concluded that Claimant was at medical end result Joint Medical Exhibit – Permanency Evaluation by Dr. Bucksbaum; Dr. Bucksbaum’s testimony.
61. Significantly, Dr. Bucksbaum further testified that at the time he issued his March 2006 report he did not have all of Dr. Phillips records from 2006, and that if he had had those
11
records he would not have found Claimant to be at medical end result. Dr. Bucksbaum’s Testimony. Dr. Bucksbaum testified that these more recent medical records clearly demonstrated that Dr. Phillips was actively treating Claimant and considering further surgery. Id.
62. In January 2006, Claimant met with Dr. Phillips to review an MRI. Dr. Phillips again recommended surgery. This surgery called for a two-level decompression spanning from the C5/6 and C6/7 area. Joint Medical Exhibit – Deposition of Dr. Phillips at 20-21.
63. Dr. Phillips performed the second disk surgery on Claimant on July 13, 2006, after which Claimant’s condition significantly improved. Id. at 21.
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); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166 (1962); Nutbrown v. Roadway Express, Opinion No. 2-93, at 4 (June 7, 1993).
2. In this case, the issue of causation is a complicated one. Under these circumstances, Vermont law requires the use of expert medical evidence. It is well established that the trier of fact may not speculate as to an obscure injury which is beyond the ken of laymen. Laird v. State Highway, Dep’t., 110 Vt. 981 (1938). Where the Claimant’s injury is obscure, and the layman could have no well-grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for an award for both compensability issues as well as the extent of the award sought. Lapan v. Berno’s Inc., 137 Vt. 393 (1979); Jacquish v. Bechtel Corp., Opinion No. 30-92WC (Dec. 29, 1992).
3. Expert medical testimony is required to make the causal connection between employment, an injury and the resulting benefits sought. Martin v. Woodridge, Opinion No. 11-97WC (June 13, 1997); Cushing v. Just Good Builders, Opinion No. 68-96 WC (Nov. 25, 1996). A party who bears the burden of proof cannot meet that burden without providing such evidence, and possibility, suspicion or surmise are insufficient to carry that burden. Id.
4. 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); see also Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
5. In cases where the Department must choose among conflicting medical opinions with regard to Claimant’s condition, the following factors are considered: 1) the nature of treatment and length of time there has been a patient-provider relationship; 2) whether
12
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. See Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
Causal Connection – Lower Back and Leg Pain
6. In this case, Claimant has not met her burden of proving that there is a causal link between her current right leg pain and her June 2002 workplace accident. Claimant’s statements regarding her leg pain and its connection to her workplace accident are not supported by the medical documents in this case. Moreover, Claimant’s medical expert, Dr. Mark Bucksbaum, relied largely on Claimant’s statements regarding her accident and subsequent right leg pain in conjunction with his evaluation in October 2005 in concluding that there was a causal connection between the two. In so doing, Dr. Bucksbaum did not fully consider the medical documents in this case that contradicted Claimant’s statements and provided other plausible explanations for Claimant’s current right leg pain. Therefore, Dr. Bucksbaum’s expert opinion in this regard must be given limited weight because he failed to consider all of the evidence in the case. Id.
7. Because Claimant has failed to meet her burden of demonstrating a causal connection between her June 2002 workplace injury and her lower back and leg pain, the Commissioner does not reach or address Defendants’ argument that this aspect of the claim is contractually barred.
13
Compensability of Massage Therapy
8. 21 VSA §640(a) provides, in pertinent part, that in connection with a compensable claim under the Act an employer is required to provide “reasonable surgical, medical, and nursing services to an injured employee. 21 VSA §640(a). Reasonable medical treatment is what competent medical evidence proves will relieve symptoms from a work-related injury or restore a claimant’s functioning capacity. Morrisseau v. Vermont Agency of Transportation, Opinion No. 19-04WC (May 27, 2004). Most of the expert witnesses, including those offered by Defendants, agreed that massage therapy was helpful for Claimant in this particular case. Dr. Hamilton testified that massage therapy was beneficial to Claimant. However, he did not offer any specific opinion or evidence that massage therapy is medically necessary either as a complementary therapy with physical therapy or as an independent therapy. Reasonable (and therefore, compensable) treatment is typically that which is necessary for a particular claimant. Raymond v. Grand Union Stores of Vermont, Opinion No. 13-99 (March 24, 1999). In light of the statute, Morrisseau and Raymond, Defendant offered the only specific expert testimony on the issue of whether or not massage therapy is both reasonable and medically necessary. That evidence, from Dr. Gennaro, compels the conclusion that Claimant has not established that weekly massage therapy is reasonable and compensable.
