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V. S. v. Kenametal, Inc. (August 2, 2007)

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V. S. v. Kenametal, Inc. (August 2, 2007)
STATE OF VERMONT
DEPARTMENT OF LABOR
V. S. Opinion No. 19-07WC
By: Jane Dimotsis, Hearing Officer
v. Renee Mobbs, Law Clerk
Kennametal, Inc. For: Patricia Moulton Powden,
Commissioner
State File No. W-03690
OPINION AND ORDER
Hearing held in Montpelier, Vermont on April 11, 2007.
Record closed on May 14, 2007.
APPEARANCES:
Claimant, pro se
Corina Schaffner-Fegard, Esq. for Defendant
ISSUES:
1. What date of injury should be used to calculate Claimant’s average weekly wage?
2. What is the appropriate average weekly wage and compensation rate for each of Claimant’s periods of temporary disability?
3. Is Claimant entitled to further mileage reimbursement?
4. Are there any unpaid medical bills for which the Carrier is responsible?
EXHIBITS:
Joint Exhibits:
Joint Exhibit 1: Medical Records
Claimant’s Exhibits:
Claimant’s Exhibit 1: Reimbursement Form for 100 miles
Claimant’s Exhibit 2: Reimbursement Form for 120 miles
Claimant’s Exhibit 3: Reimbursement Form for 135 miles
Claimant’s Exhibit 4: 12/30/04 Dr. Kraus note
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Claimant’s Exhibit 5: 1/6/05 Dr. Kraus note
Defendant’s Exhibits:
Defendant’s Exhibit 1: 9/21/06 Letter from Adjuster Russo
Defendant’s Exhibit 2: 2004 ShopVue Absence Calendar
Defendant’s Exhibit 3: 2005 ShopVue Absence Calendar
Defendant’s Exhibit 4: 5/29/06 – 12/19/06 Off Duty Report
Defendant’s Exhibit 5: 1/2/06 – 5/25/06 ShopVue Absence Calendar
Defendant’s Exhibit 6: 4/3/07 Pay History from Adjuster Coco
Defendant’s Exhibit 7: 4/10/07 Payment Information from Adjuster Coco
Defendant’s Exhibit A: Form 25 for 7/25/05 – 10/17/04
Defendant’s Exhibit B: Form 25 for 10/8/04 – 12/17/04
Defendant’s Exhibit C: Form 25 for 11/7/04 – 1/23/05
Defendant’s Exhibit D: Form 25 for 4/17/05 – 7/17/05
Defendant’s Exhibit E: Form 25 for 4/23/06 – 7/9/06
Defendant’s Exhibit F: Form 25 for 8/13/06 – 10/29/06
FINDINGS OF FACT:
1. Claimant is an employee within the meaning of the Vermont Workers’ Compensation Act (the “Act”). Claimant has worked for Defendant since 1989.
2. Defendant is an employer within the meaning of the Act.
3. In June of 2004, Claimant experienced right arm pain while participating in a company 5S program, which involved cleaning, upgrading, and performing maintenance on her work area. Claimant contends she hit her shoulder while cleaning her machine. After this event, Claimant did not see any doctors and continued to work. There is no evidence of an accident report from the summer of 2004.
4. Claimant asserts that she experienced swelling, redness, and increased pain in her right arm in October of 2004. Claimant was out of work October 18-20 for her right arm pain. She visited Dr. Ajamie on October 20. He diagnosed her with tennis elbow and probable mild carpal tunnel syndrome and gave her a cortisone injection. Dr. Ajamie noted that Claimant’s condition did not arise out of her employment. He returned Claimant to work with no restrictions on October 21.
5. Claimant was out of work December 23, 2004 for a visit with Dr. Kraus. Dr. Kraus diagnosed Claimant with some shoulder impingement as well as the previously diagnosed tennis elbow. Dr. Kraus did not relate Claimant’s right arm problems to her employment. Dr. Kraus provided Claimant with an out of work note for the December 23 appointment.
6. An accident report for Claimant’s right shoulder and elbow pain was completed on December 27, 2004. The report stated that it had not been determined whether Claimant’s right arm pain was work related.
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7. Claimant went out of work for shoulder pain December 29-30, 2004. She saw Dr. Kraus on December 30. Dr. Kraus again put Claimant back to work but restricted her to light duty.
8. A January 4, 2005 x-ray of Claimant’s right shoulder revealed no abnormalities.
9. Dr. Kraus clarified her December 30, 2004 note on January 6, 2005 to state that the company should check with Claimant’s physical therapist, Ben McCormack, regarding Claimant’s specific work restrictions. The January note also excused Claimant from work for the December 29-30, 2004 absences.
10. Claimant saw Dr. Haas on January 6, 2005 for an independent evaluation requested by the company. Dr. Haas found several aspects of Claimant’s presentation to be inconsistent with a finding that Claimant’s shoulder pain was caused by her job, but he reserved his final report on causation until an analysis of Claimant’s workstation was performed.
11. On January 21, 2005, Defendant filed a Form 25 for Claimant’s December 23, 2004 right shoulder and elbow pain. The Form 25 cited December 23, 2004 as the only date on which Claimant missed work for right shoulder and elbow pain and December 27, 2004 as the first date on which Claimant reported her right arm pain to her supervisor.
12. An ergonomic job site evaluation was performed by physical therapist Ben McCormack on January 25, 2005. Mr. McCormack indicated that while Claimant’s job does not lend itself to elevated risk at the shoulders, he did note elevated risk at both elbows. Specifically, Mr. McCormack found elevated risk at the right elbow due to certain of Claimant’s job duties, including sustained poor grasping of a micrometer as well as forceful gripping of a T-handled wrench. Mr. McCormack concluded that Claimant’s tennis elbow was more likely than not related to her work.
13. Claimant saw Dr. Gagnon on January 25, 2005. Dr. Gagnon ordered an MRI, which was taken on February 3, 2005 and showed a right rotator cuff tear. On February 9, 2005 Dr. Gagnon indicated that Claimant needed surgery to repair the tear. Dr. Gagnon put Claimant out of work until after the surgery scheduled for March 2, 2005. However, on February 15, 2005 Dr. Gagnon indicated that he did not feel Claimant’s rotator cuff tear was related to her job activities.
14. Defendant filed a Form 2 on February 24, 2005. Defendant asserted that neither the right shoulder rotator cuff tear nor the right tennis elbow were causally related to Claimant’s work. Defendant cited Dr. Gagnon’s notes and the January 25, 2005 ergonomic study to support its denial.
15. Claimant testified that Dr. Gagnon would not perform the scheduled rotator cuff surgery because of the Form 2 denial filed by the Carrier and Claimant’s lack of insurance coverage. Thus, Claimant attempted to return to work March 3, 2005, but the company sent her home pending further evaluation.
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16. On March 9, 2005, after having reviewed Ben McCormack’s ergonomic evaluation, Dr. Haas supplemented his January 6, 2005 evaluation and concluded that Claimant’s shoulder problems were not caused by her employment but that her tennis elbow likely was.
17. A March 15, 2005 Sickness and Accident form filled out by Dr. Gagnon for Claimant restated his belief that the rotator cuff tear did not arise out of Claimant’s employment.
18. At Claimant’s request, Dr. Gagnon returned her to work March 28, 2005 with no restrictions.
19. On March 31, 2005 the company sent a letter to Dr. McArthur requesting that he evaluate Claimant’s fitness for duty.
20. On April 6, 2005, Dr. Howard performed an evaluation of Claimant and determined that her shoulder problems were related to both a previous work injury and the repetitive nature of her work. Dr. Howard returned Claimant to work April 7, 2005 with restrictions and a requirement that she be able to rest her right arm.
21. In response to the company’s March 31 letter, Dr. McArthur returned Claimant to work full duty on April 11, 2005.
22. Claimant was out of work from January 26, 2005 through April 11, 2005. Claimant returned to work April 12, 2005.
23. Claimant was out of work again from July 15, 2005 through August 1, 2005 (on which date she worked a half day). There are three doctor’s notes from St. Johnsbury Family Health Center between July 14 and 26, 2005. First, there is an undated note stating that Claimant was off work from July 14 through August 1 for her torn rotator cuff. Next, there is a July 15 note returning Claimant to work July 25. Finally, there is a note dated July 26 returning Claimant to work August 1. There is also an August 2 note from Cathleen Besch, RNCS, which put Claimant out of work until further notice.
24. On September 26, 2005, Dr. Gagnon indicated that, as a result of further examination of Claimant’s records, including review of Dr. Howard’s evaluation and a description of Claimant’s job, his medical opinion was that her shoulder injury more likely than not occurred as a result of her job duties.
25. A note from Dr. Ajamie dated October 20, 2005 returned Claimant to work October 24, and she worked from October 24 to October 28. Claimant was back out of work beginning October 31. Claimant saw Dr. Ajamie for her right shoulder on November 2. Dr. Ajamie returned Claimant to work December 1 if light duty work was available.
