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M. B. v. Price Chopper (May 8, 2007)

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

STATE OF VERMONT
DEPARTMENT OF LABOR
Opinion No. 13-07WC
M. B. By: Phyllis Severance Phillips, Esq.
Hearing Officer
v.
For: Patricia Moulton Powden
Price Chopper Commissioner
State File No. L-03387
OPINION AND ORDER
Hearing held in Montpelier on November 8, 2006
APPEARANCES:
Thomas Bixby, Esq. for Claimant
Keith Kasper, Esq. and David Berman, Esq. for Defendant
ISSUES PRESENTED:
1. Whether Claimant’s neck and/or right shoulder symptoms are causally related to her compensable August 1, 1997 low back injury;
2. Whether Claimant is entitled to temporary disability benefits retroactive to May 14, 2006: and
3. Whether the medical treatment proposed by Claimant’s treating chiropractor is reasonably necessary and causally related to her compensable August 1, 1997 injury.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records (CD format)
Joint Exhibit II: Medical Records supplement
Claimant’s Exhibits:
Claimant’s Exhibit 2: Form 22 Agreement for Permanent Partial Disability Compensation
Claimant’s Exhibit 4: Claimant’s Paycheck for week ending 1/15/06 and Form 21 Agreement for Temporary Total Disability Compensation
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CLAIM:
Temporary total disability benefits under 21 V.S.A. §642;
Medical benefits under 21 V.S.A. §640(a);
Attorney’s fees and costs under 21 V.S.A. §678.
FINDINGS OF FACT:
1. Claimant has worked as a cashier for Defendant since 1995. On August 1, 1997 she suffered a low back strain when she “turned just right” while scanning a heavy item. Defendant accepted the injury as compensable and paid benefits accordingly.
2. Prior to this date, Claimant had never suffered any injuries to her low back. She elected to treat with Brenda Davis, D.C., a chiropractor. Claimant experienced stiffness while standing and her left leg was sore, but she was able to continue working.
3. On August 19, 1997 Claimant tripped while going up the stairs at work. She caught her fall by reaching for the railing, but in doing so bent her right hand and forearm back. She was diagnosed with a right forearm strain/sprain, which appeared to resolve fairly quickly.
4. Claimant treated conservatively for her low back strain. Dr. Davis prescribed a lumbar support and recommended that she not lift heavy objects at work. Radiological studies conducted in December 1997 showed a central herniation at L4-5 but with no nerve root encroachment and therefore questionable clinical significance.
5. In February 1998 Claimant underwent a course of physical therapy with Julie Emond, R.P.T. Ms. Emond reported that Claimant presented with symptoms consistent with her diagnosis of low back strain with herniation at L4-5 as well as weakness in her trunk and lower extremities due to disuse. Claimant made good progress with both physical therapy and home exercise. Upon her discharge from therapy in April 1998 Ms. Emond noted that there had been good improvement, although some symptoms did remain.
6. Neither Dr. Davis nor Julie Emond noted any pain, discomfort, reduced range of motion or other symptoms in Claimant’s neck or right shoulder related either to the August 1, 1997 work injury or to the August 19, 1997 fall on the stairs.
7. In June 1998 Claimant’s low back pain recurred and she returned to Dr. Davis for treatment. As a result of this recurrence, Claimant was temporarily disabled from working from June 18, 1998 until November 2, 1998.
8. Dr. Davis’ treatment notes during this time reflect that Claimant experienced muscle spasms in her lumbar, dorsal and cervical spine. This is the first mention of any symptoms in Claimant’s neck and/or shoulders.
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9. Claimant also underwent another course of physical therapy with Ms. Emond during this time. Ms. Emond noted pain in the central lower back area as well as aching in the legs, arms and shoulder blades.
10. In October 1998 Defendant referred Claimant to Jon Thatcher, M.D. for a second opinion regarding her chronic low back pain. Dr. Thatcher diagnosed chronic low back pain presumably from degenerative L4-5 discs, or perhaps chronic muscle injury. For treatment, he advised Claimant to continue her home exercise program and also prescribed a lumbo-sacral corset for her to wear if necessary. Dr. Thatcher released Claimant to return to work with lifting restrictions. Last, he determined that Claimant had reached an end medical result and rated her with a 5% whole person permanent impairment.
11. Dr. Thatcher’s report made no mention of any shoulder or neck symptoms, either subjectively reported or objectively observed.
12. In February 1999 the parties executed a Form 22 Agreement for Permanent Partial Disability Compensation and Defendant paid permanency benefits in accordance with Dr. Thatcher’s 5% impairment rating.
13. Claimant did reasonably well with her return to work. Her symptoms waxed and waned, and she often experienced increased pain at the end of her shift, particularly on busy days. Presumably these symptoms were not severe enough to warrant medical attention. Claimant did not treat for any low back, leg, upper extremity or neck pain from December 1998 until February 2000.
14. On February 18, 2000 Claimant returned to Dr. Davis for chiropractic treatment relating to pain in her back, neck, legs and arms. Dr. Davis noted that Claimant gradually had stopped doing her home exercise program, and that her arms ached, especially in the morning. On examination, Dr. Davis found that Claimant was very stiff and tender in her neck and anterior shoulders.
15. Dr. Davis did not provide any ongoing treatment beyond the single visit on February 18th, but she did issue a written recommendation to Defendant that Claimant have a bagger to assist her for the next month, and thereafter “as often as possible.” In June, Dr. Davis supplemented this recommendation, advising that Claimant should alternate sitting and standing at the cash register.
16. There are no records of any medical treatment for Claimant’s low back, shoulder or neck from February 2000 until January 2002. In January 2002 Claimant began another course of physical therapy with Julie Emond, R.P.T., apparently at the referral of Tony Blofson, M.D. Ms. Emond reported that Claimant presented with a two-month history of increased cervical pain and limitation “without specific cause.” According to Ms. Emond, x-rays taken in November 2001 revealed degenerative disc disease of the cervical area. Ms. Emond noted that Claimant exhibited poor postural alignment and decreased range of motion in her neck and right shoulder. She was tender and tight throughout her right upper extremity.
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17. Ms. Emond reported in her January 11, 2002 treatment note that Claimant “feels that working at both jobs which requires increased arm movement has been part of the aggravation.” I find that the second job to which this note refers most likely was the part-time work Claimant performed for a time at a local dry cleaner. During this time Claimant worked 5 days per week for Defendant, and the other 2 days per week at the dry cleaner. Her duties there included marking, ironing and organizing shirts, all activities that would have required increased use of her right arm.
18. Claimant improved with physical therapy. Her pain decreased, her shoulder range of motion returned to normal and she was able to perform activities of daily living without difficulty. Claimant was discharged from physical therapy in February 2002. According to Ms. Emond, her prognosis for maintenance of improvements was good so long as she continued with her home exercises and self-care program.
19. Claimant did not treat for low back, neck or shoulder pain from February 2002 until May 2003. In February 2003 she presumably was examined by Denise Paasche, M.D., who issued a prescription pad note recommending that “due to a diagnosis of degenerative disc disease in her neck” Claimant should have a bagger to assist her with heavy lifting at work.
20. In May 2003 Claimant resumed chiropractic treatment with Dr. Davis. Dr. Davis reiterated her prior recommendations as to necessary workplace accommodations – that Claimant be provided with both a bagger to assist with heavy lifting and a stool so that she could alternate sitting and standing as necessary.
21. Claimant treated with Dr. Davis until October 2003, although the records do not reflect specifically what area(s) of pain, reduced range of motion or other symptoms were addressed.
22. In July 2004, at Defendant’s request, Claimant underwent an independent medical evaluation with Terrance Ryan, D.C. Dr. Ryan noted Claimant’s complaints of low back pain with occasional spasms and mild numbness into the tops of her legs, but did not mention any complaints of pain, limitation or reduced range of motion in Claimant’s neck, shoulder or upper extremities. Dr. Ryan diagnosed chronic recurrent L4-5 discopathy and rated Claimant with an 8% whole person permanent impairment referable to her lumbar spine. As for job accommodations, Dr. Ryan recommended that Claimant avoid heavy lifting and repetitive bending or twisting. Last, in an addendum to his initial report, Dr. Ryan advised that further treatment should focus on an active spinal stabilization program, either supervised or at home, to reduce the need for more passive, in-office treatments.
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23. On her attorney’s advice, in November 2004 Claimant obtained another impairment rating, this time performed by John Chard, M.D., an orthopedic surgeon. Dr. Chard’s report was consistent with Dr. Ryan’s, particularly in that there was no mention of any complaints of pain, reduced range of motion or other symptoms in Claimant’s neck, shoulders or upper extremities. Dr. Chard diagnosed a midline herniation of the L4-5 disc and concurred with Dr. Ryan’s 8% permanent impairment rating. Dr. Chard recommended against further chiropractic treatment, as it did not appear to be helpful. Instead, he suggested that Claimant might try pharmaceutical medications for pain relief.
24. Claimant elected not to follow Dr. Chard’s treatment recommendations, and opted instead for further chiropractic care, this time with Elizabeth Gillespie, D.C. In sharp contrast to the complaints she reported to both Dr. Ryan and Dr. Chard, the pain diagram Claimant completed upon her initial evaluation with Dr. Gillespie, just 2 weeks prior to Dr. Chard’s examination, reflected her complaints of moderately intense pain from her mid-back down through both lower extremities, as well as pain in her neck, shoulders and forearms.
25. Claimant has treated regularly with Dr. Gillespie from November 2004 until the present time. Her complaints have waxed and waned, and Dr. Gillespie’s treatments – manipulations, soft tissue massage, ultrasound and other passive modalities – have been directed at symptoms in her low back, legs, neck and right shoulder. In Dr. Gillespie’s opinion, all of Claimant’s symptoms are directly related to her August 1, 1997 work injury. According to Dr. Gillespie, the disc herniation in Claimant’s lower back causes pressure on her sciatic nerve. To relieve the pressure, Claimant has altered her posture by leaning forward. This altered postural pattern has caused increased stress to her neck and shoulders. Cumulative trauma related to the repetitive arm movements necessitated by Claimant’s work as a cashier also has contributed. Over time, bone spurs have formed in Claimant’s neck.
26. On January 13, 2006 Claimant reported to Dr. Gillespie that she was going to see her medical doctor because she was unable to raise her right arm. On January 14, 2006 Claimant presented to the Brattleboro Memorial Hospital Emergency Room with a chief complaint of right shoulder pain. She was tearful and extremely anxious. On examination, both paraspinal and trapezius muscle spasms were noted, as well as decreased range of motion due to pain. She was prescribed valium for pain and advised to follow up with her physician.
27. On January 16, 2006 Claimant followed up with Dr. Blofson. Dr. Blofson noted low back pain and both weakness and reduced range of motion in the right shoulder. He reported that Claimant advised that her pain was not changed by working. Dr. Blofson stated that although Claimant ascribed her shoulder pain to her long-standing chronic low back problem, he disagreed with that assessment. Dr. Blofson determined that Claimant was unable to work due to her right shoulder problem. He advised her to stop chiropractic treatment and referred her to Dr. Kinley for an orthopedic assessment of her right shoulder.
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28. Donald Kinley, M.D., an orthopedist, examined Claimant on January 17, 2006. He diagnosed right shoulder calcific tendonitis. Dr. Kinley treated Claimant with a corticosteroid injection. Immediately thereafter Claimant reported 90% pain relief and was able to both raise her arm overhead and rotate it as well. Dr. Kinley advised that Claimant would be able to return to work within the next day or two.
29. At her attorney’s suggestion, Dr. Chard evaluated Claimant on February 13, 2006 specifically for the purpose of determining whether her shoulder problems were causally related to her August 1, 1997 low back injury. Dr. Chard reviewed the available medical records and also examined Claimant. Having done so, he found no evidence that her current problem, right shoulder calcific tendonitis, was in any way related to her 1997 low back injury.
30. In March 2006 Claimant underwent another orthopedic evaluation, this time at Dr. Blofson’s referral, with Elizabeth McLarney, M.D. Dr. McLarney’s diagnosis, consistent with Drs. Kinley and Chard, was right shoulder calcific tendonitis. Dr. McLarney noted that Claimant had some radicular pain, particularly in her right arm, but could not determine whether this represented cervical radiculopathy or not.
31. At Defendant’s request, on April 3, 2006 Claimant underwent an independent medical evaluation with George White, M.D., an occupational medicine specialist. Dr. White concurred with the diagnosis of right shoulder calcific tendonitis. He stated that this was a separate problem, unrelated to Claimant’s low back pain or lumbar disc disease. In Dr. White’s opinion, although it is common for patients who suffer from degenerative disc disease in their lower backs to suffer from a similar degenerative process in their upper backs and/or necks as well, one does not in any way cause the other.
32. Dr. White did not observe any symptoms consistent with cervical radiculopathy in his examination of Claimant. He admitted, however, that the focus of his examination was on Claimant’s lumbar spine, not her cervical spine. At the formal hearing, Dr. White testified that Claimant did not exhibit or complain of the muscle weakness or pattern of sensory loss that most commonly is associated with cervical radiculopathy.
33. As to treatment of the low back, Dr. White strongly urged consideration of a multidisciplinary rehabilitation program, particularly one with a strong educational component, as he found that Claimant lacked understanding as to the nature of her low back condition and the symptoms it might (and might not) cause. Dr. White’s treatment approach would emphasize active rather than passive modalities, and would include strength training, walking and aerobic conditioning in addition to biofeedback and pain management strategies. Dr. White strongly advised against any type of cervical spine manipulation for fear that it might cause further injury.
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34. Dr. Gillespie’s treatment approach stands in sharp contrast to Dr. White’s recommendations. In addition to the passive modalities she has been providing since 2004 – chiropractic manipulations, soft tissue massage and ultrasound – most recently Dr. Gillespie has recommended a course of treatment with a spinal decompression unit. The goal of this treatment is to enlarge the disc spaces and relieve nerve pressure, thereby reducing the extent of any herniations and allowing the outer ligaments to be strengthened. At the time of the formal hearing, Dr. Gillespie had been using the unit on some of her patients for more than three months, and had observed excellent results.
35. It is not clear to what extent treatment with the decompression unit proposed by Dr. Gillespie is effective on patients whose pain is caused by bone spurs rather than those who suffer from disc herniation and/or nerve root impingement.
36. Drs. Gillespie and White also disagree as to Claimant’s current work capacity. Consistent with his belief that the best way to treat chronic low back pain is to encourage more rather than less activity, Dr. White has recommended that Claimant return to work in a light duty capacity, with restrictions against heavy lifting, bending or twisting. In contrast, Dr. Gillespie maintains that due to the combination of symptoms in her lower back, neck, arms and shoulders Claimant is unable to work at all.
37. In June 2006 Claimant underwent both cervical and lumbar spine MRI evaluations. The cervical spine MRI revealed degenerative discs and bone spurs at both C4-5 and C5-6. The lumbar spine MRI showed a central disc bulge at L4-5 and a rupture of the annulus fibrosis, but with no evidence of any significant impingement on the thecal sac or exiting nerve roots.
38. It is unclear to what extent Defendant has or has not complied with the various work restrictions and accommodations suggested by Claimant’s treatment providers since her August 1, 1997 injury. On several occasions Dr. Davis accused Defendant of aggravating Claimant’s condition by failing to provide necessary accommodations. Claimant admitted, however, that on many occasions she chose not to ask for accommodations for fear of upsetting her manager.
39. In May 2006 Defendant filed a Form 27 Notice of Intention to Discontinue Payments. Defendant argued that Claimant had failed to accept modified-duty work in accordance with Dr. White’s IME recommendations, thus terminating her right to ongoing temporary disability benefits. Defendant further argued, again on the basis of Dr. White’s report, that Claimant was not entitled to medical benefits for treatment of her right shoulder as that condition was not related causally to her compensable low back injury. The Department approved the Form 27 on May 16, 2006.
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40. That Claimant is a poor historian and that she is notably inconsistent with respect to the nature and extent of her symptoms is well documented in the medical records. At times she recalled that she first injured her shoulder when she tripped going up the stairs at work on August 19, 1997, although the medical records reflect only a minor forearm strain. At times she reported debilitating neck and shoulder pain, and then only days later failed to report any pain at all in these areas. At the formal hearing she testified to a specific event at work – lifting and then dropping a gallon container of milk – that caused her shoulder to become frozen on January 14, 2006. There is no such history reported in the medical records, however, and in fact Claimant already had advised her chiropractor on the day before that she planned to see her medical doctor because she could not lift her arm. These discrepancies make it difficult to determine when various symptoms arose and to what extent, if any, they were related to work activities.
CONCLUSIONS OF LAW:
Compensability of Neck and/or Shoulder Injury
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 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 probably 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 trier of fact may not speculate as to an obscure injury which is beyond the ken of laymen. Laird v. State Highway Department, 110 Vt. 981 (1938). Where the Claimant’s injury is obscure, and a layman could have no well grounded opinion as to its nature or extent, expert testimony is the sole means of laying a foundation for compensability. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979); Jaquish v. Bechtel Corp., Opinion No. 30-92WC (Dec. 29, 1992).
3. In this case, Claimant has alleged a variety of possible work-related causes for her neck and/or right shoulder symptoms, including (a) a traumatic injury caused when she tripped going up the stairs at work on August 19, 1997; (b) a traumatic injury caused when she dropped a gallon jug of milk at work on January 14, 2006; (c) cumulative trauma caused by the altered posture that resulted from her August 1, 1997 compensable low back injury; and/or (d) cumulative trauma caused by the repetitive arm movements involved in performing the job-related functions of a supermarket cashier.
4. As to the first possible cause, there is no evidence in any of the medical records to substantiate a neck or shoulder injury occurring on August 19, 1997. Dr. Davis was Claimant’s treating physician at the time, and her notes reflect only a minor forearm strain that resolved within a week’s time.
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5. As to the second possible cause, there is no medical evidence to connect Claimant’s neck and/or right shoulder injury to any specific incident occurring at work on January 14, 2006. In fact, Dr. Gillespie’s treatment notes reflect that Claimant was exhibiting signs of a frozen shoulder on the day before the alleged incident at work. The subsequent records relating to Claimant’s frozen shoulder, including those from the hospital emergency room and from Drs. Blofson, Kinley, Chard and Gillespie, make no mention of any incident at work involving a dropped gallon jug of milk. Without any such support in the medical records, Claimant’s account of this incident must be rejected as unreliable.
6. As to the possibility that cumulative trauma, related either to the August 1, 1997 low back injury or to her job as a cashier, has caused Claimant’s neck and/or shoulder injury, the expert medical opinions are conflicting. In these instances, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive, considering (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
7. In this case, a wide variety of medical practitioners have voiced opinions as to the cause of Claimant’s neck and shoulder pain. Some are chiropractors, some are orthopedists, some have examined Claimant only once and some have enjoyed a long-standing treatment relationship with her, some can be identified as her own experts and some are Defendant’s. With this array of expert opinions to consider, analyzing each of the above factors individually will yield no clear-cut result. Simply put, the key question is which expert medical opinion is the most credible?
8. I conclude that the most credible medical evidence establishes that Claimant suffers from calcific tendonitis in her right shoulder and degenerative disc disease in her neck. Both of these conditions are degenerative biochemical processes. They can be caused or aggravated by numerous factors, including aging, repetitive stress, altered posture or reduced activity. To puzzle out which of these factors are at play in Claimant’s case requires more than supposition or hypothesis. It requires close scrutiny and scientific examination of all of the available evidence.
9. Dr. Gillespie’s theory of causation does not withstand such scrutiny. There was no evidence that she ever visited Claimant at her work site, or that she performed any kind of functional analysis of Claimant’s cashiering job. Had she done so, her conclusion that Claimant’s neck and shoulder problems were caused by repetitive arm movements at work might have been persuasive. Without such evidence, they are just one of many possible hypotheses, not the most probable one.
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10. Dr. Gillespie’s theory that Claimant’s neck and shoulder problems are most likely the result of altered posture due to her low back injury is also unconvincing. It must be noted, first of all, that Dr. Gillespie stands alone in this opinion, Drs. Blofson, Kinley, Chard, McLarney and White all having concluded that Claimant’s neck and right shoulder complaints were unrelated to her low back injury. More importantly, there is no basis for concluding that the degeneration in Claimant’s neck and shoulders is most probably due to this cause as opposed to the myriad of other possible causes for degeneration to occur.
11. I conclude, therefore, that Claimant has not sustained her burden of proving that her neck and shoulder complaints were caused or aggravated either by her work for Defendant or by her compensable low back injury.
Temporary Total Disability
12. It is important to note that Claimant’s most recent period of disability, which began in January 2006, stemmed not from her low back injury, but from her frozen right shoulder. Given my conclusion that Claimant’s neck and right shoulder complaints are not compensable, the only way she can qualify for temporary disability benefits is if her current inability to work, whether total or partial, is due at least in part to her compensable low back injury.
13. I find Dr. White’s opinion as to work capacity to be more credible than Dr. Gillespie’s in this regard. Even according to Dr. Gillespie’s description, Claimant does not appear to be so debilitated as to be incapable of performing even the lightest duty work, so long as appropriate accommodations are provided and proper precautions against re-injury are taken. Should a formal functional capacities evaluation be necessary in order to determine how best to proceed in this regard, then Defendant is well-advised to take that step.
Appropriate Medical Treatment
14. Last, I must determine which is the most appropriate treatment path for Claimant’s chronic low back injury – the spinal decompression approach advocated by Dr. Gillespie, or the multidisciplinary rehabilitation program recommended by Dr. White.1
1 It is unclear from either the parties’ pre-hearing statements or their post-hearing briefs whether Defendant is contesting the efficacy of the proposed spinal decompression unit solely with respect to treatment of Claimant’s neck and/or shoulder symptoms or with respect to treating her compensable lower back injury as well. Dr. Gillespie testified at the formal hearing that she planned to use the unit to treat both the cervical and lumbar spine. Dr. White testified that a multidisciplinary rehabilitation program would be a more effective treatment for Claimant’s low back injury, and that it offered benefits for her neck and upper extremity complaints as well. Given the testimony presented as to the appropriate treatment for Claimant’s cervical spine complaints as well as her lumber spine injury, I find there is sufficient evidence from which to determine the extent to which the proposed spinal decompression treatment is likely to be efficacious in either area.
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15. Dr. Gillespie’s treatment plan is problematic in two respects. First, it centers on a spinal decompression unit that is new, experimental and largely untested. Although Dr. Gillespie testified to having witnessed largely positive results in the three months since she began using the unit, this is too short a time frame within which to evaluate fully the merits of such a treatment, and particularly whether it produces long-lasting or merely temporary relief of symptoms.
16. Secondly, to the extent that Dr. Gillespie’s treatment plan incorporates the same type of passive treatment modalities that Claimant has long been receiving, clearly these have proven ineffective in terms of controlling her pain or improving her functional capacities. Will adding the spinal decompression unit to this mix of passive modalities produce better results? From the evidence presented, I cannot so conclude.
17. I find that the multidisciplinary rehabilitation approach advocated by Dr. White is more likely to lead Claimant back to an active life and productive work. It incorporates such elements as active physical therapy, strengthening and aerobic conditioning. As such, its focus is similar to the physical therapy and home exercise programs Claimant underwent in the past, both of which proved effective in controlling her pain and maintaining her functional abilities.
18. In addition, by providing education as to the anatomical bases for Claimant’s symptoms as well as training in biofeedback and other pain management strategies, a multidisciplinary approach offers a more realistic way of dealing with the type of chronic pain from which Claimant suffers, whether the source of that pain is in her low back or in her neck or shoulders. As such, Dr. White’s approach is more likely to lead to functional restoration of Claimant’s “whole person.”
19. For these reasons, I find that the spinal decompression treatment program proposed by Dr. Gillespie does not constitute reasonably necessary treatment under 21 V.S.A. §640(a).
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ORDER:
1. Claimant’s claim for workers’ compensation benefits associated with her neck and/or right shoulder symptoms is DENIED;
2. Claimant’s claim for temporary total disability benefits retroactive to May 14, 2006 is DENIED;
3. Claimant’s claim for medical benefits in accordance with the treatment program proposed by Dr. Gillespie is DENIED;
4. Because Claimant has not prevailed, she is not entitled to an award of attorney’s fees or costs under 21 V.S.A. §678.
DATED at Montpelier, Vermont this 8th day of May 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.

