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Paula Perry v. State of VT, Office of Attorney General (April 25, 2013)

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Paula Perry v. State of VT, Office of Attorney General (April 25, 2013)
STATE OF VERMONT
DEPARTMENT OF LABOR
Paula Perry Opinion No. 13-13WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
State of Vermont,
Office of Attorney General For: Anne M. Noonan
Commissioner
State File No. J-22042
OPINION AND ORDER
Hearing held in Montpelier on January 2, 2013
Record closed on February 19, 2013
APPEARANCES:
Heidi Groff, Esq., for Claimant
Keith Kasper, Esq., for Defendant
ISSUE PRESENTED:
Do various medications either previously or currently prescribed as treatment for Claimant’s May 1, 1996 compensable work injury constitute reasonable medical treatment under 21 V.S.A. §640(a)?
EXHIBITS:
Joint Exhibit I: Medical records, October 26, 2011 – November 5, 2012
Joint Exhibit II: Prior medical records (on disc)
Claimant’s Exhibit 1: Curriculum vitae, John Matthew, M.D.
Claimant’s Exhibit 2: Dr. Matthew deposition, November 6, 2012
Claimant’s Exhibit 3: Medication list, 4/19/12-10/30/12
Claimant’s Exhibit 4: Prescription payment spreadsheet
Claimant’s Exhibit 5: Pharmacy prescription payment records
Claimant’s Exhibit 6: Trial memo/summary of arguments
Claimant’s Exhibit 7: Formal hearing decision, Perry v. State of Vermont, Office of Attorney General, Opinion No. 01-08WC (February 1, 2008)
Defendant’s Exhibit A: Curriculum vitae, Jonathan Sobel, M.D.
CLAIM:
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Medical benefits pursuant to 21 V.S.A. §640(a)
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the commissioner’s prior decision in Perry v. State of Vermont, Office of Attorney General, Opinion No. 01-08WC (February 1, 2008).
3. Claimant worked for Defendant as an administrative assistant. On May 1, 1996 she injured her lower back while lifting some files at work. As a consequence of that injury, and despite two subsequent lumbar spine surgeries, she continues to suffer from chronic low back pain, radicular (nerve root) pain into her legs and at times, depression. She has never returned to work.
4. On January 18, 2000 the Department approved the parties’ proposed Form 14 (Medical Benefits Open) Settlement Agreement. By the terms of that agreement, Claimant received $275,000.00 in full and final settlement of her claim for workers’ compensation indemnity benefits. Defendant remained obligated to pay for whatever ongoing medical treatments, including prescription medications, were established to be reasonable under 21 V.S.A. §640(a).
5. In addition to the chronic pain referable to her work-related injury, Claimant suffers from a number of unrelated medical conditions as well, including diabetes, anemia, hypertension, obesity, hypothyroidism and gastroesophageal reflux disease, or GERD. Over the course of many years, Claimant’s primary care physician, Dr. Matthew, has prescribed numerous medications as treatment for these conditions. Dr. Matthew is board certified in both internal and family medicine. As such, I find that he is well qualified to determine an appropriate medication regimen for patients who suffer from multiple, inter-related chronic medical conditions. Furthermore, while he holds no specific certification in pain management, I find that in his role as a primary care provider he has developed credible expertise in the effective use of pharmacology to treat chronic pain patients.
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6. Defendant first questioned its responsibility for some of the medications Dr. Matthew had prescribed as treatment for Claimant’s injury-related chronic pain in April 2003. Following a formal hearing in 2008, the commissioner determined that the following medications were both medically necessary and causally related, and therefore that Defendant was obligated to pay for them:
• Amantadine, which Dr. Matthew had prescribed for chronic pain;
• Trileptal and Keppra, prescribed for neuropathic pain;
• Ritalin (methylphenidate), a stimulant prescribed as an adjunctive medication for depression;
• Clonazepam and Lorazepam, prescribed as sleep aids; and
• Lasix (furosemide), a diuretic prescribed to reduce the swelling in Claimant’s ankles caused by weight gain and inactivity, and Klor-con, a supplement prescribed to counteract Lasix’ potassium-wasting side effect.1
7. In accordance with the commissioner’s 2008 opinion and order, for the next four years Defendant paid for the above prescription medications and others as well, including oxycodone and Cymbalta.
8. At Dr. Matthew’s referral, in October 2011 Claimant underwent an evaluation with Dr. Fama, a rheumatologist, for complaints of joint pain involving her spine, shoulders, hips, knees, ankles, wrists and fingers. Dr. Fama noted Claimant’s extensive prior medical history, including not only the conditions listed above, see Finding of Fact No. 5 supra, but also depression, chronic lumbar radiculopathy, osteoarthritis in her knees and degenerative joint disease in her hips.
