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L. M. v. Woodridge Nursing Home (December 6, 2006)

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L. M. v. Woodridge Nursing Home (December 6, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. M. Opinion No. 46-06WC
By: Margaret A. Mangan
v. Hearing Officer
Woodridge Nursing Home For: Patricia Moulton Powden
Commissioner
State File No. W-51502
Hearing held in Montpelier on September 1, 2006
Record closed on September 20, 2006
APPEARANCES:
Steven P. Robinson, Esq. and Jennifer Ciarlo Pacholek, Esq., for the Claimant
Keith J. Kasper, Esq., for the Defendant
ISSUES:
1. Is Claimant’s current condition caused by her work-related injury?
2. When did Claimant reach medical end result for her work-related injury?
3. To what benefits, if any, is Claimant entitled?
EXHIBITS:
Medical Records
STIPULATION:
1. On August 15, 2004 Claimant was an employee of Defendant within the meaning of the Vermont Workers’ Compensation Act (Act).
2. On August 15, 2004, Defendant was the employer of Claimant within the meaning of the Act.
3. On August 15, 2004, Claimant suffered an injury by accident arising out of and in the course of her employment.
4. At the time of the injury, Claimant had an average weekly wage of $394.17 resulting in an initial compensation rate of $305.
5. At the time of her injury and thereafter, Claimant has had no dependents within the meaning of the Act.
6. Effective July 23, 2005, Defendant terminated temporary partial disability benefits on the basis that Claimant had reached medical end result. It also terminated medical treatment alleging that the treatment Claimant was receiving was unrelated to the work injury.
7. Claimant seeks reinstatement of her benefits and, if successful, an award of attorney fees and costs of the litigation process.
FINDINGS OF FACT:
1. In 2002, before the event at issue here, Claimant hurt her back lifting a patient. She sought medical attention, missed a few days at work and returned to work full time, full duty.
2. In August of 2004, Claimant was working as a licensed nursing assistant (LNA) at the Woodridge Nursing Home. She had been an LNA for five years.
3. On Friday August 15, 2004, Claimant was using a Hoyer lift to help a patient return to bed from a wheelchair. In the process, she leaned, slipped, and then fell back striking her right side (in the area over the kidney) against a nightstand. Claimant completed her task; she then reported the incident to her supervisor.
4. Claimant went to hospital emergency department the day of the incident where she was seen by a nurse and physician’s assistant (PA). The PA noted costo vertebral tenderness. Diagnoses were back contusion and possible compression fracture of the spine. Claimant was given an out of work note stating that she fell at work and sustained a lumbar sacral strain.
5. Claimant iced her back over the weekend and took anti-inflammatory medications.
6. On Monday, August 18, 2004, Claimant consulted with her primary care physician at the Health Center. Her pain was described as “right paralumbar pain and right SI [sacroliliac] joint pain.” The straight leg raise (SLR) on the right was negative. Claimant was referred to physical therapy (PT).
7. Stedman’s Medical Dictionary (25th ed.) defines lumbar as “[r]elating to the loins, or the part of the back and sides between the ribs and the pelvis.” The paralumbar muscles; sacroiliac joint; and costovertebral angle, higher in that area, are in the general lumbar region of the back.
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8. An August 28, 2004 PT note indicates that Claimant had fallen on her right side pelvis. The SLR test on the right was positive, which suggests nerve involvement.
9. On September 3, 2004, the physical therapist noted that Claimant was “sore on the other side now.”
10. On October 15, 2004, Dr. Rohan noted that Claimant still had a tender area where she was bumped. She had point tenderness in paraspinal muscles.
11. Tests performed in October of 2004—a CT scan and MRI—revealed multi level degenerative disc disease in Claimant’s lower back and facet arthrosis.
12. Claimant returned to work on a part time (three hours per day), light duty basis in September, 2004.
13. In July 2005, Dr. Boucher, Board Certified in Environmental Medicine, evaluated Claimant for the defense in June 2005. Dr. Boucher opined that Claimant’s only work related injury was a contusion to the right side of her lumbar area as documented in the original emergency department notes. He described her current complaints in paraspinal muscles as anatomically distinct from the area of injury and, therefore, unrelated. The straight leg raise test was negative at the time of Dr. Boucher’s evaluation.
14. Dr. Boucher noted that Claimant magnifies symptoms, a conclusion that is consistent with the medical records. He placed her at medical end result, an accurate assessment because her symptoms had reached a plateau. He found no permanent partial impairment.
15. Based on Dr. Boucher’s report, Claimant was informed that she would be fired from her job if she did not return full time. Claimant did not return to work full time.
16. A Functional Capacity Evaluation of Claimant, performed in September 2005, indicated that Claimant had a work capacity of “less than sedentary.”
17. In October 2005 Claimant was fired for not returning to work full time.
18. The carrier terminated temporary total and medical benefits based on Dr. Boucher’s evaluation.
19. Claimant has not looked for work within her restrictions.
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20. Dr. Davignon evaluated Claimant in February 2006. The evaluation included an examination of the Claimant and review of medical records, although he did not have her pre-injury records. He opined that her current symptoms are causally related to her work related injury. Unlike Dr Boucher, he did not find that the ED note regarding costovertebaral angle pain and subsequent notes documenting sacroiliac and low back pain indicated different phenomena. From the outset, Claimant’s pain has been in her lower back on the right. Her large body habitus makes precise location impossible.
21. Dr. Davignon opined that Claimant has a part time sedentary to light work capacity based on the FCE and physical examination. He acknowledged that Claimant had pre-existing degenerative conditions of the back, conditions aggravated by her work related injury.
22. No evidence had been produced to suggest that Claimant injured her back in any way other than at work.
23. Claimant submitted support for a claim for attorney fees based on 73.1 attorney hours at $90.00 per hour and 3.7 paralegal hours at $60.00 per hour as well as costs to $828.95.
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 from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. With an obscure injury and causation beyond the ken of a layperson, expert testimony is necessary to lay the foundation for an award. Lapan v. Berno’s Inc., 137Vt. 393 (1979).
4. In this case, as in many others, the medical evidence on which an order depends is in conflict. To resolve the differences, this Department traditionally has looked at several factors: 1) whether the expert has had a treating physician relationship with the claimant; 2) the professional education and experience of the expert; 3) the evaluation performed, including whether the expert had all medical records in making the assessment; and 4) the objective bases underlying the opinion. Yee v. IBM, Opinion No. 38-00WC (2000).
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5. Neither of the experts has a treating physician relationship with the Claimant. Both are well versed in the area of occupational medicine, although Dr. Boucher has an edge with his board certification. Both had available to them records and history relevant to this claim. Although Dr. Davignon had not seen the pre-injury records, he was well aware of preexisting degenerative disc disease. The difference lies with the interpretation of the symptoms and understanding of medical end result.
6. To accept Dr. Boucher’s opinion on causation, I would have to accept that the precise location of one’s pain is always clearly documented in the medical records and that it remains in that precise location at all times. Dr. Davignon’s opinion to the contrary is more logical. Claimant hurt her lower back on the right side at work. She described it as over her kidney at one time and in her lower back, which is slightly lower and more central, at other times. The areas are within inches of one another. No intervening events have been identified that would account for Claimant’s continuing symptoms. Although Claimant had a preexisting degenerative condition, that condition was asymptomatic prior to the injury at issue. It is well established that aggravation from a preexisting condition is compensable. Jackson v. True Temper Corp., 151 Vt. 592, 595-596 (1989). (citing to Campbell v. Heinrich Savelberg, Inc., 139 Vt. 31, 35-36 (1980); Laird v. State Highway Dep’t, 112 Vt. 67, 86 (1941); Gillespie v. Vermont Hosiery & Machinery Co., 109 Vt. 409, 415 (1938)).
7. On the question of ongoing disability, however, Dr. Boucher provided the more persuasive opinion. This claim fails for two reasons: medical end result and failure to conduct a job search.
8. “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. The fact that some treatment such as drug or physical 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 (1996). “[A] claimant may reach medical end result, relieving the employer of temporary disability benefits, but still require medical care associated with the injury for which the employer retains responsibility.” Pacher v.Fairdale Farms, 166 Vt. 626, 629 (1997); Coburn, 165 Vt. at 532. The necessity of treatment such as physical therapy or medications is not inconsistent with finding medical end result. Pacher, 166 Vt. at 626. Claimant had reached a medical end result at the time Dr. Boucher had examined her, as demonstrated by the plateau in her symptoms, thereby justifying the termination of her temporary total disability benefits.
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9. Furthermore, Claimant has not proven that she is incapable of working. Claimant had been released to work yet failed to pursue any employment on her personal belief that she could not work. Such a subjective belief, however, cannot support such a claim for TTD. See Davis v. The Journal Co., Op. No. 31-92WC (1992).
10. However, since this is a compensable claim, Claimant’s medical benefits must be reinstated pursuant to 21 V.S.A. § 640(a).
11. The carrier must adjust the claim with payment of medical benefits and permanent partial disability benefits if so assessed, although it was justified in terminating temporary total disability benefits in July 2005 because Claimant had reached medical end result.
12. Because Claimant has prevailed on her claim for compensability and medical benefits, claims that depended on the same core set of facts as the claim for TTD that is denied, she is entitled to the requested attorney fees and costs pursuant to 21 V.S.A. § 678(a) and WC Rule 10.000. See also The Electric Man, Inc. v. Charos 2006 VT 16. ¶ 9-12.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to adjust this claim, including payment of:
1. Medical Benefits;
2. Attorney fees and costs;
3. Permanent partial disability benefits, if so determined.
The claim for temporary total disability benefits is DENIED.
Dated at Montpelier, Vermont this 6th day of December 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.
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Jeffrey New v. Conway Central Express (August 28, 2009)

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Jeffrey New v. Conway Central Express (August 28, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Jeffrey New Opinion No. 33-09WC
v. By: Jane Gomez-Dimotsis
Hearing Officer
Conway Central Express
For: Patricia Moulton Powden
Commissioner
State File No. U-12847
OPINION AND ORDER
Hearing held in Montpelier on February 2, 2009
Record closed on March 3, 2009
APPEARANCES:
Jeffrey New, pro se
Corina Schaffner-Fegard, Esq., for Defendant
ISSUES:
1. Did the implantation of a spinal cord stimulator constitute reasonably necessary treatment for Claimant’s February 2004 work injury?
2. When did Claimant reach an end medical result for his work injury and what, if any, ongoing treatment is reasonably necessary?
EXHIBITS:
Defendant’s Exhibit A: Medical records
Defendant’s Exhibit B: Dr. Ross medical records
Defendant’s Exhibit C: Video surveillance
Defendant’s Exhibit D: Dr. McClellan deposition
Defendant’s Exhibit E: Tom Lathrop video deposition
Defendant’s Exhibit G: Sony VHS tape of video surveillance
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and
Defendant was an employer as those terms are defined in Vermont’s Worker’s Compensation Act.
2. Judicial notice is taken of all forms contained in the Department’s file relating to this claim.
3. Claimant worked for Defendant as a truck driver. Part of his job involved loading and unloading the items to be delivered. Claimant’s previous work history included both trucking and farm work, both of which are considered “heavy work.”
