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Annemieke Meau v. The Howard Center Inc (January 24, 2014)

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Annemieke Meau v. The Howard Center Inc (January 24, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Annemieke Meau Opinion No. 01-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Howard Center, Inc.
For: Anne M. Noonan
Commissioner
State File No. BB-59825
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 15, 2013
Record closed on December 20, 2013
APPEARANCES:
Thomas Nuovo, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES PRESENTED:1
1. Is Claimant’s shingles disease causally related to her March 3, 2010 compensable
injury?
2. What amounts, if any, is Claimant entitled to receive for unreimbursed mileage
charges, medical bills, co-payments, pharmacy expenses and/or temporary total
disability benefits (including cost of living adjustments and dependency benefits)
as a consequence of her compensable injuries?
3. To what extent, if any, should interest and/or penalties be assessed on any of the
above amounts?
1 Claimant initially claimed entitlement to benefits causally related to her use of Lumigan eye drops, a medication
prescribed in 2012 for treatment of increased intraocular pressure. She withdrew this claim at the conclusion of the
formal hearing.
2
EXHIBITS:
Joint Exhibits I-III: Medical records
Claimant’s Exhibit 1: Mileage chart
Claimant’s Exhibit 2: Summary of co-payments, with supporting documentation
Claimant’s Exhibit 3: Summary of pharmacy expenses, with supporting documentation
Claimant’s Exhibit 4: Summary of expenses owed
Claimant’s Exhibit 5: Summary of temporary disability benefits, interest and penalties
owed
Claimant’s Exhibit 6: Blue Cross Blue Shield of Vermont, paid claims
Claimant’s Exhibit 7: Photograph of Claimant’s scalp
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Temporary total disability benefits (including dependency benefits and cost of living
adjustments) pursuant to 21 V.S.A. §§642 and 650
Interest, penalties, costs and attorney fees pursuant to 21 V.S.A. §§650(e), 664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
3. Claimant worked for Defendant as a mental health counselor at the H.O. Wheeler School
in Burlington.2 She holds a bachelor’s degree in social work and master’s degrees in
education and counseling, and is certified in Vermont as a licensed mental health
counselor. Currently she is 58 years old.
2 In addition to her employment for Defendant, at the time of her injury Claimant was concurrently employed by the
Town of Essex as a middle school guidance counselor.
3
Claimant’s March 2010 Work Injury and Subsequent Medical Course
4. On March 3, 2010 Claimant was at work at the H.O. Wheeler School when she was
called to assist in restraining a child who had become uncontrollable. At one point during
the episode, Claimant was holding the child from behind, with her arms underneath him
and his back to her chest, when he head-butted her with such force that she lost her
balance. Claimant fell back against a cement wall and then down on the base of her
spine. Somehow during the scuffle, she suffered two large cuts on her left arm. In
recalling the episode subsequently, she was unsure whether she had lost consciousness or
not. Within an hour, she felt pain in her neck and lower back.
5. Defendant accepted Claimant’s cervical spine and lower back injuries as compensable
and began paying workers’ compensation benefits accordingly.
6. Claimant’s medical course since March 2010 has been long and complicated, particularly
with respect to her cervical injuries. Initially diagnosed with a left-sided cervical strain,
by April 2010 she was complaining as well of severe headaches and dizziness. In the
years since, subsequent specialist evaluations (neurological, orthopedic,
neuropsychological, pain management and physical medicine, among others), have
addressed a wide range of additional symptoms, including chronic left-sided neck pain,
left shoulder pain, short-term memory loss and other cognitive impairments. These
complaints have yielded varying diagnoses, among them occipital neuralgia, possible C7
cervical radiculopathy, torticollis, mild post-concussive syndrome, traumatic brain injury,
mild mood disorder, anxiety and/or depression.
Shingles
7. Of particular importance to the pending claim, on January 18, 2011 Claimant first sought
treatment for an accelerating rash with burning pain and blisters on the back of her head
and neck. This was the approximate location of the cervical pain and posterior headaches
she had been reporting since shortly after her work injury, and for which she had sought
emergency room treatment just one week previously.
8. Claimant’s rash was diagnosed as shingles. Shingles is a painful skin rash caused by the
same virus (varicella zoster) that causes chickenpox. After a childhood infection, the
virus does not disappear, but rather remains dormant in infected sensory nerve cells.
Many years later, the virus can become reactivated, and will migrate to the skin, causing
a rash that typically appears in the same dermatomal distribution as the infected nerve.
9. As for what causes the zoster virus to reactivate as shingles, the medical research is
inconclusive. The risk of contracting shingles increases with age, and immune system
compromise also appears to play a role. According to some studies, stress and physical
trauma also might act as triggers for the disease. However, the mechanism by which any
of these factors causes the virus to erupt remains poorly understood, and there are times
when a patient presents with shingles for which no cause at all can be identified.
4
10. If diagnosed early enough, a shingles outbreak can be treated with antiviral medication,
which reduces the severity of the symptoms and promotes faster healing. For this reason,
treatment providers often make a presumptive diagnosis based on the patient’s clinical
presentation, and then administer antivirals prophylactically.
11. Claimant’s January 2011 shingles outbreak (a diagnosis later confirmed by biopsy) was
treated with antivirals, though it is unclear whether the medication was effective. One
week later, the rash was still present on her head and neck, and had spread to her face and
left ear as well. She continued to suffer from severe, burning pain, “like bees stinging
you,” according to her description. She could not refrain from scratching the lesions on
her scalp, which itched “like poison ivy.” Clumps of hair fell out, and large patches of
skin became ulcerated. At times she scratched so hard that the lesions bled. In the
ensuing months, at various times she was diagnosed with impetigo, an infection
superimposed on top of the underlying shingles lesions.
