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F. N. v. Montpelier School District (December 20, 2006)

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F. N. v. Montpelier School District (December 20, 2006)
STATE OF VERMONT
DEPARTMENT OF LABOR
F. N. Opinion No. 52-06WC
By: Margaret A. Mangan
v. Hearing Officer
Montpelier School District For: Patricia Moulton Powden
Commissioner
State File No. U-52182
Hearing held on Montpelier on November 3, 2006
Record closed on November 13, 2006
APPEARANCES:
Richard Davis, Jr., Esq., for the Claimant
Jason R. Ferreira, Esq., for the Defendant Cambridge Integrated Services
Timothy Vincent, adjuster for Defendant VSBIT
ISSUES:
1. Whether the treatment proposed by Dr. Cody is medically necessary and causally related to Claimant’s work-related low back injury.
2. If so, what carrier is responsible for this claim?
EXHIBITS:
I: Joint Exhibits
A. Medical Records
B. Deposition of Dr. Rayden Cody
II: Defense Exhibits:
A. Curriculum vitae of Dr. John Johansson
B. Affidavit dated July 25, 2006
III: Claimant’s exhibit:
A. Curriculum vitae of Dr. Rayden Cody
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FINDINGS OF FACT:
1. In March 2004 and April 2005 Claimant was an employee and the Montpelier School District his employer within the Vermont Workers’ Compensation Act.
2. Cambridge Integrated Services provided workers’ compensation insurance for the Montpelier School District between March 2004 and June 2004.
3. In July 2004, the Vermont School Board Insurance Trust (VSBIT) began providing workers’ compensation insurance for the Montpelier School District.
4. Claimant began working as a custodian for the Montpelier schools in December 2001. His duties included dusting, mopping, cleaning floors, bathrooms, locker rooms, the auditorium and some classrooms. During the school year, he worked from midnight to 8:00 a.m., during the summer from 2:00 p.m. to 10:00 p.m.
5. About ten years before the incidents at issues here, Claimant hurt his back when he slipped at a bowling alley. In March of 1999 Dr. Christopher Merriam characterized Claimant’s low back pain as chronic. At that time, Claimant complained of a worsening of symptoms with sharp pain in his low back. Dr. Merriam diagnosed Claimant’s condition at the time as muscular, although he also noted that a CT scan revealed a disc bulge at L4-L5.
6. On March 22, 2004, Claimant was lifting a trash bag at work for the school district when he felt inguinal and back pain.
7. As a result of the lifting incident, Claimant had a hernia and low back pain. He sought medical care, was taken out of work and received physical therapy. In April 2004 Claimant had surgery to repair the inguinal hernia.
8. Claimant’s initial attempt to return to work failed, but he was able to return to full duty in June 30, 2004 after he demonstrated in physical therapy that he could lift fifty pounds without difficulty.
9. On November 10, 2004, at the carrier’s request, Claimant had an independent medical examination with Dr. Jonathan Fenton who determined that Claimant had not yet reached medical end result. At Dr. Fenton’s recommendation, Claimant had SI joint injections.
10. In March 2005, Claimant was released medically for overtime work “as tolerated.”
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11. In April 2005, while Claimant was still treating with Dr. Fenton, he was working on a platform in a music room changing filters, a job that necessitated climbing a ladder. After changing a filter, Claimant was stepping from the platform to the ladder when he heard a snap in his back, and felt as though he was being stabbed. In addition, he had pain, numbness and weakness in his right lower extremity.
12. Claimant was again taken out of work and treated with physical therapy. He has not returned to work since.
13. Dr. Peterson, who recommended physical therapy, questioned whether there was a behavioral component to Claimant’s back pain.
14. Records demonstrate physicians’ concerns about Claimant’s use of narcotics. For example, a June 2005 note by Dr. Ruth Crose referred to Claimant’s history of mixed substance abuse and heavy alcohol use.
15. In May 2005, a physical therapist noted that Claimant had not been attending physical therapy consistently and questioned whether he would benefit from further therapy.
16. In August 2005, Dr. Peterson recommended a work hardening program with a behavioral component.
17. A September 26, 2005 MRI revealed minor dehydration at L3-4, L4-5 and L5-S1 and a slight bulge at L5-S1.
18. Claimant treated at the Vermont Center for Occupational Rehabilitation under the direction of Dr. John Johansson from November 21, 2005 until February 9, 2006.
19. During the five-week program, Claimant first underwent a behavioral medicine and pain management evaluation. He then had extensive physical therapy, pool therapy, training on body mechanics and posture and instruction on how to perform the work of custodian ergonomically. The physical therapy portion of the program was scheduled for three sessions each week for the five weeks. Claimant missed eight of the sessions. He also missed several of the behavioral medicine components.
20. On February 9, 2006, Dr. Johansson placed Claimant at medical end result with a 5% whole person rating and released him to work at medium duty work. In the final evaluation for the program Dr. Johansson noted that Claimant had “absence issues.”
21. In March 2006, Dr. Merriam diagnosed Claimant’s problem as likely ligamentous. He recommended aerobic exercises, stretching and physical therapy.
22. The school district offered to modify Claimant’s job to make it consistent with a medium duty work capacity.
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23. Claimant then returned to the Plainfield Health Center with significant complaints of pain and asked for another referral. On that referral he went to Dr. Rayden Cody at the Spine Institute of New England who is an expert in the field of interventional pain management.
24. The drug test Dr. Cody ordered was positive for several substances. Yet, Claimant denied any drug use.
25. Dr. Cody noted a high intensity zone in Claimant’s MRI that he opined was the source of Claimant’s pain. In Dr. Cody’s opinion, its source was either disc or facet. On examination, he noted that Claimant’s spinal flexion was worse than his extension, suggesting a disc source of the pain.
26. Dr. Cody recommended a bundle branch block (BBB) to determine whether the facet joint was the pain source. If the result proved positive, he would then recommend radio frequency ablation (RFA) to treat the pain. According to Dr. Cody, these procedures help a significant number of patients. Although they do not always work, “for the most part they don’t cause damage…” explained Dr. Cody.
27. If the bundle branch block were negative, Dr. Cody would recommend a discogram to determine if the disc is the source for the pain. If so, he would recommend interdiscol electro thermal therapy, known by its acronym IDET.
28. Dr. Cody determined that Claimant’s past narcotic use would not affect his opinion regarding the recommended procedures.
29. Dr. Jerry Tarver at Fletcher Allen Health Care Division of Pain Management agreed with the medial BBB followed by RFA or discogram followed by IDET.
30. The procedure recommended by Dr. Cody is qualitatively different from the pain management program Claimant underwent under Dr. Johansson’s supervision.
31. Dr. Cody opined that the work related incident aggravated Claimant’s preexisting disc desiccation condition (dehydration in the discs).
32. Dr. Johansson opined that the radiofrequency ablation would have a low likelihood of relieving Claimant’s pain or improving his functional status. He attributes Claimant’s pain to degenerative disc disease, not to facets.
33. Doctors Cody and Johansson agreed that the second work related incident aggravated his previous injury or caused a new injury. The opinions were based on the facts that Claimant was able to return to work full duty after the first injury, but not after the second; that he was able to continue with the physical activities after the first injury, but not after the second; and that he was on stronger pain medications after the second injury. Overall, he was worse off after the second injury.
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34. In June 2006 Claimant was involved in a physical altercation. He was intoxicated at the time. Dr. Cody opined that the incident had no effect on his opinion.
35. Finally, Dr. Cody explained that Claimant is in considerable pain. He proposes to intervene regardless of a history of narcotic use.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, 123 Vt. 161 (1963). The claimant must establish by sufficient credible evidence the character and extent of the injury and disability as well as the causal connection between the injury and the employment. Egbert v. Book Press, 144 Vt. 367 (1984).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference form the facts proved must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
3. A medical treatment is compensable if it is reasonable and causally related to a work related injury. 21 V.S.A. § 640(a).
