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J. C. v Central Vermont Hospital (August 20, 2007)

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J. C. v Central Vermont Hospital (August 20, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
J. C. Opinion No.: 23-07WC
v. By: Jane Dimotsis, Hearing Officer
Codee McDaniel, Law Clerk
Central Vermont Hospital For: Patricia Moutlon Powden
Commissioner
State File No.: C-18210
Hearing held on May 10, 2007
Record Closed on July 20, 2007
APPEARANCES:
Claimant, Pro se
John Valente, Esq., for the Defendant
ISSUES:
1. Whether Claimant’s current medical regime is reasonable and necessary treatment for a work-related injury.
EXHIBITS:
1. Medical Records of Claimant
2. Pretrial disclosures which includes a letter from Dr. Lucy Patti
3. Curriculum Vitae of Dr. Philip Carling
FINDINGS OF FACT:
1. Claimant contracted Hepatitis A when she was approximately 20 years old and made a complete recovery with no residual symptoms.
2. In 1987, Claimant began working as an operating room nurse at Central Vermont Hospital. This was her occupation during all times relevant to the pending action.
3. In December 1989, Claimant alleges that she contracted Hepatitis C, presumably from a needle stick, while working as an operating room nurse at Central Vermont Hospital. There is no documentation of a needle stick in the medical records.
4. After reviewing lab test results of December 1989, Dr. Mark Yorra concluded in his March 27, 1990 report, that Claimant’s symptoms (headaches, body aches, muscle
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fatigue, low back pain, chronic diarrhea, loss of appetite, memory loss, and sleep deprivation) were consistent with acute Hepatitis.
5. Dr. Yorra attributed Claimant’s symptoms to chronic fatigue syndrome related to her “job-acquired Hepatitis infection” on August 7, 1990.
6. However, approximately two months later, Dr. Yorra observed that Claimant was no longer symptomatic of Hepatitis because her liver enzyme levels were normal. He diagnosed Claimant with “residual fatigue syndrome,” and opined that she could return to work on a part time basis.
7. On a referral from Dr. Yorra, Dr. Dieter Gump examined the Claimant on May 14, 1991 and noted a butterfly tattoo on her right shoulder. He speculated that the Claimant could have contracted Hepatitis from a tattoo needle. However, the exact date of when the Claimant acquired the butterfly tattoo is not indicated in the medical records.
8. Dr. Gump placed the Claimant at medical end result on June 11, 1991. Consequently, Dr. Gump added that he was without a medical explanation for why Claimant continued to complain of “undue fatigue” and why she was unable to work eight hours a day.
9. In 1991, Claimant became a patient of Dr. Anthony Komaroff, Brigham and Women’s Hospital. During this time, Dr. Komaroff was conducting a research program on the cause of chronic fatigue immune dysfunction syndrome.
10. Dr. Komaroff reported that Claimant has a history of depression dating back to 1981 which was prior to her Hepatitis episode. He diagnosed Claimant with a “chronic debilitating condition following in the wake of an apparently non-A, non-B, non-C Hepatitis” and added that “she probably had an active depressive disorder at the time of her Hepatitis.” Dr. Komaroff treated Claimant for three years and diagnosed her symptoms as post-infectious fatigue syndrome.
11. On March 8, 1995 Dr. Yorra’s medical opinion was that Claimant did not have the capacity to return to employment as an operating room nurse. His prognosis was that Claimant remained totally disabled from her former occupation and he estimated that she had an 85% whole person impairment rating.
12. Dr. Dorothy Ford, Physical Medicine and Rehabilitation, disagreed with Dr. Yorra’s impairment rating in belief that the rating was “extremely” high. Rather, she opined that an 85% whole person impairment rating was equal to the rating for quadriplegics and greater than the rating for all but the most severe head injuries.
13. On July 11, 1995 Dr. Ford evaluated the Claimant. She based the Claimant’s impairment rating on an endurance test because chronic fatigue syndrome was not addressed by the AMA Guides. She assigned a 40% whole person impairment rating and placed the Claimant at medical end result.
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14. A functional capacity examination of the Claimant was performed by Marge Lavoie Skroski, Green Mountain Industrial Rehabilitation, on June 22, 2005. Ms. Skroski concluded that Claimant had a less than sedentary work capacity.