26. A November 4, 2005 letter to the parties from Workers’ Compensation Specialist Julie Heath indicates that Defendant’s attorney advised Defendant to voluntarily accept liability for the shoulder injury, including the recommended shoulder surgery and related indemnity. Specialist Heath also indicated that she found the elbow condition to be work-related so that the Defendant should pay all medicals related to the elbow.
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27. On November 16, 2005, Defendant filed a Form 25 for Claimant’s period of disability beginning January 26, 2005 related to her right rotator cuff tear.
28. Dr. Gagnon performed a rotator cuff tear repair surgery on November 21, 2005.
29. Dr. Gagnon returned Claimant to work with restrictions March 21, 2006, with full duty work appropriate by May 21, 2006. However, on May 8, 2006 Dr. Gagnon placed Claimant at medical end result and released her to full duty work with no restrictions.
30. On May 25, 2006, Defendant submitted two Form 25s for Claimant’s October 2004 period of disability related to her tennis elbow and her July 2005 period of disability related to her right rotator cuff tear. On May 26, 2006, Defendant submitted another Form 25 for Claimant’s period of disability beginning January 26, 2005 related to her right rotator cuff tear. On June 19, 2006, Defendant submitted a revised Form 25 for Claimant’s period of disability beginning January 26, 2005.
31. Claimant was out of work again July 10 to July 17, 2006 for her right elbow. A July 11 doctor’s note excused Claimant from work July 10 through July 18 and stated that she could return to work if she could avoid repetitive motion with her right arm for one month. Claimant returned to work July 18, 2006.
32. Claimant took a vacation day August 1, 2006 and returned to the doctor, requesting that she be released to full duty work without restrictions. An August 1 doctor’s note allowed Claimant to return to work with no restrictions.
33. On August 12, 2006, Defendant filed another Form 25 for Claimant’s July 2006 period of disability related to her right elbow condition.
34. On October 11, 2006, Defendant again filed Form 25s for Claimant’s October 2004 and July 2005 periods of disability.
35. Claimant saw Dr. Ajamie November 2, 2006. Dr. Ajamie placed Claimant out of work from November 2 to November 30. Dr. Ajamie’s note did not explain whether he was placing Claimant out of work for her right shoulder or her right elbow.
36. Claimant had excused absences from November 20 to November 22, 2006. A November 22 note from Dr. Howard allowed Claimant to return to work November 22 but stated that she must be able to rest her right arm.
37. Defendant filed a second Form 2 on November 28, 2006. Defendant denied Claimant’s shoulder injury because it had not received clarification or medical reports from Dr. Ajamie as to the nature and extent of Claimant’s shoulder injury. Defendant noted that Dr. Ajamie’s November 2 out of work note did not discuss the cause of Claimant’s injury or whether it was work related.
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38. On December 19, 2006, Dr. Ajamie clarified his November 2 note to explain that he had excused Claimant from work November 2 through November 28 for her right elbow. Dr. Ajamie returned Claimant to light duty work November 29.
39. Claimant was out December 4 because the company had no light duty work available.
40. Claimant was only out for two days in January of 2007. A January 10 note from Dr. Howard indicated that Claimant could return to work January 11 but must be able to rest her right arm.
41. A Functional Capacity Evaluation was performed on January 31, 2007. The therapist concluded that the Claimant’s physical capabilities were compatible with her job.
42. On February 9, 2007, Dr. Howard released Claimant back to work February 12 with no restrictions. He also indicated that Claimant had reached maximum medical improvement.
43. Claimant returned to full duty work after the FCE and has been working ever since.
44. On April 10, 2007, Defendant submitted a Form 25 for Claimant’s November 2006 period of disability related to her right elbow. On April 18, 2007, Defendant submitted revised Form 25s for Claimant’s July 2006 and November 2006 periods of disability.
45. From October 2003 through September 2004, Claimant’s hourly wage was $14.41; from October 2004 through September 2005, Claimant’s hourly wage was $14.81; from October 2005 through September 2006, Claimant’s hourly wage was $15.33; and beginning October 2006, Claimant’s hourly wage was $15.79.
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the Claimant has the burden of establishing all facts essential to supporting the claim. Goodwin v. Fairbanks, Morse and Co., 123 Vt. 161 (1963). The Claimant must establish with 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). The Claimant must create 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 injury, and the inference from the facts proven must be the more probable hypothesis. Burton v. Holden & Martin Lumber Co., 112 Vt. 17 (1941).
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Date of Injury
2. 21 V.S.A. § 656 (b) states that “[t]he date of injury [or] . . . injurious exposure shall be the point in time when the injury . . . and its relationship to the employment is reasonably discoverable and apparent.” Similarly, Workers’ Compensation Rule 3.0540 establishes that “[t]he date of injury, recurrence or aggravation shall be the point in time when the injury, recurrence or aggravation and its relationship to the employment is reasonably discoverable and apparent.” Further, in Hartman v. Ouellette, 146 Vt. 443, 447 (1985), the Vermont Supreme Court set forth that “the ‘date of injury’ for purposes of giving notice and filing a claim pursuant to 21 V.S.A. § 656 . . . is the point in time when an injury becomes reasonably discoverable and apparent.” Finally, in Longe v. Boise Cascade Corp., 171 Vt. 214, 219 (2000) (citing Hartman, 146 Vt. at 447), the Court reiterated that “for purposes of the notice and claim provisions of § 656, and for purposes of the . . . statute of limitations, the date of injury ‘is the point in time when an injury becomes reasonably discoverable and apparent.’”
3. However, the above rules are not controlling here, as the issue in this case has to do with determining the date of injury for purposes of calculating average weekly wage and temporary total disability and not for purposes of tolling the statute of limitations.
4. While there is no codified rule regarding determining the date of injury for purposes of calculating average weekly wage and temporary total disability, the Department has addressed the issue in its case law. In Plante v. Slalom Skiwear, Inc., Opinion No. 19-95WC, the Department stated that, in cases concerning computation of temporary total disability benefits, it “interprets the date of injury as the date on which the injury becomes disabling.” In Plante, the Department determined such date to be the date on which the Claimant had surgery. In Hepburn v. Concrete Professionals, Inc., Opinion No. 16-03WC, the Department reiterated its holding in Plante that “the twelve-week period [used to calculate average weekly wage] should [be] from the date of the injury or ‘the date upon which the injury became disabling.’”
5. Claimant argues that her date of injury was October 20, 2004. However, when Claimant visited Dr. Ajamie on October 20 he found no associated injury and explicitly noted that Claimant’s right arm pain did not arise out of her employment. Moreover, Claimant returned to work on October 21 and there is no evidence of a related accident report. Therefore, although Claimant was out of work from October 18 to October 20, 2004, her return to work October 21 and her failure to complete an accident report indicate that her right arm pain was not disabling at that time. Therefore, October 20, 2004 was not the date on which Claimant’s injury became disabling.
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6. The next possible date of injury is in December of 2004, which Defendant argues as an alternative to a January 26, 2005 date of injury. Claimant was out of work December 23, 2004 for a visit with Dr. Kraus, who did not relate Claimant’s right arm problems to her employment and returned her to work with no restrictions that same day. However, the following Monday, December 27, 2004, an accident report was completed. Claimant saw Dr. Kraus again December 30 and Dr. Kraus still did not link Claimant’s condition with her employment; however, Dr. Kraus did restrict Claimant to light duty work. The December 27, 2004 accident report and the fact that Claimant was restricted to light duty work after December 30, 2004 support a finding that her injury was disabling as of December 30, 2004. Even though Dr. Kraus did not relate Claimant’s right arm pain to her work as of December 30, 2004, and even though Claimant was able to return to work thereafter, the fact that Claimant was unable to perform certain of her work duties means that as of December 30, 2004 Claimant’s injury was disabling. Hence, December 30, 2004 shall be used as Claimant’s date of injury for purposes of calculating average weekly wage and temporary total disability.
7. However, because Claimant was not absent for more than three consecutive days, she was not eligible for temporary total disability compensation as of December 30, 2004. See 21 V.S.A. § 642 (“Where the injury causes total disability for work, during such disability, but not including the first three days, the day of the accident to be counted as the first day, unless the employee received full wages for that day, the employer shall pay the injured employee a weekly compensation equal to two-thirds of the employee’s average weekly wages, but not more than the maximum nor less than the minimum weekly compensation”) (emphasis supplied).
8. Since Claimant’s date of injury for purposes of calculating her average weekly wage was December 30, 2004, the Department will not address Defendant’s argument that Claimant’s date of injury was January 26, 2005, except to note that the fact that Claimant was out of work after January 26, 2005 until April 11, 2005 would mandate a finding that by January 26, 2005 Claimant’s injury was disabling.