4. Defendants make much of the Claimant’s narcotic use in urging the Commissioner to deny this claim. Ironically, that is one factor that supports the progressive steps outlined by Dr. Cody. He convincingly testified that Claimant is entitled to pain relief despite that history. If the treatment is successful, any prescriptions for the narcotics may be reduced or stopped completely. And, of course, such use certainly will be monitored during treatment.
5. Claimant needed further intervention for pain relief before the 2006 physical altercation. Therefore, that incident cannot operate to defeat this claim.
6. Accordingly, Claimant has proven that the treatment proposed by Dr. Cody is reasonable.
7. Next is the question whether Claimant’s condition is an aggravation or recurrence, a dispute on which the most recent carrier, VSBIT, has the burden of proof because pursuant to 21 V.S.A. § 662(c), “the employer or insurer at the time of the most recent personal injury …shall have the burden of proving another employer’s or insurer’s liability.” Farris v. Bryant Grinder, 177 Vt. 456, 461 (2005).
8. “Aggravation” means an acceleration or exacerbation of a pre-existing condition caused by some intervening event or events. WC Rule 2.1110. “Recurrence” means the return of symptoms following a temporary remission. Rule 2.1312.; see also Pacher v. FairdaleFarms 166 Vt. 626, 629 (1997) (mem).
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9. Facts this Department examines to determine if an aggravation occurred, with the greatest weight being given the final factor, are whether: 1) a subsequent incident or work condition destabilized a previously stable condition; 2) the claimant had stopped treating medically; 3) claimant had successfully returned to work; 4) claimant had reached an end medical result; and 5) the subsequent work contributed independently to the final disability. Trask v. Richburg Builders, Opinion No. 51-98WC (1998).
10. Most factors devolve toward aggravation in this case. Claimant’s stable condition before the 2005 incident was destabilized when he moved from the platform to the ladder at the school and felt excruciating pain. Although he had not stopped treating medically, Claimant had successfully returned to full time, full duty work. Although he had not been placed at medical end result officially before the 2005 incident, his condition had reached a plateau. Finally, the 2005 incident contributed to the Claimant’s final disability as each doctor clearly opined.
11. Therefore, VSBIT is the responsible carrier because Claimant suffered an aggravation under its watch.
ORDER:
Based on the foregoing findings of fact and conclusions of law, VSBIT is ORDERED to adjust this claim, including the payment for the diagnostic work and treatment proposed by Dr. Cody.
Dated at Montpelier, Vermont this 20th day of December 2006.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)

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

P. M v. Bennington Convalescent Center & FGB Corporation (January 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. M. Opinion No. 55-06WC
By: Margaret A. Mangan
v. Hearing Officer
Bennington Convalescent Center
and FGB Corporation For: Patricia Moulton Powden
Commissioner
State File No. A-25839 & U-00957
Hearing held in Montpelier on August 29, 2006
Record closed on October 2, 2006
APPEARANCES:
Patrick Biggam, Esq., for the Claimant
Tammy Denton, Esq., for Defendant NH Insurance Co./American Health Care.
Jeffrey W. Spencer, Esq. for Defendant FGB
ISSUES:
1. Was Claimant’s spinal surgery on April 14, 2003 reasonable?
2. Did Claimant suffer an aggravation or a recurrence of her previous work related back injury while working for FGB Corporation?
3. What, if any, benefits is the Claimant entitled to receive?
CLAIM:
1. Medical expenses in the amount of $57,854.11 for treatment of back injury, including surgery on April 14, 2003;
2. Legal fees in the amount of 20% of the value awarded, not to exceed $9,000;
3. Costs.
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EXHIBITS:
Joint I: Medical Records
Defendant NH Insurance Co./American Health Care:
A Verne Backus, M.D.’s Curriculum Vitae
B Kuhrt Wieneke, M.D.’s Curriculum Vitae
Defendant FGB Corp.: Photographs
Claimant’s 1: Medical Billing Packet
FINDINGS OF FACT:
1. On June 2, 1988, Claimant injured her low back while working as a nurse’s aid for American Health Care (“AHC”). The injury occurred as she bent over to catch a patient to prevent a fall. The workers’ compensation insurer for AHC accepted the claim.
2. Claimant’s attempts to return to light duty as a nurse’s aid failed.
3. In May of 1989, Dr. Gates performed a partial discectomy at L4-5, but Claimant’s pain and numbness persisted postoperatively. Later she was diagnosed with a failed back syndrome.
4. In November 1989 Claimant was released to work with a lifting restriction of ten to twelve pounds.
5. In 1990, Claimant had reached medical end result. Dr. Gates assessed permanency at 34%; Dr. Ford assessed a 28% impairment.
6. In the summer of 1991, Claimant’s work for AHC ended because she was unable to do the work.
7. Claimant continued to treat for back and leg pain and weakness. She received prescriptions for pain medication and a TENS unit.
8. A July 1992 CT scan revealed a herniated disc on the left at L4-5. Steroid therapy and facet injections followed.
9. In November 1992, Dr. Gates recommended further surgery to relieve her symptoms that he opined were related to a slow exacerbation of her work related injury. He later explained that with the disc pathology from the original injury, she had continued degeneration in the spine, narrowing the lateral recess and causing her pain.
10. The carrier refused to pay for the recommended surgery or other continued care, although it paid for medication.
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11. By November 1998, the Claimant had been babysitting children in her home for four to five years.
12. In November of 1998, Claimant began working for Defendant FGB at a Laundromat, six hours per day, five days per week. The Laundromat was self-serve. Her pain continued at the level it had been, an eight on a scale of one to ten.
13. Claimant loaded washers and dryers and folded clothes. She lifted only weight she was comfortable lifting, asking for help from coworkers for heavy items. At all times, Claimant was compliant with the twenty pound lifting restriction she had been given. In addition, she was free to take breaks and sit as needed.
14. Work at the Laundromat did not change the progression of Claimant’s pain. It worsened, but in the same way it had when she was not working. Nothing at work affected the pain.
15. Claimant missed some time from work for a shoulder injury in December 2002. When she returned in February 2003, no mention was made of any back problems. During her time out of work for the shoulder, her back symptoms progressed in the same way they did when she was working.
16. On April 14, 2003, Dr. Lapinsky performed back surgery on Claimant. The procedures were laminectomies, foraminotomies and a fusion.
17. AHC denied payment for the back surgery, arguing that the surgery was not reasonable or causally related to Claimant’s work as a nurses’ aid. Further it pointed to her later work at the Laundromat as the cause.
18. Dr. Lapinsky wrote that the basis for the fusion surgery was to address the spinal instability that would result from the decompression aspects of the surgical procedure. It was also intended to “stabilize the motion segments that have degenerated.”
19. AHC denied payment for surgery based on the opinion of Dr. Verne Backus, Occupational Medicine expert, that the fusion was not a reasonable procedure because it was performed for pain alone, without evidence of instability. However, Dr. Backus agreed that the medical community differs on this subject, with many surgeons recommending fusion surgery for pain.
20. Dr. Kuhrt Wieneke, certified in orthopedic surgery and spine surgery, performed and independent medical examination of the Claimant on November 8, 2004. Dr. Wieneke opined that the Claimant suffered a series of aggravations while working at the laundromat because her back pain was more severe at the end of the workday.
21. Dr. Christopher Brigham, an expert hired by FGB Corporation to conduct a review of the Claimant’s medical records, supported the compensability of the fusion surgery, noting that it was performed “because of the instability created by the removal of so much bone structure.”
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22. Furthermore, Dr. Brigham opined that Claimant’s condition has followed a natural history since she was injured as a nurses’ aid. That history is that of waxing and waning. He opined that nothing about the job at the Laundromat aggravated her back condition. In fact, he thought the light work there was therapeutic, as contrasted with completely sedentary work.
23. Medical records demonstrate that Claimant’s back problems began in 1988 when she hurt her back helping a patient. She developed a failed back syndrome after the first surgery. Another surgical procedure was recommended before she ever started working at the Laundromat. Claimant lived with a level of back pain that slowly increased, but with no relationship with work. Claimant continued to treat unabated from the time she was hurt in 1988 to the present. Nothing happened at the Laundromat that worsened her condition.