V. P. v. Heritage Ford (September 28, 2007)

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

V. P. v. Heritage Ford (September 28, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. P. Opinion No. 26-07WC
v. Jane Dimotsis, Esq.
Hearing Officer
Heritage Ford
Patricia Moulton Powden
Commissioner
State File No. S-21982
OPINION AND ORDER
Hearing held in Montpelier on May 2, 2007
APPEARANCES:
Richard Goldsborough, Esq. for Claimant
John Valente, Esq. for Defendant
ISSUE PRESENTED:
Whether the fusion surgery proposed by Claimant’s treating physicians constitutes reasonably necessary and causally related treatment for her work-related low back injury.
EXHIBITS:
Joint Exhibits:
Joint Exhibit I: Medical Records
Claimant’s Exhibits:
Exhibit 1: Curriculum Vitae of Michael A. Horgan, M.D.
Defendant’s Exhibits:
Exhibit A: Deposition of Dr. Victor Gennaro taken on June 11, 2007
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CLAIM:
1. Workers’ compensation benefits associated with proposed fusion surgery, including payment of medical bills and both temporary and/or permanent disability benefits, as proven following the procedure.
2. Attorney’s fees and costs under 21 V.S.A. §678.
FINDINGS OF FACT:
1. At all times relevant to this proceeding Claimant was an employee of Defendant, and Defendant was Claimant’s employer, within the meaning of Vermont’s Workers’ Compensation Act.
2. On June 10, 2002 Claimant suffered a work-related injury to her right shoulder and left low back. She was in the process of lifting one end of a truck axle onto a delivery truck when the person holding the other end dropped it. Claimant felt a snap in her shoulder and an immediate, stabbing pain in her low back.
3. Claimant reported her injury to Defendant, which accepted the claim and paid benefits accordingly.
4. Claimant began treating for her injury on June 19, 2002 with Kathleen Campbell, a physician’s assistant, and Tim Fitzgerald, D.O., an osteopath, both at Champlain Valley Urgent Care. Dr. Fitzgerald diagnosed right shoulder and low back strains. Treatment was conservative, consisting of heat, ice, anti-inflammatory medications and restricted work duties.
5. At Dr. Fitzgerald’s referral, Claimant underwent physical therapy, including both pain modalities and stretching and strengthening exercises, from June 28, 2002 through August 26, 2002, a total of 17 sessions.
6. Claimant’s low back pain persisted throughout the summer and fall of 2002.1 Dr. Fitzgerald did not report any radicular pain or parasthesias during this time.
7. In December 2002 Dr. Fitzgerald referred Claimant for a therapeutic steroid injection and further evaluation with Pierre Angier, D.O., and his associates.
8. Evan Musman, D.O., Dr. Angier’s associate, treated Claimant regularly from December 2002 until August 2003, at which point he left the practice and Dr. Angier assumed responsibility for Claimant’s care. Claimant treated regularly with Dr. Angier from August 2003 until December 2005.
1 Claimant’s right shoulder pain also persisted. The course of treatment and ultimate resolution of that injury is not at issue here and therefore will not be discussed.
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9. Dr. Musman’s diagnosis was lumbosacral sprain/strain, possible spondylolisthesis at L5-S1 and possible pars defect at L5. The latter diagnoses were based on Dr. Musman’s review of lumbar spine x-rays taken in January 2003.
10. Dr. Musman’s treatment consisted of osteopathic manipulation, trigger point injections, massage therapy and anti-inflammatories. He also referred Claimant for another course of physical therapy, which she underwent from January through March 2003.
11. Dr. Musman did not report any radicular component to Claimant’s low back pain, although he did note some ipsilateral buttock tenderness. The physical therapy evaluation reported some intermittent left lower extremity paresthesias, but no other radicular symptoms.
12. Claimant made slow progress with physical therapy. She became independent with her home exercise program, and demonstrated excellent compliance. However, she continued to experience low back pain, though there was no progression of any neurologic symptoms in her lower extremities. Her sleep was disturbed due to pain, and in April 2003 Dr. Musman noted that she was suffering from “low grade depression from pain.”
13. In March 2003 Dr. Musman referred Claimant to Dr. Michael Horgan, a neurosurgeon, for a surgical consult. Dr. Horgan examined Claimant in April 2003. He described her as “straightforward and pleasant.” Dr. Horgan reported that Claimant described pain predominantly in the low back itself, but also radiating down the left buttock into the left thigh. As to treatment recommendations, Dr. Horgan reported back to Dr. Musman as follows:
I have discussed with [Claimant] in detail the conservative strategies which I know you have gone over with her versus operative management. This is typically a lifestyle type issue and a pain issue and although I do not think she is at particular risk for nerve damage, the decision is one of pain control. I think she stands a good chance of pain control with surgery, although it is a significant undertaking. I discussed with her and described the risks in general and she would like to most likely pursue this course.
14. Prior to making a final decision as to surgery, Dr. Horgan recommended that Claimant obtain a lumbar spine MRI. Claimant did so on May 3, 2003. With the results in hand, Dr. Horgan re-evaluated Claimant on May 13, 2003. The MRI revealed no disc herniations, but evidence of a “very mild grade” spondylolisthesis. Dr. Horgan again discussed surgical intervention versus ongoing conservative management with Claimant. Claimant elected to forego surgery and continue with conservative treatment.
15. Claimant continued to treat with Dr. Musman through the summer of 2003. She underwent two sacroiliac joint injections and also resumed physical therapy. Her low back pain persisted.
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16. On June 24, 2003 Dr. Horgan re-evaluated Claimant. He reported that she had experienced slight pain relief following Dr. Musman’s joint injection, but without prolonged effect. Dr. Horgan again discussed with Claimant the rationale for conservative versus operative management, and reported that she was “very against” any type of surgical intervention. Dr. Horgan stated that Claimant’s decision to continue with conservative treatment was “completely appropriate given her normal neurologic state,” but also stated that she should “call me at any time if her symptoms change or if she reconsiders.”
17. From August 2003 until December 2005 Claimant treated regularly with Pierre Angier, D.O., Dr. Musman’s associate. Like Dr. Musman, Dr. Angier’s treatment consisted of osteopathic manipulation, trigger point injections, massage and anti-inflammatories. At various times Dr. Angier reported that Claimant’s low back pain was improved. At other times, however, Dr. Angier reported that Claimant’s pain was worsened, and included occasional pain and paresthesias into her buttocks and left leg as well.
18. At Dr. Angier’s referral, in April 2005 Claimant returned to Dr. Horgan for another surgical consult. Dr. Horgan reported that Claimant’s low back pain had persisted despite prolonged conservative management, and that she now suffered from bilateral lower extremity pain as well, left greater than right. Dr. Horgan noted that Claimant was “quite uncomfortable” and concluded that she was a “reasonable surgical candidate.”
19. Claimant underwent additional MRI scanning in August 2006. Among the findings, consistent with earlier scans, were degenerative disc changes at L4-5 and L5-S1, a small herniation at L4-5 and neural foraminal narrowing at L5-S1. X-rays taken in April 2007 also showed findings consistent with earlier films, notably a bilateral pars defect of L5, grade 1 anterolisthesis of L5 over S1 and mild disc space narrowing from L3 to S1.
20. Dr. Horgan testified on Claimant’s behalf at the formal hearing. Dr. Horgan has been an attending neurosurgeon at Fletcher Allen Health Care since 2000, and has been board-certified in neurosurgery since 2005. Approximately 80% of his practice involves evaluating and treating patients, with the remaining 20% spent on teaching and research.
21. Dr. Horgan defined spondylolisthesis as a fracture through a portion of the vertebrae. The fracture separates the surrounding facet joints and at L5-S1 leads to slippage of the bone on the sacrum. Often, the fracture occurs in childhood, but remains asymptomatic and therefore can go unnoticed for years. Then, a “sentinel event” occurs that causes the fracture to become painful. The actual pathology that triggers the pain to arise is not clearly understood. Thus, the diagnosis of spondylolisthesis as the cause of a patient’s back pain is often one of exclusion – the rest of the patient’s spine is in good condition, and the fracture presents the only significant abnormality.
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22. Dr. Horgan testified that the fracture in Claimant’s spine was very clearly seen on x-ray. In addition, once Claimant began to complain of pain traveling down her legs, Dr. Horgan became concerned about possible nerve entrapment and damage. This occurs when the slippage of the bone on the sacrum causes scar tissue to form and build up in the foramen, the hole through which the spinal nerves travel. The involved nerves become stretched, sensitized and pinched, which causes radicular symptoms.
23. Dr. Horgan testified that Claimant’s May 2003 MRI scan revealed “solid findings” confirming both the slippage of bone at L5 onto S1 and also a pinched nerve at L5. The L5 nerve was more pinched on the left side than on the right, which coincided with Claimant’s report of more radicular symptoms on that side.
24. Dr. Horgan testified that his review of Claimant’s x-rays and MRI scans showed “very little” degenerative disc disease for a woman of her age. Thus, the only significant abnormality he detected was the spondylolisthesis at L5-S1. In Dr. Horgan’s opinion, the injury Claimant suffered on June 10, 2002 was the “sentinel event” that most likely triggered the spondylolisthesis to become symptomatic.
25. Dr. Horgan testified that the course of treatment Claimant had undergone up until the time he first evaluated her was entirely appropriate and reasonable. In his opinion, Claimant has been a “good patient,” who has taken her condition seriously and has engaged actively in all attempts at conservative management. With persistent pain after more than three years, however, Dr. Horgan believes it is reasonable to conclude that she has failed conservative management. He now recommends spinal fusion surgery as the treatment most likely to relieve her pain and improve her function.
26. Dr. Horgan has found no evidence of symptom magnification in Claimant’s behavior, nor has he observed any other “red flags” for possible secondary gain issues. Such red flags might have included a patient desperate for surgery notwithstanding the doctor’s strong recommendation against it, a patient who was not working, or a patient who exhibited symptoms and pain behaviors discordant with objective findings. Were a patient to exhibit such behaviors, Dr. Horgan would consider obtaining a psychological evaluation prior to recommending surgery. Claimant has exhibited no such behaviors here, however. She has been reluctant to pursue surgery as a treatment option, has continued to work and does not exhibit extraordinary pain behavior. Therefore, Dr. Horgan does not believe a psychological evaluation is necessary.
27. Dr. Horgan performs thirty to forty surgeries annually of the type he is proposing for Claimant and an additional thirty to forty surgeries annually involving other types of lumbar fusion. His success rate, which he described as a good to excellent result, though not necessarily pain free, is 70-80%.
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28. At Defendant’s request, in September 2003 Dr. Christopher Brigham performed a review of Claimant’s medical records. This was followed by an independent medical evaluation performed by Dr. Brigham’s associate, Dr. William Boucher, in August 2004. In contrast to Dr. Horgan’s opinion, both doctors concluded that Claimant’s L5-S1 spondylolisthesis was clinically insignificant. Both found that Claimant’s subjective complaints were more marked than her objective findings, and both concluded that this might be an indication of symptom magnification behavior. Both recommended that Claimant undergo an analysis of potential psychosocial, behavioral, personality and psychological contributants to her delayed recovery. Both counseled against surgery or other invasive treatment options. Last, as of August 2004 Dr. Boucher concluded that the lumbar strain Claimant suffered on June 10, 2002 most likely had long since resolved and that Claimant required no further treatment.
29. At Defendant’s suggestion, in October 2003 Dr. Verne Backus evaluated Claimant for the purposes of rendering a second opinion/consultation. Dr. Backus diagnosed chronic mechanical low back pain. He reported that the low back pain Claimant experienced after the June 2002 accident had resolved by September 2002. Dr. Backus stated that he did not know what caused Claimant’s symptoms to increase after that, but that there was no causal relationship between any of her current complaints and the June 2002 injury.
30. At Defendant’s request, in January 2005 Claimant underwent an independent medical evaluation with Dr. John Johansson, an osteopath. Dr. Johansson diagnosed Claimant with “standard, run-of-the-mill mechanical low back pain,” which he felt was causally related to her June 2002 injury. Dr. Johansson did not comment specifically on the efficacy of fusion surgery as a treatment option, but did state that his only treatment recommendation would be a home exercise program involving “classic” lumbar stabilization exercises.
31. In December 2005, again at Defendant’s request, Claimant underwent an independent medical evaluation with Dr. Victor Gennaro, an osteopath and orthopedic surgeon. Dr. Gennaro diagnosed chronic low back pain and strain. He could not conclude that Claimant’s symptoms were attributable to her spondylolisthesis. He opined that the increase in Claimant’s symptoms might be due to age-related disc deterioration, but he could not state this with certainty.
32. Dr. Gennaro agreed with Dr. Brigham that surgery was not indicated in Claimant’s case, at least in part because she had not undergone a comprehensive psychological evaluation to identify possible secondary gain issues. Instead, Dr. Gennaro opined that the primary treatment for Claimant’s back pain should be smoking cessation, mild aerobic exercise, weight loss and abdominal strengthening.
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33. According to Dr. Gennaro, smoking hinders blood circulation and can cause a patient’s spondylolisthesis to become increasingly unstable and more symptomatic. It also significantly decreases the likelihood of successful fusion. Aerobic exercise helps increase blood circulation to the spine and strengthens both abdominal and lower back muscles. Dr. Gennaro testified that if Claimant were to quit smoking, engage in aerobic exercise and lose weight, there was a better than 50% chance that her pain would be relieved.
34. In Dr. Gennaro’s opinion, the positive indications for surgery in a case such as Claimant’s would include verifiable radiculopathy in the lower extremities, MRI results documenting significant encroachment on the nerve roots or foramen and a negative response to conservative treatment measures. As contraindications against surgery, Dr. Gennaro listed significant or severe obesity, heavy smoking, significant unresolved psychological issues and severe narcotic use.
35. Dr. Gennaro testified that he performs fewer than ten spinal fusion surgeries yearly. He stated that although he agreed with Dr. Brigham’s recommendation that Claimant undergo psychological testing, he did not often have his own patients undergo such screening. He did not find any evidence of malingering or symptom magnification in the course of his examination of Claimant.
36. Dr. Gennaro acknowledged that Claimant has permanent symptoms in her low back arising from her June 2002 injury. He testified that he could not share Dr. Horgan’s optimism as to the likelihood that fusion surgery would result in a decrease in Claimant’s symptoms, though he could not rule out the possibility that it might.
37. Claimant testified credibly at the hearing as to the nature and extent of her back pain and its impact on her daily activities. Her low back aches, and she experiences sharp, shooting pains into her buttocks and down her left leg. When seated, her back “pulls” and her legs fall asleep. Stepping off a curb or bending down might cause pain so severe it “takes my breath away.” Prior to the June 2002 injury, she walked for exercise, as much as 2 miles daily, but she is unable to do so now. She feels limited in her ability to play with her grandchildren or go shopping. She can no longer mow her lawn, make the beds or vacuum. She tries to strengthen her abdominal muscles by holding her stomach in when she walks, but any other exercise makes her back ache “terrible.”
38. Aside from a period of temporary total disability following shoulder surgery, Claimant has continued to work since the June 2002 accident. Her job responsibilities have changed, so that she no longer is required to do any heavy lifting, and her work station has been adjusted ergonomically. Claimant testified that she enjoys her job and does not like being out of work.
39. Claimant currently smokes 4-5 cigarettes daily. She testified that she intends to quit prior to undergoing fusion surgery. Claimant currently stands 4’11” tall and weighs 135 pounds. None of the various medical providers who have treated or examined her have described her as overweight or obese.
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40. Claimant had suffered a prior low back injury in 1994, when she slipped while descending a ladder. Her symptoms fully resolved after a few months. Aside from occasional back aches, Claimant had not experienced any low back pain in the intervening years prior to the June 10, 2002 accident, and certainly nothing of the type and degree she experienced following that event.
CONCLUSIONS OF LAW:
1. Under Vermont’s Workers’ Compensation Act, the employer must furnish “reasonable surgical, medical and nursing services to an injured employee.” 21 V.S.A. §640(a). In determining what is reasonable, “the decisive factor is not what the claimant desires or what she believes to be the most helpful. Rather, it is what is shown by competent expert evidence to be reasonable to relieve the claimant’s back symptoms and maintain her functional abilities.” J.H. v. Therrien Foundations, Opinion No. 53-05WC (August 19, 2005); P.F. v. Ethan Allen, Opinion No. 50-05WC (August 9, 2005); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
2. When an employer seeks to terminate coverage for medical benefits, it has the burden of proving that the treatment at issue is not reasonable. S.S. v. The Book Press, Opinion No. 06-07WC (February 21, 2007); Liscinsky v. Temporary Payroll Incentives, Inc., Opinion No. 9-01WC (March 22, 2001), citing Rolfe v. Textron, Inc., Opinion No. 8-00WC (May 16, 2000). A treatment may be unreasonable either because it is not medically necessary or because it is not related to the compensable condition or injury. S.S. v. The Book Press, supra; see, e.g., Morrisseau v. State of Vermont, Agency of Transportation, Opinion No. 19-04WC (May 17, 2004).
3. In this case, therefore, two issues must be addressed. First, are Claimant’s current low back symptoms causally related to her June 10, 2002 work injury? Claimant argues that they are, because they are generated by her underlying spondylolisthesis, which became symptomatic as a result of the work injury. Defendant argues that they are not, either because Claimant’s spondylolisthesis is clinically insignificant or because it became symptomatic as a result of the natural degenerative aging process and not because of the June 2002 work injury.
4. If the first issue is resolved in Claimant’s favor, then the second issue is whether spinal fusion surgery is a reasonable treatment. Claimant argues that it is, because it offers a favorable success rate and will likely relieve her symptoms and improve her functional abilities beyond what she has been able to accomplish with conservative treatment. Defendant argues that it is not.
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5. As to the first issue, it is true, as the leading workers’ compensation commentator has stated, that all of the medical consequences and sequelae that flow from an injured worker’s primary compensable injury are themselves compensable as well. 1 Larson’s Workers’ Compensation Law §10.01. Determining which medical consequences flow from the primary injury and which do not, however, requires expert medical testimony. Lapan v. Berno’s, Inc., 137 Vt. 393 (1979). Establishing the requisite connection, furthermore, requires more than mere possibility, suspicion or surmise. Rather, the inference from the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
6. In claims involving conflicting medical evidence from expert witnesses, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive, considering (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
7. Dr. Horgan testified that the June 2002 injury was the “sentinel event” that triggered Claimant’s underlying spondylolisthesis to become symptomatic. Although he could not explain the specific pathology that causes the dormant condition to light up and produce symptoms, his testimony as to causal relationship was credible. Dr. Horgan has been one of Claimant’s treating physicians since 2003. He has witnessed the progression of Claimant’s symptoms over time. His interpretation of Claimant’s x-rays and MRI scans provide objective support for his opinion that Claimant’s pain is being generated by her L5-S1 spondylolisthesis. Dr. Horgan is trained as a neurosurgeon, and has treated numerous patients with conditions similar to Claimant’s.
8. None of the medical experts who hold conflicting opinions as to causation have treated Claimant, and therefore none of them have been able to evaluate either her symptoms or her response to conservative treatment over time. None of them have neurosurgical training or experience. Most significantly, none of them have provided an explanation for Claimant’s current symptoms that is as cogent and persuasive as Dr. Horgan’s. To state that there is no explanation for Claimant’s current symptoms, as Dr. Backus did, or simply to conclude that the lumbar strain suffered in June 2002 “has long since resolved,” as Dr. Boucher did, is patently insufficient to negate Dr. Horgan’s finding of causal relationship. Even Dr. Gennaro, who provided the most thoughtful testimony in support of Defendant’s position, could not rule out the possibility that Claimant’s spondylolisthesis became symptomatic because of the June 2002 injury, and could not posit any alternative theory of causation to the required degree of medical certainty.
9. I find, therefore, that Dr. Horgan’s expert opinion as to the causal relationship between Claimant’s current symptoms and her June 2002 injury is the most credible.
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10. Turning to the second issue, whether spinal fusion surgery is a reasonable treatment option, again Dr. Horgan’s expert opinion merits the greatest weight. As noted, Dr. Horgan has been one of Claimant’s treating physicians and therefore has witnessed her commitment to conservative treatment measures, none of which have proven successful. As a neurosurgeon, Dr. Horgan has performed many surgeries of the type he proposes to perform on Claimant, on patients with similar objective findings and subjective complaints. His post-surgical prognosis for Claimant may be optimistic, but it is borne out by his own surgical experience and success rate.
11. Defendant’s medical experts do not share Dr. Horgan’s optimism. The factors they point to as contraindications against surgery, however – the lack of verifiable findings of radiculopathy, morbid obesity, heavy smoking and unresolved psychological issues, for example – are not present here. Claimant has exhibited radicular symptoms at times, as is well documented in her treatment records. She is not morbidly obese and is not a heavy smoker. Most notably, she has not behaved in any was as to indicate that unresolved psychological or secondary gain issues are motivating her to seek surgery.
12. Claimant testified credibly as to the impact her condition has had on her life, the pain she experiences and the functional limitations she endures. She committed herself to conservative treatment measures, but these have failed. The surgical treatment option Dr. Horgan has proposed is at least reasonably likely to be successful at ameliorating her symptoms and improving her quality of life. Under these circumstances, Claimant is entitled to the benefit of any doubt as to whether in fact this will occur. See J.H. v. Therrien Foundations, supra; P.F. v. Ethan Allen, supra.
13. The burden of proof is on Defendant to establish that the proposed surgery does not constitute reasonable treatment for Claimant’s condition. I find that Defendant has not done so. The most credible evidence establishes that surgery is an appropriate option for Claimant to pursue. She has earned the right to attempt it.
14. Having prevailed on her claim, Claimant is be entitled to recover reasonable attorney’s fees and costs pursuant to 21 V.S.A. §678(a) and Workers’ Compensation Rule 10. The Attorney’s fees are reasonable. However, the cost for the expert exceeds the amount of $300.00 per hour in the Rules. The Defendant has objected to costs on this basis. Therefore, Claimant’s attorney has thirty days to file an amended list of costs for consideration.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is ORDERED to pay:
1. Workers’ compensation benefits associated with proposed fusion surgery, including payment of medical bills and both temporary and/or permanent disability benefits, as proven following the procedure.
2. Claimant’s request for attorney’s fees in the amount of $5,157.00.
3. An amended itemized list of Claimant’s costs should be forwarded to the Department within 10 days with appropriate hourly rates for expert deposition testimony and hearing testimony pursuant to Rule 40.1. Upon receipt and a determination of reasonableness, these costs will be awarded.
Dated at Montpelier, Vermont this 28th day of September 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.