12. Claimant’s symptoms were indicative of post-herpetic neuralgia, a complication that
afflicts fewer than ten percent of shingles patients. It causes neuropathic-type pain in a
dermatomal distribution, which can be both severe and chronic. Claimant’s complaints
of burning pain, unrelenting itchiness, sensitivity to light touch and facial numbness are
all consistent with the condition.
13. Claimant treated for her initial shingles outbreak with a variety of providers, including
Dr. Huston, an infectious disease specialist, Dr. Huyck, an occupational medicine
specialist, emergency room physicians and a dermatologist. By mid-March 2011 the
virus was no longer replicating. Unfortunately, however, her post-herpetic neuralgia
symptoms have continued in severe fashion to this day.
14. Claimant was treated on two subsequent occasions for possible shingles outbreaks, first
in July 2011 and again in December 2011. The July episode came one day after she had
fallen backwards onto a potted plant; subsequently she developed a rash on her left cheek
and ear and complained of searing, intermittent left eye pain as well. The December
episode came shortly after she was administered a shingles vaccine, and presented as a
rash on her left arm. Unlike the initial January 2011 outbreak, neither of these
subsequent outbreaks was confirmed by biopsy. Rather than shingles, therefore, it is
possible that the rashes were self-induced, a consequence of severe itching and scratching
related to post-herpetic neuralgia and/or impetigo.
5
Expert Medical Opinions as to Causal Relationship between Shingles and Work Injury
15. As noted above, Finding of Fact No. 9 supra, medical research has not yet conclusively
established the mechanism by which the virus that causes chickenpox in a child
reactivates years later as shingles in an adult. The parties presented conflicting expert
medical evidence regarding the most likely trigger for the outbreak Claimant suffered in
January 2011, and whether it was causally related to her March 2010 work injury.
(a) Dr. Backus
16. Dr. Backus, an occupational medicine specialist, originally was retained to conduct an
independent medical evaluation on Defendant’s behalf in July 2010. Following a reevaluation
in April 2011, he concluded that there was a causal relationship between
Claimant’s March 2010 work injury and her January 2011 shingles outbreak. According
to his analysis, Claimant’s immune system likely had been weakened, either by the
steroids she had been prescribed to treat her work injury and/or by the chronic stress she
had experienced since. As noted above, Finding of Fact No. 9 supra, medical research
has identified immune system compromise as a possible risk factor leading to activation
of the shingles virus.
17. Dr. Backus did not testify at formal hearing, and therefore I cannot determine the extent
of his experience and expertise in evaluating and/or treating shingles. Nor was any
evidence introduced to establish the strength of the causal association among steroid
medications (how much, at what dosage and for how long), a suppressed immune system
and reactivation of the zoster virus. For these reasons, and without more specific
information as to the basis for his conclusion, I find his opinion of limited value.
(b) Dr. Huston
18. Dr. Huston, an infectious disease specialist, treated Claimant’s shingles and impetigo
outbreaks between March and November 2011. In his initial office note, dated March 17,
2011, he made the following statement as to etiology:
With respect to the etiology of [Claimant’s shingles, complicated by postherpetic
neuralgia], it most likely stems from the stress of her recent injury
and perhaps the repeated episodes of torticollis.
19. It is unclear whether the “recent injury” to which Dr. Huston referred in this statement
was in fact the March 2010 work injury; I find that common usage of the term “recent”
typically implies an event closer in time than one year previous. It also is unclear why
Dr. Huston implicated Claimant’s “repeated episodes of torticollis” as possibly
contributing to her shingles. No evidence was introduced identifying torticollis, a
condition caused by muscle spasms in the neck, as being causally linked to reactivation
of the zoster virus. Dr. Huston did not testify at formal hearing, and did not otherwise
provide any clarifying information. For that reason, I find his conclusory opinion
unpersuasive.
6
(c) Dr. Huyck
20. Dr. Huyck, a board certified specialist in occupational and environmental medicine,
treated Claimant’s post-herpetic neuralgia from February 2011 until July 2013. In the
course of her clinical practice, Dr. Huyck has both diagnosed and treated patients with
shingles. Dr. Huyck testified on Claimant’s behalf at formal hearing.
21. In Dr. Huyck’s opinion, to a reasonable degree of medical certainty Claimant’s shingles
and post-herpetic neuralgia were causally related to her March 2010 work injury. As
grounds for this conclusion, she cited to a “solid collection” of articles in the medical
literature in which cases of post-traumatic shingles were studied. One such article was a
case study in which an outbreak of shingles was found to be causally related to a
traumatic injury because (a) the patient had no other risk factors, and (b) the timing and
location of the outbreak correlated with the injury. Another study found that 38 of 100
patients had suffered recent trauma as the single precipitating event for the development
of shingles, again with the outbreaks occurring at the injury site. Still other studies have
reported cases of laryngeal shingles following intubation, and ophthalmic shingles after
cataract operations, both examples of so-called “scheduled” trauma.
22. In her formal hearing testimony, Dr. Huyck discussed the two types of “reaction
pathways” by which the shingles virus is believed to be reactivated in adults. One is an
immunosuppressive pathway, whereby the body becomes unable to fight the zoster
infection. The other is a more mechanical or local pathway, whereby physical trauma to
the area in which the infected nerve cells are located somehow disrupts the dormant virus
and reactivates it.
23. In Claimant’s case, Dr. Huyck concluded that both pathways likely contributed to the
reactivation of the shingles virus. The mechanical pathway was implicated because the
location of her outbreak was in the same region associated with her work injury. The
immunosuppressive pathway was implicated not by the most common risk factors, which
Dr. Huyck identified as HIV infection, kidney failure or immunosuppressive drugs,3 but
rather by the physical stress on the body that occurs during the healing process.
3 Notably, Dr. Huyck did not identify Claimant’s use of steroid medications as sufficiently immunosuppressive to
qualify as a risk factor, as Dr. Backus had postulated, see Finding of Fact No. 16 supra.