Average Weekly Wage
9. 21 V.S.A. § 650 (a) states that “[a]verage weekly wages shall be computed in such manner as is best calculated to give the average weekly earnings of the worker during the 12 weeks preceding an injury.” However, § 650 (b) says that “[i]f during the period of 12 weeks an injured employee has been absent from employment on account of sickness or suspension of work by the employer, then only the time during which the employee was able to work shall be used to determine the employee’s average weekly wage.” Also, § 650 (c) states that “[w]hen temporary disability . . . does not occur in a continuous period but occurs in separate intervals each resulting from the original injury, compensation shall be adjusted for each recurrence of disability to reflect any increases in wages or benefits prevailing at that time.” Finally, § 650 (d) states that “[c]ompensation computed pursuant to this section shall be adjusted annually on July 1, so that such compensation continues to bear the same percentage relationship to the average weekly wage in the state as computed under this chapter as it did at the time of the injury.”
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10. Workers’ Compensation Rule 15.2000 states that the compensation rate for temporary total disability is “2/3rds of [the claimant’s] average weekly wage.” Rule 15.4000 explains that in order “[t]o determine the claimant’s average weekly wage . . . the total gross wages, as reported by the employer on the Wage Statement (Form 25), is divided by the number of weeks used to determine the total gross wages.” Rule 15.4110 mandates the inclusion of overtime earnings in the Form 25. However, Rule 15.4200 excludes from consideration “any week(s) during which the claimant worked and/or was paid for fewer than one-half of his or her normally scheduled hours” and “any week(s) during which the claimant did not work at all, regardless of whether or not he or she was paid for this time off.” Finally, Rule 16.2000 states that “annually on or before July 1 the [C]ommissioner shall announce the annual change in compensation rate and new minimum and maximum rates for the coming fiscal year” and that “[a]ny claimant receiving temporary . . . disability compensation on July 1 shall be entitled to an increase in his or her compensation rate in accordance therewith, PROVIDED THAT in no event may a claimant’s compensation rate for temporary total disability exceed his or her average weekly wage or his or her weekly net income.”
11. Claimant has not presented evidence or made an argument regarding what average weekly wage and compensation rate she is entitled to for each of her periods of disability. Moreover, she has capitulated to Defendant’s Form 25s.
12. Defendant has not made an argument regarding what average weekly wage and compensation rate Claimant is entitled to for her period of disability beginning January 26, 2005 if December 30, 2004 is used as the date of injury. Defendant argues that Claimant’s average weekly wage and compensation rate for the period of disability beginning July 15, 2005 should be $608.92 and $405.95 respectively. Defendant calculates Claimant’s average weekly wage and compensation rate for the period of disability beginning July 10, 2006 to be $755.24 and $503.49 respectively. Finally, Defendant argues that for the period of disability beginning November 2, 2006 Claimant’s average weekly wage and compensation rate would be $692.26 and $461.51 respectively; however, since the $461.51 compensation rate is lower than the previous $503.49 compensation rate, Defendant admits that Claimant’s compensation rate for the November 2006 period of disability should be the same as for the July 2006 period of disability.
13. According to § 650 (c), “a compensation rate adjustment is to be made with separate periods of disability only when there is an increase in wages. . . . [N]o adjustment for a diminution in wages can be made.” Bollhardt v. Mace Security International, Opinion No. 51-04WC. Therefore, Defendant was correct when it adjusted Claimant’s average weekly wage and compensation rate based on her yearly October 1 raises. Similarly, Defendant was correct when it maintained Claimant’s July 2006 compensation rate for her November 2006 period of disability because the November 2006 compensation rate would have been lower than the July 2006 compensation rate.
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14. Moreover, according to § 650 (d) and Rule 16.2000, “July 1 adjustments apply to those ‘receiving temporary [disability] compensation’” on July 1 of the year in question. Bollhardt v. Mace Security International, Opinion No. 51-04WC (emphasis in original). Since none of Claimant’s periods of disability covered July 1 of 2005 or 2006, Claimant’s compensation is not subject to COLA adjustments.
15. Having reviewed the Form 25s submitted by the Defendant, the Department finds the following to be Claimant’s average weekly wages and compensation rates (as well as explanations therefor) for the periods of disability in question:
Period of Disability: 1/26/05 – 4/11/05
Hourly Rate: $14.81
Overtime Rate: $22.22
Week Ending
Hours Worked
Gross Wages
12/26/04
24
$355.44
12/19/04
40
$592.40
12/12/04
32
$473.92
12/5/04
40
$592.40
11/28/04
24
$355.44
11/21/04
30.5
$451.71
Week Ending
Hours Worked
Gross Wages
11/14/04
33.45
$495.39
11/7/04
40
$592.40
10/31/04
To Be Determined
To Be Determined
10/24/04
To Be Determined
To Be Determined
10/17/04
40
$592.40
10/10/04
40
$592.40
Average Weekly Wage: To Be Determined
Compensation Rate: To Be Determined
Defendant has not submitted a proper Form 25 or calculations of Claimant’s average weekly wage and compensation rate using a December 30, 2004 date of injury. Defendant’s Exhibit C is based on a January 26, 2005 date of injury and only goes back to November 7, 2004. Defendant’s Exhibit A is based on an October 20, 2004 date of injury and provides the hours worked and gross wages for the weeks ending October 17, 2004 and October 10, 2004. Defendant’s Exhibit B appears to be based on a December 23, 2004 date of injury but uses biweekly figures for Claimant’s hours worked and gross wages, so that the Department cannot glean Claimant’s hours worked and gross wages for the weeks ending October 31, 2004 and October 24, 2004. The parties need to agree on Claimant’s hours worked and gross wages for these weeks in order to properly calculate Claimant’s average weekly wage and compensation rate for her period of disability beginning January 26, 2005.
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Periods of Disability: 7/15/05 – 8/1/05; 8/2/05 – 10/24/05; 10/31/05 – 5/8/06
Hourly Rate: $14.81
Overtime Rate: $22.22
Week Ending
Hours Worked
Gross Wages
7/10/05
0 (8 holiday; 32 vacation)
N/A
7/3/05
37.7
$558.34
6/26/05
40
$592.40
6/19/05
41.2
$619.06
6/12/05
36
$533.16
6/5/05
16 (8 holiday; 16 vacation)
N/A
5/29/05
52
$859.04
5/22/05
40
$592.40
5/15/05
40
$592.40
5/8/05
40
$592.40
5/1/05
48
$770.16
4/24/05
40.1
$594.62
Average Weekly Wage: $630.40
Compensation Rate: $420.27
The Department has declined to adjust Claimant’s average weekly wage and compensation rate for her October 31, 2005 through May 9, 2006 period of disability based on her October 1, 2005 $.52 wage increase, as the time between the August 2, 2005 to October 24, 2005 and the October 31, 2005 through May 9, 2006 periods of disability was ephemeral.
Period of Disability: 7/10/06 – 7/17/06
Hourly Rate: $15.33
Overtime Rate: 23.00
Week Ending
Hours Worked
Gross Wages
7/9/06
40.3 + 8 holiday
$742.74
7/2/06
40
$613.20
6/25/06
16.73 (16 vacation)
N/A
6/18/06
24 + 16 vacation
$613.20
6/11/06
24.1 + 8 personal
$492.09
6/4/06
43.45 + 8 holiday
$815.19
5/28/06
26 + 8 personal + 8 vacation
$643.86
5/21/06
45.9 + 8 vacation
$871.54
5/14/06
40.4
$622.40
5/7/06
0 (40 workers’ comp)
N/A
4/30/06
0 (40 workers’ comp)
N/A
4/23/06
0 (40 workers’ comp)
N/A
Average Weekly Wage: $676.78
Compensation Rate: $451.18
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Period of Disability: 11/2/06 forward
Hourly Rate: $15.33 through 10/1/06; $15.79 after 10/1/06
Overtime Rate: $23.00 through 10/1/06; $23.69 after 10/1/06
Week Ending
Hours Worked
Gross Wages
10/29/06
37.98
$599.70
10/22/06
28 + 4 personal
$505.28
10/15/06
0 (40 sick)
N/A
10/8/06
1.27 (32 sick)
N/A
10/1/06
43.73
$698.99
9/24/06
35.77 + 8 vacation
$670.99
9/17/06
8 (32 vacation)
N/A
9/10/06
20 + 12 vacation + 8 holiday
$613.20
9/3/06
32 + 8 vacation
$613.20
8/27/06
20 + 20 vacation
$613.20
8/20/06
40
$613.20
8/13/06
24 + 16 vacation
$613.20
Average Weekly Wage: $615.66
Compensation Rate: $410.44
But since lower than last period of disability, compensation rate = $451.18
Mileage
16. Workers’ Compensation Rule 12.2100 indicates that an injured worker required to travel for treatment shall be paid “[m]ileage beyond the distance normally traveled to the workplace, at the current rate in effect for classified employees of the State of Vermont.”
17. As noted above, Claimant has the burden of establishing all facts essential to supporting her claim. Goodwin, 123 Vt. at 166.
18. In Dain v. AIHRS, Opinion No. 85-95WC, the claimant was denied mileage reimbursement for failure to provide a reasonable explanation for the amount of mileage claimed. Similarly, in Frederick v. Metromail Corporation, Opinion No. 25-97WC, the claimant was denied mileage reimbursement because she had not demonstrated that her travel was reasonable and necessary.