15. Dr. Christopher Matkovic, Diplomate of American Board of Internal Medicine and Infectious Disease, examined the Claimant on February 28, 2006. From this examination, he concluded that Claimant “truly has ongoing fatigue” but that it was not causally related to the Hepatitis episode that occurred eighteen years ago. Dr. Matkovic rejected any theory of possible causation because he believes that there is no association between Hepatitis and chronic fatigue syndrome. He reasoned that there was no medical evidence to support that Claimant’s symptoms were “chronic” in nature or evidence of a needle stick which could explain the 1989 Hepatitis episode. According to Dr. Matkovic, approximately 95% of needle sticks are associated with Hepatitis B and C; and since neither was detected in Claimant’s medical tests, he was not convinced that Claimant’s acute Hepatitis was even job-related.
16. Dr. Philip C. Carling, Caritas Carney Hospital, specializes in infectious diseases. His March 31, 2007 report also indicated disagreement with Dr. Yorra’s diagnosis of chronic fatigue syndrome. Dr. Carling ruminated that Dr. Yorra failed to rule out other bases for Claimant’s symptomalogy. He concluded that Claimant’s 1989 episode of Hepatitis was not causally related to her employment. Dr. Carling brought to light that there are many different causes of Hepatitis because it is a very general term used to describe inflammation of the liver.
17. On May 10, 2007 Dr. Carling testified that chronic fatigue syndrome was in no way associated with Hepatitis. He explained that the “constellation” of symptoms (low grade fevers, inability to achieve adequate amounts of rest, mental status changes, cognitive problems, and sore throats) associated with chronic fatigue syndrome usually subside within four to six years. Dr. Carling speculated that it is very controversial for symptoms of chronic fatigue syndrome to persist longer than for these periods of time. His testimony also reflected concern that there is no specific treatment for chronic fatigue syndrome; that Dr. Yorra was a general internist at the time he made the chronic fatigue syndrome diagnosis; and that Dr. Yorra failed to rule out other potential explanations for Claimant’s symptoms.
18. Dr. Lucy Patti, Associates in Family Health, is Claimant’s current treating physician. Dr. Patti agreed with Dr. Komaroff’s chronic fatigue syndrome diagnosis and is supervising Claimant’s treatment regime for symptoms of this condition.
19. Claimant has been unemployed since 1990 (seventeen years) and testified that she spends most of her time resting.
20. Claimant’s current treatment regime includes the following medications: Zoloft, Prolosec, Raglan, Transadone, Ambien; with intermittent use of Zocor and Toprol. These medications were all prescribed to treat Claimant’s symptoms of insomnia, digestive problems, depression, short term memory loss, muscular aches and joint pain, and fatigue.
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CONCLUSIONS OF LAW:
1. Ultimately, the burden of proof rests upon the Claimant who must prove all facts essential to the rights asserted in Workers’ Compensation cases. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant is also required to establish the character and extent of their injury as well as the causal connection between the injury and the employment by a demonstration of sufficient credible evidence. Egbert v. The Book Press, 144 Vt. 367 (1984).
2. The Claimant has not satisfied her burden of proof because she has not convinced the Department that her symptoms, arguably consistent with chronic fatigue syndrome, are causally related to her 1989 Hepatitis episode or related to her employment. Credible experts, namely Dr. Carling, Dr. Matkovic, and Dr. Gump have successfully cast doubt upon this causal relationship.
3. Dr. Patti and Dr. Komaroff, have diagnosed Claimant’s current symptoms as chronic fatigue disorder related to her 1989 Hepatitis episode while Dr. Carling, Dr. Matkovic, and Dr. Gump disagree with the chronic fatigue diagnosis and deny the causal relationship. Traditionally, when conflicting expert medical opinions arise, the Department applies the following test to determine which expert’s opinion is the most persuasive: 1) the nature of the treatment where a patient-provider relationship has existed; 2) whether the expert had an opportunity to examine all the relevant 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); see also S.S. v. The Book Press, Opinion No. 06-07WC (Feb. 21, 2007). The opinions of Dr. Carling, Dr. Matkovic, and Dr. Gump are the most persuasive. The doctors examined Claimant and her relevant medical records in an effort to determine the cause of her symptoms and the appropriate medical treatment regime for these symptoms; based their opinions on objective support; conducted a thorough examination of the Claimant; and finally, the doctors are all qualified experts in their respective fields.