7
24. In her testimony, Dr. Huyck referenced a second source of physical trauma that could
have supplied the mechanical pathway for Claimant’s January 2011 shingles outbreak – a
cervical epidural steroid injection that Dr. Borello, a pain management specialist,
administered in mid-September 2010. Dr. Borello’s contemporaneous treatment notes
reflect that the procedure was “uneventful,” and that Claimant tolerated it “without
apparent complications.” However, Claimant recalled the procedure differently. At
formal hearing, she testified that during the injection “all of this blood started to come
out,” both on her face and onto the exam table. Four days after the injection, she
presented to the emergency room with increased pain, not only in her neck but also in her
lower back and left leg. Some weeks later, she described being hypersensitive to touch in
the area of her left neck and shoulder, and in early November she reported nerve pain
“like swelling pieces of glass” in her neck. In January, while seeking emergency room
treatment for left-sided neck pain just one week before her shingles rash appeared, she
expressed concern about swelling in her left neck at the injection site. Claimant
attributed all of these symptoms to as-yet undetected shingles, caused in some fashion by
Dr. Borello’s injection.
25. Dr. Huyck’s formal hearing testimony was somewhat unclear regarding whether some
complication from the September 2010 epidural steroid injection may have contributed to
cause Claimant’s January 2011 shingles outbreak. Based on the credible medical
evidence, I find ample reason to question whether Claimant’s recollection of the
procedure was accurate.4 As Dr. Huyck testified, furthermore, the symptoms that
typically precede a shingles outbreak, such as numbness, tingling and nerve pain,
commonly occur within a week of the rash itself. The symptoms Claimant described in
October and November 2010 occurred well before that time frame. For these reasons, I
find any claimed association between Claimant’s September 2010 cervical injection and
her January 2011 shingles outbreak too speculative to credit.
26. As to whether it is reasonable to attribute Claimant’s January 2011 shingles outbreak to
trauma resulting from her work injury some ten months earlier, Dr. Huyck did not
specifically address this in her testimony. The studies she referenced were not admitted
into evidence, and therefore I am unable to determine the time frame upon which their
causal association findings were based. Lacking the objective support these studies
might (or might not) lend, I find Dr. Huyck’s opinion unpersuasive.
(d) Dr. Binter
27. Defendant’s medical expert, Dr. Binter, strongly disputed any claimed association
between Claimant’s work injury and her shingles. Dr. Binter is a board certified
neurosurgeon. Although she has retired from clinical practice, she has in the past
diagnosed patients with shingles. Dr. Binter examined Claimant at Defendant’s request
in May 2012, and testified on Defendant’s behalf at formal hearing.
4 As noted above, the contemporaneous treatment notes do not report any bleeding or other complications, and as
Dr. Borello credibly asserted in his November 2010 office note, it would be “very unlikely” that a cervical steroid
injection would cause increased pain in the lower back or left leg. And while the January 2011 emergency room
records report Claimant’s “concern” regarding swelling in her left neck, no such finding was noted on exam.
8
28. As Dr. Huyck had, Dr. Binter relied on the medical literature to inform her opinion
regarding the most likely cause of shingles in Claimant’s case. Although she did not cite
to specific studies, her research identified first age and then immune system compromise
as the risk factors with the strongest support in the literature. More speculative risk
factors included both psychological stress and physical trauma. As to the latter, Dr.
Binter acknowledged that numerous articles have been published regarding a possible
association, but in her estimation their findings are vague and the relationship has not yet
been scientifically proven.
29. Even were the studies linking physical trauma to shingles to be believed, in Dr. Binter’s
opinion the ten-month delay between Claimant’s March 2010 work injury and her
January 2011 shingles outbreak made any possible causal connection unlikely. Again, as
was the case with Dr. Huyck’s opinion, no studies were introduced either to prove or
disprove this analysis.
30. Dr. Binter also questioned whether in fact Claimant’s March 2010 work injury likely
resulted in any significant head trauma at all, as Dr. Huyck apparently presumed. The
contemporaneous medical records reported that Claimant had not lost consciousness, and
as Dr. Binter observed during her evaluation, even two years later Claimant was able to
recall the incident “in exquisite detail,” which would not ordinarily be expected of a
patient who has suffered a major concussion or traumatic brain injury. For these reasons,
in Dr. Binter’s opinion Claimant likely suffered no more than a mild concussive
syndrome as a result of her work injury. Even assuming a scientifically established
association between head trauma and shingles, Dr. Binter found it implausible that such
an injury would have been severe enough to trigger reactivation of the shingles virus. I
find this aspect of Dr. Binter’s analysis credible.
31. Having rejected physical trauma as a probable cause, Dr. Binter identified psychological
stress as a more likely trigger for Claimant’s shingles. Specifically, Dr. Binter noted the
following reference in a March 14, 2011 medical record as the basis for her conclusion:
Subjective. Really difficult year. Two nephews killed in separate car
accidents, one niece died of anaphylactic shock. Devastating year.
32. Based solely on this notation, which she acknowledged was “a pretty soft finding,” Dr.
Binter concluded as follows:
I do not feel that [Claimant’s shingles] are causally related to her work
injury. I think it’s far more likely related to the stress from the precipitous
death of her relatives, which is a little bit more temporal and far more
stressful than the work injury.
9
33. In addition to the notation upon which Dr. Binter relied, the medical records contain
numerous references to other stressful circumstances in Claimant’s life, such as selling
her home, coping with chronic pain (whether from her work injury or otherwise) and
parenting a teenage son with medical issues of his own. It is unclear why Dr. Binter did
not consider any of these stressors to be possible triggers for Claimant’s shingles
outbreak. On cross examination she admitted that she had “no idea” when the relatives
referred to in the above medical record actually died, whether some months or even years
previously. Without this information, it is entirely speculative to conclude, as Dr. Binter
did, that the deaths were either “more temporal” or “far more stressful” than the work
injury was. For this reason, I find Dr. Binter’s opinion in this regard entirely
unpersuasive.