9. Although the massage therapy is not compensable, the Commissioner nonetheless addresses Defendants’ argument that because the massage therapists providing therapy to Claimant are not licensed in the State of Vermont, citing WC Rule 40 and Miller v. IBM (III), Opinion No. 53-95WC (August 18, 1995), services provided by massage therapists are not compensable. Vermont does not license or certify massage therapists. If Defendant’s view were law, then only health care providers actually licensed in this state would be able to provide compensable care. Steve Gordon is licensed in the State of New Hampshire, which unlike Vermont does require licensure for massage therapists. There has been no allegation that by practicing massage therapy in Vermont, Mr. Gordon is engaging in any illegal or unethical conduct. For the purposes of the Act, a “health care provider” is “a person, partnership, corporation, facility or institution, licensed or certified or authorized by law, to provide professional health care services in this state to an individual during that individual’s medical care, treatment, or confinement.” WC Rule 40.012(F); 18 VSA §9432(8) (emphasis supplied). The Vermont General Assembly has not required licensure or certification for the practice of massage therapy in this State. Neither is there any evidence that providing massage therapy in Vermont is contrary to law. Therefore, the provision of massage therapy by persons not affirmatively shown to be incapable of so doing is authorized by law within the meaning of the Act when that therapy is part of compensable medical treatment.
14
Medical End Result- August 20, 2005 – June 4, 2006
10. Under the Act, medical end result means “the point at which a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” WC Rule 21.2100. See also Sargent v. Town of Randolph, Opinion No. 37-02WC (November 5, 2002).
11. The “fact that some treatment, such as physical or drug therapy, continues to be necessary does not preclude a finding of medical end result if the underlying condition causing the disability has become stable and if further treatment will not improve that condition.” Coburn v. Frank Dodge & Sons, 165 Vt. 529, 533 (1996). However, “the proper test is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement.” Id.
12. Defendant argues that Claimant was at medical end result between August 20, 2005 and June 4, 2006 because her condition had stabilized and she was not interested in pursuing further surgery. Defendants rely on the IME opinions of Drs. Gennaro, Wing and Bucksbaum. However, Dr. Bucksbaum revised his opinion in this regard, and his explanation for his revised opinion was credible. Significantly, Dr. Phillips, who was Claimant’s treating surgeon during this period and to whose opinion considerable weight is given, testified that as of November 2004 and thereafter, he discussed the possibility of surgery with Claimant who declined to undergo surgery at that time because, based upon Dr. Phillips’ advice, non-surgical alternative, conservative treatment was appropriate. Dr. Phillips again discussed surgery as a treatment option with Claimant in January 2006, and Claimant again declined surgery, preferring to continue with conservative treatment in the form of massage and physical therapy. Dr. Phillips specifically testified credibly that in January 2006 Claimant was not at medical end result because there existed both surgical and conservative treatment options. The second surgery, performed in July 2006, resulted in significant relief for Claimant.
13. In effect, Defendant argues that because Claimant did not choose to have the surgery when it was proposed as a treatment option in November 2004 and in January 2006, she declined appropriate treatment and therefore placed herself at medical end result. However, the credible evidence is that the specific surgery which was performed in July 2006 was, in the months preceding, not the only reasonable treatment available. The fact that in retrospect it proved to be effective does not necessarily lead to the conclusion that it was the only reasonable option between the effective date of the Form 27 (August 20, 2005) and the point of election for the surgery (June 4, 2006). Because in the months which preceded the July 2006 surgical procedure Claimant was actively treating with conservative treatment consistent with the advice of her physicians, and because she continued to at least keep open the possibility of surgery, she had not, as a matter of law, reached medical end result as of the date of the Form 27.
15
Attorney’s Fees and Costs
14. Under WC Rule 10 and 21 VSA §678(a), the Commissioner, in her discretion, may award reasonable attorney’s fees to the prevailing party. Claimant’s attorney has submitted an itemized statement of services rendered showing 172.9 hours of professional services and costs of $2,819.73. Under WC Rule 10.1210, the award for services rendered on an hourly basis is limited to $90.00 per hour. At the allowed rate, the fees for professional services would be $15,561.00. Claimant’s total request for attorney’s fees and costs is therefore $18,380.73.
15. However, Claimant has prevailed on only one of the three claims. Because the body of medical and other evidence is, in large part, common to all three issues, it is reasonable, and within the Commissioner’s discretion, to conclude that Claimant is entitled to recover attorney’s fees based upon the efforts of counsel to the extent that those efforts may be allocated among the issues. Such allocation is entirely within the Commissioner’s discretion. In this case, the Commissioner concludes that an award of one-half of the hourly fees is warranted. Therefore, Claimant is awarded one-half of the requested attorney’s fees, in the amount of $7,780.50. Claimant’s request for costs in the amount of $2,819.73, is granted in full.