4. In terms of medical expertise, more weight should be assigned the opinions of Dr. Gump, Dr. Carling, and Dr. Matkovic. Because, at the time Dr. Mark Yorra diagnosed the Claimant with chronic fatigue syndrome, he was a general internist. Therefore, his level of expertise in the field of internal medicine and infectious disease was not comparable to expertise of the other experts. Dr. Carling, further, testified that Dr. Yorra did not follow the standard approach for diagnosing chronic fatigue syndrome because he failed to rule out other possible explanations for Claimant’s symptoms. To believe that Claimant’s current symptoms are in any way associated with the 1989 Hepatitis episode is medically untenable in light of the aforementioned experts’ review of the medical records, their objective diagnoses and their belief that Claimant’s eighteen years of symptomalogy is without a basis in internal or infectious medicine. Additionally, the Hepatitis episode could have been associated with the Claimant’s tattoo and not her employment at the Defendant’s because no needle stick was reported in the medical records.
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5. Therefore, absent a causal connection between Claimant’s symptoms and her 1989 Hepatitis episode, and without evidence the Hepatitis was work-related, there is no basis for holding the Defendant liable for her current medical treatment regime. Establishing the requisite connection requires more than mere possibility, suspicion or surmise. It requires that inferences from the facts asserted must be the most probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941). The most probable hypothesis is that Claimant’s symptoms are not casually related to her employment or episode of Hepatitis.
6. Medical treatment may be unreasonable either because it is not medically necessary or because it is not related to the compensable work injury. See Morrisseau v. State of Vermont, Agency of Transportation, Opinion No. 19-04 WC (May 17, 2004). In the instant case, the Department does not find Claimant’s current symptoms to be work-related.
ORDER:
Based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that the Defendant is precluded from any further liability for Claimant’s medical treatment regime. The Departments finds that Claimant’s current medical treatment regime is NOT related to her alleged work injury.
Dated at Montpelier, Vermont this 20th day of August 2007.
______________________________________
Patricia Moulton Powden
Commissioner
APPEAL:
Within in 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

C. R. v Fairfax Salvage & Repair, Inc. (July 2, 2008)

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

C. R. v Fairfax Salvage & Repair, Inc. (July 2, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
C. R. Opinion No. 28-08WC
By: Jane Gomez-Dimotsis
v. Hearing Officer
Adam Sherwin
Law Clerk
Fairfax Salvage & Repair, Inc. For: Patricia Moulton Powden
Commissioner
State File Nos. W-2010 & W-06718
Formal Hearing held in Montpelier on October 26, 2007
APPEARANCES:
Christopher McVeigh, Esquire, for the Claimant
Marion T. Ferguson, Esquire for the Defendant
ISSUES:
1. Whether Mrs. Renaudette’s bilateral elbow problems are causally related to her work at Fairfax Salvage & Repair, Inc.
2. If a causal connection is found, what, if any, benefits are due.
EXHIBITS:
Joint Exhibit 1: Medical Records
Claimant’s Exhibit 1: Dr. Foerster’s deposition testimony
Defendant’s Exhibit 1: Independent Medical Examination (“IME”)
Defendant’s Exhibit 2: Ergovention Report
CLAIM:
1. Medical and hospital benefits pursuant to 21 V.S.A. § 640.
2. Attorney fees and costs pursuant to 21 V.S.A. § 678(a).
3. Legal interest pursuant to 21 V.S.A. § 664.
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FINDINGS OF FACT:
1. Claimant was an owner of Fairfax Salvage & Repair, Inc. and worked as an office manager for seven years. Her duties included office management, data entry, and customer service. The job required her to use the computer approximately seven hours a day. She was 48 at the time of the injury and left hand dominant.
2. Around May 2003, Claimant developed pain in her right shoulder and right elbow. In July 2003, her first doctor, Dr. Raymond Long, diagnosed her with rotator cuff syndrome for the right shoulder and lateral epicondylitis for the right side. He injected her with medication that successfully relieved the pain for the next several months.
3. On September 3, 2003, during a follow-up examination, Claimant told Dr. Long that she was completely pain free.
4. On March 24, 2004, during another follow-up examination, Claimant stated that pain in her right shoulder returned. Dr. Long diagnosed this as a recurrence of lateral epicondylitis, and gave her another injection of cortisone.
5. During November 2004, Dr. Bruce V. Foerster took over care for Claimant. He also diagnosed her condition as lateral epicondylitis for the right elbow, and treated it through the use of a wrist splint, an elbow strap, icing, and physical therapy. Additionally, Dr. Foerster believed that the right elbow included a diagnosis of radial tunnel syndrome; although he testified there is no test that can establish that diagnosis with certainty.
6. Claimant testified that she did not regularly use a computer at home nor did she do any rigorous physical activities. She also testified that during the weekends, when she was not using the computer, there was less pain in her arm.