Mileage, Medical Charges and Co-Payments, Pharmacy Expenses and Temporary Total
Disability Benefit Shortages
34. With no objection from Defendant, at formal hearing Claimant was allowed to introduce
various exhibits detailing the amounts she claims Defendant owes her for unreimbursed
mileage, medical bill co-payments and pharmacy expenses, totaling $1,013.44, and also
the amount she claims her group health insurer is owed for unreimbursed medical
expenses, totaling $2,454.33. Claimant also produced an exhibit detailing her claimed
entitlement to unpaid dependency benefits, cost of living adjustments and other
temporary total disability benefit shortages, which she asserts totaled $21,456.89
(including interest and penalties) as of August 9, 2013.5
35. Some of the amounts Claimant claims are due remain unpaid because they relate to
treatment for shingles, which Defendant consistently has maintained is not causally
related to her work injury and therefore not its responsibility to pay. Other amounts
(particularly those relating to the temporary total disability benefit shortfalls) are not
defensible on those grounds. Defendant failed almost from the beginning to calculate
Claimant’s weekly benefit correctly, and failed to include the dependency benefit due on
account of her minor child. Later it failed to make required annual cost of living
adjustments. As a consequence of these omissions, on May 3, 2013 the Department’s
workers’ compensation specialist issued an interim order that all arrearages be paid, with
interest and penalties in accordance with 21 V.S.A. §650(e) and Workers’ Compensation
Rule 3.1200. I find that penalties and interest were appropriately assessed and therefore
that this order was appropriately issued.
5 It is unclear to what extent this amount remains in arrears, and also whether additional arrearages have
accumulated since the exhibit was prepared.
10
36. As the focus of the formal hearing was solely on whether Claimant’s shingles is causally
related to her work injury, neither party addressed the question whether she has reached
an end medical result, either for that condition or for her accepted injuries.6 As to the
latter, Defendant has not yet filed a Notice of Intention to Discontinue Benefits (Form
27).
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 primary disputed issue here is whether a causal relationship exists between
Claimant’s compensable March 2010 work injury and her shingles disease. The parties
introduced conflicting expert medical evidence on this point. In such situations, the
commissioner traditionally uses a five-part test to determine which expert’s opinion is the
most persuasive: (1) the nature of treatment and the length of time there has been a
patient-provider relationship; (2) whether the expert examined all pertinent records; (3)
the clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
6 Defendant has never filed an Agreement for Temporary Compensation (Form 32), and therefore it is difficult to
determine which of Claimant’s other injuries it has accepted as compensable. There seems little doubt that her
cervical and lower back injuries are causally related to the March 2010 accident, but Defendant’s position as to her
claimed traumatic brain injury is less clear. Certainly more attentive adjusting and closer adherence to Vermont’s
workers’ compensation rules would have provided more clarity.
11
3. Neither of the experts who testified at formal hearing gave particularly compelling
opinions regarding the etiology of Claimant’s shingles. Dr. Huyck’s opinion was
weakened significantly by her failure to account for the ten-month delay between
Claimant’s work injury and her first shingles outbreak. Dr. Binter’s opinion was
rendered incredible by its reliance on a single reference to an unrelated psychological
stressor as determinative, a conclusion even she admitted was “soft” and speculative.
Neither expert addressed whether Claimant’s age might have been a trigger for the
disease. Both doctors asserted that the medical literature supported their respective
positions, but neither did so with sufficient specificity for me to evaluate the strength of
their assertions. For example, while both asserted that the medical research has identified
“stress” as a possible risk factor, each applied a different interpretation of the term – Dr.
Huyck inferred physical stress from the body’s healing process, Dr. Binter inferred
psychological or emotional stress. As a result, I have difficulty attributing the necessary
objective support to either of their opinions.
4. Neither of the experts who testified appeared to possess the level of training, experience
or expertise sufficient to establish superior knowledge on the causation question,
furthermore. Perhaps Dr. Huston, who specializes in treating infectious diseases, could
have filled in the necessary gaps had he testified. As it is, however, his opinion was
expressed in a single sentence in a single office note. Given the current state of medical
research, from which I can conclude only that the mechanism by which trauma might
trigger shingles is both complex and poorly understood, this simply is not enough to carry
the day.
5. Because Claimant bears the burden of proof on the causation issue, in the final analysis it
is her expert’s credibility that matters most. More to the point, merely stating a
conclusion to a reasonable degree of medical certainty does not necessarily make it so,
even if no more credible opinion is offered. See, e.g., Seymour v. Genesis Health Care
Corp., Opinion No. 53-08WC (December 29, 2008). In this case, despite the weaknesses
in Dr. Binter’s analysis, I conclude that Dr. Huyck’s causation opinion is not strong
enough on its own to persuade me.
6. I thus conclude, based on the evidence presented, that Claimant has failed to sustain her
burden of proving the necessary causal relationship between her work injury and her
shingles to establish compensability. That being the case, I conclude that Defendant is
not responsible for whichever unpaid mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to her treatment
for shingles. As the parties did not offer evidence or address their proposed findings to
specific charges, I cannot make a more specific ruling at this time.
12
7. Notwithstanding my conclusion that Claimant’s shingles is not compensable, I conclude
that Defendant is liable for all of the temporary total disability payment shortages
referred to in Finding of Fact No. 34 supra, as well as any arrearages that have
accumulated since August 9, 2013. Defendant’s liability for these shortages arises not
from its refusal to pay for benefits attributable to shingles, but rather from its failure to
properly calculate the benefits owed on account of injuries it has never properly denied or
disputed.
8. In a similar vein, I conclude that Defendant is liable for ongoing temporary total
disability benefits until such time as it lawfully terminates them in accordance with
Workers’ Compensation Rule 18.1000.