19. Claimant has introduced three mileage reimbursement forms and has indicated the dates on which the doctors in question were visited; however, her calculations are imprecise and abstruse. Therefore, Claimant has not met her burden with regard to further mileage reimbursement.
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Medical Bills
20. Claimant has also failed to prove that there are any unpaid medical bills. As Defendant noted, the Carrier testified that there are no pending medical bills. Moreover, Defendant explained that the 2004 MRI for which Claimant was seeking payment was paid on May 14, 2007.
ORDER:
Based on the foregoing findings of fact and conclusions of law:
1. Claimant’s date of injury was December 30, 2005.
2. Claimant’s average weekly wage and compensation rate for the January 26, 2005 to April 11, 2005 period of disability is to be determined by the parties based on the above date of injury. Claimant’s average weekly wage and compensation rate for the July 15, 2005 through May 8, 2006 periods of disability are $630.40 and $420.27 respectively; Claimant’s average weekly wage and compensation rate for the July 10, 2006 to July 17, 2006 period of disability are $676.78 and $451.18 respectively; and Claimant’s compensation rate for her periods of disability from November 2, 2006 forward is $451.18.
3. The Carrier is ordered to adjust the claim in accordance with the above.
DATED at Montpelier, Vermont this 2nd day of August 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.

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

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

Annemieke Meau v. The Howard Center Inc (January 24, 2014)
STATE OF VERMONT
DEPARTMENT OF LABOR
Annemieke Meau Opinion No. 01-14WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
The Howard Center, Inc.
For: Anne M. Noonan
Commissioner
State File No. BB-59825
OPINION AND ORDER
Hearing held in Montpelier, Vermont on November 15, 2013
Record closed on December 20, 2013
APPEARANCES:
Thomas Nuovo, Esq., for Claimant
Erin Gilmore, Esq., for Defendant
ISSUES PRESENTED:1
1. Is Claimant’s shingles disease causally related to her March 3, 2010 compensable
injury?
2. What amounts, if any, is Claimant entitled to receive for unreimbursed mileage
charges, medical bills, co-payments, pharmacy expenses and/or temporary total
disability benefits (including cost of living adjustments and dependency benefits)
as a consequence of her compensable injuries?
3. To what extent, if any, should interest and/or penalties be assessed on any of the
above amounts?
1 Claimant initially claimed entitlement to benefits causally related to her use of Lumigan eye drops, a medication
prescribed in 2012 for treatment of increased intraocular pressure. She withdrew this claim at the conclusion of the
formal hearing.
2
EXHIBITS:
Joint Exhibits I-III: Medical records
Claimant’s Exhibit 1: Mileage chart
Claimant’s Exhibit 2: Summary of co-payments, with supporting documentation
Claimant’s Exhibit 3: Summary of pharmacy expenses, with supporting documentation
Claimant’s Exhibit 4: Summary of expenses owed
Claimant’s Exhibit 5: Summary of temporary disability benefits, interest and penalties
owed
Claimant’s Exhibit 6: Blue Cross Blue Shield of Vermont, paid claims
Claimant’s Exhibit 7: Photograph of Claimant’s scalp
Defendant’s Exhibit A: Curriculum vitae, Nancy Binter, M.D.
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640(a)
Temporary total disability benefits (including dependency benefits and cost of living
adjustments) pursuant to 21 V.S.A. §§642 and 650
Interest, penalties, costs and attorney fees pursuant to 21 V.S.A. §§650(e), 664 and 678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was
her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the
Department’s file relating to this claim.
3. Claimant worked for Defendant as a mental health counselor at the H.O. Wheeler School
in Burlington.2 She holds a bachelor’s degree in social work and master’s degrees in
education and counseling, and is certified in Vermont as a licensed mental health
counselor. Currently she is 58 years old.
2 In addition to her employment for Defendant, at the time of her injury Claimant was concurrently employed by the
Town of Essex as a middle school guidance counselor.
3
Claimant’s March 2010 Work Injury and Subsequent Medical Course
4. On March 3, 2010 Claimant was at work at the H.O. Wheeler School when she was
called to assist in restraining a child who had become uncontrollable. At one point during
the episode, Claimant was holding the child from behind, with her arms underneath him
and his back to her chest, when he head-butted her with such force that she lost her
balance. Claimant fell back against a cement wall and then down on the base of her
spine. Somehow during the scuffle, she suffered two large cuts on her left arm. In
recalling the episode subsequently, she was unsure whether she had lost consciousness or
not. Within an hour, she felt pain in her neck and lower back.
5. Defendant accepted Claimant’s cervical spine and lower back injuries as compensable
and began paying workers’ compensation benefits accordingly.
6. Claimant’s medical course since March 2010 has been long and complicated, particularly
with respect to her cervical injuries. Initially diagnosed with a left-sided cervical strain,
by April 2010 she was complaining as well of severe headaches and dizziness. In the
years since, subsequent specialist evaluations (neurological, orthopedic,
neuropsychological, pain management and physical medicine, among others), have
addressed a wide range of additional symptoms, including chronic left-sided neck pain,
left shoulder pain, short-term memory loss and other cognitive impairments. These
complaints have yielded varying diagnoses, among them occipital neuralgia, possible C7
cervical radiculopathy, torticollis, mild post-concussive syndrome, traumatic brain injury,
mild mood disorder, anxiety and/or depression.
Shingles
7. Of particular importance to the pending claim, on January 18, 2011 Claimant first sought
treatment for an accelerating rash with burning pain and blisters on the back of her head
and neck. This was the approximate location of the cervical pain and posterior headaches
she had been reporting since shortly after her work injury, and for which she had sought
emergency room treatment just one week previously.
8. Claimant’s rash was diagnosed as shingles. Shingles is a painful skin rash caused by the
same virus (varicella zoster) that causes chickenpox. After a childhood infection, the
virus does not disappear, but rather remains dormant in infected sensory nerve cells.
Many years later, the virus can become reactivated, and will migrate to the skin, causing
a rash that typically appears in the same dermatomal distribution as the infected nerve.
9. As for what causes the zoster virus to reactivate as shingles, the medical research is
inconclusive. The risk of contracting shingles increases with age, and immune system
compromise also appears to play a role. According to some studies, stress and physical
trauma also might act as triggers for the disease. However, the mechanism by which any
of these factors causes the virus to erupt remains poorly understood, and there are times
when a patient presents with shingles for which no cause at all can be identified.
4
10. If diagnosed early enough, a shingles outbreak can be treated with antiviral medication,
which reduces the severity of the symptoms and promotes faster healing. For this reason,
treatment providers often make a presumptive diagnosis based on the patient’s clinical
presentation, and then administer antivirals prophylactically.
11. Claimant’s January 2011 shingles outbreak (a diagnosis later confirmed by biopsy) was
treated with antivirals, though it is unclear whether the medication was effective. One
week later, the rash was still present on her head and neck, and had spread to her face and
left ear as well. She continued to suffer from severe, burning pain, “like bees stinging
you,” according to her description. She could not refrain from scratching the lesions on
her scalp, which itched “like poison ivy.” Clumps of hair fell out, and large patches of
skin became ulcerated. At times she scratched so hard that the lesions bled. In the
ensuing months, at various times she was diagnosed with impetigo, an infection
superimposed on top of the underlying shingles lesions.
12. Claimant’s symptoms were indicative of post-herpetic neuralgia, a complication that
afflicts fewer than ten percent of shingles patients. It causes neuropathic-type pain in a
dermatomal distribution, which can be both severe and chronic. Claimant’s complaints
of burning pain, unrelenting itchiness, sensitivity to light touch and facial numbness are
all consistent with the condition.
13. Claimant treated for her initial shingles outbreak with a variety of providers, including
Dr. Huston, an infectious disease specialist, Dr. Huyck, an occupational medicine
specialist, emergency room physicians and a dermatologist. By mid-March 2011 the
virus was no longer replicating. Unfortunately, however, her post-herpetic neuralgia
symptoms have continued in severe fashion to this day.
14. Claimant was treated on two subsequent occasions for possible shingles outbreaks, first
in July 2011 and again in December 2011. The July episode came one day after she had
fallen backwards onto a potted plant; subsequently she developed a rash on her left cheek
and ear and complained of searing, intermittent left eye pain as well. The December
episode came shortly after she was administered a shingles vaccine, and presented as a
rash on her left arm. Unlike the initial January 2011 outbreak, neither of these
subsequent outbreaks was confirmed by biopsy. Rather than shingles, therefore, it is
possible that the rashes were self-induced, a consequence of severe itching and scratching
related to post-herpetic neuralgia and/or impetigo.
5
Expert Medical Opinions as to Causal Relationship between Shingles and Work Injury
15. As noted above, Finding of Fact No. 9 supra, medical research has not yet conclusively
established the mechanism by which the virus that causes chickenpox in a child
reactivates years later as shingles in an adult. The parties presented conflicting expert
medical evidence regarding the most likely trigger for the outbreak Claimant suffered in
January 2011, and whether it was causally related to her March 2010 work injury.