24. Claimant incurred $57,854.11 in expenses for treatment related to the back injury, including the surgery.
25. The Claimant is requesting attorney fees and costs. Claimant’s Counsel has a 33 and 1/3% Fee Agreement with the Claimant. The Claimant has included an itemized list of litigation costs totaling $810.75.
CONCLUSIONS OF LAW:
1. In a worker’s compensation case, the claimant has the burden of establishing all facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1962). The claimant 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).
2. There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
Compensability of Surgery
3. On the reasonableness of the surgery, Claimant has the burden of proof pursuant to 21 V.S.A. § 640(a). “In determining what is reasonable under § 640(a), the decisive factor is not what the claimant desires or what [he] 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 [his] functional abilities.” Quinn v. Emery Worldwide, Opinion No. 29-00WC (2000).
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4. The strong opinions of Dr. Lapinsky and Dr. Brigham convince me that the surgery performed by Dr. Lapinksy was reasonable and, therefore, compensable. 21 V.S.A. § 678 (a). The argument against compensability comes from Dr. Backus who opined that a fusion is performed only for spinal instability. The other experts amply address this concern by explaining that bone loss from the other surgical procedures put the Claimant at risk for instability, supporting the decision for a fusion. Further, degeneration in the Claimant’s spine also led to the need to stabilize motion segments with a fusion.
5. Therefore, the responsible carrier must pay the medical bills related to Claimant’s back injury, including costs of the surgery Dr. Lapinsky performed on April 14, 2003, subject to the fee schedule in Workers’ Compensation Rule 40.000. That total is $57,854.11.
Aggravation or recurrence
6. Next is the question whether Claimant’s current condition is a recurrence, making AHC the responsible employer; or whether it is an aggravation, with FBG as the responsible party. “Generally, when two employers or insurers dispute liability for a workers’ compensation claim arising out of successive injuries, the liability remains with the first insurer or employer if the second injury is a recurrence of the first.” Farris, 177 Vt. at 458, citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997) (mem.). “If, however, the second incident aggravated, accelerated, or combined with a preexisting impairment or injury to produce a disability greater than would have resulted from the second injury alone, the second incident is an ‘aggravation,’ and the second employer becomes solely responsible for the entire disability at that point.” Id.
7. “[T]he employer or insurer at the time of the most recent personal injury …shall have the burden of proving another employer’s or insurer’s liability.” 21 V.S.A. § 662(c). Farris v. Bryant Grinder, 177 Vt. 456, 461 (2005). Therefore, FGB has the burden of proving AHC’s liability.
8. The question turns on the medical evidence. Dr. Backus and Dr. Wieneke believe that Claimant’s work at the Laundromat accelerated her back condition, making it an aggravation under the law of Vermont. On the other side are Dr. Brigham and Dr. Lapinsky, each of whom opined that Claimant’s current condition is the natural progression of her underlying condition.
9. Where medical experts disagree, the Department considers the following factors: (1) the nature of treatment and length of time there has been a patient-provider relationship; (2) whether accident, medical and treatment records were made available to and considered by the examining physician; (3) whether the report or evaluation at issue is clear and thorough and included objective support for the opinions expressed; (4) the comprehensiveness of the examination; and (5) the qualifications of the experts, including professional training and experience; Morrow v. Vt. Financial Services Corp., Opinion No. 50-98WC (Aug. 25, 1998); Durand v. Okemo Mountain, Opinion No. 41S-98WC (Jul. 20, 1998).
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10. Dr. Lapinsky’s opinion carries greater weight for several reasons. First, the Department has traditionally given greater weight to the treating physician’s opinion. Searles v. Price Chopper, Opinion No. 68S-98WC (1998) (citing Mulinski v. C&S Wholesale Grocers, Opinion No. 34-98WC (June 11, 1998)). This case is no exception; Dr. Lapinsky’s education and experience as an orthopedic surgeon grant him a greater understanding of the Claimant’s condition than either occupational medical expert. Also, while Doctors Wieneke and Lapinsky are both experienced orthopedic surgeons, Doctor Lapinsky’s first-hand knowledge again tips the balance in his favor.
11. The evidence further strengthens Dr. Lapinsky’s opinion regarding the diagnosis and treatment of the Claimant. First, Dr. Gates initially recommended a second surgery to treat the Claimant’s destabilized and degenerating condition six years before the Claimant ever began working for Defendant FGB. Second, the Claimant’s pain and disability continued steadily from the early 1990’s until the 2003 surgery. Finally, the Claimant continued to experience pain in the same manner whether or not she was performing work related activities.
12. Therefore, the evidence supports recurrence in this case.
Attorney Fees and Costs
Based on 21 V.S.A. § 678(a) and Rule 10, Claimant is awarded Attorney fees of 20% of the total award or $9,000, whichever is less.
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ORDER:
THEREFORE, based on the above Findings of Fact and Conclusions of Law, the Defendant NH Insurance Co./American Health Care is ORDERED to pay:
1. Medical expenses related to the back injury, including the April 2003 surgery, in the amount of $57, 854.11;
2. Interest from the date each medical expense was incurred;
3. Litigation costs of $810.75;
4. Attorney fees of 20% or $9,000.00, whichever is less.
Dated at Montpelier, Vermont this 2nd day of January 2007.
________________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§ 670, 672.

Barbara MacAskill v. Kelly Services (January 30, 2009)

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

Barbara MacAskill v. Kelly Services (January 30, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Barbara MacAskill Opinion No. 04-09WC
By: Jane Gomez-Dimotsis, Esq.
v. Hearing Officer
For: Patricia Moulton Powden
Kelly Services Commissioner
State File No. X-01266
OPINION AND ORDER
Hearing held in Montpelier on September 8, 2008
Record closed on October 24, 2008
APPEARANCES:
Joe Galanes, Esq. for Claimant
David McLean, Esq. for Defendant
ISSUES:
1. Was the implantation of a spinal cord stimulator medically necessary and appropriate?
2. Was a nerve entrapment release medically necessary and appropriate?
EXHIBITS:
Claimant’s Exhibit 1: Medical Records
Claimant’s Exhibit 2: IME Report of Dr. Phillip J. Davignon
Defendant’s Exhibit A: Medical Records
Defendant’s Exhibit B: IME Report of Dr. Verne Backus
Defendant’s Exhibit C: Audio Recordings of Clinical Interviews
Defendant’s Exhibit D: Curriculum Vitae of Dr. Mary Willmuth
Defendant’s Exhibit E: Two articles submitted by Dr. Davignon:
a. Differential Diagnosis for Complex Regional Pain Syndrome (CRPS)
b. Pain Disorder (Somatoform and CRPS (Reflex Sympathetic Dystrophy)
Defendant’s Exhibit F: IPE Report of Dr. Mary Willmuth
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CLAIM:
Medical benefits for a spinal cord stimulator and a nerve entrapment release pursuant to 21 V.S.A. §640;
Attorney’s fees and costs 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 an employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim.
3. In August 2005 Claimant was employed by Defendant, a temporary job placement service, to provide secretarial assistance at a bank.
Claimant’s Past Medical History
4. Claimant has a lengthy medical history beginning at seven years old when she underwent surgery for a urological problem. She also had occult spina bifida. Claimant was only thirteen years old when she was diagnosed with Hodgkin’s disease, a form of lymph cancer. She had a recurrence of the cancer the following year. Claimant also suffered from thyroid cancer, which resulted in a thyroidectomy. She has had a hysterectomy as well as other necessary surgeries.
5. Claimant also has a history of conditions involving a psychological overlay, including anorexia nervosa, urinary retention and hysterical paralysis. Prior to the events giving rise to the current claim, medical professionals suggested that she suffered from reflex sympathetic dystrophy (RSD) and/or somatoform disorder as well. Claimant has been a frequent visitor to the emergency room, having presented there more than sixty times in approximately a five-year period. She has had prior falls, cuts and other issues. Claimant describes herself as accident prone. She refuses to speak about her family.