16
ORDER
Based upon the foregoing, it is hereby ORDERED as follows:
1. Claimant’s claim for benefits related to her lower back and leg pain is denied.
2. Claimant’s claim for weekly massage therapy treatments is denied.
3. Claimant had not achieved medical end result as of August 20, 2005 or at any time relevant to this claim. Defendant is ordered to re-characterize benefits paid between August 20, 2005 and June 4, 2006 as temporary, rather than permanency, benefits.
4. Claimant, having substantially prevailed on one of her three claims, is entitled to an award of attorney’s fees in the amount of $7,780.50 and of costs in the amount of $2,819.73, both of which are reasonable.
Dated at Montpelier, Vermont this 27th day of March 2008.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

G. C. v. The Fonda Group Inc. (January 8, 2008)

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

G. C. v. The Fonda Group Inc. (January 8, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
G. C. Opinion No. 37-07WC
By: George K. Belcher
Hearing Officer
v.
The Fonda Group, Inc. For: Patricia Moulton Powden
Commissioner
State File No. S-13358
OPINION AND ORDER
Hearing held in Montpelier on November 7, 2006. Preservation depositions were conducted on February 21, 2007 (Dr. Johansson), August 13, 2007 (Dr. Dulaney) and April 9, 2007 (Dr. Backus). The record was closed on September 13, 2007.
APPEARANCES:
Christopher J. McVeigh, Esq., for the Claimant
Marion T. Ferguson, Esq., for the Defendant
ISSUES PRESENTED:
1. Did the Claimant reach a medical end result on March 4, 2004 or on August 28, 2006, or at some other date?
2. Were the prolotherapy treatments rendered to the Claimant in this case reasonable and compensable medical treatments?
3. Should the Defendant be ordered to pay for the Claimant’s college expenses as a reasonable vocational rehabilitation plan?
EXHIBITS:
Joint: Medical Exhibit
Deposition of Dr. Johansson, DO, dated 21 February, 2007 and exhibits therein
Deposition of Dr. Backus, MD, dated April 9, 2007 (original unsigned)
Deposition of Dr. Dulaney, MD dated August 13, 2007 (original unsigned)
Claimant’s Exhibit: Statement of Attorney’s Fees, Costs, and Fee Agreement
Defendant’s Exhibit A: College transcript of the Claimant
2
FINDINGS OF FACT:
1. The Claimant was born on November 30, 1959. She has held a number of different types of employment over the years, including EMT work, office work, automobile repair, waitressing, and surveying work. She worked for a time as a substitute teacher until 2001, at which time the Defendant employed her. As a substitute teacher she earned approximately $55.00 per day.
2. The Claimant’s job with the Defendant was as a machine operator in a plant which made paper products. On November 19, 2001, she was operating a large machine when she struck her head on an overhead ladder. She cut her scalp and fell on her buttocks. On the date of the injury, the Claimant was an employee within the definition of the Vermont Workers’ Compensation Act and the Defendant was an Employer within the meaning of the same Act.
3. Following her injury, the Claimant began a long course of medical treatments involving the following medical providers: Dr. Carol Thayer (primary care physician); Dr. Rayden Cody; Dr. Jerry Tarver (pain therapy and nerve blocks); Dr. Robert D. Monsey (orthopedic surgeon at the Spine Institute); Dr. Claude E. Nichols, III (orthopedic surgeon); Dr. Raymond Long (orthopedic surgeon); Dr. Eugene Dulaney (neurologist); Dr. Verne Backus (practitioner of occupational and environmental medicine); Dr. Jonathan Fenton (therapist for neuro-musculoskeletal pain); Mary Guyette, BSN, MSN (nurse case manager); Wayne Sullivan (vocational rehabilitation specialist); Leslie Bell (physical therapist); Janet Carscadden (physical therapist); Kathryn Tau (physical therapist); Julia Wick (behavioral health evaluator); Erica Galipeau (functional capacity assessor); and Dr. Zweber (EMG specialist).
4. Before her injury, the Claimant had a history of migraine headaches, which were generally related to her menstrual cycle.
5. Following her injury, the Claimant presented to Dr. Backus with neck pain and right shoulder pain on January 22, 2002. (Joint Medical Exhibit, Tab 3). She was treated conservatively.1 She was put on significant work restrictions on 22 January 2002. On January 25, 2002 Dr. Backus assessed the patient as having cervical strain with radiculopathy and shoulder rotator cuff signs. In August and September of 2002, the Claimant complained to Dr. Nichols (her orthopedic surgeon who was treating her shoulder) that the increase in physical therapy was bringing on added migraine headaches. (Joint Medical Exhibit, Tab 4, September 16, 2002).
1 In January of 2002 the Claimant went with her husband on a vacation to the Bahamas. They had won the vacation and it was scheduled. During the vacation the Claimant was uncomfortable and could not swim or snorkle. Her activities were limited.
