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Cynthia Galbicsek v. Experian Information Solutions (December 22, 2009)

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Cynthia Galbicsek v. Experian Information Solutions (December 22, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Cynthia Galbicsek Opinion No. 51-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Experian Information Solutions
For: Patricia Moulton Powden
Commissioner
State File No. S-07728
OPINION AND ORDER
Hearing held in Montpelier, Vermont on May 27, 2009
Record closed on August 17, 2009
APPEARANCES:
Christopher McVeigh, Esq., for Claimant
John Valente, Esq., for Defendant
ISSUE PRESENTED:
Is Claimant’s continued use of narcotic pain medications reasonable and necessary treatment for her compensable low back injury?
EXHIBITS:
Joint Exhibit I: Medical records
Joint Exhibit II: Various treatment algorithms, news releases and guidelines for use of opioid medications as treatment for chronic pain
CLAIM:
Medical benefits pursuant to 21 V.S.A. §640
Costs and attorney fees pursuant to 21 V.S.A. §678
FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was her employer as those terms are defined in Vermont’s Workers’ Compensation Act.
2. Judicial notice is taken of all relevant forms contained in the Department’s file relating to this claim.
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3. The relevant facts relating to Claimant original work injury are detailed in the Commissioner’s prior opinion, Galbicsek v. Experian Information Solutions, Opinion No. 30-04WC (September 4, 2004), and will be recited only briefly here. Claimant suffered a low back injury in the course and scope of her employment for Defendant on September 23, 1999. She began treating with Dr. Bucksbaum in February 2000. Conservative treatments failed to alleviate her pain, which was determined to be mechanical in nature and not amenable to surgical correction. Ultimately Dr. Bucksbaum prescribed a regimen of narcotic medications to treat Claimant’s chronic pain. Defendant objected to this course of treatment as neither reasonable nor necessary, and the claim proceeded to formal hearing on that issue.
4. After considering the expert medical testimony from both Dr. Bucksbaum, the treating physician, and from Dr. Ensalada, Defendant’s independent medical evaluator, the Commissioner ruled that Dr. Bucksbaum’s treatment plan was reasonable, necessary and therefore compensable. In making this determination, however, the Commissioner noted the inherent danger of sanctioning indefinitely a chronic pain patient’s use of narcotics for pain relief. To provide some mechanism for re-evaluating the efficacy of Dr. Bucksbaum’s treatment plan, therefore, the Commissioner mandated that the issue be considered anew in two years’ time. Defendant now seeks that review.
5. Not much has changed in the intervening years. Dr. Bucksbaum continues as Claimant’s treating physician, and as before, remains committed to a narcotic medication regimen as the most effective way to control Claimant’s chronic pain and maintain her function. He continues to monitor Claimant’s medication use closely, with monthly office visits, regular toxicology screening and strict prescription control.
6. Dr. Bucksbaum acknowledges that Claimant is drug dependent, but denies that she is drug addicted. Drug dependency is a normal phenomenon, in which a patient – a person who suffers from diabetes, for example – requires drugs – in the case of the diabetic, insulin – in order to avoid a deficient medical state. In contrast, drug addiction is an abnormal condition in which a patient seeks drugs, usually in increasing dosages, in order to obtain some secondary gain.
7. Dr. Bucksbaum’s qualifications are well suited to treating patients, like Claimant, who suffer from chronic pain. He is board certified in physical medicine, rehabilitation and pain management, and has trained in both narcotic and non-narcotic methods of pain control. He also practices addiction medicine and in that context is familiar with the signs of illicit drug use. In Claimant’s case, Dr. Bucksbaum has observed only one instance of inappropriate diversionary or addictive behavior, involving marijuana use in violation of her narcotics contract. That episode occurred many years ago and in his opinion is no longer clinically significant.
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8. Dr. Bucksbaum’s treatment approach is consistent with the Vermont Board of Medical Practice’s “Policy for the Use of Controlled Substances for the Treatment of Pain,” adopted in December 2005. The policy was adapted from the model endorsed by the Federation of State Medical Boards of the United States. It acknowledges that the medical management of pain can include, in appropriate circumstances, prescribing narcotic medications for patients with clearly documented unrelieved chronic pain. The goal of any such treatment should be “to control the patient’s pain while effectively addressing other aspects of the patient’s functioning, including physical, psychological, social and work-related factors.” The policy recognizes, furthermore, that “tolerance and physical dependence are normal consequences of sustained use of opioid analgesics and are not the same as addiction.”