The Injury
6. On August 18, 2005 Claimant fell down a flight of stairs while at work for Defendant. Claimant does not remember the fall. She thinks she may have been transferring her purse from her right shoulder to her left. Claimant had some memory of falling on her backside; the next thing she recalled was being in a haze and sitting on the steps. A co-worker brought her to the emergency room. The fact that Claimant fell at work is not in dispute.
7. At the emergency room Claimant reported that she had multiple areas of pain. The medical records reflect that she injured her back, left hip and right ankle in the fall and that she had pain radiating down her buttocks. Later that evening Claimant noticed a bruise on her left lower leg that became painful.
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8. A few days later Claimant presented to her primary care doctor, Dr. Mark Yorra, regarding the bump on her left lower shin. Dr. Yorra believed it to be a hematoma and noted that it was “new” since the fall down the stairs. Claimant had experienced prior problems with her left foot, but these had resolved well before her August 18th fall. She had experienced no new injuries since that fall.
9. Over the next few months Claimant’s left calf became more painful and the lump would swell and turn red and the pain would travel down her leg into her ankle. Eventually, Dr. Yorra referred Claimant to Dr. Meriam, an orthopedist, for further evaluation and treatment.
Medical Treatment
10. X-rays of Claimant’s left leg revealed a small round ossific body adjacent to her area of pain. Dr. Meriam diagnosed “some type of phlebolith or a nice calcification in the soft tissues.” Because he did not examine Claimant until two months after her fall at work, Dr. Meriam could not determine if the contusion preexisted the fall down the stairs or was a result of the fall.
11. Dr. Meriam was concerned Claimant was developing Complex Regional Pain Syndrome (CRPS) and ordered that her left lower leg be put in a cast for four weeks.
12. CRPS, which was also known as Reflex Sympathetic Dystrophy (RSD), is a type of chronic pain syndrome. A key symptom can be continuous intense pain that gets worse rather than better over time and is disproportionate to the severity of the initial injury. It often affects arms, legs, hands or feet. CRPS is a difficult condition to diagnose. Typical features include sensitivity, swelling, changes of appearance in the skin surrounding the injury and burning pain. Some doctors agree that CRPS is most likely neurological in nature and that the sympathetic nervous system is involved. Because there is no cure for CRPS, the focus is on relieving painful symptoms. Some doctors believe spinal cord stimulators are effective for this purpose.
13. When the cast was removed from Claimant’s leg in October 2005, the bump on her shin was smaller and she reported that it hurt her less. Dr. Meriam continued to suspect CRPS, however, and therefore referred Claimant to the anesthesia pain clinic for further evaluation and a bone scan. The bone scan was normal.
14. Claimant had lumbar epidural steroid injections and sympathetic blocks for her left leg pain at the clinic. She also had physical therapy. The pain was also now in her left ankle and heel. All conservative treatments were ineffective and Claimant was sent to the pain clinic at Dartmouth Hitchcock Medical Center (DHMC) where she saw Dr. Beasley on January 26, 2006.
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15. Dr. Beasley received his medical degree in 1973. He is a member of the National Board of Medical Examiners and the American Board of Anesthesia. He is an Associate Professor of Anesthesiology at Dartmouth Medical College and Associate Director of Pain Medicine at DHMC. He was a consultant for Liberty Mutual Insurance Company from 1992 through 1998 and has published articles on RSD. He treats and has treated many RSD and CRPS patients over the years. Dr. Beasley is familiar with the International Association for the Study of Pain (IASP) and uses their approved criteria for diagnosing CRPS.
16. At the time of examination and treatment, Dr. Beasley noted sufficient objective findings, including skin and temperature changes, swelling, edema and allodynia, to confirm Claimant’s diagnosis of CRPS based on the IASP’s approved criteria. He stated that based on the objective findings he was confident in this diagnosis. Dr. Beasley also determined that the symptoms in Claimant’s left lower leg, ankle and foot all were causally related to her August 2005 fall at work.
17. After many attempts at conservative treatment measures proved unsuccessful, Dr. Beasley finally recommended that a spinal cord stimulator be implanted. Dr. Beasley stated that CRPS is hard to treat and he believes, based on medical evidence, that a spinal cord stimulator is an appropriate and necessary treatment for CRPS. The stimulator does not “cure” CRPS. Rather, it interrupts the intensity of the pain a patient feels and presents it as more a vibration than a painful feeling. Sixty to seventy percent of those patients who undergo the treatment get at least a fifty-percent relief of their symptomatology. Dr. Beasley strongly believes that the sooner a stimulator is implanted, the better for the patient.
18. Medical procedures require that any patient contemplating spinal cord stimulator implantation first must undergo a psychological evaluation. To that end, Dr. Sussman, a DHMC psychologist, met with Claimant and subsequently approved her as an appropriate implantation candidate. At the time that he did so, however, Dr. Sussman did not have all of Claimant’s prior medical records, at least some of which posited that she suffered from somatoform disorder.
19. Somatoform disorder is characterized by physical complaints that appear to be medical in origin and are not under the patient’s physical control, but cannot be explained in terms of a physical disease, substance abuse or another disorder. Somatoform disorder is hard to diagnose, particularly in situations where the patient has a history of medical or surgical treatment that might account for at least some of the physical complaints exhibited. Nevertheless, it is possible for a patient to have both a physical reason for pain as well as a psychological one.
20. In February 2006 Claimant began behavioral medicine treatment with Laurence Thompson, M.S. Mr. Thompson noted that he had concerns about any invasive treatments for Claimant’s pain symptoms given her psychological diagnosis of somatoform disorder, and recommended that any such treatments be based on objective findings. He later concluded that the spinal cord stimulator was a reasonable treatment for Claimant.
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21. Claimant received a spinal cord stimulator in June 2006, following which she experienced sixty percent pain relief in her left lower leg. She continued to experience left ankle and heel pain, however.
22. In August 2007 Claimant was referred to Dr. John Bouillon for evaluation of her continued left heel pain. Dr. Bouillon determined that Claimant was suffering from various nerve entrapments in her left knee, ankle and foot, causally related to her August 2005 fall at work. He released the nerves surgically and his surgical findings confirmed this diagnosis. After surgery Claimant’s ability to feel her heel and foot increased and her pain decreased. However, Dr. Bouillon noted that even though the nerve entrapment surgery was successful, the fact that Claimant had CRPS might delay or interrupt her progress after surgery.
Independent Medical Examinations
23. Defendant submitted evidence from two medical specialists, Dr. Mary Willmuth, a psychologist, and Dr. Verne Backus, an occupational medical specialist, both of whom conducted independent medical evaluations of Claimant at Defendant’s request.
24. Dr. Willmuth is a licensed psychologist who has practiced for more than twenty years. She is certified by both the American Board of Rehabilitation Psychology and the American Board of Professional Psychology and is a Diplomate of Rehabilitation Psychology as well. Her present practice is one-third forensic work, evenly distributed between plaintiffs and defense. Dr. Willmuth’s evaluation of Claimant included a significant amount of psychological testing.
25. Dr. Willmuth’s initial opinion was that Claimant did not suffer from somatoform disorder. She stated that the fact that Claimant had had cancer treatment three times in her life would make this psychological diagnosis rare. Dr. Willmuth subsequently changed her opinion, however. She now believes that most likely there was a psychological component to the childhood ailments from which Claimant suffered prior to her diagnosis of Hodgkin’s lymphoma and thyroid cancer. Dr. Willmuth testified that Claimant’s somatization disorder has caused her complaints of pain and injuries, that they are psychological in origin and that Claimant likely would have exhibited them whether or not she had fallen down the stairs at work in August 2005. Therefore, Dr. Willmuth believes that there is no causal connection between Claimant’s need for the spinal cord stimulator and her work injury.
26. Notwithstanding her diagnosis of somatoform disorder, Dr. Willmuth acknowledged that Claimant’s fall at work either was or could have been a precipitating factor in the development of the psychological symptoms she exhibited thereafter. Dr. Willmuth also acknowledged that she reached her diagnostic conclusions with the benefit of hindsight, after reading about Claimant’s significant medical history. Dr. Willmuth admitted that she herself struggled with the diagnosis of somatoform disorder.