Brad Bowen v. Ethan Allen Inc (October 23, 2012)

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

Brad Bowen v. Ethan Allen Inc (October 23, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Brad Bowen Opinion No. 26-12WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Ethan Allen, Inc.
For: Anne M. Noonan
Commissioner
State File Nos. J-04270 and P-02005 OPINION AND ORDER
Hearing held in Montpelier, Vermont on August 10, 2012
Record closed on September 13, 2012
APPEARANCES:
Steven Robinson, Esq., for Claimant
Corina Schaffner-Fegard, Esq., for Defendant
ISSUE:
Is the proposed permanent implantation of a spinal cord stimulator reasonable medical treatment for Claimant’s work related injury?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Dr. Rehman deposition, July 26, 2012 (with attached exhibits)
Claimant’s Exhibit 2: Letter from Dr. Zweber, July 20, 2012
Claimant’s Exhibit 3: Letter from Dr. Moreland, August 3, 2012
Defendant’s Exhibit A: Dr. Binter addendum, July 25, 2012
Defendant’s Exhibit B: Turner, J., et al., Spinal cord stimulation for patients with failed back syndrome or complex regional pain syndrome: a systematic review of effectiveness and complications, Pain, 2004; 108:137-147
Defendant’s Exhibit C: Turner, et al., Spinal cord stimulation for failed back surgery syndrome: Outcomes in a workers’ compensation setting, Pain, 2010; 148(1):14-25
Defendant’s Exhibit D: Letter from Dr. Drukteinis, July 31, 2012
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant started work for Defendant in 1994 as a rip saw operator. The nature of this job required him to bend and twist while he was lifting planks of lumber to place on the saw.
4. Over the course of time Claimant began to develop low back pain, for which he ultimately sought treatment in July 1995. No single incident or event caused his pain to develop; rather, it was a gradual onset injury. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
Claimant’s Course of Treatment
5. Claimant began treating with Dr. Birge, an osteopath at the Northeast Kingdom Health Center, in July 1995. He diagnosed Claimant with low back pain of neuromuscular origin. Over the course of the summer and fall, Claimant’s treatment consisted of medications and physical therapy. Dr. Birge thought depression played a significant role in Claimant’s discomfort. He treated Claimant with psychotropic drugs for both pain and depression.
6. In December 1995 Claimant underwent an MRI that revealed a herniated disc. As a result of these findings, Dr. Phillips performed an L5-S1 discectomy in April 1996. Claimant reported that this surgery was successful.
7. After this initial surgery, Claimant was referred to physical therapy. Initially he attended and participated, but he did not complete the course as directed. Over the ensuing year and a half, his medical professionals encouraged him to participate in physical therapy and a work hardening program, as he could not tolerate his job requirements and was deconditioned. Claimant did not follow these recommendations.
8. From May through September 2003 Claimant underwent several epidural steroid injections, a lumbar facet joint block and radiofrequency ablation, none of which yielded significant relief of his low back pain. This conservative treatment having failed, in January 2005 he underwent additional surgery, again at L5-S1 but this time performed by Dr. Abdu.
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9. Post surgery, Dr. Abdu referred Claimant to physical therapy in February 2005. It is apparent from Dr. Abdu’s March 2005 office note that Claimant participated, but the medical record is silent as to whether he successfully completed this course of therapy.
10. Claimant began treating with Dr. Rehman in October 2008. Dr. Rehman is board certified in physical and rehabilitation medicine as well as pain medicine. Initially he prescribed Neurontin and Celebrex to address Claimant’s pain. Claimant reported that these medications helped him manage his pain and improve his quality of life, with minimal side effects. Throughout 2009, Dr. Rehman also administered a series of epidural steroidal injections and lumbar facet blocks, but Claimant did not derive any substantial pain relief from these procedures.
11. In May 2010 Claimant underwent a third surgery at L5-S1, this time a decompression and fusion performed by Dr. Haycook, an orthopedic surgeon. Thereafter, he reported that his left leg pain had significantly improved. In July 2010 Dr. Haycook’s physician’s assistant wanted to transition him to work conditioning. Claimant did participate in physical therapy, although once again he did not complete the entire prescribed course. Claimant also discontinued his use of both Neurontin and Celebrex during this time, though no doctor had recommended that he do so.
12. In June 2011 Dr. Haycook placed Claimant at end medical result with respect to his surgical care and referred him back to Dr. Rehman for further pain management, including a possible spinal cord stimulator trial.
13. With Dr. Rehman, Claimant underwent additional lumbar facet blocks, lumbar hardware blocks and radiofrequency ablation. He experienced some transient relief from these procedures, but did not achieve sustained pain relief. As Dr. Rehman felt he had exhausted all conservative measures, in March 2011 he recommended that Claimant undergo a spinal cord stimulator trial to address his unresolved pain.
14. In April 2012 Claimant underwent the spinal cord stimulator trial. Subsequently he reported that his low back pain had improved by 70 percent, and his left leg pain by 50 percent. Given these results, Dr. Rehman recommended that the spinal cord stimulator be permanently implanted.
Claimant’s Current Status
15. Claimant is currently 37 years old. He has not been employed since his January 2010 fusion surgery. He was released to return to work full-time, full duty in October 2010, but his then-employer wanted him to undergo a functional capacity evaluation.
16. In May 2011 Claimant completed a functional capacity evaluation. He was credible when he stated he gave his full effort during the evaluation. Claimant demonstrated a work capacity in the heavy physical demand category as to both lifting and carrying. Specifically, he was able to lift 70 pounds occasionally and carry 50 pounds occasionally. Leaning forward from the waist caused him the most pain. Even with that, he reported that during the evaluation his pain level did not exceed a two on a ten-point analog scale.
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17. During the course of a typical day Claimant does housework, walks the family dog several times and reads.
18. Claimant credibly stated that when Defendant’s attorney deposed him in conjunction with the pending claim, his pain level at the end was a two out of ten. The record does not indicate for how long his deposition lasted. Nevertheless, it is reasonable to assume from this experience that he is capable of sitting for some length of time without suffering any increase in symptoms or pain.
19. As to the possibility of treating his pain with a spinal cord stimulator, Claimant credibly testified as follows:
• While undergoing the trial implantation, his pain did not exceed a two out of ten;
• He understands that a permanently implanted stimulator likely will limit his ability to function in some respects;
• He understands that his body may reject the device and that it may not be successful, but he wants to pursue permanent implantation anyway; and
• His goal for this treatment is to reduce his pain, hopefully to a level where he will no longer require narcotic pain medications. This will enable him to work as a truck driver.
Expert Medical Opinions
20. All of the medical experts in this case agree that Claimant suffers from failed back syndrome.
(a) Dr. Rehman
21. Dr. Rehman has been conducting spinal cord stimulator trials for at least the past four years. When he refers a patient for spinal cord stimulator implantation, his purpose is to improve the patient’s functionality and ability to perform activities of daily living. Though he has not undertaken any formal statistical analysis, anecdotally Dr. Rehman estimates that approximately 90 percent of his trial stimulator patients have realized success with permanent implantations as well.
22. In Dr. Rehman’s opinion, Claimant is a good candidate for a permanently implanted stimulator. This is because (a) he has had two spine surgeries, yet his back pain continues to affect his life; (b) his pain is not biomechanical and is not originating either from the facet joints or from any surgical hardware; and (c) his stimulator trial successfully reduced his pain.
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23. Dr. Rehman concluded that permanent implantation of a spinal cord stimulator is medically necessary in Claimant’s case. In his opinion, Claimant has tried and failed all other conservative treatments, including medications, steroid injections, nerve blocks and surgeries. According to Dr. Rehman, Claimant has reached the option of last resort, therefore. However, Dr. Rehman does not address the fact that Claimant has never undergone a complete course of physical therapy, particularly one that focuses on active core strengthening, nor has he attempted a functional restoration program. I find this omission troublesome.
(b) Dr. Zweber
24. Dr. Zweber specializes in orthopedic and physical and rehabilitative medicine. At Claimant’s request he performed a medical records review in July 2012. He reviewed all of the pertinent records prior to rendering his opinions.
25. In Dr. Zweber’s opinion, in specific circumstances spinal cord stimulators are reasonable and necessary treatment for failed back syndrome. In this case, Dr. Zweber believes that Claimant has reasonable expectations of the stimulator’s potential outcomes, and is focusing not just on pain relief but also on improved functioning. The fact that the trial implantation was successful makes permanent implantation even more reasonable. For these reasons, according to Dr. Zweber the stimulator is a reasonable and necessary treatment option for Claimant to pursue.
26. In forming their opinions as to the medical necessity of a permanently implanted stimulator, neither Dr. Rehman nor Dr. Zweber appears to have considered the fact that Claimant already is capable of functioning at a relatively high physical demand level, as evidenced by his May 2011 functional capacity evaluation. Nor do they seem to have accounted for the fact that he consistently has reported his pain level as only a two out of ten on an analog pain scale. With these considerations in mind, it is difficult for me to comprehend how much positive gain they reasonably believe Claimant will realize from a permanently implanted stimulator.
(c) Dr. Binter
28. Dr. Binter is a board certified neurological surgeon. At Defendant’s request, in June and July 2012 she reviewed Claimant’s medical records. Later, she reviewed both his and Dr. Rehman’s depositions as well. Dr. Binter did not examine Claimant.
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29. In Dr. Binter’s opinion, a permanently implanted spinal cord stimulator is neither reasonable nor necessary treatment for Claimant’s work-related injury. She based this opinion in part on the fact that he has not yet exhausted all conservative treatment options for his low back pain, such as:
• Replacing his current opiate medications, which become less effective the longer they are used, with Neurontin and Celebrex, both of which were effective for him in the past, and possibly methadone or buprenorphine as well;
• Engaging in active physical therapy, to include weight training and a functional restoration program, which will improve his core strength and spine stability; and
• Removing the hardware at the L5-S1 surgical site, which likely will ameliorate the pain he reports when bending forward at the waist.
30. Dr. Binter particularly questioned the utility of a spinal cord stimulator in Claimant’s case given that he already is functioning at a fairly high physical demand level. As she correctly observed, even during a rigorous functional capacity evaluation the highest pain level Claimant reported was only a two out of ten. A permanently implanted stimulator likely would reduce rather than increase that level of functionality.1
31. Finally, Dr. Binter concluded from her review of the medical literature that randomized, controlled studies of adequate duration have not shown spinal cord stimulators to be a safe and effective treatment for low back pain. What studies there are indicate that at best the devices are effective for only two years. In light of Claimant’s young age, in Dr. Binter’s opinion this is an insufficient benefit to justify the procedure. I find this rationale persuasive.
(d) Dr. Ensalada
32. Dr. Ensalada is board certified in anesthesiology and pain management. At Defendant’s request, he reviewed Claimant’s medical records in August 2011.
33. In Dr. Ensalada’s opinion, the implantation of a spinal cord stimulator is neither reasonable nor necessary medical treatment for Claimant’s work related injury. Scientific research has not yet established the devices to be safe and effective. What studies there are indicate that while stimulators might be effective at controlling radiating leg pain, they play no role in the treatment of low back pain. Yet Claimant’s primary complaint, as evidenced by Dr. Rehman’s treatment, has been low back pain, not radiating leg pain. For this reason, according to Dr. Ensalada, a permanently implanted stimulator is likely to be ineffective in Claimant’s case.
1 Dr. Binter did not explain in what manner a permanently implanted stimulator would reduce Claimant’s functional capacity. No contrary evidence was presented on this point, however, and Claimant testified that he understood this to be the case. With no reason to disbelieve Dr. Binter, I accept her conclusion in this regard as true.
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34. I find Dr. Ensalada’s opinion credible. Throughout the medical record, Claimant’s treatment has focused on low back pain, not leg pain. This is particularly true with respect to Dr. Rehman. As Dr. Ensalada correctly observed, all of the treatments Dr. Rehman has administered, including epidural steroid injections, hardware blocks and radiofrequency ablation, have been directed entirely at addressing Claimant’s low back pain, not his radiating left leg pain. This underscores the minor nature of the latter symptoms. Given that spinal cord stimulators have been shown to be less effective for low back pain, Dr. Ensalada’s conclusion that the device is not reasonable and necessary treatment for Claimant’s condition is persuasive.
Expert Psychological Opinions
(a) Dr. Moreland
35. Dr. Moreland, a psychologist, evaluated Claimant in June 2012 to determine whether from a psychological perspective he was an appropriate candidate for a permanently implanted spinal cord stimulator. As part of his evaluation, Dr. Moreland interviewed Claimant and also administered the Minnesota Multiphasic Personality Inventory-2 Restructured Form and the Battery for Health Improvement tests. Dr. Moreland later supplemented his report with a follow-up letter in August 2012.
36. In Dr. Moreland’s opinion Claimant is an appropriate candidate for a permanently implanted spinal cord stimulator. He did not exhibit excessive somatization or psychopathology that might interfere with the device’s utility, and responded positively to a trial implantation. In addition, he has a strong family support network and, except for his fusion surgery, successfully returned to work following previous treatments.
37. I find Dr. Moreland’s analysis persuasive. It is based both on personal observation and on standardized psychological testing.
(b) Dr. Drukteinis
38. Dr. Drukteinis is board certified in psychiatry and neurology. At Defendant’s request, he reviewed Claimant’s pertinent medical records in July 2012. Dr. Drukteinis’ review included Dr. Moreland’s June 2012 report, but not his August 2012 follow-up letter.
39. In Dr. Drukteinis’ opinion, Dr. Moreland did not screen Claimant adequately for psychiatric or psychological factors that might impede treatment for his physical condition. He took only a limited psychosocial history. Thus, he was unaware that as early as July 1995 Dr. Birge had determined that depression was playing a significant role in Claimant’s discomfort and therefore prescribed psychotropic drugs as part of his treatment plan. According to Dr. Drukteinis, had Dr. Moreland conducted a more thorough review of Claimant’s past physical and psychological history, he would have known this. As a consequence, during the course of his evaluation he might have questioned whether Claimant was being truthful when he denied any prior history of treatment for mental health issues.
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41. I do not find Dr. Drukteinis’ opinion persuasive. I find more convincing Claimant’s explanation for the omission – that he thought the medications Dr. Birge had prescribed were solely for pain and that he did not view himself as being depressed at the time. Dr. Moreland concurred with this analysis, and felt that Claimant’s failure to mention the issue during his interview with him was not significant.
42. Based on the evidence presented, I find that Claimant is an appropriate psychological candidate for a spinal cord stimulator. He does not suffer from any significant psychopathology and he has realistic expectations.
CONCLUSIONS OF LAW:
1. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
2. The treatment issue here revolves solely around the medical necessity question. The parties’ experts disagree whether surgical implantation of a spinal cord stimulator is medically appropriate treatment for Claimant’s work injury.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Based primarily on the third factor, I conclude here that Dr. Binter’s opinion is the most persuasive. Dr. Binter’s analysis was grounded in large part on Claimant’s objectively measured performance during his functional capacity evaluation. He demonstrated there that he was capable of functioning at a heavy physical demand level, with pain that did not exceed a two on a ten-point analog scale. With due regard for Claimant’s age, Dr. Binter also convincingly concluded that to implant a device that is likely to be effective for only two years is not justifiable, particularly where conservative treatment options, such as more active physical therapy and functional restoration, have not been fully exhausted. Considering these factors, Dr. Binter’s analysis was clearer, more thorough and better supported objectively than the analyses put forth by Claimant’s experts.
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5. I conclude that Claimant has failed to sustain his burden of proving that a permanently implanted spinal cord stimulator is likely either to relieve his most troublesome symptoms or to maintain or increase his functional abilities. The credible evidence, including Claimant’s own testimony, establishes that his pain level has remained relatively static, through both a rigorous functional evaluation and even a trial period with the stimulator. The determination whether a treatment is reasonable must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition. Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000). I cannot conclude that the stimulator will likely achieve that result here.
6. Finally, citing Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012), as support, Claimant argues that he should be able to direct his own treatment course when two equally reasonable options have been presented. That is, Claimant argues that permanently implanting a spinal cord stimulator is just as reasonable a treatment option as, for example, participating in an active core strengthening and/or functional restoration program might be. I disagree. The permanent implantation of a spinal cord stimulator is an invasive procedure. Claimant is a young man, and what research data there is suggests that the device likely will lose its effectiveness after two years. As compared with the option of undergoing conservative therapies that have not yet been fully explored, the stimulator option is a less reasonable alternative, not an equally viable one. Therefore, Cahill does not avail Claimant in this case.
7. I conclude that Claimant has not sustained his burden of proving that a permanently implanted spinal cord stimulator constitutes reasonable treatment for his work-related injury.
8. As Claimant has failed to prevail on his claim for benefits, he is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for medical benefits associated with the permanent implantation of a spinal cord stimulator is hereby DENIED.
DATED at Montpelier, Vermont this 23rd day of October 2012.
____________________________
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.