(a) Dr. Backus
16. Dr. Backus, an occupational medicine specialist, originally was retained to conduct an
independent medical evaluation on Defendant’s behalf in July 2010. Following a reevaluation
in April 2011, he concluded that there was a causal relationship between
Claimant’s March 2010 work injury and her January 2011 shingles outbreak. According
to his analysis, Claimant’s immune system likely had been weakened, either by the
steroids she had been prescribed to treat her work injury and/or by the chronic stress she
had experienced since. As noted above, Finding of Fact No. 9 supra, medical research
has identified immune system compromise as a possible risk factor leading to activation
of the shingles virus.
17. Dr. Backus did not testify at formal hearing, and therefore I cannot determine the extent
of his experience and expertise in evaluating and/or treating shingles. Nor was any
evidence introduced to establish the strength of the causal association among steroid
medications (how much, at what dosage and for how long), a suppressed immune system
and reactivation of the zoster virus. For these reasons, and without more specific
information as to the basis for his conclusion, I find his opinion of limited value.
(b) Dr. Huston
18. Dr. Huston, an infectious disease specialist, treated Claimant’s shingles and impetigo
outbreaks between March and November 2011. In his initial office note, dated March 17,
2011, he made the following statement as to etiology:
With respect to the etiology of [Claimant’s shingles, complicated by postherpetic
neuralgia], it most likely stems from the stress of her recent injury
and perhaps the repeated episodes of torticollis.
19. It is unclear whether the “recent injury” to which Dr. Huston referred in this statement
was in fact the March 2010 work injury; I find that common usage of the term “recent”
typically implies an event closer in time than one year previous. It also is unclear why
Dr. Huston implicated Claimant’s “repeated episodes of torticollis” as possibly
contributing to her shingles. No evidence was introduced identifying torticollis, a
condition caused by muscle spasms in the neck, as being causally linked to reactivation
of the zoster virus. Dr. Huston did not testify at formal hearing, and did not otherwise
provide any clarifying information. For that reason, I find his conclusory opinion
unpersuasive.
6
(c) Dr. Huyck
20. Dr. Huyck, a board certified specialist in occupational and environmental medicine,
treated Claimant’s post-herpetic neuralgia from February 2011 until July 2013. In the
course of her clinical practice, Dr. Huyck has both diagnosed and treated patients with
shingles. Dr. Huyck testified on Claimant’s behalf at formal hearing.
21. In Dr. Huyck’s opinion, to a reasonable degree of medical certainty Claimant’s shingles
and post-herpetic neuralgia were causally related to her March 2010 work injury. As
grounds for this conclusion, she cited to a “solid collection” of articles in the medical
literature in which cases of post-traumatic shingles were studied. One such article was a
case study in which an outbreak of shingles was found to be causally related to a
traumatic injury because (a) the patient had no other risk factors, and (b) the timing and
location of the outbreak correlated with the injury. Another study found that 38 of 100
patients had suffered recent trauma as the single precipitating event for the development
of shingles, again with the outbreaks occurring at the injury site. Still other studies have
reported cases of laryngeal shingles following intubation, and ophthalmic shingles after
cataract operations, both examples of so-called “scheduled” trauma.
22. In her formal hearing testimony, Dr. Huyck discussed the two types of “reaction
pathways” by which the shingles virus is believed to be reactivated in adults. One is an
immunosuppressive pathway, whereby the body becomes unable to fight the zoster
infection. The other is a more mechanical or local pathway, whereby physical trauma to
the area in which the infected nerve cells are located somehow disrupts the dormant virus
and reactivates it.
23. In Claimant’s case, Dr. Huyck concluded that both pathways likely contributed to the
reactivation of the shingles virus. The mechanical pathway was implicated because the
location of her outbreak was in the same region associated with her work injury. The
immunosuppressive pathway was implicated not by the most common risk factors, which
Dr. Huyck identified as HIV infection, kidney failure or immunosuppressive drugs,3 but
rather by the physical stress on the body that occurs during the healing process.
3 Notably, Dr. Huyck did not identify Claimant’s use of steroid medications as sufficiently immunosuppressive to
qualify as a risk factor, as Dr. Backus had postulated, see Finding of Fact No. 16 supra.
7
24. In her testimony, Dr. Huyck referenced a second source of physical trauma that could
have supplied the mechanical pathway for Claimant’s January 2011 shingles outbreak – a
cervical epidural steroid injection that Dr. Borello, a pain management specialist,
administered in mid-September 2010. Dr. Borello’s contemporaneous treatment notes
reflect that the procedure was “uneventful,” and that Claimant tolerated it “without
apparent complications.” However, Claimant recalled the procedure differently. At
formal hearing, she testified that during the injection “all of this blood started to come
out,” both on her face and onto the exam table. Four days after the injection, she
presented to the emergency room with increased pain, not only in her neck but also in her
lower back and left leg. Some weeks later, she described being hypersensitive to touch in
the area of her left neck and shoulder, and in early November she reported nerve pain
“like swelling pieces of glass” in her neck. In January, while seeking emergency room
treatment for left-sided neck pain just one week before her shingles rash appeared, she
expressed concern about swelling in her left neck at the injection site. Claimant
attributed all of these symptoms to as-yet undetected shingles, caused in some fashion by
Dr. Borello’s injection.
25. Dr. Huyck’s formal hearing testimony was somewhat unclear regarding whether some
complication from the September 2010 epidural steroid injection may have contributed to
cause Claimant’s January 2011 shingles outbreak. Based on the credible medical
evidence, I find ample reason to question whether Claimant’s recollection of the
procedure was accurate.4 As Dr. Huyck testified, furthermore, the symptoms that
typically precede a shingles outbreak, such as numbness, tingling and nerve pain,
commonly occur within a week of the rash itself. The symptoms Claimant described in
October and November 2010 occurred well before that time frame. For these reasons, I
find any claimed association between Claimant’s September 2010 cervical injection and
her January 2011 shingles outbreak too speculative to credit.
26. As to whether it is reasonable to attribute Claimant’s January 2011 shingles outbreak to
trauma resulting from her work injury some ten months earlier, Dr. Huyck did not
specifically address this in her testimony. The studies she referenced were not admitted
into evidence, and therefore I am unable to determine the time frame upon which their
causal association findings were based. Lacking the objective support these studies
might (or might not) lend, I find Dr. Huyck’s opinion unpersuasive.
(d) Dr. Binter
27. Defendant’s medical expert, Dr. Binter, strongly disputed any claimed association
between Claimant’s work injury and her shingles. Dr. Binter is a board certified
neurosurgeon. Although she has retired from clinical practice, she has in the past
diagnosed patients with shingles. Dr. Binter examined Claimant at Defendant’s request
in May 2012, and testified on Defendant’s behalf at formal hearing.
4 As noted above, the contemporaneous treatment notes do not report any bleeding or other complications, and as
Dr. Borello credibly asserted in his November 2010 office note, it would be “very unlikely” that a cervical steroid
injection would cause increased pain in the lower back or left leg. And while the January 2011 emergency room
records report Claimant’s “concern” regarding swelling in her left neck, no such finding was noted on exam.
8
28. As Dr. Huyck had, Dr. Binter relied on the medical literature to inform her opinion
regarding the most likely cause of shingles in Claimant’s case. Although she did not cite
to specific studies, her research identified first age and then immune system compromise
as the risk factors with the strongest support in the literature. More speculative risk
factors included both psychological stress and physical trauma. As to the latter, Dr.
Binter acknowledged that numerous articles have been published regarding a possible
association, but in her estimation their findings are vague and the relationship has not yet
been scientifically proven.
29. Even were the studies linking physical trauma to shingles to be believed, in Dr. Binter’s
opinion the ten-month delay between Claimant’s March 2010 work injury and her
January 2011 shingles outbreak made any possible causal connection unlikely. Again, as
was the case with Dr. Huyck’s opinion, no studies were introduced either to prove or
disprove this analysis.
30. Dr. Binter also questioned whether in fact Claimant’s March 2010 work injury likely
resulted in any significant head trauma at all, as Dr. Huyck apparently presumed. The
contemporaneous medical records reported that Claimant had not lost consciousness, and
as Dr. Binter observed during her evaluation, even two years later Claimant was able to
recall the incident “in exquisite detail,” which would not ordinarily be expected of a
patient who has suffered a major concussion or traumatic brain injury. For these reasons,
in Dr. Binter’s opinion Claimant likely suffered no more than a mild concussive
syndrome as a result of her work injury. Even assuming a scientifically established
association between head trauma and shingles, Dr. Binter found it implausible that such
an injury would have been severe enough to trigger reactivation of the shingles virus. I
find this aspect of Dr. Binter’s analysis credible.
31. Having rejected physical trauma as a probable cause, Dr. Binter identified psychological
stress as a more likely trigger for Claimant’s shingles. Specifically, Dr. Binter noted the
following reference in a March 14, 2011 medical record as the basis for her conclusion:
Subjective. Really difficult year. Two nephews killed in separate car
accidents, one niece died of anaphylactic shock. Devastating year.