3
6. The Claimant’s right shoulder pain was the focus of most of her treatment in 2002 culminating in shoulder surgery with Dr. Nichols on January 31, 2003. The surgery was a “right shoulder arthroscopy, subacromial decompression, and open reduction internal fixation os acromiale”. About this same time (January of 2003) the Claimant became a full-time student at Johnson State College with 27 previous credits being used toward her Associate’s degree.
7. The Claimant was involved in physical therapy following her surgery. Again, the physical therapy was reported by the Claimant to be bringing on her migraine headaches. (See Joint Medical Exhibit, Dr. Cody note of May 22, 2003.) On June 2, 2003, physical therapist Janet Carscadden noted her opinion that there was a “mechanical component” to the migraine headaches since traction seemed to relieve the headaches. (Joint Medical Exhibit, Tab 8.) Neck pain and migraine headaches were a significant problem for the Claimant during this period. The migraine headaches were different from the previous menstrual headaches. The migraines which were brought on by physical exercise, were not relieved by her usual pain medication. She received biofeedback training from Julia Wick, MS, LCMHC, to try to break the association between pain, tension, and headache. It was recommended that she use a gym and trainer to gain strength. (See Joint Medical Exhibit, note of June 20, 2003.)
8. It was also during June of 2003, that Dr. Dulaney became the Claimant’s neurologist. On June 23, 2003, he related her changed pattern of migraine headaches to the traumatic injury of November 2001. (See Joint Medical Record Exhibit, Tab 4, Note of June 23, 2003.)
9. She was evaluated by an orthopedic surgeon, Dr. Robert D. Monsey, on September 3, 2003. Dr. Monsey gave the Claimant options for medical treatment of her neck pain. His options included interdisciplinary evaluation, medial branch nerve blocks, radiofrequency ablasion, and surgery. The surgery being discussed was a fusion of sections of her cervical spine, performed via access from the front of her neck. The likelihood of success of the surgery was in the range of 50%.
10. Following Dr. Monsey’s statement of options, the Claimant then pursued some of the less invasive options. She participated in the multidisciplinary programs of physical therapy, exercise, and biofeedback.
11. On February 11, 2004 and again on June 11, 2004, the Claimant received injections into her neck by Dr. Tarver of steroids and anesthetics as “medial branch blocks”. These treatments only gave temporary relief and were essentially ineffective to stop the neck pain and migraine headaches.
12. On February 23, 2004 (in between the medial branch blocks of Dr. Tarver) Dr. John Johansson conducted a medical review and examination of the Claimant for the Defendant. He concluded that the Claimant was at medical end result. On March 25, 2004 he augmented his report by letter to express the added opinion that the migraine headaches were not a condition resulting from trauma and were not causally related to her injury. (Joint Medical Exhibit, Tab 7)
4
13. On September 19, 2004, the Claimant underwent a radiofrequency ablasion. This, too, did not give the Claimant lasting relief of her pain.
14. By December of 2004, the Claimant was having daily migraine headaches. (Joint Medical Exhibit, Tab 4, note of December 9, 2004.) The headaches were debilitating and made the Claimant essentially non-functional while she was having a headache. In late 2004, the Claimant returned to the care of Dr. Backus. He questioned whether the Claimant was at maximum medical improvement and whether there might be other treatments for her.
15. On December 9, 2004, Dr. Delaney concluded that the Claimant’s worsening migraine headaches were a chronic condition.
16. In late December, 2004, the Claimant was referred to Physical Therapist Leslie Bell by nurse-casemanager Mary Guyette. While in treatment with Leslie Bell, Ms. Bell noticed what she thought was ligament weakness in Ms. Crowe’s neck on the right side. It appeared to her that there was ligament damage because there was increased muscle tone on the right side of the neck, which could indicate that the muscles were compensating for the injured ligaments. She also felt that the mechanism of injury and the inability of the Claimant to hold her head up for long periods supported this conclusion. Ms. Bell used a form of tape (kinesio tape) to support Ms. Crowe’s head. She noticed improvement in her neck pain and her migraine headaches.
17. Ms. Bell treated the Claimant from December 2004 until May of 2005 at which time the Claimant had reached a plateau of improvement in her physical therapy with Ms. Bell. It was suggested by Ms. Bell that the Claimant investigate “prolotherapy” as a way to increase the ligament strength further.
18. A referral was made to Dr. Jonathan Fenton who first evaluated the Claimant on May 4, 2005. He asked that she do some manipulation therapy before considering prolotherapy. The Claimant completed the manipulations without positive results. The decision was made to do her first prolotherapy treatment on August 22, 2005.