Lorrie Cahill v. Benchmark Assisted Living (April 27, 2012)

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Lorrie Cahill v. Benchmark Assisted Living (April 27, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Lorrie Cahill Opinion No. 13-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Benchmark Assisted Living
For: Anne M. Noonan
Commissioner
State File No. BB-53987
OPINION AND ORDER
Hearing held in Montpelier on January 27, 2012
Record closed on March 12, 2012
APPEARANCES:
William Skiff, Esq., for Claimant
Craig Matanle, Esq., for Defendant
ISSUE PRESENTED:
Is proposed lumbar fusion surgery a medically reasonable and necessary treatment for Claimant’s work-related chronic low back pain?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Robert Monsey, M.D.
Defendant’s Exhibit A: Curriculum vitae, Verne Backus, M.D., M.P.H.
Defendant’s Exhibit B: ACOEM Occupational Medicine Practice Guidelines
Defendant’s Exhibit C: Brox, JI et al., Randomized Clinical Trial of Lumbar Instrumented Fusion and Cognitive Intervention and Exercises in Patients with Chronic Low Back Pain and Disc Degeneration, SPINE, 2003; 28(17):1913-1921; Brox, JI et al, Lumbar instrumented fusion compared with cognitive intervention and exercises in patients with chronic back pain after previous surgery for disc herniation: A prospective randomized controlled study, Pain, 2006; 122:145-155
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Defendant’s Exhibit D: Fairbank, J et al., Randomised controlled trial to compare surgical stabilization of the lumbar spine with an intensive rehabilitation programme for patients with chronic low back pain: the MRC spine stabilization trial, BMJ, doi:10.1136/bmj.38441.620417BF (23 May 2005)
Defendant’s Exhibit E: Fritzell, P et al., 2001 Volvo Award Winner in Clinical Studies: Lumbar Fusion Versus Nonsurgical Treatment for Chronic Low Back Pain, SPINE, 2001; 26(23):2521-2534
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant has worked as a licensed practical nurse at The Arbors, a dementia care community owned by Defendant, since 2007. Her duties have included performing assessments on new residents, training new staff, completing patient charts and often, lifting residents and assisting with bed, bathroom and chair transfers. The latter function in particular is physically strenuous.
Claimant’s Work Injury and Subsequent Medical Treatment
4. On October 9, 2009 Claimant was assisting a wheelchair-bound resident with a bathroom transfer. Midway through the transfer, the resident, who weighed approximately 200 pounds, began to fall. Claimant supported his weight and guided him back into the wheelchair. As she did so, she felt a pull in the right side of her lower back.
5. Claimant promptly reported her injury and then sought medical care in accordance with Defendant’s established procedures. To date, her treatment has been conservative in nature, as overseen by Dr. Bjornson, the provider to whom Defendant initially referred her. Claimant has undergone courses of physical therapy, osteopathic manipulation, epidural steroid injections, medial branch blocks and radiofrequency ablation. She has fully complied with all treatment recommendations, and has maintained a home exercise program that includes walking and daily exercise. Despite these efforts, none of the conservative therapies she has undergone have provided effective long-term relief of her symptoms.
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6. Since her injury Claimant has continued to suffer from low back pain, sometimes accompanied by a pinching sensation in her lumbosacral spine. The pain interferes with her sleep. It is relieved somewhat by sitting, and aggravated by standing or walking. It precludes her ability to engage in many of the recreational activities she used to enjoy, such as hiking with her family, playing with her grandchildren, snow shoeing, sledding and camping. At the formal hearing, Claimant became visibly and credibly upset when discussing these limitations.
7. After a relatively brief period of temporary total and/or partial disability, Claimant returned to work full time in January 2010. She was restricted, however, from lifting, pushing or pulling more than ten pounds. This restriction, which remains in effect today, precludes her from performing her full duties as a floor nurse. Claimant can no longer assist with patient transfers. She has difficulty getting down to floor level to assess a patient who has fallen. She frequently requires help from co-employees to complete tasks that she used to be able to undertake on her own. Having to do so, she stated, “makes me feel like I’m one of my patients instead of a whole person.” Again, Claimant became visibly and credibly upset when discussing the impact that the injury has had on her work.
8. To its credit, Defendant has fully accommodated Claimant’s work restrictions, and as a result she has continued to be employed there on a full time basis. As she did prior to her injury, Claimant works two days per week in the office, performing patient assessments and other administrative tasks. Clearly, however, her inability to do the type of direct patient care she enjoyed previously weighs heavily on her. Claimant testified credibly that she devotes her entire work day to dealing with her pain, to the point where at the end of every day she is exhausted. If her pain continues at its current level, she is concerned that she may not be able to maintain full time work at a job she loves. I find this concern to be justified.
Dr. Monsey’s Surgical Recommendation
9. Claimant has undergone numerous MRI scans since her injury. These have revealed mild degenerative changes from L4-5 to L5-S1, including a small central disc herniation at the latter level, but with no evidence of nerve root impingement.
10. At Dr. Bjornson’s referral, in October 2010 Claimant underwent an evaluation with Dr. Monsey, a board certified orthopedic surgeon. Dr. Monsey diagnosed mechanical low back pain, with no evidence of myelopathy, radiculopathy or spinal instability.
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11. To assist in determining the source of her pain, at Dr. Monsey’s referral Claimant underwent further diagnostic testing, known as discography. Proponents of discography theorize that the test provides a means of identifying whether a particular disc is the source of a patient’s mechanical low back pain. During testing, needles are inserted in the middle of various discs, and the patient’s pain response is noted accordingly. If the patient experiences “concordant pain,” that is, pain identical in location and character to his or her chronic pain, then the disc injected is presumed to be the pain generator. If the patient fails to experience concordant pain, then the injected disc is presumed not to be the pain generator.
12. Noting the correlation between Claimant’s reported symptoms, her diagnostic imaging studies and her response to discography, Dr. Monsey identified her L4-5 and L5-S1 discs as the source of her low back pain. As treatment, he has recommended fusion surgery. The procedure he proposes is complicated. It involves both anterior and posterior incisions, with placement of a cage to support the spine from the front and pedicle screws to support it from the back.
13. In Dr. Monsey’s estimation, there is a 70 percent chance that the fusion surgery he has proposed will provide Claimant with good relief of symptoms, a 30 percent chance that it will not result in any appreciable change, and a 1 to 2 percent chance that it will cause her symptoms to worsen.
14. Dr. Monsey has characterized the proposed fusion surgery as one involving a quality of life decision for Claimant. It is based solely on her assessment of how severe her pain is and how much it impacts the quality of her life, balanced against the risk that surgical intervention will not work and might even cause her pain to increase.
15. Claimant’s primary treating physician, Dr. Bjornson, has expressed support for Dr. Monsey’s proposed surgery as a reasonable treatment option given Claimant’s failure to respond adequately to conservative treatment measures.
16. Claimant testified credibly that she understands the potential risks of surgery as Dr. Monsey explained them to her, including the risk that she might suffer serious surgical complications, that she might require repeat surgery and/or that the surgery might prove ineffective. In her estimation, the risks of undergoing the procedure are more than outweighed by the possibility that it will increase the quality of her life and restore her ability to function.
Dr. Backus’ Opinion; the ACOEM Practice Guidelines
17. At Defendant’s referral, Claimant has undergone two independent medical examinations with Dr. Backus, the first in April 2010 and more recently in January 2012. Dr. Backus is a board certified specialist in occupational and environmental medicine. He also holds a master’s degree in public health. Dr. Backus’ educational background includes a focus on epidemiology and statistics. With this training, he strives to analyze and incorporate the results of so-called “evidence-based” medical research studies into his treatment recommendations.
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18. Based both on his review of Claimant’s medical records and on his own physical examination, Dr. Backus has concluded, to a reasonable degree of medical certainty, that her current complaints are causally related to her compensable work injury. He disagrees, however, with Dr. Monsey’s surgical treatment recommendation. In Dr. Backus’ opinion, fusion surgery does not constitute reasonable and necessary medical treatment for the type of mechanical low back pain from which Claimant suffers.
19. In formulating his opinion as to the reasonableness of Dr. Monsey’s proposed surgery, Dr. Backus relied heavily on the practice guidelines published by the American College of Occupational and Environmental Medicine (ACOEM). In developing these practice standards, which encompass a wide range of occupational injury treatment strategies, the ACOEM uses panels of specialists to identify and review original research studies and then grade them for design, execution and analysis of results. Based on these reviews, the panels evaluate the strength of evidence showing that a particular treatment, test or intervention improves important health and functional outcomes. Balancing the potential benefit against both the potential harm and the anticipated cost, the ACOEM decides whether to issue a recommendation either for or against each treatment’s use.
20. In matters germane to this claim, the ACOEM has studied both the use of discography as a diagnostic tool and spinal fusion as a treatment option for patients with non-specific, mechanical low back pain. It has designated both interventions as “moderately not recommended,” meaning that at least “moderate evidence1” exists that they are either ineffective and/or that the harms or costs outweigh their benefits.
21. As to discography, the ACOEM practice guideline cites “quality studies” finding that the test’s positive predictive value is at or below 50 percent, meaning that it does not reliably indicate what particular disc is the source of a patient’s pain. The lack of standardized technique, the invasive nature of the test and potential adverse side effects also mandate against its use as a surgical planning tool, according to the ACOEM.
22. In explaining the rationale behind its spinal fusion practice guideline, the ACOEM discussed four “high quality” studies at some length. All four studies, copies of which were introduced into evidence, compared the efficacy of treating patients suffering from mechanical low back pain with surgical intervention (lumbar fusion) as opposed to non-operative therapies (either ongoing physical therapy or a combination of cognitive behavioral therapy and exercise). The earliest study, conducted in 2001, showed significantly better outcomes in the surgical group, in terms of both diminished pain and decreased disability, but was criticized by subsequent researchers for its faulty design. No clear evidence emerged from the later studies, conducted in 2003, 2005 and 2006, that spinal fusion surgery produced significantly better outcomes than non-operative therapies. With no definitive evidence of the surgery’s efficacy, and factoring in what it terms a “significant rate of serious complications” and a “substantial cost,” the ACOEM currently recommends against “routinely providing” lumbar fusion as treatment for chronic non-specific low back pain.
1 The ACOEM defines “moderate evidence” as involving at least one “high quality” study or multiple “moderate quality” studies relevant to the topic and the working population.
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23. It is important to note that none of the four studies specifically discussed in the ACOEM practice guideline concluded that lumbar fusion was ineffective at treating mechanical low back pain. Indeed, the reported results included a 33 percent reduction in back pain among the surgical patients in the 2001 study, a 70 percent surgical success rate in the 2003 study, and a 50 percent surgical success rate in the 2006 study. Rather, with the exception of the 2001 study the primary finding of the more recent studies was simply to establish the efficacy of non-operative interventions, particularly those with both a cognitive behavioral and an exercise component, as an effective alternative to surgery, one that carries fewer potential risks and comes at a lower cost than fusion.2
24. In formulating his opinion as to the efficacy of Dr. Monsey’s proposed fusion surgery as treatment for Claimant’s low back pain, Dr. Backus relied not only on the ACOEM practice guidelines but also on his own clinical experience. He has treated many patients for whom fusion surgery has failed to provide effective long-term relief. Dr. Backus acknowledged, however, that as a surgeon Dr. Monsey likely has followed more fusion patients. He agreed, furthermore, that were Dr. Monsey to perform the surgery he has proposed, this would not constitute malpractice or qualify in any way as outside the accepted medical standard of care.
25. Neither Dr. Monsey nor Dr. Bjornson has ever recommended that Claimant undergo a combination of cognitive behavioral therapy and intensive exercise such as that offered to the non-operative groups in the 2003, 2005 and 2006 research studies. Given that Claimant has continued to work full time, Dr. Backus acknowledged that she likely has already incorporated at least some of the components of such a program into her life.
CONCLUSIONS OF LAW:
1. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
2. The treatment issue here revolves solely around the medical necessity question. Both parties’ experts agree that Claimant’s current condition is causally related to her compensable injury. Where they disagree is as to whether fusion surgery is a medically appropriate treatment option for her mechanical low back pain.
2 To compare, the non-operative success rate in the 2003 study was 76 percent; in the 2006 study it was 48 percent.
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3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. I conclude here that Dr. Monsey’s opinion is the most persuasive. His status as Claimant’s treating physician merits serious consideration. He is a well qualified surgeon, whose treatment recommendation is based on his own experience with similar patients. I have no reason not to believe his prediction that the fusion surgery he has proposed likely will be successful.
5. Neither the ACOEM practice guidelines nor the research studies upon which Dr. Backus relied are sufficient to convince me otherwise. None of those sources went so far as to advocate against the use of fusion surgery in every circumstance, or even to posit that it is an ineffective treatment. Even notwithstanding such evidence-based research, therefore, the door remains open for an experienced treating surgeon to recommend the procedure for a particular patient, as Dr. Monsey has done here.
6. The determination whether a treatment is reasonable must be based primarily on evidence establishing the likelihood that it will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000). An injured worker’s subjective preferences cannot render a medically unreasonable treatment reasonable. See, Britton v. Laidlaw Transit, Opinion No. 47-03WC (December 3, 2003). As is the case with many aspects of medical decision-making, however, there can be more than one right answer, and thus more than one reasonable treatment option for any given condition. Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010). I conclude that this is the case here.
7. I acknowledge what the available research appears to show, namely that in appropriate circumstances a combination of cognitive behavioral therapy and intensive exercise may be as effective as fusion surgery at treating mechanical low back pain. To the extent that this non-surgical option comes with fewer risks and lower costs, in some cases it may well be the more attractive alternative. This does not mean, however, that the surgical option is automatically rendered unreasonable as a result. Lackey, supra. The test remains one of balancing the relative risks and benefits to a particular patient in a particular case. See, e.g., Estate of George v. Vermont League of Cities and Towns, 2010 VT 1 (cautioning against use of epidemiological studies to establish specific work-related causation in a workers’ compensation claim).
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8. Although the workers’ compensation statute mandates that employers pay only for “reasonable” medical treatment, it does not in any way require that injured workers thereby forfeit the right to direct their own medical care. Lackey, supra. I am convinced by the evidence here that Dr. Monsey has proposed a reasonable treatment option, one that likely will relieve Claimant’s symptoms and improve her ability to function, and that Claimant has chosen it after thoughtfully weighing the inherent risks against the potential benefits. This is her prerogative.
9. I conclude that the fusion surgery Dr. Monsey has proposed constitutes medically necessary treatment for Claimant’s work injury, and is thus reasonable under the circumstances. Defendant is therefore obligated to pay for the medical and indemnity costs associated with it.
10. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits associated with Dr. Monsey’s proposed fusion surgery, in accordance with 21 V.S.A. §640(a); and
2. Costs and attorney fees in amounts to be established, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 27th day of April 2012.
__________________
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.

Denise Carr v. Copley Hospital (February 23, 2012)

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

Denise Carr v. Copley Hospital (February 23, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Denise Carr Opinion No. 06-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Copley Hospital
For: Anne M. Noonan
Commissioner
State File No. AA-52236
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 4, 2011
Record closed on December 13, 2011
APPEARANCES:
Joseph Galanes, Esq., for Claimant
Jeffrey Spencer, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant’s left shoulder impingement syndrome causally related to her August 22, 2008 compensable work injury?
2. If yes, to what workers’ compensation benefits is she entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Temporary partial disability benefit calculation, with
supporting payroll records
Defendant’s Exhibit A: Curriculum vitae, Jonathan Sobel, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Temporary partial disability benefits pursuant to 21 V.S.A. §646
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked in Defendant’s housekeeping department for seven years. Her job duties included cleaning patients’ rooms, making beds, washing walls and working in the laundry.
4. On August 21, 2008 Claimant reported an injury to her right thumb, hand and wrist, which had become swollen and sore as a result of her housekeeping duties. She was diagnosed with tendinitis in her thumb and arthritis in her wrist. Defendant accepted both of these injuries as compensable and began paying workers’ compensation benefits accordingly.
5. After her symptoms failed to resolve with conservative treatment, Claimant was referred to Dr. Mullins, an orthopedic surgeon. In January 2009 she underwent surgery, both to reconstruct the ligament in her thumb and to address the arthritis in her wrist.
6. Initially Claimant appeared to be recovering well from surgery. Her wrist was casted until early March 2009. Unfortunately, by the time the cast was removed she had developed complex regional pain syndrome (CRPS) in her right hand. This caused pain, swelling and hypersensitivity in her fingers, hand, wrist and forearm. As a result, for a period of months after her wrist surgery Claimant avoided using her right upper extremity, and used her left arm for most tasks instead.
7. During the period when her right arm was immobilized Claimant began to complain increasingly of right shoulder pain. By August 2009, her CRPS-related hand pain had essentially resolved, but her right shoulder pain continued. In addition, she began to complain of left shoulder pain as well.
8. Dr. Mullins attributed the pain in Claimant’s right shoulder to an impingement syndrome caused by prolonged inactivity and disuse of her right arm. With disuse, the rotator cuff becomes weak, which allows the arm bone to migrate and come in contact with the shoulder blade. This narrows the space through which the tendons of the shoulder must slide and causes them to become caught, or impinged. The tendons and tissues in the area become inflamed, which leads to swelling, tearing and even more impingement.
9. Interestingly, Dr. Mullins attributed the cause of Claimant’s left shoulder pain to impingement as well, though as the result of a somewhat different process. In the left shoulder, impingement resulted from her overuse of that extremity as compensation for her inability to use her right (dominant) arm. Overuse caused the tissues in the area to become inflamed, which in the context of degenerative changes in the joint led to impingement.
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10. Claimant underwent right shoulder surgery in February 2010. According to Dr. Mullins’ office notes, by mid-May she had resumed most of her regular activities and was released to return to work without restrictions.
11. Rather than returning to hospital housekeeping work, Claimant found a job instead at the Hardwick Kwik Stop and Deli. Initially she worked part-time, three or four days a week for four to six hours daily. Primarily she worked behind the deli counter, making grinders and doing light cleaning. Unfortunately, when she attempted to increase her hours to full-time her pain flared, particularly in her neck and left shoulder.
12. Claimant’s left shoulder symptoms, which her treating providers again attributed to overuse, failed to resolve with physical therapy. In October 2010 she underwent left shoulder surgery.
13. Claimant’s recovery from her left shoulder surgery has been marred by flared CRPS symptoms in her right hand, as well as pain and stiffness in her wrists bilaterally. She has continued to work at her deli counter job, but is limited to a maximum of three hours per day, three days per week.
Expert Medical Opinions
(a) Dr. Sobel
14. Dr. Sobel, a board certified orthopedic surgeon, reviewed Claimant’s medical records at Defendant’s request in April 2011. To a reasonable degree of medical certainty, in his opinion Claimant’s left shoulder condition is not causally related in any respect to her work for Defendant.
15. Dr. Sobel concurred with Dr. Mullins’ diagnosis of left shoulder impingement syndrome. In his analysis, Claimant suffered from age-related degenerative arthritic changes. Over time, bone spurs developed and impinged into the tendons and tissues in and around the rotator cuff. These changes were in no way related either to Claimant’s work for Defendant or to overcompensating for her inability to use her right arm.
16. Dr. Sobel acknowledged that when tendons or tissues in the joint become inflamed, the impingement in the joint can worsen. In his opinion, even with her right arm essentially immobilized the routine activities for which Claimant used her left arm were not of a type as to cause further inflammation. This might be the case were she to use her left arm repetitively overhead, a motion that squeezes the top of the rotator cuff, but there was no evidence of that here.
17. Dr. Sobel determined that Claimant had reached an end medical result for the work-related injury to her right thumb and hand at least by the date of his April 2011 records review. Because he concluded that Claimant’s left shoulder condition was not work-related, he did not express an opinion as to when she might have reached an end medical result for that condition, or whether she suffered any ratable permanent impairment referable to it.
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(b) Dr. Backus
18. At her attorney’s referral, in September 2011 Claimant underwent an independent medical examination with Dr. Backus, an occupational medicine specialist. Of note, Dr. Backus reported that in relating her history to him Claimant asserted that her left shoulder pain actually predated her August 2008 work injury by some months. The contemporaneous medical records do not corroborate this assertion, however.
19. Dr. Backus concurred with both Dr. Mullins and Dr. Sobel as to diagnosis – left shoulder impingement syndrome. Generally, he concurred as well with Dr. Sobel’s analysis as to how the condition developed – first arthritis in the joint, which caused bone spurs to grow, which resulted in impingement and then inflammation of tendons and tissues. Where Dr. Backus’s opinion diverged from Dr. Sobel’s was as to the contribution first of Claimant’s work activities and later of her August 2008 compensable injury on this progression.
20. Unlike Dr. Sobel, who attributed Claimant’s left shoulder condition solely to age-related degenerative changes, Dr. Backus concluded, to a reasonable degree of medical certainty, that Claimant’s work for Defendant was a contributing factor. He based this conclusion on the following assumptions:
• That Claimant’s left shoulder symptoms had been ongoing for some time prior to August 2008;
• That her housekeeping duties for Defendant involved sufficient forceful repetition and awkward postures as to constitute an occupational risk factor for development of an impingement syndrome; and
• That once the impingement developed, it then worsened as a consequence of overcompensation triggered by her August 2008 hand injury, subsequent CRPS and right shoulder immobilization.
21. As of the date of his examination, September 7, 2011, Dr. Backus determined that Claimant had reached an end medical result.1
Discontinuance of Temporary Disability Benefits
22. Defendant initially disputed the compensability of Claimant’s right shoulder surgery. Claimant appealed the denial, and on June 16, 2010 the Department issued an interim order in which it found the surgery to be compensable. Defendant did not appeal the order to formal hearing, but rather undertook to pay both medical and indemnity benefits in accordance with its terms.
1 In the context of his independent medical examination, Dr. Backus rated Claimant with a 16 percent permanent impairment referable to her left shoulder injury. Claimant did not make a claim for permanency benefits in accordance with this rating, however, nor did Defendant present any countervailing evidence. As such, I consider the permanency issue to be beyond the scope of this decision.
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23. As noted above, Finding of Fact No. 11 supra, rather than returning to work for Defendant, following her right shoulder surgery Claimant instead began working part-time at the Hardwick Kwik Stop and Deli. Although the record is not entirely clear, apparently Defendant paid temporary partial disability benefits for some months thereafter. It discontinued these as of the date Claimant underwent left shoulder surgery, October 22, 2010. Again, the record is not entirely clear, but it appears that Defendant did so on the grounds that any ongoing disability now was attributable not to Claimant’s right shoulder injury but rather to her left shoulder condition, the compensability of which Defendant disputed.
24. Defendant did not file any Notice of Intention to Discontinue Payments (Form 27) prior to discontinuing Claimant’s temporary partial disability benefits.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The disputed issue here is whether Claimant’s left shoulder impingement syndrome was causally related to her work for Defendant. Drs. Mullins and Backus assert that it was; Dr. Sobel asserts that it was not.
3. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Against this backdrop, I conclude primarily on the basis of Dr. Mullins’ opinion that Claimant’s left shoulder injury most likely resulted from overcompensation triggered by her inability to use her right arm for some time after her August 2008 work injury. As the treating physician, Dr. Mullins was best positioned to understand how Claimant’s left shoulder symptoms progressed. I accept as credible both his and Dr. Backus’ analysis of how overuse caused the tendons and tissues in her left shoulder to become inflamed to the point where surgical release became necessary.
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5. In reaching this conclusion, I acknowledge the deficiencies in Dr. Backus’ opinion, particularly as to his conclusion that Claimant’s work activities caused arthritis, bone spurs and some degree of impingement even before August 2008. As noted above, Finding of Fact No. 18 supra, Claimant’s assertion that she had been suffering from left shoulder pain for some months prior was not substantiated by any of the contemporaneous medical records, and therefore I question the weight Dr. Backus accorded it as a basis for his opinion. Beyond that, Dr. Backus’ conclusion that Claimant’s work presented occupational risk factors appears to have been based on a rather superficial inquiry as to the nature and extent of her housekeeping duties.
6. For these reasons, I find that Dr. Backus’ opinion as to the work-relatedness of Claimant’s condition prior to her August 2008 injury is somewhat speculative. Nevertheless, I accept as credible both his and Dr. Mullins’ determination that whatever degenerative condition existed in Claimant’s left shoulder, it was exacerbated by the overuse that resulted from the work-related injury to her right upper extremity. Claimant’s left shoulder injury thus evolved as a natural consequence of a compensable injury, and is itself compensable. Marsigli’s Estate v. Granite City Auto Sales, Inc., 124 Vt. 95 (1964); 1 Lex K. Larson, Larson’s Workers’ Compensation §10 (Matthew Bender, Rev. Ed.) at p. 10-1.
7. I conclude that Dr. Sobel’s opinion as to the causal relationship between Claimant’s inability to use her right arm and her worsening left shoulder impingement syndrome is less persuasive than either Dr. Mullins’ or Dr. Backus’. Relying solely on Claimant’s medical records, Dr. Sobel had no opportunity either to physically examine her or to understand how her left shoulder symptoms progressed with disuse of her right arm.
8. I conclude that Claimant has sustained her burden of proving that her left shoulder impingement syndrome was causally related to her compensable right upper extremity injury and is therefore compensable as well. Defendant therefore is responsible for whatever medical treatment was necessitated as a result, including Dr. Mullins’ October 2010 surgery.
9. I further conclude that Claimant reached an end medical result for her left shoulder impingement syndrome on September 7, 2011. Defendant is therefore obligated to pay temporary total and/or temporary partial disability benefits from the date these were discontinued, October 22, 2010, through September 7, 2011.2
10. Last, I conclude that Claimant is entitled to permanent partial disability benefits. As noted above, Finding of Fact No. 21, note 1 supra, although Dr. Backus issued a permanency rating in the context of his independent medical examination, Claimant has not made a claim for permanency benefits in accordance therewith. Therefore, none are awarded at this time.
2 Having concluded that Claimant’s left shoulder condition is compensable, Defendant’s discontinuance of temporary disability benefits in October 2010 was improper on substantive grounds. The fact that it failed to file the necessary Form 27 is a clear violation of both 21 V.S.A. §643a and Workers’ Compensation Rule 18, as a result of which Defendant would have been responsible for ongoing payments in any event.
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11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable medical services and supplies necessitated by Claimant’s compensable left shoulder impingement syndrome, in accordance with 21 V.S.A. §640;
2. Temporary total and/or temporary partial disability benefits from October 22, 2010 through September 7, 2011, in accordance with 21 V.S.A. §§642 and 646, with interest as calculated in accordance with 21 V.S.A. §664; and
3. Costs and attorney fees in amounts to be determined in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 23rd day of February 2012.
_______________________
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.