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27. At Defendant’s request, Dr. Verne Backus, an occupational and rehabilitation specialist, saw Claimant on two occasions for independent medical evaluations. Initially Dr. Backus diagnosed Claimant with left lower extremity chronic pain syndrome. Dr. Backus disagreed with Claimant’s CRPS diagnosis because he did not personally observe the requisite objective signs, although he acknowledged that these objective findings often wax and wane and therefore may not be readily apparent at every examination. Dr. Backus also stated that unlike some other practitioners in the CRPS field, he does not believe that spinal cord stimulators are an effective treatment for CRPS. For these reasons, Dr. Backus concluded that Claimant had reached end medical result for her work-related injury and that further treatment, including a spinal cord stimulator, was not reasonably necessary.
28. In his second report, after re-examining Claimant and reviewing additional medical reports, Dr. Backus reversed his prior diagnosis of chronic pain syndrome and instead diagnosed Claimant with somatoform disorder presenting as a left lower extremity and low back chronic pain syndrome.
29. Dr. Backus believes that CRPS is a diagnosis of exclusion, in the sense that it should only be diagnosed if there is no other more specific condition to account for the patient’s symptoms. Because Dr. Backus determined that somatoform disorder adequately described Claimant’s condition, he concluded that CRPS thereby was excluded from consideration as a diagnosis. In that respect his opinion contrasts sharply with that of Dr. Beasley. Dr. Beasley’s opinion was that his medical decision was a good one and that he had adequate medical evidence to support it.
30. Dr. Beasley acknowledged that one of the criteria for a CRPS diagnosis is that “no other diagnosis better explains the [patient’s] signs and symptoms.” Nevertheless, he relied on the objective signs he observed, his interview of Claimant, the results of her psychological evaluation and his own experience to support his diagnosis of CRPS and to justify moving ahead with a spinal cord stimulator at the time that he did so.
31. Dr. Beasley testified that even in retrospect, after reading all of the later medical records and independent evaluations, including Dr. Willmuth’s, he still believes that his diagnosis of CRPS was justified at the time and that his corresponding decision to implant the spinal cord stimulator was medically sound. He specifically rejected Dr. Willmuth’s retrospective diagnosis of somatization disorder, stating, “If I felt it was all strictly somatization, yes, it would make some criteria different, but there [were] also definite physical signs that we saw. And we went through different – the diagnosis I felt was real, and diagnosis was not somatoform, it was complex regional pain syndrome.”
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32. Claimant also submitted the report of an independent medical evaluation conducted by Dr. Philip Davignon on August 18, 2008. Dr. Davignon concluded that all of the medical treatment Claimant had received up to the date of his evaluation was reasonably necessary based on the findings that were made at the time. In particular, Dr. Davignon stated that it would have been the natural course for Dr. Beasley to proceed with a spinal cord stimulator at the time that he decided to do so. As of the date of his evaluation, however, Dr. Davignon was unable to confirm a diagnosis of either CRPS or somatoform disorder.
33. Claimant’s attorney has requested costs totaling $4,233.36 and attorney’s fees totaling one third of Claimant’s gross monetary award.
CONCLUSIONS OF LAW:
1. The key issue in this case is whether Claimant’s medical treatment was reasonably necessary and causally related to her August 2005 work injury. Both parties agree that Claimant may now have somatization disorder. However, Defendant disputes the diagnosis of CRPS and questions the causal relationship of either that condition or somatoform disorder to Claimant’s work injury.
2. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
3. 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). The Commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. The claimant bears the burden of proof on this issue. P.M. v Bennington Convalescent Center, Opinion No. 55-07WC (January 2, 2007).
4. The reasonableness of a medical procedure must be determined from the perspective of what was known at the time the decision was made. Jacobs v. Beibel Builders, Opinion No. 17-03 (March 21, 2003).
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5. Where the causal connection between an accident and an injury is obscure, and a layperson would have no well-grounded opinion as to causation, expert medical testimony is necessary. Lapan v Berno’s Inc., 137 Vt. 393 (1979). Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
6. That Claimant’s left lower leg injury was causally related to her August 2005 fall at work is credibly established by Dr. Yorra’s medical records. Dr. Yorra saw Claimant regularly and first observed the bump on her shin just several days after the incident, noting that it was a “new” injury. There is no other evidence pointing to an alternative cause. I conclude, therefore, that the hematoma or ossification on Claimant’s left lower leg resulted from her fall at work.
7. I find Dr. Beasley’s opinion to be the most credible as to both the diagnosis of CRPS and its causal relationship to Claimant’s work injury. Dr. Beasley is highly credentialed, teaches at Dartmouth Medical College and regularly treats CRPS patients. I find convincing his diagnosis of CRPS at the time it was made based on his objective findings. I find equally convincing Dr. Beasley’s assertion that a spinal cord stimulator is a reasonably necessary treatment for CRPS because it helps to reduce pain and provide a reasonable degree of symptom relief. I conclude that Dr. Beasley had objective support for his CRPS diagnosis and deserves the benefit of the doubt as to his treatment decisions.
8. As evidenced by the articles submitted into evidence in conjunction with Dr. Davignon’s testimony, significant differences of opinion exist among medical professionals as to the differential diagnosis of CRPS versus somatoform disorder. Indeed, both Dr. Willmuth and Dr. Backus struggled with their opinions, and both changed their positions over time. In contrast, even in hindsight Dr. Beasley remained convinced that his diagnosis of CRPS was correct at the time that he made it. It was based on objective findings and met the appropriate diagnostic criteria. The fact that other experts now believe that Claimant may have somatoform disorder does not negate the fact that the treatment she underwent in 2006 and 2007 was both reasonably necessary and causally related from the perspective of what was known at the time. Jacobs, supra.
9. As for Dr. Bouillon’s nerve entrapment release surgery, Defendant argues that this treatment also resulted from Claimant’s pre-existing somatoform disorder, was not caused by her August 2005 fall at work and therefore is not compensable. Dr. Bouillon’s surgical findings fatally undercut this argument. Dr. Bouillon surgically observed that the nerves in Claimant’s lower leg, ankle and foot were constricted and entrapped. These findings document a physical injury, not a psychological one, one that Dr. Bouillon credibly related to Claimant’s August 2005 fall at work.
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10. I conclude, therefore, that both Dr. Beasley’s spinal cord stimulator treatment and Dr. Bouillon’s nerve entrapment release surgery constituted reasonably necessary, causally related treatment for Claimant’s August 2005 work injury. The medical expenses incurred in the context of both treatments are compensable.
11. As Claimant has prevailed, she is entitled to an award of costs totaling $4,233.36 and attorney’s fees in accordance with Workers’ Compensation Rule 10.1220.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. All medical costs associated with Claimant’s spinal cord stimulator implantation and nerve entrapment release surgeries and medical treatments, in accordance with 21 V.S.A. §640; and
2. Costs and attorney’s fees in accordance with Conclusion of Law 12 above.
DATED at Montpelier, Vermont this 30th day of January 2009.
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

M. A. v. Ben & Jerry’s (November 5, 2008)

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

M. A. v. Ben & Jerry’s (November 5, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
M. A. Opinion No. 44-08WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
Ben & Jerry’s/Broadspire
Ben & Jerry’s/NovaPro Risk For: Patricia Moulton Powden,
Commissioner
State File Nos. X-52456 & M-17136
OPINION AND ORDER
Hearing held in Montpelier on April 28th and 29th, 2008
Record closed on May 16, 2008
APPEARANCES:
Steven Cusick, Esq., for Claimant
David McLean, Esq., for Defendant Broadspire
David Berman, Esq., for Defendant NovaPro Risk
ISSUES PRESENTED:
1. Was Claimant’s meralgia paresthetica aggravated by his 2005 injury, and if so, is it compensable?
2. Was Claimant’s post-hernia pain syndrome aggravated by his 2005 injury, and if so, what benefits are due?
3. Is Claimant’s genital pain and erectile dysfunction causally related to injuries sustained at work and thus compensable?