4. Claimant lives in New Haven, Vermont with his wife and approximately 42 cats. As of February 2004 he was 40 years old.
Claimant’s Work Injury and Subsequent Treatment
5. On February 23, 2004 Claimant was trying to unload a pallet of rolled of steel that had frozen to the bed of his trailer. As he bent to lift it, he heard his back “pop,” and immediately felt significant pain in his low back. The pain radiated into his left hip and down his left leg. Claimant finished a few more deliveries, then reported his injury to Defendant and presented to the Emergency Room for treatment.
6. Defendant accepted Claimant’s injury as compensable and paid both temporary disability and medical benefits accordingly. Claimant has not worked since the injury.
7. Claimant has a prior medical history of low back pain following a non-work-related injury in 2003. As treatment for this injury Claimant underwent an L3-4 discectomy in August 2003, following which he had a complete recovery and successfully returned to work.
8. Claimant also has a remote history of depression, including two suicide attempts, in his teenage years.
9. Initially Claimant treated conservatively following the February 2004 work injury. Neither physical therapy nor injections successfully alleviated his symptoms, however. Claimant consistently complained of high pain levels, for which his treating physicians prescribed various narcotic pain medications, including Oxycontin, Oxycodone and methadone. Against his doctors’ advice, Claimant also self-medicated with dangerously high dosages of non-steroidal anti-inflammatories.
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10. Without adequate pain control, Claimant became frustrated and depressed. Stressors in his personal life, including the death of two close family members, also contributed to his depression. At times, Claimant’s treating physicians noted significant pain behaviors and questioned whether he was drug-seeking. In the fall of 2004, they recommended that he be admitted to a pain clinic so that he could wean off the high dosages of narcotic medications he was taking. For reasons that remain unclear, this recommendation was never pursued.
11. The question whether Claimant was misusing the narcotic medications he had been prescribed was never resolved. There was some evidence that Claimant was a “fast metabolizer,” and thus required large dosages of medication to accomplish effective pain relief. In any event, ultimately both of Claimant’s primary care physicians severed their relationship with him because of their ongoing concerns as to his use of narcotics.
12. Conservative treatment for Claimant’s ongoing symptoms having failed, in August 2005 he underwent spinal fusion surgery with Dr. Sengupta, a neurosurgeon. Within a month thereafter, Claimant again was complaining of low back and left leg pain. The fusion appeared solid and Dr. Sengupta could find no anatomical basis for his ongoing symptoms.
Spinal Cord Stimulator
13. Various treatment options were recommended for Claimant’s continued symptoms, including a functional restoration program, behavioral counseling and implantation of a spinal cord stimulator. As to the last recommendation, many doctors considered whether a spinal cord stimulator would be appropriate for Claimant, including Drs. Graubert, McClellan, Sengupta and Fancuillo. Dr. Boucher also considered this treatment option in the context of the independent medical evaluation he performed at Defendant’s request.
14. A spinal cord stimulator generally is considered to be a last option for patients with intractable pain such as Claimant’s. The protocol for determining whether this treatment measure is appropriate for a particular patient varies, and there are several factors to consider. Spinal cord stimulators are more effective at treating lower extremity pain than they are at treating low back pain per se. They also are contraindicated in cases where the patient suffers from untreated depression or somatic pain, exhibits signs of symptom magnification and/or has a history of narcotic drug addiction or abuse. Claimant’s current and prior medical course contains evidence of all of these contraindications.
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15. After reviewing Claimant’s medical records and the results of his psychological evaluation, in early 2008 a panel of physicians at Dartmouth Hitchcock Medical Center concluded that he was not an appropriate candidate for a spinal cord stimulator. Claimant remained committed to the idea, however. Ultimately, he presented to Dr. Ross at Brigham and Women’s Hospital. After interviewing Claimant and conducting a psychological evaluation, Dr. Ross determined that he was an appropriate candidate. The basis for that determination is somewhat suspect, however. Claimant was not entirely truthful in his responses to Dr. Ross’ inquiries and did not inform him either of his history of depression or of his issues with narcotic pain medications. Nor did Dr. Ross fully review Claimant’s prior medical records.
16. Dr. Ross implanted Claimant’s stimulator in November 2008. Initially thereafter Claimant reported that he experienced “nearly absolute pain relief.” Such a marked improvement is virtually unheard of with spinal cord stimulators, which typically decrease a patient’s pain but do not eliminate it altogether. In fact, Claimant’s report is itself evidence that his symptoms may have been psychologically rather than organically based, and that his reaction to the spinal cord stimulator was a placebo effect. If that is the case, then the conclusion of the panel at Dartmouth Hitchcock – that the stimulator was not an appropriate treatment option for Claimant – ultimately was the correct one.
17. The extensive pain relief Claimant initially reported was short-lived. By January 2008 he was again undergoing spinal injections and Dr. Ross determined that he still was not capable of being released to return to work. Claimant testified at the formal hearing that both the injection therapy and his use of narcotic pain medications were continuing. As to the latter, Dr. Fancuillo determined in April 2008 that further prescriptions were inappropriate; since that time Dr. Ross has been prescribing them. Claimant remains unemployed, though he recently has started an internet sales business.
End Medical Result
18. Medical opinions from three doctors were introduced as to when Claimant reached an end medical result for his work injury. Defendant’s independent medical examiner, Dr. Boucher, determined that Claimant reached an end medical result on September 13, 2007. Drs. McClellan and Fancuillo, both treating physicians, placed Claimant at end medical result on March 3, 2008 and April 1, 2008, respectively. Dr. McClellan testified that he would have done so earlier, but delayed his determination first because Claimant advised that Dr. Sengupta was considering further surgery, and later because Claimant was pursuing the possibility of a spinal cord stimulator.
19. With Dr. Boucher’s end medical result determination as support, the Department approved Defendant’s discontinuance of temporary disability benefits effective December 16, 2007.
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Video Surveillance
20. Claimant’s credibility as to the extent of his pain and his functional limitations was called into question by two episodes of video surveillance in late July and early August 2007. In the first episode Claimant was videotaped exiting a discount food store with a box of cat food, walking to his car upright, at a normal pace and without using his cane (which was draped over his arm), and bending to deposit the box in the trunk of his car. The second video depicts two men unloading lumber from a delivery truck in Claimant’s driveway. The quality of the video is poor, and it is unclear which of the two men is Claimant. Claimant admitted that he had lumber delivered for a flooring project, and did not deny that he was one of the two men depicted.
21. Drs. McClellan, Fancuillo and Boucher all viewed the surveillance videotapes. All remarked that Claimant demonstrated significantly greater physical capabilities and appeared to be in significantly less pain in the videos than what he had exhibited in the course of his office visits with each of them. All concluded that Claimant’s presentation on the videos was inconsistent with what they had observed previously.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issues in this claim involve first, whether Dr. Ross’ spinal cord stimulator treatment constituted reasonably necessary treatment for Claimant’s work injury, second, whether his ongoing use of narcotic pain medications was reasonable, and third, when it became appropriate to declare him at end medical result. All of these issues require expert medical evidence for their resolution.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
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Reasonable Necessity of Spinal Cord Stimulator
4. As to the spinal cord stimulator, it is important to note that the reasonableness of a medical procedure must be determined from the perspective of what was known at the time, not in hindsight. MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009); Jacobs v. Biebel Builders, Opinion No. 17-03WC (March 21, 2003).
5. Here, Drs. McClellan, Sengupta, Fancuillo and Boucher all opined that Claimant was not an appropriate candidate for a spinal cord stimulator. These doctors all had the benefit of having reviewed Claimant’s entire medical record. I find their opinions on the issue to be more credible than that of Dr. Ross. Not only did Dr. Ross fail to review Claimant’s pertinent medical history in its entirety, but also he may have been misled by Claimant, who was not as forthcoming as perhaps he should have been.
6. Claimant’s credibility also suffers as a result of the inconsistencies between his behavior when presenting for doctors’ appointments and his behavior as depicted on the surveillance videos. To the extent that the efficacy of treatment with a spinal cord stimulator depends on the extent of a patient’s intractable pain, the questions raised by the surveillance tapes are impossible to overlook.
End Medical Result and Ongoing Treatment
7. I find that Dr. McClellan’s March 3, 2008 end medical result date is the most appropriate here. Until the Dartmouth Hitchcock panel determined, in early 2008, that Claimant was not an appropriate candidate for a spinal cord stimulator, this remained a reasonable treatment option to pursue. Dr. Boucher’s end medical result date, which predated this determination by some months, was premature. As for Dr. Fancuillo, he provided no treatment between March and April 2008, but merely reviewed the surveillance videotapes. Dr. McClellan’s date, therefore, stands as the most credible.
8. As for ongoing treatment, I find that Claimant’s use of narcotic pain medications after April 1, 2008 was not reasonably necessary. It was on that date that Dr. Fancuillo determined that further use of these drugs would not be helpful. I find this conclusion to be appropriate under the circumstances and therefore credible.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits from the date these were discontinued, December 16, 2007 until March 3, 2008;
2. Interest on the above amount in accordance with 21 V.S.A. §664; and
3. Medical benefits covering all reasonably necessary and causally related services and supplies, including narcotic pain medications, until April 1, 2008.
4. Claimant’s claim for workers’ compensation benefits related to his ongoing treatment with Dr. Ross, including the implantation of the spinal cord stimulator, is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of August 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. R. v. Fletcher Allen Health Care (January 4, 2007)

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L. R. v. Fletcher Allen Health Care (January 4, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
L. R. Opinion No. 57-06WC
By: Margaret A. Mangan
v. Hearing Officer
Fletcher Allen Health Care For: Patricia Moulton Powden
Commissioner
State File No. W-03811
Hearing held in Montpelier on October 17, 2006
Record closed on November 20, 2006
APPEARANCES:
William B. Skiff, II, Esq., for the Claimant
Stephen D. Ellis, Esq., for the Defendant
ISSUES:
1. Is the treatment Claimant has received after she was placed at maximum medical improvement compensable?
2. If this is a compensable claim, what degree of permanent partial impairment is due?
EXHIBITS:
Joint I: Medical Records
Claimant:
1. Form 2 6/13/05
2. Form 2 5/23/05
3. Form 25 1/3/05
4. Interim Order
Defendant:
A Letter from Staff Attorney 3/24/06
B Department’s Referral to Hearing Notice
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STIPULATED STATEMENT OF UNCONTESTED FACTS:
1. Claimant is an employee within the meaning of the Vermont Employer’s Liability and Workers’ Compensation Act (Act).
2. Fletcher Allen Health Care (FAHC) is an employer within the meaning of the Act.
3. Claimant has no dependents within the meaning of the Act.
4. On November 14, 2004, Claimant suffered an injury while in the employ of FAHC.
5. At the time of her injury, Claimant was making $23.60 per hour.
6. Claimant’s average weekly wage for the twelve weeks prior to the injury was $981.44.
7. Claimant’s compensation rate as of December 6, 2004 was $654.45.
FINDINGS OF FACT:
1. Claimant is a CT scan technician at FAHC. Her daily routine includes preparing for a scan, starting intravenous fluids, injecting dyes, and sliding or lifting patients to and from the table.