Semka Mujic v. Vermont Teddy Bear Factory (February 7, 2012)

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

Semka Mujic v. Vermont Teddy Bear Factory (February 7, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Semka Mujic Opinion No. 04-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Vermont Teddy Bear Factory
For: Anne M. Noonan
Commissioner
State File No. AA-56037
OPINION AND ORDER
Hearing held in Montpelier on November 2, 2011
Record closed on December 13, 2011
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUES PRESENTED:
1. Did Claimant’s work for Defendant cause or aggravate her current cervical spine condition?
2. Does Dr. Jewell’s proposed fusion surgery represent reasonable medical treatment under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Stipulation
Claimant’s Exhibit 1: Deposition of Ryan Jewell, M.D., November 2, 2011
Defendant’s Exhibit A: Personnel file
Defendant’s Exhibit B: Site visit video, May 20, 2011
Defendant’s Exhibit C: Video evaluation by Dr. Sobel
Defendant’s Exhibit D: Curriculum vitae, Jonathan Sobel, M.D.
Defendant’s Exhibit E: Curriculum vitae, George White, Jr., M.D., M.S.
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
Claimant’s Work from 1996 to 2010
3. Claimant, a Bosnian native, immigrated to the United States in 1996 and settled in Vermont. She began working as a sewer for Defendant in November 1996. Her job was to assemble component parts for teddy bears. The work was fast-paced and somewhat strenuous. It required her to force thick material through an industrial sewing machine for the whole of her eight-hour day. Claimant testified that sitting in a bent-over position as she worked the sewing machine she often felt strain in her neck, upper back and shoulders. She never reported any injury to her supervisors, however, and never sought medical treatment for these complaints during her tenure at this job.
4. Claimant worked at the sewing job for three years. In September 1999 she left to take a job assembling cable at Huber+Suhner. Claimant found this job to be much easier, as it was not as fast-paced or as stressful physically as her work for Defendant had been.
5. Claimant worked at Huber+Suhner for two years. She was laid of in September 2001. Thereafter, she was unemployed for approximately one year. In October 2002 she again sought employment at Defendant’s facility and was rehired.
6. Upon returning to work for Defendant, initially Claimant resumed her old job sewing teddy bear parts. In May 2004 she transferred to the order fulfillment department. Claimant welcomed the transfer, as she anticipated that this job would be less taxing physically.
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7. Claimant’s duties in order fulfillment were varied.1 Her primary responsibility was packing pajamas. As a cardboard shipping box containing whichever products a customer had ordered came down the conveyor belt from the picking line, Claimant would remove the products, fold and place them into a decorative organza container, then return them to the shipping box and send it down the line to the shipping department. Claimant typically spent six to eight hours daily at this task, and typically met the expected quota of 20 boxes packed per hour.
8. During her tenure in the order fulfillment department, Claimant spent most of her time on the pajama packing line. Depending on Defendant’s needs, at times she worked on the bear packing line instead. This was a similar process, with the added step of dressing the bears in accordance with the customer’s order prior to sending the box down the line to be shipped.
9. At other times Claimant worked on the picking line – on busy days, for up to three or four hours, less on slower days. This task involved manually moving several shipping boxes at a time down a conveyor belt, picking the products required to fulfill each customer’s order as she went. The products were stored in cardboard boxes arranged on shelves to her side, from floor level to above-shoulder height. Once each order was completed, Claimant would move its shipping box from the manual conveyor to a mechanical one, where it would travel to the packing line.
10. With cross-training, Claimant sometimes performed other functions as well. One or two days per week she worked in the print room, printing and sorting incoming order forms. Other assignments included hand-checking boxes for quality control, embroidering personalized bears and hand-wrapping boxes for storage. Monthly she would have to assist with inventory, which required removing the boxes in the picking area from their shelves, counting the product inside and then placing the boxes back on the shelves.
11. One of the tasks with which Claimant experienced the most difficulty was stocking product in the picking area. She used a small box cutter to open the front of each box so that it could be accessed easily from the picking line. The cardboard was thick, and cutting through it caused pain in her right arm. It is unclear from the evidence presented how often Claimant had to perform this task.
12. Claimant worked in the order fulfillment department from May 2004 until October 1, 2010. She terminated her employment with Defendant on that date and moved to Massachusetts, where her husband had taken a job. She has not worked since. In July 2011 she was determined eligible for social security disability benefits on account of an unrelated medical condition.
Claimant’s Prior Medical History
1 Some of Claimant’s job assignments were depicted on Defendant’s Exhibit B, a videotaped demonstration by her supervisor of the various tasks involved on each line, albeit not at the same pace that Claimant would have had to perform them. Claimant described other job assignments, not depicted on the video, in her formal hearing testimony.
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13. As documented by her medical records, Claimant has a history of neck and right upper extremity complaints dating back at least to July 2000. The symptoms she reported at that time included constant neck pain, discomfort extending into her right shoulder and arm, headaches and right-sided facial numbness. Notably, during the time when Claimant underwent evaluation and treatment for these symptoms, from July 2000 through July 2001, she was working not for Defendant but in her cable assembly job at Huber+Suhner. Claimant herself described this job as lacking the stress and strain on her neck, upper back and right arm that she had attributed to her sewing job.
14. Despite diagnostic testing, the etiology of Claimant’s symptoms was never definitively established. An MRI study in April 2001 revealed a degenerative C5-6 disc herniation, which the evaluating physician thought could account for her neck pain, but likely was not the cause of her right-sided facial numbness. Nor did either the MRI findings or subsequent electrodiagnostic studies explain her right shoulder and upper extremity complaints, which were diffuse rather than radicular in nature.
15. As treatment for her neck pain, Claimant underwent a cervical epidural steroid injection, but this failed to provide any significant relief. Given the diffuse nature of her symptoms, she was deemed not to be an appropriate surgical candidate. Rather, in light of her “broad spectrum of discomfort,” the evaluating physician recommended instead that she consider evaluation by a physiatrist or rheumatologist. From the medical records, it does not appear that Claimant ever pursued this recommendation.
16. Claimant next sought treatment for symptoms similar to those described above between February and November 2004. By this time she had been back to work for Defendant for more than a year. Claimant complained of right-sided neck pain, occasional weakness in her right arm and right-sided headaches and head numbness. Dr. Siegel, her primary care physician, diagnosed her neck pain as an “exacerbation of [her] C5-6 disc.” Her headache pain and numbness Dr. Siegel attributed to occipital neuralgia, an irritation of the occipital nerve. This nerve extends from one of the upper nerve roots in the cervical spine up into the base of the skull. Dr. Siegel did not attribute the cause of either of the conditions she diagnosed to Claimant’s work for Defendant.
17. Claimant did not treat again for neck, shoulder or right upper extremity pain until May 2007. During the intervening years, she did seek treatment for other medical issues, including low back pain, abdominal pain, asthma and sinusitis. Among the symptoms she reported at times were headaches, right ear pain and right-sided numbness and discomfort in her throat, ear and head. The medical records do not document that either Claimant or her providers related these symptoms in any way to her work for Defendant.
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Claimant’s May 2007 Injury Claim
18. In May 2007 Claimant sought treatment with Dr. Fitzgerald for complaints of right-sided pain and numbness in her neck, head and face, as well as pain, numbness and occasional paresthesias in her right hand and wrist. Dr. Fitzgerald is board certified in both family practice and urgent care medicine. At the time he was Defendant’s designated physician for treatment of its occupationally injured employees. In that capacity Dr. Fitzgerald had toured Defendant’s facility on at least two occasions, though not more recently than 2004.
19. Dr. Fitzgerald reported that Claimant’s symptoms began in February 2007, around the busy Valentine’s Day holiday, and that her job duties involved “repetitive packaging.” Based in part on his familiarity with the type of work performed at Defendant’s facility, Dr. Fitzgerald determined that Claimant’s condition was causally related to repetitive overuse at work. Defendant thus accepted it as compensable and began paying medical benefits accordingly.
20. Of note, Claimant reported to Dr. Fitzgerald that she had no prior history of neck or upper extremity injury, and it does not appear that Dr. Fitzgerald ever reviewed her prior medical records. Apparently he did not know, therefore, that at least some of the symptoms of which Claimant complained in May 2007 had been troubling her on occasion for several years.
21. At Dr. Fitzgerald’s referral, in June 2007 Claimant underwent electrodiagnostic studies with Dr. Roomet, a neurologist. These studies failed to reveal any discrete nerve damage or entrapment in Claimant’s right arm, such as carpal tunnel syndrome or ulnar neuropathy, nor any clear evidence of cervical radiculopathy. Dr. Roomet concluded that Claimant’s symptoms were multi-factorial, with elements of cervical pain, right-sided occipital neuralgia and possibly tendonitis. As treatment for her neck, head and shoulder symptoms he recommended trigger point injections and an occipital nerve block. For her forearm, hand and wrist pain he recommended workplace modifications, rest, anti-inflammatory medications and physical therapy.
22. Claimant continued to work over the course of the ensuing months, albeit with modified-duty limitations imposed by Dr. Fitzgerald. These included restrictions against lifting more than twenty pounds or reaching above her shoulders.
23. Consistent with Dr. Roomet’s recommendation, in October 2007 Claimant underwent a right occipital nerve block. By this time she was reporting that her right arm symptoms, which previously had extended from her shoulder down into her hand, thumb and first two fingers, had resolved. Following the injection Claimant reported 80 percent relief of her neck pain.
24. In November 2007 Dr. Fitzgerald determined that Claimant’s occipital neuralgia had resolved. He therefore placed her at end medical result, with no permanent impairment and no further work restrictions.
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Claimant’s September 2008 Exacerbation
25. Ten months later, in September 2008 Claimant returned to Dr. Fitzgerald, again complaining of symptoms consistent with occipital neuralgia, including neck and right shoulder pain and right-sided numbness in her face and head. As before, Dr. Fitzgerald noted that Claimant “does repetitive use at work.” He characterized her symptoms as an exacerbation of her 2007 work-related injury.
26. In the months that followed Claimant underwent numerous evaluations, diagnostic studies and courses of treatment. If nothing else, the results appear to support Dr. Roomet’s analysis in 2007 – that Claimant’s condition was multi-factorial and therefore not amenable to singular diagnosis or treatment. Among the findings reported:
• In addition to the symptoms she reported to Dr. Fitzgerald, during the course of her physical therapy and work hardening sessions Claimant complained of such varied symptoms as tingling in the third and fourth fingers of her right hand, occasional dizziness when moving her head or neck away from a neutral position, numbness around and behind her right ear, shooting pain down her right arm, achiness in her right hand, pain in her right shoulder blade and constant “whole body fatigue.”
• A cervical MRI study in November 2008 documented moderate degenerative disc space narrowing at C5-6 and mild narrowing of the spinal canal at this level as well, but no disc herniation or spinal cord compression;2
• As was the case with Dr. Roomet’s diagnostic studies, electrodiagnostic testing conducted by Dr. Haq in December 2008 was negative for both cervical radiculopathy and carpal tunnel syndrome;
• A third electrodiagnostic study, this one conducted by Dr. Starr in July 2009, again failed to reveal sufficient evidence of carpal tunnel syndrome, radiculopathy or plexopathy to explain Claimant’s right shoulder, arm or hand complaints, and instead suggested an underlying myofascial pain syndrome as more likely causative;
• Evaluation and treatment by Dr. Landrigan, an ear, nose and throat specialist, in 2009 revealed that Claimant likely suffered from chronic rhinosinusitis, a condition that might account for at least some of her craniofacial pain complaints.
27. In June 2010 Claimant requested that her primary care physician, Dr. Siegel, refer her for an evaluation with Dr. Jewell, a neurosurgeon whom her attorney had suggested she consult. Dr. Siegel complied, and made the requested referral for evaluation of Claimant’s reported neck, right shoulder and right upper extremity symptoms.
2 Unfortunately, this MRI study was not compared with the earlier one completed in 2001, so there is no way to know whether or to what extent the degeneration at this level had advanced in the intervening years.
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28. In preparation for Dr. Jewell’s evaluation, in July 2010 Claimant underwent a third cervical MRI study. The results described more advanced degeneration at the C5-6 level than what was apparent on Claimant’s 2008 MRI study, and for the first time revealed a small dent, or effacement, in the spinal cord itself.
29. Dr. Jewell diagnosed Claimant with both cervical radiculopathy and early myelopathy. The two diagnoses describe different conditions, though in Dr. Jewell’s analysis both arose from the same source, namely, Claimant’s C5-6 disc. Radiculopathy refers to the condition that results when the nerve at a particular level of the spine becomes pinched, resulting in symptoms that radiate down an extremity. A pinched nerve at the C-6 level can cause pain from the neck, down the arm and into the thumb and forefinger. Dr. Jewell characterized the symptoms Claimant described as a “classic distribution” of C-6 radiculopathy.
30. In contrast, myelopathy refers to the condition that results when the spinal cord itself becomes pinched. In its early stages myelopathy can be asymptomatic, but it can become a serious problem over time. In Claimant’s case, Dr. Jewell found evidence of myelopathy in two aspects of his clinical examination, both of which indicated spinal cord compression.
31. Both radiculopathy and myelopathy are to be distinguished from occipital neuralgia, the diagnosis given previously by Drs. Siegel, Roomet and Fitzgerald to account for at least some of Claimant’s head and neck symptoms. Dr. Jewell did not mention occipital neuralgia in either his evaluation or in his deposition testimony, and thus did not explain how that diagnosis might fit into his analysis of Claimant’s symptomatology, if at all.
32. Dr. Jewell attributed the cause of both Claimant’s C-6 radiculopathy and her early myelopathy to the C5-6 disc herniation indicated on her July 2010 MRI study. He did not offer any explanation as to how the herniation occurred, nor did he state any opinion as to whether it was causally related to Claimant’s work for Defendant. Notably, he was unaware that Claimant had been complaining of neck, shoulder and right arm symptoms as far back as 2000, and that prior MRI studies had documented degenerative changes at the C5-6 level as early as 2001. To the contrary, from the history that Claimant reported to him, he understood that her symptoms first arose in 2008.
33. As treatment for Claimant’s condition Dr. Jewell has recommended C5-6 fusion surgery. The purpose of this surgery is both to halt the further progression of her myelopathy and to take the pressure off of the C-6 nerve. Relieving the pressure will not “fix” the nerve itself, but hopefully it will alleviate Claimant’s radicular pain.
34. Claimant has not treated for her neck, right shoulder or arm symptoms since moving to Massachusetts in October 2010. At the formal hearing, she described her current symptoms as including pain in her right shoulder and neck, pain and weakness throughout her right arm and numbness in her palm and first three fingers on her right hand. As recently as July 2011 she also was complaining of constant facial numbness and numbness and tingling on the right side of her head.
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35. Claimant testified that she left her job not only because her husband had moved but also because due to her pain she could no longer tolerate the work. No medical provider ever disabled her totally from working, however, and there is no evidence that Defendant was not accommodating the modified-duty restrictions that Dr. Fitzgerald imposed after her 2008 exacerbation.
Expert Medical Opinions
36. The parties each presented expert medical opinions as to (1) whether Claimant’s current condition is causally related to her work for Defendant; and (2) whether Dr. Jewell’s proposed fusion surgery is reasonable and necessary.
(a) Dr. Fitzgerald
37. Dr. Fitzgerald was Claimant’s treating physician from May 2007 until August 2009. As noted above, Finding of Fact No. 18 supra, he was familiar with Defendant’s operation, having toured the facility previously, and presumably understood the general nature of Claimant’s job duties there. He was less familiar with Claimant’s medical history, however, and as noted above, Findings of Fact Nos. 19-20 supra, was unaware that her symptoms did not originate in 2007 but rather dated back at least to 2000.
38. Dr. Fitzgerald asserted that the repetitive nature of Claimant’s work for Defendant caused or contributed to her current condition. In stating this conclusion, Dr. Fitzgerald did not specify which of Claimant’s job tasks were so repetitive as to result in the particular injury from which she now suffers. This is a significant omission. The undisputed evidence showed that Claimant’s job responsibilities were diverse and varied. As demonstrated on the video (which Dr. Fitzgerald did not view), Claimant clearly had to use her right upper extremity throughout her work day in order to accomplish her assigned job tasks. Dr. Fitzgerald did not offer any explanation, however, as to the mechanism by which using her right arm repetitively translated either to advanced degeneration in Claimant’s cervical spine or to inflammation of her occipital nerve.
39. Dr. Fitzgerald did not voice an opinion as to whether Dr. Jewell’s proposed fusion surgery is reasonable and necessary. Rather than making specific treatment recommendations, he has suggested instead that Claimant be retrained for an occupation that does not require repetitive use of her right arm.
(b) Dr. White
40. At Defendant’s request, in April 2009 Claimant underwent an independent medical examination with Dr. White, a board certified specialist in occupational medicine. Dr. White conducted a physical examination and initially, reviewed Claimant’s medical records dating back to Dr. Fitzgerald’s May 2007 examination. Later, he reviewed additional records dating back to April 2005. Dr. White also viewed the videotaped demonstration of Claimant’s primary job responsibilities.
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41. In Dr. White’s opinion, it is impossible to state to the required degree of medical certainty that Claimant’s work for Defendant caused or contributed to her current cervical condition. Chronic neck pain is a relatively common ailment, and the degenerative disc disease in Claimant’s cervical spine is typical for her age. Her job duties did not involve activities typically associated with cervical spine injury, such as sustained static neck posture, high static loads or repetitive heavy overhead lifting. Thus, while anything is possible, there is no basis for concluding definitively that Claimant’s C5-6 disc herniation was in any way work-related. I find Dr. White’s analysis in this regard to be credible.
42. As for the etiology of the symptoms in Claimant’s right arm, hand and fingers, Dr. White was unconvinced that they represented C5-6 radiculopathy. To him they appeared somewhat non-specific, and were not verified electrodiagnostically. Nevertheless, he acknowledged the possibility that they still could be radicular in origin, as Dr. Jewell had concluded.
43. Dr. White stopped short of characterizing Dr. Jewell’s proposed fusion surgery as an unreasonable treatment option for Claimant, although that would not have been his recommendation. If in fact Claimant’s right arm, hand and finger symptoms represent radiculopathy, then surgery might alleviate them. Given its chronic nature, however, surgery likely will not resolve her neck pain.
(c) Dr. Sobel
44. At Defendant’s request, in July 2011 Claimant underwent an independent medical examination with Dr. Sobel, a board certified orthopedic surgeon. Dr. Sobel described his current practice as a general orthopedic one. Cervical conditions are not a particular focus, and in fact he has not performed a cervical spine surgery for at least ten years. At least 50 percent of his practice involves independent medical evaluations.
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45. Dr. Sobel physically examined Claimant and reviewed her medical records dating back to 2001. He also viewed the video demonstration of her primary job assignments. According to his analysis of the medical evidence:
• Claimant’s hand pain does not correlate entirely with her cervical spine symptoms, and has never been definitively diagnosed;
• Claimant’s shoulder and neck pain is likely referred rather than radicular in nature, meaning that although the body perceives it as radiating it does not follow a specific dermatomal pattern along the nerve root itself;
• Claimant exhibited signs of symptom magnification during her physical examination, including non-specific pain complaints and facial grimacing;
• Claimant’s work activities did not consist of a single repetitive motion but rather involved multiple varied movements, most of which were conducted at waist level; and
• Despite not having worked for almost a year at the time of his examination, Claimant still complained of pain with motion of her neck or shoulder.
46. I find credible Dr. Sobel’s observations regarding the nature of Claimant’s work and the absence of repetitive activities typically associated with cervical spine injury or disease. I find less credible his determination that Claimant was exaggerating her symptoms. Neither Claimant’s primary care physician, Dr. Siegel, nor Dr. Fitzgerald, who treated her neck and shoulder symptoms for more than two years, ever reported evidence of symptom magnification over the course of their many office visits with Claimant.
47. Dr. Sobel conceded that Claimant likely suffered a work-related overuse injury to her shoulder in 2007, which he diagnosed as an episode of subacromial bursitis or tendonitis.3 In his analysis, however, her current symptoms most likely represent cervical degenerative disc disease, which according to the medical records has been progressing for many years. In Dr. Sobel’s opinion, to a reasonable degree of medical certainty, this condition is not causally related in any way to Claimant’s work activities for Defendant.
48. Dr. Sobel does not believe that Dr. Jewell’s proposed fusion surgery is medically indicated, and doubts that Claimant will realize any long-term relief of symptoms from it. In his opinion, therefore, the surgery is neither reasonable nor necessary.
3 Of note, in June 2007 Dr. Roomet posited a similar diagnosis as one component of what he considered to be a multi-factorial problem. See Finding of Fact No. 21 supra.
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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 in this claim is whether Claimant’s work for Defendant either caused or aggravated her current cervical condition. If it did, then the secondary disputed issue is whether Dr. Jewell’s proposed fusion surgery represents reasonable and necessary medical treatment.4 Claimant bears the burden of proof on both of these issues. Egbert, supra; Johnson v. Oly Equinox Holding Company, Opinion No. 25-10WC (August 5, 2010).
3. As to the first issue, the parties presented conflicting expert medical evidence. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. I conclude here that the Dr. Fitzgerald’s causation opinion was not sufficiently credible to sustain Claimant’s burden of proof. In reaching this conclusion, I acknowledge his familiarity both with the type of work that Defendant’s employees generally perform and with Claimant’s medical course over the two years during which he treated her. Ordinarily this would lend significant weight to his opinion.
5. Here, however, Dr. Fitzgerald’s familiarity with Claimant’s condition was undermined by his failure to acquaint himself with her prior medical history. As a result, he did not consider how the complaints she presented as work-related from May 2007 forward may have fit into the broader context of similar, non-work-related complaints documented some years earlier.
4 Claimant seeks other workers’ compensation benefits as well, though primarily these all flow from her claim that Dr. Jewell’s surgery is compensable.
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6. Perhaps more disturbing, despite Dr. Fitzgerald’s general familiarity with the type of work Defendant’s employees perform he failed adequately to explain how Claimant’s specific job tasks either caused or aggravated the cervical condition for which she now requests surgery. Given Claimant’s complicated medical history and multi-factorial symptom presentation, to say simply that Claimant’s “repetitive work” caused her injury raises more questions than it answers. How do job tasks that involve primarily upper extremity use cause or aggravate cervical disc degeneration? Is Claimant’s occipital neuralgia related to repetitive work as well? Where do her complaints of right-sided head and facial numbness fit in? If her symptoms are work-related, why have they not improved in the year since she left her job? Without answers to these questions, Dr. Fitzgerald’s opinion is so conclusory as to be unpersuasive.
7. In contrast, both Dr. White and Dr. Sobel analyzed Claimant’s specific job activities for the purpose of identifying whether they involved any of the stressors typically associated with cervical injury or disease, and found none. I accept as credible their determination that absent such a link, there is no basis for concluding to the required degree of medical certainty that Claimant’s cervical condition is work-related.
8. I conclude that Claimant has failed to sustain her burden of proving that her work for Defendant caused or aggravated either her C5-6 disc herniation or her occipital neuralgia. Neither of these conditions is compensable, therefore.
9. As for the proposed fusion surgery, based on Dr. Jewell’s expertise as a neurosurgeon I accept as credible his determination that medically it is a reasonable and necessary treatment option for Claimant to pursue. In the workers’ compensation arena, however, to be reasonable a treatment must be causally related to a compensable work injury as well. Pelissier v. Hannaford Brothers, Opinion No. 26-11WC (September 9, 2011). That is not the case here. I conclude, therefore, that Dr. Jewell’s proposed surgery does not represent reasonable treatment for which Defendant can be held responsible under 21 V.S.A. §640(a).
10. Having failed to prevail on her claim for benefits, Claimant is not entitled to an award of costs and attorney fees.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Claimant’s claim for workers’ compensation benefits causally related to her current cervical condition is hereby DENIED.
DATED at Montpelier, Vermont this 7th day of February 2012.
________________________
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.