9. Claimant has requested an award of costs totaling $462.25 and attorney fees totaling
$37,743.50. As all of her costs appear to relate to the primary disputed question –
whether her shingles is causally related to her work injury – and as she failed to prevail
on that issue, I conclude that she is not entitled to an award of costs. 21 V.S.A. §678(a);
see Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
10. As for attorney fees, I conclude that a considerable amount of the hours billed were to
address problems that arose as a consequence of Defendant’s failure to properly adjust
Claimant’s claim in accordance with Vermont’s workers’ compensation rules and
procedure. With that in mind, I conclude that it is appropriate to award attorney fees of
$12,581.16, or one-third of the total requested.
13
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Whichever unpaid claims for mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to
injuries other than Claimant’s shingles disease, with interest as calculated
according to 21 V.S.A. §664;
2. Temporary total disability payment shortages totaling $21,456.89 as of August 9,
2013, plus any arrearages that have accumulated since that date, with interest and
penalties on any amounts still outstanding as calculated according to 21 V.S.A.
§§650(e) and 664 and Workers’ Compensation Rule 3.1200;
3. Ongoing temporary total disability benefits in accordance with 21 V.S.A. §642
and continuing until lawfully terminated in accordance with Workers’
Compensation Rule 18.1000; and
4. Attorney fees totaling $12,581.16, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 24th day of January 2014.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

Scott Myrick v. Ormond Bushey & Sons (April 24, 2014)

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

Scott Myrick v. Ormond Bushey & Sons (April 24, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Scott Myrick Opinion No. 07-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Ormond Bushey & Sons
For: Anne M. Noonan
Commissioner
State File No. Z-01465
RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES PRESENTED:1
1. Is Defendant obligated to reimburse Claimant for various medical charges he paid
directly to Dr. Bucksbaum?
2. Is Defendant obligated to pay interest and/or penalties referable to its late
payment of Dr. Bucksbaum’s medical charges?
3. Is Defendant obligated to reimburse Claimant for monies he paid to an unlicensed
provider who failed to properly bill for or substantiate the treatment rendered?
4. Does Defendant owe additional mileage reimbursement referable to Claimant’s
travel for medical treatment causally related to his compensable work injury?
1 Defendant initially sought summary judgment as to Claimant’s claim for wage replacement benefits under 21
V.S.A. §650(c) for time spent attending medical appointments necessitated by his injury. Claimant has now
acknowledged that as he was not employed at the time of these appointments, he has “no viable lost wage claim.”
Therefore, I consider this claim withdrawn.
2
EXHIBITS:
Claimant’s Exhibit 1: Letter from Attorney McVeigh to Attorney Wright, October 13,
2010
Claimant’s Exhibit 2: Letters from Attorney McVeigh with attached cancelled checks,
statement and Affidavit of Scott Myrick
Defendant’s Exhibit 1: Opinion and Order, Myrick v. Ormond Bushey & Sons, Opinion
No. 31-10WC (October 5, 2010)
Defendant’s Exhibit 2: Dr. Bucksbaum medical bills, 06/08/2010 – 07/12/2011
Defendant’s Exhibit 3: Payment spreadsheet
Defendant’s Exhibit 4: Formal hearing referral memorandum, 7/10/13
Defendant’s Exhibit 5: State of Vermont Board of Chiropractic, Default Order, In re
Elmer Sweetland, Docket No. CH 04-0105, with attached
Specification of Charges
FINDINGS OF FACT:
Considering the evidence in the light most favorable to Claimant as the non-moving party, see,
e.g., State v. Delaney, 157 Vt. 247, 252 (1991), I find the following:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Claimant suffered a compensable work-related injury on November 8, 2006. Following a
formal hearing, on October 5, 2010 Defendant was ordered to pay workers’ compensation
benefits accordingly. Myrick v. Ormond Bushey & Sons, Opinion No. 31-10WC
(October 5, 2010).
3. Claimant paid a total of $814.00 for medical treatment provided by Dr. Bucksbaum on
two occasions – June 8, 2010 and July 8, 2010 – in accordance with Dr. Bucksbaum’s
billing for those dates. Shortly after the decision referenced above issued, by letter dated
October 13, 2010 he requested that Defendant reimburse him for those payments, but
Defendant did not do so.
4. In all, Dr. Bucksbaum billed a total of $3,210.00 for medical treatments rendered
between June 8, 2010 and July 12, 2011. Consistent with the Commissioner’s October 5,
2010 Opinion and Order, to the extent these treatments were both causally related to the
work injury and medically necessary, Defendant was obligated to pay for them.
5. On or about May 10, 2012 Defendant issued payment in the amount of $2,869.06 to Dr.
Bucksbaum for the above dates of service, including the two dates of service (June 8th
and July 8, 2010) that Claimant previously had paid directly. The difference between the
amount paid and the amounts billed likely represented reductions taken upon application
of the medical fee schedule, Workers’ Compensation Rule 40.
3
6. The record does not reflect when Defendant first received the billings upon which its
May 10, 2012 payment to Dr. Bucksbaum was based. Neither Defendant’s identity nor
the identity of its workers’ compensation insurance carrier is reflected on the bills. In
addition, on each of the bills the “No” box is checked in response to the question, “Is
patient’s condition related to employment?”
7. Defendant has paid Claimant a total of $1,654.32 as reimbursement for various mileage,
meals and lodging expenses he claimed were due, in accordance with an interim order
issued by the Department’s specialist on July 10, 2013. The amount paid included
interest and penalties as specified in the interim order.
8. Consistent with the specialist’s interim order, the mileage expenses that Defendant paid
were calculated after deducting Claimant’s normal commute distance to and from his
workplace, see Workers’ Compensation Rule 12.2000, which at the time of his injury was
70.2 miles. At the time these mileage expenses were incurred, Claimant was neither
employed nor receiving temporary total disability benefits.
9. When Claimant began treating with Dr. Bucksbaum, his mileage to and from Dr.
Bucksbaum’s Rutland, Vermont office totaled 80.4 miles. At some point, Dr.