2. In November 2004, Claimant worked four ten-hour days per week, including one weekend a month.
3. During a particularly busy weekend shift in November 2004, Claimant left work with neck and arm pain and numbness in her hands. She assumed the symptoms would resolve. However, when the symptoms persisted, she sought care from Dr. Pierre Angier on November 19, 2004.
4. On examination, Dr. Angier noted “some weakness of the right bicep and the right grip strength” and some diminished sensation in the C5-6 distribution (in the arm and thumb side of the hand). He diagnosed “cervicalgia with right upper extremity pain and paresthesias consistent with bulging or herniated disk” and he released Claimant to work in a sedentary capacity until rechecked. Later that day Susan Anderson, a Physician’s Assistant, also examined Claimant, noting tenderness at the trapezius and top of shoulder. Carpal tunnel testing was negative. Ms. Anderson diagnosed right upper extremity overuse strain.
5. A November 19, 2004 MRI revealed central disc protrusions at C2-3, C5-6, C6-7, with the most prominent at C6-7. The C6 nerve supplies the forearm and the radial (thumb) side of the hand; stimulation from C7 goes to the middle finger.
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6. In late November 2004, Claimant was referred for physical therapy with Heather Berg who identified specific goals for Claimant. They were: 1) to abolish right upper extremity radicular symptoms; 2) to decrease neck pain by 75% or more; 3) that she would be able to resume full duty work and sleep consistently without neck and arm pain; 4) that her upper back strength would be five out of five and right shoulder range of motion would reach normal limits. Time set for the goals was six to eight weeks.
7. By January 10, 2005 Claimant was back to her regular 10-hour shift with continued light duty restrictions.
8. On January 17, 2005, Claimant reported to Dr. Angier that she was having very little pain and stiffness in her neck. Range of motion was free. The doctor detected no spasm or tenderness.
9. Claimant then went to the Austrian Alps for a ski vacation for two weeks.
10. On January 31, 2005, shortly after her return, Claimant visited Dr. Angier with complaints of discomfort in her neck. On examination, she had guarding. Dr. Angier told her she could work without restrictions. She had stopped taking pain medication.
11. On February 11, 2005, Dr. Angier placed Claimant at medical end result. On examination, he found some restriction with range of motion, palpable guarding and a C7 “rib complex” on the right. He assessed her with a 5% whole person impairment based on DRE Category II from the AMA Guides to the Evaluation of Permanent Impairment, 5th edition.
12. On March 13, 2005 Claimant fell while skiing at Stowe. Afterwards she treated for an injury to her left leg; denying any injury to head or neck.
13. On April 19, 2005, Claimant returned to Dr. Angier for treatment for a flare up of her neck and shoulder symptoms. Dr. Angier noted sensory deficits in both hands and muscle guarding in the cervical spine. Claimant began taking pain medication. Muscle guarding was detected on examination. Range of motion was decreased.
14. Although Claimant is convinced that she did not hurt her neck and shoulders when she fell at Stowe, her report of symptoms and result of physical examination prove otherwise.
15. Dr. Angier assessed Claimant’s permanent partial impairment at 5% based on DRE category 2. That assessment is based on a diagnosis of a disc herniation. He uses the terms “disc herniation” and “disc bulge” interchangeably. However, Dr. Angier opined that Claimant would still be entitled to a 5% without proof of herniation because she had palpable guarding in the paracervical muscles extending to the trapezius.
16. On May 12, 2005, Dr. McLean opined that Claimant had no permanent partial impairment. Dr. McLean noted that the MRI ordered by Dr. Angier does not show a frank disc herniation; it shows only disc bulges.
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17. In July 2006, Dr. John Johansson, an osteopathic physician with an emphasis on orthopedic medicine, examined the Claimant at the request of the insurance carrier. He agreed with Dr. McLean that there was no permanent impairment related to the work related injury.
18. Dr. Johansson agrees that Claimant’s symptoms suggested a herniated disc, but that the MRI failed to confirm it. The MRI report states that disc protrusions were identified at C2-3, C5-6 and C6-7, with no cord compression and no compromise of the foramen. Dr. Johansson determined that Claimant met none of the criteria that would support a DRE Category 2.
19. In March 2006, Dr. Angier noted that Claimant had thoracic outlet syndrome that was “only symptomatic with specific activities.”
20. The carrier accepted that Claimant suffered a work related injury. However, it denies that she is entitled to any permanent partial impairment or to any benefits after she reached medical end result because a non work-related event intervened to break that causal connection.
21. Claimant submitted a claim for attorney fees of $5,499.00 and costs of $1,528.38.
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).
Causation
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 proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. The objective evidence shows that Claimant had reached medical end result in February of 2005, that is: she had reached a substantial plateau in the recovery process such that significant further improvement was not expected, regardless of treatment. See Workers’ Compensation rule 2.1200.
4. After Claimant’s skiing that winter, she presented to her physician with symptoms that were different from what she had before she reached medical end result. Pain levels were higher than they had ever been. Guarding was detected on examination. Some time later, she had thoracic outlet symptoms related to activities.
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5. Although progressive worsening of a work related condition is compensable, that is only “so long as the worsening is not shown to have been produced by an intervening nonindustrial cause.” 1 A. Larson and L.K. Larson, Larson’s Workers’ Compensation Law § 10.
6. In this case, a nonwork related worsening occurred, thereby severing the causal connection between Claimant’s symptoms and her work related injury.
7. Next, is the question of the degree of permanency, if any, due the Claimant. Even if I were to accept Dr. Angier’s 5% rating, it cannot be awarded because the permanency is not related to the work related injury. Dr. Angier based that rating on muscle guarding and diminished range of motion, symptoms that had resolved before she took the ski vacation. Again, the causal connection is lacking.
ORDER:
Therefore, based on the foregoing findings of fact and conclusions of law, this claim is DENIED.
Dated at Montpelier, Vermont this 4th 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.

T. B. v. University of Vermont

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T. B. v. University of Vermont
STATE OF VERMONT
DEPARTMENT OF LABOR
T. B. Opinion No. 42-08WC
v. By: Phyllis G. Phillips, Esq.,
Hearing Officer
University of Vermont
For: Patricia Moulton Powden,
Commissioner
State File No. X-05627
OPINION AND ORDER
Hearing held in Montpelier on June 23rd, June 25th and July 18th, 2008
APPEARANCES:
Todd Schlossberg, Esq., for Claimant
Stephen Ellis, Esq., for Defendant
ISSUES PRESENTED:
1. Has Claimant reached an end medical result for the compensable work-related injury she suffered on March 6, 2006 and if not, to what additional workers’ compensation benefits is she entitled?
2. Did Claimant suffer compensable injuries to her right elbow and/or hand causally related to her employment for Defendant, and if so, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Joint Medical Exhibit
Claimant’s Exhibit 4: July 15, 2005 First Report of Injury
Claimant’s Exhibit 5: Photographs of buffer
Claimant’s Exhibit 6: Photographs of floor cleaner
Claimant’s Exhibit 7: Photographs of vacuum cleaner and mops
Claimant’s Exhibit 8: Photographs of salt boxes
Claimant’s Exhibit 9: Photographs of entrance
Claimant’s Exhibit 10: Photographs of staircase
Claimant’s Exhibit 11: Curriculum Vitae, Jonathan Fenton, D.O.
Claimant’s Exhibit 12: Curriculum Vitae, John Macy, MD
Claimant’s Exhibit 13: Deposition of Adam Shafritz, MD taken on June 12, 2008
Claimant’s Exhibit 14: Curriculum Vitae, Adam Shafritz, MD
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Claimant’s Exhibit 15: Curriculum Vitae, Rayden Cody, MD
Claimant’s Exhibit 16: DVD, Dr. Levy IME 8/7/07
Defendant’s Exhibit A: Notice of Intent to Change Health Care Provider, March 16, 2007
Defendant’s Exhibit B: Notice of Intention to Discontinue Payments, approved 4/20/07
Defendant’s Exhibit C: Deposition of Gabrielle Mikula taken on June 12, 2008
Defendant’s Exhibit D: Deposition of Richard Morrison, MD taken on June 12, 2008
Defendant’s Exhibit E: Deposition of Cheryl Laskowski taken on June 10, 2008
Defendant’s Exhibit F: Deposition of William Farrell taken on August 25, 2006
CLAIM:
Temporary disability benefits pursuant to 21 V.S.A. §642
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 those terms are defined in Vermont’s Workers’ Compensation Act.
3. Claimant and her husband are Bosnian immigrants. They resided in Sarajevo during the Bosnian War, and emigrated to the U.S. in 1997. Both are now U.S. citizens. Claimant’s husband is proficient in English, but Claimant is not.
4. Claimant began working as a housekeeper for Defendant in 2001. Her job duties included mopping, waxing and buffing floors, vacuuming carpets, dusting, washing and other general cleaning activities.
5. On March 6, 2006 Claimant injured her right shoulder while lifting boxes of ice-melting salt at work. Claimant testified that she felt slow, gradual pain in her right chest and shoulder when she lifted the first box, and then a sudden, severe pain that “felt like it took my breath away” when she lifted the second box.
6. Claimant reported her injury to her supervisor, who completed a First Report of Injury form on March 8, 2006, stating “As she [was] lifting box of salt she felt pain at her right shoulder.”
7. Defendant accepted the claim for what it determined to be a “right shoulder strain” and began paying workers’ compensation benefits accordingly.
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Claimant’s Pre-Injury Medical History
8. In December 2001 Claimant was involved in a motor vehicle accident. She suffered injuries to her lower back, left shoulder, neck and left leg. Claimant also was diagnosed with post-traumatic stress disorder causally related to the collision. Ultimately Claimant and her husband recovered $198,000 in the personal injury litigation arising from the accident.
9. Claimant continued to complain of diffuse low back, neck, left shoulder and left arm pain for years after the motor vehicle accident. Her treating providers appear never to have pinpointed the exact source of her pain, particularly with respect to her left shoulder and neck symptoms. Many pointed to the language barrier as a complicating factor in terms of their ability to understand the nature of her complaints. It is likely that Claimant’s post-traumatic stress disorder also played a role in perpetuating her chronic pain symptoms. Claimant never was deemed an appropriate surgical candidate, and attempts at conservative therapy, including injections, physical therapy, psychological counseling, osteopathic manipulation and pain medications, all proved largely ineffective in addressing her symptoms. Despite her ongoing complaints of pain, however, for the most part Claimant continued to work throughout this period.
10. Claimant’s treatment providers consistently noted that her symptoms following the motor vehicle accident were confined entirely to her left side and did not include any right-sided neck, shoulder or arm pain. Claimant was continuing to treat for these left-sided symptoms at the time of the March 2006 work injury, and for some time thereafter as well.
11. In addition to the residual symptoms from her motor vehicle accident, in 2003 Claimant also began experiencing pain and numbness in her left wrist, hand and fingers. Electrodiagnostic studies revealed moderately severe left carpal tunnel syndrome, for which Claimant underwent endoscopic release in January 2004. Defendant accepted this injury as causally related to Claimant’s work, and paid workers’ compensation benefits accordingly.
12. At the time her left carpal tunnel syndrome was diagnosed, electrodiagnostic studies revealed mild carpal tunnel syndrome on the right as well. This condition was asymptomatic, however, and therefore was not treated.