7. On January 6, 2005, Claimant met with Dr. Foerster for a follow-up on the treatment. She stated that the symptoms from her right elbow were getting worse again, and noted that she was having trouble using the computer at work. Because of this, she began using her left hand for most of her heavier activities. Dr. Foerster gave her another injection of cortisone, and advised her to continue with the other treatments.
8. On March 31, 2005, Claimant met with Dr. Foerster for another follow-up. She stated that while there was less pain in her right elbow, her left elbow was now hurting as well. Dr. Foerster found mild tenderness over the lateral epicondyle of the right elbow and significant tenderness over the lateral epicondyle on the left side. He diagnosed this as again being work related, and gave her a cortisone injection for the left elbow. He again advised her to continue with the same treatment.
9. On June 7, 2005, Claimant met with Dr. Foerster for another follow-up. She stated that her right elbow felt about the same, but her left elbow is much worse. Dr. Foerster gave her a wrist strap and discussed other treatment options with her.
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10. On August 30, 2005, Claimant met with Dr. Foerster for another follow-up. She stated that she has noticed increasing and persistent pain in the left elbow, but the pain in her right elbow was somewhat stable. Dr. Foerster gave her a cortisone injection into the left elbow and recommended that she proceed with work place improvements that had been previously proposed.
11. On November 22, 2005, Claimant met with Dr. Foerster for another follow-up. She stated that the last cortisone injection helped with the left elbow but did not completely cure the pain. He advised her that the work place improvements would help her condition, and that she should continue with the previous treatment.
12. On August 8, 2006, Claimant met with Dr. Foerster for another follow-up. She stated that the pain in her left elbow is much worse than the right. Dr. Foerster gave her another cortisone injection into her left elbow.
13. On December 12, 2006, Claimant met with Dr. Foerster for an evaluation of bilateral upper extremity problems. She had cancelled a scheduled appointment a month ago because her elbows were feeling better. Now, she stated she had increasing problems in her arms and hands, with the right side being worse than the left. Dr. Foerster prescribed some medication, and did a number of tests to check for possible causes of her condition.
14. Overall, Dr. Foerster treated Claimant for over three years using conservative treatment. Because this did not relieve her condition, Claimant chose to undergo surgery.
15. In February 2007, Claimant had surgery for her right elbow.
16. On March 6, 2007, Claimant met with Dr. Foerster for a follow-up from the surgery. He noted that she had symptoms and findings of radial tunnel syndrome, but was not completely sure of this diagnosis. He gave her a prescription for both physical therapy and medication, and advised her to gradually increase her physical activities.
17. On April 17, 2007, Claimant met with Dr. Foerster for another follow-up from the surgery. She said that she had no further pain in the right elbow. Dr. Foerster observed that the surgery successfully treated the epicondylitis. However, he recommended that she only pursue surgery for the left elbow if the pain became worse. He made this recommendation because there was no guarantee that surgery for the left elbow would be as successful as the previous surgery.
18. On June 20, 2007, Claimant had surgery for her left elbow.
19. On November 5, 2004, an ergonomic specialist visited Fairfax Salvage and Repair and evaluated Claimant’s workstation. He found that the setup of her worksite resulted in increased force to her upper extremities, and an awkward posture of her back, neck, and shoulders. He made several recommendations on how to avoid these conditions.
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20. Dr. Mark Bucksbaum did an IME of Claimant on June 5, 2006. He concluded that her left lateral epicondylitis was not causally related to her work place injury. He also found that her right shoulder rotator cuff injury and right epicondylitis also did not have a clear causation within a reasonable degree of medical certainty to her work activities. In his report, Dr. Bucksbaum noted that because she is left hand dominant, there is a low probability that she would manifest right sided symptoms. He also wrote that keyboarding is not expected to cause a rotator cuff injury, and that there is no record of an injury for the left upper extremity. He concluded that it is not likely that she developed left lateral epicondylitis from guarding the right elbow. Additionally, he found that Claimant’s delay in seeking treatment for the right upper extremity is the reason why she needed prolonged treatment.
21. Dr. Foerster disagreed with the findings of the IME. He argued that based on his own experience, the hand dominance of a patient does not dictate the location of tendonitis. He also disagreed with Dr. Buckbaum’s conclusion that Claimant’s left lateral epicondylitis was not related to her work activity. Dr. Foerster testified that repetitive keyboarding and using the mouse are common causes of lateral epicondylitis. Based on a reasonable degree of medical certainty, he believed these work activities were the cause of Claimant’s injuries.