9. The Medical Practice Board’s policy endorses the continued use of narcotic medications for pain management therapy provided that the treating physician’s evaluation of the patient’s progress towards treatment goals remains satisfactory. “Satisfactory response to treatment may be indicated by the patient’s decreased pain, increased level of function, or improved quality of life.”
10. According to Dr. Bucksbaum, over the course of many examinations Claimant has demonstrated both positive physical findings and an unsatisfactory response to alternative treatments, enough to justify a narcotic medication regimen as the best option for treating her chronic pain. Treatment with narcotics has increased Claimant’s tolerance for both work and daily living activities, and thereby has alleviated her depression as well. Though not a perfect solution, in Dr. Bucksbaum’s opinion narcotic medications have given Claimant a level of pain control that is significantly better than what he would expect from any other treatment option. This has made a “major difference” to her. Dr. Bucksbaum anticipates that Claimant most likely will require narcotic pain control medications for the rest of her life.
11. Testifying on Defendant’s behalf, Dr. Ensalada strongly disputed the appropriateness of Dr. Bucksbaum’s treatment plan, for essentially the same reasons that he propounded at the earlier formal hearing in this claim. Dr. Ensalada is board certified in both pain medicine and anesthesiology. Although his current practice is largely forensic, in the past he devoted a significant portion of his time to treating pain patients.
12. According to Dr. Ensalada, Claimant’s original injury was a minor low back strain/sprain resulting in non-specific low back pain. Since then, neither objective physical findings nor diagnostic studies have revealed any verifiable basis for her chronic pain. Dr. Ensalada emphasized that Claimant is not malingering or magnifying her symptoms in any way. In his opinion, however, without objective signs of underlying pathology Claimant’s subjectively reported symptoms alone are insufficient to justify treating her with narcotic medications. For that reason, Dr. Ensalada believes that Dr. Bucksbaum’s treatment has always been, and continues to be, neither reasonable nor necessary.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. Once a claim has been accepted and benefits have been paid, the party seeking to discontinue bears the burden of proving that it is proper to do so. Merrill v. University of Vermont, 133 Vt. 101, 105 (1974). As to the reasonable necessity of medical treatment, however, Claimant bears the burden of proof. MacAskill v. Kelly Services, Opinion No. 04-09WC (January 30, 2009).
3. At issue here is whether Claimant’s continued ongoing use of narcotic medications for chronic pain control constitutes reasonable and necessary treatment. Dr. Bucksbaum, her treating physician, feels strongly that it is. Dr. Ensalada, Defendant’s medical expert, feels strongly that it is not.
4. 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).
5. Notwithstanding the passage of more than five years’ time, the medical expert testimony offered in the current claim is in most respects identical to that offered at the prior formal hearing. There, the Commissioner determined that Dr. Bucksbaum’s opinion was the most credible. Since that time, Dr. Bucksbaum’s opinion has been buttressed by the Vermont Medical Practice Board’s publication of a policy that endorses the ongoing use of narcotic medications, in appropriate circumstances, as an effective treatment for chronic pain.
6. I conclude that Dr. Bucksbaum’s treatment fits in all respects within the parameters of the Practice Board’s policy. It also meets the definition of “palliative care” as stated in Workers’ Compensation Rule 2.1310: “[M]edical services rendered to reduce or moderate temporarily the intensity of an otherwise stable medical condition, but [not including] medical services rendered to diagnose, heal or permanently alleviate or eliminate a medical condition.”
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7. I also conclude that by virtue of his training and experience Dr. Bucksbaum is well qualified to administer a narcotic pain control program on Claimant’s behalf. He has demonstrated his ability to impose strict controls on Claimant’s drug use and to monitor both her compliance with, and her response to, his treatment regimen. Although not in itself a determinative factor, furthermore, Dr. Bucksbaum is entitled to due deference as Claimant’s treating physician for more than nine years, managing a chronic pain condition for which only imperfect solutions exist.
8. In contrast, I am hard-pressed to accept Dr. Ensalada’s analysis. It was insufficient to carry the day at the 2004 formal hearing, and it has not changed appreciably since.
9. I conclude that Dr. Bucksbaum’s opinion is the most credible one here. With that opinion as support, Claimant has sustained her burden of proving that Dr. Bucksbaum’s current treatment plan, which includes prescribing narcotic medications to manage her chronic pain, continues to be both reasonable and necessary treatment for her September 23, 1999 work injury. Although Claimant’s circumstances may change in the future, either because her condition changes, or she becomes non-compliant, or medical science offers new treatment alternatives, at present Defendant remains responsible for what Dr. Bucksbaum has established to be the best option available to her.
ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Medical benefits covering all reasonable and necessary medical services and supplies causally related to Claimant’s September 23, 1999 work injury, including coverage for narcotic pain medications; and
2. Costs and attorney fees, in amounts to be determined pursuant to 21 V.S.A. §678(e).
DATED at Montpelier, Vermont this 22nd day of December 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.

Paul Baldwin v. Velan Valve (November 19, 2009)

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

Paul Baldwin v. Velan Valve (November 19, 2009)
STATE OF VERMONT
DEPARTMENT OF LABOR
Paul Baldwin Opinion No. 45-09WC
v. By: Phyllis Phillips, Esq.
Hearing Officer
Velan Valve
For: Patricia Moulton Powden
Commissioner
State File No. W-04562
OPINION AND ORDER
Hearing held in Montpelier on October 2, 2009
Record closed on October 26, 2009
APPEARANCES:
Ron Fox, Esq., for Claimant
Gregory Boulbol, Esq., for Defendant
ISSUES PRESENTED:
1. Is Claimant entitled to additional workers’ compensation benefits causally related to his March 15, 2005 compensable injury?
2. If yes, to what benefits is Claimant entitled?
EXHIBITS:
Joint Exhibit I: Medical records
Claimant’s Exhibit 1: Deposition of Elizabeth McLarney, M.D., September 24, 2009
Claimant’s Exhibit 2: Trash bag (offered for identification only)
Defendant’s Exhibit A: Curriculum vitae, George White, M.D.
CLAIM:
Temporary total disability benefits pursuant to 21 V.S.A. §642
Medical benefits pursuant to 21 V.S.A. §640
Interest, costs and attorney fees pursuant to 21 V.S.A. §§664 and 678
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FINDINGS OF FACT:
1. At all times relevant to these proceedings, Claimant was an employee and Defendant was 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.
3. Claimant’s vocational training and experience is as a machinist. In January 2005 he began working for Defendant. His job required him to float from spot to spot, filling in for other employees. On any given day he might run a mill, set up a lathe or operate some other machine.
4. On March 15, 2005 Claimant was setting up a job on a lathe. Due to a programming error, a part got caught in the machine and Claimant had to remove it. As he pulled on the part, which weighed approximately 50 pounds, he injured his lower back. Defendant accepted this injury as compensable and paid workers’ compensation benefits accordingly.
5. As a result of this injury Claimant experienced low back pain radiating into his left leg. He was diagnosed with a disc herniation at L5-S1, which affected the S1 nerve root as well. After conservative measures failed to alleviate his symptoms, Claimant underwent L5-S1 disc surgery in June 2005.
6. Claimant had only temporary pain relief following surgery, and then his symptoms recurred. He was left with chronic, constant low back pain, radiating from his left buttocks down his left leg and into his left ankle. Claimant treated for this pain with narcotic pain medications, including oxycontin and methadone, which he took daily. Later, Claimant began taking oxycodone as well for breakthrough pain.
7. Following an independent medical evaluation with Dr. Fenton in May 2006 Claimant was placed at end medical result and rated with a 13 percent whole person permanent impairment. Defendant paid permanent partial disability benefits in accordance with this rating.
8. In late 2006 Claimant returned to work, briefly first for Hayward Tyler Co. and then for Moscow Mills. Initially Claimant’s job at Moscow Mills was as a machinist; later he was promoted to a position involving purchasing, planning and quoting. Claimant enjoyed his work at Moscow Mills, and because his job responsibilities accommodated his need to change positions he was able to work full-time and full-duty notwithstanding his ongoing low back and left leg symptoms.
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9. As is common in patients with chronic low back pain, Claimant experienced occasional activity-related flare-ups. In November 2006, for example, he strained his back while playing with his children. In February 2007 he did so again after shoveling snow, and in February 2008 he reported increased pain, again after shoveling snow. Following each of these incidents Claimant briefly increased his dosage of narcotic pain medications, after which his symptoms returned to their baseline level.
10. Notably, even when his symptoms were at their baseline, Claimant required fairly high levels of narcotic pain medications to control them. With those medications, however, he was “going along with his life,” working full time and engaging in routine activities of daily living.