13. In July 2005 Claimant reported to her supervisor that she felt pain and numbness in her right arm while vacuuming and mopping. The supervisor completed a First Report of Injury, but noted that Claimant did not seek medical treatment for these symptoms.
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Claimant’s Post-Injury Medical Treatment
14. Claimant continued to work following the March 6, 2006 lifting injury and did not seek medical treatment until days later. When she did, she presented to the Emergency Room on March 11, 2006 complaining of sharp right-sided chest and shoulder pain that she reported had begun “after lifting [a] heavy box of salt at work.”
15. Initially Claimant was diagnosed with cervical, thoracic and right shoulder muscle strain/sprains causally related to the lifting incident. Her symptoms did not respond to conservative treatment, however, and instead worsened and became more diffuse. Claimant complained of pain and weakness throughout her right shoulder and tightness in her neck. At times she was noted to have reduced range of motion, although this finding was not consistent. Claimant treated conservatively for these symptoms throughout 2006 and 2007.
16. Claimant also continued to complain of pain and numbness in her right elbow and hand. Electrodiagnostic studies completed on March 30, 2006 revealed nerve entrapments at both the wrist and the elbow. The medical evidence does not support any causal relationship between these entrapments and the March 6, 2006 lifting injury. Rather, Claimant’s medical providers reason that these symptoms were causally related to her repetitive use of heavy floor-cleaning machinery at work.
17. According to her treating physicians, Claimant has been unable to work since March 13, 2006.
18. In many respects, the progression of Claimant’s right-sided symptoms mirrored the progression of left-sided symptoms she had experienced following the 2001 motor vehicle accident. As had been the case before, furthermore, Claimant’s right-sided symptoms were as resistant to conservative treatment as her left-sided symptoms had been. Physical therapy, pain medications and injections all were ineffective at alleviating her symptoms.
19. In October 2007 an MRI study of Claimant’s right shoulder revealed a tear in her labrum. On March 20, 2008 she underwent arthroscopic surgery to repair the lesion, which was surgically diagnosed as a large Type II superior labrum anterior-posterior (SLAP) tear.
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20. Dr. John Macy, an orthopedic surgeon, performed the surgical repair of Claimant’s SLAP tear. Dr. Macy specializes in shoulder surgery and is the only fellowship-trained shoulder surgeon practicing in Vermont. Dr. Macy testified that he “feels very strongly” that Claimant’s SLAP tear was caused by the March 6, 2006 work-related lifting injury. In support of his opinion, Dr. Macy cited the following facts:
(a) The mechanism of injury – a sudden heavy overload to the shoulder caused by lifting – was consistent with a resulting SLAP tear;
(b) The symptoms Claimant experienced immediately after the incident, which Dr. Macy described as a “pop or snap” followed by deep-seated pain in the shoulder, decreased range of motion and weakness, all are classic signs of a SLAP tear;
(c) Claimant had no prior medical history indicating a pre-existing SLAP tear; and
(d) There is no evidence of any intervening event between the March 6, 2006 lifting incident and Dr. Macy’s discovery of the SLAP tear that might have caused such an injury to occur in the interim.
21. Both the medical records and Claimant’s testimony generally establish the facts relied upon by Dr. Macy in support of his opinion, with the possible exception of his description of Claimant’s symptoms as constituting “classic” evidence of a SLAP tear. In particular, the medical records do not substantiate Dr. Macy’s assertion that Claimant described feeling a “pop or snap” while lifting on March 6, 2006.
22. Claimant’s treating physicians all agree now that Claimant most likely suffered a SLAP tear on March 6, 2006 which remained undiagnosed until revealed via arthroscopic surgery. They cite numerous reasons why the tear was not discovered earlier. First, they note that clinical testing for labral tears often yields variable results, such that the only “gold standard” for diagnosing a tear conclusively is to view the shoulder arthroscopically. In addition, Claimant’s clinical presentation was complicated both by her language barrier and by the extreme muscle guarding she exhibited, which often precluded a thorough physical examination of her shoulder. Last, Claimant did not fit the profile of the typical SLAP tear patient, in that she was not engaged in the athletic-type throwing activities that most commonly give rise to such an injury.
23. Defendant’s expert medical witnesses agree that Claimant suffered a SLAP tear, but disagree that it was caused by the March 6, 2006 lifting incident. Drs. Backus, Levy and Nowak all opined that neither Claimant’s report of her symptoms immediately following the March 2006 incident nor her clinical picture thereafter reasonably support the existence of such a tear prior to the October 2007 MRI study. All concluded, therefore, that there must have been some intervening event, albeit unidentified, that caused the tear to occur.
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24. Drs. Backus, Levy and Nowak contend that Claimant suffered a muscle strain/sprain as a result of the March 6, 2006 lifting incident. Dr. Backus’ ultimate diagnosis was a cervical-brachial pain syndrome, which can cause referred pain from the neck and shoulder into the forearm. Dr. Backus concluded that Claimant had reached an end medical result for this injury at least by the time of his independent medical examination on August 10, 2006. Beyond that, Dr. Levy, a neurologist, found signs of “abundant symptom magnification” during his subsequent examination of Claimant, which Defendant’s psychiatric expert, Dr. Kelly, interpreted as evidence of deliberate malingering.
25. As of the date of the formal hearing, Claimant was continuing to recover from the March 2008 surgery and has not yet been determined to be at end medical result. Both Claimant and her husband testified that since the surgery Claimant has increased mobility in her shoulder. Dr. Macy’s most recent office note reflects that Claimant still complains of pain in her shoulder, but that her recovery is proceeding essentially as expected. The physical therapy notes document similar progress.
26. As for Claimant’s right elbow and wrist pain, treatment of the nerve entrapments found in the March 30, 2006 electrodiagnostic studies largely has been deferred pending her recovery from Dr. Macy’s shoulder surgery and further resolution of her shoulder symptoms. Notably, Claimant’s elbow and wrist symptoms have not improved despite being off work for more than two years. During that time, Claimant’s medical providers occasionally have remarked on repetitive non-work-related activities that reasonably might be aggravating her symptoms, such as rolling dough and vacuuming at home.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The dispute between the parties here involves a question of medical causation. Claimant’s medical experts contend that she suffered a labral tear in the March 6, 2006 lifting incident, for which she continues to treat and as a result of which she is unable to work. In contrast, Defendant’s experts assert that the labral tear did not occur in March 2006 but rather was caused by some unspecified subsequent event, not work-related, for which it bears no responsibility. Defendant contends that the injuries Claimant did suffer as a result of the March 2006 lifting incident – either a muscle strain/sprain and/or a cervico-brachial pain syndrome – have since resolved and that therefore it owes no additional workers’ compensation benefits beyond what it already has paid.
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3. This claim presents a frustrating reminder that medical science often is inexact, particularly with respect to forensic determinations of causal relationship. Symptoms do not always progress in textbook fashion, clinical tests do not always yield consistent results, and a patient’s recovery does not always proceed linearly. It is not surprising that well-qualified medical experts may have widely divergent opinions as to causal relationship.
4. 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). With these factors in mind, the key question is which expert medical opinion is the most credible? Bonenfant v. Price Chopper, Opinion No. 13-07WC (May 8, 2007).
5. As to the causal relationship between Claimant’s labral tear and the March 6, 2006 lifting incident, I find that Dr. Macy’s opinion is the most credible. As the only fellowship-trained shoulder specialist in Vermont, his qualifications are unassailable. His theory of causation is adequately supported by the medical records, and what outlying facts there might be are not so significant as to fatally undermine his conclusions.
6. In contrast, Defendant’s expert opinions rely either on the existence of some unspecified intervening event to account for Claimant’s labral tear or on conscious, deliberate malingering to explain her ongoing complaints. I find the former explanation too speculative to accept, and the latter one unsupported by the totality of the evidence, including Claimant’s credible demeanor at the formal hearing.
7. I conclude, therefore, that Claimant has sustained her burden of proving that the March 6, 2006 work injury caused her to suffer a labral tear in her right shoulder, for which she continues to treat and as a result of which she continues to be temporarily totally disabled.
8. Claimant has not sustained her burden of proof as to the causal relationship between her work activities and her right elbow and wrist neuropathies, however. The more credible medical evidence establishes that had these conditions been work-related, Claimant’s symptoms would have abated once she stopped working in March 2006. The fact that they did not abate at all, but rather progressed, is convincing evidence that they were not caused by Claimant’s work activities. Other non-work-related factors must have acted to perpetuate and aggravate them.
9. Claimant has submitted a request under 21 V.S.A. §678 for costs and attorney’s fees. An award of costs to a prevailing claimant is mandatory under the statute. As for attorney’s fees, these lie within the Commissioner’s discretion. As Claimant has substantially prevailed, I find that an award of both costs and attorney’s fees is appropriate. Pursuant to 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this decision within which to submit her claim for such fees and costs.
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ORDER:
Based on the foregoing, Defendant is hereby ORDERED to pay:
1. Ongoing temporary disability benefits causally related to Claimant’s right shoulder labral tear until she either reaches an end medical result or returns to work, whichever occurs first, in accordance with 21 V.S.A. §§642, 643 and 643a;
2. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s right shoulder labral tear, in accordance with 21 V.S.A. §640;
3. Additional workers’ compensation benefits, including permanent partial disability benefits and/or vocational rehabilitation benefits, proven to be causally related to Claimant’s right shoulder labral tear;
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs and attorney’s fees in an amount to be determined based on Claimant’s submission in accordance with Conclusion of Law No. 9 above.
6. Claimant’s claim for workers’ compensation benefits causally related to the nerve entrapments at her right elbow and wrist is hereby DENIED.
DATED at Montpelier, Vermont this 24th day of October 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. R. v. State of Vermont, Vermont State Hospital (January 4, 2008)

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G. R. v. State of Vermont, Vermont State Hospital (January 4, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
G. R. Opinion No. 36-07WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Vermont State Hospital For: Patricia Moulton Powden
Commissioner
State File No. X-02471
OPINION AND ORDER
Hearing held in Montpelier on July 10, 2007
Record closed on August 17, 2007
APPEARANCES:
Mark H. Kolter, Esq. for Claimant
Nathaniel Seeley, Esq. for Defendant
ISSUES:
1. Does Claimant have a compensable injury for her right knee?
2. If so, when did Claimant reach a medical end result?
3. Were Claimant’s medical treatments for her accepted back injury reasonable and necessary after June 15, 2006?
4. When did Claimant reach medical end result for her back injury?
5. What, if any, are the correct permanent impairment ratings for Claimant’s alleged knee and back injuries?
6. What benefits is Claimant entitled to?
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EXHIBITS:
Claimant’s Exhibits
1. Initial Injury Reports (4) which include Defendant’s Exhibit C
2. 5 Gallon Water Bottle
6. Unrelated Incident Reports, 1997-2005
7. Dr. Bucksbaum Curriculum Vitae
9. Form 27, Dated 2/9/06 with Claimant’s Letter
11. Medical Illustrations (11 pages)
12. Dr. Joseph Abate’s Medical Reports of Claimant
13. Central Vermont Medical Center Notes of Claimant
14. Central Vermont Medical Center Emergency Room Report of Claimant
Defendant’s Exhibits
A. Telephonic Reports, State of Vermont Workers’ Compensation
B. Nursing Education of Claimant (9 pages)
C Vermont State Hospital Employee First Report of Injury Form
D SOV Risk Management Division Claim Questionnaire
E. Independent Medical Evaluation Questionnaire
F. Dr. Robert Boucher’s Curriculum Vitae
Joint Medical Exhibit of Claimant’s Medical Records Filed 7/10/07
CLAIM:
1. All medical treatments for Claimant’s right knee.
2. TTD for right knee injury from 10/12/06, the date of knee surgery, until 5/18/07 when Claimant reached medical end result.