9. Dr. Fama diagnosed Claimant with two conditions relevant to her rheumatic evaluation: (1) osteoarthritis involving her spine, hips, knees, feet and probably shoulders; and (2) diffuse idiopathic skeletal hyperostosis, or DISH. The latter condition is a degenerative process in which bony growths and calcifications occur not only in the spine but also in peripheral joints such as the hands and ankles. DISH can cause severe, disabling pain and stiffness in the tendons and ligaments of multiple joints. The specific cause of the condition is not yet known; it has been associated with metabolic syndromes, such as diabetes, or it might be genetically derived. Its diagnosis in Claimant’s case is likely not related in any way to her May 1996 work injury.
1 The commissioner’s 2008 formal hearing decision absolved Defendant of responsibility for two medications – Plaquenil (hydroxychloroquine), used to treat inflammatory arthritis, and Prilosec (omeprazole), used to treat GERD – on the grounds that they were not causally related to Claimant’s compensable work injury. Neither of these medications is at issue in the current dispute.
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10. As treatment for the two conditions she diagnosed, Dr. Fama recommended that Claimant stop taking methotrexate, a drug Dr. Matthew previously had prescribed for pain and inflammation in her shoulders and hip girdle, because of its unclear benefit and deleterious side effects. Aside from endorsing her continued use of narcotic medications for pain control, Dr. Fama did not otherwise comment on Claimant’s medication regimen.
11. I find that Dr. Fama’s comments, as to both diagnosis and treatment, were intentionally limited to conditions within her expertise as a rheumatologist. Thus, the fact that she did not discuss in her office note the causal relationship between Claimant’s 1996 work injury and her chronic low back and radicular pain does not mean that she rejected the possibility that such a relationship existed. Nor do I take Dr. Fama’s failure to comment on those aspects of Dr. Matthew’s medication regimen that were directed at Claimant’s injury-related symptoms as an indication that she disagreed with his treatment approach.
Expert Medical Opinions as to Claimant’s Current Medication Regimen
12. At Defendant’s request, in January 2012 Dr. Sobel reviewed Claimant’s medical records for the purpose of determining whether her current medication regimen was medically necessary and causally related to her 1996 work injury. Later, he reviewed Claimant’s more recent medical records, as well as Dr. Matthew’s deposition testimony. Dr. Sobel is a board certified orthopedic surgeon. In the course of his practice, he frequently has treated patients with chronic pain complaints arising from spinal injuries and dysfunction.
13. Citing Claimant’s numerous medical problems, and what he characterized as “increasingly painful whole body symptoms” over the course of the past several years, to a reasonable degree of medical certainty Dr. Sobel concluded that her chronic pain syndrome is likely no longer related in any way to her 1996 work injury. To the contrary, in his opinion Dr. Fama’s diagnosis of both DISH and generalized osteoarthritis fully account for Claimant’s ongoing symptoms. According to Dr. Sobel, those and other non-work-related systemic conditions have driven Claimant’s need for the various medications Dr. Matthew has prescribed, not her work injury.
14. With Dr. Sobel’s expert opinion as support, effective February 20, 2012 the Department approved Defendant’s discontinuance of the following prescription medications on the grounds that they were not causally related to Claimant’s 1996 work injury:
• Amantadine
• Trileptal
• Keppra
• Ritalin
• Clonazepam
• Lorazepam
• Lasix
• Klor-con
• Oxycodone
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15. Beyond concluding that Claimant’s work injury was no longer driving her need for any of the above medications, in his formal hearing testimony Dr. Sobel also questioned whether some of the drugs were being used in an off-label context, and therefore might not be medically appropriate in her case. Specifically:
• Amantadine. According to Dr. Sobel, this drug is primarily used to treat movement disorders such as Parkinson’s disease; in his experience it would not typically be prescribed for the type of low back and radicular pain from which Claimant suffers.
• Trileptal and Keppra. These are anti-seizure medications; Dr. Sobel speculated that they might have been prescribed off-label for pain control and depression.
• Ritalin. Ritalin’s primary use is in patients with adult attention deficit disorder; Dr. Sobel assumed it was prescribed in Claimant’s case for an off-label use, though he did not specify in what context or for what purpose.
16. Dr. Sobel admitted that he had no specific knowledge as to when, by whom or for what purpose the medications listed above were prescribed, or even whether Claimant was still taking them as of the date of his medical records review. I find his conclusion that these medications were inappropriately prescribed and therefore not medically necessary to be somewhat weakened as a result.
17. As for the other medications covered by Defendant’s discontinuance:
• Clonazapam and Lorazepam. Dr. Sobel characterized Clonazapam as an anti-anxiety drug, and Lorazepam as a tranquilizing medication. Again, he was unaware whether Claimant was still using these drugs as of the date of his records review.
• Lasix and Klor-con. Dr. Sobel asserted that Claimant’s use of these medications could not be related in any way to her 1996 work injury. From his review of the medical records, he surmised that the fluid retention and edema these drugs were designed to treat were causally related to other medical conditions from which she suffered, such as congestive heart failure and high blood pressure. To the extent the commissioner determined otherwise in the context of her 2008 formal hearing decision, Dr. Sobel declared that this was a mistake.