11. One of Claimant’s routine household-related duties was to help his wife take care of the trash. Every other day or so Claimant’s wife would leave a full 13-gallon white kitchen trash bag outside the front door of their home. When Claimant came home, he would put the bag in the back of his pickup truck, where it would stay until his next trip to the dump. The weight of each bag varied depending on its contents, but Claimant testified credibly that an “average” trash bag probably weighed about 12 pounds. Claimant testified that he regularly performed this activity with no detrimental effect on his low back or left leg pain.
12. On November 12, 2008 Claimant came home and found a trash bag waiting at the door. As was his practice, he carried the bag to his truck, dropped the tailgate and placed the bag in the truck bed. As he did so he felt a sharp pain in his lower back, radiating into his left buttocks and down his left leg. Claimant left the tailgate as it was, immediately went inside and lay down on the couch.
13. Claimant testified that the location of his pain was exactly as it had been at the time of his original injury, but that it was two to three times more intense. Unlike previous flare-ups, furthermore, this time the increased pain did not respond to additional narcotics and did not resolve back to its baseline. Instead, it has remained steady at the new, more intense level.
14. Claimant testified that the increased pain he has experienced since the trash bag incident has precluded him from engaging in almost any activity. He has not worked since the incident occurred, and spends most of his day lying on his back. His left leg gives out on him at times, so to prevent himself from falling he now walks with a cane. Clearly he no longer is “going along with his life” to the extent that he was previously.
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15. Claimant has undergone two independent medical evaluations since the trash bag incident, one at Defendant’s request with Dr. White, an occupational medicine specialist, and one at his own attorney’s referral with Dr. McLarney, an orthopedic surgeon. The areas of agreement between the two doctors far outnumber the issues upon which their opinions diverge:
• Both doctors agree that Claimant’s 2005 work injury caused his L5-S1 disc to herniate, which left his spine in a weakened condition and his disc more susceptible to future exacerbations. Both further agree that the trash bag incident resulted in an increase in symptoms emanating primarily from the same area of the back. Both agree that but for the fact that Claimant’s back already was weakened in that area, it is unlikely that lifting the bag and placing it in his truck would have been in any way problematic. In that sense, therefore, both agree that the trash bag incident somehow acted upon Claimant’s preexisting condition and thereby became the instigating event for the worsened symptoms that followed.
• Both doctors agree that whether Claimant’s worsened symptoms are due to scar tissue caused by his June 2005 disc surgery or to a new disc herniation is unclear. To clarify the diagnosis, both agree that it would be reasonable for Claimant to undergo an MRI with gadolinium, or contrast dye.
• Both doctors agree that if the MRI reveals the problem to be scar tissue, surgery will be ineffective at relieving Claimant’s symptoms. If the MRI reveals new disc material, both doctors agree that surgery might be an option, although for various reasons Dr. White believes Claimant is not a good surgical candidate.
• Both doctors agree that a multidisciplinary functional restoration or rehabilitation program may present an efficacious treatment route for Claimant. By participating in such a program hopefully Claimant would be able to decrease his dependence on narcotic pain medications, increase his exercise tolerance and improve his overall strength and conditioning level.
• Both doctors agree that Claimant should be able to return to work, at least at a sedentary work capacity. Dr. White believes that Claimant has no structurally limiting condition that would preclude him from doing so immediately. Dr. McLarney believes that it would be unrealistic to expect Claimant to transition directly back to work in his current condition, given his narcotic drug dependency, his deconditioned physical state and his extended time out of work. She is optimistic, however, that he would be able to do so after completing a functional restoration program.
• Both doctors agree that Claimant has not yet reached an end medical result from the trash bag incident.
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CONCLUSIONS OF LAW:
1. In workers’ compensation cases, the claimant has the burden of establishing all facts essential to the rights asserted. King v. Snide, 144 Vt. 395, 399 (1984). He or she must establish by sufficient credible evidence the character and extent of the injury as well as the causal connection between the injury and the employment. Egbert v. The Book Press, 144 Vt. 367 (1984). There must be created in the mind of the trier of fact something more than a possibility, suspicion or surmise that the incidents complained of were the cause of the injury and the resulting disability, and the inference from the facts proved must be the more probable hypothesis. Burton v. Holden Lumber Co., 112 Vt. 17 (1941); Morse v. John E. Russell Corp., Opinion No. 40-92WC (May 7, 1993).