3. PPD of 5% whole person for right knee injury.
4. All medical treatments for Claimant’s low back injury from June 14, 2006 until August, 26, 2007.
5. PPD of 5% whole person for low back injury.
6. Attorney’s Fees and Costs.
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FINDINGS OF FACT:
1. On November 7, 2005, Claimant was an employee under the Worker’s Compensation Act and Vermont State Hospital was her employer under the Act. Claimant has her high school diploma and is a licensed nurse’s aide. She is 47 years old and married. She is psychiatric technician III. The highest level achievable is level IV. Claimant has worked at the State Hospital for 11 years.
2. The parties have stipulated that Claimant injured her lower back in the course of her employment at the Vermont Hospital on November 7, 2005. Claimant was found to be at medical end result for her back injury on June 14, 2006 by Defendant’s expert, Dr. Robert Boucher. Temporary Benefits for her back were terminated at the end of June, 2006. Claimant alleges that her back was not at medical end result and that she also injured her right knee at the time of her accident at work.
3. On November 7, 2005, Claimant was retrieving a bin weighing approximately forty pounds containing a patient’s belongings and located in a locked kitchen/storage room at the Vermont State Hospital. Employees kept a full five gallon water bottle to use as a doorstop when they needed to retrieve items and re-enter the room quickly. The door was opened by a key but locked automatically. The door opened inward from the hallway.
4. Claimant entered the locked room by pushing the door inward and to the left and using her right leg and the inside of her right foot slid the water bottle across the floor and pushed it to use as a doorstop.
5. When she entered the kitchen/storage room, Claimant searched through bins and had to bend, lift, squat and twist to move items around. After retrieving what Claimant believed to be the appropriate bin and carrying it, Claimant used her right leg and the outside of her right foot to push the water bottle out of the way to allow the door to close and lock.
6. While carrying the bin and then putting it down, Claimant felt a “twinge” in her back. Unfortunately, the bin was not the correct one, and Claimant had to return to the locked room and again start the process of unlocking the door and using her right leg and foot to move the water bottle in place. When she bent over to return the bin, Claimant felt an immediate tightening in her back. She could not move for several minutes. When she was able to stand, she left the room, and again pushed the full five gallon water bottle with her leg. She entered the corridor where she stood with her back to the wall experiencing shooting pain from her low back through her right buttock and leg. She completed an injury report and sought medical treatment the following day. By the time she sought treatment her symptoms were worse.
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7. Within a day of her injury and consistently thereafter, the Claimant reported pain running from her low back, down through her right buttocks and right leg, and experienced tingling in her right foot. A diagnosis of right leg sciatica and a possible herniated disc were made in the Emergency room at Central Vermont Medical Center the day following the incident. Dr. David Indenbaum, the emergency room doctor, noted that the Claimant complained of right leg pain on the November 8, 2005 visit. Claimant’s primary physician Robert Davidson, Certified Physician’s Assistant (PA-C), initially felt these diagnoses were reasonable and opined that further testing was not immediately needed.
Claimant’s Knee Injury
8. Claimant was out of work after her injury. She was on bed rest and medicated with Percocet which, at first, masked the extent of her knee injury. Her back injury was an accepted claim and the insurance company approved treatments and benefits. When Claimant began physical therapy her knee symptoms increased which led her physical therapist to detect Claimant’s knee injury. This led her to see her regular provider, Robert Davidson, PA-C, who examined her knee on December 12, 2005. He ordered an MRI which showed a medial collateral tear in her right knee.
9. Robert Davidson, PA-C, has been Claimant’s primary care provider for approximately ten years. He has treated her extensively before and after her injury. Mr. Davidson diagnosed Claimant’s right knee injury as a torn medial collateral ligament. Prior to Mr. Davidson’s treatment for Claimant’s right knee at Vermont State Hospital in 2005, he had not treated her for any knee injuries. Mr. Davidson believed it medically logical that the leg motions Claimant used to move the water bottle caused the injury to her knee. He determined the knee injury to be work related.
10. Claimant also saw Dr. Christian Bean, an orthopedic surgeon, who also concluded that her right knee injury was work related. Dr. Bean stated that the acute symptoms and presentations of the Claimant support a medial collateral ligament injury from a work event, not overuse or chronic use.
11. Dr. Joseph Abate, an orthopedic surgeon, performed arthroscopic right knee surgery on October 12, 2006 on Claimant’s right knee. Dr. Abate’s diagnosis was similar to Dr. Bucksbaum’s diagnosis which follows. Claimant again underwent physical therapy after surgery. Claimant could not return to work until May 21, 2007.
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12. Dr. Mark Bucksbaum, a Certified Independent Medical Examiner as well as a Diplomat of the American Board of Physical Medicine and Rehabilitation, performed two Independent Medical Examinations of the Claimant’s injuries. He conducted comprehensive examinations of Claimant’s knee and reviewed all available records. He diagnosed Claimant’s mechanical low back pain and three post traumatic knee injuries. He diagnosed a medial collateral tear, patello femoral arthritis and medial plica syndrome. Dr. Bucksbaum opined that the arthritis was caused by trauma to the knee and not by natural aging. His diagnosis was not based solely on the MRI, but also from Claimant’s physical examination which showed Claimant was unable to rock back on her heel, unable to complete a gait test and her stress testing showed laxity in her knee and her explanation of how the injury occurred.
13. Dr. Bucksbaum based his opinion on the objective medical evidence as well as his own medical examination and years of experience treating knee injuries. His opinion was, in part, based on an MRI of Claimant’s knee which was taken on December 15, 2005. Based on his analysis of the MRI, Dr. Bucksbaum concluded that there was a complete tear of the medial collateral ligament with edema present in the surrounding tissue. He also wrote in his notes “1. Small osteochondritic defect anterior aspect lateral femoral condyle. 2. tear medial collateral ligament”.
14. Dr. Bucksbaum also spoke at length to the Claimant about how her injury occurred. He stated that the description she gave him of her activities on December 7, 2005 were consistent with the injuries she sustained. In particular, Dr. Bucksbaum explained that the knee is not mechanically able to move well laterally. It is made to move forward and backwards. He finds that lateral movements compromise the knee.
15. Dr. Bucksbaum has extensive experience in treating knee injuries. He has treated over a thousand cases similar to the Claimant’s injury. Prior to his medical training and career, he was an engineer who helped develop certain medical imaging devices. He is an expert in knee injuries. He found the Claimant’s knee injuries work related to a degree of medical certainty.
16. Dr. Bucksbaum also explained the knee injury’s relationship to Claimant’s back injury and the reason why the knee injury was not immediately apparent. The day after Claimant’s injury the doctors thought Claimant’s knee pain was related to her back injury. Dr. Bucksbaum agreed with Robert Davidson’s assessment as well as with Dr. Bean’s opinions. He explained why it took some time to uncover the separate knee injury and found it reasonable.
17. Both Dr. Mark Bucksbaum and Mr. Davidson, PA-C, found Claimant at medical end result on May 18, 2007 for her knee. Six months was considered a normal recovery period for knee surgery for a woman of Claimant’s height and weight.
18. Dr. Bucksbaum gave the Claimant a 5% whole person permanent impairment rating for Claimant’s right knee. He chose the most conservative rating under current AMA Guides. Dr. Bucksbaum gave a lengthy credible explanation for his rating.
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19. Dr. William Boucher performed two medical examinations on the Claimant’s knee for the defendant. The first was on March 9, 2006. Dr. Boucher opined that Claimant’s right knee problem was a right medial collateral ligament strain. He determined that the strain was not work related because the mechanism of the injury as described by the Claimant could not have reasonably caused a right knee injury. However, Dr. Boucher, on cross examination, did not fully understand the mechanics of how the Claimant’s injury occurred. In Dr. Boucher’s first medical report he wrote that the right knee injury pre-existed Claimant’s work related injury. At the hearing, Dr. Boucher stated that the Claimant’s knee injury was caused by arthritis. Dr. Boucher did not view the MRI film but determined that it must be in error.
20. Dr. Boucher has sixteen years experience in performing Independent Medical Evaluations and Permanent Impairment Ratings. He is Board Certified in Preventive Medicine, Occupational Medicine and as an Independent Medical Examiner. He co-wrote a portion of the A.M.A. Guidelines with Christopher Brigham, M.D. Currently, Dr. Boucher spends 90% of his time performing Independent Medical Examinations.
21. Dr. Boucher opined that Claimant’s knee injury was unrelated to her incident in November of 2005 at work. He did not believe that the knee had an MCL tear based on Dr. Abate’s surgery notes and the way in which he understood the injury to have occurred.
22. Dr. Boucher’s examination of the Claimant on June 14th, 2006 followed her branch block injection administered to her the prior week to relieve her pain. Dr. Boucher, however, did not find the injection affected his evaluation of the Claimant.
23. Dr. Boucher also opined in his hearing testimony that the Claimant had chronic right calf atrophy but his report on March 9, 2006 stated “there was no muscle atrophy”.
Claimant’s Back Injury
24. As previously stated, the insurance company for the Vermont State Hospital, found Claimant’s back injury compensable and paid for treatment until the end of June, 2006. Her original diagnosis from the Emergency Room physician, Dr.Indenbaum, was that there was a question of whether the Claimant had a disc herniation. It was discovered after a CT scan of the spine that the Claimant had a mild annular bulge of the L4-5 disc. Her treating provider, Robert Davidson, determined that she had lumbar strain with right leg radiculopathy. It was recommended that Claimant receive physical therapy and manual therapy as well as medications. Claimant engaged in physical therapy as well as aquatic therapy. Neither was particularly helpful to her. However, as of May 2, 2006, she was still experiencing pain. The end date for compensable treatment of the Claimant’s back injury was based on Dr. Boucher’s examination.
25. After Dr. Boucher’s examination of Claimant’s back on March 6, 2006 he determined that she had a lumbar sprain and was not at maximum medical end result. He determined that exercise and further treatment would improve her condition.
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26. On June 14, 2006, Dr. Boucher did another medical examination of the Claimant and determined that her lumbar strain had resolved. However, Claimant was still having back pain. Dr. Boucher believed that the Claimant was depressed and magnifying her symptoms. He did state on cross examination that symptom magnification does not mean that the Claimant was falsifying her symptoms. Dr. Boucher could not account for why other doctors believed her to still need treatment unless she had suffered another back injury. However, the facts are clear that she did not have another back injury.