19. Prolotherapy is a method of causing ligaments to ‘proliferate’ by inflammation. Inflammation of the weak ligaments is induced by the injection of solutions containing glycerin and painkillers into the spaces between the cervical joints with a large needle. Because prolotherapy causes ligaments to regenerate, it is not a palliative treatment, but rather, it is a treatment which can provide a cure for weak and damaged ligaments, according to Dr. Fenton. The procedure is not widely used. The procedure can be quite painful and uncomfortable. For this reason, Dr. Fenton warns his patients about the pain. He conducts the procedure under an anesthesia administered through an intravenous line.
20. During the second treatment of the Claimant by Dr. Fenton on September 12, 2005, he acknowledged that he did not give her enough pain medication to avoid very severe pain following the procedure. The Claimant was in extreme pain following the second injection. It was for this reason that she did not return to Dr. Fenton until February 13, 2006. Dr. Fenton understood this delay and was not surprised by it. Rather, he felt it was a natural reaction to her pain and discomfort.
5
21. The Claimant returned for prolotherapy treatments with Dr. Fenton on March 20, 2006, April 10, 2006, June 19, 2006, and July 24, 2006. These treatments improved her neck pain and migraine headaches. After the treatments, she could exercise again for much longer periods without triggering a migraine headache. The prolotherapy was successful. Mary Guyette, who had followed the Claimant through many of the diverse therapies, was very impressed by the Claimant’s improvement after the prolotherapy.
22. In June of 2006 the Claimant returned to Ms. Bell for continuing physical therapy. This course of physical therapy was intended to increase strength since the Claimant could now tolerate more vigorous exercise without triggering migraine headaches. According to Ms. Bell, the difference in the capabilities of the Claimant between December of 2004 and June of 2006 was “huge”. Her ability to lift and to work without triggering a headache were much improved.
23. On September 14, 2006, Dr. Backus opined that the Claimant could work a full day.
24. As of the hearing date (November of 2006), the Claimant was still taping her neck, occasionally, in order to tolerate long trips and other positional challenges. While she still had occasional migraine headaches, she was able to avoid the triggers of her migraine headaches and to work full time. She received her BA degree in History in May of 2006. At the time of the hearing she was working full time as a special education teacher earning $34,000.00 per year. She began this job in August of 2006.
Medical End Result
25. The Department approved a Form 27 ending temporary disability benefits because of Dr. Johansson’s opinion that the Claimant had reached a medical end result as of February 23, 2004. It appears that Dr. Johansson was the only person who had this opinion at this time. His opinion was formed in large part because; (1) he did not include or mention the headaches in his initial evaluation; (2) his first update stated that migraine headaches are not caused by trauma; (3) his second update indicated that there are so many potential triggers for migraine headaches that he could not attribute the triggers to the traumatic injury suffered by the Claimant.
26. His opinion was contradicted by Dr. Backus (chronic cervical pain exacerbated and aggravated the migraines, see note of January 4, 2005), Dr. Dulaney (migraine headaches are related to her trauma, June 23, 2003 note), Physical Therapist Janet Cacadden (there was a mechanical component to Claimant’s migraines as shown by the effect of traction, note of June 2, 2003), and Dr. Fenton (migraine headaches were triggered by muscles working overtime to make up for an unstable neck caused by weakened ligaments in the cervical spine; testimony of Dr. Fenton).
27. Since Dr. Johansson did not believe that the migraine headaches were caused by the Claimant’s injury, he did not consider that the continuing treatments of her neck and migraine headaches were part of her recovery.
6
28. Dr. Backus assessed maximum medical improvement as of July 12, 2005 in his chart note, but at that time, the Claimant was in treatment with Dr. Fenton. Dr. Backus, in his later testimony, revised his opinion about medical end result and put the date of medical end result at August 11, 2006. (see testimony of Dr. Backus, Deposition, Page 27).
Prolotherapy as Reasonable and Necessary Treatment
29. In Dr. Johansson’s deposition testimony, he opined that the prolotherapy administered in this case was not medically indicated for the Claimant. In his opinion, there was no evidence of “ligamentous laxity in her cervical spine.” (See deposition of Dr. Johansson, 21 February 2007, Page 28.) This conclusion is contradicted by Dr. Fenton (who felt that there was cervical instability caused by weak ligaments – Testimony of Dr. Fenton), Dr. Backus who thought there was ligament dysfunction or instability (Deposition of Dr. Backus, page 8), and the examination of Physical Therapist Bell (who noted increased muscle tone and reaction to taping as evidence of lax ligaments – Testimony of Leslie Bell). Dr. Backus expressed the opinion that prolotherapy offered “an excellent chance at improvement and avoid surgery.” (See Joint Medical Exhibit, Tab 3, note dated April 8, 2005 in which his assessment included ligament weakness and/or instability). Likewise, Dr. Backus testified that prolotherapy was a reasonable medical treatment for the Claimant in January of 2005 (Dr. Backus deposition testimony, Page 10.)