• Oxycodone. Dr. Sobel did not state an opinion as to whether Claimant’s continued use of this narcotic was medically appropriate.
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18. Claimant’s current medication regimen still includes Amantadine, Lasix, Klor-con and oxycodone. She also takes Cymbalta, a pain control and antidepressant medication, and more recently added Marinol as well, another pain control medication.2 She no longer takes Trileptal, Keppra, Ritalin, Clonazepam or Lorazepam. As Dr. Matthew credibly testified, finding the most effective combination of drugs and dosages is often a matter of trial and error, particularly when a new medication is introduced. As a result, alterations such as this to a chronic pain patient’s pharmaceutical treatment plan are not unusual.
19. In his deposition testimony, Dr. Matthew emphatically defended his medication choices. Although some of the drugs he has prescribed are being used in a manner not specifically endorsed by the Physician’s Desk Reference (PDR), all comport with the protocols and guidelines developed in his practice group for treating chronic pain patients. Specifically:
• Amantadine. Though identified in the PDR for use in treating both Parkinson’s disease and influenza, according to Dr. Matthew Amantadine is also of “enormous help” in treating chronic pain. Patients who use narcotic pain medications chronically often develop a hypersensitivity to pain. Once that occurs, they require ever-increasing dosages to combat a steadily decreasing pain threshold. Amantadine reverses the sensitization process, and thus allows the patient to realize more effective pain control at a lower narcotics dosage.
• Trileptal and Keppra. As Dr. Sobel correctly surmised, Dr. Matthew prescribed these anti-seizure medications off-label, because they have proven helpful in managing radicular pain.
• Ritalin. Dr. Matthew prescribed this drug to combat the sleepiness that accompanied Claimant’s use of narcotic pain medications.
20. As for the other medications Dr. Matthew is now prescribing:
• Lasix and Klor-con. As he did in the context of the 2008 formal hearing, Dr. Matthew defended Claimant’s need for these drugs as causally related to her 1996 work injury. The fluid retention and edema they are designed to treat have resulted in part from inactivity and weight gain caused by her work injury. In addition, the narcotic medications necessitated by her injury-related pain are also a contributing factor. These drugs aggravate Claimant’s alveolar hypoventilation, a condition that restricts her breathing and causes further fluid retention and edema.
2 Although these medications were not listed in Defendant’s February 2012 discontinuance notice, both parties introduced expert evidence as to whether Claimant’s need for them was causally related to her work injury. I therefore consider them to be at issue here.
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• Cymbalta and Marinol. Claimant has long taken Cymbalta for management of her chronic low back and radicular pain. With the recent addition of Marinol, a drug derived from tetrahydrocannabinol, the active ingredient in marijuana, she has been able to cut her use of Cymbalta in half.
• Oxycodone. Claimant continues to require this narcotic medication for pain control, but at a significantly diminished dosage level given her greater reliance on non-narcotics such as Cymbalta and Marinol instead.3 As a result, she no longer requires Clonazepam, Lorazepam or Ritalin.
21. Dr. Matthew strongly asserted that he is better positioned to evaluate the causal relationship between Claimant’s work injury and her chronic pain than either Dr. Sobel or Dr. Fama. He respects Dr. Fama’s expertise as a rheumatologist, and does not disagree with her diagnosis of DISH as a likely cause of Claimant’s diffuse joint pain. However, having treated Claimant for many years, he is confident that the chronic pain from which she suffers, focused as it is primarily in her lower back and legs, derives not from that condition but rather from her 1996 work injury. I find Dr. Matthew’s assertions in this regard both credible and convincing.
22. Claimant submitted pharmacy records documenting a total of $17,231.68 in third-party insurance payments and $605.39 in patient co-payments, all for medications prescribed by Dr. Matthew as treatment for her 1996 work injury. Defendant did not introduce any contrary evidence, and therefore I find that the records submitted accurately reflect the amounts so paid.
CONCLUSIONS OF LAW:
1. The disputed issue in this claim is whether Defendant is obligated to pay for Claimant’s chronic pain medication regimen as reasonable treatment for her compensable May 1996 work-related low back injury. Defendant asserts that it is not, both because her current complaints are unrelated to her work injury and/or because at least some of the medications at issue are not medically necessary.
2. Vermont’s workers’ compensation statute obligates an employer to pay only for those medical treatments that are determined to be both “reasonable” and causally related to the compensable injury. 21 V.S.A. §640(a); MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009). The commissioner has discretion to determine what constitutes “reasonable” medical treatment given the particular circumstances of each case. Id. A treatment can be unreasonable either because it is not medically necessary or because it is not related to the compensable injury. Baraw v. F.R. Lafayette, Inc., Opinion No. 01-10WC (January 20, 2010).