4. Has Claimant reached an end medical result for his compensable injuries?
5. If not, what reasonably necessary medical procedures are compensable?
6. Which insurer is responsible for payment of whatever benefits are determined to be due?
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EXHIBITS:
Joint Medical Exhibit
NovaPro Risk Exhibit A: Form 22, March 25, 2002
Broadspire Exhibit 1: Selected Medical Records
Broadspire Exhibit 2: Dr. White 3/21/08 IME report and addendum
Broadspire Exhibit 3: FCE report from IHMS
Broadspire Exhibit 4: Surveillance videos
Broadspire Exhibit 5: Marriage certificate
Broadspire Exhibit 6: Imago web pages
Broadspire Exhibit 7: Selections from AMA Guides, 5th ed.
CLAIM:
Temporary 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
Attorney’s fees and costs pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. Judicial notice is taken of all forms and correspondence contained in the Department’s files relating to this claim.
2. At all times relevant to these proceedings, Claimant was an employee and Defendant was an employer as defined in Vermont’s Workers’ Compensation Act.
3. Claimant is a 52 year old male who worked for Defendant for approximately 18 years until he was terminated in December 2006.
The 1999 Injury
4. The first injury related to this case occurred on February 13, 1999. Claimant was performing maintenance work when he suffered pain in his lower back, groin and right lateral leg. The insurance carrier on the risk at that time, NovaPro Risk, accepted that the injuries to Claimant’s lower back, groin and right lateral leg were compensable and paid benefits accordingly.
5. As a result of the work injury, Claimant suffered bilateral inguinal hernias, which were repaired surgically in May 1999.
6. Claimant’s treating physician at the time of his 1999 injuries was Dr. Verne Backus. Dr. Backus prescribed physical therapy for Claimant’s lower back injury and narcotics for his pain. In addition, following his hernia repair surgery Claimant suffered post-hernia repair pain for which he underwent nerve blocks in February 2000.
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7. The medical records indicate that Claimant first mentioned having pain prior to an erection to his surgeon in December 1999.
8. Claimant also mentioned scrotal pain in 2000 to Dr. Elke Pinn, who was treating him with bilateral trigger point injections in his groin. The purpose of the injections was to relieve pain associated with his post hernia condition. However, the relief was only temporary.
9. On January 1, 2001 Claimant had a release of the right lateral femoral cutaneous nerve at the inguinal ligament performed by Dr. Bruce Tranmer for pain relief. However, again there was no success in relieving Claimant’s pain.
10. In 2001 Dr. Backus determined that Claimant’s back injury was at end medical result, and rated him with an 8% whole person impairment. In October 2001 Dr. Backus determined that Claimant had reached end medical result as to his other injuries as well. Dr. Backus rated 2% permanent impairment for the pain and numbness in Claimant’s right thigh, the medical term for which is meralgia paresthetica, and 5% for his hernias.
11. Claimant returned to work full-time for Defendant.
The 2005 Injury
12. In September 2005 Claimant suffered a second work injury while lifting a box. As had occurred following the 1999 injury, Claimant experienced immediate pain in his back, groin area and right leg. In addition, Claimant asserted that this time he experienced immediate pain in his genitals as well.
13. Broadspire was the insurer on the risk at the time of this second injury. It accepted Claimant’s claim for what it deemed to be a low back strain and began paying benefits accordingly.
14. Genital pain was not reported to a medical professional until two weeks after the injury. On September 29, 2005 Claimant told Dr. Mercia that he felt like his penis “broke” when he was injured at work. Dr. Mercia reported that Claimant had acute and chronic low back pain with an overall change in pain pattern in both the right lower extremity and the back. A physical therapy report on September 20, 2005 stated that both hernias were aggravated by the new injury.
15. In October 2005 Claimant underwent a lumbar spine MRI, which documented a tiny broad based protrusion and annulus tear at L5-S1, unchanged since a prior MRI performed on July 17, 2001.
16. Dr. Backus had been treating Claimant since 1999 for his low back pain, post bilateral hernia repair pain and right thigh meralgia paresthetica. On November 21, 2005 Dr. Backus stated that in his opinion Claimant had suffered an aggravation to his back, right leg and hernia repairs as a result of the September 2005 lifting incident, as well as new pain in his genitals. As a result of these injuries, Dr. Backus determined that Claimant was limited to working a maximum of four hours per day.
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17. Dr. Backus has continued to treat Claimant for pain in his low back, right leg, hernia repair area, and genitals until the present date. Broadspire has covered the costs of these treatments.
18. In late 2005 and early 2006, Claimant attended a functional restoration program at the Vermont Center for Occupational Rehabilitation (VCOR) under the care of Dr. John Johansson. In January 2006 Dr. Johansson noted that Claimant had increased pain particularly in his testicles. Dr. Johansson stated that Claimant’s greatest pain complaint at that time was in his groin and that his back pain was secondary.
19. In general, the VCOR program offered Claimant only limited relief. Upon Claimant’s completion of the program in February of 2006 Dr. Johansson determined that Claimant had a 5% whole person permanent impairment referable to the spine. Dr. Johansson did not know at this time that Dr. Backus previously had rated Claimant with an 8% impairment referable to the spine as a result of Claimant’s 1999 injury.
20. After completing the VCOR program Claimant returned to work full-time light duty. However, he soon became incapable of full time work due to the level of pain he suffered. Dr. Backus again reduced Claimant’s work capacity to four hours per day. On December 31, 2006 Claimant’s employer terminated him because it was no longer able to accommodate his work restriction. Dr. Backus subsequently determined that Claimant’s condition had deteriorated to the point where he had no meaningful work capacity.
21. On January 19, 2007 Dr. Backus stated that he did not have a good anatomical basis to fully understand all of Claimant’s pain symptoms. However, he made a referral for pain treatment at a comprehensive inpatient facility at the Spaulding Clinic in Boston for pain rehabilitation. Broadspire denied payment for the referral.
22. The Department issued an Interim Order approving the Spaulding Clinic for payment by Broadspire and awarded Claimant temporary disability payments until April 2007, when he would have completed the program. Unfortunately, by the time the interim order issued, the Spaulding program had been discontinued.
23. With the Spaulding program no longer available, in the summer of 2007 Dr. Backus referred Claimant to a urologist and a neurosurgeon in order to determine whether there might be any other medical conditions that possibly could be causing Claimant’s pain. Claimant still consistently complained of lower back pain, groin pain and leg pain.
24. In May and October of 2007 Claimant was videotaped by surveillance persons hired by Broadspire. He appears on two videotapes walking either to or from buildings. In one tape he is seen to have his hands on his lower back as he walks slowly toward the building and in the other tape he seems to walk better and does not exhibit pain symptoms.
25. No further diagnostic information was gleaned by the referral physicians except that Claimant’s condition was neither neurological nor urological. In particular, Dr. Tranmer, the neurosurgeon, noted that Claimant’s MRI showed no cause for his genital pain.
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26. In January 2008 Claimant saw Dr. Ralph Beasley and Dr. Amy Gjerde at Dartmouth-Hitchcock Hospital Pain Clinic for his back, groin and testicle pain.
27. Dr. Beasley requested prior authorization for a spinal cord stimulator to treat Claimant’s chronic pain. In Dr. Beasley’s opinion, Claimant’s genital pain is neuropathic, secondary to ilioinguinal neuralgia. Dr. Beasley believed that Claimant was an excellent candidate for spinal cord stimulator therapy to address his low back pain. As for Claimant’s groin pain, both Dr. Beasley and Dr. Gjerde thought that it would be difficult to alleviate this pain with the stimulator.
28. At Broadspire’s request, Dr. George White conducted independent medical evaluations of Claimant on March 29, 2005 and March 21, 2008. Dr. White concluded that the September 13, 2005 lifting incident caused an aggravation of Claimant’s pre-existing low back injury. Even though Claimant’s groin pain had increased, Dr. White did not find a new inguinal hernia or damage to either the abdominal muscles or the fascia. Dr. White opined that the increase in groin pain Claimant experienced related back to the 1999 work injury.