27. On June 29, 2006, Dr. Michael Borrello, from the Pain Management Division of Fletcher Allen Health Care stated that the Claimant had not yet reached medical end result for her back. He and Dr. Timothy Waring administered bilateral medial branch blocks for pain in Claimant’s lower back on June 8, 2006. Dr. Borrello opined on June 29, 2006 that a continuation of radiofrequency procedures would be helpful to the Claimant to control her pain. Claimant had another treatment on July 6, 2006.
28. Claimant had a work enhancement evaluation done at Fletcher Allen Health Center’s Work Enhancement Rehabilitation Center (WERC) on July 18, 2006. She was referred by Dr. Robert Monsey. It was determined by this evaluation that the Claimant was functionally limited by pain. She also presented with significant psychological distress that appeared to be limiting her ability to cope with her current functional limitations. The Claimant was determined to be a good candidate for the three week program offered at WERC.
29. Dr. Bucksbaum believed the Claimant would have benefited from more medial branch block treatments as well as the Level 4 Functional Restoration Program. However, the insurance company would not pay for further treatment due to Dr. Boucher’s opinion. Dr. Boucher did not find the treatment medically necessary even though he believed the Claimant had symptom magnification. The WERC program would have addressed these issues. Dr. Monsey, Dr. Borrello and Dr. Bucksbaum all disagreed with Dr. Boucher’s opinion.
30. Dr. Bucksbaum stated that Claimant’s low back injury was mechanical and that the musculature system problem was affecting the ligaments in her back. He stated that these types of injuries to the low back comprise about 85% of his practice. He found nothing abnormal or atypical or unreasonable about the Claimant’s treatment for her back. Dr. Bucksbaum also stated that permanent impairments can arise from mechanical low back pain.
31. Dr. Bucksbaum and Robert Davidson both found Claimant’s medical end result for her low back injury to be August 26, 2006. Dr. Bucksbaum testified in detail about how he determined, using the current AMA Guides that Claimant had a 5% permanent impairment from her back injury.
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32. Attorney’s fees for Claimant were requested in the amount of 160 hours at $90.00 per hour. Defendant objected that some of Claimant’s attorney’s fees appeared to be “blocked billed”. Although the defense attorney argues that some of the matters billed for were not disputed issues by the time the case got to hearing, they still had to be dealt with until resolved. After reviewing the Claimant’s attorney’s billing submission in detail and in consideration of the fact that the bill had voluntarily been reduced, the Department finds the bill is reasonable and necessary in this case. Para-legal billing of 11 hours at $60.00 per hour is also found reasonable and necessary. Although the Claimant requested $65.00 per hour, Workers’ Compensation Rules cap para-legal hours at $60.00 per hour.
33. Claimant’s attorney submitted a bill for costs in the amount of $7,476.18. Defendant objected to this amount both on the issue of whether the costs were necessary and that some exceeded the amount allowable under Department rules. Department rules allow medical professionals to be paid at the rate of $300.00 for the first hour with an additional $75.00 for every 15 minute time period. Thus, two hours of medical testimony would be paid at the rate of $600.00. Claimant’s bills for Dr. Bucksbaum exceed this rate. Claimant’s attorney needs to adjust his costs to reflect Department Rule 40. The other costs are determined reasonable and necessary.
CONCLUSIONS OF LAW:
1. It is uncontested that Claimant suffered a compensable injury to her back on October 7, 2005. However, Defendant is contesting treatment of Claimant’s back and permanency after Dr. Boucher found her at medical end result on June 14, 2006 with no permanent impairment.
2. Defendant is also contesting any benefits for Claimant’s alleged knee injury. On June 15, 2006, Dr. Boucher found no objective evidence of Claimant’s knee injury. Dr. Boucher opined that to the extent Claimant had a knee injury; it was resolved by June 15, 2006.
3. In Workers’ Compensation cases, the Claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v Fairbanks, 123 Vt. 161 (1962). Once an injury has been accepted as an employment injury, however, the defendant then bears the burden of proof to show subsequent injury-related treatments are not reasonable and necessary under 21 V.S.A. § 640(a). See, e.g. J.C. v. Eveready Battery Co., Op. No. 12-07WC (April 3, 2007).
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4. In the instant case, the medical opinions are conflicting. To evaluate the expert evidence and choose between conflicting expert opinions, the Department traditionally looks to the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts including professional training and experience. Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998).
5. The medical experts in this case that determined Claimant’s knee injury to be work related are primarily her treatment provider, Robert Davidson, Dr. Joseph Abate and Independent Medical Examiner, Dr. Mark Bucksbaum. Robert Davidson, PA-C was Claimant’s medical provider for approximately ten years and knew her medical history as well as her current medical problems. Dr. Bucksbaum’s qualifications are well documented in the findings of fact. Dr. Abate, an orthopedic surgeon, operated on the claimant’s knee which resolved her knee problems. The only physician who disagreed was Dr. Robert Boucher, a medical examiner hired by the Defendant, who found the knee injury was not work related. Dr. Boucher has excellent credentials. However, in this case, Dr. Boucher did not spend as much time with the Claimant as the other experts did, he did not have all the medical records and did not review the MRI of the Claimant’s knee. He was also the only medical expert who saw the Claimant only a week after she had been given an injection for her pain that may have masked some of her symptoms. Dr. Boucher had placed Claimant at medical end result prior to her knee surgery and physical therapy.
6. Therefore, based on all of the evidence, the medical expert’s testimony and their qualifications as well as their relationship with the Claimant, the Department determines that the Claimant’s knee injury was compensable and the date of medical end result for her knee was May 18, 2007. The Claimant is found to have been totally disabled from work from the date of her right knee surgery by Dr. Abate on October 12, 2006 until May 18, 2007. All of the treatments for Claimant’s right knee are determined reasonable and necessary as testified by Dr. Mark Bucksbaum who was found to be the most persuasive on this issue. Claimant is also determined to have a 5% permanent impairment rating for her right knee as Dr. Bucksbaum determined based on the current AMA Guidelines.
7. The defendant did not meet his burden of proof regarding the medical end result date for the Claimant’s low back or her permanency rating. Dr. Boucher found medical end result at June 14, 2006. Claimant’s treatment provider and medical expert were found more credible regarding the reasonableness and necessity of further treatments for Claimant’s back. This is particularly true when combined with Dr. Monsey and Dr. Borrello’s assessments. Medical end result is found to have been achieved for Claimant’s back on August 26, 2006. The department also finds Dr. Bucksbaum’s determination of 5% permanency more persuasive than Dr. Boucher’s 0% finding for all of the reasons previously stated.
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ORDER
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Temporary Total Disability Benefits from the October 12, 2006 until May 18, 2007 for Claimant’s right knee injury,
2. Medical benefits for Claimant’s right knee from October 12, 2006 through May 18, 2007.
3. Medical Benefits for Claimant’s low back from June of 2006 until August 26, 2006,
4. Partial Permanency Disability in the amount of 5% of the whole person for Claimant’s right knee,
5. Partial Permanency Disability in the amount of 5% for the whole person for the Claimant’s lower back injury,
6. Attorney’s fees for 160 hours at $90.00 per hour and para-legal fees for 11 hours at $60.00 per hour which were found reasonable and necessary,
7. Costs in the amount of $ 7,476.18 minus expert fees adjusted in accord with Department Rule 40.
DATED at Montpelier, Vermont this 4th 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. §§ 670, 672.

J. D. v. Putney Paper Company (April 8, 2008)

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

J. D. v. Putney Paper Company (April 8, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. D. Opinion No. 13-08WC
By: David J. Blythe
Hearing Officer
v.
For: Patricia Moulton Powden
Commissioner
Putney Paper Company State File No. T-12815 (Old)
APPEARANCES:
Charles L. Powell, Esq., for the Claimant
J. Justin Sluka, Esq., for the Defendant
ISSUES PRESENTED:
Claimant’s claim presents two issues for determination by the Commissioner:
1. Is Claimant entitled to TTD benefits commencing on March 17, 2006 and continuing thereafter until Claimant has reached medical endpoint or is able to return to suitable employment?
2. Has Claimant received “wages” within the meaning of 21 VSA §650(a) in the twelve weeks preceding the compensable injury? For the purposes of this inquiry, it is Claimant’s position that the relevant twelve week period should be the twelve weeks which preceded the November 1981 injury. It is Defendant’s position that the twelve week period should be the twelve weeks which preceded the onset of disability on March 17, 2006.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
I. INTRODUCTION
This matter is before the Vermont Commissioner of Labor (Commissioner) on Claimant’s claim for temporary total disability (TTD) benefits commencing on March 17, 2006 and continuing thereafter during the period of total temporary disability. Defendant contests Claimant’s entitlement to TTD benefits because Claimant did not earn wages within the meaning of 21 VSA §650(a). The parties waived an evidentiary hearing and submitted the matter to David J. Blythe, Contract Hearing Officer and designee of the Commissioner of the Vermont
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Department of Labor, on the record and on each party’s pleadings.
Except as may be noted otherwise, none of the below-stated facts are contested by the parties.
Actions of representatives of the Vermont Department of Labor referred to below are hereinafter referred to, for convenience, as acts of the Commissioner.
II. EVIDENTIARY EXHIBITS AND SUBMISSIONS
The parties submitted a joint exhibit of medical records (Joint Medical Exhibit dated April 27, 2007).
In addition, Defendant submitted the following copied materials with its Proposed Findings of Fact and Conclusions of Law dated May 3, 2007:
Exhibit A: Deposition of Joseph Dupuis, dated April 13, 2006
Exhibit B: Deposition of Dr. Cecile Beehler, dated April 14, 2006
Exhibit C: Form 27, approved December 13, 2005
Exhibit D: Letter from Denise J. Miller, Travelers Cas & Surety Company, to VT Department of Labor, dated July 27, 2006
Exhibit E: Letter from Charles L. Powell, Esq. to VT Department of Labor, dated July 3, 2006
Exhibit F: Letter from VT Department of Labor to Denise Mitchell and Charles Powell, Esq., dated March 17, 2006
Exhibit G: Letter from VT Department of Labor to Charles Powell and Andrew Boxer, dated May 25, 2006
Exhibit H: E-mail from Wesley M. Lawrence to J. Justin Sluka, dated March 23, 2007 (with previous emails included therein)
Exhibit I: Letter from Charles L. Powell, Esq. to VT Department of Labor, dated October 4, 2006
Exhibit J: Letter from VT Department of Labor to Charles L. Powell, Esq. and Wesley Lawrence, Esq., dated October 11, 2006
Exhibit K: Letter from VT Department of Labor to Charles L. Powell, Esq. and Wesley Lawrence, Esq., dated October 30, 2006
The Joint Medical Exhibit and Exhibits A through K are received into and made a part of the record.
(a) Judicial notice is taken of all forms and correspondence in the Commissioner’s file on this claim, including without limitation those forms and correspondence submitted by the parties and which were sent to the parties by or on behalf of the Commissioner.
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III. FINDINGS OF FACT
1. On or about November 24, 1981, Claimant was employed by Defendant. At that time and date, Claimant was injured within the scope of his employment.