3 Contrary to Defendant’s assertion, the medical records do substantiate Dr. Matthew’s claim that Claimant’s oxycodone dosage level has decreased with greater reliance on Cymbalta and Marinol. She still takes two 20-milligram tablets per dose, but now only three times daily rather than four. In addition, whereas in prior years she required both fast-acting and controlled release oxycodone, currently she takes only the controlled-release formulation.
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3. The parties presented conflicting expert testimony on both of these factors. In such cases, the commissioner traditionally uses a five-part test to determine which expert’s opinion is the most persuasive: (1) the nature of treatment and the length of time there has been a patient-provider relationship; (2) whether the expert examined all pertinent records; (3) the clarity, thoroughness and objective support underlying the opinion; (4) the comprehensiveness of the evaluation; and (5) the qualifications of the experts, including training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (September 17, 2003).
4. Considering all of these factors, I conclude here that Dr. Matthew’s opinions, as to both causal relationship and medical necessity, are more credible than Dr. Sobel’s. Dr. Matthew has been Claimant’s treating physician for many years. Given the nature and extent of that relationship, his ability to differentiate between Claimant’s injury-related chronic low back and leg pain and the diffuse joint pain that led to Dr. Fama’s more recent DISH diagnosis was credible and convincing. Similarly, his pharmacological treatment plan reflects years of trial, error and revision. With constant attention, he has managed to achieve what in Claimant’s case must be deemed a successful outcome – maintaining effective pain control with fewer drugs and lower narcotic dosages.
5. In contrast, Dr. Sobel’s causation opinion was based entirely on an assumption – that Dr. Fama’s diagnosis necessarily excluded all other possible causes for Claimant’s ongoing pain – which I have specifically rejected. That he was personally unfamiliar with the specific nature of her injury-related symptoms was evident not only in this regard but also as to the various drugs comprising her medication regimen. For Dr. Sobel to conclude that certain medications were not medically necessary without knowing who prescribed them or for what purpose indicates an unacceptable lack of clarity, thoroughness and objective support. For these reasons, I reject his opinions as unpersuasive.
6. I conclude that Claimant has sustained her burden of proving that her current medication regimen, as prescribed and managed by Dr. Matthew, is both medically necessary and causally related to her 1996 compensable work injury. It therefore constitutes reasonable medical treatment under 21 V.S.A. §640(a).
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7. Specifically, I conclude that the following prescription medications have been, and/or continue to be, compensable under 21 V.S.A. §640(a):
• Amantadine
• Trileptal
• Keppra
• Ritalin
• Clonazepam
• Lorazepam
• Lasix
• Klor-con
• Oxycodone
• Cymbalta
• Marinol
8. Having found the above medications compensable, I conclude that Defendant is obligated to reimburse Claimant for prescription co-payments totaling $605.39. In addition, should any third-party payor assert a lien or claim repayment for prescriptions, Defendant is obligated to reimburse them accordingly.4
9. As Claimant has prevailed on her claim for benefits, she is entitled to an award of costs and attorney fees. She has submitted a request for costs totaling $227.64, and these are awarded. As for attorney fees, in accordance with 21 V.S.A. §678(e) Claimant shall have 30 days from the date of this opinion within which to submit her itemized claim.
4 I decline to grant Claimant’s request that reimbursement due to third-party payors be paid to her first. This is a matter for resolution directly between Defendant and the payors. See, Avdibegovic v. University of Vermont, Opinion No. 06-09WC (February 23, 2009).
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering reasonable treatment for Claimant’s compensable 1996 work-related injury, including but not limited to the prescription medications listed in Conclusion of Law No. 7 above, in accordance with 21 V.S.A. §640(a);
2. Reimbursement to Claimant for prescription co-payments totaling $605.39, with interest as calculated in accordance with 21 V.S.A. §664;
3. Reimbursement to any third-party payor who asserts a lien and/or claims repayment for any of the prescriptions listed in Conclusion of Law No. 7 above, with interest as calculated in accordance with 21 V.S.A. §664 if so demanded by the payor;
4. Litigation costs totaling $227.64 and attorney fees in an amount to be determined, in accordance with 21 V.S.A. §678(a).
DATED at Montpelier, Vermont this 25th day of April 2013.
__________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont Supreme Court. 21 V.S.A. §§670, 672.

P. P. v. State of Vermont, Office of the Attorney General (February 1, 2008)

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

P. P. v. State of Vermont, Office of the Attorney General (February 1, 2008)
STATE OF VERMONT
DEPARTMENT OF LABOR
P. P. Opinion No. 01-08WC
By: David J. Blythe, Esq.
v. Contract Hearing Officer
State of Vermont, For: Patricia Moulton Powden
Office of the Attorney General Commissioner
State File No. J-22042
FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER
I. INTRODUCTION
Claimant’s case effectively consists of determining which medications Claimant has been prescribed or is currently being prescribed in connection with her work-related injury are compensable. Claimant also seeks an award of attorney’s fees and costs associated with this aspect of her claim.