29. Dr. White also suggested that Claimant’s use of opioid analgesics since the 1999 injury might have had the paradoxical effect of increasing his overall pain sensitivity. Alternatively, Dr. White conjectured that Claimant could have a somatization disorder.
30. Dr. Penar, a pain management specialist, examined Claimant on December 7, 2007. Dr. Penar has a special interest in ilioinguinal and genitofemoral nerves. In reference to Claimant’s left groin pain, Dr Penar noted that “one could consider that some of this pain would be referred to the groin from any level of lumbar disc disease.”
31. At NovaPro Risk’s request, Dr. William Boucher conducted an independent medical examination of Claimant on April 10, 2008. Dr. Boucher was unable to offer any explanation for Claimant’s genital pain. In his opinion, such isolated genital pain could not be caused by spinal pathology except in extreme cases involving cauda equina syndrome. Dr. Boucher observed signs of symptom magnification in Claimant’s examination, and opined that Claimant’s motivation for such exaggerated pain complaints could be narcotic dependence.
32. Aside from Dr. Boucher, no other medical expert found signs of symptom magnification while evaluating Claimant. Notably, Dr. Backus never observed any evidence of symptom magnification during the nine years he has been treating Claimant.
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33. Claimant has asked different providers, including local emergency room physicians, for narcotic pain medications on a fairly consistent basis for many years. He has taken narcotic medications for many years. After the 1999 injury he was on Valium, Percocet and Ultram. Claimant has a history of migraine headaches dating back to his late teens. He has been taking Fiorinal, a barbiturate, for migraine control at least since 1974. Presently he takes three Fiorinal daily. In 2000 Claimant sought treatment from Dr. Ciongoli for his headaches. Dr. Ciongoli opined that Claimant was drug seeking and wanted Demerol and Phenergan. A March 4, 2002 record from Claimant’s primary care provider contains the notation “[u]sed 60 Fiorinal in <2 mos!!!”
34. Claimant continued to work while on these medications until 2006. The narcotic medication Oxycontin prescribed by Dr. Backus later was changed to a Duragesic patch, which contains fentanyl.
Impairment Rating for Meralgia Paresthetica
35. In October 2007 the Department approved Broadspire’s discontinuance of temporary disability benefits on the grounds that Claimant had reached an end medical result. Even though he disagreed with the Department’s determination, Dr. Backus then completed another permanency evaluation. He assigned an additional 1% whole person permanent impairment for Claimant’s meralgia paresthetica. Drs. Boucher and White both agree that this rating was appropriate, although they do not agree that it was causally related to either of Claimant’s work injuries.
Impairment Rating for Post-Hernia Pain
36. Dr. Backus also assigned Claimant an additional 4% whole person impairment referable to Claimant’s post-hernia pain. Dr. Backus’ conclusion was based both on his interpretation of the relevant section of the AMA Guides and on his understanding of prior Department decisions. See Estabrook v. New England Precision, Opinion No.10-00WC (May 16, 2000); Knapp-Bowen v. Equinox Terrace, Opinion No. 4-98WC (January 19, 1998).
37. The relevant section of the AMA Guides, Table 6-9, lists the criteria for rating a Class 1 permanent impairment due to herniation, for which the rating range is 0-9% whole person, as follows:
Palpable defect in supporting structures of abdominal wall
and
slight protrusion at site of defect with increased abdominal pressure; readily reducible
or
occasional mild discomfort at site of defect but not precluding most activities of daily living. (Emphasis in original).
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38. Dr. Backus found Claimant to be at the high end of Class 1. In his opinion, a surgically repaired hernia is still a defect even if it is neither palpable nor protruding. Thus, Claimant’s surgically repaired hernia, combined not only with occasional discomfort but also with intermittent pain “so strong that it takes him to his knees,” qualified him for a Class 1 impairment under the third phrase quoted above. As Dr. Backus already had rated Claimant with a 5% impairment following the original 1999 injury, he added an additional 4% for Claimant’s post-hernia pain to bring the final rating up to the maximum of 9%.
39. Dr. Boucher and Dr. White both interpret the AMA Guides differently, and therefore both disagree with Dr. Backus’ rating. They interpret Table 6-9 to require both a palpable defect (the first phrase noted above) and either a protrusion (the second phrase) or discomfort at the site (the third phrase) in order to qualify for a rating greater than 0%. According to this interpretation, as Claimant’s hernia was neither palpable nor protruding once it had been surgically repaired, there was no additional permanency to be rated for Claimant’s post-hernia pain beyond the 5% he had received initially.
Expert Opinions as to Sexual Dysfunction
40. The medical experts disagree as to whether Claimant’s sexual dysfunction is causally related to either of his work injuries and, for that matter, if it even exists. Although most of the experts accept the possibility that either low back or hernia pain can affect the nerves that wrap around the groin area, with the exception of Dr. Backus they do not believe these nerves affect the penis directly or create erectile dysfunction. In contrast, Dr. Backus believes that Claimant’s genital pain stems from his low back injury and therefore is causally related to the aggravation that occurred as a result of the September 2005 lifting incident.
41. Dr. White’s position was that Claimant’s sexual dysfunction was not causally related to either of his work injuries. He noted that Claimant had experienced testicular pain as early as 2000 (as indicated in the February 22, 2000 visit with Dr. Elke Penn), indicating problems many years prior to the 2005 injury. Dr. White conceded that testicular pain can interfere with sexual function but still did not relate this to Claimant’s work injuries.
42. Dr. Backus testified that Claimant’s genital pain was radiating from his lumbosacral region. He explained that spinal nerves S2, S3 and S4 enervate the penis and that an injury to that area of the back can cause penile pain.
43. Dr. Boucher disagreed with Dr. Backus and stated that only a fracture in the sacral region could cause pain radiating to the penis. Claimant does not have a fracture in this region, and therefore Dr. Boucher would not attribute his genital pain to his low back pain.
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44. Dr. Backus rated Claimant with a 9% whole person impairment referable to his sexual dysfunction. According to the AMA Guides, a permanency rating of 1% to 9% is proper if “sexual functioning is possible, but difficulty of erection or ejaculation in men or lack of awareness, excitement, or lubrication in either sex” is present. The Guides require that the patient’s previous level of sexual functioning be considered, and note in this regard that age is only one criterion for doing so.
45. Claimant testified about his sexual life after the work injury in 2005 and his short re-marriage. His testimony was inconsistent and not completely credible. It is unclear whether he simply was uncomfortable discussing sexual issues or whether he was deliberately inaccurate.
Expert Opinions as to Spinal Cord Stimulator
46. Dr. Backus advocates that Claimant undergo a trial of treatment with a spinal cord stimulator and/or spinal injections, both to address his pain issues and hopefully, to restore function as well. Dr. White testified that such a trial would not be “unreasonable,” but that it was not likely that he would direct Claimant in this fashion.
47. Despite giving permanency ratings when asked to do so, Dr. Backus strongly believes that claimant is not at end medical result. In his opinion, Claimant could achieve restored function if he attends a comprehensive pain rehabilitation and restoration program, undergoes a spinal cord stimulator trial and receives spine injections. Dr. Backus believes this treatment program also would reduce Claimant’s reliance on narcotic pain control medications.
48. It is somewhat unclear whether Claimant is committed to undergoing Dr. Backus’ proposed treatment program. No other medical provider has offered any alternative plan, however.
Claimant’s Work Capacity
49. At Defendant’s request, on March 14, 2008 Claimant underwent a functional capacities evaluation with Erica M. Galipeau, PT, CSCE, CEES. After administering a battery of tests, Ms. Galipeau determined that Claimant could work in a sedentary to light capacity for a 4-hour work day that allowed for him to change positions every twenty minutes. Ms. Galipeau found that Claimant may have given less than full effort in testing, but concluded that this may not have been intentional. Ms. Galipeau admitted that it was questionable whether it was feasible for Claimant to return to work in a position that allows for the frequent change of position he requires.