32. Based solely on this notation, which she acknowledged was “a pretty soft finding,” Dr.
Binter concluded as follows:
I do not feel that [Claimant’s shingles] are causally related to her work
injury. I think it’s far more likely related to the stress from the precipitous
death of her relatives, which is a little bit more temporal and far more
stressful than the work injury.
9
33. In addition to the notation upon which Dr. Binter relied, the medical records contain
numerous references to other stressful circumstances in Claimant’s life, such as selling
her home, coping with chronic pain (whether from her work injury or otherwise) and
parenting a teenage son with medical issues of his own. It is unclear why Dr. Binter did
not consider any of these stressors to be possible triggers for Claimant’s shingles
outbreak. On cross examination she admitted that she had “no idea” when the relatives
referred to in the above medical record actually died, whether some months or even years
previously. Without this information, it is entirely speculative to conclude, as Dr. Binter
did, that the deaths were either “more temporal” or “far more stressful” than the work
injury was. For this reason, I find Dr. Binter’s opinion in this regard entirely
unpersuasive.
Mileage, Medical Charges and Co-Payments, Pharmacy Expenses and Temporary Total
Disability Benefit Shortages
34. With no objection from Defendant, at formal hearing Claimant was allowed to introduce
various exhibits detailing the amounts she claims Defendant owes her for unreimbursed
mileage, medical bill co-payments and pharmacy expenses, totaling $1,013.44, and also
the amount she claims her group health insurer is owed for unreimbursed medical
expenses, totaling $2,454.33. Claimant also produced an exhibit detailing her claimed
entitlement to unpaid dependency benefits, cost of living adjustments and other
temporary total disability benefit shortages, which she asserts totaled $21,456.89
(including interest and penalties) as of August 9, 2013.5
35. Some of the amounts Claimant claims are due remain unpaid because they relate to
treatment for shingles, which Defendant consistently has maintained is not causally
related to her work injury and therefore not its responsibility to pay. Other amounts
(particularly those relating to the temporary total disability benefit shortfalls) are not
defensible on those grounds. Defendant failed almost from the beginning to calculate
Claimant’s weekly benefit correctly, and failed to include the dependency benefit due on
account of her minor child. Later it failed to make required annual cost of living
adjustments. As a consequence of these omissions, on May 3, 2013 the Department’s
workers’ compensation specialist issued an interim order that all arrearages be paid, with
interest and penalties in accordance with 21 V.S.A. §650(e) and Workers’ Compensation
Rule 3.1200. I find that penalties and interest were appropriately assessed and therefore
that this order was appropriately issued.
5 It is unclear to what extent this amount remains in arrears, and also whether additional arrearages have
accumulated since the exhibit was prepared.
10
36. As the focus of the formal hearing was solely on whether Claimant’s shingles is causally
related to her work injury, neither party addressed the question whether she has reached
an end medical result, either for that condition or for her accepted injuries.6 As to the
latter, Defendant has not yet filed a Notice of Intention to Discontinue Benefits (Form
27).
CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts
essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must
establish by sufficient credible evidence the character and extent of the injury as well as
the causal connection between the injury and the employment. Egbert v. The Book Press,
144 Vt. 367 (1984). There must be created in the mind of the trier of fact something
more than a possibility, suspicion or surmise that the incidents complained of were the
cause of the injury and the resulting disability, and the inference from the facts proved
must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941);
Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. The primary disputed issue here is whether a causal relationship exists between
Claimant’s compensable March 2010 work injury and her shingles disease. The parties
introduced conflicting expert medical evidence on this point. In such situations, the
commissioner traditionally uses a five-part test to determine which expert’s opinion is the
most persuasive: (1) the nature of treatment and the length of time there has been a
patient-provider relationship; (2) whether the expert examined all pertinent records; (3)
the clarity, thoroughness and objective support underlying the opinion; (4) the
comprehensiveness of the evaluation; and (5) the qualifications of the experts, including
training and experience. Geiger v. Hawk Mountain Inn, Opinion No. 37-03WC
(September 17, 2003).
6 Defendant has never filed an Agreement for Temporary Compensation (Form 32), and therefore it is difficult to
determine which of Claimant’s other injuries it has accepted as compensable. There seems little doubt that her
cervical and lower back injuries are causally related to the March 2010 accident, but Defendant’s position as to her
claimed traumatic brain injury is less clear. Certainly more attentive adjusting and closer adherence to Vermont’s
workers’ compensation rules would have provided more clarity.
11
3. Neither of the experts who testified at formal hearing gave particularly compelling
opinions regarding the etiology of Claimant’s shingles. Dr. Huyck’s opinion was
weakened significantly by her failure to account for the ten-month delay between
Claimant’s work injury and her first shingles outbreak. Dr. Binter’s opinion was
rendered incredible by its reliance on a single reference to an unrelated psychological
stressor as determinative, a conclusion even she admitted was “soft” and speculative.
Neither expert addressed whether Claimant’s age might have been a trigger for the
disease. Both doctors asserted that the medical literature supported their respective
positions, but neither did so with sufficient specificity for me to evaluate the strength of
their assertions. For example, while both asserted that the medical research has identified
“stress” as a possible risk factor, each applied a different interpretation of the term – Dr.
Huyck inferred physical stress from the body’s healing process, Dr. Binter inferred
psychological or emotional stress. As a result, I have difficulty attributing the necessary
objective support to either of their opinions.
4. Neither of the experts who testified appeared to possess the level of training, experience
or expertise sufficient to establish superior knowledge on the causation question,
furthermore. Perhaps Dr. Huston, who specializes in treating infectious diseases, could
have filled in the necessary gaps had he testified. As it is, however, his opinion was
expressed in a single sentence in a single office note. Given the current state of medical
research, from which I can conclude only that the mechanism by which trauma might
trigger shingles is both complex and poorly understood, this simply is not enough to carry
the day.
5. Because Claimant bears the burden of proof on the causation issue, in the final analysis it
is her expert’s credibility that matters most. More to the point, merely stating a
conclusion to a reasonable degree of medical certainty does not necessarily make it so,
even if no more credible opinion is offered. See, e.g., Seymour v. Genesis Health Care
Corp., Opinion No. 53-08WC (December 29, 2008). In this case, despite the weaknesses
in Dr. Binter’s analysis, I conclude that Dr. Huyck’s causation opinion is not strong
enough on its own to persuade me.
6. I thus conclude, based on the evidence presented, that Claimant has failed to sustain her
burden of proving the necessary causal relationship between her work injury and her
shingles to establish compensability. That being the case, I conclude that Defendant is
not responsible for whichever unpaid mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to her treatment
for shingles. As the parties did not offer evidence or address their proposed findings to
specific charges, I cannot make a more specific ruling at this time.
12
7. Notwithstanding my conclusion that Claimant’s shingles is not compensable, I conclude
that Defendant is liable for all of the temporary total disability payment shortages
referred to in Finding of Fact No. 34 supra, as well as any arrearages that have
accumulated since August 9, 2013. Defendant’s liability for these shortages arises not
from its refusal to pay for benefits attributable to shingles, but rather from its failure to
properly calculate the benefits owed on account of injuries it has never properly denied or
disputed.
8. In a similar vein, I conclude that Defendant is liable for ongoing temporary total
disability benefits until such time as it lawfully terminates them in accordance with
Workers’ Compensation Rule 18.1000.
9. Claimant has requested an award of costs totaling $462.25 and attorney fees totaling
$37,743.50. As all of her costs appear to relate to the primary disputed question –
whether her shingles is causally related to her work injury – and as she failed to prevail
on that issue, I conclude that she is not entitled to an award of costs. 21 V.S.A. §678(a);
see Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003).
10. As for attorney fees, I conclude that a considerable amount of the hours billed were to
address problems that arose as a consequence of Defendant’s failure to properly adjust
Claimant’s claim in accordance with Vermont’s workers’ compensation rules and
procedure. With that in mind, I conclude that it is appropriate to award attorney fees of
$12,581.16, or one-third of the total requested.
13
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED
to pay:
1. Whichever unpaid claims for mileage expenses, medical bill co-payments,
prescription charges and/or unreimbursed medical expenses are referable to
injuries other than Claimant’s shingles disease, with interest as calculated
according to 21 V.S.A. §664;
2. Temporary total disability payment shortages totaling $21,456.89 as of August 9,
2013, plus any arrearages that have accumulated since that date, with interest and
penalties on any amounts still outstanding as calculated according to 21 V.S.A.
§§650(e) and 664 and Workers’ Compensation Rule 3.1200;
3. Ongoing temporary total disability benefits in accordance with 21 V.S.A. §642
and continuing until lawfully terminated in accordance with Workers’
Compensation Rule 18.1000; and
4. Attorney fees totaling $12,581.16, in accordance with 21 V.S.A. §678.
DATED at Montpelier, Vermont this 24th day of January 2014.
________________________
Anne M. Noonan
Commissioner
Appeal:
Within 30 days after copies of this opinion have been mailed, either party may appeal questions
of fact or mixed questions of law and fact to a superior court or questions of law to the Vermont
Supreme Court. 21 V.S.A. §§670, 672.