II. HEARING
This matter came on for final evidentiary hearing on May 10, 2007 before David J. Blythe, Hearing Officer and designee of the Commissioner of Labor for this case. Claimant was present and was represented by Attorney Heidi Groff. Defendant State of Vermont was represented by Attorney Keith J. Kasper. At the hearing, Claimant presented her testimony and Defendant presented witness testimony from William Boucher, MD and Coleman Levin, MD (both by telephone).
III. FINDINGS OF FACTStipulated Facts and Judicial Notice
The parties stipulated to the following facts, which are here FOUND and which are here incorporated essentially as presented as paragraphs 1 through 8 in a written Stipulation dated May 10, 2007 (“Stipulation”) by the parties:
1. Claimant suffered a compensable work-related injury on May 1, 1996.
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2. On January 18, 2000, the parties came to a Form 14 Settlement Agreement leaving open medical benefits, including prescriptions, causally related to her work-related injuries.
3. On April 31[sic], 2003, Defendant filed a Form 27 discontinuing payment of medical benefits for all of Claimant’s treatments except for pool therapy and Oxycontin.
4. On February 7, 2005, The Department [of Labor] issued an interim order requiring retroactive payment of the following medications: Morphine Sulfate, Effexor, Methylin Omeprazole and Aspirin.
5. Subsequently Defendant voluntarily agreed to pay for additional medications based upon the expert opinions it had received in this matter.
6. Remaining at issue in this case is Claimant’s request for payment for the following medications: Amantadine, Trileptal, Kepra, Methylphenidate (Ritalin), Clonazepam, Lorazepam, Hydroxycholoquine (Plaquenil), Omeprazole (Prilosec), Lasix and Klor-con.
7. Claimant seeks payment for these outstanding contested medications (repayment to Claimant for the retail cost and she will reimburse her primary health insurer, Cigna directly), and, if successful, an award of attorney’s fees and costs.
8. The parties agree to the submission of the following exhibits:
Joint Exhibit No. 1 Relevant medical records
Joint Exhibit No. 2 Preservation testimony of Dr. John Matthew, MD
9. At the hearing, Defendant conceded the compensability of the following medications: Topomax, Pregabalin (a.k.a Lyrica), Tegretal, Flouxetine (a.k.a Prozac) and Miralax/Glycolax.
10. The Commissioner takes judicial notice of the fact and content of all forms filed by either party with the Department prior to the time and date of the hearing.
Additional Findings of Fact
11. On May 1, 1996, Claimant injured her back while in the employ of the Defendant and in connection with her employment-related activities (the workplace injury). There is no dispute as to whether this is a compensable injury. In addition to her back injury, Claimant suffers from depression related to her workplace injury. Stipulation.
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12. Claimant worked for Defendant for approximately ten years between 1990 and 2000 as an administrative assistant. She left Defendant’s employ in 2000 due to pain from her workplace injury. Claimant’s testimony.
13. At the time of the workplace injury, Claimant had several pre-existing medical conditions, including obesity, hypertension, diabetes mellitus, urinary urge and stress incontinence, gastrointestinal distress, hypothyroidism and edema. Exhibit 1, Dr. Levin’s report dated May 10, 2006.
14. John Matthew, MD has been Claimant’s primary treating physician for more than one year. He is board-certified in internal medicine and has been treating patients for over thirty four years. He frequently treats patients for chronic pain. Dr. Matthew has reviewed Claimant’s medical records, including records provided to him by other medical providers, in connection with his treatment of Claimant and with his testimony. Exhibit 2 at 3-6.
15. Dr. Matthew and Dr. Levin both testified that prescribing medications to treat chronic pain and its related conditions frequently involves a trial-and-error process in order to determine which medications, or combinations of medications, will offer a patient (including patients such as Claimant) the best treatment. Id. at 16-17; Dr. Levin’s testimony.
16. Claimant has undergone two invasive surgical procedures and continues to receive epidural blocks at three to four month intervals. Prior to the date of the hearing, the last epidural block was received in February 2007. Claimant’s testimony.
17. Claimant’s current (as of the date of the hearing) medical problems/conditions are
(a) back pain;
(b) radicular pain in her legs;
(c) depression and sleep problems;
(d) gastroesophageal reflux disease (“GERD”);
(e) constipation;
(f) edema (swelling in her ankles); and
(g) conditions which are side-effects of the medications prescribed.
Id.; Exhibit 1 generally.
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18. Claimant testified credibly that since she left her employment with Defendant she has been unable to work due to pain and the medical problems related to the workplace injury. She is currently unable to drive an automobile. Id.
19. Currently, the only narcotic medication Claimant takes (for her chronic pain) is Oxycodone, the compensability of which is not at issue. Exhibit 2 at 11.
20. Dr. Matthew and Dr. Boucher both testified that physicians commonly prescribe medications for purposes other than those officially recognized by the United States Food and Drug Administration (“FDA”). Exhibit 2 at 37-38; Dr. Boucher’s testimony.