30. With the benefit of hindsight, it is clear that the prolotherapy was a significant benefit to the Claimant. She had tried numerous other treatments without improvement.2 The prolotherapy allowed her to control the triggers of her migraine headaches and to have more physical activity and overall function.
31. The Defendant argues that the Claimant intentionally delayed, prolonged, and confused her treatments in order for her to be in treatment until she was gainfully employed as a teacher. (See Defendant’s Proposed Finding, Paragraph 47.) In support of this argument the Defendant pointed to the delays in the prolotherapy treatments from Dr. Fenton, missed appointments by the Claimant with physical therapists, and an early opinion by Mary Guyette that the Claimant might have been trying to draw out the treatments. Mary Guyette has a BSN and Masters of Nursing degree and has worked in the Vermont medical community for many years. She was hired by the Defendant. She monitored the Claimant’s case from April of 2002 forward. Mary Guyette was instrumental in making the referral to Leslie Bell and to Dr. Fenton. It was her opinion at the hearing that the Claimant was sincere in her complaints of pain and her efforts to find a solution. In looking at the whole history of the case, she did not believe that the Claimant had intentionally delayed or prolonged treatment. Her opinion on this point is persuasive.
2 The Defendant challenged prolotherapy as non-traditional medicine, and outside the usual range of medical treatment. Dr. Johansson himself administers prolotherapy in certain cases. The only significant issue in the case was whether the treatment was appropriate in this case.
7
32. Likewise, the Defendant argues that the Claimant’s subjective reporting to doctors and health care providers was so full of discrepancies, that her credibility in reporting symptoms cannot be relied upon, thus, discrediting the medical conclusions of her providers. While there are some inconsistencies in the eight years of medical records, there were few inconsistencies in the Claimant’s reports of persistent pain and disability until the conclusion of her treatments with Dr. Fenton. Likewise, the medical record demonstrates that the Claimant took advantage of all reasonably proposed treatments, despite the risks, in order to return to as much function in her life as she could recover. In this sense, the Claimant’s pain condition and her desire to “get better” were confirmed, not only by her treating medical providers, but by her own behavior.
Vocational Rehabilitation
33. On May 19, 2004, the Claimant participated in a Functional Capacity Examination by Erica Galipeau. This assessment concluded that the Claimant had a functional work capacity of full-time, medium work capacity and some capacity in a heavy range. It was the opinion of the evaluator that the Claimant would be most successful in a return to work in a medium work level position.3 (See Joint Medical Exhibit, Tab 9, page 28.)
34. In April of 2004 Wayne Sullivan was assigned to perform a vocational rehabilitation entitlement assessment of the Claimant. Mr. Sullivan is a vocational rehabilitation counselor with over twenty years experience. He met with the Claimant on April 8, 2004. According to Mr. Sullivan, a worker may be entitled to vocational rehabilitation services if the worker cannot return to suitable employment following an injury. “Suitable” employment is deemed to be a job which would create income of at least 80% of what the employee was earning before the injury. The Claimant had worked as a substitute teacher before working for the Defendant. She earned $55.00 per day for a 6 hour day as a substitute teacher. Her hourly rate as a machine operator for the Defendant was $11.52 per hour.
35. Mr. Sullivan determined that the Claimant was not entitled to vocational rehabilitation services because she had a medium to heavy, full-time work capacity. He determined that she had transferable skills, which would enable her to work as an office manager, substitute teacher, or machine operator at a job paying a minimum of $9.01/ hour.4 (See Joint Medical Exhibit, VR Report of June 24, 2004.)
36. In making this assessment, Mr. Sullivan relied upon the information provided by the Claimant, information from Dr. Monsey, and the Functional Capacity Examination by Erica Galipeau.
3 The Claimant testified that she started to have a migraine headache during the functional capacity examination, but there was no mention of this in the report.
4 The target salary of $9.01 was calculated as 80% of her average weekly wage with the Defendant in 2001 which was $450.74 per week.
8
37. At the hearing, the Claimant argued that the Functional Capacity Examination report was flawed because it did not consider the migraine headaches. The Claimant testified that she had severe migraine headaches after the functional capacity examination and that she tried to communicate this to the evaluator but did not receive a call back. The Claimant presented evidence from Dr. Backus that the Claimant did not have a medium to heavy work capacity in March of 2006.
38. The Claimant also argued that the conclusion of Mr. Sullivan was flawed because the $9.01 target salary which he used as a minimum target should have been adjusted for inflation upwards to $12.65 (100%) or $10.12 per hour (80%). Because the FCE and the Vocational Rehabilitation Eligibility Assessment were flawed, according to the Claimant, her own plan should now be approved by the Department. Her own plan was her completion of a college education, which she pursued during her recovery period.