Violet Veillette v. Pompanoosuc Mills Corp (September 14, 2012)

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

Violet Veillette v. Pompanoosuc Mills Corp (September 14, 2012)
STATE OF VERMONT
DEPARTMENT OF LABOR
Violet Veillette Opinion No. 23-12WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Pompanoosuc Mills Corp.
For: Anne M. Noonan
Commissioner
State File No. U-52073
OPINION AND ORDER
Hearing held in Montpelier on May 4, 2012
Record closed on July 10, 2012
APPEARANCES:
Charles Powell, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Is Defendant obligated to pay for various medical services and supplies, including prescription pain medications, injections, physical therapy, chiropractic treatment and/or proposed cervical fusion surgery, as reasonable treatment for Claimant’s compensable March 4, 2004 work injuries?
EXHIBITS:
Joint Exhibit I: Medical records (Volume 1)
Joint Exhibit II: Medical records (Volume 2)
Joint Exhibit III: Stipulation
Claimant’s Exhibit 1: Curriculum vitae, Melynda Wallace, MSN, CRNA
Claimant’s Exhibit 2: Curriculum vitae, Sara Young-Xu, MD
Claimant’s Exhibit 3: Curriculum vitae, Joseph Phillips, MD, Ph.D.
Claimant’s Exhibit 4: DVD of Dr. Boucher examination, January 11, 2011
Claimant’s Exhibit 5: 6/29/2010 MRI, sagittal image #8
Claimant’s Exhibit 6: 6/29/2010 MRI, axial image #8
Claimant’s Exhibit 7: 6/29/2010 MRI, axial image #9
Defendant’s Exhibit A: Curriculum vitae, William Boucher, MD
Defendant’s Exhibit B: Curriculum vitae, Herbert Cares, MD
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Costs and attorney fees pursuant to 21 V.S.A. §675
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
3. Claimant worked at Defendant’s furniture manufacturing facility. Her duties included sanding, spraying and staining pieces of furniture, and also carrying them to and from various locations within the building.
4. On March 5, 2004 Claimant tripped over a piece of metal at work while carrying a drawer. She fell sideways, still holding the drawer. Her right shoulder and the right side of her neck hit the drawer as it in turn hit the floor. Claimant suffered contusions and pain in her left leg, lower back, neck and right arm. Defendant accepted these injuries as compensable and began paying workers’ compensation benefits accordingly.
5. Claimant treated initially with Dr. Young-Xu, her primary care provider. Over the course of time her symptoms, which included primarily right-sided neck pain radiating into her shoulder blades as well as low back pain radiating into her right hip, have become chronic, and somewhat diffuse as well. Prior to her work injury Claimant had no previous medical history of any such symptoms.
6. As to her cervical and upper extremity symptoms, Claimant has undergone various diagnostic studies, including both MRI imaging and electrodiagnostic testing. The earliest studies, completed in the first few months following her injury, revealed advanced degenerative disc disease at the C5-6 level as well as a large disc herniation on the left at C6-7. Subsequent MRI studies in 2005, 2006 and 2010 yielded similar findings. However, electrodiagnostic studies failed to reveal any focal peripheral nerve involvement or dermatomal distribution to account for the radicular symptoms in Claimant’s right shoulder and arm.
7. Various diagnostic studies of Claimant’s lumbar spine have likewise failed to reveal a clear-cut source for her radicular complaints, with no evidence of disc herniation or nerve root involvement apparent.
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8. Although the degenerative disc disease in Claimant’s cervical spine probably preexisted her injury, it was entirely asymptomatic. The C6-7 disc herniation, which was an acute injury caused by her work-related fall, likely affected the biodynamics of the spine at the adjacent C5-6 level as well. Over time, bone spurs continued to grow at both levels. Bone spurs sometimes represent a chronic reaction to an acute injury – they are the body’s way of “fixing” a painful area of the spine by immobilizing it even further.
9. It also is likely that at least some of Claimant’s now chronic pain is neuropathic in nature. Neuropathic pain occurs when the neural processors in the brain become hypersensitive following a primary injury. As a result, the threshold for generating pain falls at the same time that its duration, amplitude and spatial distribution increase.1 Unlike nociceptive pain (pain that results directly from sensing noxious stimuli) or inflammatory pain (tenderness that activates the body’s immune system to help damaged tissues heal), neuropathic pain is a separate, maladaptive disease of the nervous system.2 Curing such pain is very difficult; rather, the best hope is often simply to manage it.
Treatment with Prescription Pain Medications
10. Claimant has undergone several conservative therapies for her chronic pain, beginning with narcotic pain medications prescribed by Dr. Young-Xu only weeks after her injury. Currently her pain medication regimen includes fentanyl (a synthetic morphine), gabapentin (for nerve pain), Flexeril (a muscle relaxant), amtriptyline (a sleep aid) and Zoloft (an anti-depressant).
11. Claimant testified credibly that the fentanyl patches she currently uses provide noticeable pain relief with few if any side effects. As such, they are more effective than any of the other narcotic pain medications she attempted previously, including Vicodin and oxycodone. On those rare occasions when she forgets to apply a patch, her pain markedly worsens and her ability to perform such basic activities as showering, washing her hair and doing the dishes is impaired.
12. The goal of prescription pain control in chronic pain patients is not to eliminate the pain altogether, but rather to allow for some increased function and improved quality of life. Research suggests that it is often efficacious to rotate a patient’s narcotic medications, and also to titrate dosages to the lowest level possible without sacrificing adequate pain control. According to Dr. Young-Xu, the medications she currently prescribes, including fentanyl, maintain Claimant’s pain at a tolerable level, but still not to the point where it should be considered well controlled. For that reason, and also because there is no evidence that Claimant has ever misused or abused any of the drugs she has been prescribed, Dr. Young-Xu does not believe it would be appropriate either to reduce her dosage or to taper her off of them. I find this analysis persuasive.
Injections
1 Woolf, CJ, “What is this thing called pain?”, J.Clin.Invest. 2010; 120(11):3742-3744 at p. 3744; Joint Exhibit II at 674.
2 Id. at p. 3742; Joint Exhibit II at 672.
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13. In addition to prescription pain medications, Claimant has at various times undergone different types of injections in an effort to manage her cervical and lumbar pain. Initially these were administered by Dr. Frazer; since June 2006 Melynda Wallace, a certified nurse anesthetist, has been the treating provider. Ms. Wallace holds a master’s degree in anesthesia and is certified as a fellow of the American Academy of Pain Management. She is an experienced pain practitioner, whose current focus is on chronic pain management.
14. The injections Ms. Wallace has administered in Claimant’s case involve the use of epidural steroids. Their purpose is not to fix the pain generator in either the cervical or lumbar spine per se, but rather to provide some measure of extended pain relief. Epidural steroid injections reduce inflammation in the structures of the spine on a cellular level, such that the structures cease sending constant pain signals to the brain, at least for a time.
15. The medical records document that Claimant derived measurable pain relief from the cervical injections Ms. Wallace administered. She underwent a series of three injections between June 2006 and February 2007, a single injection in March 2009 and then another in May 2010. In Ms. Wallace’s opinion, which I find credible, an injection ought to provide at least 30 to 45 days of pain relief in order to justify regularly repeating the procedure. The interval pain relief Claimant realized more than met this standard.3
16. Ms. Wallace also has significant experience with managing chronic pain pharmaceutically. She fully endorsed Dr. Young-Xu’s medication regimen, including the use of both fentanyl and gabapentin. She noted that while Claimant’s dosage levels have not decreased, they have not increased in many years either. This is an indication of their ongoing effectiveness in controlling Claimant’s symptoms.
Physical Therapy and Chiropractic Manipulation
17. Claimant has at various times undergone courses of physical therapy as well as chiropractic manipulations as treatment for both her cervical and lumbar symptoms. According to the medical records, the last course of physical therapy occurred in 2006, and the last chiropractic treatment was in 2010. The medical records do not document any currently pending prescription or referral for ongoing treatment in either discipline.
18. Ms. Wallace testified in general terms as to the benefits of physical therapy as a means of maintaining function, and also as to the reasonableness of chiropractic manipulation directed at Claimant’s lumbar spine. The extent of Ms. Wallace’s specific expertise in these areas is unclear, and therefore I find her opinion on this issue of limited value.
3 The medical records document similar relief of Claimant’s lumbar pain as a result of Ms. Wallace’s injections.
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Surgery
19. Claimant first considered the possibility of treating her cervical symptoms surgically in September 2004. At Dr. Young-Xu’s referral, she underwent an evaluation with Dr. Phillips, a neurosurgeon. Dr. Phillips determined at that time that surgery was “definitely an option” in the event that non-surgical interventions failed. As Claimant preferred continued conservative management of her symptoms, she opted against this approach.
20. Dr. Phillips next examined Claimant in April 2006. Both her symptoms and her MRI findings were essentially unchanged from his prior exam, and again he offered Claimant the same surgical option he had previously. Again, Claimant opted to continue with conservative management of her symptoms.
21. Dr. Phillips again evaluated Claimant in October 2010. As before, he found her MRI findings essentially unchanged from prior studies, and again he offered the same surgical option.
22. The surgery Dr. Phillips has proposed, a C5-6 and C6-7 discectomy and fusion, is designed to address Claimant’s axial pain, that is, the pain she feels in her neck itself. It likely will not alleviate her radicular pain, that is, the pain she describes as radiating into her shoulder and arm. Radicular pain can often be localized to a particular nerve root, which allows the surgeon to identify the specific pain generator with greater confidence. The source of axial pain is more difficult to pinpoint. In Claimant’s case, however, given that she has been followed over a long period of time with no new complaints or developments, and also given that her symptoms correlate well with her MRI findings, Dr. Phillips is confident that he will be able to do so.
23. Claimant has now decided that she would like to undergo surgery. While she understands that it likely will not cure her pain completely, Dr. Phillips anticipates that it will alleviate her symptoms enough to provide long-term improvement in both her quality of life and her ability to function.
24. Claimant will need medical clearance to undergo Dr. Phillips’ proposed surgery, as she has a history of coronary artery blockage. An updated MRI study also will be necessary prior to surgery.
25. Dr. Phillips testified that both Dr. Young-Xu’s medication regimen and Ms. Wallace’s injection therapies were consistent with conservative management of chronic pain problems such as Claimant’s.
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Defense Expert Medical Opinions
26. At Defendant’s request, Claimant has undergone two independent medical examinations, one with Dr. Boucher in January 2011 and another with Dr. Cares in January 2012. At issue in both evaluations was whether Claimant’s ongoing treatment, consisting of prescription pain medications, injections and possibly fusion surgery, is medically necessary and causally related to her compensable work injury.
(a) Dr. Boucher
27. Dr. Boucher is board certified in occupational medicine. In the past 15 years he has focused increasingly on chronic pain management, though he is not board certified in that specialty. His current practice consists primarily in performing medical records reviews, permanency evaluations and independent medical examinations; only ten percent involves direct patient care.
28. As part of his evaluation of Claimant, Dr. Boucher conducted a physical examination and also reviewed her medical records. Based on that, he concluded that Claimant’s physical injuries have never been so severe as to warrant the type and extent of treatment she has received. Rather, in his opinion her condition is largely psychogenic, or psychologically rather than physically driven.
29. I find specific reason in the record to question this assertion. For example, although Dr. Boucher stated that Claimant was “clearly” depressed, this was based solely on her demeanor during his examination, not on any formal screening tool. Notably, based on Claimant’s periodic self-reports on a validated screening questionnaire, Dr. Young-Xu has concluded that her depression is in remission and under control. Having used a far more precise evaluative technique, I find Dr. Young-Xu’s conclusion in this regard more persuasive than Dr. Boucher’s.
30. Dr. Boucher’s conclusion that Claimant exhibited evidence of symptom magnification is also suspect. In appropriate circumstances, symptom magnifying behavior may indicate a strong psychological component to a patient’s presentation. In Claimant’s case, Dr. Boucher found such behavior in the inconsistent responses she demonstrated on repeat cervical range of motion testing. However, as Ms. Wallace credibly noted after viewing the video of Dr. Boucher’s evaluation, his examination technique may itself have induced the inconsistencies upon which he relied, and therefore I must discount them.
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31. Dr. Boucher found fault in virtually all of the treatment that Claimant’s providers have rendered since her work injury. In his opinion, the objective findings have never been sufficient to justify narcotic pain medications, and recent research suggests that chronic use of opiate analgesics may actually increase rather than decrease a patient’s perception of pain. According to his review of the medical records, Claimant’s response to Ms. Wallace’s epidural steroid injections provided only temporary relief and likely represented a placebo effect rather than truly effective treatment. As for Dr. Phillips’ proposed surgery, Dr. Boucher strongly discouraged it, on the grounds that absent clear evidence of radiculopathy cervical fusion likely would not be successful at relieving Claimant’s symptoms.
32. Again, I find reason to question these assertions. While it is true that long term use of narcotic pain medications may be contraindicated in many chronic pain patients, even Dr. Boucher acknowledged that anecdotally there are those who appear to function well on them. The American College of Occupational and Environmental Medicine (ACOEM) guidelines recommend their use for select patients. Presumably as a safeguard against abuse, the ACOEM guidelines also recommend routine urine drug screening to identify aberrant use, a procedure to which Dr. Young-Xu adheres and which Claimant has never failed. Notably, both Ms. Wallace and Dr. Phillips also supported Dr. Young-Xu’s medication regimen as consistent with proper management of chronic pain patients.
33. As noted previously, furthermore, Finding of Fact No. 15 supra, I already have found from the credible medical evidence that Claimant derived sufficient benefit from injection therapy to justify its ongoing use. Ms. Wallace’s credentials in this area are impressive, and her explanation as to how injections are used to manage both acute and chronic pain was persuasive. Viewed against this backdrop, I find little evidence to support Dr. Boucher’s conclusion that the only benefit Claimant has derived from injection therapy is as a placebo.
34. Dr. Boucher’s opinion as to fusion surgery comports generally with that of Dr. Cares, which is discussed in greater detail below.
(b) Dr. Cares
35. Dr. Cares is a board certified neurosurgeon at Massachusetts General Hospital. His clinical practice includes cervical spine surgeries. Dr. Cares was one of Dr. Phillips’ mentors during the latter’s residency. Each holds the other in high regard.
36. Dr. Cares diagnosed Claimant with a remote cervical strain causally related to her work injury, but attributed her current symptoms solely to somatoform disorder. He based this conclusion on what he perceived to be a lack of objective findings, coupled with evidence of symptom magnification. His observations in this regard were similar to Dr. Boucher’s.
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37. As for Dr. Phillips’ proposed surgery, Dr. Cares was strongly opposed. In his opinion, Claimant’s symptoms did not correlate with either her MRI studies or his findings on examination. Absent sufficient correlation, in Dr. Cares’ opinion it would be impossible to identify and address the source of her pain surgically. Thus, while he acknowledged that some surgeons will operate on axial pain, in his opinion to do so is not “scientific behavior.” He does not anticipate that Claimant will derive much, if any, benefit from surgery. Were she his patient, it is not an option he would offer.
38. Dr. Cares also expressed concern about the inherent risks associated with a two-level fusion surgery such as the one Dr. Phillips has proposed. Fusing two joints places added stress on the discs directly above and below, thus increasing the risk of excessive degeneration from overuse.
39. In his testimony, Dr. Phillips directly addressed Dr. Cares’ misgivings as to fusion surgery. As noted above, Finding of Fact No. 22 supra, notwithstanding that Claimant’s pain is primarily axial rather than radicular in nature, Dr. Phillips is confident that surgery will alleviate her symptoms enough to improve function. Her complaints have been consistent throughout and to his view correlate well with her imaging studies. Dr. Phillips noted in this regard that although Claimant’s MRI studies have documented more left- than right-sided abnormalities, this does not mean that her predominantly right-sided symptoms are inconsistent. The key is how the various structures of the spine move in relation to one another. Thus, the fact that on a static MRI scan a disc herniation appears to predominate on the left does not negate the possibility of nerve root irritation on the right.
40. As for the risk of further degeneration above and below the fusion site, in Dr. Phillips’ opinion this is overstated. As discussed supra, Finding of Fact No. 8, bone spurs already have formed at the levels to be fused, which is the body’s own attempt to immobilize the area. Even without surgical fusion, the risk of adjacent segment disease already exists, therefore. I find this analysis persuasive.
Procedural History
41. At Defendant’s request, in May 2006 Claimant underwent an independent medical examination with Dr. Davignon. This evaluation followed her second surgical consultation with Dr. Phillips. Claimant having at that time opted against surgery, Dr. Davignon determined that she had reached an end medical result for her compensable neck and lower back injuries. With that opinion as support, in June 2006 the Department approved Defendant’s discontinuance of temporary total disability benefits. Thereafter, Defendant continued to pay for physical therapy, chiropractic treatments, injections and prescription pain medications as before.
42. In December 2006 the Department approved a full and final (Form 14) settlement of Claimant’s claim for indemnity benefits causally related to her compensable neck and lower back injuries. Claimant’s entitlement to ongoing medical benefits was unaffected by this settlement.
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43. With Dr. Boucher’s January 2011 independent medical examination as support, in February 2011 the Department approved Defendant’s discontinuance of both chiropractic manipulations and/or injections as treatment for Claimant’s compensable injuries. The Department rejected Defendant’s discontinuance of pain medications absent evidence of a safe taper plan.
CONCLUSIONS OF LAW:
1. The disputed issue in this claim is whether Defendant is obligated to pay for various medical services and supplies, including prescription pain medications, injections, physical therapy, chiropractic treatment and/or proposed cervical fusion surgery, as reasonable treatment for Claimant’s compensable neck and low back injuries. Defendant asserts that it is not, both because her current complaints are unrelated to her work injuries and because the treatments at issue are not medically necessary.
2. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3. The parties presented conflicting expert testimony on both of these factors. In such cases, 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).
Causal Relationship
4. Considering the causal relationship question first, I conclude from the more credible evidence that Claimant’s current symptoms and need for ongoing treatment are related to her compensable injuries. I accept the opinions of her treating providers – Dr. Young-Xu, Ms. Wallace and Dr. Phillips – as persuasive in this regard. All have benefitted from the opportunity to evaluate and observe Claimant over an extended period of time. Beyond that, Ms. Wallace cogently explained the extent to which some of Claimant’s more diffuse symptoms likely represent neuropathic pain, and Dr. Phillips credibly connected the dots between her consistent complaints and the objective findings documented on MRI studies.
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5. Drs. Boucher and Cares both characterized Claimant’s condition as driven primarily by psychological factors, but I find lacking the evidence in support. As to both depression and symptom magnification, Dr. Boucher’s observations were particularly suspect given his examination technique. Dr. Cares’ opinion was largely conclusory, and therefore difficult for me to evaluate. Neither expert provided sufficient justification for the premise that at some point Claimant’s neck and lower back symptoms, the treatment for which Defendant had long accepted as compensable, suddenly became psychogenically caused instead. Defendant bore the burden of proof on this issue, Merrill v. University of Vermont, 133 Vt. 101 (1974), and I conclude that it has failed to sustain it.
Medical Necessity
6. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatments at issue are medically necessary. This determination is based on evidence establishing the likelihood that they will improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
(a) Prescription Pain Medications and Injection Therapy
7. I conclude from the more credible evidence here that both Dr. Young-Xu’s prescription pain medications and Ms. Wallace’s injection therapy meet this standard. The intent of these treatments is not to “cure” Claimant’s pain, but rather to make it more manageable on a daily basis. As Ms. Wallace aptly described the chronic pain practitioner’s goal, “We don’t measure success by pain score. We measure success by function.”
8. With this goal in mind, I accept as credible Claimant’s testimony that she functions better with her pain medications, particularly fentanyl, than without them. I therefore conclude that the medications are continuing to serve the purpose for which they were prescribed and are thus medically necessary.
9. It is true, as Dr. Boucher noted, that recent research studies caution against the long term use of opiate analgesics as treatment for chronic pain. Given his limited association with Claimant, however, he is ill positioned to evaluate effectively whether such long-term use might still be appropriate in her case, a possibility that the ACOEM guidelines themselves acknowledge. As Claimant’s primary treatment provider, Dr. Young-Xu is more capable of making that determination, and also ensuring that proper safeguards against abuse are maintained. Both Dr. Phillips and Ms. Wallace fully endorsed the medication regimen she has prescribed, furthermore. Considered together, I conclude that the opinions of Claimant’s three treatment providers on this issue are more persuasive than Dr. Boucher’s.
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10. I also accept as credible Ms. Wallace’s assertion that Claimant derives sufficient benefit from injections to justify their continued periodic use. Claimant credibly testified to that effect, and the relief she claimed was adequately documented in the medical records. In contrast, Dr. Boucher’s conclusion that the injections were effective only as a placebo lacked objective support, and therefore I find it unpersuasive.
(b) Physical Therapy and Chiropractic Treatment
11. I conclude that the evidence was insufficient to establish that either physical therapy or chiropractic treatment constitute medically necessary treatment for Claimant’s symptoms at this point. There is no currently pending referral for physical therapy, and thus there is no basis for me to evaluate its current role, if any, in addressing her work-related condition. As for chiropractic, I will not give carte blanche approval for treatment that Claimant has not recently pursued absent more persuasive evidence regarding its efficacy in this case.
(c) Surgery
12. Finally, I must determine whether Dr. Phillips’ proposed cervical fusion surgery constitutes medically necessary treatment for Claimant’s work-related neck injury. Both Dr. Phillips and Dr. Cares rendered carefully considered opinions on this issue. If nothing else, their debate presents an instructive example of how two similarly trained and experienced medical professionals might present diametrically opposed yet equally persuasive views regarding how best to manage their own patients. It is a forceful reminder that medical decision-making is an inexact science, and that rarely is there only one right answer. Cahill, supra; Lackey v. Brattleboro Retreat, Opinion No. 15-10WC (April 21, 2010).
13. I conclude here that Dr. Phillips’ opinion is the most persuasive. I am confident that he conducted an appropriate risk-benefit analysis as to the efficacy of fusion surgery in Claimant’s case. I accept as credible his conclusion that it represents a reasonable opportunity to improve both function and quality of life in ways that will make a significant difference to her. Conservative treatment having failed to accomplish this result, I agree that she deserves this opportunity.
14. I am mindful that Dr. Cares’ risk-benefit analysis weighed against surgery as an appropriate treatment option in Claimant’s case, such that were Claimant his patient, it is not a choice he would have offered. However, the benefit side of his analysis was based on what he perceived to be evidence of symptom magnification and somatoform disorder, evidence I already have rejected, see Finding of Fact No. 37 supra. As for his risk analysis, I have accepted Dr. Phillips’ interpretation instead, see Finding of Fact No. 40 supra.
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15. I conclude that Claimant has sustained her burden of proving that Dr. Phillips’ proposed fusion surgery is medically necessary.
Summary
16. I conclude that Claimant has sustained her burden of proving that prescription pain medications, injection therapy and proposed fusion surgery constitute causally related, medically necessary and therefore reasonable treatment for her March 2004 work injuries. Under 21 V.S.A. §640(a), Defendant is obligated to pay for them.
17. I conclude that Claimant has not sustained her burden of proving that either physical therapy or chiropractic treatment is medically necessary at this time.4
18. As Claimant has substantially prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering ongoing chronic pain management of Claimant’s current cervical and lower back conditions with appropriately prescribed pain medications and/or injection therapies, in accordance with 21 V.S.A. §640(a);
2. Medical benefits associated with Dr. Phillips’ proposed cervical fusion surgery, in accordance with 21 V.S.A. §640(a); and
3. Costs and attorney fees in amounts to be established, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 14th day of September 2012.
________________________
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.
4 My conclusion in this regard should not be interpreted as precluding a finding of medical necessity for these treatments in the future, based on a treatment provider’s appropriate and credible recommendation or referral.

Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)

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

Pamela (Barrett) Simmons v. Landmark College Inc. (February 28, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Pamela (Barrett) Simmons Opinion No. 07-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Landmark College, Inc.
For: Anne M. Noonan
Commissioner
State File No. W-59833
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 1, 2012
Record closed on January 7, 2013
APPEARANCES:
Thomas Bixby, Esq., for Claimant
Bonnie Shappy, Esq., for Defendant
ISSUE PRESENTED:
Did Claimant’s May 2011 cervical surgery constitute reasonable medical treatment for her compensable March 2005 work injury?
EXHIBITS:
Joint Exhibit I: Medical Records
Claimant’s Exhibit 1: First Report of Injury
Claimant’s Exhibit 2: Agreement for Permanent Partial Disability Compensation (Form 22)
Claimant’s Exhibit 3: Ergonomic Work Site Evaluation, February 11, 2008
Claimant’s Exhibit 7: Letter from Attorney Bixby to Claimant, August 18, 2011
Claimant’s Exhibit 8: Summary of invoices from Attorney Bixby, July 31, 2011
Claimant’s Exhibit 9: Handwritten notes taken by Dr. Wieneke
Claimant’s Exhibit 10: Dr. Magnadottir deposition, September 14, 2012
Defendant’s Exhibit A: Curriculum vitae, Dr. Wieneke
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CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640(a)
Vocational rehabilitation benefits pursuant to 21 V.S.A. §641
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
RULING ON POST-HEARING MOTIONS:
Motion to Strike Dr. Wieneke’s Post-Hearing Report
Because Claimant’s expert witness, Dr. Magnadottir, was not available to testify at the formal hearing, Defendant agreed to present its own expert witness, Dr. Wieneke, out of turn, with the proviso that he be allowed an opportunity to comment on Dr. Magnadottir’s testimony once her deposition was proffered post-hearing. Claimant asserts that the written report in which he did so merely restated his hearing testimony and therefore should be stricken as irrelevant. I disagree. The report contained opinion evidence germane to Dr. Magnadottir’s testimony. Claimant’s Motion to Strike is DENIED.
Motion for Directed Verdict
Claimant filed a motion for directed verdict on the issue of causal relationship. A motion for directed verdict was a form of pleading under both the civil and criminal rules of procedure. It has since been abolished and replaced, in the civil context with a Motion for Judgment as a Matter of Law, V.R.C.P. 50(a), and in the criminal context with a Motion for Judgment of Acquittal, V.R.Cr.P. 29. The purpose of such motions is to remove a case from consideration by a jury in situations where judgment for the moving party is required as a matter of law. Where there is no jury, as is the case in administrative proceedings such as this one, a post-hearing motion for judgment serves no purpose. Claimant’s Motion for Directed Verdict is therefore DENIED.
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim as well as the Commissioner’s prior decision in this claim, Barrett-Simmons v. Landmark College, Inc., Opinion No. 35-10WC (November 16, 2010). In addition, judicial notice is taken of the December 9, 2010 vocational rehabilitation report prepared by Claimant’s vocational rehabilitation counselor, Jay Spiegel.
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Claimant’s Work Injury and Prior Medical History
3. Claimant worked for Defendant as a housekeeper. On March 18, 2005 she slipped and fell on a wet floor. Claimant injured her neck and right shoulder in the fall. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
4. Over the course of the next three years Claimant underwent three surgeries, including fusions at two cervical spine levels. Unfortunately, all of these surgeries failed. Her symptoms, which include pain, muscle spasms and limited range of motion in her neck and right shoulder, have persisted.
5. Following her third surgery, in February 2009 Claimant’s treating neurosurgeon, Dr. Magnadottir, determined that she had reached an end medical result. The Department later approved the parties’ proposed Agreement for Permanent Partial Disability Compensation (Form 22), by the terms of which Claimant received compensation for a 23.5 percent whole person permanent impairment referable to her cervical spine. The compensable injury was described in the Agreement as “right shoulder/upper back, C4-7.”
Claimant’s Fourth Cervical Surgery
6. In February 2011 Claimant returned to Dr. Magnadottir for another neurosurgical consult. She reported that over the course of the prior year her neck pain had been constant and her right shoulder pain had worsened. In addition, her symptoms now involved her right hand. Claimant described dropping things, making messes and burning her right hand while cooking. She had not suffered any new injuries, falls or motor vehicle accidents to account for these new and/or worsening symptoms.
7. Dr. Magnadottir’s physical examination revealed that Claimant exhibited symmetric motor function (except for some give-way weakness in the right deltoid) and symmetric reflexes and sensation, but a substantial amount of myofascial pain1 and tenderness bilaterally in the trapezoids and rhomboids. A review of Claimant’s cervical spine and right shoulder MRI at this office visit showed tendonitis and significant narrowing of the C5 foramen.
8. Dr. Magnadottir discussed Claimant’s potential treatment options with her. These included exercises, physical therapy and surgery. Claimant took some time to decide, and ultimately chose to pursue surgery. Once her decision was made, Dr. Magnadottir described Claimant as being “very strong” in her desire to proceed in this manner. I find that Claimant elected surgical treatment with full knowledge and understanding that it would not alleviate her major complaint of persistent myofascial right shoulder pain.
1 Myofascial pain is muscular pain that is very non-specific and difficult to diagnose. It is a non-radicular pain that does not follow a nerve root pattern. The affected muscle often has “trigger points,” that is, hyper-irritable spots and associated palpable nodules in skeletal muscle.
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9. In May 2011, Claimant underwent the fourth surgery, a procedure to decompress the C5 nerve root. As expected, the surgery did not alleviate the persistent myofascial pain in her right shoulder. The symptoms in her right hand have abated, though it is unclear why. Medically, there is no reason why nerve compression at the C5 level would have resulted in the symptoms Claimant reported, and therefore no reason why surgical decompression would have caused them to resolve.
Expert Medical Opinions
(a) Dr. Magnadottir
10. Dr. Magnadottir testified by deposition. She is a board certified neurosurgeon. She performed Claimant’s third cervical surgery in 2009, and her fourth surgery (the subject of the pending compensability dispute) in May 2011. In formulating her opinion as to the reasonableness of the latter surgery, Dr. Magnadottir did not review Claimant’s entire medical history, but rather relied on her knowledge of Claimant’s condition since she began treating her.
11. In Dr. Magnadottir’s opinion, Claimant’s May 2011 surgery was causally related to her compensable work injury. Claimant suffered from disc disease at the C5, C6 and C7 levels, and had undergone cervical fusion at the C5-6 level. According to the accepted medical literature, disc disease in one joint significantly contributes to the development of disc disease in adjacent joints as well.
12. As to the medical necessity of a fourth surgery, Dr. Magnadottir relied primarily on the fact that Claimant’s recent MRI showed her C5 foramen to be significantly narrowed. With this finding in mind, Dr. Magnadottir anticipated that repeat surgery at that level might relieve at least some of Claimant’s pain. However, Dr. Magnadottir did not refer Claimant for electrodiagnostic studies in order to determine whether there were objective signs of nerve damage at C5. Nor did she recommend that Claimant undergo diagnostic epidural injections in the C5 root, to see if she would experience any relief from pain at this root level. Dr. Magnadottir reasoned that even if there was relief, it would be short lived.
13. Dr. Magnadottir acknowledged that the May 2011 surgery would not address the persistent myofascial pain in Claimant’s right shoulder. She also acknowledged that Claimant’s pain complaints were all subjective in nature. Last, Dr. Magnadottir acknowledged that damage to the C5 nerve root would not in any way manifest itself in the type of hand symptoms Claimant was reporting. I find that these facts significantly undermine Dr. Magnadottir’s opinion that Claimant’s May 2011 surgery constituted reasonable and necessary medical treatment.
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(b) Dr. Wieneke
14. At Defendant’s request Dr. Wieneke, a board certified orthopedic surgeon, performed an independent medical examination of Claimant for the purpose of determining whether a fourth surgery would have constituted reasonable treatment for her 2005 work injury. Dr. Wieneke had evaluated Claimant previously and therefore was familiar with her medical history.2 Before performing his most recent examination, Dr. Wieneke also reviewed all of Claimant’s past and current medical records.
15. In Dr. Wieneke’s opinion, Claimant’s fourth surgery did not constitute reasonable and necessary medical treatment. He based this opinion on the following:
• Prior to 2011, all of Claimant’s EMG studies were negative, indicating no C5 nerve root damage that would warrant surgery;
• There was no current electrodiagnostic evidence of radiculopathy to confirm Claimant’s current complaints of pain;
• Claimant’s give-way weakness in her right deltoid was a Waddell sign, which suggested a psychological component to her pain complaints;
• The C5 nerve root distribution does not manifest itself in the hand, and therefore damage or compression at that level would not explain Claimant’s most recent symptoms; and
• Claimant had already undergone three major cervical surgeries with virtually no improvement and little likelihood of success with a fourth surgery.
16. I find Dr. Wieneke’s review and knowledge of Claimant’s medical condition extensive and his opinions well supported by objective evidence.
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 Dr. Wieneke evaluated Claimant’s case on four different occasions. He performed independent medical examinations of Claimant in 2006, 2009 and October 2011. He performed a records review in May 2011.
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2. At issue here is whether Claimant’s May 2011 surgery is compensable. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2011).
3. Here, the condition for which Claimant sought surgery in 2011 involved significant narrowing of her C5 foramen and persistent right shoulder pain. Both of these conditions were well within the terms of the approved Form 22 agreement pursuant to which Defendant paid permanency benefits in 2009. Claimant did not suffer any other injuries subsequently, such as a motor vehicle accident or new slip and fall incident, that might account for her ongoing and/or worsening symptoms. Considering all of the credible evidence, I conclude that the neck and right shoulder pain for which she sought additional treatment in 2011 was causally related to her accepted work injuries.
4. Having concluded that Claimant’s need for ongoing treatment is causally related to her compensable work injuries, I next consider whether the treatment at issue was medically necessary. This determination is based on evidence establishing the likelihood that it would improve the patient’s condition, either by relieving symptoms and/or by maintaining or increasing functional abilities. Cahill v. Benchmark Assisted Living, Opinion No. 13-12WC (April 27, 2012); Quinn v. Emery Worldwide, Opinion No. 29-00WC (September 11, 2000).
5. Conflicting medical testimony was offered as to the reasonableness of Claimant’s fourth cervical surgery. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
6. Here, based primarily on the second and third factors, I conclude that Dr. Wieneke’s opinion was more persuasive than Dr. Magnadottir’s. Dr. Wieneke had the advantage of reviewing Claimant’s entire medical history. More important, his opinions were clear, thorough and corroborated by objective evidence. Given that (1) the C5 nerve root distribution does not manifest itself in the hand; (2) no objective tests were performed to identify the C5 level as the pain generator for Claimant’s complaints; and (3) surgery clearly would not relieve the myofascial pain in Claimant’s shoulder, Dr. Wieneke credibly concluded that surgery was not a reasonable treatment option for the symptoms of which she complained. The fact that Claimant already had undergone three failed surgeries with no significant pain relief was a strong contraindication as well.
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7. In contrast, given both Claimant’s medical history and the nature of her ongoing complaints, Dr. Magnadottir failed to explain adequately why a fourth surgery was justified.
8. I conclude that Claimant has failed to sustain her burden of proving that her May 2011 cervical surgery constituted reasonable medical treatment, such that Defendant should be obligated to pay for it. Therefore, her claim for workers’ compensation benefits must fail.
9. As Claimant has failed to prevail on her claim for benefits, she is not entitled to an award of costs or attorney fees.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Claimant’s claim for workers’ compensation benefits referable to her May 2011 cervical surgery is hereby DENIED.
DATED at Montpelier, Vermont this 28th day of February 2013.
________________________
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.

Thomas J. Kibbie v. Killington/Pico Ski Resort (February 5, 2013)