21. Drs. Levin and Boucher both examined medical records in connection with their testimony. Dr. Boucher conducted an independent medical examination of Claimant on April 20, 2005. Dr. Levin neither personally examined nor treated Claimant. Dr. Levin’s testimony; Dr. Boucher’s testimony.
Amantadine
22. Dr. Matthew previously had prescribed Amantadine for Claimant’s chronic pain. She is not now taking Amantadine. Exhibit 2 at 17-18.
23. Amantadine is approved by FDA as an antiviral medicine for influenza and for Parkinson’s disease. Id. at 18; Dr. Boucher’s testimony; Dr. Levin’s testimony.
24. Dr. Matthew testified he prescribed Amantadine for Claimant’s chronic pain in part because of his own experience in prescribing it and, in part, based upon advice he received from another physician (a psychiatrist) that Amantadine is helpful in treating chronic pain. Exhibit 2 at 17-19.
25. Brian A. Erickson, MD, examined Claimant on behalf of Defendant in November 2005. Dr. Erickson testified that prescribing Amantadine to augment Oxycontin (which Claimant was taking at that time) was reasonable. Exhibit 1 at 365-366.
26. Dr. Levin testified that Amantadine has no efficacy for back pain and is not medically indicated for Claimant’s condition. Dr. Levin’s testimony.
Trileptal and Kepra
27. Trileptal and Kepra are both anti-epileptic (Dr. Matthew’s characterization) or anti-convulsant (Dr. Boucher’s characterization) medications. Exhibit 2 at 12; Dr. Boucher’s testimony. Dr. Matthew also referred to them as “seizure” medications. Exhibit 2 at 12.
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28. Claimant had previously been prescribed and had taken a number of anti-seizure medications, including Clonazepam, Tegretol, Topomax and Neurontin. Id.
29. Dr. Matthew prescribed Trileptal and Kepra to treat Claimant’s neuropathic pain, which he described as being pain which results when “something mechanically or chemically is bothering [a patient’s] nerves.” Id. at 4, 13.
30. Dr. Matthew also testified that he prescribed the Trileptal and Kepra to accompany the narcotic pain medication (presently Oxycodone). Id. at 13-14.
31. Dr. Boucher testified that Trileptal and Kepra are normally prescribed to treat seizures in adults, and that he had never seen them used to treat pain. Dr. Boucher’s testimony.
32. Dr. Levin testified that he was aware that Kepra was used in chronic pain clinics as an adjunct to other medications, but that he did not believe that anti-convulsants such as Trileptal and Kepra were necessary for the treatment of chronic pain or depression for Claimant in particular. Dr. Levin’s testimony.
33. Dr. Matthew acknowledged that Trileptal and Kepra are not approved by FDA for treatment of chronic pain, and that his prescribing them for Claimant is another “off-label” use. Exhibit 2 at 15; see Finding No. 20 above.
34. Dr. Matthew further testified that he had observed that Trileptal and Kepra have helped reduce Claimant’s pain. He also testified that there is no doubt in his judgment that anti-convulsants such as Trileptal and Kepra are effective in treating chronic pain when used as adjuncts to narcotic medications. Exhibit 2 at 16-17 and 26.
35. Dr. Matthew strongly disagreed with Dr. Boucher’s opinion (related to Dr. Matthew by counsel for Defendant during the deposition) that use of anti-seizure medications were not reasonable and necessary for Claimant’s treatment. Exhibit 2 at 15.
Methylphenidate/Ritalin
36. Methylphenidate/Ritalin is a stimulant. Dr. Matthew prescribed Methylphenidate/Ritalin as an adjunct medication to treat Claimant’s depression. Id. at 19.
37. Dr. Matthew testified that some patients being treated for depression don’t respond to other medications until a stimulant is added to the treatment regimen. Id. 19-21.
38. Dr. Boucher testified that Methylphenidate/Ritalin is a common medication for treating major depression, ADHD and narcolepsy, but is not indicated for simple depression such as experienced by Claimant. He stated that it can cause sleep
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deprivation, has the potential for addiction, and generally should only be prescribed by a psychiatrist. Dr. Boucher’s testimony.
39. Dr. Levin described Methylphenidate/Ritalin as a central nervous system stimulant which can be used in treating clinical depression, but is not indicated for chronic pain and simple depression such as experienced by Claimant. Dr. Levin’s testimony.
40. Dr. Matthew specifically testified that the addition of Methylphenidate/Ritalin to Claimant’s medication regimen helped her functional status. Exhibit 2 at 19.
Clonazepam and Lorazepam
41. Clonazepam and Lorazepam are sedatives which are prescribed to help patients sleep. Id. at 20.
42. Dr. Matthew prescribed Clonazepam and Lorazepam for Claimant because her pain keeps her from sleeping. Id. at 21-22.
43. Dr. Matthew also noted that Clonazepam has some antidepressant effect. Id.
44. Dr. Boucher testified that Clonazepam and Lorazepam are not normally used to treat depression. Dr. Boucher’s testimony.