Gideon Langdell v. G. W. Savage Corp. (June 24, 2009)

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

Gideon Langdell v. G. W. Savage Corp. (June 24, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Gideon Langdell Opinion No. 19-09WC
v. By: Jane Dimotsis, Esq.
Hearing Officer
G.W. Savage Corp.
For: Patricia Moulton Powden
Commissioner
State File No. W-07750
OPINION AND ORDER
Hearing held in Montpelier on April 11, 2008
Record closed on May 21, 2008
APPEARANCES:
Michael Green, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUES PRESENTED:
1. What, if any, permanent partial disability benefits is Claimant entitled to receive as a consequence of his November 22, 2004 work-related injury?
2. Is Defendant responsible for the medical expenses Claimant incurred between March 19, 2006 and November 17, 2006?
3. Is Claimant entitled to mileage reimbursement for his travel to and from medical appointments?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Curriculum vitae, Verne Backus, M.D.
Defendant’s Exhibit A: Affidavit of Bill Savage, April 2, 2008
Defendant’s Exhibit B: Curriculum vitae, Craig Mikio Uejo, M.D.
2
CLAIM:
Permanent partial disability benefits pursuant to 21 V.S.A. §648
Medical benefits pursuant to 21 V.S.A. §640
Mileage reimbursement pursuant to Workers’ Compensation Rule 12.2100
Interest pursuant to 21 V.S.A. §664
Costs and attorney’s fees pursuant to 21 V.S.A. §678
JOINT STATEMENT OF UNCONTESTED FACTS:
1. On November 22, 2004 Claimant was employed by Defendant as a mason. He injured his back when the mason tender lost his footing and left Claimant holding a 100-pound object.
2. On June 13, 2005 Dr. Nancy Binter performed an L4-5 laminotomy and discectomy. In a letter dated November 29, 2005 Dr. Binter stated that Claimant had reached an end medical result. She rated him for permanency at “DRE Category III an 11% whole person disability according to the AMA 5th Edition Impairment Guide.”
3. Defendant’s workers’ compensation insurance carrier filed a Form 27 on December 12, 2005, which the Department approved on December 20, 2005.
4. The Department notified Claimant that the Form 27 was determined to be supported and that he had the right to contest the decision.
5. Defendant subsequently paid Claimant all of the benefits due in accordance with Dr. Binter’s 11% whole person rating, which amounted to 60.5 weeks at his weekly compensation rate of $494.37.
6. Claimant retained Dr. Verne Backus to do a permanency evaluation. Dr. Backus concluded that Claimant had a 29% whole person impairment.
7. Defendant retained Brigham & Associates to perform an impairment rating review, which was prepared by Craig Uejo, M.D. That evaluation concluded that Claimant’s current impairment is 29% whole person. In Dr. Uejo’s opinion, 7% is attributable to the November 22, 2004 injury.
8. The Department has provided the parties with all records relating to Claimant’s previous workers’ compensation claims.
9. Claimant had a previous spine fusion following a work place injury in approximately 1978. The Department has no files pertaining to this claim. There is no evidence that Claimant received a permanency award for this injury.
10. On July 3, 1991 while employed by Conklin Construction, Claimant injured his back. The workers’ compensation claim bearing State File No. E-01756 resulted in a Form 22 settlement for a 17% spine impairment.
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11. This was a compromise between the 13% whole person rating assessed by Dr. Carol Talley and an 8% whole person impairment assessed by Dr. John Peterson. The 17% spine rating is equivalent to 10.5% whole person.
12. In his evaluation, performed under the Third Edition of the AMA Guides, Dr. Peterson concluded that Claimant’s impairment was 11% whole person. He was aware of the earlier spine fusion surgery related to Claimant’s 1978 work injury and deducted 3% for that. Dr. Peterson explained:
I feel that it would be appropriate to deduct 3% of the whole person based on his previous fusion. This would leave an impairment of 8% of the whole person, which can be converted to 14% of the spine. It does not appear that Dr. Talley took this fusion into consideration when she gave her permanent partial impairment rating.
13. Claimant, therefore, has received benefits equal to a 21.5% whole person rating – 11% based on Dr. Binter’s evaluation and 10.5% from the settlement of his earlier claim. This is 7.5% less than his current 29% rating from all injuries.
14. Defendant has claimed that Claimant is not entitled to medical benefits following an intervening event referenced in a handwritten medical report, dated March 22, 2006, which states that Claimant suffered an exacerbation of his back pain on 3/19/06 when he attempted to stop his truck from rolling back after the brake did not hold.
15. No medical bills have been paid since that date, in accordance with the Department’s October 24, 2006 determination that the truck incident was a “significant intervening event that likely broke the causal connection” between Claimant’s November 2004 work injury and his current condition.
16. Dr. Backus states as follows:
There was no specific injury on that date. I do not see this as an aggravating even[t] for his low back. In an attempt to take a few steps or even try to run towards his truck in an emergency is what would be considered, in my opinion, a normal activity and not an injury. It is therefore my opinion a reflection that his ongoing back pain was not aggravated at that point in time. If it was temporarily worsened, it would have been a recurrence or just a continuance.
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was his employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms and correspondence contained in the Department’s file relating to this claim. Judicial notice also is taken of the Joint Statement of Uncontested Facts recorded above, and of relevant portions of the AMA Guides to the Evaluation of Permanent Impairment (“AMA Guides”), 5th ed.
Expert Medical Opinions as to Apportionment of Claimant’s Permanent Impairment
3. As the parties have stipulated, Claimant has suffered three separate work-related low back injuries, each of which resulted in some permanent impairment to his spine. The first injury occurred in or about 1978. Claimant underwent a spinal fusion as a consequence of this injury. There is no evidence that he received any permanent partial disability benefits thereafter.
4. Claimant suffered a second work-related low back injury in 1991. In 1992 the Department approved an Agreement for Permanent Partial Disability Compensation (Form 22) that both he and his employer had executed. By the terms of that agreement, Claimant received compensation for a 10.5% whole person permanent impairment, representing a compromise between Dr. Talley’s 13% rating and Dr. Peterson’s 8% rating. Both doctors calculated their ratings in accordance with the 3rd edition of the AMA Guides, the version that was in effect at the time. In calculating his rating, however, Dr. Peterson apportioned away the 3% impairment he attributed to Claimant’s earlier injury and 1978 spinal fusion, specifically subtracting that amount from what he determined to be a total impairment of 11%. Dr. Talley did not do so. By compromising the two ratings, therefore, the permanency benefits Claimant received in 1992 included at least some compensation for the 1978 injury as well, although admittedly not all that might have been rated and paid separately.
5. The focus of the current claim centers on Claimant’s November 2004 work injury. As a consequence of that injury, Dr. Binter rated him with an 11% whole person permanent impairment, and Claimant received permanent partial disability benefits in accordance with that rating. Dr. Binter made no attempt to apportion any part of Claimant’s permanent impairment to either of his previous injuries.
6. Both Claimant’s expert, Dr. Backus, and Defendant’s expert, Dr. Uejo, agree that Dr. Binter’s rating was incorrect and that the proper rating for Claimant’s current impairment, before apportionment, is 29% whole person. The experts differ, however, as to how much of that impairment relates to Claimant’s November 2004 injury and how much relates back to his 1978 and 1991 injuries.
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7. The 5th edition of the AMA Guides provides some direction to physicians faced with apportionment issues. Generally, the AMA Guides suggest that a subtraction method be utilized – calculate the claimant’s total current impairment rating, then subtract the rating referable to his or her prior impairment; the remainder is the impairment specifically attributable to the current injury. AMA Guides (5th ed.), §§1.6b and 2.5h. In situations where a prior injury either was not rated or was rated according to an earlier version of the AMA Guides, the physician is directed to take the necessary steps to allow for both injuries to be rated via the same edition, id. In all cases, however, the AMA Guides specifically defer to each state’s “customized methods for calculating apportionment,” id. at §1.6b, and mandate that the physician’s apportionment determination “should follow any state guidelines,” id. at §2.5h.
8. Dr. Backus’ apportionment calculation utilized a straightforward subtraction approach – he subtracted the 10.5% whole person impairment for which Claimant was paid after his 1991 injury from the 29% whole person impairment he rated currently, and attributed the remaining 18.5% whole person impairment to the November 2004 injury. Claimant having already received compensation for the November 2004 injury in accordance with Dr. Binter’s 11% whole person rating, the remainder due him under Dr. Backus’ approach would be 7.5%.
9. Dr. Uejo utilized a different approach. Mindful of the fact that the impairment referable to Claimant’s 1991 injury had been rated in accordance with the 3rd edition of the AMA Guides, Dr. Uejo began his apportionment analysis by recalculating that impairment according to the 5th edition of the Guides instead. Using the 5th edition’s methodology, he rated Claimant with a 22% whole person impairment causally related to the 1991 injury. Subtracting that from the 29% impairment that both he and Dr. Backus had rated for Claimant’s current condition, Dr. Uejo concluded that Claimant had suffered only a 7% impairment as a result of the November 2004 injury alone. Given that Claimant already has been compensated for an 11% impairment in accordance with Dr. Binter’s rating, under Dr. Uejo’s analysis no further permanency benefits would be due. To the contrary, according to Dr. Uejo’s apportionment methodology, Claimant has been overpaid.