50. Dr. Backus disagreed with Ms. Gailipeau’s conclusions. In his opinion, Claimant’s work capacity is limited to a maximum of two hours per day, if at all. As noted above, Dr. Backus believes that Claimant’s level of function probably will improve with further treatment.
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Attorney’s Fees and Costs
51. Claimant has submitted a claim for attorney’s fees under 21 V.S.A. §678 totaling $25,854.00 and costs totaling $2,433.46. Defendant has challenged various aspects of the fees sought, particularly charges for conferences with other staff attorneys in Claimant’s attorney’s firm.
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. This claim presents several complex issues, all of which depend on the credibility of competing medical opinions. Where expert medical opinions are conflicting, the Commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003). With these factors in mind, the key question is which expert medical opinion is the most credible? Bonenfant v. Price Chopper, Opinion No. 13-07WC (May 8, 2007).
Is Claimant entitled to additional permanency benefits for meralgia paresthetica causally related to the September 2005 lifting incident?
3. Dr. Backus determined that Claimant’s meralgia paresthetica was aggravated by the September 2005 injury, and assigned an additional 1% for the increased pain attributable to this condition. Dr. Backus’ opinion was credible, and neither Dr. White nor Dr. Boucher disagreed with his rating. There is no dispute as to this issue, therefore.
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Is Claimant entitled to additional permanency benefits for post-hernia repair pain?
4. The dispute here centers on the proper interpretation of Table 6-9 of the AMA Guides. The Commissioner previously has determined that a hernia constitutes a defect even after it has been repaired surgically. Estabrook v. New England Precision, Opinion No. 10-00WC (May 16, 2000); Knapp-Bowen v. Equinox Terrace, Opinion No. 4-98WC (January 19, 1998). Given that precedent, Dr. Backus’ interpretation of Table 6-9 was appropriate. Based on the degree of discomfort and limitation in Claimant’s activities following the 2005 injury, Dr. Backus properly increased the impairment rating by 4% beyond what had been rated following the original 1999 injury.
Is Claimant’s genital pain and erectile dysfunction compensable?
5. Neither NovaPro Risk nor Broadspire ever accepted responsibility for Claimant’s genital pain or erectile dysfunction. The burden is on Claimant, therefore, to establish that these conditions were causally related to his work injuries. Dr. Backus believes that they are; Drs. White and Boucher maintain that they are not.
6. Although Dr. Backus has been Claimant’s treating physician for many years, I find that his opinion is not the most credible in this regard. Dr. Backus is not a specialist in this area, and admitted that he sought out other physicians’ opinions as to these conditions because he could not find objective support for Claimant’s ongoing complaints. In fact, no such objective support was produced, and Claimant’s subjective testimony was not sufficiently credible to overcome the deficiency thus created. See Bowen v. E.F. Wall, Opinion No. 17-04WC (April 20, 2004). Under these circumstances, I find that Claimant has not sustained his burden of proof, and that neither his genital pain nor his erectile dysfunction are compensable conditions.
Has Claimant reached an end medical result for his compensable injuries and if not, what reasonably necessary medical procedures are compensable?
7. Vermont’s Workers’ Compensation Rules define end medical result as “the point when a person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment.” Workers’ Compensation Rule 2.1200.
8. I find that the most credible evidence establishes that Claimant has not yet reached an end medical result as to his low back injury and that the further treatment proposed by Dr. Backus, specifically a spinal cord stimulator trial and/or spinal injections, as well as participation in a comprehensive functional restoration program, reasonably might result in significant further improvement. Notably, Dr. Backus strongly believes that Claimant’s work capacity will increase as well if he pursues this treatment plan.
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9. Broadspire has asserted that Claimant’s true motivation for seeking additional treatment and/or benefits is a desire for narcotics. This claim is without merit. There is no dispute that Claimant suffered very painful injuries. He has tried a variety of medications and treatments to manage his pain. The fact that narcotic pain medications have proven more successful in this regard than any of the other treatments neither negates the extent of Claimant’s compensable injuries nor the degree of pain from which he suffers. Indeed, it only serves to validate Claimant’s need for further treatment designed both to improve his condition and to decrease his reliance on narcotics for effective pain control.
10. Having failed yet to reach an end medical result for his low back condition, Claimant is entitled to a resumption of temporary disability benefits retroactive to their discontinuance. It is only fair, however, that Claimant demonstrate a firm commitment to pursue the treatment Dr. Backus has proposed. Thus, should Claimant fail to take the steps necessary to begin undergoing the recommended treatment within the next thirty days, he shall be deemed to be at end medical result.
11. I do find that Claimant has reached an end medical result as to his meralgia paresthetica and post-hernia repair pain conditions. None of the treatments proposed by Dr. Backus is likely to result in significant further improvement in these conditions.
Which insurer is responsible for the benefits now determined to be due?
12. Answering this question requires a determination whether Claimant suffered an aggravation of his pre-existing injuries as a result of the September 2005 lifting incident. The Department historically has used a five-part test to determine if such an aggravation has occurred: (1) whether a subsequent incident or work condition destabilized a previously stable condition; (2) whether the claimant had stopped treating medically; (3) whether the claimant had successfully returned to work; (4) whether the claimant had reached an end medical result; and (5) whether the subsequent work contributed independently to the final disability. Trask v. Richburg Buliders, Opinion No. 51-98WC (August 25, 1998). The critical question is whether the September 2005 lifting incident combined with Claimant’s pre-existing impairment to produce a disability greater than what otherwise would have occurred. Farris v. Bryant Grinder, 177 Vt. 456, 458 (2005), citing Pacher v. Fairdale Farms, 166 Vt. 626, 627 (1997).
13. With the Trask factors in mind, I find it significant that prior to the 2005 injury Claimant had been able to return to work without restrictions; following it he was limited at best to four hours per day. Equally telling is the fact that following the 2005 injury, Dr. Backus felt it necessary to rate additional permanency, both for Claimant’s meralgia paresthetica and for his post-hernia repair pain. I find Dr. Backus’ testimony both persuasive and credible. I conclude, therefore, that the September 2005 injury resulted in an aggravation of Claimant’s compensable low back, meralgia paresthetica and hernia conditions, for which Broadspire is the responsible carrier.
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Attorney’s fees and costs
14. Aside from his claim that his genital pain and erectile dysfunction are compensable conditions, Claimant has substantially prevailed. He is entitled to an award of those costs relating to the claims he successfully prosecuted. Hatin v. Our Lady of Providence, Opinion No. 21S-03WC (October 22, 2003). As issues of end medical result, further medical treatment, work capacity and temporary disability related to all of Claimant’s claims, however, it is difficult to separate out specific costs as referring to successful versus unsuccessful claims. Under these circumstances, I find it appropriate to award Claimant 75% of his costs, or $1,825.10.
15. The same analysis applies to an award of attorney’s fees. Thus, I find it appropriate to award Claimant 75% of his attorney’s fees, or $19,390.50. This deduction from the amount requested also takes into account Broadspire’s argument that Claimant’s attorney inappropriately billed for consultations with other staff attorneys in his firm.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant Broadspire is hereby ORDERED to pay:
1. Permanent partial disability benefits for a 1% impairment referable to Claimant’s meralgia paresthetica;
2. Permanent partial disability benefits for a 4% impairment referable to Claimant’s post-hernia repair pain;
3. Medical benefits covering all reasonably necessary medical services and supplies causally related to treatment of Claimant’s low back pain, including a spinal cord stimulator and/or spinal injections;
4. Temporary disability benefits retroactive to their discontinuance and ongoing until properly discontinued in accordance with the workers’ compensation statute and rules, with due regard to the time frame noted in Conclusion of Law Number 10 above;
5. Interest on the above amounts in accordance with 21 V.S.A. §664; and
6. Costs of $1,825.10 and attorney’s fees totaling $19,390.50.
7. Claimant’s claim for workers’ compensation benefits related to genital pain and/or erectile dysfunction is hereby DENIED.
DATED at Montpelier, Vermont this 5th day of November 2008.
___________________________
Patricia Moulton Powden
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

G. R. v. State of Vermont, Vermont State Hospital (January 4, 2008)

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

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

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