39. Prior to her employment with the Defendant, the Claimant had worked as a substitute teacher. In January of 2003 she enrolled as a full time student at Johnson State College in Johnson, Vermont. She received her Associate of Arts degree in June of 2004 and her BA degree in May of 2006, graduating magna cum laude. She majored in history because she wanted to be a history teacher. As of November 2006, she was pursuing a Master’s degree in Special Education while she was working as a special education teacher, full time, earning $34,000.00 to 35,000.00 per year.
40. The Claimant asks that the Department now order that the Defendant “reimburse Claimant for the reasonable cost of he[r] tuition, fees, books and mileage, plus interest.” (See page 23, Claimant’s Proposed Findings.) No evidence was offered by the Claimant of the amount of these expenses.
41. The Claimant’s college education plan was never accepted by the Defendant or the Department as a vocational rehabilitation plan.
42. There was no evidence offered at the hearing to show that the Claimant had requested an alternate FCE or alternate vocational rehabilitation assessment, or that an alternate vocational rehabilitation counselor was requested.
43. The Claimant incurred $2,093.11 in costs. (see statement of costs filed with proposed findings and supplemental letter of September 11, 2007.) The Claimant’s attorney expended 106.4 hours in representation of the Claimant in this case. His fee agreement with the Claimant calls for a contingent fee in the amount of one-third of the gross recovery, plus any attorney’s fee awarded by decision at a formal hearing. (See fee agreement dated August 21, 2006 filed with Claimant’s Proposed Findings.)
9
CONCLUSIONS OF LAW:
1. In Worker’s Compensation cases the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. 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 from the facts proven must be the more probable hypothesis. Burton v. Holden and Martin Lumber Co. 112 Vt. 17 (1941).
3. Where the causal connection between the accident and the injury is obscure and a layperson would have no well-grounded opinion as to causation, expert medical opinion is necessary. Lapan v. Burno’s Inc., 137 Vt. 393 (1979).
4. While the claimant has the burden of proof in the first instance, once the claim is accepted and benefits are paid, the burden of proof to terminate the claim is upon the employer. Merrill v. University of Vermont, 133 Vt. 101 (1974). A disabled, injured worker is entitled to temporary disability benefits until he or she has successfully returned to work or has reached medical end result. Coburn v. Frank Dodge and Sons, 165 Vt. 529, 532 (1966). Medical end result is the point at which a person has reached a substantial plateau in the medical recovery process such that significant further improvement is not expected regardless of treatment. WC Rule 2.1200.
5. Under Vermont’s Workers’ Compensation Act, the employer must furnish “reasonable surgical, medical and nursing services to an injured employee.” 21 V.S.A. Sec. 640(a). In determining what is reasonable, competent expert evidence of reasonableness is usually determinative. J.H. v. Therrien Foundations, Opinion No. 53-05 WC (August 19, 2005). When an employer seeks to terminate coverage for medical benefits, it has the burden of proving that the treatment at issue is not reasonable. Ploof v. Heritage Ford, Opinion No. 26-07 WC (September 28, 2007). Thus, upon the issues of terminating temporary disability benefits and the reasonableness of the prolotherapy treatments, expert testimony is necessary and the burden falls upon the Defendant.
10
6. When choosing between conflicting medical opinions, the Department has looked at several factors: (1) the nature of the 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 qualification of the experts. Geiger v. Hawk Mountain Inn, Opinion No. 37-03 WC (Sept. 17, 2003). In the present case, Dr. Johansson’s opinion is less credible than that of Dr. Fenton, Dr. Dulaney, and Dr. Backus. Dr. Johansson was not in a treating relationship with the Claimant as were the other doctors. Moreover, he did not accept or consider that the headaches were caused by the injury. Thus, his opinion appeared to have been formed, in the first instance, without consideration of the headaches. Dr. Johansson believed that, “there’s no evidence that she had ligamentous laxity in her cervical spine.” (Deposition of Dr. Johansson, Page 28.) Since both Leslie Bell and Dr. Fenton found such evidence, Dr. Fenton’s opinion has more objective support than Dr. Johansson’s.
7. The Commissioner is persuaded by the expert testimony in favor of the Claimant concerning the date of medical end result and the reasonableness of the prolotherapy treatment. The testifying experts (except for Dr. Johansson) were in general accord that the prolotherapy treatments caused substantial improvement in the condition of the Claimant and that they were reasonable.
8. Dr. Backus placed the Claimant at medical end result on August 11, 2006. The Commissioner finds that this opinion is more credible than that of Dr. Johansson and that the date of medical end result in this case is August 11, 2006.
9. A claimant is entitled to vocational rehabilitation services when, as a result of a work-related injury, she is unable to perform work for which she has previous training or experience. 21 VSA Sec. 641 (a); Peabody v. Home Ins. Co., 170 Vt. 635 (2000) (mem.).