Bucksbaum relocated his practice from Rutland to Maine. The record does not clearly
reflect the mileage to and from Dr. Bucksbaum’s Maine office, though based on the
specialist’s interim order it appears to have been in excess of 600 miles round-trip.
10. Claimant underwent chiropractic adjustments with Monk Sweetland, an unlicensed
chiropractor, on November 8th, November 22nd and December 15th, 2008 and on February
16th, 2009. Dr. Sweetland’s chiropractic license previously had expired on September 30,
2004. Subsequently, the State of Vermont Board of Chiropractic revoked the license,
effective September 8, 2005, on the grounds that Dr. Sweetland had engaged in
unprofessional conduct. Among the allegations accepted as true in the revocation order
were that he had failed to maintain patient medical records, continued to treat patients
after his license lapsed and adjusted animals in his practice without first obtaining a
veterinary referral.
11. Claimant paid Dr. Sweetland a total of $180.00 for the treatments rendered on the above
dates, in accordance with a billing statement entitled “Monk’s Place.” Beneath the title
the word “Consultant” appears. Beneath that is the phrase, “Common sense solutions to
everyday problems” and beneath that, “Help when you need it.” Aside from the dates of
service, amounts charged and a two-word illegible notation, the billing statement does not
reflect either the diagnosis or the specific treatments provided.
4
CONCLUSIONS OF LAW:
1. In order to prevail on a motion for summary judgment, the moving party must show that
there exist no genuine issues of material fact, such that it is entitled to a judgment in its
favor as a matter of law. Samplid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25
(1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all
reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc.
v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when
the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137
Vt. 425 (1979).
2. Defendant here seeks summary judgment in its favor as to whether it is obligated to
reimburse Claimant for the following expenses:
· $814.00 for treatment with Dr. Bucksbaum on June 8th and July 8th, 2010;
· $180.00 for treatment with Dr. Sweetland from November 8th, 2008 through
February 16th, 2009; and
· Additional mileage for treatment-related travel to and from Dr. Bucksbaum’s
Maine office, representing the amounts deducted from previous reimbursements
in consideration of Claimant’s normal commute distance to and from work.
Procedural Issues
(a) Constitutionality of Summary Judgment in Workers’ Compensation Proceedings
3. As his first argument in opposition to Defendant’s motion, Claimant asserts that summary
judgment in the context of Vermont’s workers’ compensation statute should be limited
solely to consideration of issues that are based “entirely upon a question of law,” and not
those that require determination of a “factual legal issue.” He argues that because the
statute, 21 V.S.A. §670, allows for a de novo appeal of the commissioner’s decision to
the superior court, for the commissioner to rule as a matter of law that no genuine issue of
material fact exists in effect deprives the opposing party of its constitutional right to a
jury trial.
4. The commissioner’s authority to determine the amount of compensation due under the
Workers’ Compensation Act by way of a formal hearing derives directly from the statute,
21 V.S.A. §§606, 663 and 664. The Vermont Rules of Civil Procedure are applicable to
formal hearings “insofar as they do not defeat the informal nature of the hearing.”
Workers’ Compensation Rule 7.1000. In accordance with this rule, the commissioner has
at times applied the summary judgment procedure, V.R.C.P. 56, as a means of
adjudicating contested claims. This includes both claims in which purely legal issues are
decided, see, e.g., Yustin v. State of Vermont Department of Public Safety, Opinion No.
27-09WC (July 17, 2009), aff’d 2011 VT 20, and those in which no genuine issue of
5
material fact are found to exist, see, e.g., Hathaway v. S.T. Griswold & Co., Opinion No.
04-14WC (March 17, 2014).
5. The Vermont Supreme Court has upheld the constitutionality of summary judgment as a
mechanism for disposing of issues, claims and defenses that do not merit a full trial. In
re Deer View LLC Subdivision Permit, 2009 VT 20, ¶3; Gore v. Green Mountain Lakes,
Inc., 140 Vt. 262, 264 (1981). The function of summary judgment is to avoid a useless
trial, that is, one where there is no genuine issue as to any material fact. Sykas v. Kearns,
135 Vt. 610, 612 (1978). Summary judgment does not entail a trial of the underlying
merits of a case. “Rather, it resolves the question whether the party opposed to the
motion can demonstrate that [it] has evidence sufficient to create an issue.” Tierney v.
Tierney, 131 Vt. 48, 51-52 (1973).
6. As these well-settled principles establish, the line Claimant seeks to draw – between
summary judgment as to a purely legal issue and summary judgment as to a “factual legal
issue” – is a distinction without a difference. In both cases, the losing party lacks the
facts necessary to establish a prima facie case, such that judgment “as a matter of law” is
appropriate. Ross v. Times Mirror, Inc., 164 Vt. 13 (1995).
7. Claimant here argues that because the workers’ compensation statute allows for a de novo
appeal to the superior court on issues of fact, somehow that excuses him from having to
present sufficient evidence to overcome summary judgment at the formal hearing stage.
The commissioner’s vital role in the dispute resolution process is not so easily dismissed,
however. The Supreme Court has repeatedly acknowledged the deference due the
commissioner’s initial interpretation and application of the workers’ compensation
statute, having been entrusted by the Legislature with its administration. See, e.g., Cyr v.
McDermott’s, 2008 VT 106, ¶7; Travelers Indemnity Co. v. Wallis, 2003 VT 103, ¶14;
Wood v. Fletcher Allen Health Care, 169 Vt. 419, 422 (1999). As the Court specifically
has noted, “This is true notwithstanding the fact that the workers’ compensation statutes
authorize a trial de novo in superior court.” Letourneau v. A.N. Deringer/WAUSAU
Insurance Co., 2008 VT 106, ¶8.