2. Claimant’s original injury was in the nature of a “degloving” injury to his left hand and upper left extremity (“Initial Injury”). Claimant has since developed medical problems with his right upper extremity as a consequence of the Initial Injury. See Findings 16, 18, 20-22 below. Claimant’s Employment History
3. Following the Initial Injury, Claimant was unable to work for a period of several years. Exhibit A at 14.
4. Claimant returned to work in approximately 1988, first as a heavy equipment operator and then as a supervisor for F. W. Whitcomb Company. Exhibit A at 13-14.
5. Claimant worked for F. W. Whitcomb Company until approximately 1998. Exhibit A at 17-19.
6. In approximately 1998, Claimant worked for approximately three months at Okemo Mountain, operating a compressor panel. Exhibit A at 37-38.
7. Although the record is not precisely clear about the dates, in approximately 1998 -1999 Claimant worked for Moulton Construction Company as a front end loader operator. Exhibit A at 58.
8. In the Winter of 1999, Claimant received his commercial driver’s license (CDL). Exhibit A at 40.
9. In approximately 2000, Claimant purchased a tractor-trailer truck and worked as a contractor for Manchester Motor Freight for approximately two and one-half years. Exhibit A at 46.
10. In 2000 or 2001, Claimant was employed by Pike Industries as a reclaim foreman. Exhibit A at 61.
11. In 2001, Claimant left employment on a medical leave due to an infection in his left hand, which required a partial amputation in 2004. Exhibit A at 66-67, Joint Medical Exhibit at 19 VR 2200.
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12. In the Spring of 2003, Claimant (after a period of vocational rehabilitation; see Findings Nos. 32-34 below), Claimant was employed for three to four months as an oil burner technician for Irving Oil. This period of employment was Claimant’s last employment as of the date of submission of his claim. Relevant Medical History
13. Between 1981 and the present, Kenneth A. Marshall, MD, has been Claimant’s principal treating surgeon. Joint Medical Exhibit at 11 generally.
14. Between 2001 and 2005, Dr. Marshall performed a series of surgeries on Claimant’s left hand and left upper extremity. Id. There is no dispute as to the compensability of those treatments or the periods of disability associated therewith.
15. In November 2005, Dr. Marshall placed Claimant at medical endpoint for his left hand/left upper extremity condition. Id. at 11 KAM 15400.
16. By September 2005, Claimant had begun to experience problems with his right upper extremity. On September 29, 2005, following a referral by Dr. Marshall, Claimant was examined by Elizabeth A. McLarney, MD, an orthopedic surgeon. Dr. McLarney reported that Claimant had begun to experience problems with his right upper extremity due to overuse caused by overcompensating for years for his inability to use his left arm. Joint Medical Exhibit at 7 EAM 100. In her report of that date, Dr. McLarney reported that Claimant “cannot do a job which requires significant manual labor and I believe a job which is in the classification of sedentary or light would be appropriate for him. Vocational rehab is definitely necessary . . . .” Id. (emphasis added). Dr. McLarney also stated that “I do not think that there is a need for a functional capacity evaluation as I think the work restrictions are fairly well presented.” Id.
17. Cecile C. Beehler, MD, became Claimant’s primary treating physician in 2001. Id. at 10 generally; also Deposition of Dr. Cecile Beehler dated April 14, 2006. Exhibit B at 7-8.
18. In November 2005, Dr. Beehler determined that Claimant was experiencing problems with his right arm due to overuse syndrome related to the injury to Claimant’s left upper extremity. Id. at 10 CCB 4400. Also Exhibit B at 35.
19. On December 13, 2005, the Commissioner approved the discontinuance of TTD benefits based upon Dr. Marshall’s report (see Finding No. 15 above).
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20. On January 18, 2006, Dr. Beehler wrote, in a letter to Claimant’s counsel, that based upon a reconsideration of his own treatment and evaluations of Claimant, as well as the evaluations of Drs. McLarney and Orrechio, it was his opinion that Claimant’s right shoulder condition was related to the original 1981 workplace injury. Although Dr. Beehler did not speak specifically to whether or not that condition constituted total disability from employment, it is reasonable to infer from his letter, and from his incorporation into the basis for his opinions the evaluations of Drs. McLarney and Orrechio, that as of at least the date of Dr. McLarney’s examination of September 29, 2005, Claimant was disabled from employment reasonably available to him, at least to the extent that Claimant was justified in not resuming his search for work at that time. Id. at CCB 4400.
21 On January 10, 2006, following a referral by Dr. Beehler, Claimant was examined by Edward J. Orrechio, MD, a neurologist. Dr. Orrechio reported that Claimant had several medical issues with his right upper extremity, all related to overuse of the right arm, which is related to the original injury to the left upper extremity. Dr. Orrechio diagnosed and reported that Claimant had (1) a primary shoulder issue, (2) epicondylitis and (3) carpal tunnel syndrome. Id. at 6 EJO 100.
22. On February 22, 2006, at Defendant’s request, Claimant was examined by Donald M. Kinley, MD, an orthopedic surgeon (Kinley IME). Dr. Kinley concluded that Claimant was suffering from overuse syndrome of the right upper extremity and required carpal tunnel surgery. Dr. Kinley specifically opined that Claimant should have work capacity after surgery. Id. at 3 DLK100, 300 (emphasis added). This opinion of the IME physician is consistent with Claimant’s not actively seeking work (see Finding No. 20 above) or continuing with vocational rehabilitation efforts (see Finding No. 40 below).
23. On March 17, 2006, Dr. Beehler placed Claimant at total temporary disability until the carpal tunnel surgery and post-operative recovery was complete. Id. at 10 CCB 4700.
24. On August 23, 2006, Dr. McLarney performed carpal tunnel surgery on Claimant’s right wrist. By January 16, 2007, Claimant had completely recovered from this procedure. Id. at 7 EAM 610.
25. On January 16, 2007, Dr. McLarney examined Claimant for continuing pain in his right shoulder. At that time, Dr. McLarney recommended surgery on Claimant’s right shoulder. Id.
26. On April 13, 2007, Dr. McLarney performed surgery on Claimant’s right shoulder. As of the date of submission of Claimant’s claim to the Commissioner, Claimant apparently had not recovered fully from that surgery.
27. For the purposes of this Order, the total temporary disability which commenced on
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March 17, 2006 continues as of the date hereof. Relevant Vocational Rehabilitation
28. In 2002, Defendant’s workers compensation carrier referred Claimant to Intracorp for vocational rehabilitation. Claimant began to work with Laurie T. Langelier, MA, CRC of Intracorp. Joint Medical Exhibit at 19 VR 100.
29. On October 12, 2002, Ms. Langelier completed a Form VR9 Entitlement Assessment which provided, in pertinent part, the following summary of Claimant’s medical status:
At that time he underwent various surgeries including skin grafts, neural graft, index finger ray resection, tip amputations to the long and ring fingers. In October 2001 Mr. Dupuis suffered from chronic infection of the tip of the ring finger and underwent surgery including resection of remnants of the nail bed. On May 17, 2002 he underwent long finger MCP joint arthroplasty. His treating physician is Dr. Kenneth Marshall. He is currently involved in physical therapy programs with Turner Hand Therapy and Crown Point Physical Therapy. Mr. Dupuis has a release to return to work with restrictions keeping in mind diminished sensation issues, limited grip, safety issues around prolonged exposure to cold or to direct mechanical stresses to the hand “skin”.
Id. at 19 VR 300.
30. Ms. Langelier summarized Claimant’s education and work skills as follows:
EDUCATION & WORK: Mr. Dupuis reports he completed the 10th grade. He has not obtained his GED. He reports that he has a Class A Commercial Drivers License.
SKILLS ANALYSIS: Machine Operator, General: DOT code 649.685-070 Physical Demand Medium Skills Classification: Semi-skilled SVP3.
Tractor Trailer Truck Driver: DOT code 904.383-010, physical demand: Medium Skills Classification: Semi-skilled, SVP4.
Construction Worker I: DOT Code: 869.664-014, Physical Demand: Heavy, Skills Classification: Semi-skilled, SVP4 (Pike Industries, Frank Whitcomb and Moulton Construction).
Id. at 19 VR 400.
31. At that same time, Ms. Langelier found Claimant was “…entitled to vocational rehabilitation services as he is not able to return to suitable employment utilizing his
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previous training or experience.” Id. at VR 400.
32. In December 2002, Ms. Langelier prepared a return to work plan (then referred to as Individual Written Rehabilitation Plan, hereinafter, “First VR Plan”), setting a vocational goal proposing, in pertinent part, as follows:
“…that Mr. Dupuis be provided with training through the New England Fuel Institute which upon his successful completion will result in his return to suitable employment as an Oil Burner Servicer and Installer.”
Id. at VR 600.
33. Consistent with the First VR Plan, Claimant successfully graduated from New England Fuel Institute. Claimant found employment with Irving Oil. On May 10, 2003 vocational rehabilitation services under the First VR Plan were closed on a Form VR5. Id. at VR 2000.
34. Following surgery in May 2004 involving amputation of a part of his left hand, Claimant was re-evaluated for his ability to continuing working as an oil burner technician. On June 14, 2004, Ms. Langelier reviewed a functional capacity evaluation and found that Claimant was unable to perform the functions required of an oil burner technician. Id. at VR 2200.
35. On January 31, 2005, the Commissioner approved a second work plan (“Second VR Plan”) involving Claimant taking courses in computers and medical technology at New Hampshire Community Technical College (NHCTC). Id.
36. On May 9, 2005, the Commissioner approved an amended work plan (“Amended Second VR Plan”) involving Claimant taking anatomy and physiology courses at NHCTC in anticipation of applying for a position at Dartmouth Hitchcock Medical Center. Id. at VR 2500.
37. On August 29, 2005, the Commissioner approved a subsequent amendment to the Second VR Plan involving Claimant continuing to take medically-related and mathematics courses (“Second Amendment to Second VR Plan”). Id. at VR 2600.
38. On October 17, 2005, Ms. Langelier noted that Claimant was having trouble with his college courses due to an inability to effectively take notes in class, specifically due to problems with his right arm. Id. at VR 4100.
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39. On January 6, 2006, Ms. Langelier noted that Claimant had successfully completed the mathematics course but that before pursuing further vocational rehabilitation, Claimant intended to complete medical evaluation by Dr. Orrechio scheduled for January 10, 2006. Id. at 4700.
40. Following examinations of Claimant by Dr. Orrechio on January 10, 2006 (see Finding No. 19 above), Dr. Kinley on February 22, 2006 (IME; see Finding No. 20 above) and Dr. Beehler on March 17, 2006 (see Finding No. 21 above), Dr. Beehler placed Claimant at total disability until the completion of the right carpal tunnel syndrome treatment. Id. at 10 CCB 4700. All of these physicians found that Claimant’s disability was directly related to Claimant’s November 1981 workplace injury.
41. Claimant’s decision to discontinue vocational rehabilitation efforts in January 2006, pending completion of the medical evaluation and treatment, was reasonable and justified.
42. Claimant reached a medical endpoint for the carpal tunnel syndrome on January 16, 2007. See Finding No. 24 above. However, he was still disabled from employment due to the ongoing shoulder problems. See Findings Nos. 26 and 27 above.