45. Dr. Levin testified that Clonazepam and Lorazepam are normally prescribed to treat “true insomnia” but not for back pain. However, he also acknowledged that both are occasionally used as adjunctive medications in treating chronic pain. Dr. Levin’s testimony.
Hydroxychloroquine (Plaquenil)
46. Hydroxychloroquine (Plaquenil) is an anti-malarial medication which is sometimes used to treat inflammatory arthritis. Exhibit 2 at 23.
47. Dr. Matthew could not connect the use of Hydroxychloroquine (Plaquenil) to the treatment of Claimant’s conditions. Id.
48. Dr. Boucher testified that he could not see any reason to prescribe Hydroxychloroquine (Plaquenil) for Claimant’s conditions. Dr. Boucher’s testimony.
Omeprazole (Prilosec)
49. Omeprazole (Prilosec)is a medication which treats gastroesophageal reflux disease (GERD) and reflux esophagitis. Exhibit 2 at 9.
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50. Dr. Matthew has diagnosed Claimant as suffering from reflux esophagitis, but could not specifically relate that condition to her workplace injury or to the medications currently being prescribed for her compensable injuries. Id.
51. Dr. Levin testified that based upon his review of Claimant’s medical history, including records relating to her medical condition prior to the date of injury, he concluded that the reflux esophagitis is not causally related to the workplace injuries. Dr. Levin’s testimony.
Lasix and Klor-Con
52. Lasix is a diuretic which is prescribed to reduce edema (fluid build-up). Dr. Boucher’s testimony.
53. Dr. Matthew prescribed Lasix to treat Claimant’s edema in her ankles. He testified that the swelling in Claimant’s ankles was aggravated by her weight gain due to inactivity following the workplace injury. Exhibit 2 at 26-27 and 31-32.
54. Although she was obese prior to May 1996, Claimant did not take diuretics prior to her workplace injury. Id. at 32.
55. Klor-Con is a potassium supplement. Id. at 25; Dr. Levin’s testimony.
56. Dr. Matthew prescribed Klor-Con in connection with Lasix because diuretics such as Lasix cause the kidneys to “waste” potassium. Id.
57. Drs. Boucher and Levin agreed with Dr. Matthew’s description of Klor-Con and its use in connection with diuretic medications. Dr. Boucher’s testimony; Dr. Levin’s testimony.
CONCLUSIONS OF LAW
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984); Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166 (1962); Nutbrown v. Roadway Express, Opinion No. 2-93, at 4 (June 7, 1993).
2. In this case, Claimant has the burden of establishing that the proposed treatment is both causally related to the May 1, 1996 workplace injury and that the treatment is necessary and reasonable. Stevens v. Burlington Rent-All, Inc., Opinion No. 66-96 (November 20, 1996).
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3. In cases where the Commissioner must choose among conflicting medical opinions with regard to Claimant’s condition, the following factors are considered: 1) the nature of treatment and 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. See Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC (Sept. 17, 2003).
4. As Claimant’s treating physician, Dr. Matthew is in the best position to assess the efficacy of medications prescribed for the conditions for which he is treating Claimant. For those conditions causally related to the workplace injury, Dr. Matthew’s professional opinions are given considerable weight.
5. It is not unreasonable for a treating physician to try a variety of medications, and to do so in different combinations, in order to determine the best treatment of a particular compensable condition. See Finding of Fact No. 15, supra. So long as the medication bears a reasonable relationship to the condition, the cost of that medication is compensable.
6. Whether or not a particular medication is listed by FDA for the treatment of a specific medical condition, or is listed as such in any particular medical text or reference manual, is not dispositive of whether or not the cost that medication is compensable in connection with the treatment of a particular medical condition. Such listings may have evidentiary value, and if so are to be given appropriate weight by the finder of fact in determining the compensability of the cost of such medications.
7. The test of whether the cost of a particular medication is compensable is not a post-facto assessment of whether or not it actually achieved the purpose for which it was prescribed. To so require would place an unreasonable burden on a claimant or a physician, and could have the effect of discouraging a physician from trying different, but otherwise reasonable, treatment regimes in treating a compensable condition. Rather, the appropriate means of determining whether or not the cost of a particular medication is compensable is a determination of whether the prescription and use of that medication is reasonable and necessary under the circumstances of the condition and its treatment. In making that determination, the Commissioner may consider, inter alia, the evidence offered by the prescribing provider for the basis of the decision to prescribe a particular medication, the prescribing provider’s prior experience with the medication, the listed uses of the medication, any professional literature or studies relating to the medication, materials from the manufacturer or supplier of the medication, testimony from other qualified witnesses, the actual effect of the medication in a particular claimant’s case, and other evidence which the Commissioner finds relevant.
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Amantadine
8. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Amantadine is reasonable and necessary, and therefore the expense of Amantadine for the treatment of the workplace injury is compensable.
Trileptal and Kepra
9. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Trilepta and Kepra is reasonable and necessary, and therefore the expense of Trileptal and Kepra for the treatment of the workplace injury is compensable.