8. Indeed, recognizing the commissioner’s primary jurisdiction over the adjudication of
disputes, whether factual or legal, arising under the Workers’ Compensation Act,
Travelers Indemnity Co., supra, the statute, 21 V.S.A. §671, requires that even a de novo
appeal to superior court must be based solely on questions certified to it by the
commissioner. Issues not first considered at the formal hearing stage will not be
certified, and therefore are not ripe for consideration on appeal. See, Morrisseau v.
Legac, 123 Vt. 70, 73 (1962) (applying same statutory language in context of supreme
court appeal).
9. I conclude that the commissioner’s use of summary judgment as a mechanism for ruling
as a matter of law that a party lacks the evidence necessary to present a genuine issue of
material fact is an appropriate use of the authority granted by the workers’ compensation
statute, one which does not deprive the losing party of its constitutional right to a jury
trial in any respect.
6
(b) Admissibility of Hearsay-Based Spreadsheet
10. As a second procedural issue, Claimant asserts that because the spreadsheet (Defendant’s
Exhibit 3) that Defendant submitted to establish its payment of Dr. Bucksbaum’s
outstanding bills is based on unauthenticated hearsay, it should not be considered in
support of its motion for summary judgment. In making this argument, Claimant does
not suggest that the document contains any factual errors or misrepresentations,
intentional or otherwise. Rather, he objects to the spreadsheet as a matter of “form and
substance.”
11. As is the case with the rules of civil procedure, the Vermont Rules of Evidence are
applicable to formal hearings, but only “insofar as they do not defeat the informal nature
of the hearing.” Workers’ Compensation Rule 7.1000. Hearsay is admissible “provided
that it is of a type commonly relied upon by prudent people in the conduct of their affairs,
conforms to the requirements of [Rule 7.1000], and the opposing party has had sufficient
notice of it to verify its accuracy.” Workers’ Compensation Rule 7.1010.
12. Aside from his general characterization of Defendant’s spreadsheet as “inadmissible
hearsay,” Claimant has not asserted any grounds for disqualifying the evidence in
accordance with the factors listed in Rule 7.1010. In keeping with the informal nature of
workers’ compensation proceedings before the commissioner, and without any allegation
that the exhibit contains false, misleading or erroneous information, I conclude that it is
admissible.
Defendant’s Obligation to Reimburse Claimant for Monies Paid to Dr. Bucksbaum
13. Defendant seeks summary judgment in its favor as to its obligation to reimburse Claimant
for two bills, totaling $814.00, which he paid directly to Dr. Bucksbaum for medical
treatment causally related to his work injury. Some two years later, Defendant issued
payment to Dr. Bucksbaum to cover all of his billings, including the two bills Claimant
previously had paid. In doing so, Defendant ignored at least one prior notification from
Claimant, in which he identified both the service provided and the amount paid, and
requested prompt reimbursement.
14. Defendant has made no attempt to explain why it failed to respond to Claimant’s request.
Instead, it seeks to shift the blame to Dr. Bucksbaum, for having accepted what amounted
to double payment for the two bills without subsequently issuing a refund to Claimant.
Defendant cites no legal theory in support of its position. Nor can I discern support from
the statute.
7
15. Section 640a(a) of the workers’ compensation statute requires that within 30 days after
receiving a bill from a health care provider, an employer must either “pay or reimburse
the bill,” 21 V.S.A. §640a(a)(1) (emphasis added), or give written notice that it is
contesting or denying it. 21 V.S.A. §640a(a)(2). It is reasonable to infer from the
italicized language that the Legislature contemplated the exact situation presented here –
that the injured worker, or perhaps a group health insurer, will already have paid the bill,
such that reimbursement to someone other than the provider itself will have to be made.
If, as may have been the case here, the bill is submitted without sufficient information to
determine its compensability, the employer has an affirmative obligation to promptly
request whatever additional records or reports are necessary. 21 V.S.A. §640a(a)(2).
16. The undisputed evidence here establishes that Defendant was aware of Claimant’s claim
for reimbursement at least as of October 13, 2010. However, the record does not reflect
what steps, if any, it took subsequently to request additional information, whether from
Claimant or directly from Dr. Bucksbaum. If it took appropriate action and received no
response, its obligation to pay or reimburse may have expired, see 21 V.S.A. §640a(f). If
it took no action, it likely remains responsible even today. In either event, for so long as
the question remains unresolved summary judgment in Defendant’s favor is not
appropriate.
17. I conclude that genuine issues of material fact exist as to Defendant’s obligation to
reimburse Claimant a total of $814.00, representing payment for treatment he received
from Dr. Bucksbaum on June 8th and July 8th, 2010. Therefore, it is not entitled to
summary judgment on this issue.
Defendant’s Obligation to Pay Interest and Penalties to Dr. Bucksbaum
18. In his Opposition to Defendant’s Motion, Claimant requests that Defendant be ordered to
pay interest and penalties to Dr. Bucksbaum on account of its delayed payment of his
treatment-related charges between June 8, 2010 and July 12, 2011. Procedurally, as
Defendant has not sought summary judgment on this issue Claimant has chosen the
wrong context in which to raise it. Even if it was appropriately raised, the evidence is
insufficient at this point to support such an order.
19. The undisputed evidence clearly documents a significant delay between the treatment
dates, which ranged from June 8, 2010 through July 12, 2011, and the date when payment
was issued, May 10, 2012. However, the record does not establish when Defendant first
received both the bills and the supporting medical records, which would have been the
trigger for determining when payment was due under §640a. Without this information, I
cannot calculate whether the payment was late, and therefore I cannot assess either
interest or penalties.
8
Defendant’s Obligation to Reimburse Claimant for Monies Paid to Dr. Sweetland
20. Defendant seeks summary judgment in its favor as to its obligation to reimburse Claimant
a total of $180.00, representing payment for four treatments he received from Dr.
Sweetland between November 8, 2008 and February 16, 2009. It asserts that because Dr.
Sweetland was not a licensed health care provider at the time he rendered treatment, and
also because he failed to document his charges appropriately, as a matter of law he is not
entitled to payment under the statute.