43. Claimant last received wages from active employment in the Spring of 2003. See Finding No. 12 above.
44. Claimant’s average weekly wages from employment at the time of the original workplace injury in November 1981 were $1,030.00. See Form 25 dated November 24, 1981 and Form 25 dated November 5, 2001.
45. Claimant has not made more than an average weekly wage of $1,030.00 from employment at any time since the date of injury in 1981.
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Prior Orders of the Commissioner
46. On October 11, 2006, the Commissioner issued an Order (Exhibit J) which provided, in pertinent part, as follows:
The general rule, in regards to an employee who claims temporary total disability after leaving an employer, is that a claimant who voluntarily quits his job for reasons unrelated to the injury is not entitled to temporary total disability. However, the exception stated in Pfalzer, Opinion No. 23-01WC (2002) citing Andrew vs. Johnson Controls, Opinion No 3-93WC (1993) is that: “To avoid harsh results, there is an exception to the general rule for a claimant who can demonstrate:
1. A work injury;
2. A reasonably diligent attempt to return to the work force; and
3. The inability to return to the workforce or that return at a reduced wage is related to [the] work injury and not other factors [unrelated to the work injury].” Please note that the claimant has clearly established that he suffered a work injury and that although the claimant may not have demonstrated that he was actively searching for employment, he did however, actively participate in vocational rehabilitation until he began to experience difficulty completing the program because of the work injury. The claimant offered Dr. Beehler confirmation in a written report and Form 20 Work Capabilities Form that the worsening of the work injury and the overuse of his right arm had progressed; the claimant was again temporarily totally disabled.
In addition, the claimant was unable to obtain gainful employment because of the work injury. The claimant has no use of the left arm and the right arm is limited due to the years of overuse compensating for loss of the left. Therefore, I find the claimant is entitled to temporary total disability benefits from 3/17/06 through 5/26/06. (The carrier has been ordered already to pay benefits from 5/26 and continuing until the claimant reaches medical end.) Since the claimant had no wages prior to the date of disability, Pfalzer directs that the benefits be calculated based on the pre-injury wages plus any additional cost of living increases that could have accrued in the interim.
Therefore the carrier, …. is ORDERED to pay benefits from 3/17/06 through 5/26/06 effective immediately and no later than ten days from the date of receipt of this letter.
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47. On October 30, 2006 (Exhibit K) , the Commissioner affirmed the October 11, 2006 Order, stating, in pertinent part, as follows:
The Defense does not dispute that the Claimant was totally disabled during this period as a consequence of his 1981 work injury; rather, the defendant argues that, because the claimant earned no wages in 12 weeks prior to March 17, his benefit calculation would return a “zero” result. In support of this contention, the defendant cites to Plante vs. Salomon Skiwear, Op. No. 1995WC and its progeny, including Knoff vs. Knoff Illuminating; Op. No. 39-05WC and Harrness vs. Therian Foundation[sic] Op., No. 53R-05WC.
That line of cases is distinguished from the present situation on a key point-the reason that the claimant did not earn wages in the twelve weeks prior to the period of disability. The claimant in Plante did not earn wages because of a layoff, unrelated to her work injury. The claimant in Knoff did not earn wages because he instead worked at a business from which he earned profits, and the evidence did not indicate loss of those profits with the onset of the disability. The claimant in Harrness did not earn wages because he did not return to work but had terminated VR for reasons unrelated to his work injury. In that Pfalzer also addresses a situation where the Claimant is without wages for reasons unrelated to the work injury, I do not believe it is necessary to apply the three-pronged Pfalzer test to this situation.
Here, Mr. Dupuis was unable, because of his work injury to continue in or return to employment for which he has experience and training. Vocational rehabilitation services were appropriately provided, and Mr. Dupuis was actively engaged in his return-to work plan until work-related right arm symptoms apparently brought about suspension of those activities. Accordingly, his failure to earn wages in the twelve weeks prior to the March 17 onset of a new interval of total disability was a direct result of the work injury. This circumstance is, I believe, contemplated and addressed by 21V.S.A. section 650(c).
Accordingly, after reconsideration, the Interim Order of October 16, 2006 is upheld and the carrier is to provide Temporary Total Disability benefits for the period March 17, 2006 through May 26, 2006.
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IV. DISCUSSION AND 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. 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).
3. Pursuant to 21 V.S.A. § 642, an employee/claimant is entitled to TTD benefits where the work-related injury causes “total disability for work”. It has been well established that entitlement to TTD benefits exists while a claimant is:
(1) in the healing period and not yet at maximum medical improvement, Orvis v. Hutchins, 123 Vt 18, 24 (1962); or
(2) unable, as a result of the injury either to resume his former occupation or to procure remunerative employment at a different occupation suited to his or her impaired capacity, Roller v. Warren, 98 Vt 514, 519 (1925).
4. Temporary disability benefits (which term includes TTD benefits) are awarded on the basis of a claimant’s incapacity for work, which involves consideration not only of the physical injury, but also of other factors restricting a claimant’s capacity to obtain suitable employment. Bishop v. Town of Barre, 140 Vt. 564, 571 (1982).
5. A claimant is entitled to temporary disability benefits until reaching a medical end result or successfully returning to work. Coburn v. Frank Dodge and Sons, Inc., 165 Vt. 529 (1996).
6. A period of total temporary disability need not be continuous, but may be broken into continuing intervals. Wilkins v. Blanchard-McDonald Lumber Co., 115 Vt. 89, 92 (1947); Orvis, supra, at 23.
7. When an injury causes total disability for work, an employer shall pay the injured employee weekly compensation equal to two-thirds of the injured employee’s average weekly wages, but not more than the maximum nor less than the minimum weekly compensation, provided that the weekly compensation shall not be greater than the injured employee’s weekly net income. 21 VSA §642.
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8. For the purposes of determining TTD benefits under 21 VSA §642, “average weekly wages” shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the twelve weeks preceding the injury. . . . 21 VSA §650(a) (emphasis added).
9. When temporary disability does not occur in a continuous period but occurs in separate intervals, each resulting from the original injury, compensation shall be adjusted for each recurrence to reflect any increases in wages or benefits prevailing at that time. 21 VSA §650(c) (emphasis added).
10. The medical evidence is conclusive and not disputed that Claimant’s disability as of March 17, 2006 was directly related to his original compensable injury of November 1981. See Findings Nos. 20-23, 40 above. As of the date of the submission of this matter to the Commissioner, that disability is ongoing. Id.
11. Defendant’s argument that Claimant is not entitled to TTD benefits because (1) Claimant did not have wages from employment in the twelve weeks which preceded the March 17, 2006 determination of total disability, and (2) Claimant had discontinued vocational rehabilitation as of January 2006 is misplaced. First, the relevant twelve week period for calculation of TTD benefits is the twelve weeks preceding the original injury, not the twelve weeks preceding a recurrence of that disability related to the original injury, unless there has been an increase in Claimant’s wages. 21 VSA §650(c). In this case the record discloses that Claimant has never made higher wages than he did in the twelve weeks preceding the original injury. Therefore, the relevant period for calculation of TTD benefits is the twelve weeks preceding the original injury of November 1981. Second, Claimant was participating in an ongoing vocational rehabilitation program originally begun upon Defendant’s referral for vocational rehabilitation. The record amply shows that Claimant participated in the vocational rehabilitation with conviction and in good faith, and that Claimant’s decision to discontinue vocational rehabilitation in January 2006 was reasonable under the circumstances. See Finding No. 41 above. Even though the relevance of Claimant’s participation in, or discontinuation of, vocational rehabilitation is not necessarily determinative, to the extent it may be so lends support only to Claimant’s position.
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12. Defendant’s reliance on J. P. v. Pollution Solutions of Vermont, Op. No. 23A-01WC (August 1, 2001) (referred to in previous submissions of the parties as Pfalzer) is similarly misplaced. In that case, the Commissioner noted that there is an exception to the general rule that an employee who voluntarily leaves employment for reasons unrelated to the injury for which temporary benefits are claimed is not entitled to TTD benefits. That exception applies when the claimant demonstrates (1) a work-related injury, (2) a reasonably diligent effort to return to employment, and (3) an inability to return to employment or that a return to employment at a reduced wages is related to the compensable injury and not other, unrelated factors. Id. at Conclusions of Law Nos. 5 and 6. In this case, the evidence establishes that Claimant has satisfied the requirements of the Pfalzer exception.
13. Defendant also argues that its position is supported by the Commissioner’s rulings in Plante v. Slalom Skiwear, Op. No 19-95WC (May 24, 1995), J. K. v. Joe Knoff Illuminating, Op. No. 39-05WC (July 12, 2005), and J. H. v. Therrien Foundations, Op. No. 53-05WC (August 9, 2005). However, each of those cases is distinguishable on the facts. In Plante, the claimant did not earn wages due to a lay-off unrelated to her employment. In J. K., the claimant did not earn wages because he worked at a business in which his compensation was based on profits, and the lack of profits in the twelve weeks preceding disability were not related to the disability. In J. H., the claimant had terminated vocational rehabilitation benefits for reasons unrelated to his workplace injury. See Findings Nos. 46 and 47 above.
14. Defendant also argues, citing Wroten v. Lamphere, 147 Vt. 606 (1987), that because participation in a vocational rehabilitation program is voluntary, that Claimant is not entitled to temporary benefits if Claimant has a work capacity but opts for vocational rehabilitation training instead. However, in this case Claimant’s ability to obtain reasonable employment after 2003 was directly related to his original workplace injury. His faithful participation in a series of vocational rehabilitation programs, all proposed with the Defendant’s concurrence and each approved by the Commissioner, justified Claimant’s absence from the workforce in the Winter of 2005-2006. See Finding No. 41 above and Conclusion of Law No. 11 above.
15. Based upon the foregoing, the Commissioner does not reach the issue of whether, in this case, use of permanent partial disability (PPD) benefits are a valid basis for computing average weekly wages and/or TTD benefits.
16. Based upon the foregoing, Claimant has prevailed.
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Attorney’s Fees and Costs
17. Under WC Rule 10 and 21 VSA §678(a), the Commissioner, in her discretion, may award reasonable attorney’s fees to the prevailing party. Under WC Rule 10.1210, the award for services rendered on an hourly basis is limited to $90.00 per hour. In addition, when a claimant prevails, the Commissioner shall award necessary costs of the action to the claimant. Because Claimant has prevailed, he is therefore entitled to an award of costs and attorney’s fees consistent with Rule 10. ORDER
1. Therefore, based upon the foregoing Findings of Fact and Conclusions of Law, Travelers Casualty and Surety Company, or in the event of its default, Defendant Putney Paper Company, is hereby ORDERED to pay Claimant TTD benefits commencing as of March 17, 2006 and continuing thereafter until Claimant has reached his medical endpoint for the disability which began on that date or Claimant has successfully returned to work and the Commissioner has approved the termination of such TTD benefits.
2. Counsel for Claimant shall have fifteen (15) days from the date of this Order to submit an itemized statement of hours of professional services rendered to Claimant in this case and an itemized list of all costs or expenses for which reimbursement is sought. Such submissions shall be made directly to the Contract Hearing Officer for review and approval. Failure to make such submissions timely shall result in a denial of any award for attorney’s fees and costs.
Dated at Montpelier, Vermont this 8th day of April 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.

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