22. The claimant has presented an itemized statement for $1,481.67 in costs and attorney’s fees based on the statutory rate of $90.00 for 42.2 hours of time.
CONCLUSIONS OF LAW
1. In a worker’s compensation claim, it is the burden of the claimant to establish all facts essential to support his claim. King v. Snide, 144 Vt. 395 (1984); Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). Sufficient competent evidence must be submitted verifying the character and extent of the injury and disability, as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. Where the causal connection between an accident and an injury is obscure and a lay person would have no well-grounded opinion as to causation, expert medical testimony is necessary to establish the claim. Lapan v. Berno’s Inc., 137 Vt. 393 (1979). “There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proved must be the more probable hypothesis.” Brown v. E.B. & A. C. Whiting, Opinion No. 21-94WC, (Aug.1, 1994); Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
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3. When evaluating and choosing between conflicting medical opinions, the Department has traditionally considered several factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience. Morrow v. VT Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Sept. 1 & July 20, 1998); Miller v. Cornwall Orchards, Opinion No. 20-97WC (Aug. 4, 1997).
4. Three doctors have examined Claimant: (1) Dr. Raymond A. Long/orthopedic surgeon (2) Dr. Bruce V. Foerster/orthopedic surgeon (3) Dr. Mark J. Bucksbaum/physical medicine and rehabilitation specialist. Dr. Long and Dr. Foerster were Claimant’s doctors, and Dr. Bucksbaum was an independent medical examiner. While Dr. Long initially treated Claimant for her injuries, he made no diagnosis as to what was the cause of the epicondylitis.
5. Dr. Foerster treated Claimant for over three years. He met with her for numerous follow-up examinations and performed surgery on both of her elbows. Dr. Bucksbaum, however, has met with Claimant for only one examination.
6. Because of Claimant’s extensive relationship with Dr. Foerster, I find his medical opinion more persuasive.
7. The next factor requires consideration of each physician’s access to the claimant’s medical records. Here, the evidence shows that both Dr. Foerster and Dr. Bucksbaum had an opportunity to review all records relating to Claimant’s injuries.
8. I then must decide whether the report or evaluation at issue is clear and thorough and includes objective support for the opinions expressed. Here, each physician supports his opinion based on their experience treating this condition. Neither physician offers any objective evidence, beyond their own opinions, as to the cause of Claimant’s epicondylitis. While each physician made a credible case in supporting their opinion, the other physician reached the opposite conclusion based on a similarly persuasive argument. Neither physician has offered objective support to prove that their opinion is more likely to be true that the opposing opinion. Therefore, on the basis of each physician’s testimony alone, I find each opinion equally persuasive.
9. However, I do find objective support for Claimant’s argument in the ergonomic specialist’s report. Here, this report shows that Claimant’s workstation resulted in excess force to her upper extremities and an awkward position of her back, neck, and shoulders. The recommendations made to fix this problem all relate to the job functions that Dr. Foerster claim were the cause of her injuries. Therefore, I find that the report provides objective support that Claimant’s work was the cause of her epicondylitis.
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10. Next, I have looked at the comprehensiveness of each examination. Here, I find that each physician had an opportunity to do a thorough examination of Claimant. However, given that Dr. Foerster treated Claimant for over three years, compared to Dr. Bucksbaum’s single examination, I find Dr. Foerster’s examination to be more comprehensive than Dr. Bucksbaum’s examination.
11. Finally, I have looked at each physician’s qualifications. Here, Dr. Foerster is an orthopedic surgeon who specializes in hand and upper extremity surgery. Dr. Bucksbaum specializes in physical medicine. I find each physician to have an equal level of education and experience. However, I find Dr. Foerster’s opinion to be more persuasive because he has diagnosed and treated many patients for epicondylitis.
12. Based on these factors, I find Dr. Foerster’s opinion to be most persuasive. Dr. Foerster has treated Claimant for several years and frequently treats epicondylitis. His opinion is supported by evidence that proves Claimant’s workstation caused excessive force on her body.
ORDER:
Based on the foregoing Findings of Fact and Conclusions of Law, Fairfax Salvage & Repair is ORDERED to pay Claimant:
1. Medical and indemnity benefits, plus statutory interest.
2. Reasonable attorney fees and costs; a total combined amount of $90.00 per hour at 42.2 hours and reasonable costs of $1,481.67.
DATED at Montpelier, Vermont this 2nd day of July 2008. ___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

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