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

Thomas J. Kibbie v. Killington/Pico Ski Resort (February 5, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Thomas J. Kibbie Opinion No. 03-13WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Killington/Pico Ski Resort
For: Anne M. Noonan
Commissioner
State File No. Z-58225 RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
APPEARANCES:
John Mabie, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is there a genuine issue of material fact as to whether the parties’ previously approved settlement agreement shields Defendant from responsibility for the medical treatment Claimant seeks, or is Defendant entitled to judgment in its favor as a matter of law?
EXHIBITS:
Claimant’s Exhibit 1: Prescriptions and Request for Pre-Authorization
Claimant’s Exhibit 2: Occupational and physical therapy notes
Claimant’s Exhibit 3: Report of William Druckemiller, M.D., July 22, 2009
Claimant’s Exhibit 4: Report of Albert Drukteinis, M.D., July 9, 2012
Defendant’s Exhibit 1 Modified Form 15 Settlement Agreement with Addendum and Workers’ Compensation Rule 17 letter
Defendant’s Exhibit: 2 Letter from Attorney Valente to Attorney Mabie, March 20, 2012
Defendant’s Exhibit: 3: Interim Order, Memorandum and Referral to Formal Hearing Docket, August 3, 2012
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. On January 12, 2008 Claimant was engaged as a volunteer/ambassador at Killington Ski Resort. While snowboarding down to complete his day’s duties, he fell, causing injuries
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to his right ankle, right elbow/bicep, neck and head. Claimant also suffered a traumatic brain injury (TBI) in the accident.
2. On September 15, 2010, while Claimant was represented by counsel, the Department approved a modified Form 15 settlement agreement pertaining to his snowboard accident.
4. As executed by the parties and approved by the Department, Claimant agreed to accept $50,000.00 in return for a full and final settlement of “[a]ll claims occurring as a result of the work incident including but not limited to right ankle, head/TBI and right elbow/biceps, while leaving open all related future medical treatment pursuant to the Rules necessary for the treatment of [his] cognitive or other head injury, including neurological, psychological, ophthalmological, TBI care and treatment; and prior care for his covered injuries.”
5. Defendant’s responsibilities as to future medical benefits were restated in an addendum to the Form 15 as follows: “As part of this agreement, the carrier agrees it will continue to furnish all reasonable and related future medical treatment pursuant to the Rules, necessary to for [sic] the treatment of his cognitive or other head injury, including neurological, psychological ophthalmological, TBI care and treatment; and to pay for care for his covered injuries prior to the time of settlement.”
6. Since his injury, Claimant has received both occupational and physical therapy services. The latter services have at times included manual techniques, massage and cervical traction. It is unclear from the record to what extent these modalities were directed at head as opposed to neck pain. For example:
• While undergoing physical therapy in March 2008, Claimant described headaches emanating from the base of his skull to his right frontal area; treatments included both sub-occipital release and upper trapezius massage;
• In November 2008 Claimant’s in-patient rehabilitation treatment providers commented that he would benefit from “manual therapy to neck/head” as treatment for a primary diagnosis of “TBI” and a treatment diagnosis of “head pain, headaches;”
• In September 2009 Claimant again underwent in-patient rehabilitation treatment for a primary diagnosis of “TBI” and a treatment diagnosis of “head and right upper extremity pain, headaches, decreased oculomotor skills.” His treatment providers reported that he was suffering from “severe headaches in the back of the head,” that moving his eyes caused “instant headache,” and that he had pain both in the back of his head and in his forehead. Without specifying which modalities were recommended for which symptoms, the treatment plan included therapeutic exercises, neuro re-education, manual therapy and home exercises.
7. Dr. Druckemiller, a neurosurgeon, performed an independent medical evaluation of Claimant in July 2009. Dr. Druckemiller reported that Claimant complained of pain on the right side of his neck, with radiation into his head and severe headaches on a continuing basis. His diagnosis was closed head injury, though he noted that Claimant
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was “having more symptoms than I would expect for this type of injury.” Dr. Druckemiller did not specify whether Claimant’s headaches were a consequence of his closed head injury, his neck injury, or some combination of the two.
8. On October 7, 2010 Dr. Miller, Claimant’s treating physiatrist, referred him for physical therapy, including both manual techniques and massage. The diagnosis stated on the referral form was “TBI/HA/neck pain.” Dr. Miller did not specify whether the prescribed therapy was directed at one, two or all three of these diagnoses. Subsequently, on November 8, 2010 Dr. Miller completed a second physical therapy referral form. This form as well was for both manual therapy and massage, but the stated diagnosis read simply, “cervical pain.”
9. Claimant attended physical therapy sessions in November and December 2010. In the therapist’s November 19, 2010 initial evaluation, the assessment stated a diagnosis of “chronic neck pain, headaches, [right] sub-occipital pain [secondary to] TBI [January] 2008 while working at ski resort in Vermont. [Patient] presents with limited ROM and headaches.” The problems identified were: “1. pain; 2. headaches; 3. limited cervical spine ROM.” The treatment plan was for physical therapy consisting of manual techniques, patient education, mechanical traction and spinal mobility. The record does not specify which of the therapist’s services were to be directed at which symptoms.
10. On December 19, 2010 Dr. Miller issued a third physical therapy referral, this time to “assess and order” a cervical home traction unit. The diagnosis stated on this referral form was “TBI, neck pain.” It is unclear from the record whether this referral was directed at one or both of these diagnoses.
11. On November 28, 2011 Dr. Miller issued the following prescription: “P.T. – 2x/wk for 4 wks for manual therapies, cervical traction, modalities.” Stated at the top was the following notation: “Dx: neck/back pain, HA.”
12. On December 28, 2011 Dr. Miller issued a prescription for “neuro-optometry for visual eval and therapy.” Stated at the top was the notation, “Dx: TBI.”
13. Defendant maintained that Dr. Miller’s physical therapy referrals of October 7, 2010, November 8, 2010 and December 19, 2010, as well as his November 28, 2011 prescription, were necessitated by Claimant’s neck pain rather than his TBI. Therefore, it asserted, under the terms of the parties’ settlement agreement it was not obligated to pay for them.1 The Department’s Workers’ Compensation Specialist disagreed, and in January 2012 ordered that Defendant issue payment for those and other outstanding medical bills. Defendant complied.
14. At Defendant’s request, in July 2012 Claimant underwent an independent medical evaluation with Dr. Drukteinis, a psychiatrist.
1 Defendant accepted responsibility for Dr. Miller’s December 28, 2011neuro-optometry referral as causally related to Claimant’s TBI, and therefore still covered even notwithstanding the parties’ settlement agreement.
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15. Dr. Drukteinis agreed that Claimant was properly diagnosed with residual TBI causally related to his January 2008 snowboarding accident. However, he did not render an opinion whether Claimant’s headaches were a symptom of TBI. Dr. Drukteinis hypothesized that the headaches “may or may not just be an exacerbation” of the occasional migraines from which Claimant had suffered before the work injury, but acknowledged in either event that they “are no doubt impacted by his disturbed emotional state.” As for the efficacy of and expenses related to physical therapy, Dr. Drukteinis viewed this as a medical determination, not a psychiatric one, and therefore did not state an opinion.
DISCUSSION:
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to a judgment in its favor as a matter of law. Samplid Enterprises, Inc v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Realty of Vermont, 137 Vt. 425 (1979).
2. At issue here is whether the parties’ executed and approved settlement agreement shields Defendant from responsibility for the specific physical therapy services that Dr. Miller has prescribed. Defendant argues that under the terms of the settlement agreement it is obligated to provide only those medical treatments that represent reasonable and necessary treatment for Claimant’s “cognitive or other head injury.” It contends that the uncontradicted evidence establishes that the services at issue have been prescribed to address cervical pain and/or headaches, not a cognitive impairment or head injury. Therefore, it asserts, as a matter of law they do not qualify for ongoing coverage under the agreement.
3. There is certainly evidence from which to infer that the physical therapy Dr. Miller has prescribed is most likely directed at Claimant’s cervical pain, and/or that Claimant’s headaches are most likely cervical in origin. Were I to accept this evidence as the most credible, then by virtue of the parties’ settlement agreement Defendant would indeed be absolved of responsibility. However, considering the evidence in the light most favorable to Claimant, I find ample grounds from which to infer the opposite – that Claimant’s headaches are not cervical, but rather are a consequence of his closed head injury, oculomotor deficits and/or TBI. If the most credible evidence establishes that to be the case, then Defendant will be obligated to pay for the treatment at issue.
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4. The sole purpose of summary judgment review is to determine if a genuine issue of material fact exists. If such an issue does exist, it cannot be adjudicated in the summary judgment context, no matter how unlikely it seems that the party opposing the motion will prevail at trial. Fonda v. Fay, 131 Vt. 421 (1973); Southworth v. State of Vermont Agency of Transportation, Opinion No. 45-08WC (November 12, 2008). However tenuous or unlikely the evidence in support of Claimant’s claim that the medical treatment at issue here is directed at his “cognitive or other head injury” rather than at a cervical spine-related condition, he is entitled nonetheless to present his case and litigate the question. Summary judgment against him is not appropriate.
ORDER:
Defendant’s Motion for Summary Judgment is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of February 2013.
__________________________
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.

Sharon Dobson Ethan Allen Interiors Inc. (July 25th, 2014)

Categories: Workers' Compensation Hearing DecisionTags: , Author:

Sharon Dobson Ethan Allen Interiors Inc. (July 25th, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Sharon Dobson Opinion No. 11-14WC
v. By: Jane Woodruff, Esq.
Hearing Officer
Ethan Allen Interiors, Inc.
For: Anne M. Noonan
Commissioner
State File No. Z-56664
OPINION AND ORDER
Hearing held in Montpelier, Vermont on March 28, 2014
Record closed on May 3, 2014
APPEARANCES:
Steven Adler, Esq., for Claimant
Andrew Boxer, Esq., for Defendant
ISSUE PRESENTED:
Is total knee replacement surgery reasonable and necessary medical treatment for
Claimant’s work-related left knee condition?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Letter from Dr. O’Neill, March 5, 2014
Claimant’s Exhibit 2: American Academy of Orthopedic Surgeons, information page
Claimant’s Exhibit 3: Treatment timeline
Claimant’s Exhibit 4: List of references to Joint Exhibit I
Claimant’s Exhibit 5: Curriculum vitae, Dr. Spina
Claimant’s Exhibit 6: Curriculum vitae, Dr. MacArthur
Defendant’s Exhibit A: American Academy of Orthopedic Surgeons, appropriate use
criteria
Defendant’s Exhibit B: Left knee x-ray, March 6, 2014
Defendant’s Exhibit C: Left knee x-ray, upright view
Defendant’s Exhibit D: Left knee x-ray, bent knee view
Defendant’s Exhibit E: Right and left knee x-ray, upright view
Defendant’s Exhibit F: Left knee x-ray, top view
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CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to
this claim.
3. Claimant worked for Defendant for 22 years; her last position was that of final inspector
on the production line. On November 29, 2007 she was inspecting an armoire when it
fell onto and over her. The bottom of the armoire remained on the tracks and Claimant’s
workbench stopped it from falling completely on top of her. The drawers of the armoire,
in Claimant’s credible words “nailed her on her left knee.”
Claimant’s Course of Treatment
4. Claimant experienced significant pain and that day applied ice packs to her knee. She
sought medical attention on December 3, 2007 in the emergency department of her local
hospital. The physician diagnosed her with a knee contusion, noting mild swelling, a
mild limp and a slight hematoma. Claimant was released to return to sedentary work.
5. Over the next week Claimant returned twice to the emergency department complaining of
knee pain without improvement. Thereafter she was referred to Dr. Spina, an orthopedic
surgeon. He diagnosed her with a patellar contusion with subsequent traumatic bursitis
and referred her to physical therapy.
6. Despite time, rest and physical therapy, Claimant’s left knee pain did not improve. In
January 2008 an MRI revealed a complex tear in the posterior horn of her medial
meniscus. Dr. Spina performed a diagnostic and therapeutic arthroscopy in February
2008. He found Grade III articular cartilage injury to the patella and widespread Grade
III articular cartilage damage to the medial femoral condyle.
7. Over the course of the next year, Claimant participated in physical therapy and received
cortisone injections to her left knee. During this entire time she reported no improvement
in her pain levels. She saw several different physicians in an attempt to improve her
condition, all to no avail.
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8. In January 2009 Claimant saw Dr. O’Neill, a knee specialist at the Alpine Clinic. In Dr.
O’Neill’s opinion, she presented a difficult case. Despite excellent care, her knee was not
“cooperating.” Dr. O’Neill recommended a repeat diagnostic arthroscopy. If that
surgery did not alleviate her symptoms, Dr. O’Neill advised that a total knee replacement
might be necessary.
9. Dr. O’Neill performed a second arthroscopy in March 2009. During the surgery, he
observed Grade III changes diffusely on the medial femoral condyle, as Dr. Spina had
during Claimant’s February 2008 arthroscopy. Dr. O’Neill made a lateral release and
removed adhesions. Believing that the adhesions were the source of Claimant’s pain, he
was optimistic about her prognosis.
10. After feeling better initially, Claimant’s pain returned. Again, physical therapy and
injections over the next 18 months did not improve her condition.
11. Claimant returned to Dr. Spina’s care in September 2010. His diagnosis was progressive
degenerative arthritis of the medial and patellofemoral compartments of the left knee.
12. After additional x-rays and an MRI, Dr. Spina recommended a third exploratory and
diagnostic arthroscopy. This surgery, performed in February 2011, consisted of a
chondroplasty with microfracture to promote new cartilage growth. During this surgery
Dr. Spina noted widespread Grade III and IV degenerative changes on the weight-bearing
surface of the medial femoral condyle, which was the site of the original work injury.
13. Claimant engaged in regular physical therapy and showed some improvement. However,
from May through November 2011, as Claimant followed up with Dr. Barnard, an
orthopedic surgeon, she complained of aching, burning and at times stabbing knee pain.
Her objective signs were all normal, however. Dr. Barnard did not think any further
surgery was warranted and instead recommended more physical therapy.
14. In August 2011 Claimant saw Dr. Glorieux-Sullivan, another orthopedic surgeon, who
filled in for Dr. Barnard. Dr. Glorieux-Sullivan reported that since her work injury
Claimant had suffered four years of persistent left knee pain, which severely limited her
activities of daily living. Nevertheless, her MRI did not reveal sufficiently abnormal
findings to justify a total knee replacement. For that reason, Dr. Glorieux-Sullivan did
not think further surgery was warranted.
15. In a November 2011 office visit with Dr. Barnard, Claimant continued to complaint of
stabbing pain and knee buckling that caused her to fall. As he did not have much to offer
her, Dr. Barnard advised her to seek a second opinion at Dartmouth-Hitchcock Medical
Center.
16. At DMHC Claimant saw Dr. Bernini, an orthopedic surgeon specializing in knees. Dr.
Bernini reviewed Claimant’s x-rays and examined her. He believed her symptoms were
far in excess of what her exams and x-rays demonstrated. Concerned that Claimant
might have developed complex regional pain syndrome, Dr. Bernini felt that further
surgery was the worst possible intervention for her.
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17. At Defendant’s request, in March 2012 Claimant underwent an independent medical
examination with Dr. Boucher, a specialist in occupational medicine. Dr. Boucher
diagnosed Claimant with left patellofemoral chondromalacia, with an additional
component of somatization disorder. That is, he thought Claimant’s pain was “nonnegotiable,”
and out of proportion both to her physical findings and to the findings on her
diagnostic studies. Dr. Boucher did not believe Claimant required any further medical
treatment other than over-the-counter analgesics and exercise. In his opinion she had
reached an end medical result, with a three percent whole person permanent impairment
attributable to atrophy in her left quadriceps muscles.
18. Claimant next saw Jason Raehl, a physician’s assistant at the Alpine Clinic, in June 2012.
New x-rays revealed advanced patellofemoral arthritis, to the point that her knee was
bone on bone. Given that Claimant had exhausted all possible conservative treatments,
Mr. Raehl referred her to Dr. MacArthur, also at the Alpine Clinic, for a consultation.
Dr. MacArthur is a board certified orthopedic surgeon with a subspecialty in total joint
replacements. Over the course of his career, he has replaced at least 2,000 knees.
19. Claimant first saw Dr. MacArthur in October 2012. He diagnosed her with osteoarthritis
of the left knee with primary bone on bone changes. These changes affected the manner
in which the patellofemoral joint came together and, in his opinion, were likely what
caused most of Claimant’s knee pain. I find this analysis credible.
20. For treatment Dr. MacArthur offered Claimant three options: (1) “benign neglect,” that
is, pain management via non-steroidal anti-inflammatory agents and activity
modification; (2) patellofemoral joint replacement surgery; or (3) total knee replacement.
As between the two surgical options, Dr. MacArthur voiced a stronger preference for a
total knee replacement, because it has a history of better outcomes than patellofemoral
joint replacement surgery. I find this analysis credible.
21. Dr. MacArthur next saw Claimant in October 2013. New x-rays showed that the arthritis
in her left knee seemed to be progressing radiologically. Dr. MacArthur continued to
believe that a total knee replacement was the treatment of choice.
5
Expert Medical Opinions
22. The parties presented conflicting expert opinions on the issue whether a total knee
replacement constitutes reasonable treatment causally related to Claimant’s work injury.
(a) Dr. Spina
23. In Dr. Spina’s opinion, Claimant’s best treatment option at this time is total knee
replacement. She continues to suffer from pain, both activity-related and, more recently,
when at rest while sleeping as well. In the course of his February 2011 arthroscopy
(Claimant’s third such surgery), Dr. Spina visualized a wide area of bone-on-bone
involvement in her knee, which he suspects is the cause of her pain. Having already
undergone both conservative therapies and multiple arthroscopies without effective
resolution of her symptoms, Dr. Spina thus believes that a total knee replacement is now
medically necessary. I find this opinion credible.
(b) Dr. MacArthur
24. In Dr. MacArthur’s opinion, there is “no doubt” that Claimant needs a total knee
replacement and that the procedure will “very, very likely alleviate her symptoms.” He
conceded that she is relatively young for the procedure and that it is an option of last
resort. However, given that she has “toughed out” her pain since the original work injury
in 2007, and also that she has exhausted all other conservative treatment alternatives, a
total knee replacement presents the best remaining treatment available to her. That
historically, total knee replacement surgeries have an 85 to 90 percent success rate makes
it an even stronger option. I find this analysis credible.
25. In rendering his opinion, Dr. MacArthur acknowledged that he did not review the
medical records of Drs. Barnard, Glorieux-Sullivan or Bernini. Having consulted with
his practice partner, Dr. O’Neill, he felt that it was unnecessary for him to do so. Dr.
O’Neill informed him that the degeneration he visualized while performing Claimant’s
second arthroscopic surgery was even worse than what her x-ray showed. Actually
visualizing the knee is widely accepted as the gold standard for diagnosing the extent of
degeneration. Thus, with the benefit of Dr. O’Neill’s surgical observations, Dr.
MacArthur was confident that his opinion was well-supported, and his treatment
recommendation justified.
26. Dr. MacArthur buttressed his opinion with objective findings. As shown on her 2012 xray,
Claimant’s left knee joint was bone on bone medially and laterally (that is, on both
sides). In addition, Drs. Spina and O’Neill both had observed Grades III and IV cartilage
damage in the course of their respective arthroscopic surgeries. According to Dr.
MacArthur, Claimant’s prior surgeries served to “buy her some time.” Unfortunately,
however, as she is no longer tolerating her pain, the joint now needs to be replaced. Dr.
MacArthur was credible in all respects in this testimony.
6
(c) Dr. Glorieux-Sullivan
27. Dr. Glorieux-Sullivan testified by deposition. In her opinion, which she limited to her
knowledge of Claimant’s condition as of August 2011,1 Claimant is not an appropriate
candidate for a total knee replacement. First and foremost, at age 53 she is a relatively
young patient for such a procedure. The lifespan of a total knee replacement is twenty
years. Thus, the possibility exists that she will need revision surgery, which is more
invasive and carries the risk of more complications, when she is 73 years old. With that
in mind, and considering also the apparent lack of significant disease in Claimant’s knee,
Dr. Glorieux-Sullivan recommends against the procedure.
(d) Dr. Sobel
28. At Defendant’s request, Dr. Sobel, a board certified orthopedic surgeon, performed a
records review in Claimant’s case in April 2013, followed by an in-person independent
evaluation in May 2013. Dr. Sobel diagnosed Claimant with a contusion of the distal
quadriceps as well as a contusion of the superior patella.
29. In Dr. Sobel’s opinion, total knee replacement surgery is not a reasonable and necessary
treatment in this case. He based his opinion on the following:
· Throughout all of her treatment, Claimant’s objective findings revealed a
relatively normal knee with typical age-related wear and tear patterns;
· The work injury did not cause severe trauma, as evidenced by the lack of
significant abrasion, hemarthrosis, effusion or ligamentous injury reported in the
first operative report;
· Claimant’s ongoing subjective reports of pain have not been supported by
objective examination or diagnostic tests and therefore suggest somatization
and/or symptom exaggeration on her part;
· Four previous orthopedic surgeons have advised against a total knee replacement,
and three previous arthroscopies have failed to relieve her pain; and
· According to his analysis, the medical records do not document bone on bone end
stage arthritis.
1 Dr. Glorieux-Sullivan did not review any of Claimant’s medical records subsequent to her August 2011 visit.
7
30. Dr. Sobel conceded that in order to assess the condition of a patient’s knee joint, direct
visualization is preferable to reviewing an x-ray. That both Dr. Spina and Dr. O’Neill
were able to visualize objective findings during their surgeries thus weakens Dr. Sobel’s
conclusion that Claimant was exaggerating her symptoms, therefore. Dr. Sobel also
failed to document the bone on bone status of Claimant’s knee as shown in the x-rays
taken in conjunction with her June 2012 evaluation, Finding of Fact No. 18 supra. This
omission further undermines his conclusions.
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. Vermont’s workers’ compensation statute obligates an employer to pay only for those
medical treatments that are determined to be both “reasonable” and causally related to the
compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-
09WC (January 30, 2009). The commissioner has discretion to determine what
constitutes “reasonable” medical treatment given the particular circumstances of each
case. Id. A treatment can be unreasonable either because it is not medically necessary or
because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion
No. 01-10WC (January 20, 2010).
3. The sole issue presented in this case is whether left total knee replacement surgery is
reasonable medical treatment for Claimant’s 2007 work injury.2 The parties presented
conflicting expert medical testimony on this question. In such cases, 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 patientprovider
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).
2 Defendant did not contest that Claimant’s left knee condition was causally related to her compensable work injury.
8
4. Relying primarily on the third factor, I conclude that the opinions of Drs. Spina and
MacArthur are more credible than the opinions of Drs. Glorieux-Sullivan and Sobel. Drs.
MacArthur’s and Spina’s opinions were clear and thorough. More important, they were
based on the objective findings that each of Claimant’s three arthroscopies revealed. For
these reasons, I conclude that they were more compelling.
5. In contrast, Dr. Glorieux-Sullivan’s opinion was dated and specifically limited to what
she knew of Claimant as of August 2011. She thus failed to take into account both the
worsening appearance of Claimant’s knee joint, as documented in the June 2012 x-rays,
and Claimant’s worsening symptoms, which now include pain even at rest. For those
reasons, her opinion is of questionable usefulness.
6. As for Dr. Sobel, his analysis lacks the benefit of having directly visualized Claimant’s
knee joint, which even he admitted was preferable to merely viewing it on x-ray. As
such, his opinion does not carry as much weight as Dr. Spina’s.
7. The determination whether a treatment is reasonable must be based primarily on evidence
establishing the likelihood that it will improve the patient’s condition, either by relieving
symptoms and/or by maintaining or increasing functional abilities. Quinn v. Emery
Worldwide, Opinion No. 29-00WC (September 11, 2000). Based on Dr. MacArthur’s
credible opinion, I conclude here that a total knee replacement is very likely to alleviate
Claimant’s symptoms.
8. This is not a case, as Defendant argues, where the three prior failed surgeries
contraindicate a fourth surgery. See Simmons v. Landmark College, Opinion No. 07-
13WC (March 6, 2013). The cervical surgeries in that case were intended to cure the
claimant’s pain, but failed to do so. The treating surgeon hoped that a fourth surgery
would be more effective. However, lacking any objective basis for concluding that the
area of the proposed fourth surgery was actually the pain generator, her opinion was
deemed unpersuasive. On those grounds, the Commissioner determined that the surgery
did not constitute reasonable medical treatment.
9. In contrast, the three surgeries Claimant previously has undergone here were intended
primarily to “buy her some time” before a total knee replacement became necessary.
Indeed, as early as January 2009 Dr. O’Neill predicted that if her second surgery failed to
alleviate her symptoms ultimately Claimant would require a total knee replacement. That
time has now arrived; total knee replacement surgery has become the treatment of choice.
10. I conclude that Claimant has sustained her burden of proving that total knee replacement
surgery constitutes reasonable medical treatment for her compensable work-related
injury. Under 21 V.S.A. §640, Defendant is therefore obligated to pay for it.
11. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs
and attorney fees. In accordance with 21 V.S.A. §678(e), Claimant shall have 30 days
from the date of this opinion within which to submit her itemized claim.
9
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Medical benefits covering all reasonable medical services and supplies associated
with a total left knee replacement in accordance with 21 V.S.A. §640; and
2. Costs and attorney fees in amounts to be determined, in accordance with 21
V.S.A. §678.
DATED at Montpelier, Vermont this 25th day of July 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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