The March 2006 Truck Incident
10. On March 19, 2006 Claimant drove his pickup truck to a friend’s house. Claimant parked the truck in his friend’s driveway, set the emergency brake and exited. Moments later his friend exclaimed that the truck was rolling down the hill. Claimant turned and began running after the truck. After running only a short distance, he realized that he would not be able to catch the truck and stopped. The truck continued down the hill and crashed into a tree.
11. At the time of this incident, Claimant already had been complaining of ongoing low back pain, radiating pain, burning and numbness into his legs and gait instability. Claimant was troubled by these symptoms and felt dissatisfied with Dr. Binter’s determination that she had nothing more to offer him. He had discussed with his wife whether he should seek a second opinion, and they had agreed that he should do so.
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12. To that end, Claimant reported his ongoing symptoms to Dr. Towle, his primary care provider, in December 2005 and again in January 2006. In order to better evaluate his current condition, Dr. Towle scheduled Claimant for an MRI, which he underwent in February 2006, some weeks before the March 2006 truck incident.
13. The February 2006 MRI revealed multi-level degenerative disc disease and evidence of focal arachnoiditis at L4-5, the site of his earlier surgeries. Arachnoiditis is an inflammation of the membranes surrounding the central nervous system, including the spine. As the membranes become more inflamed, they may cause the tissue to impinge on the nerves, which causes pain. Arachnoiditis is a known complication from spinal surgery.
14. As a follow-up to his February 2006 MRI, at the time of the March 2006 truck incident Claimant already was scheduled to see Dr. Penar, a neurosurgeon, to discuss possible surgical treatment for his ongoing symptoms. This evaluation occurred in April 2006. Dr. Penar determined that Claimant’s symptoms were unlikely to be correctable surgically. Instead, he referred Claimant for epidural steroid injections.
15. Three days after the March 2006 truck incident, on March 22, 2006 Claimant returned to Dr. Towle. Dr. Towle’s office note stated that Claimant presented with “exac[rebated] back pain” that had begun when “he tried to stop his truck from rolling back after he got out of it.”
16. Claimant testified credibly that Dr. Towle’s office note was erroneous, and that he did not in any way attempt to stop or hold back his truck from rolling. As noted above, Claimant stated that after the truck began to roll down the hill, he tried to run after it but quickly realized that he would not be able to reach it in time. Claimant testified that after running for only a short distance the combination of his unstable gait and low back pain prevented him from continuing.
17. Claimant also testified credibly that the March 2006 truck incident did not cause any appreciable increase in his low back pain. As noted above, he had been experiencing ongoing symptoms for some time before that event and these continued to the same extent afterwards.
18. Dr. Backus testified that based on Claimant’s description of the event, the March 2006 truck incident caused merely a minor experience of symptoms and did not result in any specific new injury. He noted that Claimant already had taken steps to obtain a second opinion from Dr. Penar to determine what, if any, treatment might be reasonable for his ongoing symptoms. With that in mind, Dr. Backus concluded that the medical treatment Claimant received from March 2006 until November 2006 was causally related to the November 2004 work injury, not to any intervening injury or condition related to the March 2006 event.
19. As of the date of his November 17, 2006 permanent impairment evaluation, Dr. Backus determined that Claimant had reached an end medical result for the November 2004 work injury.
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20. Dr. Uejo concurred with Dr. Backus’ conclusion that the March 2006 truck incident did not cause any specific new injury. Unlike Dr. Backus, however, Dr. Uejo posited that the truck event caused Claimant’s symptoms to flare up temporarily. In Dr. Uejo’s opinion, therefore, the medical treatment Claimant received from March 22, 2006 until Dr. Backus’ end medical result date in November 2006 was causally related to the truck incident, not to his prior work injury. Dr. Uejo admitted that in forming this opinion he was not specifically aware that Claimant already had scheduled a second opinion with Dr. Penar prior to the truck incident, in preparation for which he already had undergone an MRI in February 2006.
Mileage Reimbursement
21. Claimant’s work for Defendant required him to travel to job sites throughout the state. Sometimes Claimant commuted directly to a job site from his home in Johnson, Vermont, and sometimes he traveled first to Defendant’s main office before heading out. Sometimes he used Defendant’s dump truck to travel, particularly if he needed to transport bricks or staging. Other times he used his own pick-up truck. In either event, Defendant provided Claimant with a gas credit card with which to purchase gas, whether for the company-owned dump truck or for Claimant’s personal pick-up.
22. No evidence was presented as to what Claimant’s average commuting distance was, taking into account that he sometimes commuted directly from home to a job site rather than traveling first to Defendant’s main office. Defendant’s policy was to compensate employees for travel time only for distances exceeding 35 miles each way.
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. 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).
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Apportionment of Permanent Impairment
3. Vermont’s workers’ compensation statute requires apportionment in cases where a prior impairment has been both rated and paid. 21 V.S.A. §648(d). Absent those specific circumstances, the Commissioner retains discretion whether to apportion or not. See Murray v. Home Depot USA, Inc., Opinion No. 41-08WC (October 20, 2008).
4. Clearly here, at the time of his November 2004 injury Claimant had suffered prior impairments that had been both rated and paid. The parties agree, therefore, that some apportionment is mandatory under the statute. The question before me now is how best to apportion – whether simply to rely on the compromise rating pursuant to which Claimant was paid in 1992, as Dr. Backus suggests, or whether to recalculate the extent of his 1992 impairment in accordance with the most current edition of the AMA Guides, as Dr. Uejo did.
5. The AMA Guides seem to favor Dr. Uejo’s approach, particularly where, as here, the prior impairment rating was calculated according to an earlier edition. But the Guides also direct physicians to defer to each state’s “customized method” for determining how best to apportion. In Vermont, in order for mandatory apportionment to be triggered the statute requires that a prior impairment be not simply rated, but also paid as well. It is reasonable to infer that the statutory reference to payment requires that the apportionment calculation be based on the rating that actually was paid, not the one that might have resulted had a more recent edition of the Guides been available at the time. To rule otherwise would open up all prior impairment ratings to retrospective analysis and recalculation. This would undermine the binding nature of prior approved compensation agreements and the finality of permanency awards.
6. I conclude, therefore, that the most appropriate method for apportioning Claimant’s total current impairment is to subtract the 10.5% whole person impairment that was rated and paid in 1992 from his current 29% impairment. The remaining 18.5% is the impairment attributable to Claimant’s November 2004 injury. Of that, 11% already has been paid, leaving a balance due of 7.5%.
Medical Benefits from March 2006 until November 2006
7. Defendant asserts that Claimant’s medical treatment from March until November 2006 was necessitated by the March 2006 truck incident rather than the original compensable injury. The record is clear, however, that Claimant already had taken steps to seek further evaluation and treatment for his ongoing symptoms prior to that event. I am convinced that the truck incident in no way precipitated Claimant’s need for ongoing medical treatment from March until November 2006. Defendant remains responsible for the medical expenses he incurred during that period.
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Mileage Reimbursement for Travel to and from Medical Appointments
8. Last, Defendant argues that Claimant is not entitled to mileage reimbursement for travel to and from his medical appointments. Workers’ Compensation Rule 12.2100 provides that a claimant is entitled to reimbursement only for mileage that is “beyond the distance normally traveled to the workplace.” Here, Claimant sometimes commuted directly from home to a work site, and therefore did not have a “normal” travel distance upon which to base a mileage reimbursement calculation.
9. There was evidence, however, that Defendant’s policy is to use 35 miles each way as the basis for calculating its employees’ entitlement to compensation for their travel time. It is reasonable under the circumstances to use the same distance as a basis for calculating Claimant’s entitlement to mileage reimbursement. In accordance with Workers’ Compensation Rule 12.2100, Defendant is obligated to reimburse Claimant for travel to and from medical appointments that were more than 35 miles away from his home.
10. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $2,183.35 and attorney’s fees totaling $5,103.00 (56.7 hours at the mandated rate of $90.00 per hour). An award of costs to a prevailing claimant is mandatory under the statute. As Claimant has prevailed, these are awarded.
11. As for attorney’s fees, these lie within the Commissioner’s discretion. I find that they are appropriate here, and therefore these are awarded as well.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Permanent partial disability benefits in accordance with a 7.5% whole person impairment rating referable to the spine;
2. Medical benefits covering treatment for Claimant’s low back injury from March 2006 until November 2006;
3. Mileage reimbursement in accordance with Conclusion of Law No. 10 above;
4. Interest on the above amounts in accordance with 21 V.S.A. §664; and
5. Costs totaling $2,183.35 and attorney’s fees totaling $5,103.00.
DATED at Montpelier, Vermont this 24th day of June 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.

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