2. This claim raises the question to what extent an intervening activity or event can operate to sever the causal link between a work-related accident and the natural consequences that flow from it. As such, its resolution depends more on legal analysis than medical analysis. Medically, there is no dispute that Claimant’s activities on November 12, 2008 – placing a 12-pound trash bag into the back of his truck – caused the low back and left leg symptoms he had experienced since his original 2005 work injury to worsen significantly. The real dispute is as to the legal ramifications of that incident in the context of this claim.
3. This Department has maintained on a fairly consistent basis that when a claimant’s condition worsens, or his or her symptoms flare, after engaging in normal, routine activities of daily living the causal link back to the original work injury remains intact, such that further medical treatment and/or periods of disability remain compensable. See, e.g., Church v. Springfield Hospital, Opinion No. 40-08WC (October 8, 2008) (climbing a single step at home does not sever causal connection); Verchereau v. Meals on Wheels, Opinion No. 20-88WC (1988) (carrying groceries); Correll v. Burlington Office Equipment, Opinion No. 64-94WC (May 1, 1995) (shoveling); but c.f. Signorini v. Northeast Cooperative, Opinion No. 36-04WC (September 1, 2004) (rising from chair; causal link severed due to nine-year gap back to original injury); Read v. W.E. Aubuchon Co., Opinion No. 24-04WC (July 13, 2004) (building rock garden and painting not properly categorized as normal activities of daily living).
4. This policy comports well with the mandate that in order to accomplish its humane purpose Vermont’s Workers’ Compensation Act must be construed liberally in favor of injured workers. Montgomery v. Brinver Corp., 142 Vt. 461 (1983). It also recognizes the practical reality that even injured workers must continue to go about their daily lives despite whatever underlying condition or weakness their work injury has caused. Were employers allowed to use reasonable, routine activities of daily living as a basis for terminating their ongoing responsibility for the natural consequences of a work injury, workers’ compensation would be a short-lived and hollow remedy indeed.
5. With those principles in mind, I find that Claimant’s activities on November 12, 2008 qualify as the type of normal, routine activities of daily living that do not operate to sever the causal link back to the original work injury. Defendant remains responsible, therefore, for all causally related workers’ compensation benefits arising from either event.
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6. As for medical benefits, I find credible Dr. McLarney’s opinion, with which Dr. White essentially concurred, that Claimant should undergo an MRI with gadolinium followed by a surgical consult. Should surgery not be indicated, I find that a multidisciplinary functional restoration program is the appropriate next step.
7. I also find that Claimant has been temporarily totally disabled since November 12, 2008 and that his disability is ongoing currently. In that respect, I accept Dr. McLarney’s opinion that Claimant is unable to transition immediately back to work, but that with the benefit of further treatment hopefully he will be able to do so soon.
8. Claimant has submitted a request under 21 V.S.A. §678 for costs totaling $3,217.59 and attorney fees based on a contingent fee of 20% of the recovery, not to exceed $9,000.00, in accordance with Workers’ Compensation Rule 10.1220. An award of costs to a prevailing claimant is mandatory under the statute. To be allowable, however, costs must be reasonable and must comply with the applicable provisions of the medical fee schedule. I find it unreasonable to hold Defendant responsible for Dr. McLarney’s $350.00 no-show fee, and therefore that charge is disallowed. I also note that Dr. McLarney’s $1,050.00 deposition fee appears well in excess of the $300 hourly rate mandated by Workers’ Compensation Rule 40.110. The deposition itself took approximately one hour, and the time spent consulting with Claimant’s attorney either before or after is not recoverable. Hatin v. Our Lady of Providence, Opinion No. 21S-03 (October 22, 2003). This charge is reduced to $600.00. The total costs awarded, therefore, are $2,417.59.
9. As for attorney fees, these lie within the Commissioner’s discretion. I find they are appropriate here, and therefore these are awarded to the extent allowed by Workers’ Compensation Rule 10.1220.
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ORDER:
Based on the foregoing findings of fact and conclusions of law, Defendant is hereby ORDERED to pay:
1. Temporary total disability benefits beginning on November 13, 2008 and continuing until Defendant produces sufficient evidence to justify their discontinuance in accordance with Workers’ Compensation Rule 18.0000;
2. Interest on the above amounts computed in accordance with 21 V.S.A. §664;
3. Medical benefits covering all reasonably necessary medical treatment causally related either to Claimant’s March 2005 work injury and/or to the November 12, 2008 incident, specifically including the treatment referred to in Conclusion of Law No. 6 above;
4. Costs totaling $2,417.59 and attorney fees computed in accordance with Workers’ Compensation Rule 10.1220.
DATED at Montpelier, Vermont this 19th day of November 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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