Methylphenidate/Ritalin
10. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Methylphenidate/Ritalin is reasonable and necessary, and therefore the expense of Methylphenidate/Ritalin for the treatment of the workplace injury is compensable.
Clonazepam and Lorazepam
11. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Clonazepam and Lorazepam is reasonable and necessary, and therefore the expense of Clonazepam and Lorazepam for the treatment of the workplace injury is compensable.
Hydroxychloroquine (Plaquenil)
12. Based upon the foregoing, Claimant has not met her burden of establishing that the prescription and use of Hydroxycloroquine (Plaquenil) is reasonable and necessary, and therefore the expense of Hydroxycloroquine (Plaquenil) for the treatment of the workplace injury is not compensable.
Omeprazole (Prilosec)
13. Based upon the foregoing, Claimant has not met her burden of establishing that the prescription and use of Omeprazole (Prilosec) is reasonable and necessary, and therefore the expense of Omeprazole (Prilosec) for the treatment of the workplace injury is not compensable.
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Lasix and Klor-Con
14. Based upon the foregoing, Claimant has met her burden of establishing that the prescription and use of Lasix and Klor-Con is reasonable and necessary, and therefore the expense of Lasix and Klor-Con for the treatment of the workplace injury is compensable.
Attorney’s Fees and Costs
15. Under WC Rule 10 and 21 VSA §678(a), the Commissioner, in her discretion, may award reasonable attorney’s fees to the prevailing party. Claimant’s attorney has submitted an itemized statement of services rendered showing 47.9 hours of professional services and costs of $778.27. This amount includes the fee paid to Dr. Matthew for his deposition. Dr. Matthew billed one and one-half hours of his time at the rate of $500.00 per hour. However, Rule 40 limits the awardable cost of expert witness deposition testimony to $300.00 per hour. Therefore, costs of Dr. Matthew’s deposition in the amount of $450.00 are recoverable if awarded. Under Rule 10.1210, the award for legal services rendered on an hourly basis is limited to $90.00 per hour. At the allowed rate, the fees for professional services in this case (if fully compensable) would be $4,311.00. Claimant’s total request for attorney’s fees and costs is therefore $5,089.27.
16. However, Claimant has not prevailed on all of her claims. Because the body of medical and other evidence is, in large part, common to all issues, it is reasonable and within the Commissioner’s discretion to conclude that Claimant is entitled to recover attorney’s fees in relative proportion to those claims upon which Claimant has prevailed.
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17. Claimant sought a determination that the medications prescribed and used to treat a total of seven medical conditions (some involving two medications) were compensable. Those conditions, and the respective medications, are:
Chronic pain…………………………………………………………………………..Amantadine
Neuropathic pain…………………………………………………………..Trilepta and Kepra
Depression…………………………………………………………….Methylphendine/Ritalin
Sleep problems………………………………………………..Clonazepam and Lorazepam
General pain………………………………………………Hydroxychloroquine (Plaquenil)
Gastroesophageal reflux disease………………………………..Omeprazole (Prilosec)
Edema (ankle swelling)………………………………………………..Lasix and Klor-Con
Of these seven conditions, Claimant has established the compensability of the medications prescribed and used to treat five. Therefore, Claimant is awarded five-sevenths of the requested attorney’s fees, in the amount of $3,079.29. Claimant’s request for costs in the amount of $778.27 (as calculated by Conclusion of Law No. 15 above), is granted in full.
18. On April 22, 2007, the Commissioner approved an attorney’s lien pursuant to Rule 10(2)(B) in favor of Claimant’s counsel. Pursuant to the Agreement between Claimant and Claimant’s counsel (“Agreement”), which Agreement was approved by the Commissioner when granting the lien, Claimant’s counsel may choose between the attorney’s fees awarded or 25% of the amounts awarded. Because this Order does not include calculation of the amounts actually awarded, no specific order is made as to which option under the Agreement Claimant’s counsel may exercise.
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ORDER
Based upon the foregoing, it is hereby ORDERED as follows:
1. Defendant is responsible for the payment of those medications the prescription and use of which have been found to be compensable. Those medications are: Amantadine, Trileptal, Kepra, Methylphenidate (Ritalin), Clonazepam, Lorazepam, Lasix and Klor-con. Defendant shall pay to Claimant those amounts which Claimant documents for the costs of those medications.
2. Claimant, having substantially prevailed on five of her seven claims (as determined by the Commissioner in her discretion), is entitled to an award of attorney’s fees in the amount of $3,079.29 and of costs in the amount of $778.27, both of which are reasonable.
3. Claimant is also entitled to statutory interest at the rate of 12% per annum on the amounts invoiced for those medications which are compensable, interest to accrue from the date each such invoice was payable or, in the instance in which Claimant actually paid for such medications and is seeking reimbursement, from the date upon which Claimant made such payment.
Dated at Montpelier, Vermont this 1st day of February 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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