21. The statute requires an employer to pay for “reasonable . . . medical . . . services”
necessitated by a compensable injury. 21 V.S.A. §640(a). It is logical to infer that only
lawfully delivered medical services are covered by this mandate. Otherwise, it would be
difficult to ensure that the treatment provided meets the appropriate standards of care and
quality. For this reason, where the statute elsewhere references health care providers, for
example in §§640(b) (allowing employer or employee to designate a “treating health care
provider”) and 640a (establishing procedure for reviewing and paying “health care
provider” bills), it defines the term to mean a practitioner who is “licensed or certified or
authorized by law to provide professional health care service to an individual . . ..” 21
V.S.A. §601(22).
22. A practitioner who is not required to be licensed or certified under Vermont law can
lawfully provide treatment, and therefore an employer may still be responsible under
§640(a) for paying the charges related thereto.2 V.O. v. Windsor Hospital, Opinion No.
12-08WC (March 27, 2008). But where Vermont law requires that only a licensed or
certified practitioner can provide a particular type of medical service, such that treatment
rendered by an unlicensed provider is unlawful, I must consider it to be unreasonable as
well, and therefore not covered under §640(a).
23. The undisputed evidence here establishes that Dr. Sweetland was not licensed to practice
chiropractic medicine at the time that he provided treatment to Claimant, as is required
under Vermont law, 26 V.S.A. §522(a). That in itself disqualifies him from receiving
payment under §640(a). That he also failed either to maintain treatment records or to
submit appropriately documented and coded medical bills, as is required under §§640a(f)
and (g), further disqualifies him.
24. Claimant argues that Defendant should be obligated to reimburse him nonetheless,
because he was unaware that Dr. Sweetland was not licensed and consequently paid for
the services he received “in good faith.” The statute does not allow for any such
exception, and strong policy considerations weigh against it. The fact is, by providing
treatment without a license, Dr. Sweetland put Claimant’s safety and health at risk. That
Claimant paid his bill without recognizing the danger is unfortunate, but it is not a
consequence I properly can lay at Defendant’s feet.
2 For example, massage therapists are not required to be licensed under Vermont law; their charges are routinely
covered under §640(a).
9
25. I conclude that because Dr. Sweetland was not licensed to practice chiropractic medicine
at the time he treated Claimant, as a matter of law the services he provided are not
covered under the workers’ compensation statute. For this reason, and also because Dr.
Sweetland failed either to maintain treatment records or to submit appropriately
documented medical bills, I conclude as a matter of law that Defendant is not obligated to
pay his charges, either directly or by way of reimbursement to Claimant.
Defendant’s Obligation to Reimburse Claimant for his “Normal Commute Distance” Mileage
Expenses
26. Defendant seeks summary judgment in its favor as to whether it is obligated to include
Claimant’s normal commute mileage to and from work as part of the mileage
reimbursement due him, under Workers’ Compensation Rule 12.2100, for his treatmentrelated
travel to and from Dr. Bucksbaum’s Maine office. As Claimant was neither
employed nor receiving temporary total disability benefits at the time of these excursions,
he contends that the “normal commute distance” deduction should not have applied.
27. Under Rule 12.2100, an injured worker who is required to travel for treatment of a
compensable injury is entitled to reimbursement for mileage “beyond the distance
normally traveled to the workplace.” The purpose of the rule is to make the worker
whole, by providing compensation for expenses that he or she would not have incurred
but for the work injury. At the same time, the rule is phrased so as to deny
reimbursement for regular commuting expenses that presumably the worker would have
had to bear even had there been no injury. Fosher v. Fletcher Allen Health Care,
Opinion No. 11-11WC (May 5, 2011).
28. Although often not specifically authorized by statute, most jurisdictions consider
treatment-related transportation expenses, whether local or distant, to be included as part
of an employer’s obligation to provide medical benefits to an injured worker. See
generally, 5 Lex K. Larson, Larson’s Workers’ Compensation §94.03[2] (Matthew
Bender, Rev. Ed.) and cases cited therein. As Vermont’s statute is silent on the issue,
Rule 12.2100 was promulgated with that interpretation in mind. Both the language and
the purpose of the rule are clear, and do not allow for the exception Claimant favors.
29. I conclude as a matter of law that Defendant appropriately deducted the mileage referable
to Claimant’s normal commute distance to and from work from the reimbursement due
him on account of his treatment-related travel to and from Dr. Bucksbaum’s Maine
office.3 Summary judgment in its favor is appropriate, therefore.
3 As further support for its summary judgment claim, Defendant argues that it should be excused from paying
additional mileage related to Claimant’s travel to and from Dr. Bucksbaum’s Maine office because he likely could
have obtained the same treatment from another, more locally situated provider. Having concluded as a matter of law
that Rule 12.2100 does not permit the interpretation for which Claimant advocates, I need not reach this argument.
In any event, the proper context for Defendant to have raised this defense would have been with respect to its
obligation to pay Dr. Bucksbaum’s charges themselves, not the mileage charges to and from his office.
10
ORDER:
Defendant’s Motion for Summary Judgment is hereby GRANTED IN PART and DENIED IN
PART, as follows:
1. Summary judgment in Defendant’s favor is hereby DENIED as to its obligation to
reimburse Claimant in the amount of $814.00, representing payment for treatment he
received from Dr. Bucksbaum on June 8th and July 8th, 2010;
2. Summary judgment in Defendant’s favor is hereby GRANTED as to its obligation to
reimburse Claimant in the amount of $180.00, representing payment for treatments he
received from Dr. Sweetland between November 8, 2008 and February 16, 2009;
3. Summary judgment in Defendant’s favor is hereby GRANTED as to its obligation to
include Claimant’s normal commute mileage to and from work as part of the
reimbursement due him for his treatment-related travel to and from Dr. Bucksbaum’s
Maine office.
DATED at Montpelier, Vermont this 24th day of April 2014.
_______________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

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