10. In an accepted workers’ compensation case with a vocational rehabilitation referral, entitlement to vocational rehabilitation services is determined by a rehabilitation counselor and a report is made. WC Rule 32.2000. In this instance, the only evaluation performed by a rehabilitation counselor found the Claimant not entitled to vocational rehabilitation services. The rehabilitation counselor considered her past experience and work capacity and concluded there was work she could perform making close to her pre-injury wage.
11
11. Even assuming that the Claimant had established her entitlement to vocational rehabilitation services, WC Rule 33.200 provides that the counselor develop a plan and a hierarchy of vocational options is followed. An educational/academic program would be recommended only if four other preferred options are not available or feasible. Those include return to work with the original employer in a modified job, return to work for a different employer in a modified job, on-the-job training, or new skill training or retraining. The vocational rehabilitation plan, once formulated, would then be submitted to the parties for signature. If a party fails or refuses to sign the plan, the matter is set for formal hearing. WC Rule 33.600. In the normal course, the Commissioner or her designee would be considering a specific vocational rehabilitation plan which has been prepared by a certified vocational rehabilitation counselor in accordance with the rules of the Department. If the Claimant disagrees with a determination of a particular vocational rehabilitation counselor, she is free to retain the services of her own vocational rehabilitation counselor to prepare a proposed plan. See Martell v. Dowlings, Inc., Opinion No 15-04 WC (March 30, 2004).
12. In this case, however, the Claimant formulated her own, unwritten, educational plan, which was to become a special education teacher. She offered scant evidence that this academic/educational program was the optimal solution to her employment situation or that this plan complied with WC Rule 33.200 (hierarchy of preferred programs). Likewise, any plan must, by rule, consider the costs associated with the plan. WC Rule 33.3400. No evidence of the costs of the Claimant’s program was offered. Finally, it appears that the educational plan of the Claimant (to acquire a Master’s Degree in special education, or subordinate, prerequisite degrees such as a Bachelor of Arts degree in History, at the expense of the employer) may have overshot the mark of returning the Claimant to suitable employment. Without any supporting opinion of a vocational rehabilitation expert, the Commissioner can only speculate as to whether the vocational goal of the claimant is within the definition of “suitable employment.” WC Rule 2.1250. “Although injured workers are entitled to rehabilitation, they are only entitled if the proffered plan will result in suitable employment. Furthermore, it is not incumbent on the Commissioner to establish such entitlement.” Bishop v. Town of Barre, 140 Vt. 564 (1982) (where Claimant’s self-generated plan was rejected by Commissioner). In the past, the Commissioner has not looked favorably upon those plans formulated by the claimant “sua sponte” without sponsorship or prior approval of a vocational rehabilitation counselor. Provost v. Contractor Crane Service, Inc., Opinion No. 26-96 WC (April 29, 1996).
13. Where the Claimant prevails, the Commissioner shall include interest at the statutory rate computed from the date the compensation should have been paid, or, for medical expenses, from the date when the cost was incurred. 21 VSA Sec. 664, Martell v. Dowlings, Inc. (supra.).
14. Under Vermont Workers’ Compensation Rule 10.0000 and 21 VSA Sec. 678(a), the Commissioner may, in her discretion, award reasonable attorney’s fees to the prevailing party. When a claimant has partially prevailed, she is entitled to a fee award in proportion to her success. Martell v. Dowlings, Inc. (supra.)
12
15. The legal bill of Claimant’s counsel only identifies 1.2 hours of work (out of a total of 106.4 hours) specifically related to the vocational rehabilitation. Clearly, more time than this was related to this issue. Considering the evidence, the arguments of counsel, the proposed findings of fact, and the Department file, the Commissioner determines, in her discretion, that 85% of the attorney’s fees of the Claimant should be awarded. The amount of compensable attorneys’ fees is therefore $8,139.60 (106.4 X 85% X $90.00/hr).
ORDER:
Therefore, based upon the foregoing findings of fact and conclusions of law, the Commissioner determines that the Claimant is entitled to the following:
1. Medical benefits regarding the Claimant’s cervogenic induced migraine headaches, including the prolotherapy treatments of Dr. Fenton;
2. Temporary disability benefits for the period of March 13, 2004 until August 11, 2006;
3. Interest at the legal rate on the medical benefits from the date each medical payment was due until the date of payment and interest on the temporary disability benefits from the date they became due until the date of payment;
4. The Claimant’s request for the reimbursement of college expenses is denied;
5. Attorneys’ fees of $8,139.60 and costs of $2,093.11.
Dated at Montpelier, Vermont this 8th day of January 2008.
____________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. Sec. 670, 672.

© Copyright - -